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On the overall, the TRIPS agreement has the capacity to regulate international intellectual property. Her Bachelor studies were in European Law at the University of Maastricht, The Netherlands, in which she also was selected for a researched based programme, Marble program, under the supervision of the Dean of the law faculty. On top of that, she has published numerous articles on various topics, such as aviation law, maritime law, money laundering law, etc.
By Cecilia Oh
Baldwin, R. Understanding Regulation: Theory, Strategy, and Practice. Oxford University Press. Barbosa, D. Rio de Janeiro: Lumen Juris.
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Intellectual Property Rights in a Fair World Trade System: Proposals for Reform of Trips
An IPR system or regime has many dimensions. First of all, it encompasses many different instruments patents, copyrights, trademarks, trade secrets, plant breeders rights, protection for mask works, etc. The strength of a system, in turn, reflects not only the level extent of limitations on titleholders' rights , duration, and scope of protection provided, but also the capacity of the system to enforce the conferred rights. NIEs are defined here as those developing economies that by had an income per capita of at least U.
It is also worth mentioning that all of them were exporting more than U. For the objectives of this section, however, what makes the NIEs particularly interesting is the fact that a few years ago, with the exception of Hong Kong, all of them were listed among the so-called problem countries i. The points that I would like to explore are the following: 1 since the mids, NIEs have strengthened IPR protection in their territories. Actually, many other problem countries e. In other words, external pressures are not the only forces shaping these reforms.
Knowledge-intensive or high-tech products are usually defined as those products for which investments in the creation of knowledge are responsible for a substantial share of their production costs. Industries engaged in the production of knowledge-intensive products typically have a strong interest in IPR protection. For further details on high-tech trade statistics see Primo Braga and Yeats It is worth mentioning that a country could, for instance, have a "good" patent law and yet be considered a "problem country" either because of inadequate enforcement of its patent law or because some other aspect of the IPR system e.
For a summary inventory of the so-called problem countries, see Rozek The attitudes of developing countries toward IPRs changed significantly over the last decade.
It is enough to remember, for instance, that many of these countries favored a revision of the Paris Convention in the early s. The objective of this revision was "to weaken the international standards of industrial property protection" Kunz-Hallstein, The case of the NIEs is quite illustrative in this context.
Recent developments in trade relations between the United States and the NIEs highlight the above-mentioned trend. Over the last three years, Mexico, South Korea, and Taiwan were removed from the "priority watch list" that identifies the main problem countries according to the Super provision of the Omnibus Trade and Competitiveness Act. In July the retaliatory action against Brazil, introduced in October as a result of a Section investigation focusing on Brazil's lack of patent protection for pharmaceutical products, was discontinued.
Those in favor of high standards of protection may still find many flaws in the current IPR systems of the NIEs, particularly with respect to enforcement. The debate, however, has lost most of its moral overtones, which tended to divide the world in a Manichaean fashion between the forces of light the supporters of IPR and the forces of darkness the "pirates". At the intellectual level, this may simply reflect a recognition of the inadequacy of attempts to frame the debate in terms of natural law concepts.
Probably the most dramatic example in this context is provided by Mexico Villarreal, This new law expanded the scope of protection to technological fields, which were until then excluded from patentability or for which issuance of patents. For a brief discussion of the role of fairness and morality in shaping IPR laws, see Primo Braga a. The duration of patent protection, which used to be 14 years from the granting of the patent, was extended to 20 years from the date of filing the application. Limitations on patentees' rights e. Protection for trademarks and industrial designs was also enhanced, and the law introduced more explicit protection for trade secrets.
The new law is also intended to improve the conditions for enforcement of IPRs by creating a new institution to help the Mexican Patent and Trademark Office: the Industrial Property Institute. It is also worth mentioning that Mexico amended its copyright law in in an attempt to correct some of its perceived weaknesses. The main change in this context was the adoption of tougher penalties for copyright violations. Among the Asian NIEs—which, in general, already had higher levels of protection than the Latin American NIEs by the mids—the last few years have also been characterized by additional reforms designed to strengthen IPR protection: 1 Singapore enacted a new Copyright Act in , expanding its scope and significantly increasing penalties for infringement.
In , a new Fair Trade Law was enacted, which provides for protection of trade secrets. Copyright law is also being revised with the goal of strengthening protection to a level similar to the one prevailing among Berne Convention signatories. Enforcement efforts have significantly increased since then, and a trade secrets law is being drafted. Finally, let us take a look at Brazil, which was one of the main opponents of the movement toward higher levels of IPR protection in the early s. The Brazilian Software Law of extended copyright protection to computer programs. Enforcement efforts to protect IPR have increased significantly over the last few years, particularly with respect to software and home-video cassettes.
In , the Collor administration submitted to the Brazilian Congress a draft law reviewing Brazil's system of "industrial protection. Trade Representative several years.
TRIPS, Patents and Access to Medicines
This new law is still being debated in the Brazilian Congress, but it is quite clear that Brazil is also moving—even though at a slower pace—in the same direction as the other NIEs. The recognition that all NIEs have strengthened IPR protection since leads us to the next question: What forces have fostered these changes? Some analysts, including myself Primo Braga, , b , believe that historically the level of IPR protection has been positively correlated with the level of economic development.