Interpreting and Implementing the TRIPS Agreement

Interpreting and Implementing the TRIPS Agreement

Is it Fair?

Edited by Justin Malbon and Charles Lawson

This book considers whether the WTO agreement on ‘Trade-Related Aspects of Intellectual Property Rights’ (TRIPS) will become a vehicle for promoting greater international equity and engagement with the world economy or a tool for wealthy nations to extract excessive rents from poorer countries. Can TRIPS garner the necessary degree of legitimacy and public trust to deliver economic development? Can it become a key instrument for promoting international health and development? In response to these questions, the book proposes interpretive possibilities for the TRIPS’ text along with implementation strategies to avoid the threat of its irrelevancy due, amongst other things, to free trade agreements containing TRIPS-plus terms.

Chapter 4: Last Chance? Multilateralism, TRIPS and Developing Countries

Xu Yi-chong

Subjects: development studies, development economics, law and development, economics and finance, development economics, law - academic, intellectual property law, law and development


Xu Yi-chong 1. INTRODUCTION Making rules for the protection of intellectual property rights (IPRs) involves finding a balance between the interests of right-holders and right-users. The first international trade agreement on IPRs protection, the Agreement on Trade-Related Intellectual Property Rights (TRIPS Agreement) is skewed in favour of the interests of intellectual property right-holders and the countries where they reside at the expense of rightusers and developing countries.1 It is, however, not in the interest of developing countries to abandon or to reopen the TRIPS Agreement. This chapter argues that there are three instruments available in the WTO system that may allow developing countries to pursue their interests and address some of the imbalances inherent in the TRIPS Agreement: the TRIPS Council, which is empowered to oversee and monitor the implementation of the Agreement; the dispute settlement mechanism embedded in the WTO Dispute Settlement Understanding (DSU); and the continuing negotiations in adjusting the multilateral trading regime. Two important features of the TRIPS Agreement make the use of these instruments feasible. One is the flexibility of the TRIPS Agreement: like all international agreements, the provisions of the Agreement are broadly, and sometimes even vaguely, defined and their implications therefore depend heavily on the interpretation of these provisions. The other is the ‘positive’ nature of the required enforcement process: the TRIPS Agreement requires the adoption and adaptation of domestic legislation. The combination of international and domestic politics embedded in the TRIPS Agreement means that its enforcement will inevitably involve a political and...

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