Talk:Agreement on Trade-Related Aspects of Intellectual Property Rights

This should be at TRIPS Susan Mason

Yes. According to the WTO website (and some of the documents there) it looks like the acronym should be TRIPS not TRIPs.--Malcohol 12:44, 2 Mar 2005 (UTC)

the objective of TRIPS is to limit the use of IPR as a trade barrier!

I don't wish to insinuate anything, but as someone once put it, "what are you smoking, and where can I get some?". -- pde

This lead article is highly contentious and un-informative

To say this:

"Since TRIPs was enacted, it has received a growing level of criticism from developing countries, academics and NGOs. But because of the rule-making processes in the WTO, and the technical complexities of the laws in question, anything short of widespread and intense political opposition is unlikely to decrease the power of TRIPs."

... is substituting uninformed (minority) opinion for information. There is not one of the 150 (or so) governments of the WTO that has shown the least intention of derogating from the TRIPs agreement. It's not, as this article insinuates, a plot or a trick or a legal deadlock. The TRIPs agreement is actually a very useful -- although certainly imperfect -- improvement on the WIPO Agreements and Conventions that were formerly the only common global regime for IP rights.

But as I understand it (please correct me if I'm wrong on any of this), states are unable to derogate from TRIPs without leaving the WTO? So if they want global market access, they need to implement TRIPs as it stands? And most of those countries have tiny delegations in Geneva, with little or no expertise in the economics of IP (and basically none back when TRIPs was been developed). Brazil, India, and maybe South Korea were the only potential actors on this, but they'd already been worn down by bilateral conflicts with the U.S. and were completely outgunned and outmanoeuvered in the lead-up to the Doha round.

Who needs this common global regime? Everyone who needs IP rights or benefits. That's just about everyone there is. For example, I'm working with a Bangladesh academic at present (September 04) to tell the story of the successful attempt of a popular Bengali band to protect their music from being ripped off by a Bollywood studio for a big-budget Indian film. They won the protection of the Indian courts because India has implemented the TRIPs agreement.

I'm not claiming that there are no international free rider problems which are addressed by international agreements on IP. The unfortunate thing about TRIPs is that it mandates that those problems must all be addressed by heavy reliance on the metaphor of physical property, which, when applied to non-rivalrous goods, can be a very long way from optimal.

A good example is the way that TRIPs erased India's custom-designed pharmaceutical patent regime, which allowed 7-year patents on manufacturing processes, but not molecules themselves. That system provided incentives to find new, more efficient ways of making known drugs cheaply, which both addressed Indians' needs and springboarded the development of a world-class generics industry.

As you point out correctly, there are some individuals and firms in the developing world who have and will continue to benefit from expanding IP laws. But net-IP-importing states which have had to expand copyright and patent laws, are likely to be losing a lot more in combined royalty outflow and deadweight loss than they gain in terms of extra cultural and technical production. Most of the people in these (predominantly poor) states would have been better off with no international IP agreements, than with TRIPs. On this scale, TRIPs is taking from the poor to give to the rich.

There are other models for how international agreeements (see, for example this article (http://www.plosbiology.org/plosonline/?request=get-document&doi=10.1371%2Fjournal.pbio.0020052) by Tim Hubbard and Jamie Love) could sensibly address free riding in information production, while allowing experimentation with different kinds of incentive structures, and avoiding the problems of one-size-fits-the-globe exclusive rights.

And as for patents 'undermining public health in Africa', this is a shamefully silly statement. Not even African governments claimed that was the case. In fact the problems with the public health exceptions already built into the TRIPs agreement in 1995 were more apparent than real. Six months after the problem was 'solved' at the Cancun meeting of WTO in September '03, NOT ONE AFRICAN government (nor any other) had taken advantage of the expanded exceptions.

I agree with you on some of those details, but not the main point. The dynamics of the essential medicines crisis in the late 90s, as I understand it, typically involved private threats from senior U.S. officials, to the ministers supervising African bureaucrats who were counternancing compulsory licenses, claiming that those licenses would be in breach of TRIPs.

If one of those African states had gone through the dispute settlement process, they would probably have won on Article 30. But in practice, TRIPs was playing a key role in preventing states from even trying to implement compulsory licenses.

Once there was a clear, prominent, signal like Doha (or the more recent acceptance of generics as a solution by the Bush Whitehouse), African states were in practice able to use pre-existing avenues for solution.

Peter Gallagher

-- pde 08:08, 10 Sep 2004 (UTC)

Technicity & policy

Edcolins, in this edit (http://en.wikipedia.org/w/wiki.phtml?title=Agreement_on_Trade-Related_Aspects_of_Intellectual_Property_Rights&diff=7987108&oldid=7981923), you seem to be implying that the question of whether software ideas are technical is a "matter of fact", and not an arbitrary question of defining words one way or another. Am I correct? If so, why do you think that? -- pde 04:03, 1 Dec 2004 (UTC)

Thanks for your question. I didn't mean to imply at all that the software patent issue is a matter of facts only. I would say it is more a matter of defining the words, and especially the expression software patent (see the definition section about this issue), when one looks at the applicable legal provisions (e.g. TRIPS, Art. 27). It is also a matter of economic policy (for proposed changes to the applicable laws). Within my previous edit (http://en.wikipedia.org/w/wiki.phtml?title=Agreement_on_Trade-Related_Aspects_of_Intellectual_Property_Rights&diff=7987108&oldid=7981923), I removed:

"In this situation, highly esoteric legal questions, with socially and rhetorically constructed answers, have become the medium through which political contests are fought."

This sentence does not add anything to the article, especially to the previous sentence. That's why I removed it. The extent to which inventions related to software should be patentable under TRIPs is subject to a controversy. Period (for this article at least). More facts might be added in Software patents under TRIPs. Does this answer your question? --Edcolins 10:02, Dec 2, 2004 (UTC)

Creation, protection, and regulation of intellectual property rights

Intellectual property rights are the availability of the legal system to curtail certain actions on the part of others.

The only coherent sense in which TRIPS "protects" these rights is that it prevents member states from restricting their scope or abolishing them. I'm pretty sure that isn't what User:203.198.237.30 means by "protecting intellectual property rights".

Admittedly, the expression "protection of intellectual property" is often used to mean strengthening or the enforcement of IPRs, or expanding their scope. The latter use is propaganda. The former, on examination, is a confused application of a metaphor to physical property. Physical property may need to be "protected" from people who would damage or steal it. But copyrighted works and patenable inventions (etc) cannot usually be damaged. Intellectual property could imaginably be stolen though some kind of fraud, but that's pretty rare. Infringement may harm the commercial position of an IP owner in a number of ways, but it neither damages nor steals the intellectual property itself. -- pde

There is a helluva lot of unpacking to do with these general comments, which cannot be properly done here. But for a start, the first statement above is inaccurate, as some IPRs only permit a right holder to do certain things.

GIs? Good point, they're exceptional and I hadn't been thinking about them. Frankly, calling them "intellectual property" is only going to confuse our poor readers. Outright "monopoly" is probably better in that case!

And a view which denies that TRIPs does not set down minimum standards for the protection of IPR is plainly wrong. Whether characterised as 'propoganda' or not (how helpful is this?), definitions of some IPRs are clearly expanded by TRIPs (eg. the definition of a trade mark).

Agreed. But in those cases, TRIPs isn't protecting some separate, universal, rights. It's mandating their creation.

And on the use of the term propaganda: when something which is actually "the expansion of X", or "the creation of X", is re-labelled "the protection of X", there is no other appropriate description. "It was there already, we're just protecting it". Many people soak up that propaganda and repeat it, without really thinking about it — though I'm sure if often affects their thinking. You and I should do our best to avoid that kind of linguistic confusion.

This discussion could usefully move away from grievances over the use of 'protection' versus 'regulation', but if we want to bang on about an international IP treaty which exclusively regulates, let's do that with say, the Trademark Law Treaty. The article is not primarily a 'philosophy of IP' article and the article should not be overtaken with such a critique. The first sentence needs to refer to protection, not just regulation (and "minimum standards of regulation for most forms of intellectual property" is more accurate than the current "minimum standards for most forms of intellectual property regulation") — 16 Mar 2005

Okay, I think I've just realised the problem. I've been using the word "regulation" in its dictionary sense, which is very general. Perhaps you are reading in some more technical meanings? I saw the current wording as stating succinctly that these diverse forms of (legal/social/bureaucratic regulation) must follow certain minimum standards of form and strength. Can we think of another word that does the same job, without ambiguity or incorrect implications? Minimum standards for intellectual property laws or rules perhaps? Some of the enforcement provisions fall outside this scope but they are genuinely peripheral and can be addressed in other ways.

I agree that this article isn't on the philosophy of IP. But we, its authors, can be mindful of that philosophy when writing it. People working on other IP related articles should do the same! Anyway, I wonder if you've been reading the word "regulation" completely differently to me. Or whether there might be some other word, which satisfies your instinct for "protection" without running into my objections? -- pde 12:53, 17 Mar 2005 (UTC)