What are those “trade related aspects” anyhow? Relocating IP in today’s WTO

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The Fordham spirit (adapted for public sector use) Learn Debate Keep Your Job No views or analysis to be attributed to the WTO, its Secretariat or its Members

Marrakesh 1994: 1.TRIPS Agreement: trading partners have a legitimate interest in how IP is protected: an agreement that IP is trade-related; 2.uniform dispute settlement mechanism: IP-related economic interests defended through a legal process, linking them to other conventional trade interests 3.WTO as new international organisation: law and policy of IP, and its administration, integral to multilateral trade architecture;

Geneva 2011: 1.TRIPS Agreement as a set of norms: limited scope of norm-setting activities – April package; 2.uniform dispute settlement mechanism: litigation rare; leverage for market access; India/Brazil complaint: generics in transit; is TRIPS a ‘market access’ agreement? 3.WTO as an international organisation: TRIPS implementation yields policy insights; trade policy reviews, RTAs; IP-related aspects of trade: policy analysis: ‘Made in the World’ project.

Geneva 2011: 1.TRIPS in the Doha Round: –Multilateral GI register (adapted Uruguay Round built in agenda) –Implementation issues : TRIPS-CBD, GI extension (nature of mandate still contested; elements link back to built-in agenda) –TRIPS amendment – access to medicines (distinct Doha mandate)

April

What lessons from Doha dynamics? Positive interests of developing countries; Not standalone work on ‘technical IP’ issues –‘coherence’ debates – IP/ trade law and MEA (CBD-TRIPS linkage) patents and public health (Doha + Protocol) –A development debate – e.g. wider context of local branding (complex GI debate) –Links with other international processes Yet Doha issues – significant in themselves – hardly represent the full range of current IP law and policy issues of international concern

TRIPS in public policy TRIPS as a benchmark, or proxy for modern IP system, in countless policy processes: –Right to health –Right to food –Climate change –Biodiversity –Copyright limitations and exceptions –Bilateralism debate (‘TRIPS plus’ ) –Development programs (including IP + trade) Whose TRIPS? What role for the Secretariat?

Dispute settlement Against early fears of ‘legal harassment’ under TRIPS, 153 members, on average 2 TRIPS disputes per year, rate dropped since 2000; most settled or effectively withdrawn without a panel finding. In 16 years, 12 determinations of TRIPS non- compliance, most concerning developed countries. –No ‘sanctions’ for noncompliance –One agreed arbitrated compensation (EU v US) –3 formal findings of non-compliance by developing countries. Developing countries use TRIPS to leverage market access outcomes in other sectors.

TRIPS in the WTO 16 years on, legal/institutional place of TRIPS still not entirely settled: –What is the cause of action for a TRIPS dispute? –Is it a ‘market access’ agreement? What benefits can trading partners legitimately expect regarding IP? –Scope and modalities of TRIPS disputes unresolved during Uruguay Round, and the sole TRIPS issue before minsters at 2009 Ministerial Conference –Operationally not a major issue; but symptomatic of theoretical uncertainty

TRIPS in the WTO: institutional experience Notified laws of 128 distinct jurisdictions 6,500 legal texts –over 150,000 pages 100 overviews of enforcement mechanisms Over 800 TRIPS Council review documents –detailed record of unique multilateral review LDC process – identifying and meeting individual priority needs Trade policy review, accessions, regionals

TRIPS in the WTO Strengthening conceptual and empirical understanding of IP within a global trading system Made in the World Initiative –For advanced industrial countries, services (R&D, transportation and insurance) and intellectual property rights may take a much larger share in the domestic content of a manufactured product than manufacturing per se. The ‘iPod economy’ The ‘iTunes economy’ Negroponte: “from trade in atoms to trade in bits”

From a document backlog to a policy tool TRIPS 63.2: improving “timeliness and completeness” of notifications of legal texts WIPO-WTO common portal Moving from a registration function to an information service: –e.g. how have countries in our region, at our state of development, our trading partners used policy options on: Scope of protected subject matter Exceptions and limitations Regulation the exercise and enforcement of rights

Getting a perspective on national and regional policymaking and normsetting activity on IP and trade issues Trade Policy Reviews; RTA database 98 notified RTAs with specific IP provisions

From “trade-related aspects of IP” to “IP-related aspects of trade”?