Trade-Offs and Transparency

Abstract

This opinion discusses and expands on some aspects of The Max Planck Institute for Intellectual Property and Competition Law’s ‘‘Principles for Intellectual Property Provisions in Bilateral and Regional Agreements’’ (MPI Principles). In trade negotiations, intellectual property has too often been used as a trade-off for other benefits. The MPI Principles highlight this trade-related function of intellectual property as a matter of concern; particularly because the ‘‘gain’’ for the intellectual property trade-offs (the losses) are often outside of intellectual property law. These losses are often in the form of TRIPS-plus commitments. What happened at the time of the TRIPS Agreement is an important background to understanding aspects of the TRIPS-plus agreements which have evolved since TRIPS came into force. One ‘‘narrative’’ is that many developing countries signed up to TRIPS in order to gain other benefits, such as market access gains or even being part of the World Trade Organization (WTO). The WTO is a single undertaking, meaning that its key agreements bind all members. In other words,