Is it Fair?
Edited by Justin Malbon and Charles Lawson
Chapter 3: Knowledge Diplomacy and the New Intellectual Property Fundamentalism
Graham Dutﬁeld 1. INTRODUCTION In theory, the ﬂexibilities of the World Trade Organization-administered TRIPS Agreement should provide developing countries with ample opportunities for creative interpretations of its provisions. Despite this, developing country freedom to exploit these opportunities is diminishing rapidly. Dispute settlement jurisprudence is one cause, but this is far less signiﬁcant than that the United States, in particular, and the European Union, have developed successful strategies to hold developing countries to more rigid and higher standards of IP protection than TRIPS compliance requires. In some respects these standards of protection are even higher than those the United States has been willing to accept domestically. One of the most eﬀective strategies being employed is that of so-called free trade agreements (FTAs) containing highly constraining and protectionist ‘TRIPS plus’ IP provisions that seem to be aimed to serve the interests of developed world corporations. The FTA negotiations and FTAs themselves seem to be neither wholly free, since the IP provisions in them are inherently protectionist, nor fair to the weaker negotiating parties. Unsurprisingly, business and pro-business interest groups have been very much behind the promotion of TRIPS plus measures. They are popular with the United States government and the European Commission not only because they work, but also because the United States and European economies, along with those of Japan and certain East Asian countries that tend also to favour TRIPS plus IP protection, are the major producers and exporters of patent, copyright and trade mark-protected goods and...
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