Research Paper Number

50/2016

Subsequently published in the Osgoode Hall Law Journal.

Document Type

Article

Publication Date

2016

Abstract

Articles 7 and 8 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) are entitled ‘Objectives’ and ‘Principles’ respectively. These provisions occupy a prominent position within the text of the Agreement, yet have figured sparingly in the legal reasoning of the WTO Dispute Settlement Body (DSB). The illogical nature of this discrepancy is accentuated when considered in light of four key factors. First, the pioneering step taken by the negotiators of the TRIPS Agreement to include broad declarations of intent within the legally operative text. Second, the 2001 reinforcement given to the authority of these provisions through the Doha Ministerial Declaration and the Declaration on TRIPS and Public Health. Third, the verbatim replication of these provisions within other intellectual property instruments, notably, the Intellectual Property chapter of the Trans-Pacific Partnership, the Anti-Counterfeiting Trade Agreement and the WIPO Development Agenda. Finally, the continued use of Articles 7 and 8 to influence political discourse on matters relating to intellectual property regulation. While it may be premature to suggest that Articles 7 and 8 are a customary part of the international IP system, the above information provides compelling evidence for greater investigation into their meaning in order to facilitate future recognition by the DSB. This article aims to contribute to this enquiry by exposing the individual elements of each provision to a detailed textual analysis. Dissecting the text into its various components adds precision to the study and supports comparisons with existing rules, principles and legal expectations. As will be demonstrated, necessity, reasonableness, consistency and good faith are principles found within Articles 7 and 8 that can be given substantive or interpretative force by drawing upon analogous legal reasoning arising both within and beyond the WTO system. Nevertheless, Articles 7 and 8, taken together, recognises a pivotal legal principle – that of national regulatory autonomy. This includes, but goes beyond, deference to national policy choices in several key areas, to recognising that the ‘Objectives’ and ‘Principles’ express a state-centric method of calibration that must guide the general application of TRIPS and any other agreement within which they are incorporated.

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