ization or an agreement respects human rights the higher is itslegitimacy (output legitimacy9). GATS is blamed to fundamentallyundermine citizens’ right to determine their own social and environmental rights and priorities for the future. But GATS recognizesthe sovereign right of Member governments to determine the regulatory objectives they want to pursue and to define the interests theywant to protect, and to introduce new regulations on the supply ofservices within their territories in order to meet national policy objectives. This right, which respects policy choices in accordancewith the democratic will and perceived needs and cultural traditionsof each society, is mentioned in the preamble of GATS and hasbeen re-emphasized at the Doha Ministerial10 and was reaffirmed inthe recently adopted Guidelines and Procedures for the Negotiations on Trade in Services. This clear statement has to be welcomedall the more since Art. VI:4 GATS could be understood to protectsolely the quality of the service (see Art. VI:4 lit. b)) and no otherdomestic policy objectives.C. Adjudicating NecessityThere is, however, one issue that has to be looked at slightly differently to the view Mr Adlung presented: the dispute settlement inthe WTO. Mr Adlung rightly pointed to the fact that internationalagreements like the GATS offer more scope for interpretation.Thus, the question has to be raised as to the exact meaning of thecriteria of Art. VI:4 GATS. When is a domestic regulatory requirement more burdensome than necessary? Who defines it?8
910
This argument is used here only for the sake of argumentation. It isnot the interest of the author to drive the developing states out of theWTO.See Krajewski (2001), 169.See the Doha Ministerial Declaration, WT/MIN(01)/DEC/1, para. 7.
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It cannot be contested that the necessity tests contribute to thephilosophy of better regulation (like, for example, transparency andproportionality do as well). One can, however, be extremely concerned about the fact that these ‘necessity tests’ are very much opento interpretation and that the WTO dispute settlement procedurecould be used to enforce a strongly deregulatory interpretation infavour of business interests. One could argue that it is wholly unacceptable that a group of lawyers dedicated to the liberalization oftrade could be given the right to declare regulations that have beenenacted by democratically elected governments ‘excessive’ or ‘unnecessary’ as there is always a complex judgement to be madeabout the right balance between freedom of trade and public interestregulation.11 Why should WTO adjudicators be seen to makesounder assessments as regards the necessity of domestic regulation? It seems that it is more the responsibility of elected governments to make those judgements, and not of unelected lawyersworking for a body which is seen by some as being ideologicallycommitted to maximizing economic liberalization. In order to meetthis concern there is need for the panels and the Appellate Body toadopt interpretations that are deferential to state sovereignty. Itseems to be doubtful whether this always has been the case.The other side of the coin is the as well indubitable fact thatthe WTO members agreed to broad terms in the WTO agreementsand to WTO dispute resolution mechanism. Thus they were awarethat the WTO panels and the Appellate Body were responsible forcorrectly interpreting the WTO agreements when settling disputesunless the WTO members (i.e. the General Council and the Ministerial Conference) adopt an authentic interpretation according toArt. IX:2 WTO Agreement. Furthermore, the Dispute SettlementBody may deny a panel or Appellate Body report if it does notshare the legal opinions given there.In the general perspective of democracy, legitimacy and division of powers, the problem of legitimacy of the interpretation ofnorms is well known in domestic law as well. Is it undemocratic11
The EC holds the view that a measure should not be considered moreburdensome than necessary if it is proportionate to the objective pursued. This is intended to make clear that the degree of ‘necessary’trade restrictiveness will depend on, and be assessed against, thetechnical and economic context of a specific domestic policy objective, but would not question its central validity or rationale.
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that a judge interprets a particular norm contrary to the will of thelegislator? Or is this not an expression of division of powers whichno doubt contributes to legitimacy and expresses basic constitutional principles? The problems of legitimacy of ‘government byjudges’ or judicial policy-making that the WTO and the international level are faced with do have their counterparts in the nationallevel where legitimacy in the end is not doubted, at least not to thesame extent.12 Thus, again, the problems are much more intricateand too complex than rashly to blame the WTO to have a legitimacy gap.Another contentious issue of the necessity test which can onlybriefly be mentioned here is the issue of cross-subsidization. Thenecessity test could become a threat to cross-subsidization (whichseems to be particularly necessary for developing countries) byinvolvement of private companies in public services. The importance of cross-subsidization as a mechanism for developing countries to realize social objectives seems to be widely acknowledged.13The problems of adjudicating necessity raised here can besolved by introducing flexibility. The balancing test provided for inArt. VI:4 GATS gives room for the necessary flexibility.14 Eitherthe adopted disciplines or the test which assesses the validity of domestic regulations in GATS should assimilate flexibility.15D. Sovereignty and InterdependanceWhen blaming the WTO to be undemocratic, opponents also seemto forget that the WTO Members get the possibility to influence thebehaviour of other nations. Of course, binding commitments restrictthe sovereignty of any state. It is bound and no longer allowed tobehave differently. The regulatory independence becomes limited.But in exchange for these restrictions the states can contribute to theinternational negotiating process and invest their interests there. Itis a mutual give and take situation. There are, of course, imbalancesbetween WTO members. But they would even be worse withoutWTO. Weak and poor countries have, as Mr Adlung rightly pointedout, the possibility to share information, to coordinate their policy12131415
This issue seems not to be reflected by Krajewski (2001), 182.See Hilary (2001), 47 et seq.See also Verhoosel (2002), 111 et seq.Djordjevic (2002), 309.
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and to build coalitions. One problem however remains: in international affairs governments have more powers than national parliaments. Whereas governments actively are involved in the negotiations and thus determine their content and result, the parliamentsonly can adopt or reject the result of the negotiations.16 This, however, again is a problem of national constitutions and not of thestructure of an international organization like the WTO and itsagreements. The national constitutions have to take care of the democratic accountability of the governments and to find ways for it.Here transparency in the decision-making mechanisms becomesimportant. The WTO can facilitate this task of the national constitutions by increasing the transparency of the negotiating processand of the decision making mechanisms. This is a necessary international safeguard against abuse of power by governments.E. Liberalization, Democracy and Human RightsIn the discussion about democratic legitimacy, one must not forgetthat opening up of markets will speed up democratization processesand the respect to human rights. Markets can not increasingly beopened and liberalized without giving more rights to people. Openand liberalized markets require more individual economic rightsbecause it is the citizenship of a WTO member that has to make useof increased opportunities. And this inevitably will call for morepolitical rights and freedom. People that are economically activebecome more and more aware of and interested in the politicalrequirements and pre-conditions of their trade chances in particularand in politics in general. This in the end will result in strengthening democracy in any WTO member. This is a constitutional function and benefit of international economic law leading to open markets that might not yet have been fully recognized.II. Some Remarks on GATS and Domestic RegulationThe following thoughts give some basic insights into the inter-linkage of trade in service liberalization and regulation in GATS.A. Liberalization and Cross-border Trade in ServicesAs described above, due to the particularities of services, domesticregulation has a great importance for the supply of services. Thedomestic prerequisites and requirements both apply to domestic and16
See Krajewski (2001), 175 et seq.
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foreign services supply alike on the assumption that they are administered in an impartial way (which is provided for by Art. VI:1GATS). There are some particular requirements which refer to thesupply of services from abroad and which restrict the service supplyfrom abroad in case it is connected with persons crossing the border: the requirements for entry and stay of foreigners. The lattermight have protectionist intents whereas the former domestic requirements usually are not motivated by protectionism but by legitimate concerns like, for example, consumer and health protection.The more liberalized a national market for the supply of services is, the lower are these requirements. And the lower these requirements are the easier is the supply of services for foreigners andfrom abroad. In other words: The more liberalized a market is athome, the more open it is for service suppliers from abroad.B. Balancing Liberalization and Legitimate Interestsby Regulatory DisciplinesArt. VI:4 GATS empowers the Council for Trade in Services todevelop any necessary disciplines with a view to ensuring thatmeasures relating to qualification requirements and procedures,technical standards and licensing requirements do not constituteunnecessary barriers to trade in services. Such disciplines shall aimto ensure that such requirements are, inter alia, based on objectiveand transparent criteria (such as competence and the ability to supply the service), not more burdensome than necessary to ensure thequality of the service and, in the case of licensing procedures, not inthemselves a restriction on the supply of the service.This provision expresses the rationale that national regulationof the supply of services usually is legitimate as and insofar as ittries to safeguard legitimate national policy concerns. The WTOmembers restrict the supply of services on their territory due toconsiderations inter alia of consumer protection, functionality ofthe markets or of ensuring the quality of services. In principle theyenjoy full choice as to which legitimate interests to follow. Asmentioned above (see supra I. B.) the legitimate objectives have notto be solely concerned with the quality of the service.The limitations international attempts to liberalize service supply from abroad put on the national regulatory sovereignty thereforehave to balance the interest of increased international liberalizationagainst the legitimate national policy objectives which call for
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regulating the service supply and thereby create obstacles to crossborder supply. A balance has to be found between guaranteeingquality of service while not making regulation so onerous that, forexample, it becomes impossible for qualified foreign professionalsto practice. Disciplines should in principle contribute to creatingmore appropriate, trade friendly and transparent regulatory frameworks, and thereby facilitate and promote trade in services, whiletaking full account of the legitimate policy objectives pursued bygovernment regulation. For this reason, the disciplines have to bebiased. Disciplines on domestic regulation should help ensuring thatlegitimate regulation is not applied with a view to undermine commitments negotiated. However, it seems neither to be the intentionnor to be the purpose of such disciplines to prescribe or imposecertain regulatory approaches, or even the substance of any domestic regulations. But they should take care that the domestic regulations do not go beyond what is necessary in order to protect or meetthe legitimate national objective. Disciplines under Art. VI:4 shouldbe sufficiently clear and precise to allow clear implementation.They should ensure, for example, that the procedures under which alicence can be obtained are subject to some basic, common rules sothat they do not become unnecessary barriers to trade in services.Furthermore, Articles VI:1-3 GATS provide for additionallimitations to the national sovereignty as regards administration ofregulations and review procedures: All measures of general application that affect trade in services have to be administered in a reasonable, objective and impartial manner. This rule wants to avoidthat the way of application of national measures weakens a country’s GATS commitments. For this reason the way how generallyapplicable measures are administered is limited. If an authorizationis required, the competent authorities of a Member shall, within areasonable period of time, inform the applicant of the decision concerning the application. At the request of the applicant, the competent authorities of the Member shall provide, without undue delay,information concerning the status of the application.The limitation enshrined in Art. VI:2 GATS requires reviewprocedures: The Member States shall establish tribunals or procedures which provide, at the request of an affected service supplier,for the prompt, objective and impartial review of administrativedecisions.Thus, it is said that Art. VI GATS (as does Art. X:3 GATT1994) reflects – like in a nutshell – the conflict between the objec-
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tives of liberalized trade in services and national sovereignty rightsthat may legitimately restrict the supply of services.17 Art. VIGATS as well proves that GATS can already discipline ‘non-discriminatory’ regulation.18 The disciplines mentioned in Art. VI:4GATS apply to domestic and foreign service suppliers alike; theyare of a predominantly qualitative nature.Because of its importance domestic regulation is one of the keyelements of the ongoing GATS work programme. In this regardwork started in 1995 to establish disciplines on domestic regulations. The development of regulatory disciplines is an importantcomponent in the current round of negotiations. The focus of thework is on qualification requirements and procedures, technicalstandards and licensing requirements. By December 1998, WTOmembers (i.e. the Council for Trade in Services) had agreed Disciplines on Domestic Regulations for the Accountancy Sector.19Since then, WTO members have been engaged in developing general disciplines for all professional services and, where necessary,additional disciplines for specific sectors. The disciplines can haveboth a horizontal approach and can be developed on a sector specific basis. Currently, the Working Party on Domestic Regulationwhich was asked by the Council to develop disciplines on licensingrequirements and procedures, technical standards and qualificationrequirements20 discusses whether the Disciplines in the Accountancy Sector are suitable for other professions as well. The WorkingParty holds consultations with international professional servicesorganizations, as selected by WTO members, in this regard.21 All1718
192021
Barth (1994), 457.Weiß (1999), 510. The WTO Secretariat has been given the task ofcollecting examples of regulations that would violate the new disciplines, and has compiled a list that includes zoning, ‘unnecessarilyburdensome’ standards, government-imposed limits on fees that canbe charged. It excluded any examples submitted of regulations thatdiscriminate against foreign service suppliers, because these wouldalready be violations of GATS national treatment commitments.Disciplines on Domestic Regulation in the Accountancy Sector,S/L/64, dated 17 December 1998.S/L/70.See Report of the Working Party on Domestic Regulation to theCouncil for Trade in Services (2003), S/WPDR/6, dated 3 December2003.
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the agreed disciplines are expected to be integrated into GATS andto become legally binding by the end of the current services negotiations.C. Questions Regarding the Application of Art. VI GATSIn the following some problems of the interpretation of Art. VIGATS will be raised.221. Legal Value of the Disciplines AdoptedAccording to Art. VI:4 GATSAs Art. VI:5 GATS implies an entry into force of the disciplines,the disciplines themselves are not binding. Furthermore, the GATSCouncil does not have le gislative powers. Otherwise the GATSreally would become a threat to democracy. Therefore, the disciplines become legally binding only in case they were adopted bythe Member States according to their constitutional requirements.Thus, the Member States have to integrate the disciplines into theirschedule of special commitments.23 The Disciplines on DomesticRegulation in the Accountancy Sector24 are supposed to enter intoforce when integrated into the GATS.252. Applicability of the Disciplines AdoptedAccording to Art. VI:4 GATSThe problem has to be solved as to whether the adopted disciplinesare applicable only in case of specific commitments or whether theydo apply to all services sectors as Art. VI GATS belongs to Part IIon general obligations. The Accountancy Disciplines were madeapplicable only to WTO Members who had entered specific commitments in accountancy in their schedules (see para. 1 of the Disciplines).26 Art. VI GATS explicitly refers to sectors of specificcommitments in its paragraphs 1, 3, 5 and 6 whereby paragraph 5refers to paragraph 4. Furthermore market access only takes placein sectors of specific commitments.
2223242526
For more detail see Krajewski (2003), Chapter 5.Pitschas (2003), 544, Mn. 140.S/L/64.See Council for Trade in Services, S/L/63.Djordevic (2002), 315.
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3. Relationship between Disciplines and Specific CommitmentsMr Adlung presented the view that schedules of commitments andthe restrictions on domestic regulation according to Art. VI areindependent. Indeed it is considered that there should be no overlapbetween Articles XVI and XVII GATS, which belong to Part III ofthe GATS, and Art. VI, which belongs to Part II. Therefore, measures subject to scheduling under Articles XVI and XVII of theGATS should not be addressed by disciplines under Art. VI:4.27 Asregards the Accountancy Disciplines, measures subject to scheduling under Art. XVI and XVII GATS were excluded from their application (see para. 1 and 2 of the Disciplines).4. Regulatory Measures not IncludedThere are regulatory measures that fall outside the scope of Art. VIas they are not addressed by Art. VI:4 GATS, such as for instancethe question of the independence of regulators, universal serviceobligations, access to networks or essential facilities. Does Art.VI:4 preclude work on such measures and principles as the competence of the Working Party and the GATS Council is limited to theones described in Art. VI:4 GATS (qualification requirements andprocedures, technical standards and licensing requirements; licens28ing procedures )? The comparison with TBT Annex 1 shows thatin particular voluntary standards seem not to be addressed by Art.VI:4 GATS.D. Mutual RecognitionAnother area of interest is the mutual recognition of professionaleducation, experiences, licenses and certifications. The area of education and certification is also part of national regulatory sovereignty and of interest for service suppliers from abroad. The GATSallows for recognition according to Art. VII GATS. Such recognition, which may be achieved through harmonization or otherwise,may be based upon an agreement or arrangement with the countryconcerned or may be accorded autonomously. In this regard the27
28
See the Communication from the European Community and itsMember States regarding a proposal for disciplines on licensing procedures, S/WPDR/W/25, para. 6.These categories are defined in a note by the WTO secretariat, Art.VI:4 of the GATS: Disciplines on Domestic Regulation Applicable toall Services, S/C/W/96.
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question was raised as to the possibility that such recognitionagreements (MRA) detract from or even violate the MFN principle.29
ReferencesDietrich Barth (1994), Das Allgemeine Übereinkommen über deninternationalen Dienstleistungshandel (GATS), in: EuropäischeZeitschrift für Wirtschaftsrecht 5 (1994), 455-460.Margareta Djordjevic (2002), Domestic Regulation and Free Tradein Services – A Balancing Act, in: Legal Issues of EuropeanIntegration 29 (2002) No. 3, 305-322.John Hilary (2001), The Wrong Model: GATS, trade liberalisationand children’s right to health, London 2001.Clare Joy (2001), GATS and Domestic Regulation, July 2001(available at http://www.gatswatch.org/GATSandDemocracy/domestic.html).Markus Krajewski (2001), Democratic Legitimacy and Constitutional Perspectives of WTO Law, in: Journal of World Trade,35 (2001) No. 1, 167-186.Markus Krajewski (2003), National Regulation and Trade Liberalization in Services, London / Den Haag (Kluwer) 2003.Mitsuo Matsushita / Thomas J. Schoenbaum / Petros C. Mavroïdis(2003), The World Trade Organization, Oxford (Oxford University Press) 2003.Christian Pitschas (2003), Allgemeines Übereinkommen über denHandel mit Dienstleistungen (GATS), in: Hans-Joachim Prieß/ Georg M. Berrisch (Eds.), WTO-Handbuch, München (C.H.Beck) 2003, 495-564.Gaetan Verhoosel (2002), National Treatment and WTO DisputeSettlement, Oxford (Hart Publishing) 2002.Wolfgang Weiß (1999), Gibt es eine EU-Inländerdiskriminierung?Zur Kollision von Gemeinschaftsrecht mit Welthandelsrechtund Assoziationsrecht, in: Europarecht 34 (1999), 499-516.
29
Matsushita / Schoenbaum / Mavroïdis (2003), 244.
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Jessica Woodroffe (2001), GATS and the Right to Regulate, July2001 (available at http://www.gatswatch.org/GATSandDemocracy/r2regulate.html).
Jacques H. J. Bourgeois
Post Cancún WTO TRIPs – A Bumpy RoadI.II.
IntroductionTRIPs and the Developing Country WTO MembersA. Extending the Transitional PeriodB. Traditional KnowledgeC. Access to Essential MedicinesD. Capacity Building and Technical AssistanceIII. Extending the ScopeA. Biotechnology and Relationship withAgreements on BiotechnologyB. Improved Protection of Geographical IndicationsIV. EnforcementA. Causes of Inadequate EnforcementB. Cost of EnforcementC. Enforcement Through the WTO DisputeSettlement SystemVI. ConclusionsReferences
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I. IntroductionThe TRIPs Agreement is as of now the most comprehensive international agreement for the protection of intellectual property rightsas to the number of States that are party to it – all WTO Membersare bound by it, with transitional arrangements for developingcountry WTO Members. It is also the most comprehensive one as tocoverage: it incorporates existing standards of intellectual propertyprotection – the 1967 Paris Convention and the 1971 Berne Convention (literary and artistic works) – and it refers to the 1961 RomeConvention (performers and producers of phonograms and broadcasting organizations) and the 1989 Washington Agreement (integrated circuits), it provides additional standards for such intellectualproperty rights and includes protection of geographical indications
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and industrial designs. It also contains important and far-reachingobligations on enforcement of intellectual property rights in the national legal systems.1 Finally, being part of the Marrakesh Agreement, the TRIPs is subject to the WTO integrated dispute settlementsystem with its characteristic features of binding jurisdiction, timelimits and enforcement systems.Agreed to originally by 123 countries, the TRIPs has helped tofoster a broadly accepted understanding of rules governing IP protection and the increasing importance of IP in the global economy.This is perhaps most important when extended to States acceding tothe WTO. Each potential WTO Member is aware that joining theWTO requires discussions at national level and, often, a realignment of IP rules and practices, if not introducing protection of IP, inorder to successfully complete the accession process. By makingTRIPs an integral part of the accession process, the WTO is helpingto extend internationally accepted IP standards and furthering thecreation of a level playing field in international trade.While the issues that did not allow progress to be made at theCancún WTO Ministerial meeting did not relate to the TRIPsAgreement, one major TRIPs issue having been provisionally resolved before Cancún (see infra), this agreement is on the table ofthe Doha Development Round of Multilateral Trade Negotiations.There are a number of TRIPs issues that are, explicitly or implicitly, on the agenda. Not all such issues are dealt with in thisshort contribution. Those examined are presented under threeheadings: TRIPs and developing country WTO Members, extending the scope and enforcement.Before addressing these issues, it should be recalled that viewsvary considerably among countries about the legitimacy of IP protection, or, where they agree on such legitimacy, about the scope ofthe protection.2 An IP right that is perceived as perfectly legitimatein one country may be perceived as abusive in another one. In addi1
2
These obligations go into the nooks and cranies of national legal systems. For an interesting example involving the question whether theNetherlands procedure of ‘kort geding’ is in line with Article 56TRIPs, see Court of Justice of the EC, Hermès v. FHT, C-53/96[1998] ECR, I-3603.See e.g. P. Klemperer, America’s patent protection has gone too far,The Financial Times, March 2, 2004, a UK view shared widely inWestern Europe.
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tion, even within countries views on the respective merits of variousIP rights may vary (e.g. patents v. copyright and trademarks). Innegotiating clarifications of, or additions to, the TRIPs Agreement,WTO Members should be aware of this and avoid pushing otherWTO Members to enter into commitments which will subsequentlyappear to be unsustainable. At the same time, certain WTO Members should keep a proper balance between their trade interests andthe evolving views at national level on the legitimacy of the variousIP rights.II. TRIPs and the Developing Country WTO MembersThe Uruguay Round of Multilateral Trade Negotiations and theTRIPs Agreement have led to and continue to feed a debate aboutthe appropriateness of IP protection for developing country WTOMembers.In this debate it is sometimes forgotten that IPRs are also in theinterest of developing country WTO Members. Apart from the impact the absence of IP or insufficient IP protection in certain countries may have on exports to these countries and on imports fromthese countries, there is a link between IP protection in a countryand transfer of technology to, and diffusion of technology in, thatcountry. Moreover, IP protection is an important factor of foreigndirect investment.3For most developing country WTO Members complying withtheir TRIPs obligations often requires introducing unfamiliar ornovel norms and on matters taking the back seat of their policy concerns. They accepted such obligations as the price to pay to be partof the ‘single undertaking’ of the Marrakesh Agreement establishing the WTO which was expected to give them benefits in trade inagricultural and textile products.In the context of the Doha Round, the question arises how, ifnot a balance better for, at least one more acceptable to developingcountry WTO Members could be achieved.3
Edwin Mansfield, Intellectual Property Protection, Direct Investmentand Technology Transfer: Germany, Japan and the United States,IFC Discussion Paper 27, The World Bank, Washington / DC 1995,cited by Elangi Botoy (2004). According to anecdotal evidence, animportant developing country introduced IP protection of pharmaceuticals as a quid pro quo for sizeable investment with a view toproducing pharmaceutical products.
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A. Extending the Transitional PeriodDeveloping country WTO Members benefit from a five, viz. tenyears (already renewed once) transitional period to establish an IPprotection system in line with the TRIPs Agreement. A transitionalperiod is not only justified by the novelty of IP protection with itsadministrative and financial constraints and its costs for those WTOMembers. In the view of those WTO Members, which point towardsimilar experiences of industrialized countries in the past, a transitional period is also required to allow them to develop a viabletechnological base without being constrained by IP protection: itappears doubtful that the current transitional period gives thoseWTO Members sufficient time in this respect.4B. Traditional KnowledgeAmong the items put on the agenda of the TRIPs review is the protection of ‘traditional knowledge’.5 This concept refers to geneticresources, indigenous medicinal knowledge and other resources.6The problem of protection is the following: traditional medicinal knowledge based on plants is usually not patentable – it is eitherobvious or it is in the public domain. However, a pharmaceuticalproduct derived from plants via that traditional medicinal knowledge is patentable. And the patent goes to the pharmaceutical company. Under the TRIPs rules – in Daniel Gervais’ terminology –there is a double ‘exclusionary effect’: a ‘negative exclusionary effect’ in that traditional knowledge is not protected, and a ‘positiveexclusionary effect’ in that IP rights are acquired by non-traditionalknowledge holders. In dealing with these exclusionary effects, mostof the options for introducing protection of traditional knowledgeprobably involve far-reaching adaptations of the TRIPs Agreement.In a paper submitted in 2002 to WIPO, the EC contemplatedthree possible approaches: protection via existing IP rights, prevent4
56
Cfr. Elangi Botoy (2004); see also the interesting findings of CarlosCorrea on the exclusion in the past of certain fields from patentability for developed WTO Members in Correa (1998); see also for aninteresting Dutch example with the Netherlands suspending patentlaw protection from 1869 until 1910 Bronckers (1994), fn. 6.Doha Ministerial Declaration dated 20 November 2001, para 19(WT/MIN(01)/DEC/1).For a good analysis, see Gervais (2003), with a wealth of references;also O’Connor (2003) with interesting examples.
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inappropriate patenting or other types of misappropriation and ensure that benefits from interventions based on traditional knowledgeare shared with providers of traditional knowledge or develop specific IP protection7.Quite apart from the difficulty on agreeing on an operationaldefinition of traditional knowledge, it is difficult to see how it couldbe protected via existing IP rights, the concepts used by the TRIPsAgreement being what they are.Suffice it to mention:x many forms of traditional knowledge are in the public domain;x who is the ‘right holder’?x certain forms of traditional knowledge are by their naturehardly capable of being protected by current intellectual property rights, e.g. biological and genetic resources in their naturalstate.The second approach appears to be too complicated to be laiddown in hard and fast rules. The third approach, a specific IP protection for traditional knowledge, will require much imaginationand many ad hoc rules to include it in the TRIPs Agreement.Yet