Interpreting and Implementing the TRIPS Agreement Interpreting and Implementing the TRIPS Agreement Is it Fair? Edited by Justin Malbon Professor,Law School,Monash University,Australia and Charles Lawson Senior Lecturer,Law School,Griffith University,Australia Edward Elgar Cheltenham,UK • Northampton,MA,USA © The Editors and Contributors Severally 2008 All rights reserved.No part of this publication may be reproduced,stored in a retrieval system or transmitted in any form or by any means,electronic, mechanical or photocopying,recording,or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited Glensanda House Montpellier Parade Cheltenham Glos GL50 1UA UK Edward Elgar Publishing,Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number:2008927696 ISBN 978 1 84720 144 7 Printed and bound in Great Britain by MPG Books Ltd,Bodmin,Cornwall Contents List of contributors vi List of abbreviations vii 1. Introduction 1 2. TRIPS as competitive and cooperative interpretation 6 Christopher Arup 3. Knowledge diplomacy and the new intellectual property fundamentalism 31 Graham Dutfield 4. Last chance? Multilateralism,TRIPS and developing countries 46 Xu Yi-chong 5. Intellectual property protection after TRIPS:An Asian experience 71 Jakkrit Kuanpoth 6. The development-balance of the TRIPS agreement and enforcement of intellectual property rights 97 Ermias Tekeste Biadgleng 7. The evolution of the CBD’s development agenda that may influence the interpretation and development of TRIPS 131 Charles Lawson and Jay Sanderson 8. TRIPS-plus treaty terms:Dealing with coercion 159 Justin Malbon Index 185 v Contributors Christopher Arup– Professor,Monash University,Melbourne,Australia Ermias Tekeste Biadgleng– Programme Officer,Programme on Innovation and Access to Knowledge,the South Centre,Geneva,Switzerland Graham Dutfield– Professor,Law School,Leeds University,Leeds,United Kingdom Jakkrit Kuanpoth – Senior Lecturer, Faculty of Law, University of Wollongong,Australia Charles Lawson – Senior Lecturer, Law School, Griffith University, Australia Justin Malbon– Professor,Law School,Monash University,Australia Jay Sanderson– Senior Research Fellow,Australian Centre for Intellectual Property in Agriculture,Brisbane,Australia XuYi-chong – Professor,St Francis Xavier University,Canada vi Abbreviations AB:(WTO) Appellate Body ACP:African,Caribbean and Pacific Nations ASEAN:Association of Southeast Asian Nations AUSFTA:Australia-United States Free Trade Agreement BGB:German Civil Code Bürgerliches Gesetzbuch CBD:Convention on Biological Diversity Cipro:Ciprofloxacin,a drug produced by Bayer CISG:(UN) Convention on the International Sale of Goods COP:Conference of the Parties to the CBD CTE:(WTO) Committee on Trade and Environment DSB:(WTO) Disputes Settlement Body DSU:(WTO) Dispute Settlement Understanding EC:European Commission EPC:European Patent Convention EPO:European Patent Office or Organisation EU:European Union FAO:(UN) Food and Agriculture Organization FTA:Free Trade Area or Agreement GATS:(WTO) General Agreement on Trade in Services GATT:(WTO) General Agreement on Tariffs and Trade GSP:Generalised System of Preferences ICTSD:InternationalCentreforTradeandSustainableDevelopment IP:Intellectual Property IPR:Intellectual Property Rights ISOC: (CBD) Inter-Sessional Meeting on the Operations of the Convention ISP:Internet Service Provider ITU:International Telecommunications Union LDC:Less or Least Developed Country MFN:Most-Favoured Nation MTN:Multilateral Trade Negotiations NAFTA:North American Free Trade Agreement NGO:Non-Governmental Organisation OECD:Organisation for Economic Co-operation and Development PCT:Patent Cooperation Treaty vii viii Interpreting and implementing the TRIPS agreement RAM:Random Access Memory RTA:Regional Trade Agreement(s) SACU:Southern African Customs Union SUSFTA:Singapore-United States Free Trade Agreement TBT:Technical Barriers to Trade TIFA:Trade and Investment Framework Agreement TK:Traditional Knowledge TPM:Technological Protection Measures TRIMS:(WTO) Trade-Related Investment Measures agreement TRIPS: (WTO) Trade-Related Aspects of Intellectual Property Rights agreement TRIPS-plus: Provisions in free trade agreements relating to intellectual property rights that exceed TRIPS requirements TUSFTA:proposed Thailand-United States Free Trade Agreement UN:United Nations UNCTAD:United Nations Conference on Trade and Development UNDP:United Nations Development Program UNIDROITPrinciples:UNIDROITPrinciplesofInternationalCommercial Contracts UPOV:International Union for the Protection of New Varieties of Plants USTR:United States Trade Representative VUSBTA:Vietnam-United States Free Trade Agreement WCT:WIPO Copyright Treaty WHO:World Health Organization WIPO:World Intellectual Property Organization WPPT:WIPO Performances and Phonogram Treaty WTO:World Trade Organization 1. Introduction The European Patent Office recently released its report Scenarios for the Future addressing how intellectual property regimes might evolve by 2025 (European Patent Office 2007).While there seems little doubt that intellec- tual property is now entrenched as a policy instrument intended to promote creativity,invention and innovations that contribute to economic develop- ment, the form and content of how this should be attained remains con- tested. This edited collection enjoins the global intellectual property debate by offering a range of perspectives about how the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is and should be interpreted and implemented. Like the Scenarios for the Futurereport,the collection takes a broader view of TRIPS’interpretation, recognising that to attain legitimacy and public trust and support TRIPS implementation must accommodate a broad spec- trum of views anddeliver real and meaningful economic developments to a wider global community. According to the European Patent Office Report,the patent system must accommodate multiple players and stakeholders from different cultures and ‘with different worldviews and aspirations who are working towards different goals within a global environment’(European Patent Office 2007, p. 11). The challenge, the Report notes, is to find ways of meeting the specific developmental requirements of disparate nations at a global level, ‘because a system that blocks the access of poor people to essential drugs or food will eventually lose its credibility’(European Patent Office 2007, p.11).The Report also asks whether TRIPS is adaptable enough in the face of changing global priorities in areas such as health and development,and how TRIPS will cope as the balance of power creates antagonisms around natural resources and energy as consumption rockets.It is evident that the TRIPS debate is central to determining the way in which global intellectual property rights are to be given effect.The agreement offers potential as a means for promoting greater international equity and engagement with the world economy or as a tool for wealthy nations to extract excessive rents from poorer countries.This book engages in the debate by examining the interpretive possibilities of the TRIPS’text as well as the external threats it faces,particularly the threat of relative irrelevancy due to free trade agree- ments containing TRIPS-plus terms. 1