Intellectual property framework responses to health emergencies – options for Africa

A new and comprehensive treaty on intellectual property rights was established in 1994, within the framework of the World Trade Organization (WTO). It is called the Agreement on Trade-Related Aspects of Intellectual Property Rights -- the TRIPS agreement for short, it requires all WTO member countries to adopt in their laws minimum standards of protection for patents, trademarks, copyrights and other intellectual property rights. It has substantially limited the freedom that countries enjoyed until then to design and implement their own intellectual property systems. The agreement established a common set of standards for all countries, without differentiating on the basis of socioeconomic and technological development. Developing countries, however, were allowed a transition period in which they could delay implementation of the new standards for specified amounts of time. Although it has many implications for public health, the TRIPS agreement was negotiated with little or no participation from public health authorities. The obligations it sets forth to protect inventions include the following: recognizing patents for pharmaceuticals without distinction between imported and locally produced products; granting patent protection for at least 20 years from the date of application; limiting the scope of exemptions from patent rights; and effectively enforcing patent rights through administrative and judicial mechanisms. Under this agreement all WTO member countries are now bound to grant patents for pharmaceutical products. This obligation did not exist under previous international conventions. The agreement also provides compulsory protection against "unfair commercial use" of data submitted for the marketing approval of new pharmaceutical products. Complying with the TRIPS agreement in these respects has posed a special challenge for developing countries and raised considerable concerns from a public health perspective. These may be summarized as follows. First, the patent holder can exclude direct competition, and charge higher prices for patented medicines than would have prevailed in a competitive market. Life-saving drugs can thus be made unaffordable, as has been seen particularly dramatically in the case of HIV/AIDS in sub-Saharan Africa. Second, most developing countries are excluded from the benefits of protection for inventions because they lack the scientific infrastructure and the capital needed for research and development (R&D). High costs and the need for economies of scale place the development of patentable pharmaceuticals beyond the reach of most of them. Third, the pharmaceutical companies that do invest in R&D focus mainly on the diseases likely to held the highest return for their shareholders. Diseases of the poor, such as malaria, tuberculosis and bloody diarrhoea are thus neglected. Fourth, despite some theories and expectations to the contrary, the TRIPS agreement has not stimulated increased foreign direct investment or technology transfer in pharmaceuticals production in developing countries. The experience of some Latin American countries has been the opposite: after the adoption of product patents for medicines, many local firms have been denationalized and several plants have been closed down. Fifth, a significant part of industry's R&D expenditure goes not on developing new drugs but on expanding the coverage and lifetime of patent protection for existing ones. This is done by patenting minor improvements or modifications such as new crystalline forms, isomers, combinations and formulations. These considerations do not mean that patents cannot help to stimulate costly research on much needed new drugs. They do suggest, however, that strengthened intellectual property rights will affect developing countries differently from technologically advanced ones. …

One of the main objectives of the World Trade Organization (WTO) is to facilitate world’s trade and production. It enforces legally binding multilateral agreements on trade in goods, services and trade-related aspects of intellectual property rights. The Trade Related Intellectual Property Rights (TRIPs) Agreement was implemented to regulate standards of Intellectual Property (IP) regulations in WTO member countries. Being a member of the WTO and a signatory to the TRIPs Agreement, it was compulsory for Sri Lanka and five other South Asian countries (Bangladesh, Nepal, the Maldives, India and Pakistan) to formulate its IP regulations to comply with the TRIPs Agreement. According to the agreement, by 2006 India, Pakistan and Sri Lanka, and by 2013 Bangladesh and Nepal have to provide legal protection to plant varieties and farmers’ traditional knowledge via patents or by an effective sui generis system or by both. All of the above six countries have during the past 15 years implemented or drafted several acts to comply with the TRIPs Agreement. Sri Lanka has passed the Intellectual Property Rights Act No. 36 of 2003 to comply with the TRIPs Agreement. However, this Act does not provide protection for plant varieties and farmers’ traditional knowledge as it does not allow patenting of plants. Due to several reasons such as lack of demand from civil society, a poor legal system, lack of properly established institutional system, etc,. Sri Lanka was unable to build an effective intellectual property rights regime complying with the agreement, especially for the agricultural sector. Further, due to a delay in establishing rules and regulations to comply with the agreement, the Sri Lankan agricultural sector faces several difficulties in international trade and it has also lost a number of opportunities to use its own plant varieties for the benefit of future generations. The article suggests several techniques and methods that could be followed in implementing intellectual property rights in agriculture in order to promote investments and accelerate trade especially in Sri Lanka. And also it suggests the importance of having a regional centre to manage intellectual property rights effectively among South Asian countries.

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which established the minimum standards for the protection and enforcement of intellectual property rights for members of the World Trade Organization (WTO), is one of the more controversial international intellectual property agreements that have entered into force. Its negotiations were highly contentious, and the perspectives of developed and less-developed countries on the role of intellectual property protection and enforcement remain far apart. In recent years, less-developed countries-including both developing and least-developed countries-have expressed their deep dissatisfaction with the way the TRIPS Agreement has been interpreted and implemented. They are also frustrated by the ongoing demands by developed countries for protections that are in excess of what they promised during the TRIPS negotiations- often through new bilateral and regional trade and investment agreements. As they claim, the Agreement as interpreted by their developed trading partners and the additional TRIPS-plus demands ignore their local needs, national interests, technological capabilities, institutional capacities, and public health conditions. These concerns and frustrations eventually led to the establishment of a set of development agendas at the WTO, the World Intellectual Property Organization (WIPO), and other international fora. Although the TRIPS Agreement's one-size-fits-all-or, more precisely, super-size-fits-all-approach is highly problematic, the Agreement includes a number of flexibilities to facilitate development and to protect the public interest. To safeguard these flexibilities, Articles 7 and 8 provide explicit and important objectives and principles that play important roles in the interpretation and implementation of the Agreement. This Article explores the origins of these two provisions and the roles they can play in promoting the development goals of less-developed countries. Thus far, a growing amount of scholarship has offered detailed article-by-article commentaries on the TRIPS Agreement. This Article therefore does not seek to repeat these admirably accomplished tasks. Instead, it builds on the available materials and explains how Articles 7 and 8 can play multiple roles in helping less-developed countries preserve the hard-earned bargains they won through the TRIPS negotiations. The Article further discusses how these provisions can be used to recalibrate the balance of the international intellectual property system. Part II begins by tracing the development of Articles 7 and 8 of the TRIPS Agreement. By recounting their historical origins and subsequent developments, this Part shows that, even though only a small amount of the treaty language proposed by less- developed countries was included in the final text of the Agreement, the choice of such language in Articles 7 and 8 may provide less-developed countries with important tools for restoring the balance of the international intellectual property system. Part III examines the normative content of Articles 7, 8.1, and 8.2 of the TRIPS Agreement. It highlights the interpretations made by WTO panels and the Appellate Body, and the implications of the two declarations adopted during the Fourth WTO Ministerial Conference in Doha. This Part also discusses how the provisions can be interpreted to the advantage of less-developed countries. Part IV concludes by exploring the five different ways Articles 7 and 8 can be used to facilitate a more flexible interpretation and implementation of the TRIPS Agreement: (1) as a guiding light for interpretation and implementation; (2) as a shield against aggressive demands for increased intellectual property protection; (3) as a sword to challenge provisions that overprotect intellectual property rights or tolerate their abuse; (4) as a bridge to connect the TRIPS regime with other intellectual property or related international regimes; and (5) as a seed for the development of new international intellectual property norms.

In January 2007, Vietnam joined the World Trade Organization (WTO). It was viewed as a landmark step forward for a country having a free market only since 1986. For Vietnam, gaining membership in the WTO created an obligation to ascribe to the WTO-administered Agreement on the Trade-Related Aspects of Intellectual Property (TRIPS), the multilateral treaty currently guiding international IP law.1 While Vietnam has now nominally adopted TRIPS-style laws, enforcement of those laws is virtually nonexistent, making Vietnam one of the world’s foremost piracy hotspots. Although TRIPS did not create Vietnam’s piracy problems, it has done nothing to ameliorate their impact. Furthermore, it has undermined key aspects of Vietnam’s development, such as the dissemination of knowledge, access to food and medicine, and respect for the rule of law. Generally, TRIPS harms less developed countries (LDCs), spurring these countries and Non-Government Organizations (NGO’s) to speak out against the regime. However, the WTO and the World Intellectual Property Organization (WIPO), the traditional international IP institution, are deadlocked because of the global growth of Intellectual Property rights (IPR) and subsequent resistance to this growth. Parties intending to weaken the TRIPS regime have turned to other forums to advance their priorities. One such forum is international human rights (HR) law. The convergence of IP and HR holds great promise for rebalancing the international IP system by allowing greater power of self- determination to LDCs. However, the flexibility embraced by the IP-HR framework requires that the unique political, economic, and cultural characteristics of each country be taken into account in developing an IP system. The many differences among LDCs could thus ultimately derail the burgeoning framework. While a patchwork of bilateral IP agreements and treaties characterized international IP before TRIPS, it is unclear whether such a framework is workable after TRIPS. This paper will use Vietnam as a test case for the nascent IP-HR framework, exploring both the international political climate and particular national characteristics that might prevent the IP-HR framework from achieving success. More specifically, this paper will focus on how Vietnam’s Confucian culture, socialist government, potential for economic growth, and eagerness to court Western investment will stress the developing IP-HR framework and may even prevent the goals of the IP-HR framework from being realized in Vietnam and elsewhere. Part II discusses Vietnam’s path to WTO membership, detailing the opening of the Vietnamese market in 1986, Vietnam’s IP and trade relations with the U.S., and the harmful effects on Vietnam of the trade- centric IP prerogative espoused by TRIPS. Part III discusses how the harms caused by TRIPS have spurred LDCs to retaliate by refocusing international IP to incorporate both proprietary and human rights concerns, leading to the development of an alternative IP-HR framework. The origins and current interpretations of the burgeoning IP-HR framework are discussed here as well as current developments emanating from the framework to provide a background for the specific application of the framework to, Vietnam. Part IV discusses implications of the IP- HR framework for Vietnam and whether Vietnam would likely welcome the framework’s goals, focusing on the country’s political, economic, and cultural characteristics. Part V concludes. [1] Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments – Results of the Uruguay Round [hereinafter TRIPS].

Despite the challenges they pose under international trade law, recent discussions and cases at the World Trade Organization (WTO) demonstrate that local content requirements (LCRs) have enjoyed continued success among both developed and developing countries. This article focuses on a specific type of LCRs, intellectual property-related LCRs (IP-related LCRs). The article argues that the concept and related regulation of LCRs concerning IP rights have undergone a remarkable evolution under international trade law. The notion and regulation of IP-related LCRs, in particular, have changed from the 1883 Paris Convention on the Protection of Industrial Property (Paris Convention) and the 1886 Berne Convention on the Protection of Literary and Artistic Works (Berne Convention) to the General Agreement on Tariffs and Trade of 1947 and, later, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and other Agreements at the WTO. Indeed, while the Paris Convention and the Berne Convention are still in force, the General Agreement on Tariffs and Trade (GATT) 1947 and the WTO Agreements have reframed the debate and implications of IP-related LCRs. Nevertheless, some questions on what is permissible under international trade law remain open at the WTO. Given LCRs continued success, some clarifications on their consistency with WTO law may be further needed. Local Content Requirements (LCRs), Agreement of Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), General Agreement on Tariffs and Trade of 1994 (GATT 1994), World Trade Organization (WTO), Intellectual Property Rights

Introduction On December 11, 2001, China became the 143rd member of the World Trade Organization (WTO). After more than 15 years of exhaustive negotiations, China finally joined the international trading body. As with other WTO members, China abides by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). Together with more than two dozen other international agreements China has joined, the TRIPS Agreement lays out the international framework impacting intellectual property developments in China (Yu 2011e: 221-3). Part II of the TRIPS Agreement stipulates the high minimum standards for intellectual property protection and enforcement in a large variety of areas, including copyrights, patents, trademarks, geographical indications, industrial designs, plant variety protection, integrated circuit topographies, and protection of undisclosed information. Part III delineates for the first time international standards for the enforcement of intellectual property rights, including civil, administrative, and criminal procedures and remedies and measures related to border control. In addition, Article 64 requires that the mandatory WTO dispute settlement process be used to settle all intellectual property disputes arising under the Agreement. This chapter reviews intellectual property developments in China in its first decade of WTO membership, focusing primarily on developments within the organization. It shows how China has transformed from a passive taker of international intellectual property norms to one that has slowly assumed the additional roles of both a norm shaker and a norm maker. The chapter begins by providing an overview of reforms China undertook in the run-up to the accession. It examines the low profile China maintained in the WTO in the first few post-accession years. It also acknowledges China's limited interest in international intellectual property norm-setting, including its rare submission to the Committee on Technical Barriers to Trade (TBT Committee). The chapter then examines the recent U.S.–China WTO dispute over the protection and enforcement of intellectual property rights and its high-profile intervention in the June 2010 meeting of the Council on Trade-Related Aspects of Intellectual PropertyRights (TRIPS Council). It concludes with a discussion of China's increased assertiveness in the international intellectual property arena, including the WTO.

Agreement on Trade-Related Aspects of Intellectual Property Rights (better known as the TRIPS Agreement) within the context of changing patterns of private and state authority. Even though the literature on the TRIPS Agreement is extensive, most studies take a legal or economic perspective on the globalization of intellectual property rights. Comprehensive studies by political scientists on intellectual property and global governance are relatively rare. Christopher May's book, A Global Economy of Intellectual Property Rights (2000) considers the problematic nature of cosmopolitan justifications for the global protection of intellectual property. Knowledge Diplomacy by Michael Ryan (1998) explains the TRIPS Agreement as a second stage in the process of trade liberalization that began with the 1947 General Agreement on Tariffs and Trade (GATT). Sell's book picks up both these themes in order to explain, from a US perspective, the reasons for the emergence of the TRIPS Agreement at the conclusion of the Uruguay Round of Multilateral Trade Negotiations in 1994 (Blakeney 1996). The inquiry is therefore twofold. First, how did a group of private actors succeed in establishing a comprehensive framework of rules for the global protection of intellectual property? Second, what sort of factors determined the success of the enterprise as an international legislative initiative? The focus of Sell's analysis is the knowledge-based transnational corporation. Her argument is that such corporations have a structure, resource base, and planning horizon approaching that of governments. As a result, they were capable of initiating and managing a project to promote the globalization of intellectual property rights. Private Power, Public Law offers a well-researched account of the formation, organization, and transnational mobilization of the Intellectual Property Committee-an ad hoc group of some twelve CEOs representing US software, pharmaceutical, entertainment, and financial services corporations that served as an agency for international legislative reform. It explains how the Intellectual Property Committee had the resources to construct a draft text and the capacity to mobilize the support of their counterparts in Europe and Japan in order to confidently present a draft agreement to the GATT Secretariat in 1988. Chapter 1 considers various theoretical approaches that might explain the Intellectual Property Committee's role in the emergence of TRIPS. Rational choice theory is rejected because it neglects the broader causational structures encompassing capital market deregulation and international institutions, especially the World Trade Organization (WTO) and the World Intellectual Property Organization. With panoramic intent, chapter 2 adopts a morphogenetic approach to structure and agency in order to explain the emergence and impact of the new global intellectual property regime under the aegis of the WTO. This methodology allows us to see the emergence of TRIPS against a background of cyclical institutional change, consisting of a first cycle of negotiation and construction and a second cycle of reaction by public interest groups. In the first cycle, structural change is seen as a necessary but insufficient condition for the eventual emergence of TRIPS.

The article is devoted to the study of the main aspects of international protection of intellectual rights. The authors consider a number of international conventions and treaties, as well as the main provisions of cooperation between WIPO and the WTO under the Agreement on Trade-Related Aspects of Intellectual Property Rights. International treaties form a network that serves all member states, depriving them of the opportunity to act arbitrarily, at their discretion. They establish common norms and standards of IP protection, deviation from which is punishable by sanctions. By signing such treaties, states agree to partially abandon their own IP laws and follow the path of convergence with the laws of other countries. Such agreements exist for almost all categories of IP. The international system of public administration procedures in the field of intellectual property today is based on two conventions concluded in the late XIX century: Paris Convention for the Protection of Industrial Property of 20 March 1883 (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886 (Berne Convention). These two Conventions played a fundamental role in the subsequent development of legal institutions. In the modern world, a certain system of international legal regulation of related rights has already developed, which directly affects the European related law, since, in particular, the norms of international law form the basis of the legal system of the European Union, and form international, including European, standards of intellectual property rights, including copyright and related rights. The main institutions dealing with IP protection on a global scale are the World Intellectual Property Organization (WIPO), the World Trade Organization (WTO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO). All member states of the European Union, as well as the European Community are members of the WTO organization, which has gained great importance in the field of intellectual property in connection with the adoption of the TRIPS Agreement. The reason that prompted states to choose a forum other than WIPO to negotiate this agreement was the growing dissatisfaction with the existing contrast between the precision, elegance, even sophistication of the treaty documents that were negotiated at WIPO and the inadequacy of the means to ensure the practical implementation and uniform interpretation of these treaties in different countries. The TRIPS Agreement addresses five important issues: the principles of the trade system and international agreements on intellectual property, the minimum level of protection of intellectual property rights, measures to enforce these rules, the procedure for resolving disputes in the field of intellectual property, as well as transitional measures during the implementation of the systems. Ukraine is a party to more than 50 multilateral and bilateral international treaties on intellectual property. Therefore, it is advisable to determine the role of international standards in the system of intellectual property rights protection as integral components of the national legal system in Ukraine. This has become especially important since 24.02.2022 due to the outbreak of a full-scale war on the territory of Ukraine. The occupation of the territory of Ukraine by Russian invaders and the theft of industrial infrastructure, cultural heritage, art objects, which are also objects of intellectual property. Absolutization of copyright and related rights protection does not automatically mean bringing such protection to international standards. Recently, in Europe and the United States there has been an understanding of the need to find a consensus between the interests of copyright and related rights holders and the interests of society for access to cultural heritage. It is necessary to amend the legislation of Ukraine in order to harmonize the interests of copyright and related rights holders and the interests of society for access to cultural heritage, in the context of introducing only the minimum requirements of international legal acts for the protection of copyright and related rights and simplifying access to copyright and related rights.

After having stayed as an observer for about 6 years, Ethiopia formally applied for membership at the World Trade Organization (WTO) in January 2003, and it has since been going through the accession negotiations. One of the areas of scrutiny by the WTO members as part of the accession process has been Ethiopia's intellectual property (IP) regime. Indeed, a number of issues were raised in relation to Ethiopia's IP regime in the three rounds of questions the country received from WTO members. In its replies to the questions from WTO members, Ethiopia has promised to revise this law in the light of the Agreement on Trade‐Related Aspects of Intellectual Property Rights (the TRIPS Agreement). The accession process has thus given impetus for Ethiopia to embark on a reform of its IP regime, which is being carried out in two fronts: the enactment of new IP laws in areas where little or none existed before, and revising existing IP laws, particularly the patent law. This article analyzes Ethiopia's patent regime in light of the TRIPS Agreement, identifies the obligations that might need to be met as part of the accession, as well as the flexibilities that might be available to Ethiopia as a least‐developed country (LDC).

In 2012 the U.S. Supreme Court granted certiorari to the Myriad case. In doing so, the Court created an opportunity to harmonize U.S. patent law with global patent law norms regarding patents for composition claims of isolated human gene segments. The domestic importance of this case is high: it is estimated that as of 2005, 40,000 patents in the U.S encompass approximately twenty percent of the human genome.While the decision of the Myriad case is uncertain, the current global operating environment for gene patents poses a veritable minefield for practitioners in relevant industries. This article will attempt to address three questions. First: Is there a practical difference between allowing a patent on isolated genes and disallowing a patent on the method used with the isolated genes to diagnose patients? Second: Should the World Trade Organization (WTO) consider adopting a uniform approach on this issue, or is it too controversial? Third: Does a U.S. Supreme Court decision to disallow Myriad Genetics’ isolated gene sequence patents violate Article 27 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)?In part IIA, this article will examine the current posture of the Myriad case. In part IIB, the article will examine the background of international laws regarding patent law as relevant to the issue of isolated human gene segments. In part IIC, the article will examine the international law regarding patent law and human gene patents. In part IID, the article will examine the relevant U.S. domestic precedent affecting the validity of Myriad’s composition claims.In part IIIA, the article will analyze the differences between allowing a patent on isolated genes and disallowing a patent on the method used with the isolated genes to diagnose patients. In part IIIB, this article will analyze the considerations facing the WTO in considering whether to adopt a uniform approach to human gene patents.The article concludes that there is a difference between allowing a patent composition claim for on an isolated gene patent while disallowing an associated method claim. The WTO should not consider incorporating the World Intellectual Property Organization (WIPO) Substantive Patent Law Treaty into WTO TRIPS. Rather, there are existing mechanisms in the WTO TRIPS agreement that may be amended to facilitate a uniform, global treatment of human gene patents.Finally, a U.S. Supreme Court decision that disallows Myriad Genetics’ isolated gene sequence patents likely would not violate the current WTO TRIPS Agreement Article 27 because of the principle of nationality present in WTO TRIPS and other international patent agreements.

The TRIPS Agreement emerged from the Uruguay Round negotiations as one of the three pillars of the WTO. This article offers a preliminary assessment of the first ten years under the TRIPS Agreement. Based on that assessment, it makes suggestions for the future. The objective of the principal developed country demandeurs of the TRIPS Agreement was to increase information and technology rent payments from developing countries. Incomplete implementation and enforcement was anticipated. Taking this into account, the Agreement has resulted in a substantial transformation of legal infrastructure in developing countries and has increased rent payment outflows to the owners of intellectual property (IP) rights. From this standpoint, the TRIPS Agreement has been successful in accomplishing its objectives. From the standpoint of developing countries, it is more difficult to identify positive effects. China is the major developing country success story of the past decade, and it has achieved its historic accomplishments in the face of intensive criticism of its IP regime. The TRIPS Agreement has come under harsh public scrutiny for the role attributed to it by the pharmaceutical industry in South Africa, ultimately leading to the Doha Declaration on the TRIPS Agreement and Public Health. As a consequence of a somewhat more balanced approach to TRIPS now achieved at the WTO, the United States in particular has shifted to bilateral and regional fora to obtain higher standards of protection and enforcement, calling into question the relevance of TRIPS Council deliberations. This article makes several recommendations. First, that new agreements concerning IP rights be subject to objective prior impact assessment. Second, that WTO Members give greater recognition to the fact that IP rules have significantly different public welfare implications depending on their field of application and the level of development of the implementing country. As the TRIPS Agreement transition periods have largely expired, the manner by which the TRIPS Council assesses its rules and makes provision for TRIPS-plus and TRIPS-minus adjustments might be restructured along industrial subject matter and developmental lines, taking better account of the impact-in-fact of IP rules on societies. In June 2004 a group of trade specialists was brought together at the World Trade Forum in Berne in a ‘preliminary stocktaking’ exercise to assess the first ten years of the World Trade Organization.1 This article was prepared for that occasion and addresses the Agreement on Trade-Related Aspects of Intellectual Property Rights (the ‘TRIPS Agreement’) on its ten-year anniversary.

Trade liberalisation, burgeoning technological development and growing significance of intellectual property rights, have catalysed the change in global economic paradigm. In tandem with this flux in the contours of international trade, amendments have constantly been introduced in the sphere of national laws. A veritable example of the ripples created by international developments across national frontiers is that of General Agreement on Tariff and Trade (GATT), later subsumed by World Trade Organisation (WTO), which inaugurated the free trade regime. The advent of GATT/ WTO necessitated certain changes in domestic laws of member states, including laws appertaining to intellectual property rights. As the vanguard for protection of human ingenuity, creativity, innovation and enterprise; intellectual property rights have been elevated to a venerable position. The incontrovertible significance of IPRs is further reinforced in the contemporary knowledge driven economies, which thrive on innovation, enterprise and industrial-technical progress. However, owing to rapid technological advancement, IPR protected goods can be easily imitated and pirated. Under such circumstances, the exporters of products endowed with IPRs strive to protect their goods from unwarranted encroachments and imitation in importing countries. Differential treatment of imported IP protected goods also leads to ludicrous results. In order to meet such situations and to ensure that IPRs do not obliterate free trade, the Agreement on Trade Related Aspects of Intellectual Property Rights provides for minimum standards of IP protection. All the WTO member countries are under an obligation to comply with the provisions of TRIPs agreement. India, as a WTO member reconciled the divergences between TRIPs and its domestic intellectual property laws, most importantly the Indian Patent Act, 1970. But India's journey towards TRIPs compliance has been enmeshed by the mailbox dispute and the ensuing amendments in 1999, 2002 and 2005. Against this backdrop, the paper attempts to delve into some of the significant issues like the rationale behind the TRIPs agreement, the TRIPs mandate with regard to Patent Rights and its impact on the Indian Patent Regime. Besides briefly dealing with the Pre-TRIPs position, the paper expatiates upon the Post-TRIPs Regime of Patent Rights in India. The involvement of India in the mailbox dispute catapulted some very important changes in the Indian Patent Act, 1970 and therefore the case has been dealt with in sufficient detail.

This chapter presents a background on international investment law and intellectual property (IP) rights, reviewing pertinent legal, economic, and political developments in these fields, and how they relate to the broader public international law context. It considers IP as a form of intangible property right and identifies the principal forms of IP: patent, trademark, copyright, and trade secret. The single most important multilateral IP treaty is the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). The chapter then looks at the increasing importance of intellectual property rights in foreign direct investment (FDI), as well as the increasing use and exploitation of IP rights through registrations of patents and trademarks. It also investigates the possibility of relying on international IP treaties in IP-related investor–state dispute settlement (ISDS) cases.

The investment arbitration launched by Philip Morris Asia (PMA) against Australia in 20111 in relation to Australia's mandatory plain packaging of tobacco products is a recent reminder of the significant protections for intellectual property rights (IPRs) in international investment agreements. Given its focus on trademarks, the Philip Morris dispute provides a useful case study for exploring the relationship between intellectual property and international investment law. The parallel legal challenges brought by various tobacco companies against Australia in the High Court of Australia2 on constitutional grounds and by Ukraine,3 Honduras,4 the Dominican Republic,5 Cuba6 and Indonesia7 against Australia in the World Trade Organization (WTO) also make this a valuable case for demonstrating the fragmenting nature of intellectual property law at the domestic and international levels. That fragmentation poses challenges for international trade and investment law, raising questions concerning the relationship between intellectual property rights conceived at the domestic level with the protections available in international fora. For example, what significance does the High Court's conception of intellectual property under Australian law have for the claims against plain packaging under the Agreement between the Government of Hong Kong and the Government of Australia for the Promotion and Protection of Investments (‘Hong Kong-Australia BIT’)8 and the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)? By using the Philip Morris case study, this chapter aims to explore the complex interaction between intellectual property and international investment agreements (IIAs), meaning bilateral investment treaties (BITs), plurilateral investment treaties such as the Energy Charter Treaty, and preferential trade agreements containing investment provisions. After explaining the background to the Philip Morris dispute in its various forms, we consider the protection of intellectual property as an ‘investment’ under IIAs. We then examine three substantive investment obligations in connection with intellectual property: most-favourednation obligations, expropriation, and so-called ‘umbrella clauses’. This chapter reveals the high degree of uncertainty permeating the relationship between intellectual property and international investment law.

Confronting the Privatization and Commercialization of Academic Research:An Analysis of Social Implications at the Local, National, and Global Levels Risa L. Lieberwitz* (bio) Introduction In the current era of capitalist hegemony, the term "globalization" has become synonymous with the global dominance of private market economies. Though concepts of "internationalism" have long been associated with the political Left, the possibilities of a progressive vision of globalization are currently overshadowed by the deepening of private market policies in existing capitalist economies and the expansion of capitalism to former socialist countries and to developing countries throughout the world. This phenomenon has affected all societal institutions through governmental implementation of privatization policies and deregulation; through the power of global financial institutions—such as the World Bank and the International Monetary Fund—to impose loan conditions that require governments to adopt policies that promote private markets;1 and through multilateral trade agreements that favor transnational corporations (TNCs) in their pursuit of increased capital mobility and market expansion.2 This article addresses the impact of privatization on universities in the United States, focusing, in particular, on the effects on the university mission and academic research in the life sciences. Both public and private nonprofit universities have been affected by public policies of privatization, leading to [End Page 109] increased commercialization of academic research and growing university-industry ties. These changes in practices have been accompanied by a significant weakening of the traditional definition of the university mission of serving the public interest through university teaching and research independent from conflicting interests of either government or business. Tied closely to university independence has been the core value of faculty academic freedom, protecting faculty autonomy over their work and enabling them to ensure the integrity of teaching and research that is independent from conflicting interests.3 The university's mission and the rights of faculty also describe the social role of the university and its faculty. Where the university has a public mission, its social role is defined in terms of promoting the public interest.4 Its policies and practices should, therefore, be aimed toward carrying out its public mission. As the university's mission becomes privatized, however, its social role is redefined as well, shifting from the public interest to serving private economic interests. Given the dominant influence of the United States in promoting private market economies globally, the social implications of privatizing the university's mission will extend beyond the national borders as well. This article begins with a discussion of the traditional definition of the university's public mission and faculty academic freedom, which have formed the core elements of faculty identity in the university. In part II, the discussion moves to legal developments promoting privatization that have had a major impact on these traditional definitions of university mission and faculty rights. The relevant legal developments have taken place at both the national and international levels. At the national level, these changes have been aimed specifically at the university, with the federal Bayh-Dole Act of 1980,5 which authorizes and encourages federal fund recipients—including universities—to patent and license federally funded research. As a consequence of the Bayh-Dole Act, universities have expanded their private market activities, leading to a major growth in university-owned patents and licensing of patents to industry. The article explores the impact of increased market activities at three levels: at the local level, on university culture and [End Page 110] research; at the national level, on the university's public mission; and at the international level, on the social implications of the university's involvement with expanding intellectual property rights. The article examines the international consequences of this commercialization by examining the World Trade Organization (WTO) multilateral trade agreement known as TRIPS—the Agreement on Trade-Related Aspects of Intellectual Property Rights.6 The 1994 TRIPS agreement, which requires WTO signatories to enact national laws protecting intellectual property rights, was not created with universities in mind. But with the increase of university-industry exclusive licensing agreements, university intellectual property practices take on global implications, as TNCs rely on TRIPS to reap the global benefits of their monopoly over university-owned patents. Part III of the article further...