The Objectives and Principles of the TRIPS Agreement

Abstract

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.