They can’t solve for harmonization, the TRIPS agreement is all about maximizing the protection of IP which means no solvency

The better explanation is maximization. The TRIPS Agreement was notable because it required countries to meet certain minimum standards of IP protection.130 However, upon conclusion of the agreement, interest groups and member countries immediately stepped up efforts to tailor protection.131 For developed countries with strong creative or innovative industries—the Global North—this meant strategic moves to increase protection through forum-shifting and bilateral or regional trade agreements.132 It is an effort that has continued to the most recent regional trade agreement negotiations. At the same time, developing countries and scholars concerned about access to medicine and other potential problems associated with high levels of IP protection began exploring interpretations of the TRIPS Agreement that allowed for more flexibility in the agreement’s implementation.133 Least developed countries joined some of these interpretive efforts but have also sought to extend the period of transition, thereby postponing the date on which they need to comply with the minimum requirements.134 But ultimately, the developed countries have been more successful in increasing global IP protection. This is because various provisions in the TRIPS Agreement are geared towards maximization. There was a flurry of post-TRIPS treaties, termed TRIPS-plus by many, that resulted in new—and higher—minimum standards of IP protection that were pushed on developing countries piecemeal, rather than going through the onerous and difficult processes established for amending the TRIPS Agreement.135 While this trend runs counter to the stated harmonizing purposes of the TRIPS Agreement, it is enabled by TRIPS provisions. This Part discusses how the TRIPS Agreement and other treaties allow for disharmonization only for changes that increase IP rights protection and describes the proliferation of IP treaties, following the TRIPS Agreement, that increase levels of IP protection.

A. IP Treaty Provisions: Tools of Maximization, Not Harmonization

The TRIPS Agreement, like the Berne Convention, requires members to grant certain minimum rights; it does not require all members to grant the same rights.136 The TRIPS Agreement had a strong harmonizing effect as countries with diverse IP laws made changes to meet those minimum standards; but by including no ceiling, TRIPS left room for future disharmony. Member countries must comply with the TRIPS requirements but are left free to provide stronger levels of protection. Once bilateral agreements increase the minimum standards of IP protection, for example, those new levels are often included in future bilateral agreements, eventually making their way into regional agreements.137 Moreover, in copyright laws, a provision found in the various multilateral treaties grant exceptions to national treatment. The remnant of reciprocity rules from earlier treaties, embodied as the rule of the shorter term, provides even more incentive to countries to increase copyright duration, forming the “one-way ratchet” that leads to ever-increasing copyright terms.

The various international treaties that are justified as tools of harmonization all have set floors, not ceilings, with regard to term. The Berne Convention, for example, provides in general that its provisions “shall not preclude the making of a claim to the benefit of any greater protection which may be granted by legislation in a country of the Union”138 and allows member countries entering into agreements to grant more extensive rights than those provided by the convention.139 As for term, the Berne Convention provides a term of the author’s life of plus 50 years, with a term of 25 years from creation for photographic works and works of applied art.140 These are floors, and the convention provides that members “may grant a term of protection in excess of those provided by the preceding paragraphs.”141

National-treatment provisions have been a part of copyright treaties since the Berne Convention, though they are also a staple of trade-related treaties as well. National treatment requires that each member country treat the nationals of other member countries no less favorably than its own citizens. A provision in a member country’s law that grants IP protections to its citizens and not to citizens of member countries violates national treatment.142 However, the Berne Convention provided for an exception to national treatment that has resulted in pressure on countries to increase their terms of copyright protection. This provision, known as “the rule of the shorter term,” provides that copyright term will be governed by the law where the copyright is claimed, except that “the term shall not exceed the term fixed in the country of origin of the work.”143 This provision is a glaring exception to national treatment, providing a default rule that works of foreign origin will receive the shorter of terms, not necessarily the full term as provided to works of domestic origin. At first blush, by potentially granting shorter terms to works of foreign origin, the provision may be copyright minimizing—after all, it is a rule of shorter term. However, as discussed below, the effect of the provision has proven to be maximizing.144

The Paris Convention did not impose minimum standards of protection like the Berne Convention did. While the Paris Convention required national treatment with respect to patent protection,145 it did not dictate a minimum term of protection and therefore allowed countries a fair amount of flexibility. As a result, member countries needed only to extend the same protection to nationals of other member countries as they granted to their own members.146 The important temporal provision in that agreement—the requirement of a one-year priority period—was precise and did not allow for longer grace periods for patent filings. The convention allows anyone who files a patent application in any member country a one-year period of time in which to file in other member countries while still referencing the first filing date for purposes of showing an invention to be new and nonobvious. 147 The practical effect of this was that the invention need only be new as of the earliest filing date, and inventors did not need to have a strategy of simultaneous filing in all countries to ward off claims that their filings elsewhere were disclosures that rendered the same invention unpatentable. However, the provision demonstrates something else: countries are perfectly capable of agreeing to precise time periods when a single rule appears to be the most efficient way of governing international patent interests. Still, it was not until the TRIPS Agreement that stringent, substantive patent law requirements were agreed to in a multilateral treaty. But when they were, it was again in terms of minimum rights, with an open-ended ceiling.

The TRIPS Agreement sets out the minimum protections members must grant.148 Indeed, before any specific requirements are laid out, the first article to the agreement provides, “[m]embers may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement.”149 Throughout the agreement, then, all of the requirements provide floors, but not ceilings, on what rights countries must grant to those seeking IP rights. The TRIPS Agreement imposes a minimum copyright term of life plus 50 years150 and in the case of works without flesh-and-blood authors, a required minimum term of 50 years.151

While incorporation of the Berne Convention’s minimum term and inclusion of other works had the potential to harmonize copyright term, the EU countries were already working on an extension of term.152 In the years since TRIPS, the law of copyright term has therefore become disharmonized. 153 Similarly, the term of protection for performers and producers of phonograms was required to last “at least until the end of a period of 50 years” from the end of the year of creation.154