TRIPS-Round II: Should Users Strike Back?

The TRIPS Agreement,' the instrument of the General Agreement on Tariffs and Trade (GATT) governing intellectual property protection at the international level, is structured to directly protect the rights of intellectual property holders. It does little, however, to explicitly safeguard the interests of those who seek to use protected works. In some ways, this structure is not surprising. Because the free traders who negotiated the GATT worked in an environment in which the core concern, reducing market barriers, was viewed as producing (at least in the long term) unmitigated welfare gains, they were not likely to appreciate the social importance, in TRIPS, of balancing proprietary interests against public access needs. Moreover, to the extent that the United States was a prime mover in the Uruguay Round, its intent was to ease U.S. trade deficits by creating broader exclusive markets for intellectual products, a goal with rather a scant role for user rights. As a result, the TRIPS Agreement specifies levels of protection that can be exceeded, but not easily diminished. User interests are largely left to domestic practice through provisions like the famous (now notorious) "three-part" tests, which permit members to create limited derogations from protection, but only so long as they do not unreasonably conflict with normal exploitation of the protected work or unreasonably prejudice the right holder (taking into account, in the case of patents, the interests of third parties).3 It is rapidly becoming evident, however, that there are problems with a bifurcated system that, in effect, permits (encourages) members to expand intellectual property rights, but which makes them subject to challenge before the WTO when they reduce any of the incidents of protection. Developing countries are the most obviously vulnerable. Because their obligation to protect intellectual property arises solely out of WTO