TRIPS-PLUS PROVISIONS IN EUROPEAN UNION AGREEMENTS: ENHANCED PROTECTION OF INTELLECTUAL PROPERTY OR RESTRICTION OF HUMAN RIGHTS? Submitted by William Stephen Sunner Department of Law Student Number 68548153 In fulfilment of the requirements For the Degree of Doctor of Philosophy Maynooth University Department of Law May 2020 Department Head: Prof. Michael Doherty Supervisor: Prof. Delia Ferri Dedication This thesis is dedicated to John Philips Sousa ‘the Skrillex of his day’ i | P a g e Acknowledgements First and foremost. I wish to sincerely thank my supervisor, Prof. Delia Ferri. Words cannot express the guidance, support, help, and patience she has given me over the last five years. At many stages in the course of this thesis, I benefited from her advice and support, particularly so when exploring new ideas. Her positive outlook and confidence in my research inspired me and gave me confidence. Her careful and tireless feedback contributed enormously to this thesis. I have been extremely lucky to have a supervisor who cared so much about my work, my research, and my well-being. I would like to thank Maynooth University Department of Law for facilitating me on this journey. The support and encouragement from everyone in the department has made it an extremely enjoyable ten-year period. I would like to thank my fellow Ph.D candidates for their support, encouragement, and distracting coffees when they were very needed. I would particularly like to thank Dr. Charles O’Sullivan and Niamh Wade for their support as we wrote our Ph.Ds in New House and beyond and for feedback on later drafts of this thesis. I would like to thank my friends and family for their support over the last five years. From last-minute cancellations due to deadlines and their support when I needed a break or strong ‘encouragement’ to keep working. I would particularly like to thank Charlie O’Neill, Michael Hannigan, and Donal McClean for their support, feedback and commentaries. I would also like to thank Jack Corrigan for the copious and often dangerous amounts of coffee it took to complete this thesis. I would also like to un-acknowledge Donal McClean because he did not invite me for pizza that one time. Finally, I would like to thank my mam, Valerie Sunner. For countless reasons, I would not have been able to do this project without her. ii | P a g e Abstract This thesis charts, and investigates the role of Trade-Related Aspects of Intellectual Property Rights (TRIPS)-Plus provisions to protect intellectual property rights in the European Union (EU) international agreements. It critically discusses the extent to which the EU is seeking higher levels of intellectual property (IP) protection in the global sphere and analyses whether and to what extent the use of TRIPS-Plus provisions potentially clashes with the objective of the promotion and protection of human rights in the EU external action. This analysis is conducted across two intertwined axis: a chronological one and a conceptual one, in order to understand the evolution of the balance between IP and human rights protection. The main and overarching research question to which this thesis aims to answer is the following: To what extent and how has the EU reconciled high levels of IP protection with the promotion of human rights in its own international agreements? In answering this question, this thesis also purports broader considerations on the overall coherence of EU international agreements with the objectives laid down in Articles 3 and 21 of the Treaty on the European Union (TEU). The theoretical framework of this research is that of the EU’s ‘constitutional regime governing foreign affairs’, and, in line with it, the approach adopted is normative, and the methodology used is doctrinal. This PhD dissertation is divided into three parts. The first part discusses the evolution of IP protection at the international level. The second part examines the position of IP rights within the EU, the competence of the EU to act in the IP field both internally and externally. The third and final part of this thesis systematically examines IP provisions in EU agreements and discusses the extent to which IP protection might conflict with the promotion of human rights. iii | P a g e Plagiarism Declaration I hereby certify that this material, which I now submit for assessment on the programme of study leading to the award of PhD in Law, is entirely my own work and has not been taken from the work of others save and to the extent that such work has been cited and acknowledged within the text of my work. iv | P a g e Table of Contents Introduction 1. Background of the Thesis 2. Overall Objective of the Thesis 3. Key Research Questions 4. Terminology 5. Theoretical Framework 6. Conceptual Framework of the Thesis 6.1. Intellectual Property Rights 6.2. European Union International Agreements 6.3 Human Rights within European Union Agreements 6.4. The Chronological Scope 7. Research Methodology 8. Structure of the Thesis 9. Contribution to the State of Art Part I The International Context -Chapter One - Putting TRIPS-Plus in Context: The Development of International Intellectual Property Law 1. Introductory Remarks 2. Intellectual Property as a Cornerstone of the World Economy v | P a g e 3. Overview of International Intellectual Property Law 3.1. Historical Origins of International Intellectual Property Law 3.2. The Set-up of the World Intellectual Property Organisation 3.3. The Shift to the World Trade Organisation Forum and Towards a Trade-Related Conception of Intellectual Property Law 3.3.1. US-Spring Assemblies 3.3.2. US-Section 337 3.3.3. Intellectual Property and Trade 3.4. The TRIPS Agreement 3.5. Beyond TRIPS: TRIPS-Plus Standards 3.6. The Most Recent Developments in the WIPO 3.7. The Failure of ACTA 4. The Controversial Nature of Intellectual Property Rights in International Law 4.1. Intellectual Property as a Component of the Right to Participate in Cultural Life 4.2. Intellectual Property as a Human Right: Critical Views 4.3. Moving Away from a Polarized Debate 5. The Conflict between Intellectual Property and Human Rights at the International Level 5.1. Balancing Intellectual Property with Human Rights 5.2 The Right to Health and Intellectual Property 5.3. The Right to Food and Intellectual Property 5.4. The Freedom of Expression and Intellectual Property 5.5. The Right to Education and Intellectual Property 5.6. The Rights of Indigenous Peoples and Intellectual Property 6. The Role of the European Union in the Development of International Intellectual Property Law vi | P a g e 6.1. The European Union in the World Trade Organisation and the ‘Forum Shifting’ 6.2. The Role of the European Union from Forum Shifting to TRIPS- Plus 7. Concluding Remarks Part II The European Union Legal Framework -Chapter Two- The European Union and Intellectual Property 1. Introduction 2. Intellectual Property in the Current European Union Constitutional Framework 2.1. The Treaties 2.2. Intellectual Property in the Charter of Fundamental Rights 3. Intellectual Property Law within the European Union 3.1. Introductory Overview 3.2. European Union Trademark Law: An Overview 3.2.1. The European Union Trademark Legal Framework 3.2.2. The Role of the CJEU in Shaping European Union Trademark Law 3.3. European Union Copyright Law: An Overview 3.3.1. The European Union Copyright Legal Framework 3.2.2. The Role of the CJEU in Shaping European Union Copyright Law vii | P a g e 3.4. European Union Patent Law: An Overview 3.4.1. The European Union Patent Legal Framework. 3.4.2. The Role of the CJEU in Shaping European Union Patent Law 3.5. Recent Developments and New Forms of Intellectual Property 4. Intellectual Property, Free Movement Goods and Competition in the Internal Market 4.1 Introductory Remarks 4.2. Trademarks and the Free Movement of Goods and Competition in the Internal Market 4.3. Copyright, Free Movement of Goods and Competition in the Internal Market 4.4. Patent, Free Movement of Goods and Competition in the Internal Market 4.5. Geographical Indications and the Free Movement of Goods 4.6. Design and the Free Movement of Goods 5. Intellectual Property and European Union International Obligations 5.1. Effects and Relevance of International Obligations in European Union Law 5.2. Case Law on International Intellectual Property Provisions 6. Concluding remarks -Chapter Three- The European Union, Human Rights and Intellectual Property 1. Introduction 2. The Development of Human Rights Protection within the European Union Treaties viii | P a g e 2.1. The Beginning: The Treaty of Rome 2.2. From the Single European Act (SEA) to the Treaty of Amsterdam Passing by Maastricht 2.3. From the Treaty of Amsterdam to the Treaty of Lisbon 2.3.1. The Constitutional Developments 2.3.2. The Role of the CJEU 2.4. The Treaty of Lisbon 3. The Charter of Fundamental Rights: An Overview 3.1. The Development of the Charter of Fundamental Rights 3.2. The Charter of Fundamental Rights. 4. The European Convention of Human Rights and the European Union Legal Order: An Overview 5. Intellectual Property and Human Rights in the European Union Legal Order: The European Court of Human Rights as a Point of Reference 5.1. Intellectual Property as a Human Right 5.1.1. The Protection of Intellectual Property under the ECtHR as a ‘Model of Protection’ 5.1.2. The Role of the CJEU in Protecting the Right of the Author 5.2. Balancing Intellectual Property and Other Human Rights 5.2.1.