How to Awaken “Dormant” Pro-Development Provisions of the TRIPS Agreement

Abstract: It is commonly understood that Intellectual Property Regimes are aimed at protecting private rights and in doing so sometimes neglect public interests. Historically IP systems were considered to allow authors or creators to secure certain monopolies on rights, hence in the 1970s and 1980s the concern over public needs came forward requiring the IP system to respond to it in a way that would stimulate the technological independence of states and therefore development. A little over 20 years ago the TRIPS Agreement, the most relevant global IP Treaty, was created and it endorsed certain developmental issues. However, the global understanding is that TRIPS serves as a tool for development for countries with a certain economic level. The Development Agenda has become a growing topic in the international arena. However, the understanding of Development has changed over time. If at some point we followed the notion of Development as Growth (economic progress), today we see Development as Freedom and hence when looking at an Intellectual Property regime we cannot neglect the difference of these two concepts. It is argued that IP protection disrupts developing countries to freely pursue their specific economic and social goals. Development Agenda is embedded in the WTO system as well; however it is focused on Simple and Differential Treatment for developing states by allowing them longer transition periods or specific exceptions. Nevertheless the SDT is very narrow while there are higher demands. This thesis tries to question the common understanding of the IP Regime as subversive to Sustainable Development (or Development as Freedom notion) and proposes the strategic use of the flexibilities or other tools enshrined in the TRIPS Agreement for public interests using customary rules of interpretation with the Developmental Goals in mind. The Focal point of articles 7 and 8 (Object and Purpose) of the TRIPS Agreement is Development, however they are more or less “dormant” in current state practice as well as WTO Dispute Settlement practice. This thesis will suggest ways in which they can be “awakened” through customary rules of interpretation or other ways in order to enable the TRIPS Agreement to serve the needs of Sustainable Development.