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wipo academy summer school - panorama of TRIPS

Overview of IP rules in international trade law and policy

Antony Taubman

on 12 July 2010

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Transcript of wipo academy summer school - panorama of TRIPS

WIPO Academy Summer School:
a panorama of current TRIPS issues Marrakesh 1994: Final Act of the Uruguay Round:
An integrated package of trade law treaties, unprecedented in
the scope of issues covered
the detail of obligations entered into.
Uruguay Round 'single undertaking' a central part of the international legal landscape.

1. TRIPS: recognized that trading partners have a legitimate interest in how they protect each others’ IP 2. WTO, a new international organisation, administering a complex package of multilateral agreements, building IP integrally into the architecture of trade law 3. uniform dispute settlement mechanism, enabling a country to defend its economic interests in the protection of IP rights, through a legal process TRIPS: Agreement on
Trade-Related Aspects
of IP Rights OR Agreement that IP
trade-related ... including three remarkable developments... From IP as a possible EXCEPTION to trade rules... ... to IP as the SUBJECT of trade rules... Each of these a negotiated outcome, not an inevitability ... and the very idea of TRIPS and its place in the WTO were challenged Trade theory: economic benefits from more open markets But TRIPS is about restricting trade (while maintaining legitimate trade) In what sense is TRIPS about "market access''? So - 15 years later - where are we now? ... to a kind of trade IN IP? An idea of "legitimate trade"?
A role for trade rules in suppressing "illegitimate trade"?
Roots of TRIPS in GATT work on counterfeit trade
while TRIPS was being concluded:
Technological change, and the pure trade in knowledge products:
international trade in digital products
detaching the value of intellectual works – like songs, news articles, and software – from the physical media that carried them
creating a growing trend towards transactions purely in knowledge products.
Intangible factors figured into economic growth theory:
‘new growth theory’ the development of new technology and human capital had been considered as external (‘exogenous’) when modeling economic growth;
new growth theory included these factors as ‘endogenous’ and sought to build them into economic model.
“most important job for economic policy is to create an institutional environment that supports technological change.” (Paul Romer)
IP takes central place in economic strategies and trade interests:
innovation and technological development as a central ingredient in economic development
seeing technology and human capital as a factor of production, alongside the classical factors of land, labour and capital stock.
closer attention paid to how it should be managed.
strategic approach to knowledge management as an integral part of their economic infrastructure.
Mobile phone ringtones up to 10% of music market
January 2010:
3 billion iPhone Apps in 18 months;
10 billion iTunes downloads
1995: Predicting trade in bits
not trade in atoms (Negroponte) BUT SOME QUESTIONS REMAIN Law and policy:
is TRIPS about 'market access'?
what is the basis for a TRIPS dispute?
'nullification and impairment of benefits'?
but what benefits?
what is 'legitimate' and 'illegitimate' trade? Empirical, methodological:
How to count or measure the IP component of trade in goods?
How to count or measure the IP component of trade in services?
How about trade in IP licenses? And today's policy issues? From the 'IP and trade' debate... (or does IP have a legitimate place in the trade law system; if so, what is it?) To the "TRIPS and..." debates TRIPS and health TRIPS and human rights TRIPS and biodiversity TRIPS and development TRIPS and food Access to medicines...
linking policy choices under TRIPS to innovation models and access strategies Geographical indications:
what is the penumbra of protection around a GI?
and who determines whether a term has GI status? Enforcement of IP:
what is "legitimate trade"?
in enforcement procedures, how to balance right holder interests with other legitimate interests? Is there (still) a global law of IP?
Is there a common conception of 'legitimate trade' that holds it together?
Back to the 'IP and trade' debate.... From a review of biotech patenting...
to a debate over TRIPS consistency with the Convention on Biological Diversity
amend the basis for securing a patent?
how to monitor and enforce obligations to share equitably the benefits of genetic resources?
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