TRIPS Agreement

Trademark law is quintessentially a response to all-too-human cognitive failures: We have limited time, limited attention spans, limited memory and an ability for pattern recognition that on the one hand is highly evolved, but also prone to manipulation. But what happens as we increasingly outsource our purchasing decisions to machines? Artificial Intelligence (AI) in the form of autonomous intelligent shopping agents (AISA) such as Siri or Alexa continue to gain autonomy. However, two trademarks that would not be confusing for a human may be difficult to distinguish for an AISA, and conversely, an AISA may be able to distinguish trademarks that are confusing for humans. Similarly, actions intended to infringe a competitor trademark may not be triggered when shoppers are AISA s, but now novel forms of trademark infringement may become possible only in the realm of AISA s. This paper discusses whether the advent of AISA s in retail, and the following change in consumer practises, challenges the current international trademark regime, with a particular focus on the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Intellectual property concepts embodied in international treaties and national laws date back to the eighteenth century. Many fundamental concepts (originality in copyright law; confusion in trademark law; novelty or inventiveness in patent law) vary from one country's national legislation to another. Yet, many critics of the intellectual property system recognize that solutions to the problems, ranging from database protection to the Internet, should ideally be the same worldwide. In today's globalized economy, it makes sense to adopt rules to protect that take account of the laws and practices of other nations and of the work of international organizations. Protecting only domestic (or national) works or inventions would be counterproductive: it increases unfair competition from unprotected foreign works and inventions. This explains why intellectual property has been on the path of progressive internationalization since the early days of international trade, a phenomenon which has accelerated very significantly since the 1980s. The paper examines the four phases of this internationalization process. In the current phase, there are two important challenges that must be successfully tackled: the protection of traditional knowledge and the application of copyright to the Internet. During the Uruguay Round, several developing countries and transition economies (countries from Eastern and Central Europe in transition to a market economy) were learning the ropes of intellectual property law by and large a set of Western concepts. These countries are now coming to the table demanding appropriate protection of traditional knowledge. In parallel, the Internet's rapid growth and increasing use as a tool to disseminate copyrighted material may engender a fundamental shift in copyright usage. The paper examines these challenges and focuses on the possible approaches with a view to strengthening the intellectual property system.

The trend of continued rejection of compulsory licence applications in India goes against the local generic drug manufacturers and public health safeguards incorporated in the Indian patent law. It raises serious questions about the intervening role of the state in patent monopoly to equalise the competing interests between patent holders and consumers of "public good." This trend indicates a policy shift of the government regarding compulsory licensing.

Plain packaging of cigarettes as a way of reducing tobacco consumption and its related health costs and effects raises a number of international trade law issues. The plain packaging measures adopted in Australia impose strict format requirements on word trademarks (such as Marlboro or Camel) and ban the use of figurative marks (colors, logos, etc.). As a result, questions have been raised as to plain packaging’s compatibility with the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). WTO members can validly take measures to protect and promote public health, but in doing so they must comply with the WTO agreements. In order to determine compliance, a proper method to interpret applicable WTO rules is indispensable for the stability and predictability of the world trading system. In this Article, the authors consider the proper interpretation of the TRIPS Agreement as it applies to plain packaging regulations using the Vienna Convention on the Law of Treaties (VCLT). The VCLT has been adopted several times in WTO disputes as a set of interpretive rules. The authors argue that the interpretation of the TRIPS Agreement in the cases filed in 2012 against Australia by a number of developing countries after Australia’s adoption of the plain packaging legislation is likely to impact future cases involving the TRIPS Agreement and specifically the method and approach to be used to interpret it. As such, the cases will likely impact other public health issues (beyond tobacco use) and the interpretation of the TRIPS Agreement in several other contexts. The two major issues discussed in this Article are (a) Article 20 of the TRIPS Agreement, which prohibits certain unjustified encumbrances on the use of trademarks, and (b) the debate about the nature of trademark owners’ rights in the TRIPS Agreement. The latter issue has been referred to as the “right to use” debate—namely, whether trademark owners have a right to use trademarks protected under the TRIPS Agreement. The authors contend that the issue is better seen as a debate over the nature and scope of trademark owners’ rights and interests that the TRIPS Agreement seeks to protect. Specifically, the Article argues that the fact that the principal rights of trademark owners under the TRIPS Agreement are rights to exclude others from using their mark (or “negative rights”) is not determinative of the issue but rather should inform the interpretation of Article 20 in light of the TRIPS Agreement’s object and purpose.

El libro Innovación y capacidades en la industria farmacéutica: una perspectiva desde Colombia desarrolla un interrogante que el autor se plantea desde el inicio de su obra: “¿En qué medida los ADPIC y su implementación en los países en desarrollo, especialmente en Colombia, impactan la capacidad de estos países en cuanto a su industria farmacéutica?

brevettuale e fenomeno dell'evergreening L'importanza dell'industria farmaceutica risiede non solo nelle sue implicazioni economiche e occupazionali ma anche nel fondamentale contributo al miglioramento della salute degli esseri umani. È evidente e condivisibile, infatti, la necessità di sviluppare nuovi farmaci per contrastare inedite minacce alla salute e rendere più efficaci i trattamenti farmacologici riguardanti malattie già note. È ben noto, tuttavia, che quella di ricerca e sviluppo di un nuovo farmaco è attività complessa, costosa e incerta, e necessita di un significativo periodo di tempo per il suo compimento.

This Article considers whether the Geneva Act (2015) of the 1958 Lisbon Agreement achieved a reconciliation between the common-law approach to protecting certain GIs as trademarks and the (currently) mostly European approach of using a sui generis system to protect GIs. In "Old Lisbon" as in many parts of Europe — and perhaps more strikingly in France — GIs have deep roots in the terroir. And the terroir matters: it is not an exaggeration to say that some countries link terroir to national identity. New World producers see things differently, but they also recognize the value of geographic origin, at least for certain products: Napa Valley wines, Vidalia onions, Idaho potatoes and many other products are sold with symbols identifying their geographic origin.

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is directly relevant in this context. TRIPS does three main things in respect of GIs. First, it creates a dual layer of protection for GIs. It arguably provides protections for wines and spirits beyond the traditional trademark law standard.

Second, TRIPS provides a set of rules for the interaction between GIs and (other) trademarks. Third, TRIPS obligates WTO Members to negotiate concerning the establishment of a GI registration and notification system.

No significant progress has been made on the TRIPS register since the entry into force of the TRIPS Agreement in 1995. Part of the issue is that WTO Members pushing for international protection of GIs disagree on the scope and purpose of their effort. Europe's focus has been on the establishment of the TRIPS Article 23.4 register. Other WTO Members, many of them developing countries, have insisted on an extension of the higher level of protection contained in Article 23.1 of TRIPS to products other than wines and spirits. They consider the emphasis in TRIPS on alcoholic beverages to be both culturally discriminatory and a commercial impediment to the ability to collect potentially higher rents associated with GIs on other types of protected products.

No common law jurisdiction is party to the Lisbon Agreement. There are a number of reasons that explain this lack of enthusiasm. Many common law jurisdictions can use trademarks, collective marks, and certification marks to protect geographic symbols and names. This has a number of both normative and administrative implications, including use requirements, possible loss or diminution of right due to acquiescence and abandonment or genericness, and the payment of maintenance fees, to mention just the main ones. This could be described as the gap that needed to be bridged between the Lisbon system and the common law before the Diplomatic Conference of May 2015. Did the Diplomatic Conference that adopted the Geneva Act succeed in building a bridge between the two Lisbons?

To answer this question, this Article begins by briefly explicating the functioning of the Lisbon system and then compares the Lisbon system with the common law system of protection for geographic identifiers as certification marks, with a specific focus on U.S. law. The Article argues that the revised Lisbon Agreement fails to build a solid bridge between the two Lisbons though it may yet succeed in becoming a global GI registry due to exogenous trade pressures.

This Article considers, first, available economic, social, and cultural analyses of the impact of intellectual property protection in developing countries. Economics provides a useful set of analytical tools and are directly relevant, in particular since the successfully arranged marriage of IP and trade rules after which it became inevitable that IP rules would be measured using an economic yardstick. The Paper also considers the claim that making proper intellectual property policy is impossible or inherently unreliable because theoretical models are inadequate or valid empirical data unavailable. Against this backdrop, the Article then examines the emergence of the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS added a significant level of comfort for multinational corporations deciding when and where to export to new markets or expand research and development efforts. The Article also considers the Doha Ministerial Declaration of November 2001 and follow-up work on access to medicines. In the second Part, this Article discusses recent economic analyses of the impact of IP protection on bilateral trade flows and foreign direct investment (FDI). Wherever possible, lessons about the right level of intellectual protection for developing countries are drawn. Recent efforts in the World Intellectual Property Organization (WIPO) and the WTO are also discussed. In a third and final part, the Article looks at the current quest for a balanced approach and suggests ways in which such a balanced IP regime could be constructed, as part of a broad, knowledge-oriented economic development strategy.

The purport of this paper is premised on the extent to which Negative pledge clause can be activated against third-parties. That is, to what extent can this covenant be enforced against a subsequent creditor who took interests in the borrower’s assets with or without notice of the negative pledge.This paper considers the general nature of the negative pledge clause and its extant variations while arguing that the effect of the clause on third-parties is determined by reference to the intention of the initial creditor and the borrower which can be evinced in the terms of the covenants; whether the clause effectively creates a proprietary and enforceable right for the initial creditor and whether the subsequent creditor who advanced credit without notice of the negative pledge can be made subject of the clause.

This chapter presents a general view of intellectual property rights, the judicial enforcement thereof (trial, incl. injunctions), unfair competition, as well as the contract of licensing. It does so in an international perspective, starting the presentation with international sources and referring, as illustrations, to particular national rules and to cases of different legal systems. It is mainly designed for students in management but can be useful for lawyers interested in a concentrated approach based on international texts.

The Protection of Geographical Names as Certification Marks in common law jurisdictions such as the United Kingdom and the United States is examined in light of the UK Spansih Champagne and other "Drinks" cases and similar cases in the United States dealing with the name "Cognac."

The first target of today’s global commercial and military espionage, trade secrets, are the only form of intellectual property protection to be based on the necessity of nondisclosure and secrecy rather than on the paradigm of publicity and exploitability, with the obvious consequence that where confidentiality ends, no trade secret factually exists anymore. As such, current judicial remedies to trade secret thefts simply miss the point, treating trade secrets as rights which can be restored, rather than as assets that once stolen, are lost forever. Moreover, trade secrets often represent the “backbone” of a country’s development: an invaluable strategic advantage for entire industrial systems, innovation environments, and national economies. Whereas a trade secret theft occurring within domestic borders transfers exploitability rather than causing damage to the economic ecosystem of the country concerned, international trade secret thefts may jeopardize states’ economy and public security alike. For these reasons, the only way to protect trade secrets by law is through ensuring that their secrecy is reasonably safe by means of compulsory cybersecurity and cyber-hygiene standards to be complied with by their owners. When it comes to this specific form of IP, the only protection is afforded with prevention: injunctions and compensations can work as remedies for other IP rights’ misappropriations and misexploitations, but do nothing to restore the peculiarity of a trade secret which is, indeed, its secrecy. Not only should companies be compelled to adopt and implement reasonable sector-specific IT security measures and procedures, but licensing agreements including know-how should feature a specific cybersecurity clause to be carefully negotiated. The new cybersecurity regimes of world powers like China seem to capture this problem, and to (involuntarily?) provide useful tools for addressing it beyond the schemes of intellectual property or tort (confidentiality) laws. Regrettably, other countries in the Pacific region appear to keep the belief that trade secret thefts are a private affair of the breached companies, which should seek redress via traditional judicial channels. This is to be deemed an outdated, misleading, shortsighted and ineffective approach.

The paper discusses upon the implication of TRIPs agreement relating to life forms in USA, EPO, India and Japan. It also sets the grounds on which patent are granted across these jurisdictions on life forms and the reasons for not granting patents for the same.

The development and advancement of economy in today’s world focuses on information-based technology. Therefore, an intellectual property right has played a major role as a protection of considerable interest of developed nations. As a result of initiation of the World Trade Organization
(WTO) and the progression of an agreement for standards of trade-related intellectual property rights,
backed up by tough measures from United States, system of intellectual property rights protection has been globalized. Nevertheless, developing countries have to encounter some problems with regard to enforcing and implementing westernized intellectual property rights law.

The coronavirus disease 2019 (COVID-19) pandemic has revealed a glaring truth—that countries stand on unequal grounds in terms of access to vaccines and treatment, largely owing to the unequal distribution of manufacturing capacities across the world. This inequality manifests itself in the form of an apparent rift between countries in the Global North and countries in the Global South, specifically in terms of access to vaccines and treatment and manufacturing partnerships. It is in this context that South Africa and India proposed a waiver to Sections 1 (on copyright and related rights) , 4 (on industrial designs), 5 (on patents), and 7 (on protection of undisclosed information) of Part II of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), the reception of which is divided.

This paper delves into an analysis of a wide array of existing works and available data— including relevant treaties, conventions, and domestic laws, jurisprudence, publications, articles, essays, statistical information, and other documents—to examine and establish the necessity, beneficiality, and practicability of the proposed TRIPS Agreement waiver.

Ultimately, this paper demonstrates that the proposed TRIPS Agreement waiver is necessary, beneficial, and practicable, taking into account the status quo and the available body of works and data. This suggests that the proposed TRIPS Agreement waiver equalizes accessibility of COVID-19 vaccine and treatment production and is in the interest of all stakeholders, whether nations or pharmaceutical companies.

The TRIPS agreement offered members the opportunity to exclude from patentability, inventions for which the commercial exploitation under a patent regime might cause serious prejudice to the public order or morality, including the protection of human, animal or plant life or health, and the protection of the environment. It allows members to provide for the protection of plant varieties, either by patent or by an effective sui generis system or by any combination thereof. The flexibility in the choice of the protection system seems to fit the need and expectation of Developing countries for whom patent should not, under any condition, be imposed on living organisms or natural resources. However, a close look to the agreement shows discrepancies and contradictions to what is actually allowed to be excluded from the reach of patent. In fact, the TRIPS agreement excluded plants and animals from patentability, and at the same occasion maintained “micro-organisms” and “microbiological” processes for the production of plants or animals under that same patent regime. This move emptied the sui generis system of its quintessence, and put at risk, small holder farmers, whose practice of saving, sharing, and/or replanting seeds is engraved in a long and generational tradition. More importantly the small holder farmers representing the primary workforce population in developing countries, are more than ever vulnerable, especially at a moment where extraterritorial patent protection is enforced and monitored under the TRIPS agreement.

International intellectual property (IP) protection is characterized by the growing importance of bi- and plurilateral free trade agreements (hereafter: FTAs). These FTAs represent a number of challenges for the international IP regime. These FTAs entail IP norms known as “TRIPS-plus” norms . As put by Drahos in the title of his influential article, these FTAs “expand” IP’s empire . Quantitatively, there are an impressive number of FTAs already in force or being negotiated which entail relevant IP norms . Qualitatively, these norms expand the minimal standards entailed by TRIPS in presenting detailed provisions on IP issues.
The present contribution starts with a claim about the specific problems which the proliferation of IP-relevant FTAs represent. I will argue that FTAs are problematic because they put strong pressure upon the flexibilities entailed by TRIPS and diminish the margin of appreciation which States need. FTAs are problematic because they represent tools which powerful States might use against weaker States without the protection of a multilateral framework such as the WTO . I will use a neo-republican approach to qualify these threats as form of domination. This approach is built upon the ambition to minimize domination, considered as a threat to individual and collective freedom.
Assuming this general diagnosis, I will secondly present a way to address these threats. My objective is to connect philosophical literature on the risks of domination with a specific interpretation of the relevant link between TRIPS as a general normative framework and the bilateral agreements adopted by Member States. Drawing upon VCLT’s rules on inter se agreement, the argument makes use of a characterization of the foundations of TRIPS, namely its Art. 7 and 8 and their effects on related FTAs.

A waiver would not be a global answer to the pandemic but would be a step in the right direction. It would remove the legal barriers that prevent cross-border cooperation in generic manufacturing of Covid-19 medical products as well as cross-border manufacturing capacity building – both long-term considerations. In the short and medium term a waiver would facilitate generic export to members in need (with limited and no manufacturing capacity, eg African countries) and simplify and potentially speed up generic production (for those with manufacturing capacity such as India).

This study considers intellectual property rules contained in the WTO TRIPS Agreement as they might affect climate change regulatory efforts. The TRIPS Agreement rules that are most directly applicable in this context are patents; confidential information, and enforcement of IP rights before national courts. With respect to patents, the Agreement provides rules on subject matter eligibility and compulsory licensing that may affect which climate-related technologies get patented and how they are applied. The rules concerning confidential information are less precise. The Study then considers how a WTO dispute-settlement panel might apply WTO rules (especially TRIPS) to climate change initiatives that a WTO Member might take.

In 2008 and 2009, customs officials in the European Union, alleging patent
infringement detained and seized generic medicines in transit from India to Brazil. The two countries requested consultations through the World Trade Organization’s Dispute Settlement Understanding based on alleged violations of the Agreement on Trade-Related Aspects of International Property Rights and other international agreements. These disputes are different from all prior ones—they are premised upon the claim that the EU violated the TRIPS agreement through the use of its border measures that went beyond the TRIPS minimum standards, rather than claiming that the other country did not meet those minimum obligations. They also show how developed countries seek to enact such intellectual property standards outside the WTO and limit global access to medicines. This note examines how developing countries can use the DSU to challenge these restrictions, and pursue policies that promote global access to medicines.

It has recently been suggested that the age of human rights is over. The West, itself often not respecting human rights, is said to have abused the concept as a tool to retain control over the developing world. Human rights have remained a foreign construct in Africa, the Near East, and Asia. They have "underperformed," and the level of privation in many parts of the world is more intense than ever. This Article acknowledges elements of truth in these observations, but argues that the battle for human rights is not lost. Using the right to education in Africa as an example, three arguments will be presented to explain how human rights can regain their moral cogency and actually help change a world of misery for the better. First, human rights need to be "domesticized," made "home-grown" achievements with which local populations can identify. Regional human rights institutions need to give specificity to universal norms. These "locally-owned" norms must then be effectively enforced. Second, pure "development goal" approaches to reducing global poverty need to be debunked. Instead, a human rights approach needs to identify clear duty-bearers, including notably the World Bank, who, when they have failed to comply with specified duties, should be considered "human rights violators" and held accountable accordingly. Third, and perhaps most importantly, human rights must be recognized to give rise to extraterritorial state obligations. These are obligations of states, in appropriate circumstances, to respect, protect, and fulfill the human rights of those beyond their own territory. The extraterritorial human rights obligations of states must structure bilateral development assistance and cooperation, the lending operations of the International Monetary Fund and the World Bank, and free trade within and beyond the World Trade Organization (here, meaning the General Agreement on Trade in Services and the Agreement on Trade-Related Aspects of Intellectual Property Rights).

Articles 7 and 8 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) play a central role in assuring the members of the World Trade Organization (WTO) the right to implement public health measures. The Doha Declaration on the TRIPS Agreement and Public Health is also an important element for the interpretation of any provision of the TRIPS Agreement that may have public health implications. The most recent and prominent example of the use of articles 7 and 8 for interpretation in WTO law can be found in the WTO Panel decision of 2018 on the Australia Tobacco Plain Packaging dispute.

The World Trade Organization (WTO) was formed in order to establish a set of international rules and norms for conducting trade among nations. The objective of the organization is not only to strive towards a more harmonious and equitable playing field within the global market, but to “rais[e] standards of living, ensur[e] full employment, and expand the production of and trade in goods and services. . . .” Despite the organization’s recognition “that there is need for positive efforts designed to ensure that developing countries, especially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development,” many WTO agreements have created discord between developed and developing nations with respect to implementing these goals.

One particular WTO agreement, the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), has created a great deal of debate about the usefulness of international intellectual property rights. Will they result in increased trade and fairer global competition or will they simply strengthen the West’s hold on the international economy as they increase western multinationals’ profits and weed out competitors from developing nations? Although the process for developing and ratifying TRIPS was preceded with extensive debate among WTO members, there remain a number of disagreements among nations with regard to the interpretation and enforcement of TRIPS. The main divide exists between developed nations and developing nations due to their diverging national interests, which stem from their different levels of economic development. The developing nation members, with their limited research, development, and manufacturing capacities, took a leap of faith when they committed to adopting and enforcing strong, non-discriminatory minimum standards of intellectual property rights. Although it will take years to confirm whether this commitment will result in the foreign investment and domestic economic growth they aspire to obtain, these nations are under strong domestic pressure to produce tangible results in a short time frame. However, these expectations cannot be met simply by strengthening intellectual property laws, but rather require numerous other changes to interrelated legal regimes.

This Note focuses on TRIPS’ impact on the pharmaceutical industry and health care in developing nations. By using Egypt as a case study, this Note aims to emphasize that the benefits of TRIPS for developing nations depends on the linkage between intellectual property rights (IPR) and other legal regimes, particularly drug regulation, technology transfer, and foreign direct investment (FDI) policies. The failure to adopt a holistic approach to the creation of effective and beneficial intellectual property rights regimes will merely increase the western pharmaceuticals’ market share and increase drug prices in developing nations. By asking whether Egypt, versus foreign multinational companies, is likely to benefit from its new IPR law (that is for the most part TRIPS compliant) one has to analyze the entire context in which the law exists. This in turn will expose the importance of various factors relevant to fulfilling the expected benefits of stronger IPRs in developing nations in general.

Consequently, Section I provides a brief description of the ongoing debate between the developed and developing nations with regard to the costs and benefits of international pharmaceutical patents. Section II outlines and describes the controversial provisions in TRIPS and how they are addressed, adequately or inadequately, in Egypt’s new IPR law. Section III then analyzes the context in which the new IPR law is being introduced including the structure of Egypt’s pharmaceutical industry and national health care system. Section IV addresses other legal regimes and policies, such as research and development, technology transfer, and competition policy, which are inextricably linked to the efficacy of intellectual property rights. Finally, Section V offers recommendations on how Egypt can fully benefit from its commitment to TRIPS and its new IPR law, which can then be extrapolated to other developing nations in similar circumstances.

In 2018, a World Trade Organization (WTO) Panel ruled that plain packaging of tobacco products was consistent with Australia’s obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and was in the interest of public health. Plain packaging restricts the use of logos, colours and brand images to reduce the demand for and consumption of tobacco products by diminishing their advertising appeal. This paper discusses the intellectual property aspects triggered by the implementation of plain packaging, examines the best practices for its implementation and provides an analysis of Australia’s case from the public health perspective. It also highlights the main arguments used in the dispute against Australia and provides practical guidance for WTO Members on implementing measures to protect public health.

L’entrée en vigueur du premier amendement de l’accord sur les ADPIC consacre un mécanisme permettant de pallier à l’impossibilité d’exporter les médicaments issus des licences obligatoires. Ce mécanisme, que nous proposons de qualifier de ‘‘licences parallèles’’, constitue une avancée pour la résolution du problème d’accès aux médicaments dans les pays pauvres. Cependant, la rigidité des conditions qui l’entourent ne permettent pas de conclure à une solution durable au conflit entre droit des brevets et santé publique.

Having been a contracting party to the General Agreement on Tariffs and Trade (GATT) since 1948, Sri Lanka ratified the Marrakesh Agreement establishing the World Trade Organization (WTO) in June 1994, and became one of its founding Members. Since then, Sri Lanka has striven to bring its local laws into conformity with the standards imposed by the WTO. In the context of intellectual property (IP), the former Code of Intellectual Property of 1979 was replaced by the Intellectual Property Act of 2003. This legislative change was particularly important in discharging Sri Lanka's obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which forms one of several WTO covered agreements, to which Sri Lanka is party. The purpose of this paper is to assess the extent that the Sri Lankan trademark law is in conformity with the standards imposed by TRIPS. The focus, in particular, is on the aspects of acquisition and cancellation of trademark rights and the nature and scope of these rights.

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), in its design and implementation procedures, does not reflect a human rights approach. There is an ever-growing community of critical voices, however, requiring that human rights should serve as a corrective to intellectual property rights and their implementation in the context of TRIPS. The crucial question is, of course, how this goal may be accomplished. Under TRIPS, human rights constitute non-essential exceptions to intellectual property rights. However, obligations under international human rights law (IHRL) can only be a relevant consideration if either the World Trade Organisation (WTO) itself or its members, when acting as such—or both—are bound by IHRL. If this should be the case, the question as to the exact relationship between the norms under TRIPS and those of IHRL will arise. Is IHRL hierarchically superior to WTO law? This chapter will show that both the WTO and its members, as such, are the bearers of obligations under IHRL and that, in many instances, norms of IHRL will have to be held to rank above “international trade law”. This should have consequences in particular for the way the WTO enforces TRIPS within its dispute settlement system. The rules of treaty interpretation under customary international law (as codified in Article 31 of the Vienna Convention on the Law of Treaties of 1969) offer substantial scope for human rights considerations to play a role in WTO dispute settlement. Attempts at establishing conformity between TRIPS and IHRL should, moreover, take account of extraterritorial obligations flowing from the various UN human rights treaties, specifically also the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966, and their implications for state conduct. States parties to the ICESCR are not only obliged to observe Covenant provisions where the effects of any of their actions are confined to the domestic level, but also if their conduct, for example within the WTO, affects the economic, social and cultural rights (ESCR) of populations in other countries. The Committee on Economic, Social and Cultural Rights (CESCR), the body of independent experts supervising implementation of the ICESCR—which so far has proven highly capable of advancing the cause of ESCR globally—should adopt a more proactive approach in defining extraterritorial obligations under the ICESCR, also in relation to WTO law, and should further be bold enough to adopt a clear stance in cases of conflict between TRIPS and IHRL.

The use of sacred aboriginal art is nothing new. It is fairly common to see dream catchers hanging from rear view mirrors in cars. In Australia, sacred aboriginal designs are often found on tea towels, rugs and restaurant placemats. In the United States, people routinely Commercialize Navajo rugs containing both sacred and profane designs with no connection to the Navajo nation. Millions of dollars of Indian crafts imported from Asia are sold in the United States each year. Another example is the taking of sacred Ami chants by the German rock group Enigma for its song Return to Innocence. Can and should these sacred crafts and practices be protected and, if so, what is the place of intellectual property in this picture? Part I of the paper is Definitional in nature and examines the place of sacred intangible traditional knowledge in the debate about the interface between traditional knowledge generally and intellectual property and its relation with other statutory schemes (e.g., NAGPRA). In Part II, the paper proposes possible solutions within and without the framework of intellectual property rights proper to protect at least certain forms of sacred intangible traditional knowledge. In the last part of the Paper, constitutional arguments that may apply to sacred intangible traditional knowledge in Canada are discussed

The Covid-19 pandemic has impacted multiple facets of our lives and created a number of legal and ethical dilemmas. One of the greatest challenges at present is the production and distribution of the Covid-19 vaccine. Refusing to supply Covid vaccines widely could affect millions worldwide, and the pandemic may last for a long time. The competition authorities' monitoring of the health sector in many countries has been subject to changes in the current crisis. The question is whether we can force the Covid-19 vaccine manufacturers, legally and ethically, to sell their products and share their information with their competitors. Furthermore, what are the post-pandemic consequences of policies adopted during the pandemic? This paper employs a descriptive-analytical method to examine the importance of competition and intellectual property policies as they relate to Covid-19. It concludes that instead of focusing on individual rights in a crisis, public rights need to be emphasised. However, we should not underestimate the post-pandemic consequences of policies adopted during the Covid-19 pandemic .

The first version of the three-step test emerged at the 1967 Stockholm Conference for the Revision of the Berne Convention. With the inclusion of versions of the test in the TRIPS Agreement of April 1994, the two WIPO “Internet” treaties of December 1996, the more recent Beijing Treaty on Audiovisual Performances of June 24, 2012, and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (VIP Treaty) of June 27, 2013, the test has taken on the central function of allowing and enabling tailor-made solutions at the national level.

The three rather abstract criteria of the test offer room for different interpretations. Various alternative approaches have been developed in the legal literature and applied by national courts, including an understanding of the test’s factors as elements of a global balancing exercise; and a reverse reading of the test starting with the last, most flexible criterion. There are also parallels between factors in Anglo-American fair use and fair dealing legislation and the three step test.

The study herein concludes that the three-step test in international copyright law does not preclude flexible national legislation allowing the courts to identify individual use privileges case-by-case and that the three-step test can serve as a source of inspiration for national law makers seeking to institute flexible exceptions and limitations at the domestic level.

“Increasingly broad and vocal consortiums of nongovernmental organizations (NGOs) are challenging the ‘moral, political and economic legitimacy’ of TRIPS, focusing on provisions of the treaty that affect public health, human rights, biodiversity, and plant genetic resources. [...] many of these critiques have been leveled at intellectual property standards generally ... Yet it is striking that states, NGOs, and intergovernmental actors have specifically identified TRIPS and ‘TRIPS-plus’ bilateral agreements as the principal targets of their ire, challenging treaty bargains once thought settled at the conclusion of the Uruguay Round.”
(Laurence R. Helfer, 2004, ‘Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking’, Yale Journal of International Law, 29(1)).
Critically evaluate this statement, with particular reference to on-going negotiations at TRIPS and other multilateral fora.

The obligation to work a patent in the patent granting country contributes to a variety of public policy goals such as technology transfer resulting in narrowing the deep North-South gap in development levels. With the advent of the TRIPS Agreement, pre-existing rights of country members to continue to treat non-working as an abuse has turned into a controversial and divisive debate. There are two competing views concerning local working of patents. On the one hand, TRIPS enthusiasts and MNCs articulate that article 27.1 of the TRIPS ban working obligations of patents in the granting country. On the other hand, unwilling partners of the TRIPS, mostly developing countries, continue to treat local working obligations in their national laws. The study analyses origin of the local working requirement in the patent system, negotiating history, flexibilities and implications of the provisions related to local working requirements in the TRIPS; from developing countries' perspective in general, and India in particular; to interpret it to advance its own public policy goals. The paper establishes that the national laws of the WTO member countries containing local working obligations and relatively broad powers for granting compulsory licence are not in contravention of the TRIPS.