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Critical Analysis Of Trips Agreement

Unlike other IP agreements, TRIPS have an effective enforcement mechanism. States can be disciplined by the WTO dispute settlement mechanism. In addition to the basic intellectual property standards set out in the TRIPS agreement, many nations have committed to bilateral agreements to adopt a higher level of protection. This collection of standards, known as TRIPS or TRIPS-Plus, can take many forms. [20] Among the general objectives of these agreements is: Robert Wade (2003) proposes that this is a clear “reduction of the development space”: a reduction in the political autonomy of States, which denies them the paths of development that others have followed before them. Moreover, the agreement is “at points where indeterminacy benefits industrialized countries and at specific points where accuracy works against developing countries” (Wade, 2003: 630). The commitments of developing countries and the rights of developed countries are far more applicable than the development rights and duties of developed countries. For example, despite the clearly defined objective of Article 66.2 on technology transfer, there is little evidence of sustained efforts by developed countries to meet these commitments (Moon, 2008). The few quotas granted to developing countries under the TRIPS agreement can therefore be considered insufficient and the many restrictions far too restrictive.

As Constantine Michalopoulos (2003) points out, TRIPS does not offer the same range of “special and differential treatments” (TDS) as other WTO agreements. At the end of transitional periods, developing countries will have to apply the same level and duration of protection rules, regardless of the circumstances, as the most developed countries. Any form of permanent TDS is not an option: least developed countries can no longer exempt sectors from protection or shorten the duration of patents to accommodate social or economic concerns. Therefore, the flexibility of the agreement, as seen above, is limited. The standard line of support for TRIPS stems from the recognition of the current importance of the knowledge and private intellectual property (IP) economy as an important element of international trade (WTO, 2008: 39). Differences of opinion on the protection of intellectual defences and the lack of intellectual property protection are significant non-tariff barriers to trade, and TRIPS are the result of a strong multilateral framework that replaces an ineffective patchwork of IPR agreements[i] (Matthews, 2002: 10-12). That is why, for the first time, the TRIPS agreement introduced a minimum global standard for intellectual property protection, to which all WTO members must comply. These include copyright, trademarks, industrial designs, geographical indications, patents, integrated circuit designs, trade secrets and restrictions on anti-competitive contracts. Like other WTO agreements, it applies the fundamental principles of non-discrimination – treatment of the most favoured nation (no discrimination between trading partners) and national treatment (foreigners on home have the same treatment as their own nationals – The 2002 Doha Declaration confirmed that the TRIPS agreement should not prevent members from taking the necessary measures to protect public health.

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