The proposed amendments to TRIPS are the fruit of a project launched under the title “Intellectual Property Rights in Transition” (IPT) under the aegis of the Institute for Intellectual Property and Market Law (Institut för Immaterialrätt och Marknadsrätt, IFIM) at the University of Stockholm, in cooperation with the Munich Max-Planck-Institute for Intellectual Property and Competition Law (MPI), the Institute for Civil Law at the University of Copenhagen, and IPR University Center in Helsinki. The project was initiated and led by IFIM’s director, Marianne Levin, who was joined in her function as the group’s chairperson by Annette Kur. Niklas Bruun, François Curchod, Jens Schovsbo, Antonina Engelbrekt-Bakardjieva, Frantzeska Papadopoulou, Henning Große Ruse-Khan and Andrea Wechsler were involved in the work as permanent or temporary project group members; Åsa Hellstadius acted as the group’s secretary.

The project took its cue from the growing discontent with the development of Intellectual Property (IP) in the post-TRIPS era. Indeed, what appeared to be the ultimate breakthrough of IP-oriented law and policy-making on a global level also marked a culmination point in the sense that the broad public esteem previously commanded by IP gradually lost ground. Fuelled by frustration of expectations raised with regard to the impact of IP on economic welfare, and resenting the restrictions imposed on communication and exchange of technology, deep skepticism towards the functioning of the system nowadays governs the perception of IP by large parts of the public, in particular when it comes to sensitive issues such as public health, nutrition, and dissemination of knowledge. IP is often seen as a mere tool for securing economic dominance of a few over a world of many, and as impeding rather than promoting a sound and sustainable socio-economic development.

Before that backdrop, the IPT project set out to explore ways to reestablish the balance between different interests involved, where it may have been distorted by a one-sided, inflexible approach towards IP on the global as well as on the domestic level. That goal is shared with many others working on comparable projects or adding to the impressing wealth of contributions to the debate on contemporary challenges of IP. However, in an effort not to remain confined to the ivory tower of academic discussion, the project has taken further steps by formulating concrete proposals for amendment of TRIPS. The political prospects of that approach are not overrated, nor is it ignored that the world has moved on since 1994, and more “hot spots” have emerged on the IP trouble chart than those ensuing from TRIPS in its current form. Nevertheless, the TRIPS Agreement with regard to its genesis and contents still offers an obvious and prominent target for the criticism voiced against the intellectual property system as it exists today. Furthermore, even without an immediate chance for political implementation, consideration of amendments to TRIPS offers a welcome opportunity to address at least some of the urgently felt and widely articulated needs for readjustment of the system, and to highlight, in a concise form, possible ways to overcome the perceived deficiencies.

The proposals are structured as follows: Given the paramount importance of the general provisions in Part I for the interpretation of the TRIPS Agreement, the current wording of Articles 7 and 8 – Principles and Objectives – is fleshed out and amended so as to reflect the entire spectrum of policy goals to be aspired in a sound and thriving IP system, and to ensure its full application. In addition, a new provision – Article 8a – has been added, as an instrument modulating the balancing of interests between right holders, competitors, and the
public at large. The provision is modelled on the three-step-test, but departs from the current formulation where that appears necessary in order to avoid a policy-blind application of the criteria set out therein, and to ensure that due account is taken of the proportionality principle.

Furthermore, the interface between intellectual property and competition law is addressed in a new Article 8b. In Part II of the Agreement, the provisions currently containing the threestep-test in its various forms have been changed into ceiling rules, i.e. catalogues of mandatory limitations and exceptions which are considered as must-haves for every WTO Member State. Further amendments proposed concern the requirements and scope of patent protection as well as enforcement and the interlink of intellectual property with private international law.

Munich and Stockholm, April 2011

Annette Kur & Marianne Levin

The text is published, together with an explanatory memorandum and chapters explaining the background for the proposals, in Annette Kur & Marianne Levin (eds), Intellectual Property in a Fair World Trade System – Proposals for Reform of TRIPS (EE publishers, 2011)