TRIPS Amendments Needed To Restore Balance In IP, Researchers Say

Current global intellectual property obligations are seen by some as favouring rights holders to the detriment of the public interest, and a series of amendments to international rules on trade and IP could address this, says a new book from a European think tank.

On the side of this week’s meeting of the World Intellectual Property Organization Committee on Development and Intellectual Property (CDIP), a dialogue on future directions for IP was convened on 4 May. At the side event, a book was presented containing a series of proposals for reform of the 2004 WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The book entitled, Intellectual Property Rights in a Fair World Trade System: Proposals for Reform of TRIPS, is edited by Annette Kur, research fellow on intellectual property and competition law at the Max Planck Institute in Munich. TRIPS has been the target of criticism in recent years for its alleged biased approach.

One of the aims of the book is to raise awareness for “the need to halt the spin towards ever increasing levels” of IP protection, according to Kur. “What we propose is not revolutionary,” she said, it is merely a reading of TRIPS from a public interest point of view.

The book calls for a number of amendments to TRIPS. For instance, Article 7 on objectives would be “fleshed out” so that it is not solely focused on innovation and technology transfer. Instead, it would also concern “cultural development and the enhancement of creativity, taking due account of the larger public interest, particularly in education, research and access to information and knowledge for all,” according to the proposed amendments [pdf].

Furthermore, Article 7 should promote “competition and fairness in trade in the interests of creators, authors, inventors and other producers, traders and consumers,” the list of proposals said. And it should “ensure to the advantage of society as a whole, a balance of rights and obligations, so that, in particular, the scope of the protection conferred by an intellectual property right corresponds to the contribution made to creativity and innovation.”

Article 8 on principles would be lengthened to include an “Article 8a” on balance of interests, stating in particular that members shall ensure “that the protection granted reflects a fair balance between private economic interests and the larger public interest, as well as the interests of third parties.”

Also, an Article 8b would be added on the interface between IP rights and competition law, asking members “to provide for legislative or administrative measures, in particular in the form of limitations of the rights or in the form of compulsory licences, if the use of the product protected by an intellectual property right is indispensable for competition in the relevant market, unless the application of such measures would have a significant negative effect on the incentives to invest in research and development.”

In Article 13, on limitations and exceptions, the book proposes mandatory copyright limitations, Kur said. The proposed amendments suggest the extension of the limitations to a number of actions such as reproduction for technical purposes with legitimate use, reverse engineering necessary to achieve interoperability, news reporting, illustration for teaching and scientific research.

The book also proposes a new Article 41a on remedies against mala fide use of IP rights, where members “shall provide for proportionate, efficient and deterrent remedies against mala fide use of intellectual property rights, in particular the making of unjustified threats.” There should be “equality in arms,” Kur said.

According to Tony Taubman, director of the WTO Intellectual Property Division, there is a review process built into TRIPS, but it has not been widely used, and there is some untapped potential for discussion on TRIPS.

In the “mystical search for balance,” Taubman said, what would be better: to have a more precise and focused exceptions and limitations as binding laws, or to stick to the existing approach establishing broad principles and leave countries to apply those principles as they wish. This is an “enormous debate,” he said.

It is important, Taubman said, to ensure that domestic policymakers have adequate knowledge and the confidence to go forward with certain options within the international legal framework.