知识产权套利:外国规则如何影响国内保护

IF 1.9 2区社会学 Q1 LAW

University of Chicago Law Review Pub Date : 2004-01-01 DOI:10.1017/CBO9780511494529.031

Pamela Samuelson

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引用次数: 16

摘要

1994年签订的《与贸易有关的知识产权协定》(TRIPS)缩小了各国可以采用不同知识产权规则的问题范围。例如，所有世界贸易组织(WTO)成员国现在都必须通过版权法保护计算机程序。然而，通过暗示各国可以自由地采用比要求的最低限度更高的保护规则(这大概意味着他们不需要这样做)，TRIPS显然考虑到了各国法律的持续差异。各国还可以“在本国法律体系和实践范围内自由决定实施本协定条款的适当方法”。《与贸易有关的知识产权协定》通过禁止各国对待外国人不如对待本国国民来限制民族自治，但这隐含地“接受了各国在实体法上可能存在差异的命题”。《与贸易有关的知识产权协定》的其他条款承认，成员国可以“以有利于社会和经济福利的方式”采用知识产权规则，并“促进经济发展”

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Intellectual Property Arbitrage: How Foreign Rules Can Affect Domestic Protections

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), concluded in 1994, has narrowed the range of issues on which nations can adopt differing IP rules. All World Trade Organization (WTO) member nations, for example, must now protect computer programs by copyright law.' Yet TRIPS plainly contemplates continued differences in national laws by signaling that nations are free to adopt higher-protection rules than the required minima' (which presumably means they need not do so). Nations are also "free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice."' TRIPS restricts national autonomy by forbidding nations from treating foreigners less well than their own nationals,4 but this implicitly "accept[s] the proposition that states may differ in their substantive laws."5 Other TRIPS provisions recognize that member states can adopt IP rules "in a manner conducive to social and economic welfare" and "to promote

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来源期刊

University of Chicago Law Review LAW-

CiteScore

2.40

自引率

5.00%

发文量

期刊介绍： The University of Chicago Law Review is a quarterly journal of legal scholarship. Often cited in Supreme Court and other court opinions, as well as in other scholarly works, it is among the most influential journals in the field. Students have full responsibility for editing and publishing the Law Review; they also contribute original scholarship of their own. The Law Review"s editorial board selects all pieces for publication and, with the assistance of staff members, performs substantive and technical edits on each of these pieces prior to publication.