This paper examines the emergence of the World Trade Organization Trade-Related Aspects of Intellectual Property Agreement and the changing face of international intellectual property agenda, evidenced by the Doha Ministerial Declaration of November 2001. Follow-up work on access to medicines and the recent adoption of a ‘development agenda’ by the World Intellectual Property Organization will be discussed. The paper then looks at the current quest for a ‘balanced’ approach and suggests ways in which such a balance may be achieved.
For a detailed negotiating history, see GervaisD. (2003) ‘The Trips Agreement: Drafting History and Analysis’, 2nd edn, Sweet & Maxwell, London, UK.
2.
See CorreaC. (1996) ‘Acuerdo TRIPs: Regimen Internacional De La Propiedad Intelectual’, Fundacion Centro de Estudios Politicos y Administrativos, Buenos Aires, Argentina, p. 17.
3.
See Gervais (2003) op. cit. at pp. 1.18–9.
4.
Sui generis, a Latin phrase which roughly translates as ‘of its own kind’, means a form of intellectual protection different to that of the traditional forms, namely patent, trademark or copyright.
5.
The lack of a dispute resolution mechanism on the international level (state–state) was the main problem in enforcing the obligations under the Berne Convention for the Protection of Literary and Artistic Works (‘Berne Convention’) and the Paris Convention for the Protection of Industrial Property. The WTO dispute settlement mechanism applies only to the disputes between states (‘Paris Convention’). The TRIPS Agreement provides for the resolution of intellectual property disputes in relation to the TRIPS Agreement through the GATT/WTO dispute settlement mechanism. The GATT/WTO dispute settlement mechanism is a combination of the GATT 1994 dispute settlement system and the Uruguay Round Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). The WTO General Council functions as the Dispute Settlement Body (DSB). The DSU stresses the importance of consultations between members as a means of resolving disputes. Once a member has made a request for a consultation with another member, the latter has a period of 30 days within which to begin the consultation. If the issue is not resolved within 60 days of the initial request for consultation, the member who issued the complaint can request the establishment of a panel. The DSB can, by consensus, decide against the establishment of a panel. The establishment of a panel should be done at the latest at the meeting of the DSB following the time the request is made. The DSU sets out various rules, such as the composition of the panel, procedures and deadlines. Basically, a panel should finish its work in six months, or in three months in urgent cases. Appeal against a decision of the panel is also provided for under the DSU. For more information, see ‘Understanding on Rules and Procedures Governing the Settlement of Disputes’, online: World Trade Organization (http://www.wto.org/english/docs_e/legal_e/ursum_e.htm#Understanding).
6.
See the Punta del Este Declaration (launching the Uruguay Round). Document MIN.DEC of 20th September, 1986, pp. 7–8: ‘In order to reduce the distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade, the negotiations shall aim to clarify GATT provisions and elaborate as appropriate new rules and disciplines. Negotiations shall aim to develop a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods, taking into account work already undertaken in GATT. These negotiations shall be without prejudice to other complementary initiatives that may be taken in the World Intellectual Property Organization and elsewhere to deal with these matters.’.
7.
Argentina, Brazil, Chile, China, Colombia, Cuba, Egypt, India, Nigeria, Peru, Tanzania and Uruguay. Pakistan and Zimbabwe joined later on.
8.
In some cases, just a few years before, such as the Berne Convention ratified by the USA in 1989, 103 years after the Convention was adopted in the Swiss capital.
9.
Gervais (2003) op. cit. at p. 68.
10.
The Berne Convention, the Paris Convention and the Washington Treaty on Intellectual Property in Respect of Integrated Circuits (this last treaty never entered into force but was nonetheless used as a basis for TRIPS norms).
11.
Because the USA could not accept the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, which protects neighbouring (or ‘related’) rights. The wording of TRIPS only refers to Rome in respect of exceptions to those rights (Art. 14). See Gervais (2003) op. cit. at pp. 99–100. Also on this list are ‘moral rights’ (moral rights are that group of rights that enable a person to claim authorship or a work and to object to uses of a work that would be derogatory or prejudicial to the author's reputation or honour), the protection of biotechnological inventions (a matter which was not settled in Europe at the time), the nature of the protection of plant varieties (a new version of the relevant convention, known as UPOV, was concluded in 1991, ie when TRIPS was essentially a done deal) and geographical indications. Given the comparable clout of the industrialised countries involved in discussions of these issues, they were solved either by introducing exceptions (as in Art. 9 on moral rights or Art. 27 for biotechnology) or by rather vague undertakings to negotiate further, as in Art. 24 (concerning geographical indications) or Art. 27(3), which contains an obligation to protect plant varieties ‘either by patents or by an effective sui generis system or by any combination thereof. The so-called ‘sui generi’ system does not necessarily have to be UPOV compatible.
12.
Art. 7 (TRIPS): The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
13.
Art. 8 (TRIPS): 1) Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socioeconomic and technological development, provided that such measures are consistent with the provisions of this Agreement. 2) Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.
14.
The transitional period for pharmaceutical patents has been extended until 2016 for least developed countries in the Doha Declaration.
15.
For an interesting empirical analysis of how and why developing countries adopt higher intellectual property norms (in many cases not because they believe they need or will benefit from them), see OstergardR.L.Jr., (2002) ‘The Development Dilemma: The Political Economy of Intellectual Property Rights in the International System’, LFB Scholarly Publishing, New York, NY.
16.
A key difference between the WTO and organisations such as WIPO is that concessions are made in WTO negotiations across negotiating sectors. Intellectual property policy issues may be ‘abandoned’ for lower tariffs of cotton or coffee, for example. Interestingly, these issues are sometimes linked. The protection of intellectual property rights in agricultural products, such as seeds, is becoming an increasingly important issue. See LeleU.LesserW. H.Horstkotte–WesselerG. (1999) ‘Intellectual Property Rights in Agriculture: The World Bank's Possible Future Role in Assisting Borrower and Member Countries’, World Bank, Environmentally and Socially Sustainable Development Series. Rural Development, Washington, DC.
17.
A part of the Round (the Agreement on Trade-Related Investment Measures, or TRIMs), which ultimately did not succeed as planned. SellS.K. (2003) ‘Private Power, Public Law: The Globalization of Intellectual Property Rights’, Cambridge University Press, Cambridge, UK.
18.
This is reflected in recent domestic legislative efforts in various countries, as well as in bilateral trade agreements.
Decision of the General Council of 30th August, 2003, Document number WT/1/540. See also CorreaC.M. (2003) ‘Supplying Pharmaceuticals to countries without manufacturing capacity: Examining the solution agreed upon by the WTO on 30th August, 2003’J. Generic Med.Vol. 1, pp 105–119.
25.
On this issue, see MercurioB.C. (2004) ‘TRIPs, patents, and access to life-saving drugs in the developing world’, 8Marq. Intell. Prop. L. Rev.211; ChienC. (2003) ‘Cheap drugs at what price to innovation: Does the compulsory licensing of pharmaceuticals hurt Innovation?’, 18 Berkeley Tech. L.J. 853; CannW.A.Jr. (2004) ‘On the relationship between intellectual property rights and the need of less-developed countries for access to pharmaceuticals: Creating a legal duty to supply under a theory of progressive global constitutionalism’, 25 U. Pa. J. Int'l Bus. L. 755; see also ActionAid, ‘TRIPS and Health: The 30 August 2003 decision: will it improve access to affordable medicines in poor countries?’ (5th September, 2003), online: Southern African Regional Poverty Network (http://www.sarpn.org.za/documents/d0000537/P499_TRIPS_Health_Briefing.pdf).
26.
See GervaisD. (2002) ‘Spiritual but not intellectual? The protection of sacred intangible traditional knowledge’, 11Cardozo J. of Int'l & Comp. Law, pp. 467–495; and OstergardR.L.Jr. (2002) ‘The Development Dilemma: The Political Economy of Intellectual Property Rights in the International System’, LFB Scholarly Publishing, New York, NY.
27.
LessigL. (2004) ‘Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity’, Penguin Books, New York, NY. Examples range from open source software to creative commons in the field of copyright to analyses of the sometimes poor social value of letting only the market dictate the path of innovation.
See ‘Geneva Declaration on the future of WIPO’. The development agenda has been supported by ‘Five hundred scientists, academics, legal experts and consumer advocates, including two Nobel laureates’, WilliamsF. (2004) ‘Development needs “override intellectual property protection’”, Financial Times, 30th September, 2004 WL 93033069. See also BoyleJ. (2004) ‘A manifesto on WIPO and the future of intellectual property’, Duke L. & Tech. Rev. 0009, online (http://www.law.duke.edu/journals/dltr/articles/2004dltr0009.html).
For example, recent US Trade Agreements export the ‘Digital Millennium Copyright Act’, a specific piece of legislation concerning the protection and circumvention of technological protection measures (TPMs) that fits into the whole of the US Copyright Act, with its various safeguards, including constitutional protections stemming from the Bill of Rights. DMCA-like provisions are, or will soon be, part of national legislations in Central America and Asia as something of a stand-alone legislative instrument. See United States Bilateral Trade Agreements with Morocco, Chile, Bahrain, Australia and Central American Free Trade Agreement. These provisions are also being negotiation in a number of other agreements as well as within the Free Trade Area of Americas.
34.
Professor Peter K. Yu from Michigan State University labelled this approach as ‘The Double Backdoor in International Intellectual Property Lawmaking’. If a number of countries import a higher level of intellectual property protection, it is likely that a high level will be codified as the existing norm in any revision of TRIPS. See Gervais (2003) op. cit. at p. 68 (see note 32 and accompanying text).
