LEAST DEVELOPED COUNTRIES AND THE TRIPS AGREEMENT: ARGUMENTS FOR A SHIFT TO VOLUNTARY COMPLIANCE

Abstract

Following years of intense lobbying, disagreements and a circus of back and forth arguments, intellectual property rights eventually found their way into the legal framework regulating global trade.1 This followed the conclusion of the Uruguay Round of Multilateral Trade Negotiations, which resulted in the Final Act and annexes that included the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) as Annex C.2 Although there were protracted contests in the course of the negotiations over the TRIPS Agreement between developing and developed countries,3 the forum also witnessed disagreements amongst the developed countries themselves.4 During the Uruguay negotiations, rifts started to emerge at a very early stage between developed and developing countries on the inclusion of intellectual property in the then General Agreement on Tariffs and Trade framework. Developed countries, keen to expand markets for their enterprises, argued for a comprehensive agreement embodied within the World Trade Organization (WTO) system (‘the new system’).5 On the other hand, developing countries, conscious of their underdeveloped structures and their need for more flexibility in dealing with aspects of their economies that are affected by the generation, appropriation and use of information, opposed such a scheme.6 Some countries opposed to the inclusion of intellectual property rights in the ‘new system’ argued that inclusion of intellectual property in the WTO system would be superfluous and would amount to unnecessary duplication of mandates as such were already sufficiently covered by the World Intellectual Property Organization (WIPO).7 Against this backdrop of divergence in interests, the TRIPS Agreement only managed to come out as a compromise, which aspect is manifested in various ways. It strove to accommodate the concerns of both developed countries (major owners of intellectual property rights) and developing countries (net importers of technology). Further, the Agreement sought to strike a balance between owners of intellectual property rights (IPRs) and the users.