Toward a New Era of Objective Assessment in the Field of TRIPS and Variable Geometry for the Preservation of Multilateralism

The TRIPS Agreement emerged from the Uruguay Round negotiations as one of the three pillars of the WTO. This article offers a preliminary assessment of the first ten years under the TRIPS Agreement. Based on that assessment, it makes suggestions for the future. The objective of the principal developed country demandeurs of the TRIPS Agreement was to increase information and technology rent payments from developing countries. Incomplete implementation and enforcement was anticipated. Taking this into account, the Agreement has resulted in a substantial transformation of legal infrastructure in developing countries and has increased rent payment outflows to the owners of intellectual property (IP) rights. From this standpoint, the TRIPS Agreement has been successful in accomplishing its objectives. From the standpoint of developing countries, it is more difficult to identify positive effects. China is the major developing country success story of the past decade, and it has achieved its historic accomplishments in the face of intensive criticism of its IP regime. The TRIPS Agreement has come under harsh public scrutiny for the role attributed to it by the pharmaceutical industry in South Africa, ultimately leading to the Doha Declaration on the TRIPS Agreement and Public Health. As a consequence of a somewhat more balanced approach to TRIPS now achieved at the WTO, the United States in particular has shifted to bilateral and regional fora to obtain higher standards of protection and enforcement, calling into question the relevance of TRIPS Council deliberations. This article makes several recommendations. First, that new agreements concerning IP rights be subject to objective prior impact assessment. Second, that WTO Members give greater recognition to the fact that IP rules have significantly different public welfare implications depending on their field of application and the level of development of the implementing country. As the TRIPS Agreement transition periods have largely expired, the manner by which the TRIPS Council assesses its rules and makes provision for TRIPS-plus and TRIPS-minus adjustments might be restructured along industrial subject matter and developmental lines, taking better account of the impact-in-fact of IP rules on societies. In June 2004 a group of trade specialists was brought together at the World Trade Forum in Berne in a 'preliminary stocktaking' exercise to assess the first ten years of the World Trade Organization.1 This article was prepared for that occasion and addresses the Agreement on Trade-Related Aspects of Intellectual Property Rights (the 'TRIPS Agreement') on its ten-year anniversary. Copyright 2005, Oxford University Press.