A draft of the EU-India free trade pact pushes for proposals from the EU that would impose higher standards of IP protection and enforcement on India than required by the WTO. This post highlights the issue of TRIP-Plus provisions.
Ever since the 1994 North American Free Trade Agreement (NAFTA) and the 1995 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) at the World Trade Organization (WTO) came into force, trade policies have been used to advance IPR rules internationally. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) laid the foundation of unified IPR protection norms across the globe, generally referred to as the minimum standards of IP protection. The TRIPS Agreement set minimum standards for IPR protection and enforcement. Initially, it seemed that the introduction of minimum standards and stringent enforcement measures for IP through the TRIPS Agreement satisfied the developed nation-states’ demands for a high level of IPR protection, however, it now appears that the TRIPS Agreement merely served as a stepping stone in the pursuit of stronger IPRs.
After having failed to achieve their objectives of a stronger capitalist IP regime on the entire world during the TRIPS negotiations, the U.S. and other highly industrialized nation-states almost immediately began advocating for the inclusion of more “protectable subject matter, broader and more extensive coverage, increased harmonization, stronger enforcement mechanisms, and a weakening of ‘flexibilities’ and ‘special and differential treatment’ granted to developing and least developed countries in the TRIPS Agreement.” In this regard, the U.S. is the clear leader in promoting higher standards of IP protection than required in TRIPS (so called “TRIPS-Plus provisions”).
The problem with these TRIPS-Plus provisions is that the nature of such provisions is quite diverse as
- it may be directed towards narrowing down a TRIPS flexibility; or
- it may be some provision that exceed the minimum standard of protection under TRIPS; or
- it may be a provision which altogether adds some new subject matter not covered by TRIPS; or
- it may be a provision that affects rights and obligations under other international instruments.
These TRIPS-Plus provisions in the bilateral and regional free trade agreements raise a lot of concern for developing nation states and even further concerns for the least developed nations. Therefore, such provisions attract the need for analysis as to their validity. Even though the U.S. may have shifted its focus to bilateralism (by enetering into Free Trade Agreements) in order to cross engineer the substantive and strategic gains, protections and flexibilities given to the developing countries by the TRIPS Agreement – by weakening or sometimes even overriding the minimum standards of TRIPS – such actions fail to fully visualize the boarder story of the historical context of IPRs.
The broader picture is that initially IPRs were granted nationally and were used as a protectionist manner, in the context of trade, in an effort to develop the domestic manufacturing and export facilities. These TRIPS-Plus provisions are just another way of reinforcing this historical context of IPRs.