Second sentence Sample Clauses

Second sentence. Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. There are several interpretative issues raised by this sentence. It appears reasonable to conclude that this provision signifies that the rules of TRIPS are intended as “minimum” standards of IPR protection. Members may adopt more extensive protection, but not less extensive protection. Note, however, that the minimum standard of protection is that “required” by the Agreement, and that the express requirements of the Agreement are often framed in rather flexible terms. In this sense, the minimum standards are subject to differential application. The second sentence also provides that Members “shall not be obliged to” im- plement more extensive protection. Some Members have made demands in the context of bilateral or regional negotiations that other Members adopt so-called “TRIPS-plus” standards of protection. The express language of this second sen- tence makes clear that no Member is obligated by the TRIPS Agreement to adopt such TRIPS-plus standards. An important interpretative question is whether a Member that demands the adoption of TRIPS-plus standards in the bilateral or regional context might be failing to perform its TRIPS Agreement obligations in good faith. The argument on behalf of a Member’s being subjected to such demands would be that it accepted its TRIPS obligations as part of a set of reciprocally negotiated commitments that represent a balance of rights and obligations on which that Member is entitled to rely. Bilateral pressure to exceed the agreed upon commitments is contrary to 46 For instance, the TRIPS provisions on exceptions to exclusive rights, such as Article 30 with respect to patents, which reads: “Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.” For details on Article 30 see below, Chapter 23.