Global regulation of international intellectual property through Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS): The European Union and Brazil
| Autor | Delphine Aurélie Laurence Defossez |
| Cargo | Obtained two Master degrees in law, one in Comparative International and European Law from the European University Institute (EUI), Florence, Italy |
| Páginas | 131-160 |
Global regulation of international intellectual property through Agreement… (p. 131-160) 131
DEFOSSEZ, D. A. L.
Global reg ulation of inter national intellectual property through Agreement on Trade-Relate d
Aspects of In tellectual Property Rights ( TRIPS): The European Union and Brazil .
Revista de Direito Setorial e
Regulatório
, Brasília, v. 3, n. 2, p. 131-160, outubro de 2017.
Global regulation of international intellectual property through
Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS): The European Union and Brazil
Submitted
: 05/07/2017
Delphine Aurélie Laurence Defossez*
Revised
: 09/08/ 2017
Accepted
: 12/08/2 017
Abstract
Purpose –
This pape r focuses on the reg ulation of copyrig hts at international level by
comparing the situation under the TRIPS agreement in Brazil and in the European Union.
Methodology/appr oach/design –
This article ana lyses stan dards and l iterature on
regulation, as well as the role of TRIPS agr eement. Attention was specially drawn to the
market failure theory for justifying r egulation, advocated by B aldwin & Cave. Th e TRIPS
agreement wil l be analysed through Bald win’s five criteria for goo d regulation.
Findings –
The TRIPS agreem ent substantially widened the sco pe of governance of
copyrights but impos es the WTO view on the matter. Notwithsta nding its flaws, the TRIPS
agreement remains the mo st comprehen sive internatio nal agreement on intell ectual
property. According to Ba ldwin’s theory, the TRIPS agreement as a regulation is a good
regulation. Indeed, it achieve s the major pa rt of the goals it set. Howev er, some of the
declared goals have never come to exist ence and had been replace d by other goals. On the
overall, the TRIP S agreement has the capacit y to regulate internatio nal intellectual
property.
Originality/value –
This paper analyses the TRIPS agreement as a way forward in the
harmonization of the rules on intellectua l property.
Keywords: T RIPS, Brazil, EU law, direct ef fect, harmonisation.
Introduction
Copyright is traditionally regarded as a territorial right granted to the
creator of the original work to exclusively use and distribute such work in a given
country. (Correa, n.d) Copyrights are given international recognition based on the
*
Delphine Defoss ez obtained two Master degre es in law, one in Comparative International
and European Law from the Europea n University Institute (E UI), Florence I taly, the other
in International Co mmercial a nd Mariti me Law from S wansea Uni versity, Uni ted
Kingdom. Her Bachelor studies were in European Law at the University of Maastri cht,
The Netherlands, in which she also was selected for a researched based pr ogramme, Marble
program, unde r the supervision of the De an of the law faculty. Apart from her studi es, she
has worked, pro-bono, as a researcher for the e-lab of NYU and HEC in order to help NGOs
through the use of European law. On top of that, she h as published numerous articles on
various topics , such as aviation law, maritime law, money laundering l aw, etc. She
participated in a competition for a writing prize offered b y the International Ai r Transport
Association (IAT A), article that was published in the Annals of Air and Space la w. E-mail:
delphine.defossez@live.be.
132
Global regulation of international intellectual property through Agreement… (p. 131-160)
DEFOSSEZ, D. A. L.
Global reg ulation of inter national intellectual property through Agreement on Trade-Relate d
Aspects of In tellectual Property Rights ( TRIPS): The European Union and Brazil .
Revista de Direito Setorial e
Regulatório
, Brasília, v. 3, n. 2, p. 131-160, outubro de 2017.
interplay among the nations, in the form o f treaties and conventions. Ho wever,
and Trade (GATT) in 1994 saw the emergence of new global intellectual property
regime, embodied in the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS), which is administered by World Trade Organisation
(WTO). (Yu, 2009, p.46) TRIPS sets the minimum standards for various forms of
intellectual property re gulation. One of the greatest features of the TRIPS
agreement is that it obliges the Contracting States to apply similar or better
treatments to the copyrights of nationals of o ther WTO Members, according to
Article 1(3) in conjunction with Article 3(1). More than setting minimum
standards, the TRIPS elevates copyright onto a new stage of development by
linking it with international t rade and technology. The TRIPS agreement also
substantially widened t he scope of governance of copyrights. (Yu, 2009;
Reichman, 1996)
The three basic features of the TRIPS agreement are; first, it covers all the
main areas of intellect ual property rights, not only patents. Second, it lays down
not only the minimum substantive standards of protection that should be provided
in each of these areas of intellectual property but also the procedures and remedies
that should be available so that rights holders can enforce their rights effectively.
Finally and more importantly, together with some 25 other legal texts, it is an
integral part of the Agreement Establishing the World Trade Organization (and
therefore subject to the WTO dispute settlement system).
The TRIPS agreements are capable of creating a globalised system for
intellectual property. As Eeckhout said: "[…]. Think only of TRIPs, with its
potential impact on daily practice in intellectual property law". (Eeckhout, 2004,
p.38) Indeed, the TRIPS agreement remains the most comprehensive international
agreement on intellectual property. TRIPS is the most important multilateral
instrument and is widely spread, as it is a compulsory requirement of World Trade
Organization membership; any country wanting to obtain access to international
markets opened by the WTO must enact the rather strict intellectual property laws
required by the TRIPS agreement. (Yu, 2009; Reichman, 1996) At the same time,
TRIPS agreement imposes the WTO view on the matter and could conflict with
national views. The TRIPS is sometimes viewed as a supranational code.
(Mossinghoff, 2000, p. 593)
This article is based on the hypothesis that TRIPS agreement can be a way
forward in the harmonization of the r ules on intellectual proper ty. TRIPS
agreements are making it possible to dea l internationally with intellectual
property, even though some major issues still exi st. Thanks to the minimum
standard established by the agreement, international communication is achieved
in an easier way. In order to demonstrate this hypothesis, the article will look at
the TRIPS agreements in general as well as their a ims. Then it will move on to
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