Journal of Intellectual Property Law & Practice Advance Access originally published online on March 15, 2008
Journal of Intellectual Property Law & Practice 2008 3(5):314-326; doi:10.1093/jiplp/jpn035
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© The Author (2008). Published by Oxford University Press. All rights reserved
Influence of WTO decisions on international intellectual property
Legal context: The task of harmonization in the IP framework is currently at risk.
This conclusion is shown by the way EU Member States have recently enacted Directive 2001/29 on the harmonization of certain aspects of copyright and related rights on the information society. Particularly, no Member State seems to have considered the interpretation of the three-step test of the Berne Convention given in 2000 by the WTO panel, notwithstanding its importance.
Moreover, three recent opinions of the French Cour de Cassation, the French Conseil Constitutionnel, and the German Federal Court of Justice appear not to have endorsed the WTO's interpretation of the three-step test. This scenario confirms the impression that the international framework is devoid of any degree of harmonization.
Key points: Although the aims of certainty and predictability in the international trading system are among its main tasks, the World Trade Organization has not yet tackled the plight of harmonization, preferring a political approach to smooth conflicts and disputes. Yet, the World Trade Organization has recently taken important steps that seem to herald a new attitude. In United States—Sections 301-310 of the Trade Act of 1974, the World Trade Organization dismissed the traditional deference towards national legislations. In addition, at international and national levels, the Allegheny Ludlum and Softwood Lumber cases aligned their interpretations to that of the World Trade Organization.
Key Words: WTO decisions are not considered to be binding and both US courts and the ECJ have denied that WTO Agreements have any direct effect on national legislation. • In light of this, the author explores, for example, whether lawyers, patent, and trade mark attorneys should bother to delve into the WTO's precedents and whether WTO precedents should have any bearing on legislators in the path to harmonization. • This paper will analyse the current international framework in order to provide some reasonable answers to these questions.
* Lawyer, Italy. LL.M. Columbia University (NYC). Professor at Link Campus University of Malta. The author wishes to thank Prof. Jane C Ginsburg for her patience and enlightening guidance and Prof. Jeremy Phillips for his helpful suggestions.