Prof. Annette Kur (Max-Planck Institute) introduced her textual proposal for TRIPS reform that was developed as one of a number of projects focusing on the post-TRIPS world. Rather than simply deplore any inadequacy of TRIPS or open parallel avenues such as FTAs, this approach proposed to go back to TRIPS and change it into a more balanced regime. By actually providing draft legal language, she hoped to provide a kind of “TRIPS Revision Act” for reference in discussions. Among the examples of amendments she presented was the proposal to flesh out Article 7 (“Objectives”) to cover more than just technology transfer and innovation, and to put more emphasis on Article 8 (“Principles”), ensuring that the burden of proving a violation of TRIPS is on the party alleging such violation. The proposal also introduces a “general balance rule” (proposed Article 8a) and a detailed provision on the interaction between IP and competition rules (Article 8b). She further proposed to exchange the 3-Step-Test rule in Article 13 for mandatory exceptions from protection which should be internationally monitored.

Economist Carsten Fink (WIPO), in assessing evidence and research on the economic impact of TRIPS, said that while most research had focused on “change of domestic law” as an observable consequence of TRIPS, hardly any economist had attempted to study the effect of the “enhanced credibility of having domestic policy bound by international law” which was admittedly much harder to examine for lack of suitable variables. The research looking at changes in domestic regulation as a measure of TRIPS impact typically suffered from the problem of assessing the causality and the relative magnitude of the impact of external and internal developments. Regarding research results on the impact of IP on FDI more generally, studies seemed to bear out that IP did matter, but empirically the effect was relatively small in concrete investment decisions (or the re-location of R&D) where other factors such as size of the economy, infrastructure and the growth potential of a market routinely dwarfed IP as a consideration.

Nandini Kotthapally (India WTO Mission) argued that while WIPO had long been in the background of international IP rule-making in the years since TRIPS — and none of the envisaged substantive treaties on Substantive Patent Law (SPLT), protection for Audio-visual performances and Broadcasting Corporations had seen the light of day — WIPO had re-emerged as a prime IP institution with the adoption of the WIPO Development Agenda in 2007. The Agenda constituted a paradigm shift that had overturned the existing notion of IP as a rich-man’s club and put IP firmly in the context of development. This was now an accepted credo in WIPO and beyond, and was put into concrete practice in the WIPO Committee on IP and Development (CDIP). This, as well as the more promising recent norm-setting activities at WIPO — the treaty proposal for copyright exceptions for libraries and the visually impaired, as well as the work on genetic resources and traditional knowledge — appropriately reflected the shift in the “geography of innovation” in which Asia as a region had replaced the US and Europe as the most active in filing patent applications.

Victoria Whitford (UK Intellectual Property Office) said that the UK IP strove to base its policy — namely that IP should support innovation and growth in a manner that helps poor countries to grow and tackle global challenges — on sound economic evidence, which was reflected in the recent government-commissioned Hargreaves Review on “IP and Growth”. The relatively nuanced results showed that while strong IP protection was associated with higher growth in high-income countries, its positive effect on growth was less strong in middle-income countries where the growth in imitation industries was reduced. In low-income countries, strong IP protection had no — or a negative — effect on growth. While more research was needed for a proper assessment, it was at least clear that in order to be successful, approaches had to be tailored to each country’s needs and had to balance different interests. The UK IP Office believed that the international IP regime must allow creators and inventors to own their works, but must also ensure adequate access to these works. Against this background, she argued that the TRIPS Agreement — with its different transition periods for least developed countries — was already a “tailored approach” and should take into account the economic evidence. It was therefore the UK’s position that the transition period for LDCs expiring on 1 July 2013 should be extended in order to support the growth and development in these countries.

Dr ZHAO Hong (China WTO Mission) said that the enormous legislative effort that China had made before and after joining the WTO to become TRIPS-compliant had benefited China immensely as it had supported the emergence of the concept of rule of law, and had had no negative impact on China’s economic growth. China now had a large IP infrastructure (including 400,000 staff at the Trademark Office and 2,200 dedicated judges at IP tribunals) and recorded an unprecedented increase in registered rights. While some complaints remained, China’s trading partners also recognized its efforts — in particular concerning its recent enforcement efforts. In future, she said that balancing the interest of protection against the maintenance of the public interest would be crucial. In the context of the WTO, she said that IP-protected goods and other property should be treated equally — while IP owners could control the export of their products, the WTO seemed to treat export controls by owners of raw materials differently. Furthermore, transparency mandated the introduction of a disclosure requirement for the origin of genetic resources in patent applications. She further advocated GI Extension and that IP enforcement should be the responsibility of the private sector.
Pedro Roffe (ICTSD) closed the session with observations on the impact of FTAs on the international IP regime. While FTAs were a legitimate derivation from TRIPS, they were also an acknowledgement of its failure to address the complexity of policy in this area. Industry interests had played a decisive role in shaping the coverage of FTAs, which had been further enlarged through the most-favoured nation and national treatment rules in TRIPS. FTAs were an asymmetric development of imposing one system on the FTA partner and mainly had the effect of aligning regulatory regimes to the more advanced country’s regime (such as data exclusivity for drug test data). In summary, FTAs had led to an expansion of the IP system by forcing strict schedules of accession and ratification with respect to other treaties (such as UPOV 1991) and their effect on coalitions of like-minded countries in multilateral institutions was not yet clear. The impact of FTAs, including their compliance with TRIPS, should be further monitored and should ideally comply with the principles elaborated in the WIPO Development Agenda.