IP forum shifting: FTAs, BITS & TRIPS-plus standards

Since the early 1980s advocates seeking to ratchet up levels of intellectual property (IP) protection have shifted forums both vertically and horizontally in order to achieve their goals. They have shifted vertically, from multilateral to regional to bilateral levels, and they have shifted horizontally across diverse international organizations. Those who seek to ration access to IP are engaged in an elaborate cat and mouse game with those who seek to expand access. As soon as one venue becomes less responsive to a high protectionist agenda, IP protectionists shift to another in search of a more hospitable venue.

Forum-shifting can refer to several distinct dynamics, all of which are designed to yield preferred results by changing the game. Parties might move an agenda from one forum to another, exit a forum altogether (e.g. the US exiting UNESCO in the 1980s), or pursue agendas simultaneously in multiple forums. According to Peter Drahos, “forum shifting means that some negotiations are never really over.” Strong states like the U.S. shift forums to optimize their power and advantages and minimize opposition. The IP enforcement agenda is just the latest in a series of strategic forum shifts. Yet “weaker” parties, such as developing countries and public advocacy non-governmental organizations (NGOs), also deploy forum-shifting strategies in their efforts to reshape the rules.

Laurence Helfer’s most recent analysis follows the process between TRIPs and access to medicines campaigns. He traces two key cycles: first the adoption of TRIPs; followed by the access-to-medicines campaign’s desired amendments to TRIPs in WTO, and concludes that the latter was a victory for the “weak”. By contrast, Daniel Drezner traces three cycles: the adoption of TRIPs; the Doha Declaration; and the amendment to TRIPs for countries that have no domestic generic drug manufacturing capability. He concludes that this last cycle demonstrates that the “strong” states with large markets ultimately prevail. This paper does not seek to “prove” either of these two analysts “right” or “wrong”, but rather to demonstrate the importance of tracking regime complexity and highlighting both policy and analytic implications of such analysis. This paper extends these cycles forward into time and traces the process of contestation within and across forums.

The advent of the World Trade Organization (WTO) in 1994 marked a new beginning in international trade and economic relations. The WTO’s main components, the General Agreement on Tariffs and Trade (GATT), the General Agreement on Trade in Services (GATS) and the Trade-Related Aspects of Intellectual Property Rights (TRIPS), represent today the main pillars of the “new global economic order”. The conclusion of the TRIPS Agreement came about as a result of the developed countries’ relentless efforts driven by their domestic interest groups to include the protection of intellectual property rights under the multilateral forum. It is not surprising therefore that the TRIPS Agreement was regarded as the “most contentious and anomalous component of the Uruguay Round” of trade negotiations.  Almost a decade after the WTO creation, there continues to be a lack of agreement and controversy over the expected benefits of this Organization, including its TRIPS Agreement.  While proponents of the WTO have labelled it as “the greatest trade agreement in history”, opponents view it as a mere “TRAP” to both the developed and developing countries. 

The TRIPS Agreement represents the most comprehensive agreement ever to be concluded in the field of IPRs. It contains provisions which lay down universal minimum standards for each protected branch of intellectual property rights including protection of copyrights, patents, trademarks, geographical indications, layout-designs, trade secrets and unfair competition.

The TRIPS Agreement is part of a “package” to which those countries seeking WTO membership have to adhere. Hence, countries seeking to join WTO have to accept and implement all obligations as required under TRIPS, GATS and GATT. Hence this called for the incorporation, into domestic legislation, of the requirements of the TRIPS Agreement even before signing up to the Organization. To cope with the short-term costs and to enable Member States to prepare their accession to the WTO, transition periods were agreed upon and provided during the Uruguay Round of trade negotiations which were concluded in 1994. These periods correspond to each country’s level of development and economic prosperity. Accordingly, five- and ten-year transition periods were granted to developing and least-developed countries respectively, to bring their IPR protection into conformity with TRIPS standards while the developed countries were awarded one year to implement the TRIPS Agreement. 

However, in recent years, a new development in the international regulation of IPRs emerged: it represents the latest wave of shifting the discussion on issues related to IPR protection from the ambit of the multilateral framework to a more forceful one-to-one system. This wave was clearly manifested by the growing tide of recent bilateral trade and investment agreements between developed and developing nations.

 

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