The Objectives and Principles of the TRIPs Agreement

Abstract

The Agreement on Trade-Related Aspects of Intellectual Property Rights, which established the minimum standards for the protection and enforcement of intellectual property rights for WTO members, remains one of the more controversial international intellectual property agreements that have entered into force. Although that Agreement embraces a highly problematic super-size-fits-all approach, it includes a number of safeguards and flexibilities to facilitate economic development and to protect the public interest. Articles 7 and 8, in particular, lay out explicit and important objectives and principles that can play important roles in the interpretation and implementation of the Agreement. Presented at the 2009 Santa Fe Conference, this article begins by tracing the origins and development of Articles 7 and 8 of the TRIPs Agreement. It then examines the normative content of these provisions while highlighting the interpretations made by WTO panels and the Appellate Body as well as the implications of the two Doha declarations. The article concludes by exploring five different ways in which Articles 7 and 8 can be used to facilitate a more flexible interpretation and implementation of the TRIPs Agreement: (1) as a guiding light for interpretation and implementation; (2) as a shield against aggressive demands for increased intellectual property protection; (3) as a sword to challenge provisions that overprotect intellectual property rights or tolerate their abuse; (4) as a bridge to connect the TRIPS regime with other intellectual property or related international regimes; and (5) as a seed for the development of future international intellectual property norms.