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 7: The Evolution of the CBD’s Development Agenda that may Influence the Interpretation and Development of TRIPS

Charles Lawson and Jay Sanderson

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


7. The evolution of the CBD’s development agenda that may influence the interpretation and development of TRIPS Charles Lawson and Jay Sanderson 1. INTRODUCTION The United Nations’ Convention on Biological Diversity (CBD) entered into force for Contracting Parties on 29 December 1993. At the same time, minimum intellectual property standards were being established and codified in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) for World Trade Organization (WTO) Member States. After more than ten years, the interaction between the CBD and TRIPS remains unresolved (see IP/C/W/368/Rev.1; IP/C/W/369/Rev.1; IP/C/W/370/Rev.1), and the internationally contested inherent conflicts between TRIPS and the CBD remain. The conflict can be summed up as follows: TRIPS requires that genetic materials be protected by patents or a sui generis plant variety regime that privately appropriates genetic resources over which a country has sovereign rights under the CBD (see, for example, IP/C/W/368, p. 2), and that these privileges do not also require the additional measures set out in the CBD, such as prior informed consent, mutually agreed terms and benefitsharing (see, for example, IP/C/M/28, p. 43; IP/C/W/368, p. 2). Resolving this apparent conflict has, this chapter argues, consequences for both the CBD and TRIPS. This chapter therefore considers the likely interpretive effects of the CBD on TRIPS, with the CBD providing some insight into the failure to negotiate a satisfactory balance between access and benefit-sharing, and providing some indication of developments that are likely to affect the...

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