Implications for the WTO

Under the Doha Round of negotiations negotiated by WTO members from 2001 onwards, and also known as the Doha Development Agenda, as the stated focus is intended to be upon improving trading conditions for developing countries, certain revisions to the TRIPS Agreement were scheduled for discussion (World Trade Organisation 2016). The only IP issue that is definitely part of the Doha negotiations is the development of a multilateral register for the geographical indications for wines and spirits. Additionally, other current prominent issues under debate include increasing technology transfer to least-developed countries and the issue of “non-violation” complaints, that is disputes involving the loss of an expected benefit even though the TRIPS Agreement has not actually been violated, as well as the relationship between TRIPS and biodiversity and traditional knowledge (Taubman, Wager and Watal 2012). Although the latest round of trade negotiations appears to have stalled, it is crucial at this juncture to urge the WTO to consider the perceived equity in TRIPS obligations in any revisions that may be negotiated. Clearly, the existing TRIPS Agreement suffers from a perception that it favours developed country members over the interests of developing country members and any future negotiations may offer the ideal opportunity to right this perception. Negotiators of the potentially updated TRIPS Agreement should also consider the precision of the obligations when drafting the revisions and amendments to the 1994 Agreement in order to increase compliance.

However, although ideally the updated TRIPS Agreement would be perceived to be equitable to all members, regardless of their stage of development, and the substantive obligations would be completely precise, in practice, this is unlikely to be achieved. There is a perceptible tension between the internationalisation versus the indigenisation of IP laws, as such rules clearly need to be adapted to local conditions but also need to comply with international standards. As a result, there is very little policy space within which IP standards can be flexed to fit the conditions in each specific WTO member (Ruse-Kahn 2011, p. 33). Unfortunately, the nature of the WTO as an international trading system means that it encompasses many issues, not just that of intellectual property. Therefore, TRIPS negotiations are part of a larger game of give-and-take between members and cannot be considered in isolation, and it would thus be highly improbable for major changes to be made to the TRIPS Agreement in isolation. In addition, although the role of the Council for TRIPS has largely been a positive one in encouraging compliance with the TRIPS Agreement, the Council could further pressure developed country members to increase cooperation and technical assistance under Article 67 and to fully comply with Article 68, regarding technology transfers to less-developed country members. These steps would further boost the available incentives for compliance.

In addition, when negotiating China’s accession protocol, China’s preferred designation as a developing rather than developed country was a contentious issue. However, following WTO accession, China does not wish to be labelled as a developing country due to the implications for cases of alleged antidumping. As a result, the WTO needs to consider establishing a clear definition or workable criteria for designating new members as developed or developing countries consistently in order to avoid such wrangles in the future. The final implication for the WTO concerns the dispute settlement process. This process seems generally satisfactory as, contrary to concerns prior to China’s accession in 2001, the process has not been swamped by China-related disputes. In fact, the dispute settlement process has offered a useful alternative to the threat of unilateral sanctions by trading partners such as the US, which were prevalent in the 1990s. The dispute settlement process could thus be used to encourage non-members to join the WTO framework of protection as a way to avoid such unilateral pressure.