infoJustice

Author: Kimberlee G. Weatherall

Abstract: This paper explores how international intellectual property (IP) law protects the rights and interests of defendants in IP enforcement procedures. It offers a mapping and analysis of a range of procedural safeguards and limits to remedies found in the international legal framework governing IP enforcement. These include general principles, like the requirement that enforcement measures be fair and equitable and that procedures provide for safeguards against abuse. There are also detailed rules regarding the availability of remedies and the considerations relevant to the making of court orders, and specific in-built protections and rules that directly protect the interests of defendants in legal proceedings. This paper maps the development of safeguards over time, with a focus on international instruments involving the US. The picture is simultaneously heartening and disturbing: while TRIPS provides a detailed framework in enforcement with significant procedural protections, many of them mandatory, these safeguards are disappearing from the US’ international agreements, and we may risk losing sight of the hard-won balance established in the 1990s. Annexure 1 to the paper provides a table identifying the various safeguards and whether they are in, or out, of the international instruments discussed in this paper. The paper is a contribution to a symposium on international and comparative user rights in copyright, but the analysis is of relevance more generally to the development of IP enforcement provisions in international agreements.

Citation: Weatherall, Kimberlee G., Safeguards for Defendant Rights and Interests in International Intellectual Property Enforcement Treaties (June 6, 2016). American University International Law Review, Forthcoming, 2016; Sydney Law School Research Paper No. 16/52.

Full Link on SSRN: http://ssrn.com/abstract=2791237