Proposals for Reform of TRIPS
Edited by Annette Kur
Chapter 4: Assessing the Need for a General Public Interest Exception in the TRIPS Agreement
4. Assessing the need for a general public interest exception in the TRIPS Agreement Henning Grosse Ruse-Khan* This chapter examines the scope of the policy space to integrate other economic, social and environmental concerns under the World Trade Organization’s (WTO) Agreement on Trade Related Aspects of Intellectual Property Protection (TRIPS).1 It does this by comparing the amount of discretion available for domestic public interest measures in the two other core areas of WTO regulation: trade in goods and services. The chapter concludes that the notion of general exceptions under the General Agreement on Tariffs and Trade (GATT)2 and under the General Agreement on Trade in Services (GATS)3 finds no equivalence in TRIPS. Still, an equivalent amount of policy space can be achieved: by taking the TRIPS balancing objective and the WTO sustainable development objective seriously in the process of TRIPS interpretation and implementation. This opens significant room to integrate economic, social and environmental concerns in intellectual property (IP) regulation and decision-making. It coincides with the approach all WTO Members agreed to in para.4, 5 (a) of the Doha Declaration on the TRIPS Agreement and Public Health. As I have examined elsewhere, TRIPS, GATT and GATS can have an * This chapter is a condensed version of a Research Paper prepared for the South Centre. I wish to thank Xuan Li, Hanns Ullrich, as well as Annette Kur, Marianne Levin and all other members of the IP in Transition project for their comments on earlier drafts. All errors remain...
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