Trips-Plus Provisions in Ftas: Recent Trends

Abstract

While many believed the introduction of minimum standards and greater enforcement for intellectual property rights (IPRs) through the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) sufficiently placated the major industrialized nations' demands for strong IPRs, it now appears that this agreement only served as another step in the pursuit of stronger IPRs. In fact, having failed to achieve all they sought in the TRIPS negotiations, the US and other developed nations almost immediately began negotiating for the inclusion of more protectable subject matter, broader and more extensive coverage, increased harmonization, stronger enforcement mechanisms, and a weakening of 'flexibilities' and 'special and differential treatment' granted to developing and least developed countries in the TRIPS.

Having unsuccessfully attempted to strengthen IPRs in TRIPS in the years following its implementation, and following the spectacular failure of the Seattle Ministerial in 1999, these nations shifted the focus of their efforts from the multilateral forum to bilateral and regional Free Trade Agreements (FTAs). Thus, while many developing countries were still struggling to implement their obligations under TRIPS, developed countries were already raising the level of IPRs through FTAs. In this regard, the US is the clear leader in promoting higher standards of intellectual property (IP) protection than required in TRIPS (so called TRIPS-Plus provisions).

This chapter does not attempt to provide a comprehensive analysis of the history of IPRs in the international trading system. Nor does it attempt to analyse all present negotiations involving TRIPS-Plus provisions. Instead, it seeks to make two more limited points: first, that TRIPS should never have been viewed as the final statement on international IPRs, but rather as merely a stage (albeit an important one) in a larger cycle alternating between bilateral, regional, and multilateral forums; and second, that the world has moved beyond the multilateral phase and into a bilateral phase; a phase which is seeing the negotiation increased IPRs and placing increased obligations on signatories.

This chapter focuses on patents as one particular form of intellectual property to demonstrate that a rotating cycle between bilateralism, regionalism and multilateralism not only exists but also strengthens IPRs and obligations of nations. This is not to underemphasize the importance and potential consequences of TRIPS-Plus provisions in other areas of IP, such as plant varieties protection, breeders' protection, copyright, trademark, technological protection measures, and geographical protections and enforcement mechanisms. These are all important areas being re-negotiated bilaterally with the introduction of every TRIPS-Plus provision.

Keywords: international trade, intellectual property, TRIPS, TRIPS-Plus, free trade agreements, patents, developing countries

JEL Classification: K33, K39, F10, F13, I18