Critical Analysis Of Trips Agreement

Following the Uruguay Round of trade negotiations, the World Trade Organization entered into force on 1 January 1995. In addition to the Agreements on Goods and Services (GATT) and Services (GATS), the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is one of the three pillars of the new multilateral trading system (WTO, 2008: 24). Although it is the first comprehensive and enforceable global agreement on intellectual property rights (IPR), it has been the subject of much criticism since its inception (Sell & Prakash, 2004). This document describes the main arguments for and against TRIPS, which gives a skeptical assessment of its legitimacy and effectiveness. It begins with the main arguments in favour of TRIPS before critically examining the recent history of the agreement and evidence of intellectual property in general. The paper then discusses the impact of TRIPS on economic development and concludes that the criticisms leveled at the agreement are largely convincing. TRIPS conditions that impose more standards beyond TRIPS were also discussed. [38] These free trade agreements contain conditions that limit the ability of governments to create competition for generic drug manufacturers. In particular, the United States has been criticized for encouraging protection far beyond the standards imposed by TRIPS. U.S.

free trade agreements with Australia, Morocco, and Bahrain have extended patentability by requiring patents to be available for new uses of known products. [39] The TRIPS Agreement allows for the issuance of compulsory licences at the discretion of a country. The more ad hoc conditions provided for in the free trade agreements between the United States and Australia, Jordan, Singapore and Vietnam have limited the application of compulsory licenses to emergency situations, antitrust measures and cases of non-commercial public use. [39] The legitimacy and effectiveness of the TRIPS Agreement are clearly subject to much criticism, particularly with regard to developing countries. It is remarkable that even prominent proponents of free trade, such as Martin Wolf (2005: 217), criticize the „hypocrisy” of TRIPS and see it as a means of rental extraction for many developing countries, with potentially devastating effects on education, public health and economic development. Even in the countries that seem to benefit most from the agreement, the benefits can only benefit certain parts of society, so that „the real winners of TRIPS are not advanced countries, but the large corporations that have insisted on its adoption” (Archibugi & Filippetti, 2010: 144). TRIPS has also failed to address policymakers` concerns, as trade balances have further eroded, while the recent focus on private rights may even contribute to a long-term impediment to innovation and knowledge diffusion in developed countries (Hesse, 2002). While Archibugi & Filippetti (2010) warns against too much importance for TRIPS, it is clear that the agreement is not working as announced. From a global perspective, it seems clear that adopting a uniform approach to the use of protection pathways is totally inappropriate. A graduated system offering more substantial and differentiated treatment according to the development needs of countries would have been more appropriate.

It remains to be seen, however, whether a major reform of the agreement is likely, given that TRIPS is now firmly anchored in the WTO system. . . .

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