Enhancing Global Innovation Policy: The Role of WIPO and Its Conventions in Interpreting the TRIPS Agreement
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Description
In recent years, it has become clear that the TRIPS regime is in trouble. Although lawmaking in the World Trade Organization (WTO) has essentially stalled, there is a continuing need to recalibrate the rules applicable to knowledge production. For developing countries, entry into the WTO was a compromise. When intellectual property law-making was centered in the World Intellectual Property Organization (WIPO), these nations resisted attempts to increase the level of protection. That changed, however, with the inclusion of intellectual property in negotiations over trade: in return for access to markets in the developed world, developing countries were required to enact and enforce new intellectual property laws. While the TRIPS Agreement tried to ease their conversion to greater protection, the transitional provisions it included proved to be largely illusory: the time periods for compliance were too short; the promises of technology transfer and technical assistance, inadequately realized. Paradoxically, for some developing countries, the WTO regime can also be insufficiently protective: TRIPS rights are structured for the types of knowledge goods generated in the North, but do not cover the traditional knowledge, folklore, and natural endowments that constitute much of the informational wealth of the South. To be sure, the Doha Declaration and subsequent actions dealt with a few of the concerns of developing countries, but unless more radical accommodations are found, many WTO members may languish in a social and economic backwater, paying high prices for information products without the ability to fully exploit their own creative capacities. For developed nations, the problems are not very different, for there too TRIPS now offers both too much and too little protection. The Agreement was, after all, crafted for a particular era—an era that largely predated Internet commerce in trademarked goods, distribution of digitized copyrighted materials, and the informatics revolution within the patent industries. The explosion in global marketing puts pressure on the territoriality principle embedded in TRIPS, arguably leading to underprotection, particularly of works distributed electronically. At the same time, however, the emergence of new intellectual opportunities and enterprises alters the economics of information production. TRIPS’ strong commitment to a particular vision of proprietary rights—and, on the patents side, to technological neutrality—makes it difficult to revise the law to deal with such matters as the thickets of rights created in the software and biotechnological sectors, with open source innovation, and with new opportunities for serial and collaborative production. In theory, the problems facing WTO members could be resolved through new lawmaking. This could take a number of forms. For instance, a ‘bottom up’ approach would give states greater flexibility to adopt local laws to deal with the different problems they each encounter. As common solutions emerge, the Agreement could be modified to reflect these developments. Alternatively, solutions could originate at the international level; after codification into the Agreement, they would then ‘trickle down’ as member states transposed their new obligations into domestic law. For a variety of reasons, however, neither of these approaches has materialized. In part, the problem is simply stasis in the WTO. In part, there is a disconnect between the WTO’s objective of enhancing economic welfare through free trade and the values embodied in intellectual property law. For example, because of concerns over how liberalizing the rules on compulsory licensing would affect the market, even the one concrete achievement of the Doha Round—assuring developing countries access to essential medicines—has yet to be fully implemented. As many have noted, the WTO’s adjudicatory system has compensated somewhat for the lack of activity in the Ministerial Conference and the General Council. But for a number of reasons, it is not a substitute for a well-functioning ‘legislative body’. It cannot replicate the top-down approach of an international agreement on substantive norms because, under the Understanding for Dispute Settlement (DSU), the decisions by the Dispute Resolution Board (DSB) may not ‘diminish the rights and obligations provided in the covered agreements’. And the institutional character of the DSB does not encourage disregard of this formal limit on judicial activism. These constraints, both formal and institutional, appear to allow the DSB to complement a bottom-up approach because the TRIPS Agreement ostensibly leaves members with substantial room to maneuver. Members can, for example, increase the level of domestic protection. But as we have explained in other writing, the DSB has interpreted TRIPS flexibilities so narrowly that member states cannot otherwise adapt their laws to new circumstances.
Source Publication
Research Handbook on the Protection of Intellectual Property under WTO Rules
Source Editors/Authors
Carlos M. Correa
Publication Date
2010
Recommended Citation
Dinwoodie, Graeme B. and Dreyfuss, Rochelle C., "Enhancing Global Innovation Policy: The Role of WIPO and Its Conventions in Interpreting the TRIPS Agreement" (2010). Faculty Chapters. 1184.
https://gretchen.law.nyu.edu/fac-chapt/1184
