The Role of Customary International Law in Intellectual Property Protection Beyond Borders

University of Cambridge Faculty of Law Research Paper No. 29/2021

The Role of Customary International Law in Intellectual Property Protection beyond Borders, in A Metzger & H Grosse Ruse-Khan, Intellectual Property Protection Beyond Borders, Cambridge University Press (forthcoming, 2022)

30 Pages Posted: 5 Nov 2021 Last revised: 15 Nov 2021

See all articles by Henning Grosse Ruse-Khan

Henning Grosse Ruse-Khan

University of Cambridge Fellow, King's College Cambridge; University of Cambridge

Date Written: October 4, 2021

Abstract

This paper considers the role of customary international law for the protection of intellectual property (IP) beyond borders. As an area where standards of protection are primarily, if not exclusively, governed by treaty law there seems to be little role left for custom. The analysis shows that this holds true for principles or rules committing states to a particular form of protecting the rights of foreign IP owners. However, the interpretation, application and enforcement of these rules is informed by other areas of public international law, including those governed by custom. After reviewing this often neglected role of customary international law for IP protection in general, the paper focuses on the customary right to regulate and its role in neighbouring areas of international economic law - in particular the protection fo foreign investments. Exploring the contours and limits of this right, the main research question then is whether – and if so, how – this right applies to treaty commitments in relation to the protection of IP rights. I conclude that despite a complex web of treaty-based rules, there is usually no specific evidence that the state parties intended to ‘contract out’ of the right to regulate - an aspect further confined by reference to this right in the Doha Declaration on TRIPS and Public Health. A broader point is to emphasise custom as a necessary contextual factor of the environment within which international IP law operates: it is a relevant element simply because coordinating protection beyond borders is often relying on the functionality and tools of international law.

Keywords: customary international law, international intellectual property, right to regulate, police powers doctrine, Doha Declaration

Suggested Citation

Grosse Ruse-Khan, Henning, The Role of Customary International Law in Intellectual Property Protection Beyond Borders (October 4, 2021). University of Cambridge Faculty of Law Research Paper No. 29/2021, The Role of Customary International Law in Intellectual Property Protection beyond Borders, in A Metzger & H Grosse Ruse-Khan, Intellectual Property Protection Beyond Borders, Cambridge University Press (forthcoming, 2022), Available at SSRN: https://ssrn.com/abstract=3957449 or http://dx.doi.org/10.2139/ssrn.3957449

Henning Grosse Ruse-Khan (Contact Author)

University of Cambridge Fellow, King's College Cambridge ( email )

King's Parade
Cambridge, CB2 1ST
United Kingdom

University of Cambridge ( email )

Trinity Ln
Cambridge, CB2 1TN
United Kingdom

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