Senior government officials, intellectual property experts and representatives from academia marked on November 24, 2020, the 25th anniversary of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In a virtual symposium, the participants reflected on the evolution and impact of the most comprehensive multilateral treaty on intellectual property (IP) protection and enforcement and on the challenges ahead at a time of crisis.
n his keynote speech to the opening session of the symposium, Deputy Director-General Yi Xiaozhun said the TRIPS Agreement remains the most comprehensive multilateral instrument on intellectual property, contributing to extraordinary trade and economic growth over the last 25 years, not only in scale, but also in its knowledge component and its diversity.
DDG Yi noted that over the last 25 years, trade in goods and services with high intellectual property content has grown exponentially. Statistics from the International Monetary Fund (IMF) show that payments for the use of intellectual property rights (IPRs) increased by 1053%, from USD 38 billion in 1995 to USD 438 billion in 2019. This increase greatly surpasses the rate of growth in conventional trade in goods — and thereby illustrates the success of trade in IP itself.
“Intellectual property is embedded in our lives. It is an important component of global value chains and forms an integral part of the embedded value even in the tangible traded goods,” he stated. “WTO research shows that, for example, 91% of the price of a jacket is linked to intangible assets, of which intellectual property rights are an important component.”
More broadly, trade rules and IP standards do not exist in isolation from wider public policy concerns and nowhere is this more evident than in the field of public health, DDG Yi noted. “This was a compelling issue 20 years ago, leading to WTO members joining together to adopt the landmark Doha Declaration on the TRIPS Agreement and Public Health. And it is of course an urgent and challenging issue for us all today” in the context of COVID-19.
It is time to recognise the efforts to build, modernize and reform the legislative, administrative and enforcement foundations of national IP systems, DDG Yi said. It is also the moment to reflect on the remarkable range and impact of the technical cooperation and collaboration that has underpinned TRIPS implementation, especially through cooperation with the World Intellectual Property Organization (WIPO). DDG Yi noted that next month marks the 25th anniversary of the WTO-WIPO bilateral agreement, “which still anchors and guides this indispensable and fruitful partnership”.
In sharing personal reflections, Stuart Harbinson, former Permanent Representative of Hong Kong, China and first chair of the TRIPS Council (1995-1996), said he witnessed first-hand the very intense work and constructive atmosphere in the run-up to the establishment of the WTO in 1995 and the entry into force of the TRIPS Agreement. “Members and Secretariat thought we were creating a unique new instrument of global governance, which we were,” he noted.
The first year of the TRIPS Council was characterised by Mr Harbinson “as installing the basic plumbing in order to implement the Agreement. … The general atmosphere was very cooperative, although we did have our disagreements. We all felt we had a collective duty to get everything up and running” at a time when the TRIPS Division had only two professionals on staff. In addition, arrangements to draw up a Cooperation Agreement between the WTO and WIPO were on course.
Mr Harbinson paid homage to the late WTO Director-General Mike Moore. “He felt deeply that this was an issue the WTO had to deliver on. I know from my close personal contact with him at the time that he was constantly on the phone to Ministers and CEOs of major pharmaceutical companies — and he succeeded in the end,” he said.
Xolelwa Mlumbi-Peter, South Africa’s Ambassador to the WTO and current chair of the TRIPS Council, underlined the importance of marking 25 years of the TRIPS Agreement when the world is facing an exceptional crisis that is testing health systems across the world, particularly in developing countries. “Without a doubt, developing countries will be disproportionately impacted not only from a health perspective but more from an economic and socio-economic point of view.”
The current discussion at the TRIPS Council on a proposal made by certain developing countries to waive specific provisions of the TRIPS Agreement in the context of COVID-19 has underlined that the TRIPS Agreement needs to be part of the wider national and international action to address the pandemic. “I remain optimistic that members understand the urgency, the gravity of the challenge and the need to work together to find a balanced solution that achieves the commonly shared objective of ensuring equitable, affordable and timely access to the vaccines, medical products and therapeutics needed for the prevention, containment and treatment of COVID-19.”
Looking ahead, Ambassador Mlumbi-Peter called for the preservation of the objectives and principles of the TRIPS Agreement, particularly in relation with the protection of public health and nutrition, public interest and international technology transfer. “We must ensure that the discussions on WTO reform preserve the objectives set out in the TRIPS Agreement and explore how IP can facilitate inclusive growth and development. This includes how IP can contribute to the sustainable development goals.”
Antony Taubman, Director of the WTO Intellectual Property, Government Procurement and Competition Division, said that the insights of the past 25 years must contribute to a richer contemporary forward-looking conversation. “It is vital to develop a holistic inclusive perspective of this diverse experience, even in a time of crisis, as there are fundamental issues of international relations and economic and social development at stake.”
The technological, economic, cultural and social contexts of the intellectual property system have been utterly transformed, Mr Taubman said. The TRIPS negotiations were convened under the heading of trade in goods, at a time when trade negotiators basically conceived IP as part of the value added embedded in physical goods, he noted. “Today, it’s remarkably different. IPRs are traded internationally in their own right, if you like as tradable goods in themselves. For instance, the billions of transactions on platforms for software apps and for creative content,” he said.
The system has reacted accordingly, and members have been able to adapt, he argued. Over the past 25 years the international community has witnessed an extraordinary and unprecedented process of modernising and updating IP law and developing the creation of IP offices across the globe, with many developing countries undertaking fundamental programmes of legislative and institutional development in line with their domestic needs and priorities.
Three dedicated sessions of the symposium went into further detail to track different aspects of the implementation and operation of the TRIPS Agreement since its inception, with participation of WTO Secretariat staff, representatives from academia and IP offices. In the first session, WTO staff looked into the legal and institutional development of IP systems over the past 25 years.
The second session addressed the current and future impact of the TRIPS Agreement on national IP systems. The participants included: Susan Isiko Strba, senior researcher at International Lawyers and Economists for Development; Jayashree Watal, former WTO IP counsellor and Honorary Professor at the National Law University of Delhi; Martin Senftleben, Director of the Institute for Information Law; Xavier Seuba, Director of the Patent Academy at the European Patent Office; and Ryan Abbott, Professor of Law and Health Sciences at the University of Surrey.
Finally, the event featured a roundtable which focused on the TRIPS Agreement as a framework for development in the knowledge economy. The participants included: Susan Sell, Professor of the School of Regulation and Global Governance at Australian National University; Pippa Hall, Director of Innovation and Chief Economist at the UK Intellectual Property Office; Daniel Gervais, Professor at Vanderbilt University; and Maximiliano Santa Cruz, CEO of Santa Cruz IP and former CEO of the National Institute of Industrial Property of Chile.
The programme of the TRIPS@25 Virtual Symposium is available here.
The full series of events scheduled to commemorate TRIPS@25 is available here.