The Origins and Structure of the TRIPS Agreement

Cornish, William; Liddell, Kathleen

doi:10.1007/978-3-662-48107-3_1

MPI Studies on Intellectual Property and Competition Law

2016

DOI: 10.1007/978-3-662-48107-3_1

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The Origins and Structure of the TRIPS Agreement

William Cornish

Kathleen Liddell

Abstract: The essays in this volume focus upon the Trade-Related Intellectual Property Agreement, which is an important element in the constitution and practice of the World Trade Organisation (WTO). Known to all as the TRIPS Agreement, it reached its twentieth anniversary in operative effect on January 1, 2015. It is unlikely that the text of the TRIPS Agreement will be substantially amended by the Member states of the WTO for at least another decade or two. Our contributors therefore take its current terms as a contin… Show more

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Cited by 5 publications

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Intellectual Property Harmonization in the Name of Trade

Lamping

2016

MPI Studies on Intellectual Property and Competition Law

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In order to enjoy credibility and acceptance among those involved, harmonization must be the outcome of a deliberative process with a defined goal, but without a predetermined solution. States need to be clear about the purpose of harmonization and the measures for achieving it; they need to agree about how to handle different needs, priorities and expectations; and they need to be prepared to accept compromises beyond their narrow self-interest. The TRIPS Agreement tells a different story. Countries have learned to live with it, but nobody is entirely happy. In order to make international law more inclusive and responsive to different socio-economic conditions and needs, the TRIPS Agreement needs to be reconceptualized as a market framework regulation that promotes competition and innovation but also allows states to regulate the use of intellectual property in ways that grow out of, and comply with, their own traditions and interests. This ultimately means that the marriage of convenience between trade and intellectual property may have to come to an end

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Intellectual Property Harmonization in the Name of Trade

Lamping

2016

MPI Studies on Intellectual Property and Competition Law

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TRIPS and Competition Rules: From Transfer of Technology to Innovation Policy

Bakhoum

Gallego

2016

MPI Studies on Intellectual Property and Competition Law

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The competition-related provisions in the TRIPS Agreement were very much influenced by the context in which the Agreement was concluded. The inclusion of competition provisions served a specific purpose. Competition law was basically seen as a tool to facilitate the transfer of technology. Twenty years after the entry into force of TRIPS, the legal landscape within which IPRs are exercised has experienced tremendous changes on the IP front, as well as on the competition law front. IP protection tends to be raised beyond the minimum standards of TRIPS, questionable protection has been granted specially in the field of patents, enforcement mechanisms and remedies have been strengthened and IP portfolios are strategically used in the markets. From an international perspective, higher IP standards have been exported through bilateral and regional trade agreements. Competition law is developing at a very fast speed, especially in emerging and developing economies. Moreover, competition law and IP laws are increasingly understood as being complementary to each other. A strict and “conflict oriented” reading of TRIPS’ competition provisions does not help to cope with the new strategies of innovation and the new forms of use of IPRs. We argue in this paper that a flexible reading of the competition-related provisions in TRIPS provides enough room for applying competition law as an innovation instrument. Hence, the application of competition law to combat IP-related restraints of competition that inhibit innovation would be covered by the rationale of the TRIPS Agreement just as much as an application of competition law aimed at enhancing access to and dissemination of IP-protected products

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The Political Foundations of TRIPS Revisited

Ullrich

2016

MPI Studies on Intellectual Property and Competition Law

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The contribution revisits the political foundations of the TRIPS Agreement with a view to determine its role and functioning under the changed socio-economic geopolitical conditions of today’s world economic order. The Agreement, which was concluded as part of and under the pressure of the GATT/WTO trade package, provides for internationally uniform standards of adequate protection of intellectual property in all States Members of the WTO, regardless of the differences of their economic development, industrial structures and social needs. As a global “deep trade agreement”, which governs not only cross border trade, but Members’ internal markets, it raises issues both of its compatibility with the principle of comparative advantage underlying international trade, and of the legitimacy of its interfering with domestic market regulation. The flexibilities, which have been built into the TRIPS Agreement, may mitigate concerns. However, the growing new bi- and pluri-lateralism of regional free trade agreements with their asymmetric intellectual property rules, the re-distribution of economic power among the developed and the emerging or rather the emerged countries, and the nature of strategic competition between globally acting multinational corporations have changed the rules of the game. The task ahead is to re-conceptualize the TRIPS Agreement as a framework regulation for national innovation markets, which at the same time are integrated into global markets to varying degrees. As such, it would form part of an open international economic law, which, in its turn, needs to be developed in order to overcome the rigid and already fading paradigms of international trade law. Only such a vision will help to accommodate intellectual property protection with the large diversity of industrial policies and with the many intellectual property-related public interests and policies, which WTO Members may or do adhere to

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The Origins and Structure of the TRIPS Agreement

Cited by 5 publications

References 21 publications

Intellectual Property Harmonization in the Name of Trade

Intellectual Property Harmonization in the Name of Trade

TRIPS and Competition Rules: From Transfer of Technology to Innovation Policy

The Political Foundations of TRIPS Revisited

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