A contentious agreement
Of all the agreements administered by the World Trade Organisation (WTO), the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) is undoubtedly the most controversial with respect to its development-related impacts. The agreement requires all WTO member states to establish minimum standards of legal protection and enforcement for a number of different forms of intellectual property rights (IPRs). Many developing countries hold that the TRIPS agreement — which came into force in 1995 — is unbalanced in that it favours developed countries and transnational corporations, and at the same time is unhelpful or even harmful to their own interests. In addition, concerns have been raised about the moves to ensure that developing countries accept higher standards of intellectual property protection than the WTO requires, even before they have determined how best to implement the TRIPS agreement in ways that support economic development and poverty alleviation. Non-governmental organisations have criticised TRIPS on the grounds that it imposes various costs on developing countries — such as more expensive drugs, agricultural inputs and foreign-owned technologies — without producing sufficient longer-term gains in areas like trade and investment. Developed countries tend to counter that strong IPR protection will attract investment to developing countries and stimulate local innovation and creativity. In this way, they say, the poorer countries have nothing to fear from TRIPS.
The development of TRIPS
The rights covered by TRIPS include copyright and related rights; trademarks; geographical indications; industrial designs; patents; layout-designs of integrated circuits; protection of undisclosed information (trade secrets); and control of anti-competitive practices in contractual licences. The standards of protection and enforcement required of WTO member states are very high, in that they are essentially those that developed countries themselves have only recently reached. In that sense, TRIPS marks a coming together of three trends in international IPR law whose beginnings date back to the end of the nineteenth century but that have become especially apparent in the last two decades. The first trend embodied in TRIPS has been the widening of the scope of subject matter that can be protected, and the reduction or elimination of 'exceptions'. Common examples of the latter, some of which are required by TRIPS, include the extension of copyright protection to computer programs, which are now treated as literary works, and the application of patent protection to plants, animals, micro-organisms, DNA sequences, and pharmaceuticals. In many countries drugs had been excluded from patent protection on the grounds of public interest. The second trend is the addition of new types of rights to the global IPR regime such as plant breeders' rights, and rights to layout-designs of integrated circuits (which is explicitly required by TRIPS). The third is the progressive international standardisation of the basic features of IPRs. For instance, patent regulations increasingly provide protection for a period of 20 years from the date of application. Until recently there was wide variation in timescales between countries. Also, patent applications in almost all countries must now be subjected to literature searches and examinations to ensure that what they describe is genuinely new, inventive and industrially applicable. Moreover, patent rights are now almost universally assigned to the first applicant rather than the first inventor (except in the United States where it is the opposite). Intellectual property and development
The precise nature of the link between IPRs and economic development is unclear. The main issue is not whether or not IPRs can further economic development. In fact most governments agree that they can and do....