From TRIPS to FTAs and Back: Re-Conceptualising the Role of a Multilateral IP Framework in a TRIPS-Plus World

Abstract

International intellectual property (IP) law has shifted focus after the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) set out comprehensive global standards about 20 years ago: since the mid-nineties, most international rule-making to protect and enforce IP rights comes in form of bilateral or regional agreements, here generally referred to as Free Trade Agreements (FTAs). As multilateral solutions have been increasingly difficult to agree upon, the world has witnessed an unprecedented proliferation of these FTAs. The wide range of issues covered by FTAs allow countries which are otherwise reluctant to agree to increases in IP protection to accept them because of trade-offs-such as obtaining (or avoid losing) preferential access to the markets of their FTA partners. Because of these trade-offs, most FTAs with IP provisions contain obligations on the protection and enforcement of IP that set significantly higher standards than those of the TRIPS Agreement, commonly referred to as 'TRIPS-plus' standards. Most commentators lament this development since TRIPS-plus IP obligations frequently undermine the ability of WTO Members to rely on the policy space and flexibilities TRIPS leaves to design national IP laws in light of domestic needs. UN human rights organs have considered such flexibilities critical for access to medicines and other essential goods. In this article, I will make a case for the continued relevance of the TRIPS Agreement as an overarching, multilateral framework for TRIPS-plus FTAs. My argument is based on the utilitarian objectives of IP protection that WTO Members have agreed to in Article 7 TRIPS. For the purpose of treaty law, these objectives form, together with the public interest principles expressed in Article 8 TRIPS, the agreement's object and purpose. In the 2001 Doha Declaration on TRIPS and Public Health, all WTO Members highlighted the principal role of these norms for interpreting and implementing TRIPS in a way that allows to give effect to public interests, such as access to medicines. The role of Articles 7 and 8 however goes beyond treaty interpretation and implementation: I argue that these norms are of integral character-such that provisions essential for giving effect to TRIPS' object and purpose cannot, as a matter of treaty law, be derogated from in bilateral or regional agreements amongst WTO Members. The article intends to show this with reference to the negotiation history of Articles 7 and 8, the utilitarian objectives and public interest principles for IP protection they set out, and the recognition a common object and purpose warrants under general international law principles on inter-se modifications of multilateral treaties. For TRIPS-plus obligations in FTAs, this means that they need to respect TRIPS provisions which are essential to give effect to the objectives and principles expressed in Articles 7 and 8. However, because these objectives and principles leave significant freedom to WTO Members in deciding on how to protect publi...

Intellectual Property and International Law: A Research Framework

“…Among the range of questions this form of fragmentation within the IP system raises, research for example has looked at potentially conflicting obligations some states have agreed vis-à-vis different trading partners, 47 as well as the relationship between FTAs and multilateral treaties such as TRIPS. 48 Those questions essentially concern the law of treaties, 49 and hence again benefit from a broader public international law perspective. The main concept of fragmentation however concerns the 'functional differentiation' and 'diversification' of international law into a wide range of legal orders or rulesystems that emanate from like-minded actors co-ordinating across borders in essentially all areas of human activity.…”

Intellectual property and its foundations: Using Art. 7 and 8 to address the legitimacy of the TRIPS

“…7 and the balance to be found among them require the capacity to respond to the national circumstances of Member States. IPR are territorial and Member States enjoy an important margin of appreciation in deciding how to implement the minimal standards prescribed by the TRIPS (Grosse Ruse‐Khan, , p. 79). Second, the TRIPS is part of the WTO legal framework and should be able to integrate general objectives of WTO law.…”

“…On the one hand, this prerogative to fulfill the state's duty of justice might be linked to the general “public interest” principle. For Grosse Ruse‐Khan, this is a broad version of the “right to regulate,” used here to protect public interests in a nondiscriminatory and proportional manner (Grosse Ruse‐Khan, , p. 69) . This framing rightly recalls that a state's capacity to secure justice, both internally and globally, is deeply linked to the democratic choices made by the citizens of this state (assuming that democratic decision‐making mechanisms exist).…”

“…A stronger thesis will be to argue that one specific justification is best suited to account for the TRIPS. Grosse Ruse‐Khan has for instance argued that the TRIPS should be understood along a utilitarian justification for IPRs (Grosse Ruse‐Khan, , p. 71 ff). However, as noted by Frankel, we should be cautious not to discard other justifications.…”

“…Another dimension could be the increased fragmentation of the international IP regime. See the classical piece by Drahos () for an attempt to address the risks associated with this fragmentation (Grosse Ruse‐Khan, ).…”