Download This Paper‘Trade-Related’ After All? Reframing the Paris and Berne Conventions as Multilateral Trade Law
Across intellectual property: essays in honour of Sam Ricketson, edited by Graeme Austin, Andrew Christie, Andrew Kenyon, and Megan Richardson, New York: Cambridge University Press, 2020.
13 Pages Posted: 27 May 2020
Date Written: March 11, 2019
Abstract
The negotiators of the WTO TRIPS Agreement made a conscious and far-reaching decision to incorporate substantive provisions of the central pillars of the multilateral intellectual property system, the Paris and Berne Conventions, not only into the TRIPS Agreement itself, but also into the broader complex of multilateral trade law, given the formal legal status of TRIPS as an annex to the Agreement Establishing the WTO. Subsequent dispute settlement practice has eased concerns that this fundamental structural decision would lead to a fragmentation of the international law of intellectual property. Yet the intent behind, and the full consequences of, this decision are not entirely apparent, despite their significance not merely for treaty interpretation and the appropriate status and role of Paris and Berne travaux in that regard, but also for the very scope of WTO Members' substantive rights and obligations, for broader policy coherence at international and domestic levels, and for the practice of dispute settlement including in relation to the suspension of concessions; these issues are concatenated when it is considered that numerous bilateral and regional agreements, in turn, incorporate or reaffirm 'TRIPS' as such. This paper maps out these issues against the history of the Paris and Berne Conventions, the TRIPS negotiations, and subsequent dispute settlement practice, thus far and on the lessons of domestic policymaking and legislation to explore the prospects for a coherent, comprehensible and legitimate framework for the composite international law of intellectual property and trade.
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