TRIPS may evolve to keep pace with modern IP concerns

By Dugie Standeford and Kaitlin Mara – Reprinted with permission from Intellectual Property Watch, October 24, 2008 edition

The World Trade Organization Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS) is being “recalibrated” as developing and developed countries challenge old assumptions, Vanderbilt University law professor Daniel Gervais said this week. The first international accord to link intellectual property and trade has entered its third “narrative,” in which IP is no longer isolated from other rights but is part of national innovation strategy, Gervais said.
Gervais delivered the Fourth Annual Finnegan and Henderson Distinguished Lecture of IP at the American University Washington College of Law on 21 October. His background includes stints at the WTO and World Intellectual Property Organization.

TRIPS 1.0, the “addition narrative,” held that adding IP to national law would produce good results by fighting piracy, creating a “middle class” of nations in the developing world, and spurring economic development, Gervais said. TRIPS 2.0, the “subtraction narrative,” began when patents on HIV/AIDS and malaria drugs emerged in Brazil and elsewhere in the developing world, he said. When drug companies failed to handle the situation well, the analysis of IP policy switched from its benefits to its negatives, including “rent extraction” from poorer countries by richer nations.
Empirical data on the impact of IP on developing countries emerged that showed that there are different kinds of IP and users, that IP “is not woo-woo” (magic), and that countries would have to do more than comply with TRIPS to receive its benefits, Gervais said. The problem is that while IP is a precursor to foreign direct investment, FDI itself does not guarantee innovation.

That led to TRIPS 3.0, the “calibration narrative” that asks whether IP can be viewed as a trade right to accommodate the differences between the “biodiversity” of products and users (pirates and consumers, for instance).

But IP is now one of many rights protected by various trade agreements. The WTO Appellate Body says TRIPS cannot be read in “clinical isolation” from other international law, which seems to mean that non-IP rights – such as access to knowledge and the copyright moral right – can be brought in to interpret WTO agreements, Gervais said. Traditional knowledge has “huge heft” in developing countries seeking to counter IP rights, he said.

The calibration effort goes beyond what TRIPS was thought to be about – namely, standardising IP, Gervais said. Developing nations now say they want national policies to close the gap between IP law and innovation. The challenge is not to implement TRIPS mechanically in order to stay out of trouble but as part of a national innovation strategy. At the same time, the West is also recalibrating IP, although in a different way, by questioning patent law excesses, software patents and the US Digital Millennium Copyright Act (which strengthened rightsholders positions).

Developed and developing countries are beginning to question innovation assumptions as well, Gervais said. What is the state’s role in innovation? Are the interests of multinational corporations those of the United States and the European Union? Does the recent American and European focus on piracy mean their IP priorities and roles have changed? Has TRIPS’ innovation potential been removed? And more profoundly: Can innovation thrive only in capitalist (read democratic) societies? Is the US form of capitalism the best?

Innovation must be at the top of the US agenda in the current environment, Gervais said. America now competes with new entrants for innovation and can no longer assume that it can remain a unilateral player in IP. Future negotiations will not result in “pure more-IP agreements” because some developing countries want a stronger voice on innovation policy while others want to bring in other rights to reshape IP altogether, he said.

WIPO may have lost some credibility but in this complex, new environment its Development Agenda could close the gap between IP norms and innovation, Gervais said. He urged it to take the lead on innovative policy research. TRIPS amendments are unlikely, but the WTO could rely more on ministerial declarations to bring flexibility to trade accords, he said.

Reprinted with permission from Intellectual Property Watch, Oct. 24, 2008

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