The Study Of TRIPS-plus Clauses In Bilateral Free Trade Agreement

While many people believed the introduction of minimum standards and greater enforcement for intellectual property rights (IPRs) through the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) sufficiently met the major industrialized nations’demands for strong IPRs, it now appears that this agreement only served as another step in the pursuit of stronger IPRs. In fact, having failed to achieve all they sought in the TRIPS negotiations, the US and other developed nations almost immediately began negotiating for the inclusion of more protectable subject matter, broader and more extensive coverage, increased harmonization, stronger enforcement mechanisms, and a weakening of ’flexibilities’ and ’special and differential treatment’ granted to developing and least developed countries in the TRIPS. Having unsuccessfully attempted to strengthen IPRs in TRIPS in the years following its implementation, and following the spectacular failure of the Seattle Ministerial in1999, these nations shifted the focus of their efforts from the multilateral forum to bilateral and regional Free Trade Agreements (FTAs). Thus, while many developing countries were still struggling to implement their obligations under TRIPS, developed countries were already raising the level of IPRs through FTAs and BITs. From then on, world IPR protection came into the TRIPS-plus time.TRIPS-plus clauses were not generated occasionally, they were the result of the game of developed countries and the developing countries in the intellectual property rights area. Developed countries with promising market access, as well as the technology transfer and investment support to exchange these clauses from developing countries and the least developed countries. It appears by the reason of developed countries pursue greater economic benefit, developing countries seeking its own development road and the institutional defects of TRIPS. Such clauses also have its legal sources, namely elastic clause. Through signing the bilateral agreement which containing TRIPS-plus clause, some developing countries’ IPR protection level was improved invisibly with the methods of cross quoted and most-favored-nation treatment principle. After a brief introduction, this thesis summarize two features which included with FTA as a carrier and having become a trade policy tool of developed country based on the US’s and the EU’s FTAs with TRIPS-plus clauses. TRIPS-plus clauses had expanded the scope of the object of IPRs, changed of IPRs protection period, strengthened the IPR law enforcement measures and limited the compulsory license and parallel import. These aspects were clearly reflected that such terms were the trade policy tool of developed countries. Based on the analysis of these features of TRIPS-plus clauses, this paper pointed out that TRIPS-plus clauses had brought profound influence for world IPRs system and developing countries.As one of the important international IPRs protection trends, the US’s and the EU’s FTAs which contained TRIPS-plus clauses FTAs has the important enlightenment function to our country’s IPRs protection. As the biggest developing country, China will inevitably face with bilateral or multilateral trade, investment agreement negotiation and consultation. Among these agreements, the TRIPS-plus clauses should cause our enough attention. This requested us to understand TRIPS-plus clauses’ features and influences, furthermore, we also need to see through the IPRs tricks of developed countries to make yourself to avoid needless loss of profits. We should also absorb the teaching of other developing countries to realize reasonable regulation of intellectual property protection, so as to make protection standard to adapt the development of our country. Therefore, the research of TRIPS-plus clauses can beware of the US’s and the EU’s IPRs trap, so that our country can safeguard our own interests.Aiming at providing beneficial reference for our future signing FTAs with other countries, this paper generally introduced the TRIPS-plus clauses’ meaning and origin, induced the US’s and the EU’s TRIPS-plus clauses, illustrated the terms’ features, this paper reveals the clause to the world intellectual property rights system and the influence of the developing countries, revealed the influences to the world’s IPRs system and the developing countries, and finally pointed out the potential impact to China. Among them, the first part of the paper introduces the general situation of TRIPS-plus clauses including the meaning, the development course, causes and so on. Based on the US’s and the EU’s FTAs, the second part analyzed TRIPS-plus clauses’ two features. The third part revealed the influences to world’s IPRs system and the developing countries, and creatively analyzed such clauses’ potential impact to China’s IPRs protection and FTA strategy. The fourth part gave countermeasures for the domestic IPRs protection in China and against TRIPS-plus clauses. Finally, we can drew the conclusion that IPRs protection in China was still a heavy responsibility, we should not only perfect domestic IPRs system, but also enhance our FTA negotiation skills, so as to ensure the protection of IPRs to adapt to China’s economic development.