TRIPS

Compare and contrast the special and differential rights available to developing countries under the TRIPS with that of the GATS

Compare and contrast the special and differential rights available to developing countries under the TRIPS with that of the GATS

Introduction

Weaknesses in the institutional capacity of many developing countries provide a rationale for continuing special and differential treatment under the World Trade Organization (WTO), but the benefits should be targeted only to low-income developing countries and those that need help becoming integrated with the international trading system. An effective system of graduation should be put in place for higher-income developing countries. Michalopoulos analyzes how changes in thinking about the role trade plays in economic development have been reflected in provisions affecting developing countries in the GATT and the WTO. He focuses on the provisions calling for the special and differential treatment of developing countries.

The WTO's special and differential treatment has been extended to include measures of technical assistance and extended transition periods to enable countries to meet their commitments in new areas agreed on in the Uruguay Round of negotiations. At the same time, many WTO provisions encourage industrial countries to give developing countries preferential treatment through a variety of measures, none of them legally enforceable. Michalopoulos concludes that weaknesses in the institutional capacity of many developing countries provide a conceptual basis for continuing special and differential treatment in the WTO, but that the benefits should be targeted only to low-income developing countries and those that need help becoming integrated with the international trading system. In addition, an effective system of graduation should be put in place for higher-income developing countries.

As of 1 January 2,000, all developing countries will be bound by the provisions of the TRIPs Agreement, since the general transitional period for its application will expire. A number of developing countries have introduced massive changes in their intellectual property rights' (IPRs) systems in order to comply with the Agreement's requirements. Many of them, however, seem to be far from having completed the required reforms and may, therefore, be exposed to claims of non-compliance by other WTO Members.

Though only five years have elapsed since the entry into force of the TRIPS Agreement, several proposals have already been submitted in order to review it. Some of them belong to the "in-built agenda" (UNCTAD, 1999), that is, issues relating to geographical indications (article 23.4), the patentability of biological inventions (article 27.3.b) and to "non-violation" cases (article 64). There are, in addition, many proposals that go beyond such limited review.

Despite the broad coverage of the TRIPS Agreement, patents, plant varieties and geographical indications are the only areas on which proposals have been made by developing countries, in the latter case with an aim of expanding protection.

Developed countries prompted the negotiation of the TRIPS Agreement on the argument that an expanded and strengthened protection of IPRs would bring about increased flows of foreign direct investment (FDI) and technology transfer to developing countries, and that changes in IPRs would also stimulate local ...