Interpreting And Implementing The Trips Agreement: Is It Fair?

201 Pages·2008·1.05 MB·English

by  Justin Malbon

Interpreting and Implementing the TRIPS
Agreement

Interpreting and
Implementing the
TRIPS Agreement
Is it Fair?
Edited by
Justin Malbon
Professor,Law School,Monash University,Australia
and
Charles Lawson
Senior Lecturer,Law School,Griffith University,Australia
Edward Elgar
Cheltenham,UK • Northampton,MA,USA
© The Editors and Contributors Severally 2008
All rights reserved.No part of this publication may be reproduced,stored in
a retrieval system or transmitted in any form or by any means,electronic,
mechanical or photocopying,recording,or otherwise without the prior
permission of the publisher.
Published by
Edward Elgar Publishing Limited
Glensanda House
Montpellier Parade
Cheltenham
Glos GL50 1UA
UK
Edward Elgar Publishing,Inc.
William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA
A catalogue record for this book
is available from the British Library
Library of Congress Control Number:2008927696
ISBN 978 1 84720 144 7
Printed and bound in Great Britain by MPG Books Ltd,Bodmin,Cornwall
Contents
List of contributors vi
List of abbreviations vii
1. Introduction 1
2. TRIPS as competitive and cooperative interpretation 6
Christopher Arup
3. Knowledge diplomacy and the new intellectual property
fundamentalism 31
Graham Dutfield
4. Last chance? Multilateralism,TRIPS and developing countries 46
Xu Yi-chong
5. Intellectual property protection after TRIPS:An Asian
experience 71
Jakkrit Kuanpoth
6. The development-balance of the TRIPS agreement and
enforcement of intellectual property rights 97
Ermias Tekeste Biadgleng
7. The evolution of the CBD’s development agenda that may
influence the interpretation and development of TRIPS 131
Charles Lawson and Jay Sanderson
8. TRIPS-plus treaty terms:Dealing with coercion 159
Justin Malbon
Index 185
v
Contributors
Christopher Arup– Professor,Monash University,Melbourne,Australia
Ermias Tekeste Biadgleng– Programme Officer,Programme on Innovation
and Access to Knowledge,the South Centre,Geneva,Switzerland
Graham Dutfield– Professor,Law School,Leeds University,Leeds,United
Kingdom
Jakkrit Kuanpoth – Senior Lecturer, Faculty of Law, University of
Wollongong,Australia
Charles Lawson – Senior Lecturer, Law School, Griffith University,
Australia
Justin Malbon– Professor,Law School,Monash University,Australia
Jay Sanderson– Senior Research Fellow,Australian Centre for Intellectual
Property in Agriculture,Brisbane,Australia
XuYi-chong – Professor,St Francis Xavier University,Canada
vi
Abbreviations
AB:(WTO) Appellate Body
ACP:African,Caribbean and Pacific Nations
ASEAN:Association of Southeast Asian Nations
AUSFTA:Australia-United States Free Trade Agreement
BGB:German Civil Code Bürgerliches Gesetzbuch
CBD:Convention on Biological Diversity
Cipro:Ciprofloxacin,a drug produced by Bayer
CISG:(UN) Convention on the International Sale of Goods
COP:Conference of the Parties to the CBD
CTE:(WTO) Committee on Trade and Environment
DSB:(WTO) Disputes Settlement Body
DSU:(WTO) Dispute Settlement Understanding
EC:European Commission
EPC:European Patent Convention
EPO:European Patent Office or Organisation
EU:European Union
FAO:(UN) Food and Agriculture Organization
FTA:Free Trade Area or Agreement
GATS:(WTO) General Agreement on Trade in Services
GATT:(WTO) General Agreement on Tariffs and Trade
GSP:Generalised System of Preferences
ICTSD:InternationalCentreforTradeandSustainableDevelopment
IP:Intellectual Property
IPR:Intellectual Property Rights
ISOC: (CBD) Inter-Sessional Meeting on the Operations of the
Convention
ISP:Internet Service Provider
ITU:International Telecommunications Union
LDC:Less or Least Developed Country
MFN:Most-Favoured Nation
MTN:Multilateral Trade Negotiations
NAFTA:North American Free Trade Agreement
NGO:Non-Governmental Organisation
OECD:Organisation for Economic Co-operation and Development
PCT:Patent Cooperation Treaty
vii
viii Interpreting and implementing the TRIPS agreement
RAM:Random Access Memory
RTA:Regional Trade Agreement(s)
SACU:Southern African Customs Union
SUSFTA:Singapore-United States Free Trade Agreement
TBT:Technical Barriers to Trade
TIFA:Trade and Investment Framework Agreement
TK:Traditional Knowledge
TPM:Technological Protection Measures
TRIMS:(WTO) Trade-Related Investment Measures agreement
TRIPS: (WTO) Trade-Related Aspects of Intellectual Property Rights
agreement
TRIPS-plus: Provisions in free trade agreements relating to intellectual
property rights that exceed TRIPS requirements
TUSFTA:proposed Thailand-United States Free Trade Agreement
UN:United Nations
UNCTAD:United Nations Conference on Trade and Development
UNDP:United Nations Development Program
UNIDROITPrinciples:UNIDROITPrinciplesofInternationalCommercial
Contracts
UPOV:International Union for the Protection of New Varieties of Plants
USTR:United States Trade Representative
VUSBTA:Vietnam-United States Free Trade Agreement
WCT:WIPO Copyright Treaty
WHO:World Health Organization
WIPO:World Intellectual Property Organization
WPPT:WIPO Performances and Phonogram Treaty
WTO:World Trade Organization
1. Introduction
The European Patent Office recently released its report Scenarios for the
Future addressing how intellectual property regimes might evolve by 2025
(European Patent Office 2007).While there seems little doubt that intellec-
tual property is now entrenched as a policy instrument intended to promote
creativity,invention and innovations that contribute to economic develop-
ment, the form and content of how this should be attained remains con-
tested. This edited collection enjoins the global intellectual property
debate by offering a range of perspectives about how the World Trade
Organization’s Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) is and should be interpreted and implemented.
Like the Scenarios for the Futurereport,the collection takes a broader view
of TRIPS’interpretation, recognising that to attain legitimacy and public
trust and support TRIPS implementation must accommodate a broad spec-
trum of views anddeliver real and meaningful economic developments to a
wider global community.
According to the European Patent Office Report,the patent system must
accommodate multiple players and stakeholders from different cultures
and ‘with different worldviews and aspirations who are working towards
different goals within a global environment’(European Patent Office 2007,
p. 11). The challenge, the Report notes, is to find ways of meeting the
specific developmental requirements of disparate nations at a global level,
‘because a system that blocks the access of poor people to essential drugs
or food will eventually lose its credibility’(European Patent Office 2007,
p.11).The Report also asks whether TRIPS is adaptable enough in the face
of changing global priorities in areas such as health and development,and
how TRIPS will cope as the balance of power creates antagonisms around
natural resources and energy as consumption rockets.It is evident that the
TRIPS debate is central to determining the way in which global intellectual
property rights are to be given effect.The agreement offers potential as a
means for promoting greater international equity and engagement with the
world economy or as a tool for wealthy nations to extract excessive rents
from poorer countries.This book engages in the debate by examining the
interpretive possibilities of the TRIPS’text as well as the external threats it
faces,particularly the threat of relative irrelevancy due to free trade agree-
ments containing TRIPS-plus terms.
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