Abstract
Free Trade Agreements (FTAs) have often been considered instruments for heightened intellectual property rights protection, thereby in detriment of a more flexible copyright space. However, since the adoption of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, some FTAs have been incorporating a clause on the “Balance in Copyright and Related Rights Systems.” Among these, the Regional Comprehensive Economic Partnership Agreement and, more recently, the 2021 Australia-U.K. FTA contain such a clause. In addition, more discrete FTAs, such as the AustraliaPeru FTA, also incorporate similar provisions. This article considers what incorporating such clauses in FTAs means for the interpretation of the three-step test embedded in Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which is key for enabling a more flexible copyright space. This article seeks to understand whether FTAs’ clauses on “Balance in Copyright and Related Rights Systems” can support a more flexible interpretation of the three-step test in the context of the World Trade Organization dispute settlement system.
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Comparative and Foreign Law Commons, Intellectual Property Law Commons, International Law Commons, International Trade Law Commons