Study On TRIPS-plus Clauses In Free Trade Agreements

Agreement On Trade-related Aspects of Intellectual Property Right (TRIPS) setthe basic standards for the protection of intellectual property rights among the world.However, both developed and developing countries were unsatisfied with thestandards for protecting intellectual property rights set by TRIPS. Under thecircumstances that it is difficult for the developed countries or regions such asAmerica and EU to adopt higher intellectual property protection mechanism once andagain under the world multilateral system, so that they swifted their such ambitions toregional or bilateral Free Trade Agreement (FTA) negotiations. The developedcountries included the clauses providing that higher standards of intellectual propertyrights protection compared with TRIPS, which is called TRIPS-plus clauses into FTAtext for the purpose of improving the global protection standards for intellectualproperty. The standards for intellectual property protection of such TRIPS-plusclauses in FTA are increased obviously both from the substantive and proceduralperspectives.The Anti-Counterfeiting Trade Agreement (ACTA) negotiated secretly amongthe main developed countries since2008aims to set the unified standard forintellectual property enforcement globally. ACTA mainly elaborate the legal frame ofintellectual property enforcement based the related regulations of TRIPS, while aremuch more detailed and tougher than the original TRIPS agreement IP enforcementrules. With regards to the emerging and expanding mode of TRIPS-plus clausesamong the world, relevant provisions in ACTA text will spread fastly and smoothlypushed by the main developed countries with no doubt though ACTA is full of controversy among the world up to now. As the largest developing member of WTOand the world, our country is inevitable cooperating with other countries bilaterally orregionally with the intellectual property issue as an unavoidable negotiated topic. Ourcountry must recognize the strong development momentum of TRIPS-plus clauses inFTA and actively respond to the development trends of TRIPS-plus clauses and ACTAby methods of cooperating with other countries, etc. in order to minimize the negativeeffects TRIPS-plus clauses may bring to our county in the forthcoming negotiations ofnew FTA with other counties.Research on the TRIPS-plus clauses in FTA is the object of this thesis whichreveals the characteristics and the impacts of such clauses mainly including on theworld intellectual property protection mechanism and on our country through theresearch methods of comparison and analysis, aiming to provide a useful reference forour country’s future participation in the international intellectual property cooperation.This paper is divided into four chapters among which the first chapter introduced thegeneration and development of TRIPS-plus clauses. This part mainly analyzes twomain aspects which are the push of international society and legal sources respectively;The second chapter mainly analyzes and evaluated the concrete manifestations andcharacteristics of Trips-plus clauses in several FTA, cased by the American-FTA andEU-FTA signed with other counties. The third chapter states and analyzes the newlyproduced intellectual property enforcement rules called ACTA by introducing thegeneration of ACTA and the comparison with the enforcement rules pf TRIPSagreement revealing the obvious TRIPS-plus trends of ACTA. At the meanwhile, thispart points out the relationships between ACTA and the new expansion of TRIPS-plusclauses; The last chapter analyses the impacts on the world, covering the influenceson intellectual property protection mechanism over the world and the effects ondeveloping countries with China included and puts forward countermeasures to dealwith the TRIPS-plus clauses in FTA for china.