A cooperation agreement between WIPO and the WTO entered into force on January 1, 1996. The agreement provides for cooperation in three main areas: Basic Introduction to the Agreement on The Intellectual Property of LMOs (TRIPS) From the WTO, an introduction to the WTO, drafted for non-specialists. Article 63.2 of the TRIPS Agreement requires Members to notify laws and regulations relating to the subject matter of the Agreement (availability, scope, acquisition, enforcement and prevention of abuse of intellectual property rights). Importantly, the TRIPS Agreement is also a significant improvement over previous IPR agreements, as it has significant monitoring, enforcement and dispute settlement capabilities (Matthews, 2002:79-95). A TRIPS Council – to which all WTO Members belong – reviews national legislation and the implementation of the Agreement. In the event of serious disputes, each Member may ultimately refer the matter to the WTO Dispute Settlement Body, which has the power to impose trade sanctions to ensure compliance. Successful cases initiated by Ecuador and Brazil show that the dispute settlement mechanism works for both developed and developing countries (MIP, 2010). The TRIPS Agreement is therefore seen by its proponents as an enforceable global system for the protection of intellectual property rights, which plays an essential role in the modern global information society. By rewarding and promoting innovation, it facilitates international trade, fosters economic growth and enables technological progress and the dissemination of knowledge, which ultimately benefits both producers and users in developed and developing countries. Following the conclusion of the Uruguay Round of trade negotiations, the World Trade Organization entered into force on 1 January 1995. In addition to the Agreements on Goods (GATT) and Services (GATS), the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is one of the three pillars of the new multilateral trading system (WTO, 2008: 24). Although it is the first comprehensive and enforceable global agreement on intellectual property rights (IPR), it has been the subject of much criticism since its inception (Sell & Prakash, 2004). This document sets out the main arguments for and against the TRIPS Agreement, which gives a skeptical assessment of its legitimacy and effectiveness.
It begins with the main arguments in favour of the TRIPS Agreement before critically examining the recent history of the Agreement and intellectual property rights in general. The paper then examines the impact of the TRIPS Agreement on economic development and concludes that the criticisms of the agreement are largely convincing. In addition, Article 65(5) of the TRIPS Agreement provides that countries making use of the transition period should not roll back members that use a transitional period (in accordance with Article 65(1), (2), (3) or (4)) in order to ensure that changes to their laws, regulations and practices during the transition period do not result in a lower degree of compliance with the provisions of the Convention. In a press release, WTO Director-General Supachai Panitchpakdi called the decision a “historic agreement.” Panitchpakdi continued: “This proves once and for all that [the WTO] can deal with both humanitarian and trade issues. This particular issue was particularly difficult. The fact that WTO members have managed to find a compromise on such a complex issue is a testament to their goodwill. (5) The Heads of State and Government of the developed countries welcomed this decision as a dramatic development in international intellectual property law. Kofi Annan, Secretary-General of the United Nations, said that “the protection of intellectual property is the key to the development of new medicines, vaccines and diagnostics that are urgently needed for the health of the world`s poorest people. The United Nations fully supports the TRIPS Agreement, including the safeguards contained therein. (13) A wide range of medicinal products are developed and manufactured by pharmaceutical companies and the TRIPS Agreement requires a distinction to be made between patents for Viagra and patents for efavirenz. It is reasonable to demand full 20 years of intellectual property protection for `chemical toys` (17), but when it comes to life-saving life-saving life-saving medicines, certain concessions must be made in favour of promoting public health.
The term `essential medicinal product` should be defined in the context of the TRIPS Agreement, not in relation to a list of diseases, as has been proposed in the past, (18) but as a general description of what constitutes the difference between an essential and a non-essential medicinal product. The possible criteria for inclusion in such a category would be: availability of an alternative treatment, severity of the disease that the drug is intended to treat, and the ability of the patentee to adequately supply the markets that require the patented product. However, in order to benefit from separate definitions, separate provisions should be made, where appropriate. Ideally, two separate patent laws would exist in parallel; one concerns medicines considered essential and the other applies to non-essential medicines. The legitimacy and effectiveness of the TRIPS Agreement are clearly vulnerable to much criticism, particularly against developing countries. It should be noted that even prominent free trade advocates such as Martin Wolf (2005:217) criticize the “hypocrisy” of the TRIPS Agreement, seeing it as a rent-extraction tool for many developing countries with potentially devastating effects on education, public health and economic development. Even within the countries that seem to benefit most from the agreement, the benefits can only benefit certain parts of society, so “the real winners of the TRIPS Agreement are not the advanced countries, but the large corporations that pushed for its adoption” (Archibugi & Filippetti, 2010:144). The TRIPS Agreement has also failed to address policymakers` concerns as trade balances continue to erode, while the recent focus on private rights may even serve to hamper innovation and knowledge dissemination in developed countries in the long run (Hesse, 2002). While Archibugi & Filippetti (2010) warn against attaching too much importance to the TRIPS Agreement, it is clear that the agreement is not working as advertised. From a global perspective, it seems clear that adopting a single approach to intellectual property rights is totally inappropriate. A multi-tiered system, which provided for greater special and differential treatment according to the development needs of countries, would have been more appropriate.
However, it remains to be seen whether a major reform of the agreement is likely, given that the TRIPS Agreement is now firmly anchored in the WTO system. The TRIPS Agreement is the bright spot on the World Trade Organization`s punch bag. Just or not, the TRIPS agreement is supposed to be a monstrosity of modern capitalism. Noam Chomsky, a renowned academic, says: “There is nothing liberal about [the TRIPS agreement]. It is a highly protected system designed to ensure that private tyrannies, which are corporations, monopolize the technology and knowledge of the future. (14) Dr. Zafar Mirza, executive coordinator of The Network, a Pakistani health group, asks: “You talk about harmonizing trade policy, but no one says a word about harmonizing global socio-economic conditions. All countries are at different stages of development, how could they be subject to the same law? (15) These remarks contrast sharply with the remarks quoted above by senior officials. Why is one group so strongly opposed to the TRIPS Agreement, while another shows seemingly infallible support? The second part of this document attempts to reconcile these two points of view. The standard line in support of the TRIPS Agreement is based on the recognition of the current importance of the knowledge-based economy and private intellectual property as an important element of international trade (WTO, 2008:39).
Disagreements and lack of protection of intellectual property rights are important non-tariff barriers to trade, and the TRIPS Agreement is the result of the need for a strong multilateral framework to replace an ineffective patchwork of pre-existing IPR agreements [i] (Matthews, 2002:10-12). This is the first time that travel has introduced a global minimum standard for the protection of intellectual property, which all WTO members must respect. This includes copyrights, trademarks, industrial designs, geographical indications, patents, integrated circuit designs, trade secrets and anti-competitive contractual restrictions. Like other WTO agreements, it applies the basic principles of non-discrimination – most-favoured-nation treatment (no discrimination between trading partners) and national treatment (treating foreigners at the national level in the same way as their own nationals). Another advantage of the TRIPS Agreement is the “flexibility” offered to all Members in the interpretation of various articles of the Convention (Vandoren, 2001). Article 27.3, for example, allows members to exclude certain inventions and subject matter from patentability and allows for the protection of others, such as plant varieties, through compatible sui generis systems. The Doha Declaration reaffirms that developing countries have the right to grant compulsory licences or allow parallel imports of Article 31 medicines in order to address “national emergencies or other circumstances of extreme urgency” – and that public health crises such as HIV/AIDS, malaria and other epidemics can be declared as such (WTO, 2001). The TRIPS Agreement is the subject of criticism at several levels.
There are those who criticize the implementation of its provisions in sovereign countries, there are others who criticize the provisions of the TRIPS Agreement, and there are still others who criticize its very existence. Subsequent criticisms of the TRIPS Agreement will be formulated from the perspective of the following neutral principles in order to make the recommendations as relevant and applicable as possible to the current situation: Article 31 of the TRIPS Agreement sets out the conditions for the use of compulsory licences by Member States. .