Time for a Paradigm Shift?

Exploring Maximum Standards in International Intellectual Property Protection

Henning Grosse Ruse – khan*

International intellectual property (IP) protection is at the heart of controversies over the impact of economic interests on social or environmental concerns. Some see IP rights as unduly encroaching upon human rights and societal interests, others argue for stronger enforcement and additional exclusivity to incentivize new innovations and creations. Underlying these debates is the perception that international IP treaties set out minimum standards of protection - which presumably allow for additional protection with only the sky being the limit. This article challenges this view and explores the idea of maximum standards or ceilings within the existing body of international IP law. It looks at the relation between IP treaties and subsequent agreements or national laws which offer stronger protection. In particular, within the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), an important qualification may serve as a door opener for ceilings: While additional IP protection may not go beyond mandatory limits within TRIPS, the qualification not to contravene TRIPS is unlikely to safeguard TRIPS flexibilities against TRIPS-plus norms. The article further identifies and examines the rationales for maximum standards in international IP protection as: (1) Legal security and predictability about the boundaries of protection; (2) the global protection of users rights; and (3) the free movement of goods, services and information. Examples of mandatory limits in the existing IP treaties and in ongoing initiatives can implement these. However, most of the relevant treaty norms are optional. The article concludes with some observations on the need for more comprehensive and precise maximum standards.

Table of Contents

I.    Introduction: The Dynamics of Minimum Standards in International IP Protection

II.   Exploring the Idea of Maximum Standards or Ceilings

      A.   Treaty Norms Addressing Subsequent or Additional IP Protection

B.   The Prohibition to contravene or be contrary to Existing IP Treaties

      C.   An Option to Safeguard TRIPS Flexibilities?

III. Rationales for Ceilings

      A.   Legal Security and Predictability about Exceptions and Limitations to IP

      B.   Global Protection of Users Rights

            1.    Access Rights for Visually Impaired Persons

            2.    Human Right to Health

      C.   Free Movement of Goods, Services and Information

IV.  Conclusion

I.    Introduction: The Dynamics of Minimum Standards in International IP Protection

Traditionally, international treaties on intellectual property (IP) rights have been primarily perceived as agreements banning discrimination of foreign right holders and setting out international minimum standards for the protection of IP. Contracting parties are generally obliged to treat foreigners the same as nationals under their domestic IP laws and must introduce certain minimum standards on the subject matter of protection,[1] its scope,[2] the exclusive rights granted,[3] or the duration of protection.[4] Furthermore, provisions imposing certain conditions and limitations on the ability of countries to introduce exceptions to IP protection in their national laws can also be understood as setting minimum standards.[5] These standards introduce a harmonized common level of IP protection, which should be available for foreign right holders in all contracting parties.

The common use of the phrase minimum standards – though seldom in the treaty language of international agreements on IP protection[6] – implies that countries are free to provide additional, more extensive protection. An almost universal perception is that obligations in international IP Agreements such as the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS or TRIPS Agreement) create a floor[7] consisting of a minimum level of protection, which is available to all WTO Members – with presumably the sky being the only limit as to the further extension of IP protection. This view is not only a central feature in the long history of international IP protection, whose development has primarily been a one-way route towards ever increasing or racheting levels of protection,[8] but it also finds express support in Art. 20 of the Revised Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) which requires further agreements to grant to authors more extensive rights than those granted by the Convention.[9] Art. 19 of the Berne Convention further sustains this point by clarifying that [t]he provisions of this Convention 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.[10]

While there arguably were good reasons for adopting such an approach under the classic IP conventions in the 19^th and 20^th century,[11] the picture certainly has changed in the current post-TRIPS environment of bilateral and regional Free Trade Agreements (FTAs) containing ever increasing TRIPS-plus[12] standards. In 1995, TRIPS had already introduced standards well beyond the then-existing level of protection in most developing countries. Although a lot of WTO Members still struggle with the implementation of TRIPS,[13] industrialised countries and IP dependant industries always have seen TRIPS as a floor, not a ceiling.[14] As their technological lead is increasingly challenged by industries in emerging economic powers such as Brazil, China and India, strong IP protection at home and abroad is often perceived as the only way to sustain a competitive advantage for their industries.[15] Hence, attempts to further increase IP protection and enforcement are emerging as the dominant priority in international trade policy for entities such as the European Union (EU), the United States (US) and Japan.[16] Where successful, the results, in the form of further increased levels of IP protection, have systemic consequences: Flexibilities and policy space left open under the TRIPS Agreement[17] are made increasingly meaningless because of such TRIPS-plus obligations – leading to controversies over undue limitations of national sovereignty in areas such as public health, access to knowledge, the environment and climate change.[18] The sheer amount of these TRIPS-plus FTAs, paired with the absence of an applicable Most Favoured Nation (MFN) and National Treatment (NT) exception in Arts.3 and 4 of TRIPS,[19] effectively globalises these increasing IP standards to become the relevant international norms.[20] It further questions the value of initiatives, like the WIPO Development Agenda, which aim at a more balanced, flexible and development oriented approach to IP protection.[21]

II.  Exploring the Idea of Maximum Standards or Ceilings

This tendency for IP maximalism, however, builds on the view that existing international IP law contains minimum standards only – with no limits on the ability of countries to add to the protection existing IP treaties provide. In this article, I seek to present an approach which challenges this view: International law – within the treaties on IP protection as well as in norms from outside the international IP system – may contain rules which impose mandatory limits on IP protection. In contrast to the notion of minimum standards setting a floor of protection, these limits may be referred to as maximum standards or ceilings.[22] They incorporate any mandatory[23] limitation in the broadest sense. Ceilings can be obligatory exclusions from otherwise protected subject matter or exceptions and limitations to exclusive rights phrased in binding terms. But the concept goes much further: It includes 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 or human rights). Whenever these interests interact, or even conflict with those of IP right holders, any international norm demanding the protection of the former can serve as a ceiling on the latter. However, apart from a mandatory limit to IP protection, the question of how this norm relates to another (domestic or international) norm which goes beyond this limit is crucial. The notion of maximum standards or ceilings must build on prevalence and control of the ceiling norm over any norms going beyond the potential ceiling. Otherwise, one cannot speak of a maximum standard which sets an international upper limit to IP protection. Hence, the issue of hierarchy of norms between distinct international agreements is a crucial question which must be kept in mind.[24]

This article focuses on mandatory limits within international treaties on IP protection – leaving aside ceilings which might flow from norms external to the international IP system.[25] The remainder of this section explores the door-openers to ceilings in the existing international IP system and analyzes the relation between mandatory and optional TRIPS provisions with TRIPS-plus norms. In the light of some examples on maximum standards or ceilings in the existing legal framework and recent initiatives, Part III then looks at different rationales for ceilings on the global protection of IP. Without any attempts at coming up with an exhaustive list, those scrutinised are (1) legal security and predictability about the boundaries of IP protection; (2) the global protection of users rights; and (3) the free movement of goods, services and information. Finally, I draw some conclusions on the need for (further) ceilings within international IP law.

A.  Treaty Norms Addressing Subsequent or Additional IP Protection

The ability to foresee additional protection beyond the international IP treaty at issue is generally based on provisions such as Art. 20 of the Berne Convention addressed above.[26] Art. 20 reserves the right for all contracting parties to enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention.[27] Using almost identical language, Art. 22 of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention) takes the same approach. In more general terms, under the Paris Convention on the Protection of Industrial Property (Paris Convention) [C]ountries of the Union reserve the right to make separately between themselves special agreements for the protection of industrial property.[28] And, again more explicitly in the TRIPS Agreement, World Trade Organization (WTO) members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement.[29] However, all these provisions contain an important qualification which may function as a door-opener for ceilings to international IP protection: Art. 19 of the Paris Convention, Art. 20 of the Berne Convention and Art. 22 of the Rome Convention stipulate that all special agreements on IP may not contravene or be contrary to the provisions of the three basic treaties.[30]

More importantly, Art. 1:1, second sentence of TRIPS expressly conditions additional (i.e. TRIPS-plus) IP protection on meeting the requirement that such protection does not contravene the provisions of this Agreement.[31] Commentators tend to focus on the first part of that sentence as they emphasise the minimum obligations TRIPS establishes and the right to introduce more extensive protection.[32] Some, however, recognise the potential of the above qualification as a limit for TRIPS-plus protection – especially in relation to the TRIPS non-discrimination obligations[33] as well as those relating to IP enforcement.[34] For TRIPS and its provisions on IP enforcement in particular, an additional justification for such ceilings comes from the incorporation of TRIPS into the WTO multilateral trading system: As several TRIPS provisions indicate, not only the lack of, but also excessive (or abusive reliance on) IP protection can distort and create barriers to international trade.[35]

So how do the qualifications mentioned above – such as Art. 1:1, second sentence of TRIPS – serve as door openers for maximum standards or ceilings? At first sight, this provision, as well as its counterparts, are nothing more than a clarification that countries may not violate TRIPS and the other core IP treaties.[36] But this norm in Art. 1:1 of TRIPS goes well beyond the notion of pacta sunt servanda[37] and the latters common application by demanding that national laws must comply with the minimum standards of IP protection. Its primary, but so far undervalued, importance lies in establishing a condition on the ability to introduce more extensive IP protection: Also, any form of TRIPS-plus protection may not contravene TRIPS. This is not necessarily self-evident. Given the history of international IP protection outlined above, and especially the general perception of IP treaties setting minimum standards only, taking the requirement that additional IP protection may not contravene TRIPS serious is in itself an important insight. As such, it does not set out any binding limits. It however opens the door for examining the consistency of TRIPS-plus norms with TRIPS provisions. As I discuss below, the latter may also include mandatory limits to IP protection.

Art. 1:1 of TRIPS hence employs a function that is contrary to the common test of whether national laws implementing TRIPS meet (minimum) standards of protection: Any additional protection must equally comply with TRIPS (maximum)[38] standards. In this sense, Art. 1:1 does not introduce any new category of norms, but simply delineates the scope of obligations that countries undertake in TRIPS. These obligations do not only impose a bottom line of protection which WTO Members must foresee in their national laws – but may function to prescribe some of the above limits or ceilings of IP protection as well. It is this change in perspective which needs to be further explored and which is at the heart of the ceilings approach.

B.   The Prohibition to Contravene or be Contrary to Existing IP Treaties

The common qualification that additional IP protection (in national laws or in international agreements) must meet therefore, is that it may not contravene[39] or be contrary to[40] the provisions of the main international IP treaties, in particular the TRIPS Agreement. But when do TRIPS-plus norms contravene TRIPS? Answering this question demands a detailed scrutiny of:

1.   The TRIPS-plus norm at stake;

2.   Any potentially contrary TRIPS (or other international IP) obligations; and

3.   The notion of contravening or being contrary to.

It is hence a matter to be determined according to the individual circumstances of the case – apart from the last issue which will now be addressed: The following initial analysis of the term contravene focuses on its role and meaning in the TRIPS Agreement. The online Oxford Dictionary explains this term as: 1. commit an act that is not in accordance with (a law, treaty, etc.); 2. conflict with (a right, principle, etc.).[41] At least under the first of these meanings, a provision may be not in accordance with TRIPS if, although respecting the letter of law as such, the results entailed by its application appear to contradict the spirit and purpose of TRIPS. By contrast, the second meaning (necessitating a conflict between a TRIPS-plus rule and TRIPS) is arguably narrower. Applying the interpretative tools of the Vienna Convention on the Law of Treaties (VCLT),[42] no other TRIPS provision (constituting the relevant context)[43] enlightens the determination of the ordinary meaning of contravene.[44]

However, an interpretation of the term in light of the TRIPS balancing objectives[45] and its public interest principles[46] may shed some light. Under Art. 31 of VCLT, a treatys objective is the third crucial element relevant for the interpretation of its provisions. In this sense, especially for the TRIPS Agreement, the objectives and principles expressed in Arts. 7 and 8 have an important role to play.[47] In the Doha Declaration on TRIPS and Public Health,[48] WTO Members unanimously expressed their consensus that each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles. Applying Arts. 7 and 8 of TRIPS to determine whether a TRIPS-plus rule contravenes TRIPS, can make findings of conflict more likely wherever the TRIPS-plus norm is clearly unbalanced[49] – for example, by focussing solely on the interests of right holders and neglecting the interests of users;[50] or by preventing measures to promote public interests such as public health and nutrition.[51] But then again, the process of balancing is in itself a normative process, which, arguably, gives discretion and policy space to individual WTO Members to exercise this balance according to their domestic needs.[52] Nevertheless, the balancing objective, as well as the public interest principle, favour a wider understanding of contravene that may cover TRIPS-plus rules which neglect clearly identifiable user or wider public interests.

C.  An Option to Safeguard TRIPS Flexibilities?

It still seems rather difficult to argue that a TRIPS-plus rule fails the test of Art. 1:1, second sentence, merely on the basis that it is not in accordance (or even conflicts) with Arts. 7 or 8 of TRIPS. This is primarily because both provisions are written in permissive terms:  Under Art. 8, WTO Members may take certain public interests measures; under Art. 7, IP protection should contribute to a balance. In fact, this is the case with almost all provisions in international IP law concerning exceptions and limitations to IP protection.[53] Anecdotal evidence from TRIPS shall suffice here: All versions of the so called three step test which allow countries to introduce exceptions to the exclusive rights of copyright, trademark, industrial design or patent holders are optional.[54] The same applies to the right to introduce compulsory licensing under Art.31 of TRIPS and to exclude certain issues from the scope of protected subject matter under Art. 27:2, 3 and Art. 15 of TRIPS. This is why these provisions are primarily referred to as TRIPS flexibilities.[55] Indeed, mandatory rules in the area of exceptions and limitations to IP protection are rare in international IP law[56] where most rules take the form of optional provisions, which allow a country to foresee a specific exception in its national IP regime.

At first sight this permissive, instead of mandatory, language suggests that a TRIPS-plus rule that diverges from such a discretionary TRIPS provision cannot be seen as contravening TRIPS. This finds support in a stringent interpretation of the general international law notion of norm conflict – that is, what is perceived as a conflict between norms:[57] In the strict sense, only a direct incompatibility, that is where complying with one rule necessitates the violation of another, is considered as a conflict.[58] The WTO Appellate Body seems to follow this view.[59] But this is not the only perspective on norm conflict:60 A wider understanding furthermore takes into account (optional) rights given by treaties and finds conflicts also when one treaty obligation limits or prevents the exercise of a right another treaty provides for.[60] Applied to our scenario, a TRIPS-plus rule may be in conflict with an optional TRIPS provision as soon as it limits the ability of a WTO Member to exercise a right or flexibility TRIPS provides for, considering that the notion of contravene – coloured by the objectives and principles of Arts. 7 and 8 of TRIPS – is rather wide when it comes to interferences with user or wider public interests. Also, a TRIPS-plus rule which prevents the exercise of an (optional) TRIPS flexibility could be considered as failing the test of Art. 1:1, second sentence. This would make TRIPS flexibilities, in themselves, inviolable and untouchable – as inalienable rights of WTO Members which cannot be taken away. Some support for such a position comes from para.4 of Doha Declaration on TRIPS and Public Health where WTO Members reaffirm the right of WTO Members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility (emphasis supplied) – in that case for purpose of public health protection.

Still, such a far-reaching effect seems to contradict the overall notion of optional flexibilities in TRIPS. A WTO Member may choose to implement them (i.e., to exercise its right) – but may equally choose not to do so. One must keep in mind that it is the own domestic IP law which provides for the additional protection – not some external rule imposed upon a country wishing to exercise a TRIPS flexibility. If a WTO Member thus decides to waive its right to use a certain flexibility available to it under the TRIPS, this is equally a way of exercising its right and part of the flexibility that TRIPS provides. Applying the qualification in Art. 1:1, second sentence so as to prevent a WTO Member from doing so, in effect turns the optional rule into a mandatory one. The same applies when the domestic TRIPS-plus rule results from an FTA imposing TRIPS-plus obligations. While most (developing) countries agree to such obligations only in order to obtain preferential market access concessions in areas of their interests, formally they also consent to the IP obligations which are often conditio sine qua non for the preferential treatment they strive for. This assessment does not ignore the political bargaining and use of economic might by dominant trading powers and the consequence that countries are often bullied into signing TRIPS-plus FTAs.[61] It however, seems very difficult to interfere in this process or to safeguard the free will (or perceived best interests) of WTO Members in order to uphold TRIPS flexibilities.[62] One could consider the idea of creating a type of limitation which is not absolute, but which only sets out that countries may not be obliged towards another contracting party to introduce additional protection.[63] But still: Which country would bring such a case to the WTO dispute settlement system? And who would be in a position to decide whether the domestic TRIPS-plus rule came about against the will or interests of the country that enacted this rule in the first place?

The non-contravention qualification in Art. 1:1, second sentence, hence, cannot function to safeguard TRIPS flexibilities against WTO Members who decide not to exercise them. A TRIPS-plus rule in national law thus does not contravene with an optional TRIPS provision allowing for certain exceptions and limitations to IP protection. This leads to the conclusion that instances where the Art. 1:1 qualification applies are generally cases where one can point to conflicts with a mandatory provision instead of an optional one.[64] As noted above, mandatory rules in the area of exceptions and limitations to IP protection are not so common. But some do exist in international IP treaties, including the TRIPS Agreement.[65] In the next section, I will provide a few examples in order to illustrate different rationales behind the idea of maximum standards or ceilings.

III. Rationales for Ceilings

Several underlying objectives relating to, or affected by, IP protection may be supported by, and even demand, maximum standards or ceilings within the international IP system. This section examines some rationales, the implementation of which can be facilitated by mandatory limits to IP protection.

A.  Legal Security and Predictability about Exceptions and Limitations to IP

International treaty norms are often broad and ambiguous. They not only invite further questions (and potential disputes) over their concrete meaning and proper application to a specific case, but also to controversies as to who has the right to interpret and apply these norms – and with what discretion, if any.[66] One way to address this ambiguity is establishing a comprehensive and sophisticated system for the settlement of disputes – which should further have sufficient teeth to secure the implementation of its decisions.[67] With the inauguration of the WTO, the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) created such a system to serve as a central element in providing security and predictability to the multilateral trading system.[68] Although it must preserve the rights and obligations of [WTO] Members under the covered agreements, it aims to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law.[69]

While the WTO system builds on and extends the previous GATT 1947 dispute settlement practice, its application to international IP law was certainly a most revolutionary change. Previously, disputes over the implementation and interpretation of IP treaties had not been resolved by international courts or tribunals – even though both the Paris Convention and the Berne Convention do foresee the option to bring a case to the International Court of Justice at The Hague.[70] Under the DSU, TRIPS – the hitherto most comprehensive multilateral agreement on IP – is subject to: (1) A compulsory jurisdiction of Panels with the option of an Appellate Body review;[71] (2) binding decisions from the dispute settlement body;[72] (3) and a system of enforcement that allows for retaliatory countermeasures (in form of suspending equivalent concessions or other WTO obligations) in case of non-compliance.[73] Against this background, it is quite understandable that international adjudication relating to IP protection under TRIPS has received a lot of attention.[74] The WTO settlement of disputes relating to TRIPS has led to a number of (mostly Panel) Reports which have interpreted several of its provisions.[75] Some of the high profile cases involved key TRIPS norms on exceptions and limitations – such as Art. 13 on copyright, Art. 17 on trademark and Art. 30 on patent exceptions.[76]

However, these decisions have not provided sufficient clarity and guidance on what exceptions or limitations to IP rights a WTO member may introduce in its national law in order to be TRIPS compliant. While the Panel Reports do interpret the specific terms used in the various versions on the three-step test in great technical detail,[77] the relevant TRIPS provisions themselves are not apt to offer any security and predictability in relation to the TRIPS consistency of domestic exceptions to IP rights. This is because the three-step test primarily focuses on the economic interests of right holders whose options for exploitation must be preserved.[78] Thus far, it does not tell WTO Members in concise terms what they can do – but only in very general and abstract language what they may not do. Apart from one example given in Art. 17 of TRIPS,[79] there is no guidance as to which exceptions may qualify to meet the conditions set out in the various versions of the test.[80] The resulting ambiguity, paired with the restrictive technical interpretation adopted by the Panels, has a chilling effect on countries which aim to devise new exceptions corresponding to their individual economic, cultural and technological level of development. This may be less of a problem with countries that have a long history and tradition in formulating (statutory or judicial) exceptions to exclusive rights.[81] But for developing countries – where often a laxer system of IP protection or enforcement has caused little demand for a comprehensive set of exceptions and limitations as checks and balances – this ambiguity can significantly constrain the introduction of new limits to IP protection.[82] The uncertainty over the TRIPS consistency of the envisioned exception may well function as a regulatory chill.[83] Furthermore, any threats from other WTO Members to initiate a WTO dispute settlement process – with the potential of facing trade sanctions in areas of primary importance for the domestic exporters – will often serve as strong incentive not to introduce the exception or to abolish it.[84]

      A (mandatory) set of rules prescribing clearly, and in sufficient detail, what types of exceptions must be allowed in national laws would offer the security and predictability currently lacking. It would hence provide a clearer and more concrete picture of what can (or must) be accepted as an exception in international IP law.[85] Existing treaties, and especially current proposals, offer some examples: Art. 10(1) of Berne Convention states that:

It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.[86]

This quotation right is not only drafted in mandatory terms, but also offers sufficient guidance as to its scope and the conditions attached. Even within the Berne Convention, with its relatively large amount of specific exceptions and limitations,[87] the binding language used is an exception in international IP treaties.[88] Another treaty norm – which arguably also serves the goal of clarity as to the scope of IP protection and must be considered as an exception – can be found in Art.5ter of the Paris Convention. It provides that:

In any country of the Union the following shall not be considered as infringements of the rights of a patentee:

1. The use on board vessels of other countries of the Union of devices forming the subject of his patent in the body of the vessel, in the machinery, tackle, gear and other accessories, when such vessels temporarily or accidentally enter the waters of the said country, provided that such devices are used there exclusively for the needs of the vessel;

2. The use of devices forming the subject of the patent in the construction or operation of aircraft or land vehicles of other countries of the Union, or of accessories of such aircraft or land vehicles, when those aircraft or land vehicles temporarily or accidentally enter the said country.[89]

Again, a compulsory exception – here from the territorial reach of patent protection – provides clear guidance on what must not be considered as part of IP protection. For operators of vessels or aircrafts, the compulsory nature is decisive, only this offers security and predictability against patent infringement claims within the territories of all contracting parties.

      Finally, a recent initiative lends itself as an example for increasing attempts to introduce greater security and predictability on the issue of exceptions and limitations to international IP protection. The initiative originates from a proposal by Brazil, Chile, Nicaragua and Uruguay for Work related to Exceptions and Limitations presented to the WIPO Standing Committee on Copyright and Related Rights (SCCR) in March 2008.[90] The proposal asks the SCCR to begin work on prescribing a minimum framework of public policy exceptions, which must be available in all national laws. The proposal calls upon the SCCR, inter alia, to work towards agreement on exceptions and limitations for purposes of public interest that must be envisaged as a minimum in all national legislations.[91] It suggests a work plan with the objective of achieving a consensus on minimum mandatory exceptions and limitations particularly with regard to educational activities, people with disabilities, libraries and archives, as well as exceptions that foster technological innovation.[92] Examples of mandatory exceptions or user rights are the right for the disable community to export and import works produced under a copyright exception, or an exception in favour of libraries to the public lending right when it has been recognized. The proposal suggests a five-phase work plan[93] which, inter alia, foresees the SCCR to select those exceptions that should form part of a prescriptive minimum global framework of exceptions.[94] It foresees the following result at the end of this process:

Fifth and finally, the Committee should adopt a formal recognition of, and commitment to creating mandatory minimum exceptions and limitations through means it deems appropriate. For instance, this could take the form of a recommendation for action to be adopted by the WIPO General Assembly.[95]

While it is apparent that this proposal aims for the global protection of certain users rights (as discussed below), it also serves to create legal security and predictability as to exceptions and limitations that must be available in domestic laws. The mandatory character links the aspects of security and predictability to yet another objective explored below: Global trade in goods or services produced on the basis of limits to IP protection rely on their international availability in order to be traded freely. The absence of such limits then serves as a market barrier.[96] Indeed, the idea of an information society and knowledge economy does not only entail incentivizing the development and production of new knowledge capital via IP exclusivity, but also safeguards for access, use and dissemination of the existing building blocks of knowledge. In more metaphorical terms: In order to be able to stand on the shoulder of giants[97] IP exclusivity must exist in balance with a strong public domain – otherwise, new innovators may have to re-invent the wheel. To ensure such a balance and the free movement of information and information goods and services on the international level, maximum standards to IP protection may be as relevant as minimum standards.

B.   Global Protection of Users Rights

Another rationale for ceilings in international IP protection follows from the idea to prescribe specific rights of users of IP protected subject matter. Such minimum user rights can be the necessary counterpart to the minimum rights for the holders of IP.[98] To the extent that they introduce a mandatory limit to IP protection – for example by means of obligatory exemptions from protected subject matter, the scope of protection or exceptions from exclusive rights – they are a functional equivalent to mandatory maximum standards or ceilings.[99] In the following discussion, two different initiatives are presented as examples of users rights exercised either by directly introducing binding limits to IP protection, or at least urging countries not to push for TRIPS-plus protection. The first concerns copyright and the introduction of binding safeguards to ensure accessibility of copyrighted works for the visually impaired. The second attempts to give effect to the human right to health in its interface with IP protection for pharmaceutical products: Doing so may entail imposing limits on IP protection – in particular for the TRIPS Agreement and TRIPS-plus FTAs.

1.   Access Rights for Visually Impaired Persons

In May, 2009 Brazil, Ecuador and Paraguay tabled a proposal for a WIPO Treaty for Improved Access for Blind, Visually Impaired and other Reading Disabled Persons at the 18^th session of the WIPO Standing Committee on Copyright and Related Rights (SCCR).[100] The rationale of introducing minimum users rights on the international level becomes evident in the explicit aims of the proposed treaty. In Art. 1, the object and purpose is described:

[T]o provide the necessary minimum flexibilities in copyright laws that are needed to ensure full and equal access to information and communication for persons who are visually impaired or otherwise disabled in terms of reading copyrighted works .[101]

According to the nature and scope of obligations defined in Art.2:1, this goal is to be achieved by undertaking certain measures to enable full and equal access to information and communication for persons who are visually impaired or have other disabilities in accessing copyrighted works. The measures envisioned to secure access are primarily Limitations and Exceptions to Exclusive Rights Under Copyright which are further set out in Art. 4. Written in binding terms, the minimum exceptions include:

(a) It shall be permitted without the authorisation of the owner of copyright to make an accessible format of a work, supply that accessible format, or copies of that format, to a visually impaired person by any means .[102]

(b) A visually impaired person to whom a work is communicated by wire or wireless means as a result of activity under paragraph (a) shall be permitted without the authorisation of the owner of copyright to copy the work exclusively for his or her own personal use. This provision is without prejudice to any other limitations and exceptions that a person is able to enjoy.[103]

In analogy to Art. 1:1, second sentence of TRIPS, the proposal even addresses the issue of whether countries may go beyond the proposed minimum exceptions – i.e., whether they can introduce exceptions-plus provisions. While the set of mandatory minimum exceptions and limitations would be common to all Member States, that baseline would not preclude Member States from adopting broader exceptions – unless this contravenes the provisions of the proposed treaty.[104]

The ceilings character of the draft treaty is further emphasized by the following three elements: Art. 6 on Circumvention of Technological Measures contains an obligation under which [c]ontracting parties shall ensure that beneficiaries of the exception provided by Article 4 have the means to enjoy the exception where technological protection measures have been applied to a work, including when necessary the right to circumvent the technological protection measure so as to render the work accessible. Under Art. 7 on the Relationship With Contracts, this safeguard for the minimum user rights is taken another step further: Any contractual provisions contrary to the exception provided in Article 4 shall be null and void. The two provisions hence contain obligations which secure the rights of access for visually impaired against restrictions imposed by technological measures or contract clauses. Both these restrictions play an increasingly major role as an inhibiting factor for accessing and using copyrighted works in the digital context – even if such access or use is backed by an exception or limitation to copyright.[105] Effectively prohibiting them in an international treaty is a novel approach[106] – but one which takes the notion of users rights seriously and may be a necessary part of the concept of maximum standards.[107]

Art. 3, addressing Relations to Other Agreements, then comprises the final element reinforcing the idea that the minimum user rights for visually impaired are indeed ceilings on IP protection: Under section (a) Contracting Parties agree that the provisions of this Treaty are consistent with obligations set out under, inter alia, the Berne Convention; the WIPO Copyright Treaty; the Rome Convention; the WIPO Performances and Phonograms Treaty 1996 and the TRIPS Agreement. Under section (b):

Contracting Parties agree that, to the extent that this treaty applies to literary and artistic works as defined in the Berne Convention, it is a special agreement within the meaning of Article 20 of that Convention, as regards Contracting Parties that are countries of the union established by that Convention.

These are crucial clarifications on the relationship with the existing IP treaties whose provisions – such as the three-step test, which significantly curtails the ability to introduce exceptions – might otherwise be understood to be in conflict with the exceptions in the proposed treaty.[108] Indeed, the notion of ceilings in international IP law entails that the relation between subsequent (IP) agreements be addressed. This must be done in a way which ensures that the ceiling treaty is not subject to treaties providing additional protection beyond the ceilings.[109] Instead, conflict norms in the ceiling treaty (such as Art. 3 here) are needed to ensure that in establishing a hierarchy of application, the provisions of the ceilings treaty prevail in case of a conflict.[110] One must however keep in mind that such a conflict clause can only regulate the hierarchy of application for countries which are contracting parties to both treaties[111] – and therefore would need to be signed, for example, by all WTO Members in order to introduce ceilings erga omnes on IP protection under TRIPS.

In sum, the treaty proposal now pending with the WIPO SCCR serves as a good example for ceilings to IP protection in order to establish and give effect to minimum users rights.[112] While it is certainly too early to judge on its chances for success, the proposal represents another sign that time – at least for some policy makers – is ripe to engage in a serious discussion over binding minimum exceptions and limitations to IP protection.

2.   Human Right to Health

The second example where ceilings may be instrumental in giving effect to certain users rights on a global level relates to the international protection of human rights:  Implementing the right to health[113] (and the corresponding state duty to offer, or at least facilitate access to medication)[114] could take the approach of introducing binding limits on patent protection for essential drugs under TRIPS or TRIPS-plus FTAs.[115] The existing law does not go so far, although WTO Members responded to the access to essential drugs issue by issuing the Doha Declaration on TRIPS and Public Health[116] as well as the 2003 and 2005 decisions[117] on a waiver of Art. 31(f) TRIPS, this solution arguably does not fully resolve any potential conflict with the human right to health. In particular, it does not involve any (existing or forthcoming)[118] TRIPS treaty language, which expressly contains mandatory limits to IP protection motivated by human rights or public health concerns. Based on the wide understanding of ceilings which includes potentially binding limitations on IP protection on the basis of obligations deriving from other sources of international law,[119] this does not mean that no binding limits exist. However, no binding limits within the international IP system have been proposed so far, let alone negotiated at the international stage.

In a nutshell, the human right to health has been described to include the obligation that:

(a) All health services, goods and facilities shall be available, accessible, acceptable and of good quality. In the context of access to medicines this requires States to ensure that medicines are available, accessible, culturally acceptable, and of good quality.

(b) States have a duty to respect, protect and fulfil the right to health.[120]

It follows that medical care in the event of sickness, as well as the prevention, treatment and control of diseases, are central features of the right to health. These features depend upon access to medicines. Therefore, access to medicines forms an indispensable part of the right to health.[121] This has been further interpreted to mean that [s]tates have an obligation under the right to health to ensure that medicines are available, financially affordable, and physically accessible on a basis of non-discrimination to everyone within their jurisdiction.[122] Developed Countries also have a responsibility to take steps towards the full realization of the right to health through international assistance and cooperation.[123] Moreover, all State Parties to the International Covenant on Economic, Social and Cultural Rights have a legal obligation not to interfere with the rights conferred under the Universal Declaration of Human Rights and the Covenant, including the right to health.[124]

So how does IP protection (in particular via patents – but also by means of test data protection) interfere with the right to health? The general argument made is that patent protection for pharmaceutical products entails legal exclusivity which allows the patent holder to prevent price competition and charge monopoly prices. During the patent term (a minimum of 20 years under the TRIPS),[125] no generic competitor may produce, use or sell[126] the patented drug. Generic competition, however, has the potential to significantly lower prices and so increase access to (essential) medicines – in particular for poor populations in developing countries.[127] This article does not attempt to engage in a comprehensive debate about the inter-relations between IP protection, the incentives[128] it may offer for the development of new, innovative drugs and the limits[129] it imposes on accessing protected drugs.[130] It however seems clear that extending IP protection applicable to medicines beyond the TRIPS minimum standards – in particular via FTAs – generally tends to reduce access to drugs further.[131] Even more problematic from a right to health perspective are provisions designed to undermine the TRIPS flexibilities which are supportive of WTO Members right to protect public health and, in particular, to promote access to medicines for all.[132]

One recent example, which relates to both concerns, is the European Unions expansion of border measures to cover alleged patent infringing goods (including generic drugs) even if they are merely in transit through EC ports.[133] Sufficient to trigger the EC measures is patent protection in its transit territory – disregarding that usually no patent exists in the country of production and the country of final destination.[134] The health dimension is well demonstrated by an incident where Dutch custom authorities confiscated a shipment of generic second-line HIV/AIDS drugs produced in India and destined for Nigeria for a programme implemented by the Clinton Foundation on behalf of UNITAID.[135] It is argued that the wider implications of these actions severely hamper the medicine distribution to needy populations – given the risk that on key transit routes, supplies may be regularly intercepted based on the assertion of patent infringement in the transit country.[136] The WHO, in particular, has voiced concerns over the potential consequences for the supply of medicines in developing countries,[137] calling for an appropriate balancing of the interests of trade and health so as not to impede the flow of legitimate generic medicines.

These TRIPS-plus[138] border enforcement measures by the EC can seriously undermine measures for protecting public health and promoting access to medicines in the, usually developing, country of final destination. Easy access to drugs based on TRIPS flexibilities such as allowing parallel imports or utilising ongoing transition periods in that country is hampered by seizures or detentions in the transit country.[139] Further, an effective implementation of the paragraph six mechanism[140] could also be at risk whenever medication produced under a compulsory license for export to a country with insufficient manufacturing capacity transits through EC ports.[141] In all these examples, the EC would directly contradict the flexibilities the TRIPS offers as well as the efforts undertaken by the WTO and its Members to promote access to medicines.

      Could ceilings within the international IP system provide a tool to safeguard the human right to health against impact from certain forms of IP protection for medicines? A recent report of the Special Rapporteur on the right to health recommends countries, especially developing nations, to make full use of the health-related TRIPS flexibilities.[142] The report urges them not to introduce TRIPS-plus standards in their national laws. Furthermore, [d]eveloped countries should not encourage developing countries and LDCs to enter into TRIPS-plus FTAs and should be mindful of actions which may infringe upon the right to health.[143] These recommendations suggest that a maximal use of TRIPS flexibilities and abstaining from TRIPS-plus protection is a way to give effect to the right to health and to minimise the negative impact of IP rights on access to medicines.

Taking this a step further, the right to health may mandate or even demand the introduction of maximum standards in IP protection with significant impact on access. One option is to make some health-related TRIPS flexibilities mandatory – inalienable against TRIPS-plus protection which undermines their ability to facilitate access. One can think of a form of safeguard clause which prevents that health measures, if based on accepted TRIPS flexibilities, are frustrated by the exercise of TRIPS-plus IP norms.[144] The above analysis suggests that the existing prohibition to contravene TRIPS provisions does not function to uphold these (optional) flexibilities against TRIPS-plus curtailment.[145] The question remains whether the right to health entails an obligation which makes the exercise of these flexibilities (and not demanding their removal) mandatory from a human rights perspective. While a wide understanding of the obligation under the right to health to ensure that medicines are available, financially affordable and physically accessible[146] could support this position, the recommendations of the Special Rapporteur to use these flexibilities (and not to remove them via FTAs) are all clad in non-binding language.[147]

Finally, as to the example of the EC border measures applied to generics in transit, I have argued elsewhere[148] that a public-health oriented interpretation of the obligation to require right holder applicants to show a prima facie infringement based on the law of the country of importation[149] can function as a ceiling. The EC measures are based on alleged infringements under the law of the transit country. If the country of importation does not include transit countries, the EC measures are inconsistent with TRIPS. Apart from other contextual and teleological arguments based on Arts. 7, 8 41:1 and Footnote 13 to Art. 51 of TRIPS as well as Art. V of GATT, the right to health may also be relevant: In application of Art. 31(3)(c) of VCLT, it may be considered part of the relevant rules of international law applicable in the relations between the parties which guide treaty interpretation. As it includes an obligation to ensure that medicines are available, financially affordable, and physically accessible, it may well colour the interpretation of TRIPS so as to facilitate such access and invalidate measures that inhibit access.

Overall, the right to health as a users right offers some promising arguments for the (future) introduction of ceilings within international IP law – although current IP treaties do not contain these explicitly. As this example shows, they may, however, be interpreted and implemented in a way that they contain maximum standards which are motivated, inter alia, by the human right to health.

C.  Free Movement of Goods, Services and Information

From a trade perspective, territorial IP rights have traditionally been viewed as a barrier to international trade in goods and services, which may receive IP protection in some jurisdictions, but not in others.[150] This perception changed, inter alia, with the increasing importance of IP protection for high-technology goods where original producers in industrialised countries feared growing competition (at home and in new markets abroad) from imitations and generic copies from developing countries with increasing technological capabilities but insufficient IP protection. IP dependant industries in the US, Europe and Japan lobbied their governments to demand for a harmonised level of strong IP protection and enforcement around the globe.[151] Against this background, advocates of strong IP protection negotiated TRIPS with the idea that the absence of effective and adequate protection of intellectual property rights leads to distortions and impediments to international trade.[152] At the same time, TRIPS balances this conception against the need to to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade.[153]

International trade and the free movement of goods and services hence demands a balanced approach to IP protection where national differences, both in the form of under, as well as over-protection may serve as barriers to trade. While several developed countries continuously stress the need for stronger IP rights to serve the trade interests of their industries, others view IP over-protection as a new form of protectionism[154] which inhibits global trade and dissemination in goods and services that rely on a robust public domain or exceptions and limitations to IP in the country of production. For example, internet services employing innovative business methods which are free from patent protection in most countries, may infringe US patents due to the lax approach to patentability.[155] Since any content or service offered online is globally accessible, these patents may not only serve as a barrier to the US market, but even prevent companies from offering such services online in the first place.[156] The same applies to software developed by making use of copyright exceptions for achieving interoperability,[157] which may not be traded in countries that do not recognise such an exception. Domestic patent thickets[158] in IT industries may prevent foreign innovative products to enter local markets – merely because of lack of legal security as to whether that product infringes any domestic patents. Various ways of extending patent protection for pharmaceutical products in domestic laws will inhibit the importation of generics from countries, which do not adopt such extension and follow a more stringent approach to patentable subject matter.[159]

The insight underlying these examples is that a robust public domain[160] and well tailored boundaries of IP protection are not only important for consumers of IP and the general public, but also have enormous (economic) significance for the development and production of new innovative and creative goods and services by allowing these to build upon the existing abstract body of knowledge of mankind.[161] In a knowledge economy the free movement of such knowledge is a crucial element. A knowledge economy is increasingly reliant on (scientific) knowledge and information as a resource for future innovations and hence must ensure its free circulation[162] – next to providing incentives for the development and production of further knowledge and innovation via IP exclusivity or by other means. This implies that IP exclusivity must exist in a balance with a strong public domain, which safeguards the access, use and dissemination of the existing building blocks of knowledge.

Maximum standards or ceilings to IP protection can function as these kind of safeguards. To secure global trade in goods and services that rely on a robust public domain or exceptions and limitations to IP, these safeguards must be made internationally mandatory,[163] otherwise, domestic IP protection which oversteps such maximum standards serves as a barrier to enter that domestic market, thereby inhibiting free trade. Equally, to establish a concept of an international free movement of information and knowledge,[164] the necessary access, use and dissemination guarantees must become an obligatory part of a global acquis. A global commons of scientific knowledge and world-wide availability of the relevant information and plain data stands against IP over-protection. This is not to replace the still necessary mandatory (minimum) standards of IP protection, which incentivize further innovations and prevent discrimination and free riding. But these ceilings must become an additional element of the international IP system. They are the necessary counterparts to minimum rights. They can complement the hitherto mainly one-sided international obligations to grant (ever more) IP exclusivity and therefore provide an overall balanced system of IP protection at the international level.[165] In short, in a knowledge economy, maximum standards to IP protection are as relevant as minimum standards.

Does the existing international IP system offer any ceilings which primarily safeguard the public domain and access to information? Part III.A above has pointed to the relevance of the proposal by several developing countries for a treaty on (mandatory) exceptions and limitations to copyright. I wish to close with briefly addressing three related provisions in existing treaty law, whose ceiling character may be debated:  Art. 2(8) of t Berne Convention states that [t]he protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information (emphasis supplied). Further, by incorporating the so-called idea – expression dichotomy, Art. 9:1 of TRIPS provides that copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such (emphasis supplied). Whereas the wording of both provisions identifies them as mandatory limitations, it is sometimes argued that they only state what is self-evident, i.e., they serve clarificatory rather than limiting purposes.[166] Finally, Art. 10:2 of TRIPS, in relation to copyright protection for compilations of data makes clear that protection shall not extend to the data or material itself.[167] Taken together, these provisions establish an important dividing line between copyright protection and the public domain.[168] Access to, and utilisation of, ideas, concepts and also information – plain facts – cannot be exclusive to anyone. This limitation in the scope of copyright protection should enable others to build on the underlying ideas, concepts or plain facts even if they are embodied in a protected work and re-utilize them without restriction.[169] In an ideal scenario, this basic paradigm should hence safeguard access to, and dissemination of, knowledge. From an economic perspective, the idea – expression dichotomy would ensure that second comers have the ability to build on existing ideas, facts and knowledge in order to develop value added products and facilitate competition as well as the overall progress of science and the arts in society.[170] From an educational and scientific viewpoint, it prohibits copyright restrictions on access to, and dissemination of, the basic building blocks of knowledge.

But do these provisions, in particular the idea – expression dichotomy, serve as enforceable ceilings, which can safeguard the global free movement of information as well as goods and services building on a robust public domain? Apart from questions whether the binding terminology used (the term shall) actually leads to mandatory maximum standards, the substance of these rules may be too ambiguous and abstract to function as a relevant ceiling. Commentators have observed that:

[I]t is an illusion that simply adhering to the idea-expression dichotomy doctrine in traditional copyright theory would guarantee that fundamental ideas and research findings are freely accessible. Although not copyright protected, the fundamental ideas and concepts are clustered in scholarly works or databases, which need to be distributed and read in order to gain access to the ideas and findings they convey. The freedom of fundamental ideas and knowledge is best served in a copyright framework providing effective exceptions or limitations privileging uses necessary to get access to embedded information and knowledge.[171]

This critique indicates that the question whether any (TRIPS-plus) copyright protection may be considered as contravening[172] the idea – expression dichotomy or the prohibition to protect mere fact and data itself is seldom straightforward. However, while it is rather unlikely to find a direct violation of Art. 9:2 of TRIPS,[173] indirect conflicts are certainly possible. This could be the case for example by extensive protection of the look and feel and functionality of software[174] or by granting copyright merely on the basis of sweat of the brow and investment into the production of compilations of data, texts or websites.[175] Even though not formally part of copyright, the so called sui generis right for non-original databases, granted merely on the basis of substantial investments and extending protection also to insubstantial elements (i.e., data) of such a database, has the potential to effectively protect plain data, or other elements incorporated.[176] It can certainly be considered to be in conflict with the notion underlying the idea – expression dichotomy as well as Art. 10:2 of TRIPS and Art.2 (8) of the Berne Convention. Finding such conflicts is even more likely keeping in mind the objectives of Art.7 of TRIPS[177] which – by virtue of Art. 3:2 of DSU and Art. 31(1) of VCLT – should guide the interpretation of both Art. 1:1 as well as Arts. 9:2 and 10:2 TRIPS and Art.2 (8) of the Berne Convention.

      Nevertheless, more specific exceptions and limitations, drafted in mandatory terms, may be needed to secure global access, use and dissemination of plain facts and scientific information. Additional support for this objective comes from a recent UN work on the implementation of the outcomes of the World Summit on the Information Society: A Report by the Commission on Science and Technology for Development highlighted the ability to acquire, adapt, diffuse and adopt existing knowledge [a]s crucial for every country.[178] The same need for more concrete ceilings applies for safeguarding global trade in goods and services which have been developed and produced under such an open knowledge regime. In the copyright context, several ongoing initiatives address this need.[179] In the same vein, concrete exceptions and other boundaries to patent, test data, industrial design, integrated circuit as well as trademark and geographical indications protection should be considered at the international level.[180] Due to the general need for domestic policy space and flexibility to tailor the IP regime towards national development needs, only those boundaries should be made mandatory which serve an internationally agreed common objective and are necessary[181] to fulfil this objective. This proportionality test for balancing between common global aims and domestic policy space applies not only to ceilings safeguarding the free movement of information, goods and services, but is equally relevant for all of the other rationales discussed above.

IV. Conclusion

This article has explored the notion of ceilings or maximum standards within the existing international IP framework – in particular by examining how additional IP protection is generally addressed within IP treaties and by reviewing some objectives which may demand binding limits to IP protection. I conclude that a paradigm shift in international IP is first and foremost a question of mindset: One should begin by questioning and analysing existing IP treaty provisions as to their capability to regulate and prescribe not only the lower, but also (some of)[182] the upper limits of IP protection. In particular, under the general qualification in Art. 1:1, second sentence of TRIPS for additional IP protection not to contravene TRIPS provisions such an analysis is justified. While it does not, in itself, entail a mandatory boundary, it serves as a door opener for operationalizing the (relatively few) binding limits to IP protection within TRIPS.

With this change in perspective, the notion of TRIPS (in)consistency takes a new meaning: It is not only about whether a WTO Member has complied with, and given effect to, the international minimum standards for the protection of IP set out in the TRIPS. A country may also be in conflict with TRIPS obligations whenever it exceeds the maximum levels of IP protection set out in TRIPS. In other words, TRIPS consistency demands not only providing a floor of minimum standards, but also complying with any binding ceilings on additional IP protection in national laws. This functions as a comprehensive global framework and benchmark – instead of merely setting out (temporary) baselines on which further extensions can be pursued – may warrant a fresh look at recent TRIPS-plus initiatives. For ongoing efforts – such as the negotiations for an Anti-Counterfeiting Trade Agreement (ACTA) – one should examine whether the proposed text is consistent with TRIPS.[183] Due to the strong opposition of various developing countries and NGOs against stronger enforcement measures, the negotiating countries should expect a detailed scrutiny of TRIPS-plus proposals against any applicable ceilings in TRIPS. Likewise, recently concluded FTAs between the US, the EU and Japan on the one side and developing countries on the other should be examined for their TRIPS consistency. Finally, domestic TRIPS-plus measures – such as the EC border measures against in-transit generics may be subject to such an analysis. Given the impact these measures can have on international trade and public health, this should not be perceived as an unwarranted interference with purely domestic matters.

Exploring some of the rationales which may be given effect by ceilings, existing international IP law certainly appears of limited value. Increasingly precise maximum standards are needed to provide for an overall balanced system of international IP protection which takes into account not only the interests of right holders but also of users and the public at large. There is a good argument not to leave these issues to other sources of international law (such as human rights, consumer, or competition law). In order to preserve or maybe even recover its legitimacy and credibility, the international IP system must address its linkages with other normative values and current global challenges. In todays interconnected world, it cannot develop further as a self-contained regime in relative isolation from other areas of international law or remain silent to issues such as climate change, food security, public health or access to knowledge and information.

To be clear, setting out explicit maximum standards within the international IP system is not the only or necessarily most preferred way to implement the rationales explored above. The need for domestic policy space in areas where no international consensus exists and the insight that IP regimes should be tailored towards national development needs, both demand a restrictive approach. Only those boundaries should be made mandatory which serve an internationally agreed common objective and are necessary to fulfil this objective. Finally, the potential drawbacks and problems inherent in a ceilings approach must be taken into account.[184] Overall, there are likely to be some areas where explicit mandatory limits within the international IP protection may be opportune and others where this approach is not yet, or not at all, the appropriate way to integrate public interest concerns and users rights. On the basis of ongoing initiatives, concrete and mandatory exceptions to copyright are much more likely than in the area of patents. The latter, however, may be affected by the horizontal nature of the comprehensive provisions on IP enforcement within the TRIPS. Some of these may provide binding limits on TRIPS-plus enforcement measures – including those on patent enforcement.[185]