The Influence of Preferential Trade Agreements on the Implementation of Intellectual Property Rights in Developing Countries: A First Look

Abstract

Preferential Trade Agreements (PTAs) have acquired greater importance in recent years as the stalemate in the multilateral trading negotiations persists. The intellectual property provisions in these agreements - often called “TRIPS-plus” as they go beyond the requirements of the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) - have received considerable attention particularly in relation to development and public interest objectives.

However, less is known about the actual implementation of IP obligations in PTAs. This issue paper aims to bridge this research gap by analyzing how PTAs have influenced IP regimes in developing countries and the challenges these countries face in implementing these obligations.

In this regard, the paper finds that PTAs are clearly drivers of significant IP reform in developing countries and that the implementation challenge for these countries is real and complex. The challenge does not only arise because of the higher standards of IPR protection under PTAs but also because of the sometimes narrow scope for interpretation when transposing these obligations into domestic law. In addition, the implementation itself, whether through literal transposition of the law or through adaptation, leads to different outcome depending on the implementing country’s legal system and how stakeholders respond to the changes.

The paper posits that implementation does not stop with the transposition of international trade obligations into the domestic legal system. Rather, it continues with the need to modify laws and enforcement practices. In essence, PTAs become “live” agreements that must be actively managed over time.

One lesson that emerges is that countries engaged in PTAs negotiations should bear in mind the possible implementation challenges and the considerations set forth in the paper. After signing the PTAs, the implementation process requires a detailed examination of the nature of obligations and adequate use of any flexibility available and, where necessary, further elaboration of concepts and legal terms.

Finally, the paper identifies the need for further country-specific examination and consideration of ways to manage the implementation and transposition of PTA standards into domestic law, adopting additional complementary mechanism, as well as addressing institutional capacity constraints. The implementation by developed country partners of the provisions that might be beneficial to developing countries, such as the technology transfer provisions in the EU-CARIFORUM agreement, also requires further assessment.

Keywords: Preferential Trade Agreements, Regionalism, Trade, Intellectual Property

JEL Classification: F13