DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

INTELLECTUAL PROPERTY RIGHTS IN WTO AND DEVELOPING COUNTRIES

FACULTY

VARSHITHA MANGAMOORI MA’AM

SUBJECT

INTERNATIONAL TRADE LAW

SUBMITTED BY:

ANULEKHA M.

2016060

SEMESTER VII

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 ACKNOWLEDGMENT

I would express my gratitude to VARSHITHA MA’AM for giving me this golden opportunity to
do a research on “INTELLECTUAL PROPERTY RIGHTS IN THE WTO AND
DEVELOPING COUNTRIES”. The research has been of great significance in understanding
the exhaustive aspects of the subject matter. I would also like to thank my friends and colleagues
who extended their support at every step.

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 ABSTRACT

TOPIC: INTELLECTUAL PROPERTY RIGHTS IN THE WTO AND DEVELOPING

COUNTRIES

Although it is common knowledge that the compliance of developing countries with the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) has become a
serious stumbling block in the WTO agenda, the underlying reasons why this is so have not been
dispassionately analyzed. Here, for the first time, is a thorough and secure foundation on which
international trade lawyers and business people can build a global intellectual property regime
that is both productive and fair. The implementation of the TRIPS regime with its enormous
effect on national and global strategies for healthcare, agriculture, and the environment, among
other crucial sectors of the world economy is clearly among the most critical projects currently
under way in the field of international relations. As a former TRIPS negotiator for India, brought
great authority to account of the benefits and pitfalls of TRIPS compliance for developing
countries and provided a detailed understanding of how TRIPS was negotiated at the Uruguay
Round, how various countries have implemented it so far, and how the WTO monitors
compliance and how the WTO dispute settlement process has worked to date in matters
involving TRIPS, and how it is likely to deal with new issues that arise. Most importantly, she
explains how developing countries can interpret TRIPS to their best advantage, and how to
ensure that the `constructive ambiguity' that characterizes the agreement remains flexible.

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 SYNOPSIS

Objective of the Study

The objective of the study is know about the Intellectual property rights in WTO and developing
countries.

Significance of the study

This study is expected to broaden the understanding of how WTO plays a major role with
regarding to the intellectual property rights in developing countries. It helps to know the way the
reports are given. This research work will facilitate further studies by other researchers who
showed an interest in understanding the concept of the Intellectual property rights in WTO and
developing countries.

Scope of the study

The study possesses some limitations. The entire study is based on the intellectual property in
WTO and developing and developed countries.

Research methodology

The research would be doctrinal in nature which refers to primary resources, as well as
secondary resources such as various commentaries, books, scholarly articles and web journals.

Research Hypothesis

Whether WTO play a major role intellectual property and in developing and developed
countries?

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 TABLE OF CONTENTS

INTRODUCTION………………………………………………………………………….…..6

INTELLECTUAL PROPERTY RIGHTS ……………………………………………….…...7

WIPO-REGULATED INTELLECTUAL PROPERTY CONVENTIONS: PROBLEMS

AND PROSPECTS……………………………………………………………………….….…8

THE PARIS CONVENTION…………………………………………………………………10

THE BERNE CONVENTION…………………………………………………………….….11

IPR PROTECTION IN THE TRIPS AGREEMENT………………………………….…...12

THE TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS

AGREEMENT……………………………………………………………………………..….14

THE WORLD TRADE ORGANIZATION AND INTELLECTUAL PROPERTY

RIGHTS…………………………………………………………………………………………15

PROVISIONS IN TRIPS FOR DEVELOPING COUNTRIES………………………...….17

POSITION OF DEVELOPING AND LEAST DEVELOPED COUNTRY MEMBERS

UNDER THE TRIPS REGIME………………………………………………………………18

DISPUTE SETTLEMEMT……………………………………………………………………20

CONCLUSION…………………………………………………………………………………21

BIBILIOGRAPHY………………………………….…………………………………………21

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 INTRODUCTION

The protection of intellectual property rights (IPRs) in developing and least developed countries
(LDCs) has been problematic and contentious since the beginning of international system for
such protection in the 19th century. The challenge arises mainly of ownership and use of IPRs.
The developed countries of the North hold the ownership of most of the IPRs goods. 1 They tend
to secure their investment through restrictive IPRs protection whereas the IPRs-using South
developing countries insist on the flexibility in IPRs appropriation in consideration of their
developmental needs. In formulating a way-out in such differing situations, there arise diverse
bargains between the stakeholders under different regimes but the IPRs owners' power-based-
bargaining strategies always seem to coerce developing countries in agreeing to the way-out.

The European colonial powers first conclude the Paris Convention for the Protection of
Industrial Property 1883 (Paris Convention)2 to start protection for their own industrial property
covering technology-based subject areas like patents, designs, trademarks, and so on. The
apparatus of colonial rule spreads such protection to IPRs-appropriating colonial societies,
largely in Asia and Africa under the auspices of the international intellectual property system.
After a short while, such western groups secure protection for copyrights as intellectual property
by adopting the Berne Convention for the Protection of Literary and Artistic Works 1886 (Berne
Convention).

These two treaties make efforts to firmly build the comprehensive framework for the World
Intellectual Property organization (WIPO)-led international system ensuring industrial property
and copyright protection respectively. However, developed countries hold the flexibility and
inadequacy of the WIPO regime responsible for resulting in piracy and counterfeiting of goods
and causing considerable loss to their trade revenues. On the other hand, the regime's restrictive

1
United Nations Development Programme, 'New technologies and global race for knowledge' in Human
Development Report (1999) 68 [hereinafter UNDP]. It states that ninety-seven per cent of patents in the world are
held in developed countries, whilst eighty per cent of patents in developing countries also belong to owners based in
developed countries - which leave developing countries with less than 1 per cent of the patents in the world.
2
International Convention for the Protection of Industrial Property 1883, signed 20 March 1883, 828 U.N. TS. 305
[hereinafter the Paris Convention].

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attitude towards IPRs protection seems to collide with the colonial societies' welfare needs based
upon the appropriating use of IPRs products.

In order to ease the conflicting situations, standard-setting of the IPRs-protection system and
assisting the process of technology-transfer from one country to another, especially from
developed countries to developing or least developed countries become necessary. Consequently
it results in creation of a new regime, which subsumes the WIPO regime in 1994. This new
regime moves on the wheels of the World Trade Organizations’ (WTO) Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPs Agreement)' and the WIPO treaties.

With the passage of time, the international IPRs protection system leaves the conceptual
difference between 'intellectual property' and 'industrial property'. It uses 'intellectual property'
for copyrights, patents, designs, trademarks, and technology-based inventions, such as computer
software, integrated circuits, and others. And the term becomes popular when industrialized
countries fall behind developing countries in the trade of manufactured goods and they
concentrate merely on IPRs goods.

INTELLECTUAL PROPERTY RIGHTS

Over the preceding half-century, ideas and knowledge have become a progressively important
part of world trade. A creative mind is a scarce commodity, to be found only infrequently.
Inventions, innovations, high technology products and processes, and medicines have intellectual
origin and high commercial value, so do works of literature and arts. Their inventors and creators
deserve to be compensated for the creative value inherent in these products, processes and
creations. They are the intellectual property or assets of the inventors and creators. Logically,
ethically and morally, they deserve to have a right to negotiate the commercial value of their
intellectual assets. Law grants exclusion of unauthorized use of intellectual assets.3

The World Trade Organization (WTO) defines intellectual property rights (IPRs) as the "rights
given to persons over the creations of their minds". For Keith Maskus, IPRs exist to "the extent
to which their owners may exclude others from activities that infringe or damage the property".
Thus, IPRs set out and protect the boundaries of legal means of competition among firms seeking

3
Intellectual Property Rights and the Doha Round by Dilip K. DAS

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to exploit the value of creative assets. Efforts to extend the rights beyond these boundaries are
denied in principle.

An established IPR regime gives the inventor or creator an exclusive right over the use of his or
her creation, albeit for a certain period of time. The IPRs customarily fall in two areas: rights
related to copyrights (or artistic property) and those related to industrial property. The first
category of IPRS are those possessed by authors and artists for their literary writings, artistic
works, musical compositions, paintings, sculpture, computer programs and movies. These IPRS
are protected for half a century after the death of the author or artist. The fundamental objective
of protecting IPRs is to "encourage and reward creative work"4 and its owner, which can be an
individual or a corporate entity.

IPRs that relate to industrial property are further sub-divided into two main categories: the first
can be characterized as the protection of distinctive signs, in particular trademarks, and
indications of geographical origin, commonly referred to as geographical indications (GIs). The
latter identify a product as originating in a place, where a given characteristic of the product is
essentially attributable to its geographical origin. The GIs play an important role in signaling a
certain level of quality. The best illustration of GIs is Champagne, which originated in the
Champagne region of France and is respected for its superior quality by consumers. 5 Its quality
imparts it its commercial value.

Trademarks are used commercially to distinguish goods and services of one business corporation
from another, thus aiding both the consumer and the producer. These signs enable consumers to
make informed choices in the market. The objective of protecting these distinctive signs is to
stimulate and ensure fair competition. Protection of this kind of IPRs can last indefinitely.

The second category of industrial property IPRs, relates to invention, innovation, technological
advancement, designs and industrial processes, and is protected by patents. Such protection
primarily stimulates invention, innovation, design and the technological advancements. The
4
Refer to the Website of the World Trade Organization (WTO): What Are Intellectual Property Rights?, available
at: <www.wto.org/english/tratop_e/trips e/intell _e.htm>.
5
Trademarks and indications of geographical origin are markedly different from each other. For instance,
trademarks belong to a commercial enterprise and are not limited by any territorial link, whereas geography is at the
heart of the geographical indications (GIs). Besides, the GIs are not limited to any particular commercial enterprise
but enjoyed by all enterprises within the demarcated geographical area that meet the stipulated requirements for use
of the geographical indication.

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objective of providing protection to inventors and designers is to protect their investment in new
technology development as well as "giving them incentive and means to finance research and
development activities”. Patents for inventions, trademarks for commercial branding, and
copyrights for artistic and literary works are all a form of monopoly power in a commercial
context.

WIPO-REGULATED INTELLECTUAL PROPERTY CONVENTIONS: PROBLEMS

AND PROSPECTS

The WIPO-driven international intellectual property protection regime commences its mission
with the aim of 'developing a balanced and accessible international intellectual property system,
which rewards creativity, stimulates innovation and contributes to economic development while
safeguarding the public interest.6 To this end, the regime carries out the global promotion and
protection of IPRs. While doing so, the administration of the Paris and Berne Unions 7 created by
the Paris and the Berne Conventions respectively is required to secure economic development
and safeguard public interests. However, the aims of securing owners' interests and safeguarding
public interests appear contradictory to each other and hence, create conflicts between IPRs-
owning developed countries and IPRs-using developing and least developed countries.

THE PARIS CONVENTION

The Paris Convention is the first international convention that comprises the international
protection regime for TPRs. Article 2 of the Paris Convention speaks of the 'national treatment
principle' with regard to industrial property, currently known as intellectual property. It says that
a member of the Convention must grant the same industrial property protection to nationals of
other member countries as it provides to its own nationals. 8 This provision is considered to serve
the trade interests of developing and least developed countries in spite of the fact that these
countries have a little involvement with producing and trading of IPRs goods. On the other hand,
this provision creates an immediate concern for IPRs-owning developed countries since a
country offering no intellectual property protection to its nationals, does have no obligation to
provide any protection for the nationals of other countries.

6
'What is WIPO?' <http://www.wipo.int/about-wipo/en/what is wipo.html>
7
Paris Convention Article 1 and Berne Convention Preamble.
8
Paris Convention Article 2.

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The Convention also guarantees the 'right of priority' to foreign nationals of member countries,
who have applied for a registration of their rights in another member country. To put it another
way the 'right of priority' offers protection to 'the first to invent or create, rather than the first to
file or reproduce. This provision goes in favor of IPRs-owning nationals of developed countries
since they are given the priority right of IPRs protection for a longer period of time. However,
this provision goes against the interests of developing and least developed countries since the
prioritized right of protection tends to monopolize the owners' IPRs regardless of places and
takes away earlier the users' comparative advantage of reverse engineering.

Additionally, the Paris Convention does not require member countries to provide patents for
inventions such as pharmaceuticals and chemical substances. On taking this flexibility of the
Convention, member countries use discretionary powers to reject inventions from being
patentable. As a result, the unauthorized copying of unpatentable inventions, which are patented
in another country, becomes legitimate in countries exercising this discretion. 9Again, the Paris
Convention does not fix any minimum term for patents. Hence, a shorter-term patent encourages
earlier access to legitimate copying. In addition, the Paris Convention also creates the possibility
of granting compulsory licenses in relation to patents in order to prevent the abuses in exercising
exclusive rights. However, this provision gets heavily restricted to certain cases of national
emergency or other circumstances of extreme urgency. This restrictive approach on compulsory
licensing undermines the protection of public interests in developing and least developed
countries in dire necessities.

THE BERNE CONVENTION

To protect in as effective and uniform a manner as possible, the rights of authors in their literary
and artistic works' through copyright as 'intellectual property', comes the Berne Convention. 10
Like the Paris Convention, the Berne Convention provides for 'national treatment principle'
requiring member countries to give the same rights to works originating from other member
countries as they give to works of their nationals. This is considered to be more efficient than the
Paris Convention since the protection of author's rights in each member country under the Berne
9
Stephen P Ladas, The International Protection ofIndustrial Property (1930) 54.
10
Berne Convention Preamble

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Convention should be unconditional and independent of the existence of such protection in the
country of origin. In addition, the Berne Convention does not offer satisfactory recognition and
protection mechanism for neighboring rights. As a result, it encourages breach of these rights in
computer software, video movies, motion pictures and so on.

IPRS PROTECTION IN THE TRIPS AGREEMENT

The TRIPs Agreement fits in with the WTO's free trade agenda when it incorporates trade
liberalizing principles of MFN and national treatment, and shares the WTO's strong dispute
settlement mechanism. Being included in the trade-related Uruguay Round package, the TRIPs
Agreement makes all IPRs as trade related rights and adopts extensive provisions for IPRs
protection and anti counterfeiting.' Its protected areas include copyright and related rights,
trademarks, geographical indications, industrial designs, patents including plant variety
protection, layout designs (topographies) of integrated circuits, and protection of undisclosed
information known as trade secrets. The Agreement requires the member countries to maintain
minimum standard for such IPRs protection. It gives the Members liberty to decide on the
appropriate method of IPRs protection within their own legal system and practice, and to provide
more extensive protection if they so wish.

THE TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS

AGREEMENT

The international law in the area of IPRs was fairly underdeveloped and was unable to serve the
rapidly integrating global economy in an efficacious manner. During the 1980s, a pressing need
for systemic improvement was felt by both the developing and the industrial country Members of
the WTO. One consequence of this pressure was the increasing number of bilateral, regional and
sometimes multilateral negotiations on IPRs. Important as IPRs and their protection were, they
were taken up at all three levels. The industrial economies had fairly well-developed norms in
this regard. Over the 1990s, several developing and transition economies also developed
minimum standards in this regard in an extensive manner.

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The Uruguay Round (1986-94) is a watershed in this regard. Before the launch of the Uruguay
Round, there was no specific agreement on IPRs within the framework of the multilateral trading
system. IPRs were regarded as the domain of the specialist organizations, treaties and
conventions in this area. However, some principles contained in the General Agreement on
Tariffs and Trade (GATT) had a bearing on intellectual property measures taken on imports or
exports. Article xx (d) of GATT-1947 (now Article xx (d) of GATT-1994) specifically referred
to intellectual property rights11.

The multilateral negotiations during the Uruguay Round altered this status by incorporating IPRs
into the multilateral trading system. The Trade-Related Aspects of Intellectual Property (TRIPS)
Agreement was negotiated during the Uruguay Round, and came into force on 1 January 1995,
introducing IPRs into the multilateral trading system for the first time. Conclusion of the TRIPS
Agreement was a noteworthy achievement. It is a key agreement of the WTO, widely regarded
as a significant institutional improvement, and is often described as one of the three "pillars" of
the WTO. The other two pillars are trade in goods and trade in services.

The TRIPS Agreement is still considered a work in progress. It is the first step in the
consolidation of multilateral regulations in the area of IPRs. As it deals with a complex issue, it
surely would take a while before the structure of multilateral regulations in IPRs reaches
maturity. As its language and terminology is far from perfectly clear and it is expected that
clarifications on meanings and implications will take some time. Many terms do not have their
legal definitions as yet and there is little case law regarding implementation of the Agreement.
The WTO Members face commercial and legal pressure to adopt the TRIPS Agreement in their
legal systems. Members can still question and contest any of the TRIPS articles that are in
conflict with their existing domestic or international law. Also, Member countries can define the
terminology to suit their national interest. All this is currently tolerated under "constructive
ambiguities" to conceal major disagreements.

11
In the economics of international trade, the two expressions, namely, the GATT-1947 and the GATT-1994, are
frequently used. The difference between the two is that the latter is the revised version of the original Agreement of
1947. The text of the Agreement was significantly revised and amended during the Uruguay Round and the new
version was agreed upon in Marrakesh, Morocco. Apparently, the GATT-1994 reflected the outcome of the
negotiations on issues relating to the interpretations of specific articles. In its renewed version, the GATT-1994
includes specific understandings with respect to GATT Articles, their obligations and provisions, plus the Marrakesh
Protocol of GATT-1994.

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Attempts to improve and strengthen the contemporary IPR regime and take it beyond its current
minimum-standards-status are constantly being debated and even negotiated in bilateral, regional
and sometimes multilateral negotiations on IPRs. A propensity to widen the scope and subject-
matter of IPR protection is clearly discernible among a sub-group of WTO Members, namely the
industrial economies. The IPR regime would eventually be progressively harmonized for all the
WTO Members and is expected to be strong on enforcement. One of its likely outcomes would
be the weakening of special and differential treatment (SDT) for the developing economies in
this area as well as a reduction of some of the flexibilities that they currently have the benefit of.

It is to be expected that countries with widely varying levels of economic development and
capability for innovation and technological development would have dissimilar interests in
protecting intellectual assets. They would also have disparate inclinations and ability to enforce
the protection of IPRs in their respective economies. A multilateral agreement could be
instrumental in bringing much needed uniformity in this regard. The TRIPS Agreement that was
negotiated during the Uruguay Round was an attempt to narrow the gap in the manner in which
IPRs are protected around the world. It is formally known as Annex 1C of the Marrakesh
Agreement or the GATT-1994.12 The Marrakesh Agreement is the cornerstone of the
contemporary global trading system. A body called the Council for TRIPS was created for
administering and monitoring the TRIPS Agreement, particularly its operational aspects. It is
open to all Members of the WTO. The Council for TRIPS also meets in "special sessions". These
are intended for negotiations on a multilateral system for notifying and registering GIs for wines
and spirits, under the Doha Development Agenda (DDA).

THE WORLD TRADE ORGANIZATION AND INTELLECTUAL PROPERTY RIGHTS

At the top of the international hierarchy of treaties and conventions lies WTO's Agreement on
Trade-Related Aspects of Intellectual Property Rights, or the TRIPS Agreement. Like the
General Agreement on Trade in Services (GATs), this is another agreement that extended the
reach of the GATT system to issues beyond trade in goods in the WTO system. The five broad
issues covered by the TRIPS Agreement are: (i) how basic principles of the trading system and

12
The Marrakesh Agreement was signed on 15 April 1994 in Marrakesh, Morocco. Trade Ministers who
participated in the Uruguay Round signed the results of the seven-and-a-half years of trade negotiations-about sixty
agreements and a decision totaling around five-hundred-and-fifty pages-as the Uruguay Round was formally
concluded.

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other international intellectual property agreements should be applied; (ii) how to give adequate
protection to the intellectual property rights; (iii) how countries should adequately enforce those
rights in their own territories; (iv) how to settle disputes on intellectual property between
Members of the WTO; and (v) special transitional arrangements during the period when the new
system is being introduced.

Different kinds of intellectual property rights and how to protect them also come within the
ambit of the TRIPS Agreement. The purpose is to ensure that adequate standards of IPR
protection exist and are maintained in all WTO Member countries. The TRIPS Agreement (refer
to Section II) starts with ensuring that the main international agreements of the World
Intellectual Property Organization (WIPO), which came into force long before WTo was created,
are observed. As the TRIPS Agreement is essentially based on the WIPo framework, it would be
worthwhile to know what it is. The genesis of WIPo goes back to 1883. The early 1880s are
known for several famous innovations, works of art and intellect, including Johannes Brahms'
composition of his Third Symphony, the publication of Robert Louis Stevenson's Treasure
Island, and the construction of New York's Brooklyn Bridge by Emily and John Roebling. The
two principal conventions on IPRs that come under WIPO are: the Paris Convention for the
Protection of Industrial Property (1884), which was the first international treaty which helped
people of one country obtain protection in other countries for their intellectual creation. It
covered patents, trademarks and industrial designs. The second, the Berne Convention for the
Protection of Literary and Artistic Works (1886), covered copyright on novels, poems, plays,
songs, operas, drawings, paintings and sculptures. The current membership of WIPO is one
hundred and eighty countries.

In accordance with WTO customs and norms, the TRIPS Agreement allows different WTO
Members different time periods to delay applying its provisions. The industrial economies were
granted a transition period of one year, while the developing and transition economies had four
years to comply with the provisions of the TRIPS. The least-developed countries (LDCs) were
granted a longer transition period, of a total of eleven years, with possibility of extension.13

In 2004, the UN classification of least-developed countries (LDCs) included fifty countries, of which thirty were
13

Members of the WTO and five were observers

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Also, in keeping with the contemporary policy penchant of WTO, the TRIPS Agreement paid
particular attention to the needs of the developing economies, particularly LDCs. This concern of
the TRIPS is noted in its preamble. That developing economies, in particular LDCs, need to
develop a technological base was identified as an important concern by WTO Member
economies. Therefore, this country group has been allowed "maximum flexibility" in the
domestic implementation of the TRIPS Agreement so that these economies are able to develop
and sustain an increasingly sound technological base, which in turn may provide an impetus to
their real gross domestic product (GDP) growth rate. This is one of the noteworthy objectives of
the TRIPS Agreement. TRIPS Article VII is important in this regard: it focuses on “transfer and
dissemination of technology, to the mutual advantage of producers and users of technological
knowledge”.

PROVISIONS IN TRIPS FOR DEVELOPING COUNTRIES

The TRIPS Agreement codifies the international intellectual property standards that are
prerequisites to accession to the WTO - indeed, TRIPS is a significant component of the
foundation upon which the WTO is established." Developing nations, in their haste to enjoy the
benefits of membership of the WTO, are thus bound by an agreement the full implications of
which are not largely understood. Despite the fact that most developing countries are net
importers of intellectual property and can, in all probability, never hope to be a net exporter,
senior policy workers from many such countries have expressed support for the globalization of
intellectual property.

Prior to the formation of the TRIPS Agreement, Peter Gakunu 14 argued that to prevent a system
detrimental to the interests of developing countries, international protection of intellectual
property needs to be on the basis of national treatment - ensuring non-discrimination between
foreigners and nationals and between different foreign nationals - and that reciprocity is 'an
unwarranted regression from this standard.15 Yet a system of reciprocity is precisely what the
TRIPS Agreement establishes.

14
Chief, Trade Cooperation Division African, Caribbean and Pacific Group ofStates (4CP Group), Brussels,
Belgium
15
Gakunu P, 'Intellectual Property: Perspective of the Developing World', 1989 Georgia Journal of International and
Comparative Law 19 at 364

15
Transitional Arrangements- Part VI of TRIPS explains how Members may apply certain
transitional arrangements. The TRIPS transitional arrangements provide a grace period and grant
exceptions to the applicability of TRIPS to certain Members. For example, under certain
circumstances, TRIPS allows developing country Members and Members which are
transforming their economies from centrally-planned to market-oriented economies more time in
which to adhere to TRIPS provisions.

The obligations under the Agreement apply equally to all Member countries, but developing
countries have a longer period to phase them in. Developed countries were given until 1996 to
comply with TRIPS, developing countries until 2000, and the least developed countries until
2005. There is also a five-year moratorium (until 2000) on all countries using the WTO
Agreement's dispute resolution procedures to resolve IPR disputes.

For those countries on the United Nations list of least-developed countries, the transitional period
is eleven years, and the Agreement provides for the possible extension of the transitional period
upon duly motivated request.

After the transitional period expires, by refusing to implement the WTO treaty a developing
country might be taken to be signaling that it no longer wished to participate in the multi-lateral
trading system. Trade isolationism is a dangerous path on which to set out.

POSITION OF DEVELOPING AND LEAST DEVELOPED COUNTRY MEMBERS

UNDER THE TRIPS REGIME

The comprehensive and stringent TRIPs standard-setting for the international protection regime
prescribes the paradigm domestically enforceable for IPRs protection as a condition of
membership of the WTO.16 Economic development ensuring a balance of rights and obligations
of IPRs owners and their users. However, the standard set by the TRIPs Agreement seems to
prioritize the interests of IPRs-owning developed countries over those of IPRs-using developing
and least developed in several respects:

16
Michael Blakeney, 'International Intellectual Property Jurisprudence after TRIPs' in David Vaver and Lionel
Bently (eds), Intellectual Property in the New Millennium: Essays in Honour of William R. Cornish (2004) 3.

16
  Developed countries are ahead in technological knowledge, investment and risk-taking
required for new inventions. With the gradually increasing demand for new inventions,
they manufacture information and technology-based products and marketise them in the
world market. The appearance of the TRIPs Agreement expedites the commercialization
of knowledge-based products and makes developed countries sole manufacturers and
exporters of technologies from the very beginning of the TRIPs protection regime. For
developing and least developed countries that are reluctant in TRIPs protection, the
TRIPs Agreement is expected to prepare a level playing field enabling them upright by
providing necessary support.17 However, the undefined way of such support leaves them
volatile in the technology-trade competition. The rise of knowledge-based industries with
the help of the TRIPs Agreement undermines their comparative advantage in reverse
engineering and demoralizes their capacity to manufacture industrial goods at a
comparatively cheaper cost. As a result, developing and least developed countries
become merely users rather than owners of TRIPs.
 The TRIPs protection regime comes up with its stringency for all IPRs. This stringency in
protection seems to block free trade principle of the WTO and create monopolization in
the IPRs owners' hand. Such goings-on are alleged to make the poor peoples of these
countries pay soaring price for food security, livelihood of farmers, public health and
technology transfer.18 As regards health, the World Health Organization (WHO) states,
where most consumers of health are poor, as are great majority in developing countries,
the monopoly costs associated with patents can limit the affordability of patented health
care products required by poor people in the absence of other measures to reduce prices
or increase funding.'
 As a part of fulfilling such TRIPs commitment, the government departments in Member
countries require submission of secret test or other data to approve the marketing of
pharmaceutical products using new chemical entities. While doing so, the government
departments are under obligation to protect such data from unfair commercial use.
However, the submission requirement concerns the pharmaceutical industry and the
developing and least developed countries. This is because the data or secret test submitted

17
1Agreement between the World Intellectual Property Organization and the World Trade Organization Article 4.
18
Laurence R Helfer, 'Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual
Property Lawmaking' (2004) 29(1) Yale Journal of international Law 1.

17
 to the government departments are sometimes stolen and used for producing fake
medicines. This causes loss to pharmaceutical industry for their investments. This also
causes tensions to developing and least developed countries in deteriorating health with
substandard or fake medicines.
 The TRIPs Agreement recognizes GI especially in regard to wines and spirits, and it
includes a provision that negotiations on the establishment of a multilateral registration
system for wines should be undertaken. A number of developing and least developed
countries show grievances to this provision and seek similar specific attention extended
to other products such as India/Pakistan's Basmati rice or Darjeeling tea and so on.
 At the time of protection-standard-setting, the TRIPs Agreement takes into account of the
trade-oriented IPRs-protection rules prevailing in developed countries. 19 These rules are
often considered to be less sensitive of biodiversity and traditional knowledge (TK) since
developed countries are poor in bio-diversity and TK. They currently account for only ten
per cent of the world's biodiversity and hence they take least care of them. As a result,
while providing for patents in technology products or processes made of biodiversity and
TK, the TRIPs Agreement does not make any reference to bio-diversity or TK or their
time immemorial nurturers developing and least developed countries. 20 It hardly looks
into benefit sharing for using these resources, and above all, the existing socio-economic
conditions of these countries dependent on them. For this reason, the standard set up by
the TRIPs Agreement results in a huge conflict between developed and developing
countries on TRIPs-protection.
 Because of weak economic conditions, developing and least developed countries struggle
with the cost of implementation and enforcement of the TRIPs Agreement. At the time of
reviewing the World Bank Project, Finger and Schuler notes that restructuring of TRIPs
and other related fields would cost each developing and least developed country some
150 million dollars, almost larger than a full year's budget in many of the least developed
countries.21 The restructuring of TRIPs through implementation and enforcement requires

19
See Adrian Otten, 'Implementation of the TRIPs Agreement and Prospects for Its further Development' (1998) 1
Journal of international Economic Law 523, 532.
20
Frederick MAbbott, 'TRIPs in Seattle: The Not-So-Surprising Failure and the Future of the TRIPs Agenda' (2000)
18 Berkeley Journal of International Law 165, 171.
21
J M Finger and Philip Schuler, 'Implementation of Uruguay Round Commitments' (2000) 23(4) WorldEconomy
511-25.

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 developing and least developed countries to adopt appropriate legislation to bring judicial
and administrative procedures in line with the Agreement. It also requires personnel
trained with the knowledge in TRIPs. The costs of such compliance are promised to be
borne by developed countries. However, the way how the costs will be borne is not
mentioned in the Agreement.

DISPUTE SETTLEMENT

Part V of TRIPS provides the parameters of dispute resolution and settlement, making disputes
between WTO Members in respect of the TRIPS obligations subject to the WTO's dispute
settlement procedures. TRIPS requires that Members publish or otherwise make available laws,
regulations, and certain other legal documents, and generally disclose to requesting Members
information regarding its compliance with transparency requirements.22

Members risk the loss of certain benefits and other adverse consequences if they fail to adhere to
their obligations under TRIPS.

Unlike the GATT system, the WTO integrates all the dispute- settlement procedures established
under individual agreements (goods, services, TRIPS). Disputes involving TRIPS or other
aspects of the Uruguay Round agreement will be handled by the WTO General Council, acting
as the Dispute Settlement Body.

If a dispute settlement panel finds inadequate IPR protection or enforcement in a member

country, the signatory bringing the complaint will have the right to retaliate in other sectors. So
far there has been only one case to reach final judgment in the WTO dispute settlement panel
involving a claim under TRIPS- brought by the United States against India in 1996. All other
cases brought to the panel have been settled bilaterally between the parties.

CONCLUSION

The TRIPS Agreement has profound implications for the development options of developing and
least developed countries. There are, however, ways in which WTO members could shape the
TRIPS Agreement with a view to pursuing legitimate socio-economic and development goals. In

22
TRIPS Agreement, Article 63.3, 63.4

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the context of reviewing the agreement’s specific provisions, this paper provides some ideas on
how members, given the political will, could reduce the agreement’s development deficit.

Developing countries have little choice but to implement the protection measures detailed in the
TRIPS Agreement. However, there is considerable room for flexibility. The case for a gradual
and flexible approach should be put strongly - the preamble to TRIPS recognizes 'the special
needs of the least developed country Members' for 'maximum flexibility in the domestic
implementation of laws and regulations in order to enable them to create a sound and viable
technological base'.

Additionally, in order to achieve genuine uniformity of intellectual property protection,

cooperation between industrialized and developing nations is essential. One of the often ignored
benefits of expecting lower or modest levels of IPR protection is that it would discourage the
divergence of valuable resources into wasteful, rent-seeking activity. In my research I got to
know that WTO plays a major role in developing countries in the matters of intellectual property
rights.

BIBILIOGRAPHY:

Online sources: Hein online

https://unctad.org/en/Docs/ditctncd20068_en.pdf

https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm

https://unctad.org/en/Docs/ditctncd20068_en.pdf

Articles:

Simons, JoshuaJ. (1999) "Cooperation and Coercion: The Protection of Intellectual Property in
Developing Countries," Bond Law Review: Vol. 11: Iss. 1, Article 5.

Problems And Politics Of Iprs Protection From Wipo To Wto: The Case Study Of Bangladesh
By Mohammad Towhidul.

Protecting and Enforcing Intellectual Property Rights in Developing Countries by RONALD J.

T. CORBEr

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