Abstract
Intellectual property (IP), broadly defined, is a series of privileges accorded to inventors and creators. These privileges are recognized through a series of international agreements that establish minimum standards. The most significant of these agreements is probably the World Trade Organization (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) that binds WTO Member States to comply with a range of existing international IP agreements, and then imposes minimum standards for copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout designs (topographies) of integrated circuits, and undisclosed information (TRIPS Articles 9–39). These IP privileges are generally recognized and enforced through national laws that are consistent with these international norms. The result is a patchwork of national laws, each attempting to articulate at least the minimum standards (albeit many are more generous—the so-called “TRIPS-plus”) in the context of national and regional choices. The TRIPS standards adopted and applied by WTO Member States are then subject to WTO dispute resolution and penalties that include retaliatory trade sanctions where states have not implemented and applied their obligations to maintain TRIPS’ minimum IP standards (TRIPS Article 64). The WTO dispute resolution and sanction mechanism makes TRIPS one the few enforceable international laws, and hence its gravity in assessing the impacts of IP.
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- 1.
Albeit there are others, such as, International Union for the Protection of New Varieties of Plants (plant variety rights), Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (traditional knowledge), International Treaty on Plant Genetic Resources for Food and Agriculture (farmers’ rights), and so on.
- 2.
These are the Paris Convention for the Protection of Industrial Property, the Stockholm Act of the Paris Convention for the Protection of Industrial Property (1967), the Berne Convention for the Protection of Literary and Artistic Works, the Paris Act of the Berne Convention for the Protection of Literary and Artistic Works (1971), the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, and the Treaty on Intellectual Property in Respect of Integrated Circuits (1989): TRIPS Article 2.
- 3.
Noting also the Preamble: “Recognizing that trade and environment agreements should be mutually supportive with a view to achieving sustainable development.”
- 4.
Albeit TRIPS provides: “Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice”: TRIPS, Article 1(1).
- 5.
This was confirmed in the Doha Declaration: WTO Ministerial Conference (2001), Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2, (5(b)).
- 6.
These conditions and procedures are generally addressed in Article 31, although there may be other relevant conditions imposed by TRIPS such as national treatment (Article 3), most-favored nation treatment (Article 4), and so on.
- 7.
Some commentators consider this provision “is thus essentially a policy statement that explains the rationale for measures taken under Articles 30 (exceptions to rights conferred), 31 (other use without the authorization of the right holder) and 40 (control of anti-competitive practices]”: Gervais 2008, p. 209.
- 8.
There is recent interest under the CBD about effective access to and transfer of relevant technology: see Conference of the Parties to the CBD pp. 42 and 166–168.
- 9.
- 10.
Noting also the Preamble: “Recognizing that trade and environment agreements should be mutually supportive with a view to achieving sustainable development.”
- 11.
See, for example, TRIPS, Article 41.
References
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Lawson, C. (2014). Intellectual Property. In: Ludlow, K., Smyth, S., Falck-Zepeda, J. (eds) Socio-Economic Considerations in Biotechnology Regulation. Natural Resource Management and Policy, vol 37. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-9440-9_12
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