A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Daniel J. Gervais
Chapter 3: The non-multilateral approach to international intellectual property normsetting
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) of the World Trade Organization (WTO) entered into force on 1 January 1995. Although developed countries obtained most of their preferred terms during the Uruguay Round of Multilateral Trade Negotiations (Uruguay Round), negotiators from less developed countries – which, in WTO parlance, include both developing and least developed countries – managed to inject ambiguities, flexibilities, limitations and exceptions into the TRIPS Agreement. As a result, the Agreement is now filled with vague, broad, undefined and result-oriented terms such as ‘“effective”, “reasonable”, “undue”, “unwarranted”, “fair and equitable”, and “not … unnecessarily complicated or costly”’. As reflected in China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights, Part III of the TRIPS Agreement is notoriously ineffective. Immediately after the adoption of the TRIPS Agreement, commentators were quick to extol the benefits of marrying intellectual property to trade. As Michael Ryan noted, such a marriage has allowed member states to ‘achieve treaties in diplomatically and politically difficult areas in which agreement would otherwise be elusive’. Commentators have also considered the establishment of the mandatory dispute settlement process as a crowning achievement of the Uruguay Round. In an interview, Jacques Gorlin even proudly declared that the Intellectual Property Committee – an ad hoc coalition of major US corporations he led that successfully lobbied for the TRIPS Agreement – obtained 95 percent of what it wanted.
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