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…