Introduction
The role of the WTO in implementing TRIPS has been critical in relation to internationalization of IP rights and standards. The first part analyses the background, tools, text, and harmonious textual approach of the TRIPS to adopt heightened and minimum standards. It is not the case that TRIPS has led to maximization of IP standards, which is what developed states argued for in its negotiation. Rather, its interpretation has been by WTO dispute resolution bodies in light of harmonious standards of interpretation and it provides a compromise between needs of developed and developing states.
Harmonisation Aims and Objectives of TRIPS
TRIPS has been highly relevant in achieving a high degree of harmonization of intellectual property (“IP”) laws, rights, and enforcement at global level. The evolving nature of today’s modern economy that is based on ‘knowledge work’, AI, digital systems, and so on, its importance has only increased. It also provides for harmonizing national priorities and laws and any derogations of TRIPS ideals and rules through specific measures. Harmonious internal interpretation and application is provided in Article 7. The historical context of TRIPS must also be understood to analyse its efficacy in promoting harmonious standards of protections, why differing standards may be adopted by some states. Inherently, TRIPS remains committed to universalization of IP rights and its protections, subject to exceptions, such as that showed during the Covid-19 pandemic.
Historically, TRIPS evolved to secure cooperation and adoption of IP rights and standards by developing countries which remain opposed to US’ plans of promotion international IP rights. It involved various rounds of negotiations, dialogue, conferences, soft law development, adjacent to the trade liberalisation under the WTO agreements, such as GATT and GATS. In fact, IP rights were a key bone of contention in multilateralism in international trade. The aim by industralised economies was to get “an extensive harmonization of the IP rights to impose a high standard of protection.” Hence, higher standards in IP rights were promoted and advocated under TRIPS development from the outset, compared to minimum standards of treatment under GATS or GATT. However, as it happens in international relations and treaty making, there had to be compromise “between, on the one hand, the incentive for innovation (or creation) that those rights might engender and, on the other hand, the creation of barriers to access and to the spread of the knowledge they generate.”
It was inherently a stated contention of developing countries that flexibility must be part of the agreement so that they had right to regulate their sovereign powers. However, minimum threshold was created under the objectives that every policy had to follow, and another was inclusion of principles that were to be used for elaboration of legislations. Creating a fair balance between high standards of protection and developing states’ needs and regulatory rights led to a compromise of adopting higher standards espoused in objectives and principles allowing for change and varying the scope of interpretation of TRIPS. Therefore, as in case of any regulation, where there is flexibility, it is at the cost of legal certainty. However, the fragmentation issue in TRIPS’ relating to standards of protection can be attributed to regionalism and bilateral approaches – an issue and challenge which the WTO is currently facing, evident from stalling of the Doha Rounds.
Universalising IP norms and contents
It has also been critical in explicating various standards on IP protection. For instance Article 39 TRIPS referred to Paris Convention being foundation of rights on ‘undisclosed information’, prior to it “had been unclear from the statutory text whether an obligation to protect trade secrets arises out of Art 10bis of the Paris Convention.” Said article had a harmonizing and uniformity-creating impact as it integrated various characteristics regarding treatment of trade secrets adopting a multipronged approach, as previously it was not clear whether trade secret protection involved an ‘exclusive rights regime’ or ‘regulation of unfair competition’, and whether any of the characteristic was evident from the remedies for breach.
It was not clear from national treatment of trade secrets whether at international level, where trade secret is recognised as a IP right class whether its “misappropriation is likely to be viewed as analogous to the infringement of IP, regardless of the label attached to the breach,” involving objective assessment of comparing protected object within infringing one, and second based on conduct outlawed by the statute committed by defendant. Para 2 of Art.39(2) provided that the prohibited conduct involving “dishonest disclosure, acquisition, and use without consent” along with definition of trade secret means that there will be liability for misappropriation. Footnote 10 of said article also requires Member States to extend to third party the liability, as a minimum standard relating to “the acquisition of undisclosed information by third parties who knew, or were grossly negligent in failing to know, that such practices were involved in the acquisition.” Cases from UK and US provided for this approach in relation to third party liability.
The upshot of this brief digression into conceptualization of a particular indicating the harmonization effect of TRIPS as creating minimum standards of protection integrating divergent views and features of a standard of protection. However, it is not always the case that TRIPS does not adopt a higher standard of protection. In doing so, one of its key objectives is promoting technological innovation.
In this regards, it is noted that “a[a] primary justification for the intellectual property system is the incentive it provides for advancement in many fields,” and that “[t]he introduction of the TRIPS Agreement extends that stimulus beyond national boundaries. The claim that intellectual property protection can promote innovation is premised upon the notion that protectable subject matter is a public good. Innovation, unlike real property, is non-exhaustible.” Applying Article 7 on objectives, it is obvious that TRIPS extends its protection beyond conventional IP types as Correa mentions that “the terminology adopted in Article 7 may not signal a deliberate limitation by those negotiating the Agreement. In fact, it may have been a mere oversight on the part of the developing countries that were preoccupied during negotiations with the impact that protection of technology-related innovation would have upon access to certain products and service.” This means that in some areas, where certain objectives are emphasized, a narrow reading of IP rights and protections should not be implied.
Inherent flexibilities
The statement in question does not adequately address the inherent flexibilities in the TRIPS agreement, such as under ‘Objectives’ (Article 7) and ‘Principles’ (Article 8) provisions. The issue with principles is that these have inherent normative indeterminacy. It can be interpreted and applied broadly and restrictively. Contexts and facts can determine this. However, these have also been criticized for not being used extensively and its limited role may be an attribute of lack of harmonization. A flexible reading is needed for TRIPS’ adaptability to economic, social, and technological evolution. It can lead to “a more balanced interpretation of the limitations and exceptions included in the Agreement” as well, based on, such as, the “Declaration on a balanced interpretation of the three-step test.” In the Hormones decision WTO’s appellate body noted that, “[t]he fundamental rule of treaty interpretation requires a treaty interpreter to read and interpret the words actually used by the agreement under examination.” Articles 7 and 8 therefore must apply key role in the harmonization of TRIPSs before its standards can be expanded or contract, as Buffard and Zemanek note:
“[When interpreting programmatic provisions of a treaty it is] evident that the process of interpretation prescribed by Article 31 para.1 of the VCLT can only be used with modification for that end. It is not possible to be guided in the interpretation of a treaty by its object and purpose when those have to be elucidated first by interpreting the treaty.”
Precedential Value of WTO decisions in harmonizing treaty interpretation
A key pathway to harmonious interpretation and application is that when disputes arise over the meaning of terms of TRIPS, there should be mechanism to adopt harmonized, good faith treaty interpretation. Notwithstanding dysfunctionality of the Appellate Body of WTO’s DSU, the ability of a treaty to gain harmonizing effect is by ensuring its consistent interpretation and application. There is also significant precedential value of WTO decisions in achieving this aim. Complementarity,
“Viewed in context, the phrase “shall have the authority” does not require Members to take any action in the absence of an application or request. Therefore, a condition that authority shall only be available upon application or request seems to be assumed in much of Sections 2, 3 and 4 of Part III. This is consistent with the nature of intellectual property rights as private rights, as recognized in the fourth recital of the preamble of the TRIPS Agreement. Acquisition procedures for substantive rights and civil enforcement procedures generally have to be initiated by the right holder and not ex officio.” DSU has enabled harmoniously treaty interpretation under the VCLT to developed standards in a consistent manner. In relation specifically to TRIPS, Appellate Body has interpreted its meaning and standards in light of prevailing legislation during TRIPS’ negotiation in Canada case as following:
“Moreover, the Panel believed that it was significant that concerns about regulatory review exceptions in general, although well-known at the time of the TRIPS negotiations, were apparently not clear enough, or compelling enough, to make their way explicitly into the recorded agenda of the TRIPS negotiation. The Panel believed that Article 30’s “legitimate interests” concept should not be used to decide, through adjudication, a normative policy issue that is still obviously a matter of unresolved political debate.” Hence, if we are to look for lack of harmonization in standards under TRIPS, we may have to look at how large economic powers sway middle powers to move away from multilateralism. The dysfunctionality of the Appellate Body by the US can be testament to that.
Critique of the statement
The statement of the question is commonly expressed as a case of acknowledging the importance of the IP law. It mainly reflects that the actual trend is of maximisation of IP rights than that of actually making harmonisation. The expansion is done usually at the expense of the developing countries. Generally, harmonisation is considered to be an achievement of international law when any law down the hierarchy is made to reflect the upper. It is argued by various eminent authors Blake that harmonisation is key for all stakeholders as compared to maximisation which aims at fulfilling the interests of the weak. It is also argued that the agenda is different when tends to consider IP law which is mainly at maximisation of IP rights just to serve the interests of developed countries. Essentially, the benefit is enjoyed by the developed in voicing for more IP rights.
In respect of the TRIPS, it is also that the WTO is a main body administering it. However, TRIPS set out certain protection as minimum standards for the protection of IP. This is tended to harmonise the law in question. However, the implementation of IP law is not seen as is considered. In fact the interests of developed are more preferred as compared to developing nations. In various case studies it has been highlighted that how maximisation of IP rights have compromised the interests and position of the developing countries.
Patents and its impacts for developing countries
The issue of rights per IP law may have consequences for the interests of developing countries. For instance, in he seminal case of AG v Union of India (2013) the court of India did not allow the grant of patent with regard to cancer. The reason citing was the section 3(d) of the Indian Patents Act which provides that evergreening of patents. India’s stance actually was to seek exclusivity and affordability however this is not considered by the TRIPS following IP rights. This has created a very bad position for the developing countries.
Another issue is pertained to the forum shifting behaviour which is also explicated by Rajec in respect of Frree Trade Agreements (FTAs) and the BIts. Similarly, the example of US Korea FTA can be considered including the CPTPP. The said instruments argue for longer patent and requires data exclusivity. This essentially constraints the policy space in relation to developing countries. In the seminal case of Philip Moris v Uruguay, it was highlighted that risks of such agreements where IP claims are weaponised could be a challenge to public health law. Despite the law of Uruguay prevailed.
Challenges for less privileged countries
Enforcement of obligations arising from deals outside of TRIPS can cost a lot of money, taking limited funds away from important areas like education or infrastructure. Policies that try to stop fraud can sometimes cost governments that are already struggling too much. Tough rules about protecting intellectual property have stopped developing countries from being innovative by making it harder for people to get technology and by supporting foreign rights holders over local industrial progress. The models we have now don't include indigenous knowledge and culture goods enough. Few steps have been taken to provide clear protections through organizations like WIPO, mostly because rich countries are against them. The COVID-19 outbreak showed how unequal access to important medical supplies is on a regular basis. Nations like India and South Africa ran into a lot of trouble when they tried to get short exemptions from TRIPS rules. This shows that business interests are more important than equal access.
There are deals that impose stricter rules, which often go against national interests. This makes the claim that policy alignment is the main trend in intellectual property law less strong. Inequality gets worse because of these trends, which help rich countries while weakening the power of less developed states. Governments that don't have a lot of money or time should work together to make the most of the restrictions that are already in place, like mandatory licenses, and refuse to make promises that go beyond TRIPS. States may be able to negotiate terms that are good for everyone if they work together through regional programs like the African Continental Free Trade Area (AfCFTA). International groups should push for plans that meet the specific needs of countries with low incomes. These plans should include better ways to share technology and protect traditional knowledge. For lawmakers and leaders from poor countries to be able to discuss and change global intellectual property laws, they need to be given the right skills and tools. The 2018 case Okiya Omtatah Okoiti v. Communications Authority of Kenya in Kenya showed how copyright law and digital rights are becoming more similar. Activists were against Kenya's strict anti-piracy laws, which were based on agreements with other countries. They said that these laws made it harder for people to get to educational tools and digital content that was needed for growth. Developing countries are very worried about the court's unclear stance on how to balance protecting intellectual property with allowing public access.
Ruth L. Okediji says that the push for global uniformity makes people more dependent by making it harder for policies in developing countries to be innovative. Peter Drahos says that deals that follow each other have a "ratchet effect" that forces smaller countries to follow stricter intellectual property rules that benefit foreign companies. Carlos Correa talks about the problems that economically weak countries have when they try to use TRIPS exemptions. These problems can be caused by limited institutional ability or political pressures from outside the country.
The Costs of IP Maximization for Developing Economies
Because patents have been expanded, the prices of important medicines have gone up. India and South Africa's requests for brief exemptions on vaccine-related patents show the problems they had during the COVID-19 pandemic. These requests show how unfair it is for countries that can't make vaccines to pay more than other countries.
Modern groups don't always do enough to protect the traditional practices and information of Indigenous peoples. Developed countries have slowed down efforts to fill these holes through the World Intellectual Property Organization's (WIPO) Intergovernmental Committee on Genetic Resources and Traditional Knowledge, so not much progress has been made. There are more duties in the Comprehensive and Progressive deal for Trans-Pacific Partnership (CPTPP) than in the Trade-Related Aspects of Intellectual Property Rights (TRIPS) deal. These duties include keeping patents for longer periods of time and following strict enforcement processes. These policies take money away from important development goals, which makes inequality worse.
There are fundamental inequalities in global intellectual property law that could be fixed in a number of ways. Developing countries need to work together to push for more use of TRIPS's flexible features, like mandatory licensing, to balance the needs of the public with the protection of intellectual property rights. Regional projects like the African Continental Free Trade Area (AfCFTA) allow people to work together on plans that are in line with their common goals and interests. It needs to be placed methods that put access and fairness first, like open innovation platforms or tiered drug prices, could help less wealthy countries solve their problems. If trade deals are changed to stop the use of international court dispute settlement (ISDS) terms against public interest programs, governments may be able to start health and aid programs without worrying about litigations and objections.
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