INTELLECTUAL PROPERTY

Intellectual Property

Intellectual Property

I. Introduction

One of the most significant developments of the Uruguay Round of Trade Negotiations (1986-94) was the inclusion of intellectual property rights (IPRs) issues on the agenda of the multilateral trading system. The resulting Agreement on Trade-Related Intellectual Property Rights (TRIPS) is one of three pillar agreements, setting out the legal framework in which the World Trade Organization (WTO) has operated since the end of the Uruguay Round.

For the multilateral trading system, TRIPS marked the departure from narrow negotiations on border measures such as tariffs and quotas toward the establishment of multilateral rules for trade-affecting measures beyond borders. This move reflected underlying trends in international commerce. Due to the growth of trade in knowledge and information-intensive goods, the economic implications of imitation, copying, and counterfeiting had in many industries become at least as relevant for international commerce as conventional border restrictions to trade.

Yet the TRIPS negotiations on intellectual property were marked by significant North-South differences. Developed countries, which host the world's largest intellectual property-producing industries, were the key advocates for comprehensive minimum standards of protection and enforcement of IPRs. By contrast, many developing countries, which see themselves mostly as a consumer of intellectual property, felt that stronger standards of protection would serve to limit access to new technologies and products, thereby undermining poor countries' development prospects. Not surprisingly, the TRIPS Agreement remains one of the most controversial agreements of the WTO.

This short paper seeks to provide an introduction to the main instruments used to protect intellectual property (Section II), the key economic trade-offs of stronger IPRs (Section III), the basic provisions of the TRIPS Agreement (Section IV), and recent TRIPS developments affecting access to medicines in developing countries (Section V). The paper draws heavily from Primo Braga, Fink, and Sepulveda (2000), Fink and Primo Braga (2001), and Fink (2003). A more extensive treatment of many issues raised here can be found in these papers, as well as in Maskus (2000) and World Bank (2001).

A. The Implications of TRIPS: ethics, health and human rights

The TRIPS Agreement places too much emphasis on rights and not enough on the responsibilities of intellectual property holders. While the TRIPS Agreement certainly identi.es the need to balance rights with obligations, it gives no guidance on how to achieve this. On the one hand, the Agreement sets out, in considerable detail, the content of intellectual property rights—the requirements for grant, the duration of protection and the modes of enforcement. On the other hand, it only alludes to the obligations necessary to balance these rights—such as the prevention of anti-competitive practices, or the use of compulsory licensing. the thrust of the TRIPS Agreement is essentially economic — effectively to the neglect of social objectives. While the principles of the agreement, and the requirements relevant to patents allow measures to protect public health, they are mentioned as exceptions to the rule rather than as the rule itself. The protection of human rights should not be left to chance — a by-product of the ...