At the end of 1994, the results of the multilateral trade negotiations also known as the Uruguay Round were rather impressive and fruitful. The Agreement on Trade-Related Aspects of Intellectual Property Rights (also known as TRIPS or the TRIPS Agreement) was negotiated and introduced as a significant part in the sphere of intellectual property rights. The implications of this TRIPS Agreement influence considerably different spheres of life and business and countries because it touches upon foreign direct investment, numerous innovations, and the conditions of technological transfer (Correa 23). Developed countries have already admitted that the implication of this agreement could become beneficial for countries of different levels of development. In their turn, developing countries expect that the TRIPS Agreement may lead to positive changes of market prices in comparison to those that have been achieved because of IPRs (intellectual property rights). In spite of the fact that the TRIPS Agreement promotes the desirable balance between the inducements for innovations or development and the use of the already offered inventions and achievements, the implication of this agreement, being an important step to achieve better conditions and benefits in developing countries, may face certain challenges because of possible sufferings from prices but still all these challenges may be overcome.
TRIPS as one of the most influential international agreement
TRIPS is considered to be one of the most important instruments that may influence the process of globalization of intellectual property rights on the international level. In order to defeat competing policies which are so crucial for developing countries and improve the already established intellectual property standards, the TRIPS
Agreement presents its unique and helpful articles. It is known that “the TRIPS Agreement covers not only all areas already protected under extant agreements, but also protects for the first time rights that did not benefit from any multilateral protection” (Gervais 156). Within a short period of time, the TRIPS Agreement gains recognition among the representatives of different countries, and now, any country that wants to get an access to international markets controlled by the World Trade Organization (WTO) has to take into consideration the intellectual property rights established by TRIPS. The content of the agreement represents minimum standards within the sphere of intellectual property rights. The cases of how this minimization influence copyrighting and medicine should prove that even the general view and captivating propositions attract the attention of many people and representatives of developing countries, its terms need to be analyzed thoroughly.
The essence of the agreement. The TRIPS Agreement consists of seven meaningful parts, which present rather clear and important information. According to the Article 7 “the protection and enforcement of intellectual property rights” and contribution to “technological innovation and to the transfer and dissemination of technology, to mutual advantage of producers and users of technological knowledge” are considered to be the main objectives of the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights). In order to present a clear and informative analysis of the TRIPS Agreement, it is necessary to be aware of each its points mentioned and clear up what make it being one of the most powerful enforcement mechanisms in the sphere of World Trade. However, the nature of IPRs under the TRIPS Agreement is under hot discussions due to its patents, which are able to cover technological side only. For example, TRIPS influences the issues like “the innovation and dissemination of technology; access to health care; the field of biotechnology, and the operation of the Convention on Biological Diversity” (Walker 3). Such unclear purposes promote the development of difficulties to comprehend whether developing as well as developed countries get a chance to protect their intellectual property rights, and if they get such a chance, what costs of this achievement would be.
Shortages of the agreement’s creation. The backgrounds of TRIPS are connected to intellectual property systems and the purposes of their existence. The process of optimization innovations and creative activities takes a very important place in our everyday life. Intellectual property rights are regarded as the main subject to “effective international litigation…with the possibility of cross-retaliation with respect to goods and services through the WTO dispute settlement system” for the first time (Macrory, Appleton, and Plummer 1044).
Copyrighting intellectual rights and industrial property intellectual rights become the two major groups of rights, which support the necessary compromise between private and public interests (Walker 4). Copyrighting deals with works in the sphere of music, literature, filmmaking, and art. Industrial property is all about technological protection, trade-marking, and numerous geographic indications. However, the conditions of TRIPS introduce certain points, which put the safety of these rights under a question. According to the Article 9, point 2, TRIPS protects certain expressions but not the ideas and used methods. How is it possible to protect expression but forget ideas, the main grounds of these expressions? Even if “the TRIPS Agreement was an exercise in updating and revising conventions administrated by WIPO” (Matthews 46), it was admitted that this attempt was successful enough to bind characters and protect intellectual property.
The analysis of the content of the TRIPS Agreement shows that there are many other shortages, which make many people from developing countries start worrying about their own positions. For example, TRIPS negatively influence implementation of public health policies in the vast majority of developing countries: the access to medicines has worsened and become impossible for the poor. The development of HIV/AIDS crisis in African countries, sufferings of poor people, and increasing of protests are the signs of how the TRIPS Agreement influence human development. Under the terms of this agreement, the protection of pharmaceutical products may last for the minimum of 20 years.
The most significant parts of the TRIPS Agreement. A properly arranged organization of the agreement is one of the keys of its success. Each part has its own purposes and presents the necessary information. If a person wants to learn what make this agreement successful or vice versa harmful for people, it is necessary to read it from the very beginning. Every article has its title that depicts its essence. Let us examine one of the sections in the second part of the Agreement where standards concerning use of intellectual property rights are discussed. A trademark is regarded as a constituent of any sign for distinguishing goods or services.
The owner of a registered trademark shall have the exclusive right to prevent all third parties not having the owner’s consent from using in the course of trade identical or similar signs for goods and services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. (Agreement on Trade-Related Aspects of Intellectual Property Rights, Art. 16)
This abstract from the article discusses how the use of trademark may happen and influence the development of services/goods. On the one hand, all the standards and requirements are taken into consideration, and the owner of a trademark gets a clear idea of what he/she is able to do and how the chosen trademark is protected by the Agreement. TRIPS considers both good and services and admits their peculiarities. On the other hand, there is no clear explanation what kind of services and goods are able to get the right for a trademark, this is why different spheres may be confused with such uncertainty.
Developing Countries and the Outcomes of the Agreement’s Implementation
After the TRIPS Agreement was negotiated, all member states had to accept the obligations, defined by this Agreement. However, some countries got a chance to take more time in order to evaluate the effectiveness of the offered proposition and get used to the necessary changes to their laws and the ways of development. From the very beginning, several developing countries wanted to achieve success and start defining themselves as reliable technological competitors. However, they face unpredictable challenges from the very beginning: high prices on products, agricultural relations, and health care system’s demands. The results of such actions were almost predictable: some developing countries find more powers to amend their intellectual property legislation, and some countries still cannot get an opportunity to relax their protection and be able to exploit technology to local enterprises (Walker 7).
TRIPS from developed countries’ perspective vs. developing countries’ perspective. Because of inability to accept all standards of the TRIPS Agreement, developing countries made a decision to support weaker part of intellectual property systems. However, developed countries admitted that the protection of intellectual property is the only possible means to foster technological development among developing countries. They also agreed that it is possible to “reduce trade tensions and avoid the use of unilateral retaliation” by means of the TRIPS Agreement (Correa 23). Developed countries realize that any step that promises some improvements for developing countries is already good and worthy attention. Even more, the standards of the TRIPS Agreement demonstrate that it is possible to achieve the promotion of innovations and technological stimulation on different levels. Developed countries find the offered agreement helpful to export patent-, copyright-, and trademark-related fees. In their turn, developing countries cannot agree to all the conditions of the TRIPS Agreement because they are afraid of welfare losses, unilateral pressure, and costs to develop proper trade relations. In fact, the conditions under which the TRIPS Agreement is able to work in developing countries have both positive and negative sides. In spite of all those possible losses, the number of benefits of different kinds is also expected for developing countries. The process of implementation of the TRIPS Agreement in developing counties was planned to be finished at the end of 2005. However, the presence of least developed countries prolonged this process till the end of 2016. If the successful results are not achieved, more work will be done, and the process of implementation may be continued. At this stage, it is possible to evaluate the ways of how the process of TRIPS implementation has already happened, what results have been achieved, what benefits are noticed, and what costs have been spent.
Benefits of the TRIPS Agreement for developing countries. When the theme of benefits of the TRIPS Agreement for developing countries is under discussion, it is necessary to admit that much depends on these countries’ political desire to improve their intellectual property systems and solve the problems of private gains and potential gains (Sherwood 493). Without any doubts, developing countries face numerous challenges that prevent them from the necessary development and abilities to be transformed from a rent transfer to an effective mechanism that is able to promote technological development on the highest level.
Developing countries are usually poor and weakly endowed, this is why the possibility to steal someone’s intellectual property is hardly probable. However, at the same time, people are not bothered with an idea that someone may think to steal this or that good/service/idea. Because of such inability to steal each other intellectual property ideas, the representatives of developing countries do not the conditions of the TRIPS Agreement too seriously. These countries are not protected by the actions of developed countries that have enough technological skills and equipment to misappropriate something. Therefore, the idea to accept the TRIPS Agreement has many positive sides for developing countries, and robust protection is one of them. TRIPS implementation may provide many developing countries with the abilities to stimulate their activities and be safe due to the chosen kind of protection. The process of TRIPS implementation also helps “to adapt IP protection at the national level to meet social and development goals” (Deere 64).
TRIPS requires certain costs from the developing countries. Some scientists admit that most developing countries can hardly observe benefits if they commit themselves to the TRIPS standards. There are several reasons of why the outcomes of the Uruguay Round may be considered as negative ones for developing countries. “TRIPS have focused not only on the inequitable distribution of benefits to developed and developing countries, but even more fundamentally on whether the agreement will actually result in net losses for many if not most developing countries” (Michalopoulos 129). To achieve better results and not to suffer because of inability to find a consensus, developing countries offered to change some conditions of TRIPS agreement. Unfortunately, their suggestions remain to be failed for this period of time. Another challenge for developing countries lies in the inability to get the necessary access to medicine under the conditions of the TRIPS Agreement (Olivera et al., 813). Developed countries required one year to prove their readiness to TRIPS conditions, and developing countries asked 5 years but still the results are not successful. First, developing countries do not find it is important to licence medical equipments and mechanism because they lack the obligatory legal structure, they are under a threat of being sanctioned, and finally, they still have problems with technology transfer. Developing countries just need financial support to prepare the necessary grounds in order to be able to accept TRIPS conditions and join developed countries.
In general, some developed and the vast majority of developing countries continue resisting the implication of the TRIPS Agreement; this inability to achieve common results and positive attitude make its proponents leave some gaps of TRIPS and introduce more captivating ideas for further discussion. In spite of the fact that TRIPS goes beyond the offered conditions, the following rights and options may still exploit: pressure of minimal IP standards, detailed scopes of patents and trademarks, the possibility to exempt plants, animals, and other micro-organisms, and protection of chemical and pharmaceutical products. The TRIPS Agreement presents many helpful standards to improve the current state of affairs, and the reason of why developed countries accept this idea and why developing countries refuse this idea is all about financial background. This is why before negotiating and introducing such meaningful actions, it is crucially important to check whether every country is able to accept it.
Agreement on Trade-Related Aspects of Intellectual Property Rights. 2010. Web.
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Deere, Carolyn. The Implementation Game: The TRIPS Agreement and Global Politics of Intellectual Property Reform in Developing Countries. New York, NY: Oxford University Press US, 2009.
Gervais, Daniel, J. “The TRIPS Agreement: Interpretation and Implementation.” European Intellectual Property Review 21.3 (1999): 156-162.
Macrory, Patrick, F.J., Appleton, Arthur, E., and Plummer, Michael, G. The World Trade Organization: Legal, Economic, and Political Analysis. New York, NY: Springer, 2005.
Matthews, Duncan. Globalising Intellectual Property Rights: The TRIPS Agreement. New York, NY: Routledge, 2003.
Michalopoulos, Constantine. Developing Countries in the WTO. New York, NY: Palgrave Macmillan, 2001.
Olivera, Maria, A., Bermudez, Jorge, A., Chaves, Gabriela, and Velasquez, German. “Has the Implementation of the TRIPS Agreement in Latin America and the Caribbean Produced Intellectual Property Legislation that Favours Public Health?” Bulletin of the World Health Organization 82.11 (2004): 811-890.
Sherwood, Robert, M. “The TRIPS Agreement: Implications for Developing Countries.” The Journal of Law and Technology 37 (1997): 491-551.
Walker, Simon, Centre for International Environmental Law. The TRIPS Agreement, Sustainable Development and the Public Interest: Discussion Paper. Cambridge: International Union for Conservation of Nature and Natural Resources, 2001.