Talk:TRIPS Agreement/Archives/2012

Clinton/Bush TRIPS complaints

I just removed this section from the article

Use for enforcement of industrial espionage cases

The Clinton Administration submitted and won 13 TRIPs international intellectual property theft cases. As of August 2005, the Bush Administration has not submitted any.

(Because it was inaccurately titled, lacking any context, and seemed like a misguided partisan attack). It would however be worth reintroducing this data, especially if there is any information about why the change has been so marked. Weaker influence of IP industries on the GOP (seems unlikely to be that different)? Doha? The move to post-TRIPS bilateral ratcheting?

Miscellaneous

This should be at TRIPS Susan Mason

Yes. According to the WTO website (and some of the documents there) it looks like the acronym should be TRIPS not TRIPs.--Malcohol 12:44, 2 Mar 2005 (UTC)

the objective of TRIPS is to limit the use of IPR as a trade barrier!

I don't wish to insinuate anything, but as someone once put it, "what are you smoking, and where can I get some?". -- pde

This lead article is highly contentious and un-informative

To say this:

"Since TRIPs was enacted, it has received a growing level of criticism from developing countries, academics and NGOs. But because of the rule-making processes in the WTO, and the technical complexities of the laws in question, anything short of widespread and intense political opposition is unlikely to decrease the power of TRIPs."

... is substituting uninformed (minority) opinion for information. There is not one of the 150 (or so) governments of the WTO that has shown the least intention of derogating from the TRIPs agreement. It's not, as this article insinuates, a plot or a trick or a legal deadlock. The TRIPs agreement is actually a very useful -- although certainly imperfect -- improvement on the WIPO Agreements and Conventions that were formerly the only common global regime for IP rights.

But as I understand it (please correct me if I'm wrong on any of this), states are unable to derogate from TRIPs without leaving the WTO? So if they want global market access, they need to implement TRIPs as it stands? And most of those countries have tiny delegations in Geneva, with little or no expertise in the economics of IP (and basically none back when TRIPs was been developed). Brazil, India, and maybe South Korea were the only potential actors on this, but they'd already been worn down by bilateral conflicts with the U.S. and were completely outgunned and outmanoeuvered in the lead-up to the Doha round.

Who needs this common global regime? Everyone who needs IP rights or benefits. That's just about everyone there is. For example, I'm working with a Bangladesh academic at present (September 04) to tell the story of the successful attempt of a popular Bengali band to protect their music from being ripped off by a Bollywood studio for a big-budget Indian film. They won the protection of the Indian courts because India has implemented the TRIPs agreement.

I'm not claiming that there are no international free rider problems which are addressed by international agreements on IP. The unfortunate thing about TRIPs is that it mandates that those problems must all be addressed by heavy reliance on the metaphor of physical property, which, when applied to non-rivalrous goods, can be a very long way from optimal.

A good example is the way that TRIPs erased India's custom-designed pharmaceutical patent regime, which allowed 7-year patents on manufacturing processes, but not molecules themselves. That system provided incentives to find new, more efficient ways of making known drugs cheaply, which both addressed Indians' needs and springboarded the development of a world-class generics industry.

As you point out correctly, there are some individuals and firms in the developing world who have and will continue to benefit from expanding IP laws. But net-IP-importing states which have had to expand copyright and patent laws, are likely to be losing a lot more in combined royalty outflow and deadweight loss than they gain in terms of extra cultural and technical production. Most of the people in these (predominantly poor) states would have been better off with no international IP agreements, than with TRIPs. On this scale, TRIPs is taking from the poor to give to the rich.

There are other models for how international agreeements (see, for example this article by Tim Hubbard and Jamie Love) could sensibly address free riding in information production, while allowing experimentation with different kinds of incentive structures, and avoiding the problems of one-size-fits-the-globe exclusive rights.

And as for patents 'undermining public health in Africa', this is a shamefully silly statement. Not even African governments claimed that was the case. In fact the problems with the public health exceptions already built into the TRIPs agreement in 1995 were more apparent than real. Six months after the problem was 'solved' at the Cancun meeting of WTO in September '03, NOT ONE AFRICAN government (nor any other) had taken advantage of the expanded exceptions.

I agree with you on some of those details, but not the main point. The dynamics of the essential medicines crisis in the late 90s, as I understand it, typically involved private threats from senior U.S. officials, to the ministers supervising African bureaucrats who were counternancing compulsory licenses, claiming that those licenses would be in breach of TRIPs.

If one of those African states had gone through the dispute settlement process, they would probably have won on Article 30. But in practice, TRIPs was playing a key role in preventing states from even trying to implement compulsory licenses.

Once there was a clear, prominent, signal like Doha (or the more recent acceptance of generics as a solution by the Bush Whitehouse), African states were in practice able to use pre-existing avenues for solution.

Peter Gallagher

-- pde 08:08, 10 Sep 2004 (UTC)

I am no expert in this area, but I found this article biased, though probably not inaccurate. It's if the author of the "Controversy" section is unaware of or finds utterly implausible the idea that patent rights, which economically incentivize research (e.g. into life-saving drugs), are fair, or even beneficial to third-world countries. There's a casual and careless mention of "inequity" without describing what the inequity is. I have no clue what the author thinks the inequity is. Is it that third-world countries rarely create things worth patenting? Then there is the globalization stuff. Enforcing patent rights worldwide embodies everything wrong about globalization. Well, I don't know what the author is talking about here either--it just sounds like non-substantive anti-corporate ranting.

The fact that drugs patented in advanced countries could save millions of lives in third-world countries definitely belongs in this article. But I don't want to read an article in which I feel the author is without doubt of one political persuasion and seems oblivious to sound counterarguments.

--Rmalloy 18:35, 25 August 2005 (UTC)

• Yes, there has been systemic bias in the way IP and IP systems have been characterised in this and related articles, and the "critique" has often come at the expense of content. On the plus side, the articles are slowing maturing. 203.198.237.30 07:55, 26 August 2005 (UTC)

Technicity & policy

Edcolins, in this edit, you seem to be implying that the question of whether software ideas are technical is a "matter of fact", and not an arbitrary question of defining words one way or another. Am I correct? If so, why do you think that? -- pde 04:03, 1 Dec 2004 (UTC)

Thanks for your question. I didn't mean to imply at all that the software patent issue is a matter of facts only. I would say it is more a matter of defining the words, and especially the expression software patent (see the definition section about this issue), when one looks at the applicable legal provisions (e.g. TRIPS, Art. 27). It is also a matter of economic policy (for proposed changes to the applicable laws). Within my previous edit, I removed:

"In this situation, highly esoteric legal questions, with socially and rhetorically constructed answers, have become the medium through which political contests are fought."

This sentence does not add anything to the article, especially to the previous sentence. That's why I removed it. The extent to which inventions related to software should be patentable under TRIPs is subject to a controversy. Period (for this article at least). More facts might be added in Software patents under TRIPs. Does this answer your question? --Edcolins 10:02, Dec 2, 2004 (UTC)

Creation, protection, and regulation of intellectual property rights

Intellectual property rights are the availability of the legal system to curtail certain actions on the part of others.

The only coherent sense in which TRIPS "protects" these rights is that it prevents member states from restricting their scope or abolishing them. I'm pretty sure that isn't what User:203.198.237.30 means by "protecting intellectual property rights".

Admittedly, the expression "protection of intellectual property" is often used to mean strengthening or the enforcement of IPRs, or expanding their scope. The latter use is propaganda. The former, on examination, is a confused application of a metaphor to physical property. Physical property may need to be "protected" from people who would damage or steal it. But copyrighted works and patenable inventions (etc) cannot usually be damaged. Intellectual property could imaginably be stolen though some kind of fraud, but that's pretty rare. Infringement may harm the commercial position of an IP owner in a number of ways, but it neither damages nor steals the intellectual property itself. -- pde

There is a helluva lot of unpacking to do with these general comments, which cannot be properly done here. But for a start, the first statement above is inaccurate, as some IPRs only permit a right holder to do certain things.

GIs? Good point, they're exceptional and I hadn't been thinking about them. Frankly, calling them "intellectual property" is only going to confuse our poor readers. Outright "monopoly" is probably better in that case!

And a view which denies that TRIPs does not set down minimum standards for the protection of IPR is plainly wrong. Whether characterised as 'propoganda' or not (how helpful is this?), definitions of some IPRs are clearly expanded by TRIPs (eg. the definition of a trade mark).

Agreed. But in those cases, TRIPs isn't protecting some separate, universal, rights. It's mandating their creation.

And on the use of the term propaganda: when something which is actually "the expansion of X", or "the creation of X", is re-labelled "the protection of X", there is no other appropriate description. "It was there already, we're just protecting it". Many people soak up that propaganda and repeat it, without really thinking about it — though I'm sure if often affects their thinking. You and I should do our best to avoid that kind of linguistic confusion.

This discussion could usefully move away from grievances over the use of 'protection' versus 'regulation', but if we want to bang on about an international IP treaty which exclusively regulates, let's do that with say, the Trademark Law Treaty. The article is not primarily a 'philosophy of IP' article and the article should not be overtaken with such a critique. The first sentence needs to refer to protection, not just regulation (and "minimum standards of regulation for most forms of intellectual property" is more accurate than the current "minimum standards for most forms of intellectual property regulation") — 16 Mar 2005

Okay, I think I've just realised the problem. I've been using the word "regulation" in its dictionary sense, which is very general. Perhaps you are reading in some more technical meanings? I saw the current wording as stating succinctly that these diverse forms of (legal/social/bureaucratic regulation) must follow certain minimum standards of form and strength. Can we think of another word that does the same job, without ambiguity or incorrect implications? Minimum standards for intellectual property laws or rules perhaps? Some of the enforcement provisions fall outside this scope but they are genuinely peripheral and can be addressed in other ways.

I agree that this article isn't on the philosophy of IP. But we, its authors, can be mindful of that philosophy when writing it. People working on other IP related articles should do the same! Anyway, I wonder if you've been reading the word "regulation" completely differently to me. Or whether there might be some other word, which satisfies your instinct for "protection" without running into my objections? -- pde 12:53, 17 Mar 2005 (UTC)

=Panel Reports== (Draft, has been copied to the main article)

According to WTO 10th Anniversary, Highlights of the first decade, Annual Report 2005 page 142, in the first ten years, 25 complaints have been lodged leading to the panel reports and appellate body reports on TRIPS listed below. All panel reports are accessible over this WTO gateway, listing 144 documents as of July 2005.

2005 Panel Report: European Communities - Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs.

2000 Panel Report Part 2 and 2000 Appellate Body Report Canada - Term of Patent Protection.

2000 Panel Report (Part 1) Part 2 United States - Section 110(5) of the US Copyright Act.

2000 Panel Report Canada - Patent Protection of Pharmaceutical Products.

2001 Panel Report and 2002 Appellate Body Report United States, Section 211 Omnibus Appropriations Act of 1998.

1998 Panel Report India - Patent Protection for Pharmaceutical and Agricultural Chemical Products.

1998 Panel Report Indonesia - Certain Measures Affecting the Automobile Industry.

Question: The 10th anniversary report cited above says that panel reports have been adopted in nine cases. What are the three cases missing from the list above?

The WTO documents are a mess. One of the missing decisions is UNITED STATES - SECTION 211 OMNIBUS APPROPRIATIONS ACT OF 1998 (the "Havana Club" case); I don't know about the other two. Also, it'd be best to link to PDF versions of each report (some of your links are to word documents).

If further googling doesn't help, you could try getting a copy of a relevant review article, eg, Frederick M. Abbott, WTO Dispute Settlement Practice Relating to the Agreement on Trade-Related Intellectual Property Rights, in THE WTO DISPUTE SETTLEMENT SYSTEM 1995-2003, 421-453 (2004).

-- pde 06:02, 20 July 2005 (UTC)

Thanks for the pointer. I have integrated that case into the list. I have also found at worldtradelaw.net PDF versions for the files I could not locate as PDFs on the WTO site and replaced the links to word documents accordingly.

-- Karl-Friedrich Lenz 21 July 2005

Controversial edit

The current revision may include this edit. This comes from an anonymous account used by User:Michaellovesnyc, who has been warned numerous times about pushing his point of view over on Mail-order bride, and has occasionally vandalized other articles. Since I don't know anything about this topic, someone who does should decide whether this edit is valid or should be reverted. --Grace 02:54, 5 June 2006 (UTC)

Moved from page

This text didn't fit into the article, but if anyone can find useful material in it, it's here... —The preceding unsigned comment was added by Pde (talk • contribs).

See also Post TRIPS Effects By Sagar Mohanty. --Edcolins 22:08, 27 February 2007 (UTC)

Post TRIPS Effects

by Sagar Samrat Mohanty

The TRIPS Agreement, which came into effect on 1 January 1995, is to date the most comprehensive multilateral agreement on intellectual property.

1. For the purposes of the TRIPS Agreement, “intellectual property” refers to: ... all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the agreement (Article 1:2). This includes copyright and related rights, trademarks, geographical indications, industrial designs, patents, integrated circuit layout-designs and protection of undisclosed information. As the post TRIPS effects, all member countries show their enthusiasm to protect all these rights of their citizens and to enforce them in their countries.

2. Strong patent protection is adopted by most of the countries.

3. Previously a plurilateral system of trade exists between the countries and the world is lacking of a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods. But after TRIPS a multilateral framework developed.

4. The TRIPS agreement helped a lot to the developing countries to grow their economic activity.

5. In the post- TRIPS era, signatory countries are required to establish a prescribed minimal level of IPR protection. This is, and has long been, a contentious matter for countries where the costs of strengthened IPR in royalty payments is easily identified.

6. Better insights into the positive benefits of enhanced IPR allowed national governments to plan economic policy more effectively, as well as providing a counter to the voices, such as those heard in Seattle in 1999, which are roundly condemning much of the globalization taking place under the WTO process. In the developing countries, strengthened IPR are a particular target of that rhetoric.

7. Before TRIPS the investment in research and development, were not meaningful. But in post TRIPS era countries began to invest more in R & D.

8. In post TRIPS era every developing countries try to produce a state-of-art product to patent it. The graph can state the point.

9. Effect of TRIPS in INDIA in pharmaceutical industry

• 5321 unique drugs listed • 4577 have no patents listed on the Orange Book • 799 drugs which do have a least one patent (map to 1760 issued U.S. patents) • 361 drugs with 1 or more patent with post– 1995 priority(623 patents) • 155 of these have Indian patent applications (160 unique Indian applications) 10. Due to the introduction of strong IPRs pharmaceutical multinationals are now advantageously placed to control the knowledge diffusion and integrate the local capabilities of a country like India in to their own myopic and narrowly benefiting innovation strategies.

Retrieved from "http://en.wikipedia.org/wiki/Post_TRIPS_Effects_By_Sagar_Mohanty"

This page was last modified 21:08, 27 February 2007. All text is available under the terms of the GNU Free Documentation License. (See Copyrights for details.)

Not a Treaty?

Technically (at least under US law), TRIPS (and for that matter, GATT) is not a treaty, it's an international agreement, specifically (in the US) an "executive agreement." A treaty is a form of an international agreement that is ratified by the Senate and is considered actual law under Article VI of the US Constitution. In the case of GATT (which included TRIPS), the agreement was negotiated by the President and then voted into statutory law by both houses of Congress. It's the enacted law, not the agreement itself, that is the law.

I realize the above analysis is US-centric; however, even the names of the documents indicate that they were not intended to have treaty status: the General Agreement on Tariffs and Trade; the Agreement on Trade-Related Aspects of Intellectual Property Rights. Contrast this with agreements that are clearly treaties, which are generally captioned as "Treaty" or "Convention," e.g., the WIPO Copyright Treaty or the Berne Convention for the Protection of Literary and Artistic Works.

I've updated the text to say "international agreement" rather than "treaty," which is not incorrect (since a treaty is a type of international agreement).

Terry Carroll 03:08, 3 May 2007 (UTC)

According to Treaty, this distinction doesn't apply outside of the US, so from an international perspective the terms are interchangeable. However, "international agreement" is no less right, so seems a better choice if it avoids confusion in the US.

--Dan (talk) 03:42, 12 March 2009 (UTC)

No discussion of Benefits

While I do not object to a Criticism Section it seems odd that it is not balanced by a Benefits Section. This makes this article highly biased. — Preceding unsigned comment added by 216.2.60.194 (talk) 14:45, 7 October 2011 (UTC)

The goals stated by the backers of TRIPS are supposed to be beneficial, so the discussion of the goals is supposed to cover the benefits.

That said, "criticisms" sections are usually a bad idea. Criticism should be integrated into the related sections instead of being presented in isolation. Gronky (talk) 10:07, 22 May 2012 (UTC)

Who is bound by TRIPS?

I've read a few related articles and my current guess is that all members of the WTO are bound by (are a "member" of) TRIPS. So, there are currently 155 countries who are "members" of TRIPS, and Russia will be a member soon, and Iran will then be the biggest economy which is not a member. Right? Gronky (talk) 09:26, 22 May 2012 (UTC)