Should there be a single global institution with exclusive competence to conduct international negotiations on intellectual property rights? If so, should this be WIPO, the WTO or some other body?

INTRODUCTION

For harmonizing IPRs at the international level, providing a common forum for negotiation and resolving disputes between members state we need a single global institution. Earlier WIPO was the main forum for international negotiations of IPR and then WTO implemented the TRIPs agreement came and become the main forum replacing WIPO. Both these institutions’ working method is different, and also their reason for coming to existence. WIPO came into existence because of voluntary participation of member’s state for protecting IPRs by way of multilateral Paris and Bern Conventions mainly and afterward other conventions under WIPO. And WTO, if be specific TRIPs came into existence because of the failure of WIPO to protect IPRs of developed states in developing countries. This essay will primarily focus on WIPO and WTO, why WIPO failed and WTOs TRIPs survive and why WTO should be a single global institution to conduct negotiations on IPR.

WIPO: TOOTHLESS GLOBAL INSTITUTION

WIPO administers two main multilateral treaties which are the Paris Convention for the protection of Industrial Property 1883 and the Bern Convention for the protection of Literary and Artistic Works 1886. Under these Conventions, signatories agreed to provide national treatment for foreigners under domestic law without any discrimination. However, these conventions lacked detailed rules on enforcement of rights and binding mechanisms to settle disputes between states. Also, these conventions suffered from the reluctance of some countries to become signatories as they thought it’s against their national economic interests, e.g. the USA, USSR, China, etc. WIPO is like a democratic institution; it has always respected the interest of each member state and never concluded treaties without ratification of each member state. As time passed by WIPO tried to amend Treaties but because of no consensus between developed members state and developing member state it failed to do so and developed countries remained unhappy with it. The main reason was the lack of effective enforcement mechanisms so that developed members state cannot enforce IPRs on other member states who infringed it.

EMERGENCE of WTO’s TRIPs

By the 1980s, the USA had realized that it was a net producer of intellectual property-based goods and, along with EC and Japan, began to advocate for higher levels of IPR protection on a global basis. Frustrated by the difficulties encountered under traditional treaty arrangements of WIPO, the developed countries began to employ tactics that were much more aggressive than WIPO. The Intellectual property Committee (IPC) of the USA, with Japan and Europe draft a proposal and presented it to the General Agreement on Tariffs and Trade (GATT) secretariat in 1988. By 1994, IPC achieved its aim in the Agreement on Trade-related Aspects of the Intellectual Property Rights of the Uruguay Round and became the part of the World Trade Organisation. Acceptance of TRIPs is the mandatory condition of becoming a member of the WTO.

TRIPs AND DEVELOPING COUNTRIES

During initial negotiations of Uruguay Round many developing countries, led by India and Brazil, questioned exposure of intellectual property for GATT, emphasizing the WIPO as the perfect forum for IPR. They opined that over the protection of IPR means impeding the transfer of technology and increased cost of pharmaceutical and agrochemical products as the result of patent protection. Negotiating this opposition by way of multilateral discussions was not the actual story but use of threat of bilateral trade sanctions being brought by the USA under Special 301 of the Omnibus Trade and Tariff Act of 1988. The USA made its first use of Special 301 against India, China, and Thailand. The widespread use of Special 301 and carrying out the threat to impose trade sanctions encourage developing countries to accept the TRIPs agreement. Ultimately developing countries traded off intellectual property rights against rights in agriculture and/or textiles, and for better dispute settlement procedures and less unilateral action by the USA.

ADVANTAGES OF WTO’s TRIPS OVER WIPO

TRIPs recognize basic principles of national treatment (treating one’s own nationals and foreigners equally), and most-favored-nation treatment (equal treatment for nationals of all trading partners in the WTO). TRIPs ensured that adequate standards of protection exist in all member countries including standards employed in WIPO administered Paris and Bern Conventions. WTO has an effective enforcement mechanism that deals with domestic procedures and remedies for the enforcement of intellectual property rights. And also Dispute settlement system between WTO Members about the respect of the TRIPS obligations subject to the WTO’s dispute settlement procedures. It also has special transitional arrangements during the period when the new system is being introduced, for developed state 1 year, developing state 5 years and least developed state 11 years. WIPO-WTO Cooperation Agreement, 1995 suggests a mutually supportive relationship between WIPO and WTO. All these ensure that the WTO implemented TRIPS got an edge over traditional WIPO so there is no doubt that WTO should emerge as a single global institution for IPR.

CONCLUSION: WTO

Intellectual property evolved in developed countries as a social and economic need, they have a different level of IPR protection while developing and now they are fully developed and needed a higher level of IPR protection than ever, the same thing is happening with developing and least developing countries they need a different level of IPR protection than developed countries and not forcing of IPRs contrasting to their economical and social needs. Striking balance between developed and developing countries interests is the gist of successful global institutions. WIPO failed to do that, WTO managed to balance these two contrasting interests by various measures till now effectively sometimes by diplomatically sometimes by “carrot and stick approach”, therefore WTO should be a single global institution with exclusive competence to conduct international negotiations on IPR.

About the Author: Mr. Vinayak Aher, Trade Mark Attorney in Khurana & Khurana and can be reached: Vinayak@khuranaandkhurana.com.

 

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