Abstract
This chapter focuses on the perceived shortcomings of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) seen from the perspective of the demandeurs for strengthened intellectual property (IP) protection in the TRIPS negotiations and the subsequent gains made in bilateral and plurilateral free trade agreements (FTAs). The comment concludes that the IP chapters of FTAs throw light on what the two major demandeurs for stronger IP protection, namely the European Union (EU) and the United States (US), did not obtain in the TRIPS negotiations. It also draws attention to certain perceived shortcomings of TRIPS from the perspective of those with mainly defensive interests, but some offensive interests, namely most developing countries. The EU and US agreements are only used to illustrate these points, not to provide a comprehensive understanding of these FTAs. An attempt is made to unravel the puzzle of why developing countries seek and accept FTAs with TRIPS-plus IP chapters, what effect FTAs could have in multilateral IP negotiations on the positions of developing countries that are party to FTAs, and whether or not there is asymmetry in such FTA negotiations. Overall, this chapter concludes that the TRIPS Agreement does appear more balanced when seen from the perspective of the more recent bilateral or regional FTAs concluded by the EU and US.
Jayashree Watal works (since 2001) in the Intellectual Property Division of the World Trade Organization (address: 154, Rue de Lausanne, 1211 Geneva, Switzerland; jayashree.watal@wto.org) and represented India in TRIPS negotiations from May to December 1990 (the drafting stage). This chapter is written in the author’s personal capacity and does not engage the responsibility of the WTO Secretariat or WTO members either individually or jointly. The author gratefully acknowledges helpful suggestions made by Henning Grosse Ruse-Khan, Hannu Wager and Souheir Nadde-Phlix on an earlier draft.
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Notes
- 1.
See Watal (2007), pp. 131–132.
- 2.
See United Nations Department of Economic and Social Affairs, International Bureau of WIPO, UNCTAD Secretariat 1975 and UNCTAD Secretariat 1979.
- 3.
See Watal (2001), pp. 16–17.
- 4.
The US acceded to the Berne Convention in March 1989. See http://www.copyright.gov/circs/circ38a.pdf.
- 5.
Subject to transitional period arrangements that are still applicable to least-developed country members of the WTO.
- 6.
See Watal (2001), pp. 3–4.
- 7.
- 8.
See Gorlin (1999), pp. 14–16 for a history of these negotiations.
- 9.
See Nadde-Phlix (2013) in this volume about current work in the WTO on the review of Article 27.3(b). See also WTO document IP/C/W/369/Rev.1.
- 10.
See document MTN.GNG.NG11/W/70, Article 25 reads as follows: “Contracting parties are encouraged to extend the term of patent protection, in appropriate cases, to compensate for delays caused by regulatory approval processes.”
- 11.
See GATT document MTN.GNG.NG11/W/70, Article 27 and Watal, (2001), Chapter X about how the current Article 31 was negotiated. See also MTN.GNG.NG11/68, Article 26, on which TRIPS Article 31 is modelled.
- 12.
See GATT document MTN.GNG.NG11/W/70, Article 24.2.
- 13.
See GATT document MTN.GNG.NG11/68, Article 10. Smell marks and sound marks are capable of being described by chemical formulae or musical notation, respectively.
- 14.
See GATT document MTN.GNG.NG11/68, Article 12 (2) and MTN.GNG:NG11/70, Article 12.2, which is broader.
- 15.
See GATT document MTN.GNG.NG11/68, Articles 20 and 21.
- 16.
See GATT document MTN.TNC/W/35/Rev.1 and Gorlin (1999) on the negotiating history of this provision.
- 17.
See GATT document MTN:GNG.NG11/W/70, Article 33 and See MTN:GNG.NG11/W/68, Article 28(b). See also Gorlin (1999), pp. 46–50.
- 18.
Reichman and Lange (1998), pp. 34–39.
- 19.
Watal (2010) cites some of these views.
- 20.
See GATT document MTN.GNG.NG11/W/68, Article 7 of Part 3 on Injunctions.
- 21.
See GATT document MTN.GNG.NG11/W/68, Article 8 of Part 5. The US in its submission simply concurred with the EU and stated that this was a good basis to proceed. See also Gorlin (1999), p. 82 and IP/C/W/349/Rev.1.
- 22.
Thus WTO document WT/CTE/W/8 in describing the negotiating history of the TRIPS provisions relevant to the CBD concludes in paragraph 77 that “[t]he question of new forms of protection adapted to the particular circumstances of such peoples/local communities was not raised during the TRIPS negotiations”. India’s chief negotiator in the Uruguay Round, Mr. A. V. Ganesan, continued to place priority on this issue as can be seen from a speech he made in 1999, available at http://www.eximbankindia.com/old/lec990511-1.html.
- 23.
See Nadde-Phlix (2013) in this volume.
- 24.
According to Roffe (2013), the EU-Central America agreement has no data exclusivity provisions because such provisions were already incorporated into national laws following an earlier US agreement.
- 25.
See US-Korea FTA Article 18.8.1.
- 26.
See Article 10.35 of the EU-Korea FTA.
- 27.
See US-Korea FTA Article 18.8.6 (a).
- 28.
See US-Korea FTA Article 18.8.5.
- 29.
Language that invariably accompanies the compulsory licence provision is that “the Party shall not require the patent owner to transfer undisclosed information or technical ‘know how’ related to a patented invention that has been authorized for use without the consent of the patent owner”.
- 30.
See WHO-WIPO-WTO (2012), pp. 188–189.
- 31.
See US-Korea FTA, Article 18.2.
- 32.
- 33.
See Article 18.2, sub-paragraphs 6 and 7 of the US-Korea FTA.
- 34.
See Abbott (2013) in this volume.
- 35.
See Table 4.1 in Chapter IV and related analysis in WHO, WIPO, WTO (2012), pp. 186–190.
- 36.
See, for example the EU Government Gazette, October 2012, available at: http://governmentgazette.eu/?page_id=13, where an article by the EU Trade Commissioner on the EU-India FTA states: “to avoid negative impacts on access to affordable medicines in India or elsewhere, we are not pressing for changes in India’s legislation on intellectual property rights in this area”.
- 37.
See Jaeger (2013) in this volume.
- 38.
Article 41.5 of TRIPS states: “It is understood that this Part does not create any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general, nor does it affect the capacity of Members to enforce their law in general. Nothing in this Part creates any obligation with respect to the distribution of resources as between enforcement of intellectual property rights and the enforcement of law in general”.
- 39.
For example, see Article 20.4.1(c) of the US-Singapore FTA, which states that dispute settlement procedures apply wherever “a benefit the Party could reasonably have expected to accrue to it under Chapters 2 (National Treatment and Market Access for Goods), 3 (Rules of Origin), Chapter 8 (Cross Border Trade in Services), or Chapter 16 (Intellectual Property Rights) is being nullified or impaired as a result of a measure that is not inconsistent with this Agreement.”
- 40.
See Anh (2010).
- 41.
For a detailed discussion, see Drexl (2013) in this volume.
- 42.
See for example Article 142.3 of the EU-CARIFORUM EPA.
- 43.
See Abbott (2013) in this volume.
- 44.
- 45.
See Roffe (2013) in this volume.
- 46.
For example, the Japan-India FTA did not contain a chapter on IP and MERCOSUR countries are yet to conclude FTA negotiations with any of the major demandeurs.
- 47.
See Trade Negotiations Committee (2011).
- 48.
- 49.
For more information about this workshop see Nadde-Phlix (2012).
- 50.
See footnote 2(c) of Article 63 of the EU-CARIFORUM EPA.
- 51.
See Abbott (2013).
References
Abbott FM (2013) Trade costs and shadow benefits: EU economic partnership agreements as models for progressive development of international IP law. In: Drexl J, Grosse Ruse Khan H, Nadde-Phlix S (eds) EU bilateral trade agreements and intellectual property: for better or worse? Springer, Heidelberg (this volume)
Anh D (2010) Legal and institutional issues for Korea-EU FTA: new model for post-NAFTA FTAs? Sciences Po Policy Brief. http://gem.sciences-po.fr/content/publications/pdf/AHN_KOREU%20FTA%20201010.pdf
Gorlin JJ (1999) An analysis of the pharmaceutical-related provisions of the WTO TRIPS (Intellectual Property) agreement. Intellectual Property Institute, London
Jaeger T (2013) IP enforcement in EPAs as compared to standard enforcement. In: Drexl J, Grosse Ruse Khan H, Nadde-Phlix S (eds) EU bilateral trade agreements and intellectual property: for better or worse? Springer, Heidelberg (this volume)
Maskus KE (2012) Private rights and public problems: the global economics of intellectual property in the 21st century. Peterson Institute of International Economics, Washington
Maskus KE (2013) Assessing the development promise of IP provisions in European Union Partnership Agreements. In: Drexl J, Grosse Ruse Khan H, Nadde-Phlix S (eds) EU bilateral trade agreements and intellectual property: for better or worse? Springer, Heidelberg (this volume)
Nadde-Phlix S (2012) Economic partnership agreements of the EU: a step ahead in reforming international IP law? – Workshop of the Max Planck Institute for Intellectual Property and Competition Law, June 2011. IIC Int Rev Intellect Prop Compet Law 43(8):951–958
Nadde-Phlix S (2013) IP protection in EU economic partnership- and free trade agreements vis-à-vis IP negotiations in the WTO. In: Drexl J, Grosse Ruse Khan H, Nadde-Phlix S (eds) EU bilateral trade agreements and intellectual property: for better or worse? Springer, Heidelberg (this volume)
Reichman J, Lange D (1998) Bargaining around the TRIPS agreement: the case for ongoing public–private initiatives to facilitate worldwide intellectual property transactions. Duke J Comp Int Law 9(11):11–68
Roffe P (2013) The intellectual property chapters in free trade agreements: their significance and systemic implications. In: Drexl J, Grosse Ruse Khan H, Nadde-Phlix S (eds) EU bilateral trade agreements and intellectual property: for better or worse? Springer, Heidelberg (this volume)
UNCTAD Secretariat (1979) The role of trade marks in developing countries
Trade Negotiations Committee (2011) Draft decision to enhance mutual supportiveness between the trips agreement and the convention on biological diversity (TN/C/W/59)
United Nations Department of Economic and Social Affairs, International Bureau of WIPO, United Nations Conference on Trade and Development (UNCTAD) Secretariat (1975) Report on the Role Of Patent System in the Transfer of Technology to Developing Countries
Watal J (2001) Intellectual property rights in the WTO and developing countries. Kluwer Law International, London
Watal J (2007) Developing countries and the protection of intellectual property rights: current issues in the WTO. In: Bermann G, Mavroidis P (eds) WTO law and developing countries. Columbia studies in WTO law and policy. Cambridge University Press, Cambridge
Watal J (2010) The US-China dispute - a comment on the interpretation of TRIPS enforcement provisions. J World Intellect Prop 13(5):605–619
Watal J (2011) From Punta Del Este to Doha and beyond: lessons from the TRIPS negotiating processes. WIPO J 3(1):24–35
WHO, WIPO, WTO (2012) Promoting access to medical technologies and innovation: intersections between public health, intellectual property and trade
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Watal, J. (2014). Is TRIPS a Balanced Agreement from the Perspective of Recent Free Trade Agreements?. In: Drexl, J., Grosse Ruse - Khan, H., Nadde-Phlix, S. (eds) EU Bilateral Trade Agreements and Intellectual Property: For Better or Worse?. MPI Studies on Intellectual Property and Competition Law, vol 20. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-39097-5_3
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