T.R.A.D.E. Occasional Papers 3 December 2000

Introduction 

1. This paper provides some reflections on the review of the TRIPS Agreement required under Article 71.1. It notes the need for a full review of the Agreement from a development standpoint, in line with the decision of WTO Members at the General Council Meeting of 7 February 2000, which provides that “The General Council also agreed that mandated reviews should address the impact of the agreements concerned on the trade and development prospects of developing countries.”1 It suggests that the review should carefully examine the impact of implementing the TRIPS Agreement on developing countries, and should acknowledge that intellectual property protection is not an objective in itself and should thus be viewed in the context of the trade and development conditions in these countries.

2. In Section II, the paper commences with a discussion of the scope of the review. Section III explores a number of issues that have been identified by developing countries as relevant to the Article 71.1 review. It begins by examining the TRIPS Agreement’s objectives and principles, including the need to maintain a balance of rights and obligations. It then identifies the importance to WTO Members of gaining experience about the potential impacts of implementing the Agreement on the transfer and dissemination of technology, competitive markets, and the capacity of Members to maintain a balance of rights and obligations by establishing exceptions to the rights of, and applying obligations to, title-holders. The Section concludes by suggesting that Members should extend the moratorium on the application to the Agreement of the non-violation remedy, and explore the possibility of bringing the Agreement into line with other WTO Agreements by inserting general exceptions to ensure that, in the event of conflict, intellectual property rights are not given preeminence over other important national policy goals.

3. The discussion in this paper is not intended to provide a comprehensive overview of these subjects, but rather to provide a useful starting point for developing countries when considering how to approach the Article 71.1 review.

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