Merits of the Implementation of Trips Agreement vis-a-vis IP Policy - Essay Example

Merits of the Implementation of Trips Agreement Vis-À-Vis IP Policy Student’s Name: Instructor’s Name: Course Code and Name: University: Date of Submission: Introduction The word TRIPS is an acronym for the words Agreements on Trade-Related Aspects of Intellectual Property Rights, a component agreement of the World Trade Organization, the WTO.1 The WTO, the successor in title to the General Agreements on Trade and Tariffs, GATT 1947 was negotiated between 1986 and 1994 during the Uruguay Round of the world trade negotiations.2 The WTO Agreements did come into operation on 1 January 1995 based on the provisions of Article XIV of the WTO Agreement.3 The three WTO constitutive treaties, together with the other Agreements, were signed on 15 April 1994 at Marrakech in Morocco.4 Besides the TRIPs treaty, the other two WTO constitutive treaties are the General Agreement on Trade and Tariffs, GATT 1994 together with its Annexes,5 and the General Agreement on Trade in Services, GATS.6 The TRIPs treaty was necessitated by the need to put in place an international legal framework which would not only harmonize, but also strengthen the intellectual property laws of the signatory states.7 The TRIPs treaty was to harmonize the intellectual property laws of the signatory states by providing a single international framework law for all intellectual property laws. The treaty achieved this particular objective through the provisions of its Article 2.8 Within the article, TRIPs incorporates all the other pre-existing agreements relating to intellectual property which had been developed and were then being administered through the framework of the World Intellectual Property Organization, WIPO.9 The previous agreements that governed world intellectual property rights which were later to be incorporated into TRIPs treaty included the 1967 Paris Convention on Industrial Property and Patents, the 1971 Berne Convention on Copyrights and the 1989 Washington treaty on lay-out designs of Integrated Circuits, ICs.10 Over the recent past, a number of states have sought to develop intellectual property policies to help address their unique intellectual property rights situations, especially with the challenges thrust upon them through globalization. This research paper contends that in this time and age, given the state of the world’s technological development and the WTO requirements, the role of intellectual property policy is quite irrelevant. Consequently, it is only prudent that each state should only comply with the TRIPs Agreement in order to meet the challenges that have arisen over the years with respect to intellectual property issues globally. The Trips Agreement In a brief overview, the TRIPs Agreement consists of seven parts; each part addressing different but related intellectual property rights issues. The first part deals with the general provisions and the basic principles that are to govern intellectual property rights within the states. Within the second part, the treaty considers the standards relating to the availability, scope and the use of intellectual property rights with the third part dealing with the enforcement of intellectual property rights. Part IV of the treaty addresses issues touching upon the acquisition and maintenance of intellectual property rights among the state parties. Taking cognizance of the real likelihood disputes arising from the implementation of the treaty, the fifth part of the document deals with dispute prevention and settlement. The sixth part is concerned with transitional arrangements while the last part being on institutional arrangements within the treaty arrangement. Intellectual property rights policy vis-à-vis trips In order that this research paper illustrates the outstated objective, it is to discuss the positions that each of the two would portend for a state. The pros and cons that the implications of each would have for the state are then to be compared, and contrasted through discussion. A state intellectual property policy is the body of principles relating to intellectual property that a state has officially chosen, and sanctioned, so as to guide its activities within the realm of intellectual property.11 The need for a policy framework is usually out of the need for the formulation of the relevant legal framework to guide the area in question.12 A policy framework is therefore important in enabling a state to harness, and therefore develop the necessary guidelines that ensure its unique interests are captured in its development framework and initiatives. The need for, and ultimate development of intellectual property rights policy may be protectionist to some extent. On the other hand, a state’s compliance with TRIPs is predicated upon the requirements of the WTO. The implementation of the various WTO constitutive treaties and agreements are supposed to be conducted on the basis of certain well laid down principles. Generally, there are usually a number of principles that govern international trade law both within and outside the WTO framework. The most common of these include, though not related to, the most favoured nation (MFN), National Treatment (NT) and the Tariffs only principle.13 The Most Favored Nation and National Treatment principles are sometimes collectively referred to as the principles of non-discrimination.14 However, with respect to intellectual property rights, the only applicable principles are the Most Favored Nation and the National Treatment.15 The Tariffs only principle is not applicable out of the fact that it only relates to goods. Its applicability therefore leaves out both the GATS and TRIPs Agreements which respectively deal with international trade in services and intellectual property rights. Most Favored Nation Principle Under intellectual property rights within the TRIPs framework as espoused in Article 4 of Part I, the principle of Most Favored Nation refers to the practice where a state party automatically extends without any conditions the same protection, advantage, favour, privilege or immunity that it accords the nationals of one member to all the nationals of all the other member countries.16 The MFN provisions do therefore require that states protect the intellectual property rights for the nationals of all member countries without any form of discrimination. Notwithstanding the MFN requirements however, the TRIPs Agreement has provided exceptional circumstances under which the principle is not to apply.17 The circumstances in question include agreements of judicial assistance or law enforcement of any general nature that is not confined to intellectual property protection,18 any protections which had been granted in line with either the Berne or Rome Conventions that had regard to intellectual property protection for specific countries, rather than general national protection.19 Other than the above circumstances, the other scenario where the application of the MFN principle could be excluded is with respect to agreements relating to the rights of performers and producers of phonograms which are not provided for under the TRIPs Agreement.20 Finally, the MFN principles are not to apply in international agreements relating to intellectual property if the agreements in question are those that entered into force before the WTO Agreement.21 Thus, saving for these four circumstances that have been expressly laid out, the MFN principle is to apply within all the other international trade obligations that take place under the TRIPs Agreement. National Treatment Principle Within any treaty, a National Treatment clause is a clause that obligates states to accord foreigners the same kind of treatment, and protection that it provides to its own citizens. The idea behind its formulation was out of the need to allow states to develop and also enforce its own laws while being able to meet the international demands for protection.22 The principle of NT has therefore been deemed as a suitable mechanism that ensures international protection in international trade transactions without harmonization of the international legal framework.23 The TRIPs Agreement provides for this principle under Article 3 of Part I. this principle, like the MFN, is a principle of non-discrimination. As a trade policy, the principle requires a state to accord the intellectual property rights of citizens of other states the same kind of treatment it accords to her own citizens.24 Under the provisions of this principle, the state is required to provide for the said protections and favours without requiring any formal treaties of reciprocity from the states to which it accords protection to their citizens. The state parties to the WTO can also be excepted from the application of the principle of National Treatment under certain circumstances. The possible circumstances under which state parties may avail themselves of such exceptions are provided for in Article 3(1). Such exceptions are permitted as provided for under the 1967 Paris Convention and the 1971 Berne Convention. Further, the Article 3(1) provides that the application of the principle with respect to the protection for performers, producers of phonograms and broadcasting organizations is only to the extent that the Agreement provides for. Suffice it to say therefore that the principle of National Treatment would never apply in circumstances outside the scope laid out under the TRIPs Agreement. Merits of Trips Agreement Over States’ IP Policies The question as to whether implementation of the TRIPs Agreement would ultimately be more beneficial to the state parties than the development of their own individual Intellectual Property policies turns out to be the comparison of the pros and cons for each of the two. The discussion therefore turns its focus towards this end by first considering the merits that accrue to state parties of the WTO. Firstly, the implementation of the TRIPs Agreement is said to facilitate the constructive resolution of disputes among the member countries.25 Observers have over the years pointed out that membership into the WTO enables states to utilize the very elaborate WTO dispute resolution mechanism in order to resolve the disputes among themselves. This dispute resolution avenue has been pointed out as radically departing from that had been available under the GATT 1947 arrangement that was largely skewed in favour of the developed countries at the expense of their less developed counterparts.26 The constructive resolution of disputes is enabled through the requirement of transparency in a state party’s dealings.27 For transparency to be assured, a state is required to publish any judicial decisions and administrative rulings for other WTO members to become acquainted with the same. It is a further requirement that in the event publication of the same is not practicable, the judicial decisions and administrative rulings should then be made available in a national language that would serve to alert the other governments of the developments towards the same end.28 Towards this end of need for transparency, every government is required to inform the other governments of any already existing agreements between itself and any other government or government agency, i.e. pre-existing agreements. An attendant advantage that derives from the obligation towards transparency among WTO member states is to the effect that members are not obliged to disclose any confidential information that would in some way jeopardize their economic interests.29 The kinds of confidential information that are excepted under this provision are those whose disclosure may impede law enforcement, or be contrary to public interest or even prejudice a state’s legitimate commercial interests; which interests may either be of public or private nature. A second advantage that has been pointed out as availing to states from the implementation of the TRIPs Agreement is that membership to the WTO same enhances economic growth among the state parties.30 The argument for the need for the implementation of the WTO Agreement is to the effect that such an implementation promotes free trade among the member countries. The promotion of free trade invariably increases a state’s foreign exchange earnings, hence providing a much needed boost to the country’s economic development.31 Besides the foregoing, implementation of the TRIPs Agreement, through the WTO membership, has also been noted as being a catalyst towards the advancement of peaceful co-existence among states.32 This is more so in light of the fact that all international trade transactions require to be conducted in a peaceful environment. State parties to the WTO treaty, no doubt, have an obligation to ensure they avoid souring relations among themselves as the same would jeopardize the flow of trade amongst themselves. All forms of trade therefore, intellectual property, included, play very central roles in ensuring there is comity between states. This, it can thus be seen, goes a long way in promoting peaceful co-existence between the states, hence international peace. Demerits of the Trips Agreement Notwithstanding the already outlined advantages that emanate from the implementation of the TRIPs Agreements, there are however certain demerits that are inherent with WTO membership. Some of these include the fact that such implementation causes unemployment, especially among the developing countries, as the bug of globalization bites.33 It has been pointed out that the fact of the influx of cheaper forms of intellectual property products and services among the developing countries from their more developed counterparts is a drawback towards the development of intellectual property among the low economy countries. Although the consumers have been the biggest beneficiaries of the reduced costs, the same has however had a demotivating effect on the morale of producers within such countries.34 A second disadvantage that the TRIPs Agreement implementation, through WTO membership causes is the fact that the process of dispute resolution is quite costly, especially to the less developed countries. Authorities have pointed out that the dispute resolution body of the WTO, DSB is quite costly, hence is an exclusive body for the big economy member states.35 This has thus caused the exclusion of the small economy countries from engaging in the process of dispute resolution, notwithstanding the fact of the process’s structured nature. Aside from the two, it has also been argued, albeit controversially, that WTO engagement is a recipe for the violation of the principle of state sovereignty. It is pointed out the unconditional implementation of the TRIPs Agreements, and indeed all the other WTO treaties, causes some countries to breach their own legal provisions in order for them to comply with the international trade obligations.36 Besides, the application of such international trade principles as MFN and NT may infringe upon a state’s sovereignty from the point of view of the fact that the same does not accord states the opportunity to domesticate the laws through their own legislative processes. This is especially so for states which practice dualism in their co-opting of treaties. Through the principle of NT therefore, a treaty becomes applicable into a country’s legal system but by short-circuiting its legislature; which act infringes on the country’s legislative sovereignty. CONCLUSION Given the foregoing discussions, the question that comes to mind therefore is on which of the two systems would be more beneficial to a state, i.e. an individual IP policy or implementation of the TRIPs Agreement. The implementation of the TRIPs Agreements, the discussion has illustrated, offers certain positive and even negative effects to states in their enhancement of intellectual property development. However, the negative impacts notwithstanding, it has been ably illustrated that the benefits that come with TRIPs Agreement implementation far much outweigh the negative effects. In order to put the beneficial effects of the TRIPs Agreements into perspective, the question then turns to one of whether the benefits of the implementation of the TRIPs Agreements would greatly outweigh the temptation by states to keep away from WTO engagements through the putting into place of their own IP policies. As was earlier within this discussion, the idea for the need for intellectual property policies for the countries might be borne out of the intrinsic desire for each country to develop a framework that can capture its unique concerns towards the development of intellectual property rights. However, the implementation of the TRIPs Agreements would be more beneficial to each state because the Agreement is a one stop shop that, if properly implemented, would generate greater gains towards every state’s intellectual property development. In the final analysis therefore, it is to be restated that rather than develop their own intellectual property policies, states only need to fully implement the TRIPs Agreement. The implementation of this Agreement, aside from the already outlined benefits, would ensure uniformity and a harmonized development in the global intellectual property rights. The full commitment towards WTO engagement is what states must strive for, rather than individual trade policies. BIBLIOGRAPHY 1. Articles/Books/Reports Bentley, L & Sherman, B 2001, Intellectual property law, p. 5 Bullon, S 2003, Longman dictionary of contemporary English, New Edition, London, Pearson Education Limited, p. 1265 De Montesquieu, B, (1748) 2009, De l’Esprit des Lois. Available at www.constitution.org as cited in Van Den Bossche, Peter, Law and Policy of World Trade Organisation; Texts, Cases and Materials, Cambridge University Press, Cambridge, p. 19 Garner, B. A 2004, Black’s Law Dictionary, 8th Edition, St. Paul Minnesota, Thompson West, p. 1545 Garner, B. A, 2004, Black’s Law Dictionary, 8th Edition, St. Paul Minnesota, Thompson West, p.1054 Goldstein, P 2004, Copyright, Patent, Trademark and related State Doctrines: Cases and Materials on the law of intellectual property, Revised 5th edition, Thomson West, Foundation Press, New York, p. 19 Ministry of Commerce 1999, Government of India, India and the WTO: WTO Agreement on Agriculture and its implications’, 1(5) 1999. Available at http://commerce.nic.in/wto-may.pdf Pretorius, W n.d, ‘TRIPS and Developing Countries: How level is the playing field?’, in Drahos, Peter and Mayne, Ruth, Global Intellectual Property Rights: Knowledge, Access and Development at p. 183 Pulisova, V 2011, EU-Promoted Regionalism in EU’s Eastern Neighbourhood, a paper for the Regional Studies Association Annual International Conference (2011): Regional Development and Policy- Challenges, Choices and Recipients, Newcastle, UK, April 2011. Retrieved from http://www.regionalstudies-asoc.ac.uk/events/2011/april-newcastle/papers/Pulisova.pdf at p. 3 Sihanya, Ben, ‘Copyright law, teaching and research in Kenya’, (2005) 2 East African Law Journal 28 Sihanya, B 2009, ‘Intellectual property and mentoring for innovation and industrialization in Kenya’, The Law Society of Kenya Journal, 5(1), 29 Sihanya, B 2008, ‘Intellectual property for innovation and industrialization in Kenya’, Convergence, 4(2), 185 Sihanya, B 2008, ‘Intellectual property, quality assurance and ISO in Kenyan Universities’, The Law Society of Kenya Journal, (1), 36 Srinivasan T, N 2011, Developing countries and the multilateral trading system After Doha, Center Discussion Paper No. 842. Retrieved from http://papers.ssrn.com Srinivasan T, N 2011, Developing countries and the multilateral trading system After Doha, Center Discussion Paper No. 842. Retrieved from http://papers.ssrn.com Stiglitz, J 2002, Globalization and its discontents, Penguin, p. 4 Van Den Bossche, P 2009, Law and Policy of World Trade Organization: Texts, cases and materials. Cambridge University Press: Cambridge, p. 19 Wekesa, M. & Sihanya, B (eds) 2008, ‘Copyright in e-commerce and the music industry in Kenya’, Intellectual property rights in Kenya, p. 132 World Trade Organization 2011, ‘Legal texts: WTO Agreements- A summary of the Final Act of the Uruguay Agreement’ (no doubt), WTO, rue de Lausanne 154, CH-1211, Switzerland. Retrieved 8 July, 2011, from http://www.wto.org/english/docs_e/legal_e/ursum_e.htm World Trade Organization 2011, ‘Legal texts: WTO Agreements- A summary of the Final Act of the Uruguay Agreement’ (no doubt), WTO, rue de Lausanne 154, CH-1211, Switzerland, Retrieved 8 July, 2011, from http://www.wto.org/english/docs_e/legal_e/ursum_e.htm 2. Case Law None 3. Legislation None 4. Others TRIPs Agreement WTO Agreement Read More