A Practical Guide to Working with TRIPS by Antony Taubman

By Antony Taubman

This publication is a concise and available advisor to the sensible workings of the journeys contract (Trade-Related features of highbrow estate Rights) for policymakers and their felony advisers. The publication deals a distinct insider's account of the way the foreign principles of IP functionality in perform inside a broader criminal framework that involves WTO legislation and dispute answer approaches. It clarifies how IP legislation and exchange legislation has to be handled in a coherent and sustainable demeanour, and offers functional suggestions on easy methods to learn public coverage goals into the formula and alertness of IP legislation and similar rules, in the criminal framework verified via journeys. The ebook is concise and transparent, and cuts in the course of the textual litter and complexity that afflicts policymaking and negotiation less than the journeys regime.

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Ultimately, TRIPS was accepted as a realist response by one set of negotiators to the realist assertion of pragmatic interests by another set. That same pragmatic spirit infuses the present account of TRIPS: much of the TRIPS literature lacks a truly practical sense of how to pursue defined, legitimate interests within the legal space defined by TRIPS. Perhaps disappointingly from a theoretical or idealistic point of view, trade law is a pragmatic art rather 12 What it Means to Work with TRIPS than the abstract dispensation of justice; and if it is to function as a genuine global public good, the first requirement for an international law of IP and trade (IP in trade, or IP as trade) is to provide a transparent, trusted, and predictable means for managing the inevitable conflicts over IP protection that will arise between trading partners—above all, containing the impact of disputes, so that they do not escalate beyond their proper bounds, and providing robust guarantees against unwarranted intrusions on legitimate domestic policymaking.

But what emerged from the negotiations was much broader, an agreement that was by far the most comprehensive yet struck on IP protection. It incorporated much of the existing international law of IP, broadened it, and set it in the newly established institution and dispute settlement system created by the WTO. IP law became a form of trade law, as a negotiated outcome, whether or not that was a neat theoretical fit. What Aspects of Intellectual Property Rights are ‘Trade-Related’? 35 These three developments resulted from negotiating dynamics.

These concepts grew out of legal evolution mostly at the national level and were later codified in TRIPS. It is therefore difficult for anyone reading the text of TRIPS to shut out the accumulated experience at the national level that has shaped these concepts. Yet TRIPS is a distinct layer of international law created to adjudicate disputes between countries as to the adequacy of their laws’ protection of IP. It would be pointless to assert that any exception to IP rights is ‘reasonable’ simply because one country’s courts have allowed it; or to argue that a definition of a patentable ‘invention’ is consistent with TRIPS purely because it is present in one country’s patent law.

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