Australia's Interests under TRIPS Dispute Settlement: Trade Negotiations by Other Means, Multilateral Defence of Domestic Policy Choice, or Safeguarding Market Access?

Article excerpt

[The TRIPS Agreement subsumes and applies the earlier international law of intellectual property (notably the Paris and Berne Conventions), but is typically distinguished from this juristic heritage by the still controversial reframing of intellectual property law as trade law, and by the more rigorous and compelling character of the dispute settlement mechanism that purportedly gives it 'teeth '. The threat of 'trade sanctions' would suggest that a realist assessment of the likely practical impact of TRIPS dispute settlement would govern national policy choices, more than compliance viewed as an end in itself. This paper reviews the actual interests defined and defended in TRIPS dispute settlement and seeks to illuminate the true character of the TRIPS Agreement as a regime of intellectual property standard-setting within a trade law framework. It concludes that practical experience confirms that a theoretical reconciliation of the supposed tension between intellectual property and 'real' trade law, and the development of an integrated, systematic jurisprudence of the TRIPS Agreement as the most robust defence of legitimate domestic policymaking on knowledge economy issues are now overdue, recalling that the true interpreter of the treaty text--the one ultimately bound to deliver on the promises of public welfare embedded therein--is a domestic policymaker seeking in good faith to establish an optimal balancing of interests through the practical craft of domestic policymaking, rather than a political or legalistic abstraction.]

CONTENTS

I     Introduction
II    Defining and Defending Australia's Interests under
      the TRIPS Agreement
III   Revisiting the TRIPS Agreement as a Legal Regime
IV    The TRIPS Agreement as a Covered Agreement
V     Reconciling Policy and Pragmatism in TRIPS Dispute Settlement
VI    US--Section 110(5) Copyright Act: Legitimate Interests and
      Public Performance
VII   Canada--Pharmaceutical Patents': Balancing Innovation,
      Regulation and Access
VIII  EC--Trademarks and Geographical Indications: Reconciling
      the Old and New Economies
IX    Enforcement: Technical Cooperation or 'Legal Harassment'?
X     Conclusion: From Zero Sum Calculation to Pragmatic Coexistence

   How unreasonable people are! They never use the freedoms that they
   have but demand those they do not have. (1)

I INTRODUCTION

This commentary considers the essential nature of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights ('TRIPS Agreement'): (2) its contrasting characteristics as a politically-mediated regime governing relations between trading partners asserting divergent sets of interests in a globalising knowledge economy and as a set of formal legal obligations on WTO members; the characteristics of TRIPS dispute settlement; and the insights that can be drawn from Australia's experience with specific disputes. This is with a view to illuminating the impact of the TRIPS Agreement on domestic policymaking and indirectly on the public welfare outcomes that are the ostensible objectives of the TRIPS Agreement within the WTO trade regime. In turn, this analysis sheds light on how Australia construes its trade interests as a mid-level player in a global economy increasingly claimed to be 'knowledge based'.

II DEFINING AND DEFENDING AUSTRALIA'S INTERESTS UNDER THE

TRIPS AGREEMENT

The introduction of minimum standards for protection of intellectual property into multilateral trade law, through the vector of the TRIPS Agreement, remains a controversial legacy of the Uruguay Round: intended to foster greater certainty and stability in the management of bilateral trade relations concerning intellectual property (and arguably--in retrospect at least--a natural consequence of the increasing knowledge content of international trade), the TRIPS Agreement retains an unsettled, contested quality. Its formal role and its actual effects on government behaviour vary, in part, according to shifts in governments' perceptions of national interests and priorities in how the terms of trade in knowledge resources are settled, monitored, enforced and renegotiated. …