Trips Agreement Objectives

Arti­cle 40 of the TRIPS Agree­ment pro­vides that cer­tain prac­tices or con­di­tions relat­ing to intel­lec­tual prop­erty rights that restrict com­pe­ti­tion may have neg­a­tive effects on trade and impede the trans­fer and dis­sem­i­na­tion of tech­nol­ogy (para­graph 1). In accor­dance with the other pro­vi­sions of the Agree­ment, Mem­ber States may take appro­pri­ate mea­sures to pre­vent or con­trol abu­sive and anti-competitive IPR licens­ing prac­tices (para­graph 2). The Agree­ment pro­vides for a mech­a­nism where by which a coun­try wish­ing to com­bat prac­tices in which com­pa­nies of another Mem­ber State par­tic­i­pates shall enter into con­sul­ta­tions with that other Mem­ber State and pro­vide non-confidential infor­ma­tion pub­licly avail­able and rel­e­vant to the mat­ter in ques­tion and other infor­ma­tion at its dis­posal, sub­ject to national law and the con­clu­sion of sat­is­fac­tory agree­ments on com­pli­ance with its con­fi­den­tial­ity by the require­ment. (para­graph 3). Sim­i­larly, a coun­try whose com­pa­nies are sub­ject to such mea­sures in another Mem­ber State may enter into con­sul­ta­tions with that Mem­ber (para­graph 4). Arti­cle 7 (Prin­ci­ples) and Arti­cle 8 (Objec­tives) are at the fore­front of the WTO TRIPS text, but are poorly rep­re­sented in the Dis­pute Set­tle­ment Body‘s (DSB) argu­ments. This gap is accen­tu­ated by tak­ing into account three key fac­tors. First, the rev­o­lu­tion­ary step of TRIPS nego­tia­tors to include com­pre­hen­sive mem­o­randa of under­stand­ing in the oper­a­tional text. Sec­ondly, the strength­en­ing of these pro­vi­sions in the 2001 Doha Dec­la­ra­tion on TRIPS and Pub­lic Health.

Finally, the lit­eral rep­e­ti­tion of these pro­vi­sions in other inter­na­tional intel­lec­tual prop­erty instru­ments, includ­ing the Trans-Pacific Part­ner­ship, the Anti-Counterfeiting Trade Agree­ment and WIPO‘s Devel­op­ment Pro­gram. Taken together, these fac­tors require fur­ther study of the mean­ing and appli­ca­tion of Arti­cles 7 and 8. This arti­cle aims to con­tribute to this study by expos­ing the dif­fer­ent ele­ments of each pro­vi­sion to a detailed analy­sis of the text. Neces­sity, ade­quacy, con­sis­tency and good faith will prove to be legal prin­ci­ples set out in Arti­cles 7 and 8. More­over, these pro­vi­sions recog­nise a cen­tral prin­ci­ple of inter­pre­ta­tion — that of national reg­u­la­tory auton­omy. This implies, but goes beyond, respect for national polit­i­cal deci­sions, the recog­ni­tion of a state-centred bench­mark­ing method, which must guide the appli­ca­tion of TRIPS and any other agree­ment in which it is inte­grated. Since the entry into force of TRIPS, it has been the sub­ject of crit­i­cism from devel­op­ing coun­tries, sci­en­tists and non-governmental orga­ni­za­tions. While some of this crit­i­cism is directed at the WTO in gen­eral, many pro­po­nents of trade lib­er­al­iza­tion also view TRIPS as bad policy…