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 6: The Development-Balance of the TRIPS Agreement and Enforcement of Intellectual Property Rights

Ermias Tekeste Biadgleng

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

Extract

Ermias Tekeste Biadgleng 1. INTRODUCTION The intellectual property (IP) and development discourse invokes an intriguing debate that intersects the assumed objectives of promoting innovation with concerns about the actual cost for industrialisation and public welfare in developing countries. The developed countries as major inventors continue to maintain an advantageous position regarding the utilisation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Developing countries, with limited exceptions, have yet to see the promised better days under TRIPS. They are primarily concerned about gaining IP benefits from learning, reverse engineering and the acquisition of existing technologies. Despite the development concerns arising from TRIPS, the G-8 leaders and the United States (US)–European Union (EU) summit adopted a trans-Atlantic agenda on worldwide enforcement of IP rights. The agenda underlines the shift in the position of the advanced countries from setting the standards towards monitoring the enforcement of IP rights in developing countries (European Union 2006). The enforcement of TRIPS requires an assessment of the level of adjustment expected of developing countries, the degree that TRIPS facilitates technology transfers and the extent of the reward for the contribution of developing countries in terms of biological resources, traditional knowledge and cultural expression. There is a link between TRIPS and IP rights in general with normative justifications for the promotion of innovation through reward systems, including through the institution of legal rights to reward the fruits of labour (Menell 2000). The normative justifications continue to be weighted against the cost...

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