Kur, Annette; Ruse-Khan, Henning Grosse --- "Enough is Enough – The Notion of Binding Ceilings in International Intellectual Property Protection" [2011] ELECD 209; in Kur, Annette (ed), "Intellectual Property Rights in a Fair World Trade System" (Edward Elgar Publishing, 2011)

Book Title: Intellectual Property Rights in a Fair World Trade System

Editor(s): Kur, Annette

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849800099

Section: Chapter 8

Section Title: Enough is Enough – The Notion of Binding Ceilings in International Intellectual Property Protection

Author(s): Kur, Annette; Ruse-Khan, Henning Grosse

Number of pages: 49

Extract:

8. Enough is enough ­ the notion of
binding ceilings in international
intellectual property protection
Annette Kur and Henning Grosse Ruse-Khan

1. INTRODUCTION

This chapter discusses the concept of "ceiling rules", "maximum stand-
ards" or "substantive maxima" in international intellectual property (IP)
regulation,1 thereby addressing the appropriateness and possible scope of
mandatory limitations to the level of protection for IP. For the purposes
of this chapter, the concept of "limitations" is understood in a broad
sense, meaning that it will not necessarily be in the form of "defence-type"
exceptions to exclusive rights.2 The concept includes binding obligations
­ inside or outside the IP framework ­ to give effect to interests distinct
from those of IP right holders and their exploitation of protected subject
matter (such as competitive markets, dissemination of technology, access
to information, protection of the environment, public health, cultural self-
determination, to name a few).
The chapter proceeds as follows: in section 2, the context and rationales
for ceiling rules are described and appreciated in regard to their positive
potential as well as concerning possible drawbacks. Section 3 moves on to
assess TRIPS and other international IP treaties for potential maximum
standards or ceilings de lege lata, as well as proposals for maximum rules
currently debated in various international fora. Section 4 considers the
intersection between ceiling rules and (domestic or international) norms
granting more extensive protection. Finally, section 5 briefly summarises


1 For the term "substantive maxima" see Dreyfuss (2004) at 27, Dinwoodie

(2006) at 214; ...