Intellectual property rights
The global debate on the enforcement of Intellectual Property Rights and developing countries
Should developing countries avoid TRIPS-plus enforcement standards in the free-trade areas negotiation?
Authors:
C. Fink; C.M. Correa
Publisher:
International Centre for Trade and Sustainable Development , 2009
This paper seeks to provide an economic perspective on intellectual property rights enforcement. It evaluates the welfare effects of different forms of IPRs infringements and reviews the economic impact of piracy and counterfeiting. The paper also examines the recent drive for TRIPS-plus enforcement standards, which go beyond the requirements of the TRIPS agreement and risk undermining the balanced contained therein.
The paper deems that an economic perspective on IPRs enforcement should contribute towards identifying priorities for the allocation of scarce law enforcement resources. Furthermore, it indicates that the welfare effects of different types of IP infringement impact differently on the economy. Thus, it suggests that governments should focus their enforcement efforts on cases of deceptive trademark infringements.
On the other hand, the paper notes that the current offensive on enforcement ignores the differences between various types of infringing acts, and shifts the burden of enforcing private IPRs to states. Another recurrent issue is the demand for developing countries to establish special bodies or judicial courts to deal with IPRs infringement; such bodies would have to be funded by developing countries’ public budgets.
The paper concludes that the following recommendations are useful for the design and implementation of enforcement standards in developing countries:
- enforcement rules should not constitute a threat to local competitors nor deter local innovative initiatives
- criminal sanctions should be excluded for types of infringement that may be addressed through civil remedies
- enforcement costs should be borne by their direct beneficiaries
- TRIPS-plus enforcement standards should be avoided in the negotiation of FTAs and EPAs
- coordination between different areas of government should be improved in order to consistently deal with enforcement issues in different international fora
- relevant local parties should be made aware of the implications of abuses of enforcement rules and of TRIPS-plus standards
