Nowadays we are witnessing a speedy and probably unstoppable process of globalization and internationalization of trade. It has drawn the implication in commercial intercourse of such things which have never before been generally recognized as consumer goods and objects of bargains: results of intellectual activity of a human being. Although since 19th century various international agreements tending to protect intellectual property have been adopted, their action field has always been limited exclusively by recognition of the intrinsic moral and/or property rights of creative persons and have never focused on the interplay between intellectual property and world trade. The Agreement on Trade Related Aspects of Intellectual Property Rights was a milestone in that process for it had tightly bound these major kinds of human activity and acknowledged their interdependence.

The impact of TRIPS upon its parties cannot be underestimated. It contains minimal common standards which every country-WTO member must implement in its own legal system in order to comply with its obligation of adjusting national legislation in accordance with WTO law.[1] In addition to that, the very concept of intellectual property derives from the Western legal tradition what, by means of its inclusion into the treaty system regulating the world trade, turns it into the ‘legal transplant’ for countries from non-western legal families and compels them to apply this extraneous and sometimes detrimental norm.[2] Thus, for instance, TRIPS lays down that intellectual property rights are considered to be private rights which totally ignores the so-called ‘communitarian knowledge’, typical for Asian and African countries and inalienable from their historical tradition, thus depriving them of protection and of enjoying profits from its use.[3] Thereby, the adoption of TRIPS agreement indeed may lead to significant positive results, mainly to elimination of legal controversies and simplification and promotion of international trade.

Nevertheless, practice indicates that it brought to a huge negative impact, mainly for developing countries, which previously have gone without strict protection of intellectual property rights. Quite frequently these negative results predominate over positive effects. In some respect TRIPS widened a gap between developed and developing countries having fostered the positions of the first and exacerbated painful existence of the latter. It has also challenged and put at stake a more or less stable balance between two bodies of law – intellectual property and human rights – which up to its adoption have been seldom colliding but seem to be irreconcilable in a modern world.[4] This implacability may be argued by that a whole process of elaboration and adoption of TRIPS was brought into effect by the ‘invisible government’ – the largest multinational corporations residing in USA, Europe and Japan. They basically held the ring in that matter as they sought to increase own revenues by imposing a strict protection of intellectual property on all the states of the world and certainly did not prioritize human rights and needs of poor countries over their economic interests.

The main aim of this work consists in giving an overall insight of the difficulties sprang up after the adoption of TRIPS and which third-world countries have encountered with due to its implementation in the national legal order and in pointing out how it must be amended to prevent further damage to them. I will focus on such controversial issues as patenting of pharmaceuticals and rise of obstacles which hinder the access to the needed drugs, biopiracy, absence of communitarian knowledge and folklore protection, preservation of biodiversity. I will also try to give my personal view of possible solutions from above described issues.

Protection of Communitarian Knowledge and Folklore. Prevention of Biopiracy

In this chapter I will examine the problem concerning protection of communitarian (also claimed as traditional) knowledge and folklore and will try to determine what steps should be undertaken in order to prevent biopiracy and preserve biodiversity. I will follow the interpretation of ‘tradition knowledge’ and ‘folklore’ notions as given in the paper “Protecting Traditional Knowledge and Folklore” by Graham Dutfield: traditional knowledge is a phenomena, inseparably connected with environment and wildlife, while folklore substantially includes works of fine art, music, literature.[5]

The problem arising with regard to the protection of communitarian knowledge and folklore is twofold. First, there is no definite opinion whether they may be objects of protection under the traditional intellectual property system since they do not satisfy necessary criteria such as, with respect to patentability, novelty, involvement of the inventive step and capability of industrial application.[6] Neither can they be objects of copyright for along with impossibility of determining the right holder traditional knowledge is a result of intellectual activity of a community which contradicts the provision of TRIPS stating that these kinds of rights are private ones. In addition to that, legislation of several countries directly stipulates exclusion of folk art from protection under intellectual property law.[7] Second, objects of communitarian knowledge and folklore keep on being exploited for commercial proposes substantially by companies from rich countries. That situation entails not only the impossibility of receiving profits from the use of that knowledge by communities which are its authentic authors and which predominantly belong to third-world countries. It also leads to the prohibition of usage of original products which after being slightly modified become the base for new products which already meet requirements of protection under, say, copyright law. For instance, indigenous songs can be collected, interpreted, sung, and the final result becomes already an object of copyright law.[8]

It is noteworthy that TRIPS lays down the provision of patentability of plants and microorganisms but says nothing with regard to the protection of tradition knowledge and folk art. These facts prove that the agreement had a “coercive” and “imperialistic” character as it has imposed the interests of ‘golden billion’ on the whole world and totally ignored needs of poor countries lacking capacity to be equal negotiating partners to governments of ‘high and mighty’.[9]

In that context TRIPS has often been claimed to be incompatible with Convention on Biological Diversity as the compulsory grant of patents to genetic resources may contradict the art. 15 of CBD which endues exactly local governments to determine access to such resources in line with national legislation.[10] At the same time, TRIPS does not fully take into consideration principles of conservation of nature and sustainable development, disregards “approval and involvement of holders of such knowledge, innovations and practices… equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices”.[11] In practice such contradiction acquires the form of patenting of genuine traditional knowledge by various research institutes mainly from USA and Europe. The most famous and crying example of that was patenting of turmeric, powder for wound healing, originated from India and having been used there for centuries, by University of Mississippi Medical Center.[12] Owing to large-scale protests of NGOs and interference of the Indian Government, US Patent and Trademark Office had to call back the granted patent in terms of lack of novelty. Yet similar events occur more and more frequently and serve as a good proof of predominance of economic interests over universal values even in legal institutions.

Various proposals were tabled with an aim to solve that problem. First, it was suggested to amend art. 27.3(b) of TRIPS and to prohibit patenting of living organisms.[13] Second proposal, put forward by India, consists in the revise of art. 29 which has to compel future patent holders to disclose origin of source, material, used in the invention, and its country, to acquire a preliminary consent of respective local community and to guarantee adequate benefit sharing.[14]

Although the first proposal may seem most suitable, I do not think that it can be realized since it is not politically workable. Developed countries will hardly approve such amendments as revenues from the use of patented microorganisms are quite high. What is more, the fact that the ‘life science’ is a new and challenging field of study, giving researchers a large space for creativeness, makes this proposal even more utopian.

Therefore I suppose that imposition of equitable benefit sharing and disclosure of sources will work to the good of both parties, can lead out science on new levels of development due to the newly revealing sources and advance overall progress.

In the context of protection of copyright and related rights by TRIPS, I hold necessary to amend it so that it does not limit aforesaid rights only to private ones. This amendment will result in the recognition of authorship on works created within local communities and will be an indispensable instrument of distribution of remuneration which I will argue in the following paragraphs. I believe that the author of folk art is its national or ethnic group, people who created this object, developed it and believe it to be inalienable from their history and modern life.

Nevertheless, I do not hold reasonable to confer the status of object of copyright law to folk art, proposed by some experts, as it will ruin the overall copyright conception.[15] Recognition of moral and economic rights over certain objects is always limited in time and after certain period of protection is expired, these works pass in public domain. Thereupon, the best solution in this situation is to introduce the obligatory payment of remuneration to right-holders through societies on collective management of copyright and related rights and than to the communities themselves. The latter are also entitled to give permission for the use of their works. Actions, similar to my proposal, were undertaken in Panama and Peru which introduced that provision in national legislation. Yet, payments of remuneration in these cases are being made through local authorities but in my view it is more secure to pay them to organizations acting exclusively in that field.

This step may have positive consequences in various areas. First, it can preserve authentic culture from its distortion, misappropriation, falsification and plagiarism. Second, it may become an efficient machinery promoting and favouring development since that knowledge can be involved in commercial activity and produce profits for its owners.

Certainly, the only amendment of TRIPS is not enough since local efforts are needed such as education of people from developing countries, promotion of cultural development and, the most important, well-considered local policy with regard to the use of folklore in economic aims so as not to hinder the access to that knowledge for the population itself from the side of local authorities. Culture is a cumulative phenomenon and creative personalities are capable of producing new artworks having an access to the experience of past generations. Therefore, especially in that area, it is necessary not to carry that policy to the extremes. TRIPS can be a useful mechanism protecting traditional knowledge, promoting an overall economic progress and diffusing culture but it can be so if its founding fathers admit the prevalence of universal human rights and sustainable development over pursuit for economic enrichment.

Patenting of Pharmaceuticals and Health Care

The adoption of TRIPS agreement had a major effect on developing countries as it obliged them to implement in national legislations provisions stipulating patentability both of processes and pharmaceuticals while previously the majority of them have granted patents only to processes.[16] The obligation to protect drugs by patenting them consequently entails a rise in costs which makes them absolutely unaffordable for people living with an income of 1 dollar per day.[17] Allowing for epidemics of HIV/AIDS, malaria and tuberculosis rampant in Africa and Asia, the possibility to prevent further spread of diseases and to treat people already infected with them became more illusive.

This concern provoked hot debates initiated by representatives from third-world countries which finally have resulted in the adoption of Doha Declaration on TRIPS and Public Health and Decision on Implementation of art. 6 of the Doha Declaration on the TRIPS Agreement and Public Health. Both Declaration and Decision had a quite large impact on the actual situation with access to medicine as they affirmed several flexibilities of TRIPS such as compulsory licensing and right to determine circumstances on the base of which that license can be issued.[18] In addition to that, Decision contains a waiver of the art. 31(f) of TRIPS and stipulates the right to issue compulsory license not only for domestic use but also for third countries lacking manufacturing capacities to produce medicine.[19] But the most outstanding statement of Doha Declaration is the following: “We agree that the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all”.[20] The value of the statement can not be underrated by the fact that it is laid down in Declaration which is substantially considered as not-binding agreement. Once it was declared and consequently followed and affirmed by Decision, its impact on TRIPS itself is enormous: measures for the sake of protection of health and respective deviation from TRIPS rules can be no longer considered as exception from it but on the contrary interpreted as possessing supremacy over other norms and in some respect perceived as the purpose of TRIPS. Thus, correspondent amendment and inclusion of that norm in TRIPS and other WTO agreements may solve the mentioned conflict between intellectual property and human rights, and social and economic welfare declared as an objective of TRIPS in art. 8 can be reinforced by the recognition of predominance of human rights over the pursuit for profits.

Also it is necessary to draw our attention to the Decision which is claimed to simplify an access to medicine but in fact, by providing a very complicated and burdensome mechanism of issuing compulsory license, creates at the same time real obstacles on the way of concerned countries. Before the adoption of Decision various opinions were expressed with regard to the most appropriate way of realization of ‘expeditious solution to this problem’ (paragraph 6 of Doha Declaration) such as the amendment of art. 30 of TRIPS, 31 of TRIPS or the application of the rule of non-justiciability to the compulsory license machinery.[21] It seems that Council of TRIPS has got under way the most undesirable and complicated solution of that problem. But as far as Decision was adopted, nothing can be done in order to change the chosen direction. Therefore I believe that alongside with the prevention of the negative practice to bar the issue of compulsory license which takes the form of TRIPS-plus agreements, for instance, it is necessary to simplify the aforesaid mechanism and to convert it from the exception of TRIPS into the provision having been applied on a regular and routine base. It does not have to be perceived as a side effect of intellectual property machinery but on contrary as a necessary element to establish the balance infringed by TRIPS.

Introduction of Maximal Standards

One of the most far-reaching objectives of TRIPS is its status of a treaty containing minimal provisions which every country has to adjust its legislation in accordance with. Those minimal standards have the same character as those laid down in Paris Convention for the Protection of Industrial Property, Berne Convention for the Protection of Literary and Artistic Works, Rome Convention and Treaty on Intellectual Property in respect of Integrated Circuits. TRIPS has only integrated them in one document and once again declared their compulsory application within different domestic orders.

The meaning of minimal standards consists in the fixation of a legal ‘floor’ for elaboration or adaptation of national laws while the ‘ceiling’ is free to be determined by countries themselves. But in due course of time that inferior border has become more fluctuating. For instance, famous TRIPS-plus agreements concluded between USA and other countries (for instance, Jordan) raise these standards whereupon laws of these states become as strict as in USA which is claimed to possess the most severe legislation in intellectual property sphere.

Third-world countries are compelled to conclude them in exchange of other doubtful benefits as, for instance, the reduction of tariffs for agricultural products.[22] In addition to that, large number of international conventions was concluded after TRIPS came into effect which tend to regulate relationships in fields uncovered by TRIPS as, for instance, internet-treaties signed under the auspices of WIPO. All that still more aggravates a misbalance caused by TRIPS.[23]

In this respect I think that alongside with minimal provisions TRIPS has to include maximal standards which in no case may be infringed. The danger hidden in aforesaid TRIPS-plus agreements consists in that their initiator is free to determine what norms they may include and is not limited neither by norms of international law nor by the possibility to be sued in WTO Dispute Settlement Body. Maximal standards can become a helpful mechanism which can prevent conclusion of similar treaties. It can be argued that the stipulation of maximal standards disregards a permanent orientation of the humanity in the future and the fixation of borders means the impossibility of a forward-reaching strategic planning. I suppose that provisions which are well-considered and flexible for the sake of development may and must be adopted in that situation and have a potential to protect interests of poor states while not making hindrances for scientific research and economic wellbeing of the developed countries and the whole humanity.

Conclusion

The history of drafting, adoption and application of TRIPS agreement serves as a good example of who has trumps in that game for economic, political and cultural superiority. ‘The winner takes it all’ rule is more than appropriate in this game. The most important thing in it is to correctly determine final objective and in the end the winner will be that side which will be able to distinguish momentary and unilateral benefit from far-reaching and real advantage giving way for the overall development. The world has already come to the point to have recognized human right and personal dignity prevailing over other material profits: it has expressed in the milestone of 20th century – in the adoption of Universal Declaration of Human Rights. Nevertheless it is still far from fully applying that concept into the real life. But as in the case with the paragraph 4 of Doha declaration, the recognition and the perception of human dignity and human life as superior values will define the image of the whole mankind. USA and countries of Europe have this principle as main objective of their policies they elaborate and realize on all the levels but in practice we see obvious contradiction between declared values and their real actions, in particular, with respect to third-world countries. Therefore on the agenda of every country, small or large, wealthy or poor, is placed the necessity to determine the objective of its development and the one of the world community and to formulate ways of how to achieve this overall progress. And that country or that part of the world which will correctly formulate it, will ‘take it all’.

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