Intellectual property and its foundations: Using Art. 7 and 8 to address the legitimacy of the TRIPS

• Date: 01 March 2020
• Author: Johan Rochel
• Published date: 01 March 2020
• DOI: http://doi.org/10.1111/jwip.12138

J World Intellect Prop. 2020;23:21–39. wileyonlinelibrary.com/journal/jwip © 2019 John Wiley & Sons Ltd

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DOI: 10.1111/jwip.12138

ORIGINAL ARTICLE

Intellectual property and its foundations: Using

Art. 7 and 8 to address the legitimacy of the TRIPS

Johan Rochel

Faculty of Law, University of Zürich, Zürich,

Switzerland

Correspondence

Johan Rochel, Faculty of Law, University of

Zürich, 8000 Zürich, Switzerland.

Email: Johan.rochel@gmail.com

Funding information

Schweizerischer Nationalfonds zur Förderung

der Wissenschaftlichen Forschung

Abstract

This paper addresses legitimacy issues of the international

IP regime by focusing on how normative resources internal

to the Trade‐Related Aspects of Intellectual Property Rights

(TRIPS) might be drawn upon. It combines legal analysis and

political theory to account for the TRIPS’normative

foundations (Art. 7 and 8). The paper’s primary contribution

is to show that these special legal norms are both a locus of

balancing the objectives and principles and a guiding light

for the interpretation of subsequent norms contained within

the treaty. Their content might best be understood using

concepts coined by political theory. This combination of

legal and philosophical insights identifies two levels of

relevance for these special legal norms: as a specification

about the type of competition in global trade foreseen by

the TRIPS, and as a justification for intellectual property

rights protection. To illustrate the relevance of this

approach, the paper briefly considers the panel report in

Plain Packaging and its use of Art. 7 and 8. Overall, the paper

entails both a methodological contribution on the dialog

between political theory and law on international trade, as

well as a legal argument on how to unpack normative

resources entailed by the TRIPS itself.

KEYWORDS

legal theory, legitimacy, political theory, organizations and

agreements, TRIPS

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INTRODUCTION

The international intellectual property (IP) regime is facing turbulence. As intellectual products and services

increasingly represent a crucial part of the international trade regime, criticism voiced by developing countries,

consumers’representatives, and numerous NGOs are putting more pressure on the way these intellectual creations

are protected (Geiger & Desaunettes, 2017; Yu, 2009, p. 1024 ff). This criticism often targets the current regime as

organized around the Treaty on Trade‐Related aspects of Intellectual Property Rights (TRIPS).

One important dimension of this turbulence is about challenging the legitimacy of the TRIPS.

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It entails claims

against an unjust and unfair regime of IP protection on two levels. On the first level, the regime is criticized for

privileging the economic and political interests of developed countries over developing countries (Correa, 2013).

On the second level, the balance struck between private and public interests is considered to be similarly unfair

(Sell, 2003). More generally, these criticisms might also pertain to the way TRIPS has been integrated into the WTO

and, for many, imposed upon developing states (Drahos, 1995; Drahos & Braithwaite, 2002; Matthews, 2002).

These criticisms are by no means reserved to radical critics of international IP protection. Even for those convinced

of the need for an international IP regime, the current regime as organized by the TRIPS is seen to be in a state of

tension with the overall WTO objective of sustainable development. As a result, respect for the TRIPS’high

standards of protection and enforcement might be incompatible with achieving economic and social prosperity

(Grosse Ruse‐Khan, 2011).

This paper addresse s this challenge on the TRIPS’legitimacy by focusing on the normative resources

contained within the TRIPS itself (Taubman, 2007). It proceedsby focusing on the objectives and principles upon

which the TRIPS is based , which are found mainl y in Art. 7 and 8. By drawing up on these special norms , the

methodology chosen o ffers a way to bring the best of the politica l theory of IP into the practical realm of IP l aw.

Together, these diffe rent epistemic reso urces offer insights o n how to address the crit icisms raised against the

TRIPS.

This paper contributes to a specific legal scholarship interested in Art. 7 and 8 TRIPS (Frankel,2014; Geiger &

Desaunettes, 2017; Grosse Ruse‐Khan, 2015; Slade, 2016; Taubman, 2007; Yu, 2009).

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It complements this

scholarship by bring ing IP law and political theory togeth er in tandem. The paper locates philo sophical resources

at the core of the process of interpretation of legal norms. It identifies positivised objectives and principles both

as the locus of interpretation and as resources to address the legitimacy issue raise d with respect to the regime

(Merges, 2011). This approach aims to provide guidance on how to interpret Art. 7 and 8 of the TRIPS and, in a

second step, to draw upon them in interpreting t he flexibilities of the TRIPS. To illustrate the relevance of this

approach, I shall briefly consider the panel report in Plain Packaging and its use of Art. 7 and 8 in its assessment of

the case.

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My main hypothesis is that the normative content of Art. 7 and 8 of the TRIPS shall be grasped on two distinct

levels: as an argument about the type of competition foreseen by the TRIPS, and as a justification for IPR

protection. As I shall argue, these two levels of relevance are of practical importance in identifying a method for

interpreting Art. 7 and 8 (Frankel, 2014). Once it has been established how Art. 7 and 8 should be interpreted,

these two articles might be used to transmit specific normative content for the sake of interpreting other norms of

the treaty. This dimension is particularly relevant for IP practitioners interested in the foundational aspects of IP

law and its potential relevance for further case‐law. It also offers resources for officials implementing national IP

law in accordance with the framework foreseen by the TRIPS (Dinwoodie & Dreyfuss, 2012, pp. 194–197). Overall,

the paper presents both a methodological argument on the link between political theory and IP law and a

discussion/argument regarding interpretation of the TRIPS.

Section 2 explains the methodological foregoing and locates it within both philosophical and legal literature on

IP. Section 3 identifies the two levels of relevance of Art. 7 and 8. On the basis of these findings, Section 4 explores

the main interpretative functions of Art. 7 and 8, showing the practical relevance of a combination of legal and

political IP theory in the context of the interpretation of further TRIPS’norms.

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ROCHEL