Is TRIPS a Balanced Agreement from the Perspective of Recent Free Trade Agreements?

Abstract

This chapter focuses on the perceived shortcomings of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) seen from the perspective of the demandeurs for strengthened intellectual property (IP) protection in the TRIPS negotiations and the subsequent gains made in bilateral and plurilateral free trade agreements (FTAs). The comment concludes that the IP chapters of FTAs throw light on what the two major demandeurs for stronger IP protection, namely the European Union (EU) and the United States (US), did not obtain in the TRIPS negotiations. It also draws attention to certain perceived shortcomings of TRIPS from the perspective of those with mainly defensive interests, but some offensive interests, namely most developing countries. The EU and US agreements are only used to illustrate these points, not to provide a comprehensive understanding of these FTAs. An attempt is made to unravel the puzzle of why developing countries seek and accept FTAs with TRIPS-plus IP chapters, what effect FTAs could have in multilateral IP negotiations on the positions of developing countries that are party to FTAs, and whether or not there is asymmetry in such FTA negotiations. Overall, this chapter concludes that the TRIPS Agreement does appear more balanced when seen from the perspective of the more recent bilateral or regional FTAs concluded by the EU and US.