The 25th birthday of TRIPS: an agreement of broken promises
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is a milestone. It allowed intellectual property (IP) to become far more present in society than ever before, connecting it to trade. But has this milestone, come for good, for better, or worse? TRIPS was understood to be a promise of ending all other IP agreements.
The political promise of TRIPS
TRIPS promised to be a gold standard of IP protection, making IP law no longer a barrier but a pre-condition to trade. It was an indirect reform of the Paris and Berne Convention, bypassing a deadlock at WIPO, and it offered a dispute settlement system that did not previously exist. Nonetheless, these promises have been broken. The WTO Dispute Settlement System has been proven a fiercely efficient tool, but it is in crisis because of the unwillingness of the US to appoint new judges. Unless this crisis is solved before December 2019, the Appellant Body will fall on its feet and it will no longer be possible for WTO Members to resort to the Dispute Settlement Body (DSB).
An Agreement that is stuck in the past
TRIPS offered a static solution to a dynamic issue. It promised to find a fair balance between IP owners and users. Nonetheless, it blatantly ignored that societal values and interests continuously evolve. While is it clear that an insufficient protection of IP makes participation in international trade impossible, overprotection of IP can also be a barrier to trade, and the system has been slow to recognize this, perhaps until the Doha Declaration.
Irrelevance of TRIPS in the light of transnational private ordering
TRIPS has an evident “Westphalian” bias. It works with the presumption that IP is exclusively regulated by Members; however, it ignores the new transnational private ordering of applicable IP rules. Analysing the historical development of IP, we can witness an evolution of regulatory levels: from the national to the international (of which TRIPS is the crowned achievement) to the transnational (Free Trade Agreements) towards the de-national level. We are now entering the de-national regulatory stage. That is the case of private actors providing for their own IP policy at the level of GAFAs (US driven platforms: Google, Amazon, Facebook, Apple, WhatsApp) and BATs (China driven private entity: YouKu, Alibaba, Baidu, Huawei, WeChat). While these big IP actors now operate independently, one could imagine a certain synchronization amongst the IP standards. We would then have a set of rules that are trans-national in nature but independent from any WTO Member.
On December 11th, 2019, absent of a minor miracle, TRIPS will remain in the books and it will have effect, but it will cease to be enforced. In fact, the Appellate Body of the WTO Dispute Settlement Body will no longer be effective, hence TRIPS will lack judicial enforcement.
According to Hillebrand, the future is uncertain, TRIPS may be an agreement of failed promises, but not all is rotting. The promises of TRIPS might have been broken, but as Machiavelli so well put it, ‘the promise given was a necessity of the past: the word broken is a necessity of the present’. Should the WTO Appellant Body cease to be functional, it could be possible to find alternative ways to ensure the effectiveness of TRIPS, such as dispute settlement schemes in free trade agreements, invocation of TRIPS at national level directly or relying on the Dispute Settlement Body panels of the WTO as a first (and only) instance of adjudication.
The lesson that we should learn is that we should avoid finding static solutions to dynamic problems. The law may be a science or an art, but it remains true that it is a craft. And as scary as it may sound, after December 11th, a de-national regulatory phase could take over, at which point lawyers and legislators may no longer be the craftsmen for the purposes of international IP law.
|Written by Virginia Debernardi IPKM student 2019/20 - More blogs on Law Blogs Maastricht|