trips art 6

Checklist of Issues on Enforcement under TRIPS Art. 63.2 - View details of the document

Main information, 1. notifying member, 2. notification status, 3. brief introduction if applicable, 4. civil and administrative procedures and remedies, (a) civil judicial procedures and remedies.

injunctions;
damages, including recovery of profits, and expenses, including attorney's fees;
destruction or other disposal of infringing goods and materials/implements for their production;
any other remedies.

(b) Administrative procedures and remedies

5. provisional measures, (a) judicial measures, (b) administrative measures, 6. special requirements related to border measures, 7. criminal procedures.

imprisonment;
monetary fines;
seizure, forfeiture and destruction of infringing goods and materials and implements for their production;

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Treaty Establishing the European Community (as amended by other Treaties) (European Union) [2006] OJ 321 E/37 (Date signed: 25th March 1957)

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Ch.2 Nature and Scope of Obligations

From: trade related aspects of intellectual property rights: a commentary on the trips agreement (2nd edition), carlos maria correa.

This chapter examines the nature and scope of obligations in the Trade-related Aspects of Intellectual Property Rights (TRIPS) Agreement. The first sentence of Article 1.1 of the TRIPS Agreement re-states a basic principle of international law: pacta sunt servanda. It makes clear that the obligations imposed by the Agreement are to be given effect by Members within their respective jurisdictions. Neither this article nor any other provision of the Agreement specifies how such obligations are to be implemented. In countries that follow a ‘dualist’ approach to international law, implementing regulations would be needed, as the Agreement would not be recognized as self-executing. In those adopting a ‘monist’ approach, the Agreement may be directly applied by judicial and administrative authorities, at least to the extent that the provisions are clear enough and self-contained. The way in which the Agreement is implemented may have important implications on the conditions for the access to and use of technology, particularly in developing countries, and on their economic and social development. It is crucial, therefore, to clearly identify the options left by the Agreement to implement its provisions in a manner that is as consistent as possible with Members’ interests and strategies.

[66.249.64.20|185.39.149.46]
185.39.149.46

Access to Medicines and Vaccines pp 1–30 Cite as

Interpreting the Flexibilities Under the TRIPS Agreement

Carlos M. Correa 3
Conference paper
Open Access
First Online: 28 October 2021

14k Accesses

1 Citations

While the TRIPS Agreement provides for minimum standards of protection of intellectual property, it leaves certain degree of policy space for WTO members, whether developed or developing countries, to implement the Agreement’s provisions in different manners, to legislate in areas not subject to the minimum standards under the Agreement, and to develop legal interpretations of such provisions to determine the scope and content of the applicable obligations. This paper focuses on some aspects of how panels and the Appellate Body of the WTO have interpreted said provisions. The paper also draws general conclusions for the implementation of TRIPS flexibilities, which are of crucial importance for the design of a pro-competitive intellectual property system and, in particular, for achieving public health objectives, as specifically recognized by the Doha Declaration on TRIPS and Public Health.

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1 Introduction

While the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘the TRIPS Agreement’) has had a major impact in framing national laws on intellectual property rights (IPRs)—notably in developing countries—and has led to some degree of harmonization of such laws, it is not a uniform law on IPRs.

One the one hand, the TRIPS Agreement provides for minimum standards, thereby allowing the members of the World Trade Organization (WTO) to adopt broader protections. Footnote 1 Many such ‘TRIPS-plus’ protections have been established through free trade agreements signed by the US and the European Union with developing country partners. Footnote 2 Examples of such TRIPS-plus protections include (in the area of patents) the extension of the patent term in order to compensate for delays in the grant of a patent or the marketing approval of a pharmaceutical product, Footnote 3 data exclusivity, Footnote 4 and what is known as ‘patent linkage’, Footnote 5 among others.

On the other hand, the TRIPS Agreement leaves some room for WTO members, whether developed or developing countries, to implement the Agreement’s provisions in different manners, to legislate in areas not subject to the minimum standards under the Agreement, and to develop legal interpretations of such provisions to determine the scope and content of the applicable obligations.

The possibility, and admissibility, of differences in the implementation of the provisions of the TRIPS Agreement are expressly recognized in Article 1.1 of the Agreement: “Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.” Competition law, which may be applied to control the acquisition or exercise of IPRs, is an example of the second situation in which the Agreement does not provide a binding standard. Footnote 6 The room for different interpretations may result from the absence of definitions. One example is the lack of a definition of the concept of ‘invention,’ which differs among countries and allows WTO members not to grant patents, for instance, on developments without a technical effect (such as under European law), or to grant or not grant patents on genetic materials. Footnote 7 In many cases, the space for different interpretations derives from general expressions or ambiguities in the text resulting from compromises reached in the negotiation of the Agreement. An outstanding example is the WTO members’ right to grant compulsory licenses due to lack of working of a patent, an issue indirectly referred to in Article 27.1 of said Agreement. Footnote 8 The task of the interpreter is particularly daunting when the text includes general terms such as “reasonably,” “unreasonably,” Footnote 9 “unjustifiable,” Footnote 10 or “unjustifiably.” Footnote 11

The actual policy space available under the TRIPS Agreement—beyond those areas not covered under the Agreement—depends, in the last instance, on the interpretation of the Agreement’s provisions. This paper focuses on some aspects of how panels and the Appellate Body of the WTO have interpreted said provisions. It discusses, first, the concept of ‘TRIPS flexibilities’ and the possible types of such flexibilities as found in the legislation of developing and developed countries. Second, the paper discusses the references to such flexibilities in WTO jurisprudence. Third, it briefly refers to some of the principles of interpretation that are relevant for the use of TRIPS flexibilities, including the value of dispute settlement rulings, the search for the ordinary meaning of the terms used, the context, and the object and purpose of the treaty. Fourth, it discusses the legal status of the Doha Declaration on the TRIPS Agreement and Public Health adopted at the 4th WTO Ministerial Conference in November 2001. Footnote 12 There is no attempt in this paper to analyze the specific content of the rulings in TRIPS-related disputes; however, the paper does draw some general conclusions for the implementation of such flexibilities, which are of crucial importance for the design of a pro-competitive intellectual property system and, in particular, for achieving public health objectives (as specifically recognized by the Doha Declaration). Footnote 13

2 Defining the TRIPS Flexibilities

The terminology used to refer to the policy space available for the implementation of the TRIPS Agreement has evolved. Expressions such as “room to maneuver,” “margins of freedom,” “safeguards,” and “margin of discretion” were used in the early studies and reports that identified various aspects of such space. Footnote 14 Currently, the diversity of legislative options available under said Agreement is generally known as ‘TRIPS flexibilities.’

The term ‘flexibility’ appears in the Preamble (sixth paragraph) and in Article 66.1 of the TRIPS Agreement but it is used there with a broader meaning. It indicates that least-developed countries (LDCs) are not bound to comply with the TRIPS Agreement obligations (except Articles 3 through 5) during the transition period:

In view of the special needs and requirements of least-developed country Members, their economic, financial and administrative constraints, and their need for flexibility to create a viable technological base, such Members shall not be required to apply the provisions of this Agreement, other than Articles 3, 4 and 5, for a period of ... Footnote 15

The terminology ‘TRIPS flexibilities’ does include the exemption for LDCs, but it also encompasses possible variations in the manner in which the TRIPS Agreement’s provisions are interpreted and implemented as they are applied to countries actually subject to them. Such terminology was used for the first time with this latter meaning in the context of the WTO in paragraph 4 of the Doha Declaration. Footnote 16 Said paragraph states:

4. We agree that the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all. In this connection, we reaffirm the right of WTO Members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose. Footnote 17

The Declaration confirmed the availability of a number of flexibilities. Its adoption was a response to the concerns of developing countries about the obstacles they faced when seeking to implement measures to promote access to affordable medicines, without limitation to certain diseases, in the interest of public health. Footnote 18

Since the adoption of the Doha Declaration, the concept of ‘TRIPS flexibilities’ has been referenced in a vast body of literature, especially (but not only) in relation to access to medicines, Footnote 19 and in numerous resolutions of UN agencies Footnote 20 and bodies, including the World Health Organization (WHO), the Human Right Council (HRC), Footnote 21 and the UN Assembly, as well as in reports of the UN Special Rapporteur on the Right to Health. Footnote 22 For instance, the World Health Assembly (WHA) urged member states “to consider, whenever necessary, adapting national legislation in order to use to the full the flexibilities contained in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)”. Footnote 23 The Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property Footnote 24 explicitly referred to the flexibilities reaffirmed by the Doha Declaration, including the research exception (Element 2.4e), the transitional period for least-developed countries (LDCs) (Element 6.1b), and the regulatory exception or “Bolar exception” (Element 6.3a). A 2011 resolution adopted by the HRC, and subsequent resolutions on the matter, also noted the governments’ right to use, to the fullest extent, the provisions of the TRIPS Agreement, the Doha Declaration, and the WTO General Council Decision of 30 August 2003 in the context of the HIV/AIDS epidemic. Footnote 25 Importantly, Goal 3. Target 3.b of the Sustainable Development Goals (SDGs), as adopted by the UN General Assembly, also refers to the TRIPS flexibilities:

Goal 3. Target 3.b: Support the research and development of vaccines and medicines for the communicable and noncommunicable diseases that primarily affect developing countries, provide access to affordable essential medicines and vaccines, in accordance with the Doha Declaration on the TRIPS Agreement and Public Health, which affirms the right of developing countries to use to the full the provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights regarding flexibilities to protect public health, and, in particular, provide access to medicines for all. Footnote 26

There is no agreed-upon definition of ‘TRIPS flexibilities.’ In accordance with a WIPO document, the term “flexibilities” means that there are “different options through which TRIPS obligations can be transposed into national law so that national interests are accommodated and yet TRIPS provisions and principles are complied with.” Footnote 27 That concept implies that the legislative options made are compatible with the TRIPS Agreement and, hence, fully legitimate . Although this remark may be deemed trite , it is important to make it in view of the reluctance of some developed countries to accept the use of such flexibilities, and even to exert pressures on or apply retaliatory trade sanctions against countries that do comply with the Agreement’s obligations. This position is well reflected in the continuous use by the US of the Special Section 301 of the US Trade Act 1974, Footnote 28 and in the European Commission Staff Working Document on the protection and enforcement of intellectual property rights in third countries. Footnote 29

There are different types of TRIPS flexibilities. Some refer to the scope and extent of the substantive rights to be recognized under the Agreement, Footnote 30 and others to the ways in which such rights can be enforced. One way of grouping flexibilities is also to take into account “the point in time at which Members may resort to them: (i) in the process of the acquisition of the right; (ii) defining the scope of the right; and (iii) when enforcing the right.” Footnote 31 As noted in one report, those flexibilities

…sometimes are made very explicit (as in the right of each WTO Member to choose its national regime of exhaustion of IP rights, hence allowing parallel imports), and in other instances follow from the use of general and open terms in TRIPS provisions (such as legitimate interests, justifiability, ordre public and morality) that WTO Member can – within the limits of accepted principles of treaty interpretation in public international law – interpret and implement in accordance with their public policy preferences. Footnote 32

Given the possible variations in national regimes in interpreting and implementing the TRIPS Agreement, it would be an impossible task to identify all flexibilities. They can be found in all the areas covered by the Agreement, and they can be identified as new circumstances arise. Thus, the exception to copyright protection, which is of particular importance to ensure access to knowledge and preserve a robust public domain, Footnote 33 needs to be considered in light of technological developments. Footnote 34 WIPO’s Database on Flexibilities in the Intellectual Property System Footnote 35 provides information on just fourteen TRIPS flexibilities as provided for in the national laws of some countries, but the list is certainly much longer and their use in national laws and regulations more extensive. As noted, the type and use of such flexibilities have been widely explored, most particularly in relation to public health policies and access to medicines, Footnote 36 in academic literature, numerous reports, and other sources of information. Footnote 37 Box 1 includes references to some of the flexibilities available in the field of public health.

Box 1 Public health-related TRIPS flexibilities

Flexibility in the choice of patentability criteria, including for chemical entities and biologics —WTO members have considerable policy space to define what an ‘invention’ is and to apply rigorous standards of patentability to avoid the grant of patents that, without making a genuine technical contribution, may distort market competition.

Compulsory license —Widely recognized in the legislation of developed and developing countries—and granted since the adoption of the TRIPS Agreement by administrations or courts in countries such as Thailand, Ecuador, Indonesia, India, USA, Italy, and Germany—compulsory licenses may be necessary to correct market distortions (abuses of market power, unfair pricing, refusal to license, etc.).

Government use —In many cases governments may decide, consistently with the TRIPS Agreement, to use patented inventions for non-commercial purposes, such as for ensuring the supply of essential medicines.

Compulsory licenses for the supply of medicines to countries with a lack of or insufficient manufacturing capacity —Compulsory licenses exclusively for the export of medicines can be granted under the amendment introduced to the TRIPS Agreement in 2017 and the waiver adopted by WTO in 2003.

Test data protection —The TRIPS Agreement (Article 39.3) requires WTO members to protect test data against unfair competition, which does not create exclusive rights. The Agreement is complied with if legislation on unfair competition is implemented to protect such data.

Exemptions) for LDCs —LDCs need not grant patents for pharmaceuticals and test data protection at least until 2033 under the extended transition period provided for under Article 66.1 of the TRIPS Agreement.

Parallel importation —Importing protected medicines from any country where they can be purchased cheaper than locally is consistent with the TRIPS Agreement.

Pre and post patent grant opposition —Procedures before patent offices provide for the possibility for third parties to contribute to the examination process through ‘observations’ or ‘oppositions,’ whether before or after the grant of a patent, or both.

Use of competition law to address the misuse of IPRs —Competition law may be applied to correct market distortions created through the abuse of IPRs.

Bolar exception —‘Bolar exceptions’ are important to accelerate the entry of generic products and promote a dynamic market for medicines.

Research or experimentation exception —This exception allows research to be conducted by third parties on patented inventions, for instance, to improve on them or derive new inventions.

Disclosure requirement, particularly for biologics —The full and precise disclosure of an invention is crucial for the patent system to perform its informational function. This is particularly relevant for biologicals, which cannot be described in the same way as medicines produced by chemical synthesis

Flexibilities in enforcement of IP —Measures to enforce IPRs—such as reversal of the burden of proof, determination of infringement by equivalence and damages, and border measures—if overly broad, may distort competition by discouraging or preventing market entry and the availability of generic medicines. Provisional injunctions need to be cautiously granted so as not to distort the market dynamics, generally after giving the alleged infringer an opportunity to articulate his defense. Permanent injunctions may be denied for public health reasons under certain circumstances.

Security exception —Compliance with obligations under the TRIPS Agreement can be suspended, inter alia, in cases of emergency in international relations, such as in the case of a pandemic (Article 73 (b) of the Agreement).

Source: adapted from South Centre, “A Public Health Approach to Intellectual Property Rights: Public Health Related Flexibilities in the TRIPS Agreement,” available from: https://ipaccessmeds.southcentre.int/wp-content/uploads/2018/12/Public-Health-Related-Flexibilities-in-the-TRIPS-Agreement.pdf .

Any WTO member can make use of the TRIPS flexibilities, as applicable, in order to attain public health or other public objectives and, in fact, both developed and developing countries have done so. Thus, the flexibility in the TRIPS Agreement permitted the US to maintain a double-novelty standard depending on whether the disclosure of the invention had taken place within or outside the territory of the US (35 USC section 102 (a)). Footnote 38 In defending this flexibility, which has allowed for the misappropriation of genetic resources and traditional knowledge, Footnote 39 the US held that in the TRIPS Agreement there was “no prescription as to how WTO Members define what inventions are to be considered ‘new’ within their domestic systems” and, hence, that its legislation was “perfectly consistent with the provisions of the TRIPS Agreement.” Footnote 40 Another example in the US is the doctrine that allows US courts not to grant a permanent injunction despite the proven existence of an infringement of IPRs, in accordance with the precedent set by the US Supreme Court in the eBay vs. MercExchange case. Footnote 41 There are also many examples in Europe Footnote 42 where, for instance, the European Parliament’s Resolution of 2 March 2017 on EU options for improving access to medicines (2016/2057(INI)) emphasized “that the European Patent Office (EPO) and the Member States should only grant patents on medicinal products that strictly fulfil the patentability requirements of novelty, inventive step and industrial applicability, as enshrined in the European Patent Convention” (paragraph 48). Footnote 43 More recent examples are the amendments to the patent laws in Canada and Germany to address the COVID-19 emergency. Bill C 13 2020 of Canada, Footnote 44 for instance, added a new section to the Patent Act implementing a new type of compulsory license for patents:

19.4 (1) The Commissioner shall, on the application of the Minister of Health, authorize the Government of Canada and any person specified in the application to make, construct, use and sell a patented invention to the extent necessary to respond to the public health emergency described in the application.

In Germany, an amendment to the Patent Act provided that an invention relating to medicinal products, including narcotics; the active ingredients, starting materials, and auxiliary materials for these products; medical devices; laboratory diagnostics; aids; personal protective equipment; and products for disinfection of the products shall be used in the interest of public welfare (“öffentliche Wohlfahrt”) or in the interest of the security of the Federation. Footnote 45

3 TRIPS Flexibilities in WTO Jurisprudence

Despite the TRIPS Agreement being one of the most controversial components of the WTO system, and that it has given rise to a large number of proceedings under the Dispute Settlement Understanding, a relatively small number of cases has reached the phase of a panel or Appellate Body intervention.

Paradoxically, although the adoption of the TRIPS Agreement essentially was aimed at disciplining developing countries, who have been forced to make massive legislative changes to adapt to the Agreement’s high minimum standards, Footnote 46 most disputes leading to the establishment of a panel have been against developed countries (two against the US, Footnote 47 two against the European Communities and their Member States, Footnote 48 two against Canada, Footnote 49 and one against Australia Footnote 50 ). Only two developing countries were subject to such procedures: Footnote 51 India (two complaints concerning the implementation of Article 70.8, the so called “mailbox” provision) Footnote 52 and China (criminal sanctions for copyright infringement and other issues). Footnote 53 Only four developing countries (Indonesia, Cuba, Honduras, and the Dominican Republic) have been complaining parties (against Australia in the tobacco plain packaging case) in WTO disputes under the TRIPS Agreement that have reached such stage. Footnote 54

In other cases of disputes initiated against developing countries, no panel was established. One example was a complaint by the US against Argentina on patents and test data protection. Footnote 55 A mutually agreed-upon solution was communicated to the Dispute Settlement Body (DSB) on 20 June 2002. However, the parties did not reach a common understanding on the interpretation of Article 39.3 of the TRIPS Agreement, nor on the application of Article 70.7. Footnote 56 Argentina has not to date introduced the data exclusivity regime that the US claimed would remedy the (unproven) violation of Article 39.3. Another example, further discussed below, was the US challenge in January 2001 against Brazilian legislation that authorizes the granting of compulsory licenses and parallel imports in instances when patents are not worked. Footnote 57 The dispute ended several months later when the US complaint was withdrawn. Footnote 58

The panel and Appellate Body reports produced in relation to the disputes mentioned above have, in practice, addressed the policy space available under the TRIPS Agreement, but they have only occasionally referred to the concept of ‘flexibilities.’ In China—Intellectual Property Rights , for instance, third parties alluded to the ‘flexibility’ allowed by the TRIPS Agreement in relation to the definition of ‘commercial scale.’ Footnote 59 The US noted, with respect to Article 1.1 of the Agreement, that the provision “only offers flexibility in how a Member implements TRIPS obligations and does not exempt a Member from full compliance with TRIPS obligations.” Footnote 60 In this case the panel confirmed that the TRIPS Agreement does not mandate specific forms of legislation. Footnote 61 In relation to the US claim that China did not comply with Article 61 of the TRIPS Agreement, it stated:

The Panel may not simply assume that a Member must give its authorities wide discretion to determine what is on a commercial scale in any given case, and may not simply assume that thresholds, including numerical tests, are inconsistent with the relative benchmark in the first sentence of Article 61 of the TRIPS Agreement. As long as a Member in fact provides for criminal procedures and penalties to be applied in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale, it will comply with this obligation. If it is alleged that a Member's method of implementation does not so provide in such cases, that allegation must be proven with evidence…(para. 7.602).

A few references to the ‘flexibilities’ allowed by the prohibition contained in Article 20 of the TRIPS Agreement can be found in the panel report in Australia—Tobacco Plain Packaging . For instance, the panel stated:

On their face, the explicit prohibitions contained in Article 20 of the TRIPS Agreement and Article 2.2 of the TBT Agreement respectively must be read and, absent a conflict, applied together. The principle of harmonious reading dictates that the flexibilities implicitly left by those prohibitions also need to be viewed together, without a priori giving precedence to one over, and to the exclusion of, the other. Footnote 62

The panel in the same case also referred, as discussed below, to the Doha Declaration as a “re-affirmation by Members of the flexibilities provided in the TRIPS Agreement in relation to measures taken for the protection of public health”; Footnote 63 the concept of TRIPS flexibilities was also alluded to, for example, by Brazil and Thailand as third parties Footnote 64 and by the panel itself (para. 7.2407 and 7.2408). Interestingly, the Appellate Body in Australia—Tobacco Plain Packaging referred to the concept of Members’ ‘regulatory autonomy’ in encumbering the use of trademarks by special requirements under Article 20. Footnote 65

4 Interpretation of the TRIPS Agreement

This section is partially based on Carlos Correa, op. cit., 2005, which examines other aspects, such as the role of the negotiating history and the application of prior intellectual property conventions incorporated into the TRIPS Agreement;—,; see also Kennedy ( 2016 ).

This section considers some principles for and aspects of the interpretation of the TRIPS Agreement particularly relevant for the application of the TRIPS flexibilities.

4.1 Precedential Value of GATT/WTO Jurisprudence

Neither the GATT nor the WTO jurisprudence have precedential value; however, even if unrelated to intellectual property, such jurisprudence may influence and provide guidance for future rulings on the TRIPS Agreement. Footnote 66 One issue of particular relevance is whether jurisprudence on subjects other than those covered by this Agreement should be used to interpret it. The panel in India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, for instance, held that although the TRIPS Agreement has a “relatively self-contained, sui generis status within the WTO,” it also was “an integral part of the WTO system, which itself builds upon the experience of over nearly half a century under the GATT 1947.” Footnote 67 In United States—Section 110(5) of the U.S. Copyright Act , while the panel noted that caution was required when interpreting the TRIPS Agreement provisions in the light of precedents developed in GATT dispute settlement practice, it stated that

given that the agreements covered by the WTO form a single, integrated legal system, we deem it appropriate to develop interpretations of the legal protection conferred on intellectual property right holders under the TRIPS Agreement which are not incompatible with the treatment conferred to products under the GATT, or in respect of services and service suppliers under the GATS, in the light of pertinent dispute settlement practice. Footnote 68

The application of general GATT and WTO jurisprudence to cases involving the TRIPS Agreement would ignore the specificity of intellectual property issues and one major difference between the TRIPS Agreement and other WTO covered agreements: the former provides for disciplines on intellectual property rights, which are private rights , Footnote 69 the exercise of which may restrain rather than facilitate international trade (as in the case of other WTO agreements). The private rights nature of intellectual property rights was highlighted in the panel report in China—Intellectual Property Rights :

Viewed in context, the phrase “shall have the authority” does not require Members to take any action in the absence of an application or request. Therefore, a condition that authority shall only be available upon application or request seems to be assumed in much of Sections 2, 3 and 4 of Part III. This is consistent with the nature of intellectual property rights as private rights, as recognized in the fourth recital of the preamble of the TRIPS Agreement. Acquisition procedures for substantive rights and civil enforcement procedures generally have to be initiated by the right holder and not ex officio . Footnote 70

One corollary of this, for instance, is that in contrast to the general GATT/WTO jurisprudence, the exceptions in the TRIPS Agreement need not to be read narrowly, but instead with the aim of achieving the objectives as defined in Article 7 (see below). Notably, intellectual property rights constitute exceptions in terms of Article XX(d) of GATT and, hence, their restrictive effects should not be augmented but mitigated through the interpretation of the scope and extent of the conferred exclusive rights. Footnote 71 The exceptions to exclusive rights are crucial to preserve market dynamics and achieve a diversity of public interests; they are a key component of the TRIPS flexibilities. Footnote 72

4.2 Ordinary Meaning

The GATT and WTO panels, as well as the WTO Appellate Body, have relied on the interpretive method codified by the Vienna Convention on the Law of the Treaties (VCLT). One of the basic steps for interpretation under Article 31 of the VCLT is the determination of the ‘ordinary meaning’ of the terms employed in the treaty, provided that “a special meaning shall be given to a term if it is established that the parties so intended” (Article 31.4). Many WTO panel and Appellate Body reports clearly indicate that such ordinary meaning is searched in the dictionary in order to clarify the scope and content of the relevant texts. Footnote 73 Thus, the Appellate Body in EC – Chicken Cuts states: "The Appellate Body observed that dictionaries

are a useful starting point” for the analysis of 'ordinary meaning' of a treaty term, but they are not necessarily dispositive. The ordinary meaning of a treaty term must be ascertained according to the particular circumstances of each case. Importantly, the ordinary meaning of a treaty term must be seen in the light of the intention of the parties “as expressed in the words used by them against the light of the surrounding circumstances.” Footnote 74

In China—Intellectual Property Rights , the panel observed that

the general rule of treaty interpretation in Article 31 of the Vienna Convention refers in paragraph 1 to the ordinary meaning of the terms of the treaty, read in context. Where the terms are a single term, or ordinarily used together, then the treaty interpreter should refer to the ordinary meaning of that single term, or of each term in the particular context of each other. This is a distinct exercise from that in paragraph 4 of Article 31 of the Vienna Convention which requires a “special meaning” to be given to a term if it is established that the parties so intended. No party to this dispute considers that a “special meaning” should be given to the phrase "on a commercial scale," and nor does the Panel. Footnote 75

While the rule regarding the ordinary meaning seems clear, an important question relates to the temporal aspect of the interpretation, that is, whether panels and Appellate Body should rely on the meaning of a term at the time of negotiation or adoption of an agreement, or whether they would be authorized to apply an evolutionary approach, that is, to rely on the meaning of a term at the time of its interpretation. Two approaches exist on this issue:

…the principle of contemporaneity , according to which the terms of a treaty are to be interpreted according to the meaning which they possessed, or which would have been attributed to them, and in the light of current linguistic usage, at the time when the treaty was originally concluded. Opposed to that is the dynamic approach , very often also labelled ‘evolutionary’ interpretation, which seeks to establish the meaning of a treaty at the time of its interpretation. Footnote 76

In Canada—Patent Protection for Pharmaceutical Products, the panel examined the status of the legislation at the time of the negotiation of the Agreement to determine the concept of “legitimate interest” as contained in Article 30:

Moreover, the Panel believed that it was significant that concerns about regulatory review exceptions in general, although well known at the time of the TRIPS negotiations, were apparently not clear enough, or compelling enough, to make their way explicitly into the recorded agenda of the TRIPS negotiation. The Panel believed that Article 30’s “legitimate interests” concept should not be used to decide, through adjudication, a normative policy issue that is still obviously a matter of unresolved political debate. Footnote 77

The WTO jurisprudence has adopted in some cases the evolutionary method of interpretation. Footnote 78 In United States—Section 110(5) of the US Copyright Act , reference was made to the WIPO Copyright Treaty (WCT) adopted in 1996, 2 years after the TRIPS Agreement. The panel stated that the WCT should be viewed as “relevant to seek contextual guidance ... when developing interpretations that avoid conflicts within the overall multilateral copyright framework …” Footnote 79 Although it noted that the statement concerning WCT’s Article 10 adopted by the signatory parties did not fall under the Vienna Convention rules on a subsequent agreement on the same matter or subsequent practice, the recourse to a post-TRIPS treaty to interpret a provision of the TRIPS Agreement constitutes a troubling precedent as long as it may lead to interpretations unduly expanding the Agreement’s obligations. This is particularly the case in the light of technological developments and the increase of the level of protection beyond the standards of the TRIPS Agreement resulting from free trade agreements. Footnote 80

It is also worth noting that article 71 of the TRIPS Agreement specifically provides for the TRIPS Council to review the Agreement “in the light of any relevant new developments, which might warrant modification or amendment of this Agreement,” thereby suggesting that any further ‘developments’ in intellectual property law need to be incorporated on the basis of WTO members’ consensus, rather than via interpretation.

4.3 Context

In accordance with Article 31 of the VCLT, the terms in a treaty need to be considered taking their context into account. The preambles of WTO agreements have often been considered as the relevant context for the interpretation of particular provisions. Footnote 81 In India–Patents (US) , the Appellate Body referred to the Preamble of the TRIPS Agreement for the interpretation of Article 70.8(a): “The Panel’s interpretation here is consistent with the object and purpose of the TRIPS Agreement.” According to the Appellate Body, the object and purpose of the Agreement is, inter alia , “the need to promote effective and adequate protection of intellectual property rights.” Footnote 82 References to the preamble were also made in China—Intellectual Property Rights . Footnote 83 The Preamble of the Agreement on Technical Barriers to Trade was largely invoked as well by the panel in Australia—Tobacco Plain Packaging . Footnote 84

The appropriate choice of treaty provisions that provide the context for interpreting other provisions is crucial. One example is the interpretation of Article 27.1 in fine . As noted above, the US initiated a case against Brazil arguing that Article 68 of the Brazilian patent law, which authorizes the government to grant a compulsory license if the patent owner fails to work the patent, was inconsistent with Article 27.1 in fine of the TRIPS Agreement. In accordance to this provisions, “patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.” Key to addressing the US argument is identifying the context for the interpretation of this phrase in Article 27.1. In fact, this text incorporated a compromise reached, at the final stages of the negotiation of the Agreement, between developed and developing countries since the latter wanted to preserve the possibility of granting compulsory licenses for the lack or insufficient working of a patent. Footnote 85

Developing countries expressed the concern that Article 27.1 could be read in a way that restricts the use of compulsory licenses, for instance, on the grounds of lack of working, as specifically provided for under Article 5A of the Paris Convention for the Protection of Industrial Property. In fact, the “patent rights” referred to in Article 27.1 are defined in Article 28.1, which only requires the granting of negative rights with regard to the exploitation of the invention, that is, the right to prevent third parties from using (without authorization) the patented invention. Hence, a proper interpretation of Article 27.1 read in conjunction with Article 28.1, based on the rules of the Vienna Convention, indicates that the products mentioned in Article 27.1 are infringing products, not the products of the patent owner itself, since patents only confer exclusionary and not positive rights. In other words, Article 27.1—if read in the context of Article 28 of the Agreement—forbids discrimination between infringing imported and infringing locally-made products, but it does not prevent the establishment of differential obligations with regard to non-infringing imported and locally-made products (i.e., products made or imported by the patent owner or with his/her consent). Hence, it does not outlaw compulsory licenses for lack of working.

The principle of “effective interpretation” (or “l’effet utile”) requires that a treaty must be interpreted in such a way as to give meaning and effect to all the terms of the treaty. This is certainly possible with respect to Article 27.1 in fine . This non-discrimination clause may apply, for instance, to a case in which the rights enjoyed by patent owners differ depending on whether the alleged infringing goods have been locally produced or imported. For instance, Section 337 of the U.S. Tariff Act was found inconsistent with the GATT in United States—Section 337 of the Tariff Act of 1930 , since it accorded less favorable treatment to imported products challenged as infringing on US patents than the treatment accorded to similarly challenged products of United States origin. Footnote 86

Another example in which the correct identification of the context for a provision may have decisive effects relates to Article 39.3, which has been interpreted by the US and the European Commission as requiring the grant of exclusive rights (‘data exclusivity’) with respect to test data for pharmaceuticals and agrochemical products. This interpretation is clearly inviable in light of Article 39.1 which provides an essential contextual element and only requires protection against unfair commercial practices, which does not entail such exclusive rights. Footnote 87

In engaging in the difficult task of clarifying the meaning of ‘unjustifiably’ in Article 20 of the TRIPS Agreement, the panel in Australia—Tobacco Plain Packaging elaborated on the context of that provision. It specifically alluded to the Preamble and Articles 7 and 8 of the Agreement:

We first note that the first recital of the preamble to the TRIPS Agreement expresses a key objective of the TRIPS Agreement, namely to “reduce distortions and impediments to international trade” and takes into account the need, on one hand, “to promote effective and adequate protection of intellectual property rights” and, on the other, “to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade” (para. 7.2398).

We also consider that Article 7 entitled “Objectives” and Article 8 entitled “Principles” provide relevant context (para 7.2399).

Articles 7 and 8, together with the preamble of the TRIPS Agreement, set out general goals and principles underlying the TRIPS Agreement, which are to be borne in mind when specific provisions of the Agreement are being interpreted in their context and in light of the object and purpose of the Agreement. As the panel in Canada – Pharmaceutical Patents observed in interpreting the terms of Article 30 of the TRIPS Agreement, “[b]oth the goals and the limitations stated in Articles 7 and 8.1 must obviously be borne in mind when doing so as well as those of other provisions of the TRIPS Agreement which indicate its object and purposes” (para. 7.2402).

The panel further elaborated on the ‘balance’ suggested by Articles 7 and 8.1 of the TRIPS Agreement and, in particular, on the fact that the Agreement did not intend to prevent WTO members from adopting measures to protect public interests, such as public health. It stated:

Article 7 reflects the intention of establishing and maintaining a balance between the societal objectives mentioned therein. Article 8.1, for its part, makes clear that the provisions of the TRIPS Agreement are not intended to prevent the adoption, by Members, of laws and regulations pursuing certain legitimate objectives, specifically, measures “necessary to protect public health and nutrition” and “promote the public interest in sectors of vital importance to their socio-economic and technological development,” provided that such measures are consistent with the provisions of the Agreement (para. 7.2403).

Article 8 offers, in our view, useful contextual guidance for the interpretation of the term “unjustifiably” in Article 20. Specifically, the principles reflected in Article 8.1 express the intention of drafters of the TRIPS Agreement to preserve the ability for WTO Members to pursue certain legitimate societal interests, at the same time as it confirms their recognition that certain measures adopted by WTO Members for such purposes may have an impact on IP rights, and requires that such measures be “consistent with the provisions of the [TRIPS] Agreement” (para. 7.2404).

The specific objectives expressly identified in Article 8.1 do not, in our view, necessarily exhaust the scope of what may constitute a valid basis for the “justifiability” of encumbrances on the use of trademarks under Article 20. However, their identification in Article 8.1 may shed light on the types of recognized “societal interests” that may provide a basis for the justification of measures under the specific terms of Article 20, and unquestionably identify public health as such a recognized societal interest (para. 7.2406).

In summary, while the Preamble and Articles 7 and 8 of the TRIPS Agreement provide the context for the interpretation of all its provisions, as suggested by the examples above, the careful choice of other specific provisions to examine the scope and extent of particular obligations is key to preserving the flexibilities under that agreement.

4.4 Object and Purpose

As noted, the interpretative method codified by the VCLT—as spelled out in Articles 31 and 32 of the VCLT—relies on the textual interpretation of treaty provisions. The reference, however, to the ‘object and purpose’ of the treaty as one of the elements for interpretation has been understood by some courts as leaving room to consider the ‘intention’ of the negotiating parties or to apply a teleological approach. Footnote 88 It has been noted, for instance, that the European Court of Human Rights, “has developed its own version of these rules of interpretation—a version that tracks the three traditional approaches to treaty interpretation: the textual approach, the subjective approach, and the teleological approach. Footnote 89 However, as noted by two commentators,

The consideration of object and purpose finds its limits in the ordinary meaning of the text of the treaty. It may only be used to bring one of the possible ordinary meanings of the terms to prevail and cannot establish a reading that clearly cannot be expressed with the words used in the text. Footnote 90

The quoted authors note in this regard the opinion in the Iran-US Claims Tribunal which pointed out:

Even when one is dealing with the object and purpose of a treaty, which is the most important part of the treaty’s context, the object and purpose does not constitute an element independent of that context. The object and purpose is not to be considered in isolation from the terms of the treaty; it is intrinsic to its text. It follows that, under Article 31 of the Vienna Convention, a treaty’s object and purpose is to be used only to clarify the text, not to provide independent sources of meaning that contradict the clear text. Footnote 91

In the case of the WTO agreements, adherence to the treaty text and avoiding ‘activism’ in the interpretation of their provisions is of utmost importance—as shown by recent debates on the functioning of the Appellate Body Footnote 92 —so as not to expand the Members’ obligations or create new ones, and to provide certainty to their trade relations.

Notably, under Article 4.2 of the Dispute Settlement Understanding (“DSU”), panels and the Appellate Body are mandated to ‘clarify’ the various WTO agreements, and in doing so they cannot add to or diminish the rights and obligations provided in such agreements. Moreover, Article 4.9 provides that the DSU does not prejudice a government's right to seek an ‘authoritative interpretation’ of any of those agreements from the Ministerial Conference or General Council of the WTO. Hence, the WTO attempts to introduce a difficult distinction between ‘clarification’ and ‘interpretation.’ The panels and Appellate Body reports regularly note, however, that they ‘interpret’ the provisions invoked by the members in accordance to the VLCT rules. This has indeed been the case in those disputes referring to the TRIPS Agreement. Footnote 93

However, although the literal interpretation is the basic rule of interpretation under Article 31 (1) of the VCLT as recognized in the Convention itself, in some cases the textual reading of a provision or a term thereof in its context may still leave ambiguity as to the legal meaning of a text. At this point, the identification of the ‘object and purpose’ of the treaty, conceived as part of the literal interpretation and not as a separate step, acquires particular importance. It is difficult to think of judgments that are absolutely neutral in terms of the policy objectives enshrined in the treaty.

Identifying the object and purpose of the TRIPS Agreement is different from characterizing the purpose of intellectual property rights, as the objectives pursued by governments with these rights, as well as the way of implementing them, may differ significantly, even while they comply with the standards of the Agreement and other applicable international treaties). There is no global, uniform system of intellectual property protection.

In Canada—Patent Protection for Pharmaceutical Products , the panel elaborated on the policy objective of patent laws. It stated:

The normal practice of exploitation by patent owners, as with owners of any other intellectual property right, is to exclude all forms of competition that could detract significantly from the economic returns anticipated from a patent’s grant of market exclusivity … Patent laws establish a carefully defined period of market exclusivity as an inducement to innovation, and the policy of those laws cannot be achieved unless patent owners are permitted to take effective advantage of that inducement once it has been defined. Footnote 94

This view seems to suggest that obtaining ‘economic returns’ as an ‘inducement to innovation’ is what underpins patent policies. It is not consistent with the purpose of the TRIPS Agreement as reflected in Articles 7 and 8. This approach overlooks that patents, as well as other intellectual property rights, can and should be designed and implemented to achieve public rather than private interests, including the diffusion of technical knowledge, technological progress, and access to the outcomes of innovation. Footnote 95 Thus, in 1917, the US Supreme Court noted that “the primary purpose of that [patent] law is not to create private fortunes, but is to promote the progress of science and the useful arts.” Footnote 96

Articles 7 (‘Objectives’) and 8 (‘Principles’) of the TRIPS Agreement are key for the determination of the object and purpose of the Agreement, in conjunction, as discussed below, with the Doha Declaration as a subsequent agreement among the parties. Importantly, those provisions are not just hortatory provisions Footnote 97 but have been incorporated—upon the demand of developing countries during the negotiations Footnote 98 —among the prescriptive provisions of the Agreement.

In Canada–Patent Term , the Appellate Body referred to the need to interpret Article 70.1 of the Agreement as having particular regard to the object and purpose of the treaty, but it eluded an interpretation and application of Articles 7 and 8:

[W]e note that our findings in this appeal do not in any way prejudge the applicability of Article 7 or Article 8 of the TRIPS Agreement in possible future cases with respect to measures to promote the policy objectives of the WTO Members that are set out in those Articles. Those Articles still await appropriate interpretation. Footnote 99

The Panel Report in Canada—Pharmaceutical Patents dealt more specifically with the question of the ‘object and purpose’ of the TRIPS Agreement. It relied to this end on Articles 7 and 8 for that determination, but in conjunction with other provisions of the Agreement. It stated:

Article 30’s very existence amounts to a recognition that the definition of patent rights contained in Article 28 would need certain adjustments. On the other hand, the three limiting conditions attached to Article 30 testify strongly that the negotiators of the Agreement did not intend Article 30 to bring about what would be equivalent to a renegotiation of the basic balance of the Agreement. Obviously, the exact scope of Article 30’s authority will depend on the specific meaning given to its limiting conditions. The words of those conditions must be examined with particular care on this point. Both the goals and the limitations stated in Articles 7 and 8.1 must obviously be borne in mind when doing so as well as those of other provisions of the TRIPS Agreement which indicate its object and purposes. Footnote 100

It is unclear what “other provisions of the TRIPS Agreement which indicate its object and purposes” are suggested by the panel. While there might be different perceptions about the object and purpose of the TRIPS Agreement—as the debates between developed and developing countries have shown during the negotiation and after the adoption of the TRIPS Agreement Footnote 101 —the panels and Appellate Body need to be guided by the text of the Agreement and not by the individual views of the members of those bodies.

Paragraph 5(a) of the Doha Declaration confirmed the importance of Articles 7 and 8 for the interpretation of the TRIPS Agreement:

Accordingly and in the light of paragraph 4 above, while maintaining our commitments in the TRIPS Agreement, we recognize that these flexibilities include: a. In applying the customary rules of interpretation of public international law, each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles.

The wording of this paragraph (“in particular”) suggests that while Articles 7 and 8 are determinant in defining the object and purpose of the Agreement, other provisions of the Agreement, as well as the preambular provisions, can also contribute to the determination of its object and purpose. Such may be the case, for instance, of Article 41.2 which states: “Procedures concerning the enforcement of intellectual property rights shall be fair and equitable …” This provision makes it clear that one purpose of the Agreement is to ensure that the enforcement of intellectual property rights (as mandated in Part III of the Agreement) is ‘fair and equitable’ to all the parties concerned, and that it does not provide undue advantages to the right holders over third parties in judicial or administrative procedures, or vice versa.

An interesting elaboration on the object and purpose of the TRIPS Agreement based on Articles 7 and 8 was undertaken by the panel in Australia—Tobacco Plain Packaging . Footnote 102 The panel largely relied on the Doha Declaration to address this issue. It noted:

We note in this respect that the Doha Declaration, adopted by Ministers on 14 November 2001, provides that, “[i]n applying the customary rules of interpretation of public international law, each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles” (para. 7.2407).

While this statement was made in the specific context of a re-affirmation by Members of the flexibilities provided in the TRIPS Agreement in relation to measures taken for the protection of public health, we note that paragraph 5 of the Doha Declaration is formulated in general terms, inviting the interpreter of the TRIPS Agreement to read “each provision of the TRIPS Agreement” in the light of the object and purpose of the Agreement, as expressed in particular in its objectives and principles. As described above, Articles 7 and 8 have central relevance in establishing the objectives and principles that, according to the Doha Declaration, express the object and purpose of the TRIPS Agreement relevant to its interpretation (7.2408).

The Appellate Body essentially followed the panel’s views on this matter. It clarified, however, that the conclusions reached regarding the purpose of the TRIPS Agreement are supported by Articles 7 and 8, and that the analysis of the Doha Declaration reconfirmed the panel’s findings. It held:

The Panel also remarked that the societal interests referred to in Article 8 may provide a basis of the justification of measures under Article 20. Thus, we agree with Australia that, in any event, the reliance on the Doha Declaration was not of decisive importance for the Panel's reasoning since the Panel had reached its conclusions about the contextual relevance of Articles 7 and 8 of the TRIPS Agreement to the interpretation of Article 20 before it turned to the Doha Declaration. The Panel relied on the Doha Declaration simply to reconfirm its previous conclusions regarding the contextual relevance of Articles 7 and 8 of the TRIPS Agreement (6.658).

This analysis and the observations above show that the WTO case law has considered Articles 7 and 8, both as part of the context for interpretation and as defining elements of the object and purpose of the TRIPS Agreement. It confirms the relevance of said provisions for the interpretation of other provisions in the Agreement.

4.4.1 Legal Weight of the Doha Declaration

In order to give authority to its argument regarding the relevance of Articles 7 and 8 for the interpretation of the TRIPS Agreement’s provisions, the panel in Australia—Tobacco Plain Packaging specifically elaborated on the legal weight of the Doha Declaration. This is one of the most distinct (and welcome) contributions of this panel’s report, as it is the first time in which the normative effects of that Declaration have been considered in WTO jurisprudence.

In some WTO disputes prior to the Australia tobacco case, the issue of subsequent practices as an element for interpretation of the TRIPS provisions was very cautiously considered. Thus, in Canada—Patent Protection for Pharmaceutical Products, the panel considered comparative law in order to determine whether the interest claimed as “legitimate” by the EC was a “widely recognized policy norm.” Footnote 103 In United States—Section 110(5) of the US Copyright Act , the panel confirmed its conclusion with reference to examples of “state practice” of members of the Berne Union and WTO, but it warned that it “did not wish to express a view on whether these are sufficient to constitute ‘subsequent practice’ within the meaning of Article 31(3)(b) of the Vienna Convention.” Footnote 104 In China—Intellectual Property Rights , the panel rejected certain material submitted by China to prove a “subsequent practice” in the application of the TRIPS Agreement within the meaning of Article 31(3) of the Vienna Convention. The panel considered that it lacked “the breadth to constitute a common, consistent, discernible pattern of acts or pronouncements” and that “the content of the material does not imply agreement on the interpretation of Article 61 of the TRIPS Agreement.” Footnote 105

A key panel assertion in the referenced case against Australia is that the Doha Declaration must be considered a ‘subsequent agreement’ as defined in the VCLT. Footnote 106 In accordance with Article 31.3(a) of the VCLT, “any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions” shall be taken into account, together with the context. Footnote 107 It is worth noting that the International Law Commission adopted in its 2018 report “Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties” Footnote 108 which, in accordance with one commentator, suggests a “subtle elevation of subsequent agreement and subsequent practice,” which would thereby become an integral part of the main rule of interpretation. Footnote 109

In making reference to the Appellate Body ruling in US – Clove Cigarettes (para. 262), the panel stated:

This paragraph of the Doha Declaration may, in our view, be considered to constitute a “subsequent agreement” of WTO Members within the meaning of Article 31(3)(a) of the Vienna Convention. As the Appellate Body has clarified: Based on the text of Article 31(3)(a) of the Vienna Convention, we consider that a decision adopted by Members may qualify as a “subsequent agreement between the parties” regarding the interpretation of a covered agreement or the application of its provisions if: (i) the decision is, in a temporal sense, adopted subsequent to the relevant covered agreement; and (ii) the terms and content of the decision express an agreement between Members on the interpretation or application of a provision of WTO law (para. 7.2409).

The panel’s view rebuts the United States Trade Representative' (USTR) opinion expressed upon the conclusion of the Doha Conference that the Doha Declaration merely was a “political declaration.” Footnote 110 As noted by a commentator, “[d]istinguishing legal claims from non-legal or political claims, such as access to essential medicines, can deprive them of their status as rights and thereby serve to legitimize an unjust status quo.” Footnote 111

The panel further explored the legal status of the Doha Declaration under WTO law, noting that although being a ‘declaration,’ it was adopted by a consensus decision at the WTO Conference. The panel argued as follows:

In this instance, the instrument at issue is a “declaration,” rather than a “decision.” However, the Doha Declaration was adopted by a consensus decision of WTO Members, at the highest level, on 14 November 2001 on the occasion of the Fourth Ministerial Conference of the WTO, subsequent to the adoption of the WTO Agreement, Annex 1C of which comprises the TRIPS Agreement. The terms and contents of the decision adopting the Doha Declaration express, in our view, an agreement between Members on the approach to be followed in interpreting the provisions of the TRIPS Agreement. This agreement, rather than reflecting a particular interpretation of a specific provision of the TRIPS Agreement, confirms the manner in which “each provision” of the Agreement must be interpreted, and thus “bears specifically” on the interpretation of each provision of the TRIPS Agreement (7.2410).

This paragraph reiterates the characterization of the Doha Declaration as a ‘subsequent agreement’ under the VCLT and adds two important elements: its adoption ‘at the highest level’ and an agreement ‘on the approach’ to be followed in interpreting each provision of the Agreement. This ‘approach’ is reflected in paragraph 5(a) of the Declaration quoted above but also in the rest of the Declaration, particularly as it makes a clear case for protecting public health, a key public interest and a matter of respect and realization of human rights, in implementing the TRIPS Agreement. Footnote 112

The panel’s analysis on the Doha Declaration does not aim, however, at asserting its legal value per se but its role as a confirmation that Articles 7 and 8 of the TRIPS Agreement provide both the context and define the object and purpose of the Agreement. The panel stated in this regard:

The guidance provided by the Doha Declaration is consistent, as the Declaration itself suggests, with the applicable rules of interpretation, which require a treaty interpreter to take account of the context and object and purpose of the treaty being interpreted, and confirms in our view that Articles 7 and 8 of the TRIPS Agreement provide important context for the interpretation of Article 20 (7.2411).

The analysis of the legal status of the Doha Declaration is one of the most significant contributions by the panel in Australia—Tobacco Plain Packaging . It supported the panel’s conclusion with respect to the justifiability of the plain packaging measures adopted by that country and, hence, their consistency with Article 20 of the TRIPS Agreement. Footnote 113

5 Conclusions

The notion that the TRIPS Agreement is not a uniform law and that it allows WTO members some room to maneuver in interpreting and implementing the Agreement’s obligations is well established in the literature and numerous resolutions by UN agencies and bodies. The adoption of the Doha Declaration, and several rulings by panels and the Appellate Body, point in the same direction. An evolution is perceptible in the WTO jurisprudence on the matter. In particular, the most recent panel report in Australia—Tobacco Plain Packaging shows the explicit acceptance of the concept of TRIPS flexibilities in WTO case law and their role in preserving the required policy space to pursue public policies such as public health. This is an important development that could provide the basis for a further step in that jurisprudence: the integration of human rights law, as a component of international law, in the analysis of the obligations imposed by that Agreement and of the leeway that states should preserve for the realization of such rights. Footnote 114

The extent to which the TRIPS flexibilities can be implemented at the national level without the risk of trade retaliations depends on the way the Agreement’s provisions are interpreted by panels and the Appellate Body. Several issues need to be addressed in considering how such provisions should be interpreted, consistently with the interpretive method codified by the VCLT. While the search for the ordinary meaning of the terms used is a well-established methodology, divergences may exist with regard to whether they should be deemed as ‘static’ or ‘evolutionary.’ An evolutionary approach creates the risk of unduly expanding the obligations under the Agreement, as actively promoted by some developed countries through free trade agreements. The adequate determination of the context—beyond the Preamble and Articles 7 and 8—for interpretation of a particular provision is also important, as it may decisively influence the determination of the scope and extent of the obligation under the Agreement. Similarly, the understanding on the object and purpose of the Agreement plays an important role. The WTO jurisprudence seems to have firmly admitted that such a determination is to be based on said Articles 7 and 8.

The impact of the TRIPS Agreement on public health and, particularly, access to medicines has been one of the most sensitive issues since its adoption. This issue has been key in promoting debates and analyses on the TRIPS flexibilities (although they are also important in relation to other public interests, such as access to knowledge or food security). In this regard, the panel ruling in the case against Australia on plain packaging has confirmed the legal status of the Doha Declaration—seen by some as a merely political instrument—as a ‘decision’ taken by consensus that constitutes a ‘subsequent agreement’ among the WTO members. This is also an important development as it suggests that a pro-public health interpretation is not only tenable but also mandated, and confirms the room that governments have to confidently adopt pro-public health measures without fearing the risk of costly and burdensome litigation under the DSU.

Article 1.1 of the TRIPS Agreement makes it clear, however, that no WTO member is obliged to grant such a broader protection. See, e.g., Correa ( 2020b ), p. 21.

See, e.g., Morin and Surbeck ( 2020 ).

See, e.g., The Law Library of Congress, Global Legal Research Center ( 2016 ). Available from: https://www.loc.gov/law/help/patent-terms/patent-term-extensions-adjustments.pdf .

Shaikh ( 2016 ).

Son et al. ( 2018 ). Available from: https://doi.org/10.1186/s12992-018-0423-0 .

UNDP ( 2015b ). Available from: https://www.undp.org/content/undp/en/home/librarypage/hiv-aids/using-competition-law-to-promote-access-to-medicine.html .

Minn ( 2016 ).

Article 27.1 in fine: “…patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.” See, e.g., Correa ( 2005 ). See also below.

A large number of provisions in the TRIPS Agreement uses these terms, e.g., Articles 8.2, 13, 15.5, 25.5, 26.2, 30. 31(b), 31(l), 34.2, 37, 1, 39.2(c), 41, 43.

Article 4(d) of the TRIPS Agreement.

Article 20 of the TRIPS Agreement.

Available from: https://www.who.int/medicines/areas/policy/tripshealth.pdf?ua=1 . Hereinafter, “the Doha Declaration.”

See, e.g., Velásquez et al. ( 2020 ). https://www.southcentre.int/book-by-the-south-centre-2020/#more-14014 .

Germán Velásquez ( 2013 ), p. 5. https://www.southcentre.int/wp-content/uploads/2013/05/RP47_WTO-role-in-IP-and-access-to-medicines_EN.pdf .

Emphasis added.

Paragraph 17 of the general Doha Ministerial Declaration states: “We stress the importance we attach to implementation and interpretation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in a manner supportive of public health, by promoting both access to existing medicines and research and development into new medicines and, in this connection, are adopting a separate Declaration.” https://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm .

The Council for TRIPS convened special sessions (which were held in June, August, and September of 2001) to deal with the relationship between health and TRIPS. See, e.g., the submissions made by the European Communities and their Members States on the relationship between the provisions of the TRIPS Agreement and access to medicines, IP/C/W/280 (12 June 2001); and submissions by the African Group, Barbados, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Honduras, India, Indonesia, Jamaica, Pakistan, Paraguay, Philippines, Peru, Sri Lanka, Thailand, and Venezuela on TRIPS and public health, IP/C/W/296 (29 June 2001). See also Council for TRIPS Special Discussion on Intellectual Property and Access to Medicines, IP/C/M/31 (10 July 2001).

One of the first studies on TRIPS flexibilities was published by the UNCTAD ( 1996 ). https://unctad.org/en/docs/ite1_en.pdf .

On the relationship between the TRIPS Agreement and the human right to health, see, e.g., Sellin ( 2015 ). https://link.springer.com/article/10.1007/s40802-015-0047-5#Abs1 .

See, e.g., WHO, WIPO, and WTO ( 2012 ). https://www.wipo.int/edocs/pubdocs/en/global_challenges/628/wipo_pub_628.pdf .

WHA 56.27, “Intellectual property rights, innovation and public health” (28 May 2003). Available from: https://apps.who.int/gb/archive/pdf_files/WHA56/ea56r27.pdf?ua=1 . For a list of WHO resolutions referring to intellectual property, see Germán Velásquez, Carlos M. Correa, and Vitor Ido, op. cit., pp. 73–75.

Available from: https://www.who.int/phi/implementation/phi_globstat_action/en/ . See, Germán Velásquez ( 2019 ).

See, https://www.ohchr.org/EN/Issues/HIV/Pages/Documents.aspx .

Resolution adopted by the General Assembly on 25 September United Nations General Assembly ( 2015 ), A/RES/70/1. https://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E .

WIPO ( 2010 ), p. 11. https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=142068 .

See, e.g., Correa ( 2020a ).

European Commission ( 2020 ). https://trade.ec.europa.eu/doclib/docs/2020/january/tradoc_158561.pdf .

The ‘scope’ of a right delimits the boundaries and defines its content; the ‘extent’ refers to the legal limitations on the exercise of the right.

WIPO ( 2010 ), op. cit., p. 12.

Ruse-Khan and Puutio ( 2017 ), p. 10. Available from: https://www.unescap.org/sites/default/files/IPR%20Handbook.pdf .

See, e.g., Geiger et al. ( 2013 ). https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1041&context=research .

Eger and Scheufen ( 2012 ). https://www.researchgate.net/publication/280043122_The_past_and_the_future_of_copyright_law_technological_change_and_beyond .

Available from: https://www.wipo.int/ip-development/en/agenda/flexibilities/database.html .

See, e.g., Germán Velásquez, Carlos M. Correa, and Vitor Ido, op. cit.

See, e.g. , Medicines Law & Policy, The TRIPS Flexibilities Database. Available from: http://tripsflexibilities.medicineslawandpolicy.org/ . See also, The Graduate Institute Geneva, Knowledge Portal on Innovation and Access to Medicines. https://www.knowledgeportalia.org/ .

According to this section, “[a] person shall be entitled to a patent unless the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.” This rule was amended by the Leahy-Smith America Invents Act (2011). http://www.wipo.int/edocs/lexdocs/laws/en/us/us219en.pdf .

Reid ( 2019 ). https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1121&context=ailr .

See, Document IP/Q3/USA/1 (1 May 1998). As a result of the relative novelty requirement of the US, several patents were granted to researchers or firms relating to or consisting of genetic materials or traditional knowledge acquired in developing countries. See, e.g., Mgbeoji ( 2006 ). https://books.google.fr/books?id=q4MIoBKy88MC&pg=PA121&lpg=PA121&dq=biopiracy+us+patents&source=bl&ots=-ZBMOhXLLn&sig=ACfU3U0DslCI-lxiwQuSmN-jeuuC-fafLQ&hl=en&sa=X&ved=2ahUKEwitsrmu8N_pAhUSx4UKHe1_DHYQ6AEwEnoECAkQAQ#v=onepage&q=biopiracy%20us%20patents&f=false .

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), https://www.supremecourt.gov/opinions/05pdf/05-130.pdf .

For the use of TRIPS flexibilities in relation to plant patents, see, e.g., Correa ( 2014 ). https://www.southcentre.int/wp-content/uploads/2014/11/RP55_Patent-Protection-for-Plants_EN.pdf . See also, Prifti ( 2015 ).

Available from: https://www.europarl.europa.eu/doceo/document/TA-8-2017-0061_EN.html .

Available from: https://www.parl.ca/DocumentViewer/en/43-1/bill/C-13/royal-assent .

Fuchs ( 2020 ). https://www.twobirds.com/en/news/articles/2020/germany/covid-19-new-german-legislation-to-fight-pandemic-may-affect-granted-patents .

See, e.g., Correa ( 2011a ).

See, DS 160 Panel Report United States — Section 110(5) of US Copyright Act (2010); Appellate Body report DS 176 United States — Section 211 Omnibus Appropriations Act of 1998 (2002).

See, DS 174 Panel Report European Communities — Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs (2005); DS 290 Panel Report , European Communities — Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs (2005).

See, Report of the WTO Panel, Canada—Patent Protection for Pharmaceutical Products , WT/DS114/R; Report of the Appellate Body, Canada—Term of Patent Protection , WT/DS170/AB/R (2000).

See Panel Report in DS435, 441, 458, 467, Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging (2018) (hereinafter, “ Australia—Tobacco Plain Packaging ”). The panel report was appealed by Honduras and the Dominican Republic (see, https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds441_e.htm ). The report of the Appellate Body was issued on June 9, 2020 (WT/DS435/AB/R WT/DS441/AB/R). On the situation of the Appellate Body as a result of the US blockade to the appointment of new members, see, e.g., Danish and Aileen Kwa ( 2019 ). Available from: https://www.southcentre.int/wp-content/uploads/2019/12/PB69_Crisis-at-the-WTO%E2%80%99s-Appellate-Body-AB-Why-the-AB-is-Important-for-Developing-Members_EN-1.pdf .

A violation to the TRIPS Agreement was incidentally invoked in the Indonesia-Autos case in relation to the protection of trademarks. The panel, however, found that the United States had not demonstrated that Indonesia was in breach of its TRIPS obligations (Report of the WTO Panel, Indonesia—Certain Measures Affecting The Automobile Industry, WT/DS 54/R, WT/DS 55/R, WT/DS 59/R, WT/DS 64/R (1998), para. 11.1–11.43).

See Report of the Appellate Body, India-Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R (1998) and Report of the WTO Panel, India—Patent Protection for Pharmaceutical and Agricultural Chemical Products , WT/DS79/R (1998) (hereinafter, “ India—Patents (US) ”).

See Panel Report in lDS362, China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights (2009) (hereinafter, “ China—Intellectual Property Rights ”).

Brazil requested the US consultations with regard to provisions of US legislation that limits the right to use or sell any federally-owned invention only to a licensee that agrees that any products embodying the invention or produced through the use of the invention will be manufactured substantially in the United States. See, United States—US Patents Code , WT/DS224/1 (7 February 2001). In DS 408, India complained about border measures imposed on the transit of medicines. See, European Union and a Member State—Seizure of Generic Drugs in Transit ( 2010 ) . These cases were not ultimately pursued.

Argentina—Patent Protection for Pharmaceuticals and Test Data Protection for Agricultural Chemicals , WT/DS171 (6 May 1999) and Argentina-Certain Measures on the Protection of Patents and Test Data , WT/DS196 (30 May 2000).

See, Notification of Mutually Agreed Solution According to the Conditions Set Forth in the Agreement (IP/D/18/Add.1, IP/D/22/Add.1).

See, Brazil—Measures Affecting Patent Protection , Request for the Establishment of a Panel by the United States , WT/DS199/3 (9 January 2001).

Brazil—Measures Affecting Patent Protection, Notification of Mutually Agreed Solution , WT/DS199/4, G/L/454, IP/D/23/Add.1 (19 July 2001).

See, China—Intellectual Property Rights , para. 7.484, 7.493, 7.597, and 7.678.

Idem, para. 7.199.

Para 7.602.

Australia—Tobacco Plain Packaging , para. 7.100.

Idem, para. 7.2408.

Idem, para. 7.2391 and 2387.

Appellate Body Report, op. cit., para. 6.697.

See, e.g., Flowers ( 2019 ), pp. 90–104. See also, Howse ( 2000 ). Available from: https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1747-1796.2000.tb00139.x .

Para. 7.19.

Para. 6.185.

See , the Preamble to the TRIPS Agreement, fourth paragraph.

Panel Report, lDS362, China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights , op. cit., para 7.247. See also, para. 7.135. See also, para. 7.247, 7.135, 7.241, and 7.530; and Australia—Tobacco Plain Packaging , footnote 4472.

See, e.g., Okediji ( 2017 ).

Rodrigues Jr. ( 2012 ). https://www.researchgate.net/publication/288719106_The_general_exception_clauses_of_the_TRIPS_agreement_Promoting_sustainable_development .

See, e.g., the elaboration DS 160 Panel Report, United States — Section 110(5) of US Copyright Act (2010); Appellate Body report DS 176, United States — Section 211 Omnibus Appropriations Act of 1998 (2002).

Appellate Body Report in EC – Chicken Cuts , para. 175, quoting Appellate Body Report in US – Softwood Lumber IV , para. 59, and referring to Appellate Body Reports in US – Offset Act (Byrd Amendment) , para. 248, and US – Gambling , para. 166, and quoting McNair ( 1961 ), p. 365.

Para 7.558.

Dörr and Schmalenbach ( 2012 ). Available from: https://link.springer.com/chapter/10.1007%2F978-3-642-19291-3_34 , para. 58 (emphasis in the original), para. 23 (emphasis in the original). On the importance of the principle of “contemporaneity” in treaty interpretation, see also, Brownlie ( 1998 ), p. 627.

Canada—Patent Protection for Pharmaceutical Products , para. 7.82.

In United States – Import Prohibition of Certain Shrimp and Shrimp Products , WT/DS58/AB/R, para. 130 (1998), the Appellate Body held that certain terms in the WTO Agreements are not “static” but evolutionary, in relation to the term “exhaustible natural resources” as it appears in GATT Article XX(g) (para. 127, 130).

United States—Section 110(5) of the U.S. Copyright Act , para. 6.70.

See, e.g., Ruse-Khan ( 2017 ) (forthcoming, Netherlands Yearbook of International Law); Max Planck Institute for Innovation & Competition Research Paper, No. 18-02; University of Cambridge Faculty of Law Research Paper, No. 3/2018. https://ssrn.com/abstract=3082718 .

See, e.g. Carlos Correa, op. cit., 2020, Chapter 1.

See, https://www.wto.org/english/docs_e/legal_e/27-trips_02_e.htm .

See, para. 7.135.

See, e.g., para. 7.2398.

UNCTAD and ICTSD ( 2005 ), p. 467. https://unctad.org/en/PublicationsLibrary/ictsd2005d1_en.pdf .

See, e.g., Haedicke ( 2000 ), p. 1774.

See, e.g., Correa ( 2011b ).

Linderfalk ( 2007 ), p. 205. https://www.corteidh.or.cr/tablas/r32592.pdf .

See, e.g., Dothan ( 2019 ), p. 765; iCourts Working Paper Series, No. 141. https://ssrn.com/abstract=3241331 .

Oliver Dörr and Kirsten Schmalenbach, op. cit., para 58.

Iran-United States Claims Tribunal, Federal Reserve Bank of New York v. Bank Markazi (n 19) para 58.

See, e.g., Danish and Aileen Kwa, op. cit.

See, e.g., M. Kennedy, op. cit., 2016.

Canada—Patent Protection for Pharmaceutical Products, supra note 23, para. 7.55.

See, paragraph 4 of the Doha Declaration.

Motion Picture Patents Co. v. Universal Film Co. [1917] 243 U. S. 502 .

See, e.g., “TRIPS provisions as interpreted by the WTO dispute settlement organs”, Law Explorer . https://lawexplores.com/trips-provisions-as-interpreted-by-the-wto-dispute-settlement-organs/ .

See, Carlos Correa, op. cit., 2020, pp. 83–95.

Appellate Body Report, Canada – Term of Patent Protection , WT/DS170/AB/R (18 September 2000), para. 101. https://www.wto.org/english/tratop_e/dispu_e/170abr_e.pdf .

See, Canada—Patent Protection for Pharmaceutical Products , supra note 23, para. 7.26.

Shadlen ( 2004 ). Available from: https://link.springer.com/article/10.1007%2FBF02686283 .

Romero ( 2020b ). Available from: https://www.southcentre.int/policy-brief-79-june-2020/ .

See, United States—Section 110(5) of the U.S. Copyright Act , para. 6.55, n. 68.

Para. 7.581.

For an early analysis on this subject, see, Correa ( 2002 ), p. 45. https://apps.who.int/iris/handle/10665/67345 .

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United Nations ( 2018 ). https://legal.un.org/ilc/reports/2018/english/a_73_10_advance.pdf .

Tladi ( 2018 ). https://www.ejiltalk.org/is-the-international-law-commission-elevating-subsequent-agreements-and-subsequent-practice/ .

USTR Fact Sheet Summarizing Results from WTO Doha Meeting, 15 November 2001.

Gathii ( 2002 ), p. 315. https://pdfs.semanticscholar.org/a3a6/65016915476d1088fea2e7f4e97baf2f0f03.pdf .

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Romero ( 2020a ). https://www.southcentre.int/research-paper-108-april-2020/ .

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Correa, C.M. (2022). Interpreting the Flexibilities Under the TRIPS Agreement. In: Correa, C.M., Hilty, R.M. (eds) Access to Medicines and Vaccines. Springer, Cham. https://doi.org/10.1007/978-3-030-83114-1_1

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The Oxford Handbook of International Trade Law

A newer edition of this book is available.

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Andrew Mitchell, PhD (Cantab), LLM (Harv), Grad Dip Intl L (Melb), LLB (Hons) (Melb), BCom (Hons) (Melb) is Associate Professor, Faculty of Law, University of Melbourne; Member, WTO indicative list of governmental and non-govern-mental panelists; Fellow, Tim Fischer Centre for Global Trade & Finance, Bond University; Barrister and Solicitor, Supreme Court of Victoria and High Court of Australia; and Advisory Board Member, Melbourne Journal of International Law; Author of Legal Principles in WTO Disputes (Cambridge: Cambridge University Press, 2008).

Tania Voon University of Melbourne. Email: [email protected]

Published: 18 September 2012
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. The Nature of the TRIPS Agreement 187

. Developments to Date 189

Dispute Settlement 189

Access to Medicines and Public Health 192

. Outstanding Issues 195

Exhaustion and Parallel Imports 195

Anti-competitive Practices 197

Geographical Indications 198

. Beyond the WTO 200

TRIPS-plus in FTAs 201

A Human Rights Approach to TRIPS 203

. Conclusion 205

I. The Nature of the TRIPS Agreement

During the Uruguay Round of negotiations that finally created the WTO in 1995, the TRIPS Agreement was one of the most controversial new agreements added by the GATT 1947 Contracting Parties. 1 The TRIPS Agreement defines ‘intellectual property’ (IP) as copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout-designs (topographies) of integrated circuits, and undisclosed information (Article 1.2). Thus, this agreement on ‘trade-related aspects’ of IP bears on subjects as wide-ranging as books, computer programs, inventions, and trade secrets. Not surprisingly, given this subject matter, its ‘strongest proponents’ have been the US, the EC, and Japan, along with their IP industries. 2

The TRIPS Agreement establishes minimum standards for the protection of IP rights in each of the seven defined areas of IP, meaning that WTO Members are generally entitled to provide higher but not lower levels of IP protection. The most important way in which the TRIPS Agreement establishes these standards is by incorporating several existing multilateral treaties on IP. In particular, Members must comply with Articles 1 to 12 and 19 of the Paris Convention 1967 (Article 2.1) and with Articles 1 to 21 of the Berne Convention 1971 (excluding Article 6 bis ) (Article 9.1). The TRIPS Agreement builds on these existing treaties by imposing additional substantive obligations while recognizing certain exceptions, such as those regarding security and anti-competitive practices (Articles 73, 40.2).

Like several other WTO agreements, the TRIPS Agreement also creates general obligations of ‘national treatment’ and ‘MFN treatment’. With regard to IP protection, subject to permitted exceptions (again defined in part by reference to existing IP treaties), Members agree to accord to the nationals of other Members ‘treatment no less favourable’ than they accord to their own nationals (Article 3) and to accord immediately and unconditionally to the nationals of all Members ‘any advantage, favour, privilege or immunity’ granted to the nationals of any other country (Article 4).

The TRIPS Agreement also incorporates rigorous requirements concerning the enforcement of IP rights through judicial and administrative proceedings and appropriate remedies (Part IV) and a sophisticated system for resolving disputes between Members pursuant to the DSU (Part V). The TRIPS Council monitors the operation of the TRIPS Agreement and Members’ compliance with it (Article 68).

A frequent criticism of the TRIPS Agreement is that it has no place in the WTO because it entails harmonizing laws (positive integration) rather than removing or prohibiting barriers to international trade (negative integration). Moreover, the grant of exclusive or monopoly rights pursuant to the TRIPS Agreement may itself constitute a trade barrier. 3 Cottier responds that other aspects of the WTO agreements are ‘equally harmonizing’ and that the recognition of IP rights does not of itself conflict with the goals of trade liberalization; rather, the impact on trade and global welfare depends on the balance struck between providing incentives to innovate and protecting investment, on the one hand, and safeguarding competitive opportunities, on the other. 4 The TRIPS Agreement does recognize (under the explicit heading ‘Objectives’) the relevance of IP rights to ‘social and economic welfare’ and the need to achieve ‘a balance of rights and obligations’ (Article 7). 5

Another, perhaps more serious, challenge to the TRIPS Agreement arises from ‘the strong and widespread perception that [it] is against the interests of developing countries’. 6 Notwithstanding the variation in interests among developing country Members, their eventual acceptance during the Uruguay Round of WTO obligations concerning IP is generally regarded as having been a necessary sacrifice in order to achieve broader liberalization objectives, 7 though they arguably received a poor bargain given the relatively limited disciplines agreed in sectors such as agriculture and textiles. 8 The TRIPS Agreement does allow developing country and LDC Members longer transition periods to implement their obligations and also provides for developed country Members to assist them with technical and financial cooperation in this regard (Articles 65–67). However, like many special and differential treatment provisions, these were insufficient to address the difficulties faced by many developing countries in implementing the TRIPS Agreement, 9 and they did little to change the fact that the main beneficiaries of stronger IP rights were (at least initially) industrialized countries. 10

In the second part of this chapter, we outline certain significant developments under the TRIPS Agreement since its entry into force in 1995, namely in the course of dispute settlement and in relation to public health. The third part explores some of the issues under the TRIPS Agreement that are yet to be resolved: exhaustion, anticompetitive practices, and geographical indications. In the final part, we address a number of areas in which TRIPS-related issues expand beyond the boundaries of the WTO. In particular, we consider the role of the World Intellectual Property Organization (WIPO), the increasing frequency of ‘TRIPS-plus’ provisions in preferential trade agreements, and the call for greater acknowledgement of human rights concerns in interpreting and applying the TRIPS Agreement. Due to space constraints, we do not address the many other important subjects arising under the TRIPS Agreement, such as traditional knowledge and biodiversity. The following overview nevertheless exemplifies the wide range of dilemmas arising under the TRIPS Agreement, which is sure to continue as one of the chief battlegrounds in the development of WTO law, even as bilateral trade agreements and other areas of public international law, such as human rights, intervene.

II. Developments to Date

In this section, we examine two areas in which the TRIPS Agreement has undergone major developments: disputes arising under the TRIPS Agreement that have proceeded to formal adjudication in the WTO, and negotiation among WTO Members regarding access to medicines and public health under the TRIPS Agreement.

A. Dispute Settlement

As at the end of 2006, 25 formal complaints had been brought in connection with the TRIPS Agreement: a reasonable number, though not as many as under several other WTO agreements 11 such as the GATT 1994, the SCM Agreement, or the Agreement on Agriculture. In addition, on 10 April 2007, the US requested consultations with China alleging violations of the TRIPS Agreement in relation to the availability of criminal procedures and penalties for IP infringement, the disposal of goods that infringe IP rights, and the denial of copyright protection for works that have not been authorized for publication or distribution within China. 12 To date, nine Panel reports (some related) and three Appellate Body reports in relation to the TRIPS Agreement have been circulated and adopted.

The most recent TRIPS dispute to reach the stage of a final Panel report concerned geographical indications (GIs), which are also the subject of continued negotiations in the Doha Round as discussed below. Indeed, Australia and the US may have decided to challenge the EC’s GIs scheme in part to buttress their position in negotiations on this issue. 13 In this case, which was not appealed, the Panel found that several aspects of the EC’s scheme violated the national treatment (NT) obligations in the TRIPS Agreement and the GATT 1994. For example, the Panel found that such violations stemmed from the prima facie case made by Australia and the US (not successfully rebutted by the EC) that a GI located in another WTO Member could be registered under the relevant EC regulation only if the Member had adopted an equivalent system for GIs protection and provided reciprocal protection to EC products. 14

The US and EC have also played prominent roles in several other TRIPS disputes. In two cases, the EC challenged the US, once regarding its protection of trademarks used in connection with a business or assets that were confiscated by the Cuban government, 15 and once regarding its limitations on performers’ copyright for certain broadcasts. 16 The US has not yet implemented the adverse rulings in either of these cases, 17 much to the annoyance of other Members, particularly given the US role in championing the TRIPS Agreement. 18 Other TRIPS disputes have explored matters such as the term of patent protection required under Article 33, 19 the limited exceptions to patent protection allowed under Article 30, 20 the transition period for developing country Members, 21 and the provision of a ‘mailbox’ filing system for patent applications pending the availability of a patent protection system. 22

The TRIPS Agreement has given rise to two other developments in WTO dispute settlement. First, developing countries have often considered the TRIPS Agreement a useful instrument in responding to another Member’s failure to implement an adverse ruling by the DSB, even when the original violation was in respect of goods or services rather than IP rights. This generally requires the retaliating developing country Member to establish that ‘it is not practicable or effective to suspend concessions or other obligations with respect to the same’ sector or agreement and that ‘the circumstances are serious enough’ to warrant suspension under the TRIPS Agreement instead. 23 For example, Brazil proposed suspending concessions under the TRIPS Agreement rather than increasing tariffs on imports in response to US violations of the SCM Agreement because, ‘[g]iven the asymmetries between the two economies, additional import duties would have a much greater negative impact on Brazil than on the [US]’. 24

Whether ‘cross-retaliation’ of this kind is allowed in the WTO depends on the circumstances of the case. If the implementing Member does not object to the proposed suspension, the DSB authorizes it by reverse consensus. If the implementing Member does object, arbitrators (usually the original panel) determine whether it accords with the relevant dispute settlement provisions. 25 One such arbitration approved Ecuador’s request to suspend concessions to the EC under the TRIPS Agreement following EC violations regarding banana imports, noting that ‘the considerable economic differences between a developing WTO Member and the world’s largest trader … confirm … that it may not be practicable or effective for Ecuador to suspend concessions or other obligations under the [GATS] or with respect to all product categories under the GATT’. 26 The utility of this approach for a developing country Member may nevertheless be limited by constraints under its domestic law or other IP conventions to which the Member is a party, as well as economic considerations. 27

A second noteworthy feature of the TRIPS Agreement in connection with WTO dispute settlement is that ‘non-violation’ and ‘situation’ complaints as described respectively in Article XXIII:1(b) and (c) of the GATT 1994 were precluded under Article 64.2 TRIPS Agreement until 1 January 2000 and since that date have remained inapplicable by agreement between the Members. 28 In the GATT 1994 context, violation complaints are much more common (under Article XXIII:1(a)), but a Member may also bring a WTO dispute where it considers that, as a result of a Member’s measure that does not necessarily violate WTO law or some other situation, its WTO benefits are being nullified or impaired, or the attainment of any objective of the agreement is being impeded. Special dispute settlement provisions apply to these complaints under Article 26 DSU. The Council for TRIPS continues to work on the scope and modalities for complaints of this type under the TRIPS Agreement, 29 which could cover, for example, a patent regime imposing ‘an excessively high level of inventive step’ for pharmaceutical products that effectively preclude patent protection for these products without banning it outright. 30 Some regard non-violation complaints as unnecessary in the TRIPS context, given that the agreement is less concerned with market access and tariff concessions than the GATT 1994; others regard it as crucial in preventing Members from circumventing their TRIPS obligations. The impact of such complaints on security and predictability of trade is debated. 31

B. Access to Medicines and Public Health

The TRIPS Agreement recognizes the relationship between IP rights and public health, 32 allowing Members to ‘adopt measures necessary to protect public health and nutrition … provided that such measures are consistent with the provisions of this Agreement’ (Article 8.1). Patent protection for pharmaceutical products as mandated in the TRIPS Agreement represents one possible obstacle to public health measures and provides the setting for some of the most crucial advances made under the TRIPS Agreement and, indeed, the WTO agreements as a whole, since their enactment.

Subject to certain limited exceptions, 33 Members must make patents available for pharmaceuticals, and owners of these patents have exclusive rights to prevent others from making, selling, or importing the relevant products (Articles 27–28). These rights tend to elevate the prices of patented medicines (as compared to ‘generic’ or ‘off-patent’ medicines), 34 creating a potential difficulty particularly for developing countries seeking to manufacture or import them to deal with serious public health concerns, such as HIV/AIDS crises. Without further discussion, this difficulty would have crystallized when the transition period for pharmaceutical patents ended on 1 January 2005 for many developing countries such as India, and on 1 January 2006 for LDCs (Articles 65.1, 65.2, 65.4, 66.1).

Exceptions in Articles 30 and 31 might have assisted, in particular, by allowing the grant of compulsory licences to manufacture patented pharmaceuticals subject to conditions such as the payment of adequate remuneration and prior attempts to negotiate a voluntary licence on reasonable commercial terms and conditions (which condition could be waived ‘in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use’) (Article 31(b)). However, under Article 31(f), this kind of ‘use of the subject matter of a patent without the authorization of the right holder’ is to be ‘authorized predominantly for the supply of the domestic market of the Member authorizing such use’, meaning that a Member without sufficient capacity to manufacture the requisite pharmaceuticals could not take advantage of a compulsory licence to import these products from another Member. These Members might have been able to rely on the principle of international exhaustion (as discussed further below) to import products made under compulsory licence, but on one view parallel imports invariably violate the patent owner’s rights unless they are imports of products made under voluntary licence. 35

In recognition of this predicament, the WTO Members at the Fourth Ministerial Conference (MC) in Doha in 2001 issued a declaration ‘affirm[ing] that the Agreement can and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health and, in particular, to promote access to medicines for all’. 36 Among other things, this Ministerial Declaration on the TRIPS Agreement and Public Health noted Members’ freedom to determine the grounds for granting compulsory licences and acknowledged that ‘public health crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency’. 37 It also provided the setting for several more substantive changes. First, LDC Members were granted an additional transition period until 1 January 2016 in relation to certain obligations regarding pharmaceutical patents. 38 Second, Members agreed on a waiver of Article 31(f) so that LDC Members and other Members lacking sufficient manufacturing capacity may import pharmaceutical products created under compulsory licence, subject to certain conditions. 39 This waiver will become permanent through an amendment to the TRIPS Agreement after two-thirds of the Members accept it; this would be the first ever formal amendment to the WTO agreements, introducing a new Article 31 bis into the TRIPS Agreement. 40

Although these steps are very welcome, their practical implications have been limited to date. At the time of writing, only 18 of the 153 WTO Members 41 have accepted the amendment, 42 and a handful of Members have implemented legislation to enable them to issue compulsory licences in accordance with the waiver. 43 At the end of 2007, the GC noted that acceptance of the amending protocol by two-thirds of the Members was ‘taking longer than initially foreseen’ and therefore decided, on the recommendation of the TRIPS Council, to extend the deadline for acceptance from 1 December 2007 to 31 December 2009 ‘or such later date as may be decided by the Ministerial Conference’. 44

One positive development stands out. On 17 July 2007, Rwanda (an LDC) became the first Member to notify the TRIPS Council of its intention to use the waiver of Article 31(f) as an importing Member. The notification concerned the HIV/AIDS drug TriAvir, manufactured in Canada by generic pharmaceutical company Apotex, Inc. 45 In turn, Canada notified the TRIPS Council in early October 2007 of its grant of a compulsory licence as an eligible exporting Member to enable the manufacture and export of TriAvir to Rwanda. 46 The successful outcome of this arrangement may encourage further use of the flexibilities on which the Members have agreed.

III. Outstanding Issues

We now consider three areas under the TRIPS Agreement raising questions that the Members are yet to resolve: the exhaustion of IP rights associated with a product through the sale of that product with the right holder’s authority, the relationship between IP rights and anti-competitive conduct, and the category of GIs. Of these, only GIs are currently subject to negotiation under the Doha Round.

A. Exhaustion and Parallel Imports

In his seminal work, Warwick Rothnie describes parallel imports as follows:

They are lawfully put on the market in the place of export , the foreign country. But, an owner of the [IP] rights in the place of importation , the domestic country, opposes their importation … [S]ome enterprising middleman buys stock in the cheaper, foreign country and imports them into the dearer, domestic country. Hence, the imports may be described as being imported in ‘parallel’ to the authorised distribution network. 47

Under a rule or system of ‘national exhaustion’, by authorizing the first sale of a product in a given country, the owner of IP rights in that product exhausts those rights in that country only, such that a parallel import of the product into another country may infringe the IP owner’s rights in the second country. Under a system of ‘international exhaustion’, the first sale exhausts the IP rights associated with the product worldwide, allowing parallel imports of the product after that sale. A country’s choice of which system to adopt in relation to any given category of IP (as the considerations may differ for each) 48 raises the same balancing questions as determining the extent of protection of IP rights more generally. International exhaustion may encourage lower-priced parallel imports and promote competition, benefiting consumers and industrial users of the relevant products, while national exhaustion may advance the interests of IP owners and creators. 49 Jayashree Watal cautions against assuming that developing countries would necessarily benefit from international exhaustion. 50

Article 6 TRIPS Agreement provides that, ‘[f]or the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 3 and 4 nothing in this Agreement shall be used to address the issue of exhaustion of [IP] rights’. This provision reflects a failure to agree on the treatment of exhaustion and parallel imports and, consequently, a degree of discretion for WTO Members. Nevertheless, whatever approach a Member chooses, it must apply this on a non-discriminatory basis, that is, in accordance with the principles of NT and MFN treatment as set out in Articles 3 and 4. The choice for patents may affect the Member’s ability to respond to public health crises as discussed above. 51 Accordingly, the ‘Doha Declaration on TRIPS and Public Health’ confirms that ‘[t]he effect of the provisions in the TRIPS Agreement that are relevant to the exhaustion of [IP] rights is to leave each member free to establish its own regime for such exhaustion without challenge, subject to the MFN and national treatment provisions’. 52 This makes clear that Article 6 is not to be interpreted as being limited to dispute settlement such that, for example, the substantive TRIPS Agreement provisions on patents could be read as mandating international exhaustion. 53

Although Members are not examining exhaustion in the Doha Round, given the absence of agreement to date as to a uniform approach on this issue, it may resurface to be resolved in future.

B. Anti-competitive Practices

Article 8.2 TRIPS Agreement allows Members to take ‘[a]ppropriate measures, provided that they are consistent with the provisions of this Agreement, … to prevent the abuse of [IP] rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology’. The scope of this allowance therefore depends on how other TRIPS Agreement provisions are interpreted in relation to anti-competitive practices. In addition, Article 40.1 TRIPS Agreement recognizes that ‘some licensing practices or conditions pertaining to [IP] rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology’. Accordingly, Members are entitled to ‘specif[y] in their legislation licensing practices or conditions that may in particular cases constitute an abuse of [IP] rights having an adverse effect on competition in the relevant market’ (Article 40.2). 54 Article 40.2 provides examples of the kinds of practices that may be anti-competitive (‘exclusive grantback conditions, conditions preventing challenges to validity and coercive package licensing’) but not an exhaustive or binding list. Indeed, apart from an obligation to enter consultations on request in relation to these matters (Article 40.3), the provisions regarding anticompetitive conduct are ‘permissive rather than mandatory’. 55

The question whether WTO Members should adopt additional, mandatory rules aimed at harmonizing competition laws or producing an overarching international competition law goes beyond the TRIPS Agreement, 56 and, potentially, the WTO itself. 57 It concerns numerous aspects of the WTO agreements, including goods, services, and dispute settlement. The WTO’s Working Group on the Interaction between Trade and Competition Policy was previously discussing the ‘interaction between trade and competition policy, including anti-competitive practices, in order to identify any areas that may merit further consideration in the WTO framework’. 58 However, this so-called ‘Singapore issue’ has now been excised from the Doha Work Programme and is no longer under negotiation. 59 Nevertheless, the absence of a multilateral competition framework is problematic and will need to be addressed at some point. ‘Although competition law has traditionally dealt with private action within the border, while trade law has traditionally dealt with public action at the border’, 60 this dichotomy is weakening. In relation to IP rights as in other areas, the effects of domestic competition laws and anti-competitive practices frequently extend across national borders, increasing the risk of conflict and unnecessary costs on consumers and firms. 61

C. Geographical Indications

The TRIPS Agreement defines GIs as indications that ‘identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin’ (Article 22.1). The WTO website offers the examples of Champagne, Tequila, and Roquefort. 62 Members have a general obligation to provide the legal means for interested parties to prevent the use of GIs for goods (for example in a trademark) in such a way as to mislead the public about the origin of the good or to constitute unfair competition (Articles 22.2–22.4). Members must provide greater protection in relation to GIs for wines and spirits—that is, preventing their use in relation to wines or spirits not originating in the relevant place ‘even where the true origin is indicated or the [GI] is used in translation or accompanied by expressions such as “kind”, “type”, “style”, “imitation” or the like’ (Article 23.1). Some exceptions apply, such as for GIs that are generic terms, or where a GI was used continuously in good faith before 15 April 1994 (when the WTO agreements were signed) or was included in a trademark registered in good faith (Articles 24.4–24.6).

GIs provide one issue that remains under negotiation in the Doha Round. At Doha in 2001, Members agreed, in accordance with Article 23.4 TRIPS Agreement, ‘to negotiate the establishment of a multilateral system of notification and registration of [GIs] for wines and spirits’. 63 Members have since ‘agree[d] to intensify these negotiations’. 64 Members are currently negotiating on the basis of three main proposals in this regard. 65 In addition, although Members disagree as to the link with the wines and spirits negotiations and the Doha Round more generally, they are discussing the extension of the higher level of GI protection to products other than wines and spirits, as arguably envisaged in Article 24.1 TRIPS Agreement. 66

The alignment of Members on both sides of the GI debate is illustrated by existing proposals regarding the register for wines and spirits. The EC, long an advocate for GIs, calls for the higher levels of protection for wines and spirits to be simply extended to all products, along with a multilateral register for all products whereby registration of a particular GI would create, for participating Members not having lodged a reservation in respect of that GI, ‘a rebuttable presumption of the eligibility for protection of that [GI]’. 67 Hong Kong, China has submitted a proposal under which registration of an indication would provide prima facie evidence of ownership and that the indication is a GI protected in the country of origin. 68 In contrast, under a third proposal, participating Members would have much greater flexibility: they would merely have to ensure that they provide for consultation of the register when making domestic decisions regarding trademarks and GIs for wines and spirits. This proposal is endorsed by Argentina, Australia, Canada, Chile, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Japan, Mexico, New Zealand, Nicaragua, Paraguay, Chinese Taipei, and the US. 69 In many of these ‘New World’ countries, terms that the EC regards as GIs are already considered generic. 70

This is an extremely sensitive area of negotiations, made more complex by the uncertain effects that GI protection may have on different Members. For instance, Evans and Blakeney suggest that, whereas ‘large, commodity-dependent developing countries, such as India, Egypt, or Kenya, are well placed to take advantage of an extension of additional protection for agricultural products, foodstuffs, and traditional handicrafts’, other developing countries may lack ‘the financial resources, the technical expertise and the institutional capacity’ necessary to commercialize goods that could benefit from GI protection and to provide that protection. 71 Ultimately, a link exists between negotiations on the extension of GIs beyond wines and spirits, the multilateral register, and agriculture more generally. Failure in any one of these areas may necessitate failure in the other two. 72

IV. Beyond the WTO

In this final section, we identify three ways in which the TRIPS Agreement is influenced by outside forces and consider how these forces are changing international IP law. We first consider WIPO before turning to IP provisions in preferential, regional, or free trade agreements (FTAs) 73 and then the growing drive for a human rights approach to the TRIPS Agreement.

WIPO is a specialized agency of the United Nations (UN) established by a treaty signed in 1967 ‘to promote the protection of [IP] throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization’. 74 It has 184 contracting parties, 75 as compared with the WTO’s 153 Members. 76 The preamble to the TRIPS Agreement records the Members’ desire ‘to establish a mutually supportive relationship between the WTO and [WIPO] as well as other relevant international organizations’. Certain other TRIPS Agreement provisions also refer to WIPO, including Article 68, which directs the TRIPS Council to ‘seek to establish … appropriate arrangements for cooperation with bodies of that Organization’. The two organizations entered a cooperation agreement in 1995, pursuant to which, among other things, they provide access to each other’s collection of countries’ IP laws and regulations and cooperate in technical assistance activities. 77 WIPO has observer status in meetings of the GC, 78 the TRIPS Council and certain other WTO bodies. 79

The locus for multilateral IP negotiations shifted from WIPO to the GATT 1947 with the Uruguay Round of negotiations leading to the WTO, largely on the initiative of the US and the EC, though WIPO ‘continues to function as a critically important venue for [IP] lawmaking by all of its member states in a post-TRIPs environment’. 80 Since the WTO was established, WIPO has concluded several treaties expanding international IP coordination. 81 These newer treaties are not incorporated into the TRIPS Agreement leading some WTO Members to suggest their inclusion either in the TRIPS Agreement 82 or through the alternative route of FTAs, as discussed in the following section.

B. TRIPS-plus in FTAs

A common feature in the proliferation of FTAs 83 in recent years 84 (and particularly those of the US) has been the insertion of so-called ‘TRIPS-plus’ provisions, requiring FTA partners to impose higher standards of IP protection than those set in the TRIPS Agreement. 85 This tends to increase IP protection not only between the FTA partners but more broadly across the WTO Membership, because the TRIPS Agreement does not include a general exemption from the MFN rule for FTAs. Because of the US push to align others’ IP laws with its own, it also continues the process of international harmonization of IP laws supported by the TRIPS Agreement. 86 Here, too, the TRIPS Agreement may be seen as having failed developing countries in particular, who remain prey to bilateral pressures to accept and impose higher standards because the TRIPS Agreement imposes minimum but not maximum thresholds of protection. 87

As foreshadowed above, in some instances, TRIPS-plus is achieved by requiring FTA partners to become party to certain WIPO treaties not incorporated in the TRIPS Agreement. For example, Article 17.1.4 Australia — United States Free Trade Agreement 88 provides that ‘[e]ach Party shall ratify or accede to the WIPO Copyright Treaty (1996) and the WIPO Performances and Phonograms Treaty (1996) by the date of entry into force of this Agreement, subject to the fulfilment of their necessary internal requirements’.

Other FTA provisions remove the flexibility maintained under the TRIPS Agreement. Thus, the Agreement between the United States of America and the Hashemite Kingdom of Jordan on the Establishment of a Free Trade Area 89 restricts the circumstances in which a party may permit the use of the subject matter of a patent without the patent owner’s authority. Whereas the TRIPS Agreement does not prescribe the circumstances in which a WTO Member may grant a compulsory licence, for example to address a public health concern (provided that certain conditions are met such as payment of adequate remuneration) (Article 31(h)), the FTA between the US and Jordan precludes such licences except to remedy anti-competitive practices, where the patent owner has not sufficiently worked the patent, or ‘in cases of public non-commercial use or in the case of a national emergency or other circumstances of extreme urgency, provided that such use is limited to use by government entities or legal entities acting under the authority of a government’. 90 Several commentators regard these and other common TRIPS-plus provisions put forward by the US as reducing access to medicines in developing countries and ‘negat[ing] the letter and spirit of the Doha Declaration’. 91 Some even query whether they may violate WTO law. 92

TRIPS-plus approaches in FTAs, as highlighted above, are closely linked to US trade policies and negotiating strategies and are therefore subject to change. For instance, in May 2007, the Bush Administration reached a conceptual agreement with Congress regarding IP protections in pending FTAs that would (particularly for developing countries) increase flexibility in relation to pharmaceuticals and public health. 93 Nevertheless, the general trend towards strengthening TRIPS through FTAs remains apparent. 94

C. A Human Rights Approach to TRIPS

Since the creation of the WTO, various UN bodies have commented on the relationship between human rights and WTO law. 95 The resulting work includes several statements regarding the relationship between human rights and the TRIPS Agreement in particular. The UN Sub-Commission on the Promotion and Protection of Human Rights has warned that an ‘actual or potential conflict exists between the implementation of the TRIPS Agreement and the realization of economic, social and cultural rights, in particular the rights to self-determination, food, housing, work, health and education, and in relation to transfers of technology to developing countries’. 96

In 2001, the UN High Commissioner for Human Rights expressed support for the notion of a ‘human rights approach’ to the TRIPS Agreement, which ‘would explicitly place the promotion and protection of human rights … at the heart of the objectives of intellectual property protection, rather than only as permitted exceptions that are subordinated to the other provisions of the Agreement’. 97 The High Commissioner referred specifically to Article 15 International Covenant on Economic, Social and Cultural Rights (ICESCR) 98 as requiring States, in protecting IP rights, to balance the public interest in accessing new knowledge with the interests of knowledge creators. 99 On one view, Members already have suffi cient discretion to take a human rights approach to the TRIPS Agreement, for example, by using domestic competition rules to avert practices that infringe the right to health. 100

More recently, the Committee on Economic, Social and Cultural Rights, which monitors the implementation of the ICESCR, issued a general comment on Article 15(1)(c), distinguishing IP rights from the right recognized under that provision (‘to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author’). 101 Among other things, the Committee called on States parties to the ICESCR to ‘exclud[e] inventions from patentability whenever their commercialization would jeopardize the full realization of … human rights and dignity, including the rights to life, health and privacy’, in some contrast to the TRIPS Agreement’s exception for excluding inventions from patentability. 102

Concerns relating to the impact of the TRIPS Agreement on the right to health have been partially addressed by the WTO’s work in relation to compulsory licensing as discussed above. 103 One might even argue that paragraph 4 of the Declaration on the TRIPS Agreement and Public Health embodies a limited human rights approach to the TRIPS Agreement in affirming that ‘the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health’. However, as already mentioned, 104 some FTAs threaten to undermine this progress. 105

V. Conclusion

The TRIPS Agreement raises an array of complex questions and its implications for development, trade, and competition are difficult to identify in the abstract. On the one hand, it risks favouring IP owners, traditionally residing in developed countries, at the expense of vigorous competition and open trade. On the other hand, as the scope of IP expands (for example in the context of GIs), it offers potential benefits to at least some developing countries. In addition, it provides developing country Members with the possibility of cross-retaliation as an effective means of inducing compliance of other Members with their WTO obligations following adverse rulings in WTO dispute settlement. The Members’ ultimate response to the public health problems of developing countries (especially those with limited pharmaceutical manufacturing capacity) is also a significant achievement, although this would be best consolidated through the passing of a formal amendment to the TRIPS Agreement and the use of the available flexibilities in practice.

Moving beyond the first decade of the TRIPS Agreement, and even beyond Doha, WTO Members may need to reinvigorate discussions on areas of disagreement such as non-violation complaints, exhaustion, and anti-competitive practices. At the same time, they must recognize that the TRIPS Agreement is not operating in a vacuum. Especially in the absence of progress under the TRIPS Agreement from the perspective of all Members, IP laws including those relevant to international trade will continue to advance outside of the WTO. This is already evident in the work of WIPO and several FTAs, most often in the direction of strengthening IP rights, which may upset the balance achieved in the TRIPS Agreement (if indeed it is regarded as having struck an appropriate balance to begin with). On the opposite side, UN calls for greater appreciation of human rights in the TRIPS Agreement and its application should remind Members of the need to consider the wider ramifications of stronger IP protection in the longer term. While many debated the propriety of including the TRIPS Agreement in the WTO to begin with, it need not be a one-sided document in future.

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F Abbott , ‘The “Rule of Reason” and the Right to Health: Integrating Human Rights and Competition Principles in the Context of TRIPS’ in T Cottier , J Pauwelyn , and E Bürgi (eds), Human Rights and International Trade (Oxford: Oxford University Press, 2005 ) 279

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F Abbott , ‘ The WTO Medicines Decision: World Pharmaceutical Trade and the Protection of Public Health ’ 2005 American Journal of International Law 99(2) 317

F Abbott , ‘ Toward a New Era of Objective Assessment in the Field of TRIPS and Variable Geometry for the Preservation of Multilateralism ’ 2005 Journal of International Economic Law 8(1) 77

F Abbott , ‘Intellectual Property Provisions of Bilateral and Regional Trade Agreements in Light of U.S. Federal Law’, UNCTAD-ICTSD Capacity Building Project on Intellectual Property Rights and Sustainable Development Issue Paper No 12 2006

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M Desta and N Barnes , ‘Competition Law and Regional Trade Agreements: An Overview’ in L Bartels and F Ortino (eds), Regional Trade Agreements and the WTO Legal System (Oxford: Oxford University Press, 2006 ) 239

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S Frankel , ‘ WTO Application of “the Customary Rules of Interpretation of Public International Law” to Intellectual Property ’ 2005 Virginia Journal of International Law 46(2) 365

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M Geuze and H Wager , ‘ WTO Dispute Settlement Practice Relating to the TRIPS Agreement ’ 1999 Journal of International Economic Law 2(2) 347

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L Helfer , ‘ Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking ’ 2004 Yale Journal of International Law 29(1) 1

J Kuanpoth , ‘TRIPS-Plus Intellectual Property Rules: Impact on Thailand’s Public Health’ 2006 Journal of World Intellectual Property 9(5) 573

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D Matthews , ‘ WTO Decision on Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health: A Solution to the Access to Essential Medicines Problem? ’ 2004 Journal of International Economic Law 7(1) 73

AD Mitchell , ‘ Broadening the Vision of Trade Liberalisation: International Competition Law and the WTO ’ 2001 World Competition 24(3) 343

AD Mitchell , ‘ A Legal Principle of Special and Differential Treatment for WTO Disputes ’ 2006 World Trade Review 5(3) 445

K Nowak , ‘ Staying Within the Negotiated Framework: Abiding by the Non-Discrimination Clause in TRIPs Article 27 ’ 2005 Michigan Journal of International Law 26(3) 899

D Rangnekar , ‘Geographical Indications: A Review of Proposals at the TRIPs Council’ UNCTAD/ICTSD Capacity Building Project on Intellectual Property Rights and Sustainable Development Paper (2002)

M Rimmer , ‘ The Jean Chrétien Pledge to Africa Act: Patent Law and Humanitarian Aid ’ 2005 Expert Opinion on Therapeutic Patents 15(7) 889

W Rothnie , Parallel Imports (London: Sweet & Maxwell, 1993 )

FM Scherer and J Watal , ‘ Post-TRIPS Options for Access to Patented Medicines in Developing Nations ’ 2002 Journal of International Economic Law 5(4) 913

D Shanker , ‘ The Vienna Convention on the Law of Treaties, the Dispute Settlement System of the WTO and the Doha Declaration on the TRIPs Agreement ’ 2002 Journal of World Trade 36(4) 721

H Sun , ‘ The Road to Doha and Beyond: Some Reflections on the TRIPS Agreement and Public Health ’ 2004 European Journal of International Law 15(1) 123

M Taylor , International Competition Law: A New Dimension for the WTO? (Cambridge: Cambridge University Press, 2006 )

M Vincent , ‘ Extending Protection at the WTO to Products Other Than Wines and Spirits: Who Will Benefit? ’ 2007 Estey Centre Journal of International Trade Law and Policy 8(1) 57

E Vranes , ‘Cross Retaliation under GATS and TRIPS — An Optimal Enforcement Device for Developing Countries?’ in F Breuss , S Griller , and E Vranes (eds), The Banana Dispute: An Economic and Legal Analysis (Vienna: Springer, 2003 ) 113

J Watal , Intellectual Property Rights in the WTO and Developing Countries (Boston: Kluwer Academic Publishers, 2001 )

World Bank, Global Economic Prospects: Trade, Regionalism, and Development (Washington DC: World Bank, 2005 )

See, generally, chapters 2 and 3 of this Handbook.

L Helfer , ‘Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking’ 2004 Yale Journal of International Law 29(1) 1, at 2 .

See, eg, A Deardorff , ‘What Might Globalization’s Critics Believe?’ 2003 World Economy 26(5) 639, at 653–54 ; E-U Petersmann , ‘From Negative to Positive Integration in the WTO: The TRIPs Agreement and the WTO Constitution’ in T Cottier and P Mavroidis (eds), Intellectual Property: Trade, Competition, and Sustainable Development (Ann Arbor: University of Michigan Press, 2003) 21, at 22–23 ; cf W Davey and W Zdouc , ‘The Triangle of TRIPS, GATT and GATS’ in Cottier and Mavroidis , ibid , 53, at 54 . See also Preamble and Arts 7 and 8.2 TRIPS Agreement.

T Cottier , ‘The Agreement on Trade-Related Aspects of Intellectual Property Rights’ in P Macrory , A Appleton , and M Plummer (eds), The World Trade Organization: Legal, Economic and Political Analysis , Vol I (New York: Springer, 2005) 1041, at 1054 . Cottier refers to ‘safeguards, dumping, subsidies, and agriculture’. Consider also, eg, the SPS Agreement.

See also Art 8 TRIPS Agreement; C Correa , Trade-Related Aspects of Intellectual Property Rights: A Commentary on the TRIPS Agreement (Oxford: Oxford University Press, 2006), at 91–114 .

J Watal , Intellectual Property Rights in the WTO and Developing Countries (Boston: Kluwer, 2001) 363 ; cf F Abbott , ‘Intellectual property rights in world trade’ in A Guzman and A Sykes (eds), Research Handbook in International Economic Law (London: Edward Elgar, 2007) 444, at 453 .

A Pacón , ‘What Will TRIPs Do For Developing Countries’ in FK Beier and G Schricker (eds), From GATT to TRIPs: The Agreement on Trade-Related Aspects of Intellectual Property Rights (Munich: Max Planck Institute, 1996) 329, at 332–33 ; F Abbott , ‘Commentary: The International Intellectual Property Order Enters the 21st Century’ 1996 Vanderbilt Journal of Transnational Law 29(3) 471, at 472–73, 476 ; Petersmann , above fn 3, at 32–33 .

AD Mitchell , ‘A legal principle of special and differential treatment for WTO disputes’ 2006 World Trade Review 5(3) 445, at 449–50 .

See, eg, TRIPS Council, Special and Differential Treatment Proposals Referred to the TRIPs Council: Report to the General Council by the Chair , IP/C/36 (20 July 2005) ; TRIPS Council, Annual Report (2006) , IP/C/44 (4 December 2006), at para 9 .

F Abbott , ‘Toward a New Era of Objective Assessment in the Field of TRIPS and Variable Geometry for the Preservation of Multilateralism’ 2005 Journal of International Economic Law 8(1) 77, at 80–83 .

K Leitner and S Lester , ‘WTO Dispute Settlement 1995–2006—A Statistical Analysis’ 2007 Journal of International Economic Law 10(1) 165, at 171 .

WTO, China — Intellectual Property Rights: Request for Consultations by the United States , WT/DS362/1, IP/D/26, G/L/819 (16 April 2007) .

M Handler , ‘The WTO Geographical Indications Dispute’ 2006 Modern Law Review 69(1) 70, at 79 .

Panel Report, EC — Trademarks and Geographical Indications (Australia) , at paras 7.89, 7.152, 7.249, 7.272, 8.1(e), 8.1(f)(i), 8.1(i)(i) ; Panel Report, EC — Trademarks and Geographical Indications (US) , at paras 7.38, 7.102, 7.213, 7.238, 8.1(c), 8.1(d)(i), 8.1(h)(i) .

US — Section 211 Appropriations Act .

US — Section 110(5) Copyright Act .

WTO, United States — Section 211 Omnibus Appropriations Act of 1998: Status Report by the United States — Addendum , WT/DS176/11/Add.53 (13 April 2007) ; WTO, United States — Section 110(5) of the US Copyright Act: Status Report by the United States — Addendum , WT/DS160/24/Add.28 (13 April 2007) .

DSB, Minutes of Meeting Held on 20 February 2007 , WT/DSB/M/226 (26 March 2007), at paras 4–13, 22 .

Canada — Patent Term .

Canada — Pharmaceutical Patents .

Indonesia — Autos .

India — Patents (EC); India — Patents (US) .

Art 22.3 DSU.

WTO, United States — Subsidies on Upland Cotton: Recourse to Article 7.9 of the SCM Agreement and Article 22.2 of the DSU by Brazil , WT/DS267/26 (7 October 2005), at 2 .

Art 22.6 DSU.

Decision by the Arbitrators, EC — Bananas III (Ecuador) (Article 22.6 — EC) , at paras 126, 138, 173(d).

MC, Doha Work Programme: Ministerial Declaration Adopted on 18 December 2005 , WT/MIN(05)/DEC (22 December 2005) (Hong Kong Declaration), at para 45 .

TRIPS Council, Minutes of Meeting Held on 13 February 2007 , IP/C/M/53 (22 March 2007), at paras 62–64 .

K Lee and S von Lewinski , ‘The Settlement of International Disputes in the Field of Intellectual Property’ in Beier and Schricker , above fn 7, 278, at 313 .

TRIPS Council, Non-Violation and Situation Complaints: Summary Note by the Secretariat — Revision , IP/C/W/349/Rev.1 (24 November 2004), at paras 10–12 .

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Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)

6 Unique Texas Day Trips Less Than Three Hours From Houston

These unique day trips near Houston are less than three hours away, some even just a few miles, offering a fun and different kind of outing.

Leave Houston early to beat traffic to explore Sugar Land, known for its sugar history and outdoor recreation.
Lake Jackson is another one of the unique, fun day road trips from Houston and offers remote beaches near the big city, ideal for shelling, swimming, and learning about local history.
Visit Columbus for a picturesque day trip from Houston, with historical sites, quaint streets, and delicious dining options.

Texas is a big state – it takes about 11 hours of driving to traverse it from east to west. For travelers starting in Houston – residents and visitors alike looking to explore more of the state – here are some unique day trips in Texas that take no more than three hours to reach from the city center of Houston.

Several things can impact drive time and make the trip longer or shorter, such as traffic, road construction, and time of day. Houston is the United States' fourth-largest city and the traffic is notoriously heavy, so to maximize time, leave early in the morning when not as many cars are on the road. If you're looking for authentic experiences to add to the Texas bucket list , these gems are absolutely worthy of it.

7 Spots To See Real Cowboy Culture In Texas

6 houston to sugar land, explore sugar history, urban outdoor spaces, and delicious food.

Sugar Land might be just a short drive from Houston, but this close neighbor has an entirely different vibe than the big city. Sugar Land’s name comes from the product it was once famous for producing: sugar.

Early settlers brought sugar cane to the area and the crop thrived in the fertile floodplain of the Brazos River. The sugar plantations were absorbed into Imperial Sugar, which had its refinery and distribution center in Sugar Land for 150 years. The old sugar factory still stands as a landmark and fun Instagrammable photo spot.

For outdoor fun, visit Brazos River Park and Sugar Land Memorial Park. These two collocated green spaces offer hike and bike trails, playgrounds, and outdoor art. Cullinan Park, a 754-acre nature preserve, is a great place to take a walk and go bird-watching. Seeking something more thrilling? Check out Go Ape Zipline and Adventure Park .

Downtown Sugar Land has a fun town square with several free events throughout the year, such as fitness classes and concerts. Check out the calendar of events to see what’s happening. Sugar Land is a foodie's paradise ; there are many choices for spots to grab lunch located around the town square, such as Mahesh’s Kitchen and B.B. Italia Bistro and Bar .

Route From Houston To Sugar Land

7 Unique Small Texas Towns For The Quirky Traveler

Sugar Land’s parks are home to alligators, so heed the warning signs!

5 Houston To Lake Jackson

Discover texas' secret beaches, ample history, and marine life education.

Anyone looking for a quick beach break from Houston should put Lake Jackson, sometimes referred to as the Brazosport area, on their shortlist. Although many Texans get their beach fix at Port Aransas or South Padre Island, the beaches near Lake Jackson are more remote and less crowded. The potential downside is that there are fewer amenities than Texas’ more popular beach towns. Lake Jackson is definitely one of the lesser-known beautiful beach towns in Texas !

There are four beaches in this area: Surfside Beach, Follet’s Beach – often referred to as the ‘free beach’ by locals, Quintana Beach, and Bryan’s Beach. These beaches are excellent for shelling, boogie boarding, swimming, and sunbathing. The sand on Texas beaches has a high clay content, which makes it superb for building sandcastles.

Visit the Varner Hogg Plantation to get a sense of the area’s history. This site is run by the Texas Historical Commission and tells the stories of the many families, both enslaved and not, who worked to build Texas. The plantation has been involved in sugar cane production, oil drilling, and cattle ranching throughout its 134-year history.

Another non-beach activity is Sea Center Texas , which is run by Texas Parks and Wildlife. This is a free educational center that helps visitors learn about the local fishing industry, and how salt water, marsh water, and nearshore waters work together to build a unique ecosystem.

Hungry for lunch in Lake Jackson? Grab delicious German food at the Wurst Haus or visit Jimmy Joe’s Texas Kitchen and Bar for brunch, burgers, Cajun delights, burgers, and more.

Route From Houston To Lake Jackson

If you’re planning a beach day, make sure to take everything you’ll need with you – a cooler with drinks and snacks, chairs and umbrellas, and more – concessions on the beaches are very limited.

7 Affordable Small Towns To Retire In Texas

4 houston to columbus, the perfect for a short day trip from houston.

This picturesque and walkable small town is the perfect choice for a day trip for the adventurer who is short on time or doesn’t want to venture far from Houston. Leave after morning rush hour traffic, explore Columbus, have lunch, and be back on the road in time to beat the end-of-day traffic congestion.

Things to do in Columbus include visiting the Santa Claus Museum – especially fun in December – and strolling through downtown looking at the large, beautiful Live Oak trees. The Santa Claus Museum features thousands of unique Santa figurines, music boxes, ornaments, artwork, and more from all over the world.

The Santa Claus Museum is only open on Fridays throughout the year and Fridays and Saturdays in December, so plan accordingly.

The Columbus Oak, located across from the Stafford Opera House, is the second-largest Live Oak tree in Texas. The Colorado County Courthouse is also fun to check out if you are a history or architecture buff. The copper dome and the interior Tiffany-style stained-glass window are gorgeous and make visitors feel like they’ve dropped into the Emerald City from The Wizard of Oz instead of a small town in Texas.

Stop at Los Cabos Mexican Grill for some authentic Tex-Mex or check out Hound Song Brewing Co. for local beer, burgers, appetizers, and more.

Route From Houston To Columbus

7 Small Towns In Texas For Scenic Hikes

3 houston to beaumont, this charming small city is on the texas-louisiana border.

Another one of the unique day trips from Houston, Texas, is Beaumont, which is located on the Texas-Louisiana border, so anyone making the hour’s drive with Cajun-inspired food on their mind won’t be disappointed, but there are plenty of other things to do and see there, too. Beaumont is a terrific choice for anyone on a budget, as there are multiple free activities in town.

Beaumont’s Cattail Marsh is 900 acres of scenic wetlands with a boardwalk for viewing and has a visitor’s center with various free activities throughout the year, like yoga overlooking the marsh, photography seminars, and arts and crafts for kids. Adjacent Beaumont Botanical Gardens is a lovely, tranquil place to stroll and explore, and enjoy being outdoors. Both of these outdoor spaces are free.

There are also two free museums in Beaumont: the Fire Museum of Texas and the Art Museum of Southeast Texas . While not free, Spindletop Boomtown Museum , located on the campus of Lamar University, tells the story of Beaumont’s oil boom history in an engaging, interactive way.

For foodies, Beaumont has a little bit of everything, from Texas BBQ, Tex-Mex, Cajun dishes, and cuisine that doesn’t scream ‘Texas’, like sushi. Top picks include Tia Juanita’s Fish Camp , Carmela’s Mexican Restaurant , Sweet Basil – Vietnamese and Cajun fusion, and Rao’s Bakery for breakfast and delicious baked goods.

Beaumont is a great place to celebrate Mardi Gras. Even though New Orleans and Mardi Gras are synonymous, there are lots of places in Texas and Louisiana to celebrate.

7 Unique Texas Day Trips Less Than Three Hours From Dallas

2 houston to new braunfels, rivers, texas' best and biggest waterpark, and german cuisine.

New Braunfels is a German community located between San Antonio and Austin. Two rivers run through New Braunfels, the Guadalupe and Comal Rivers, making this not only a scenic and beautiful place but a great spot for water activities, such as swimming, canoeing, and floating.

Since New Braunfels is roughly two and a half hours from Houston and there’s a lot to do, day trip visitors should plan their activities to maximize their time. Travelers seeking to take part in water activities, such as float trips down the river – several in-town outfitters can assist with tube rentals and river drop-offs – or playing at what might just be one of the best resort waterparks in the US , Schlitterbahn , should plan to arrive in New Braunfels early in the day.

Other things to do include exploring Landa Park , going underground at Natural Bridge Caverns , going on a drive-through safari at Natural Bridge Wildlife Ranch , and exploring the Gruene Historic District . Landa Park is a wonderful free option for anyone on a budget. There are upcharges for optional activities such as train rides, pool entrance, and boat rentals, but the park’s scenic trails, play areas, and splash pools are free to use. Parking at Landa Park is also free.

There are a plethora of great restaurants to explore in New Braunfels. There’s a decidedly German influence – check out Krause’s Café and the Alpine Haus – but there’s everything else under the sun in town, too. For great wine and light bites, check out Water2Wine , and to indulge a sweet tooth, visit 2tarts Bakery .

Route From Houston To New Braunfels

1 Houston To Georgetown

What might just be texas' most beautiful town square awaits.

There's a historic Georgetown with lots to do, which is a neighborhood outside Washington D.C. , but Texas has its own Georgetown. Georgetown, Texas, is located 28 miles north of Austin, and while it has a bit of the quirky and weird Austin vibe, the historic buildings and tranquil parks give Georgetown its own distinct personality.

Georgetown’s charming square is easy to navigate and there’s ample free parking, although visitors might have to make a couple of loops during busy periods. There are several downtown breweries and tasting rooms, and it is possible to get alcoholic drinks to go, for anyone who fancies sipping and window shopping. Choice shops to explore include Ooh La La and Lark and Owl Booksellers .

Georgetown also has lovely outdoor spaces. Blue Hole Park , located steps from downtown, has natural swimming areas and paved walking trails. San Gabriel Park , a short drive from downtown, has play areas and paved trails adjacent to the San Gabriel River, great for walking, biking, and watching waterfowl. Garey Park , located 10 minutes outside Georgetown, is a peaceful oasis with a dog park, splash pad, fishing pond, and hiking/equestrian trails.

Blue Hole Park and San Gabriel Park are free to enter. There is a $10 per car fee to enter Garey Park, which allows entry for two people. Additional passengers are $2 each. There are also tons of places to eat in Georgetown. Check out Sweet Lemon Kitchen, Goodfolks, and Monument Café. More dining recommendations are on the Visit Georgetown site .

Route From Houston To Georgetown

This day trip from Houston pushes the three-hour time limit and traffic is always a variable so be prepared to plan time wisely.

Explore the Crossroads of Civilization on This Six-Day Itinerary

A cosmopolitan gem nestled at the crossroads of civilizations, i̇stanbul invites curious travelers to unravel its secrets, from the grandeur of topkapı palace to the bohemian streets of balat..

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İSTANBUL, TÜRKİYE

COURTESY OF GO TÜRKİYE

İstanbul , the bustling metropolis of Türkiye, stands as a testament to the nation’s rich past and bright future. Located at the nexus of Europe and Asia, this vibrant and vast urban center begs exploration. Packed with historic landmarks, maze-like marketplaces, quintessential cuisine, thrilling nightlife, and fascinating culture, this six-day itinerary in İstanbul, Türkiye, is designed to immerse you in the city’s best swiftly—but be prepared to discover just as many reasons to return.

Trip Highlight

Trip Designer

HAGIA SOPHIA

Day 1: Welcome to İstanbul

SHOPPING IN THE GRAND BAZAAR

Day 2: Shopping for Treasures in İstanbul

THE COLORFUL HOUSES OF BALAT

Day 3: A Fresh Twist on an Ancient City

PERA MUSEUM

Day 4: An Exploration of Art and Archaeology

Day 5: Sailing from Europe to Asia

ENJOY A DAY TRIP TO PRINCES’ ISLANDS

Day 6: A Day in Paradise

Electrostal History and Art Museum

Most Recent: Reviews ordered by most recent publish date in descending order.

Detailed Reviews: Reviews ordered by recency and descriptiveness of user-identified themes such as wait time, length of visit, general tips, and location information.

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The Moscow Metro Museum of Art: 10 Must-See Stations

There are few times one can claim having been on the subway all afternoon and loving it, but the Moscow Metro provides just that opportunity. While many cities boast famous public transport systems—New York’s subway, London’s underground, San Salvador’s chicken buses—few warrant hours of exploration. Moscow is different: Take one ride on the Metro, and you’ll find out that this network of railways can be so much more than point A to B drudgery.

The Metro began operating in 1935 with just thirteen stations, covering less than seven miles, but it has since grown into the world’s third busiest transit system ( Tokyo is first ), spanning about 200 miles and offering over 180 stops along the way. The construction of the Metro began under Joseph Stalin’s command, and being one of the USSR’s most ambitious building projects, the iron-fisted leader instructed designers to create a place full of svet (radiance) and svetloe budushchee (a radiant future), a palace for the people and a tribute to the Mother nation.

Consequently, the Metro is among the most memorable attractions in Moscow. The stations provide a unique collection of public art, comparable to anything the city’s galleries have to offer and providing a sense of the Soviet era, which is absent from the State National History Museum. Even better, touring the Metro delivers palpable, experiential moments, which many of us don’t get standing in front of painting or a case of coins.

Though tours are available , discovering the Moscow Metro on your own provides a much more comprehensive, truer experience, something much less sterile than following a guide. What better place is there to see the “real” Moscow than on mass transit: A few hours will expose you to characters and caricatures you’ll be hard-pressed to find dining near the Bolshoi Theater. You become part of the attraction, hear it in the screech of the train, feel it as hurried commuters brush by: The Metro sucks you beneath the city and churns you into the mix.

With the recommendations of our born-and-bred Muscovite students, my wife Emma and I have just taken a self-guided tour of what some locals consider the top ten stations of the Moscow Metro. What most satisfied me about our Metro tour was the sense of adventure . I loved following our route on the maps of the wagon walls as we circled the city, plotting out the course to the subsequent stops; having the weird sensation of being underground for nearly four hours; and discovering the next cavern of treasures, playing Indiana Jones for the afternoon, piecing together fragments of Russia’s mysterious history. It’s the ultimate interactive museum.

Top Ten Stations (In order of appearance)

Kievskaya station.

Kievskaya Station went public in March of 1937, the rails between it and Park Kultury Station being the first to cross the Moscow River. Kievskaya is full of mosaics depicting aristocratic scenes of Russian life, with great cameo appearances by Lenin, Trotsky, and Stalin. Each work has a Cyrillic title/explanation etched in the marble beneath it; however, if your Russian is rusty, you can just appreciate seeing familiar revolutionary dates like 1905 ( the Russian Revolution ) and 1917 ( the October Revolution ).

Mayakovskaya Station

Mayakovskaya Station ranks in my top three most notable Metro stations. Mayakovskaya just feels right, done Art Deco but no sense of gaudiness or pretention. The arches are adorned with rounded chrome piping and create feeling of being in a jukebox, but the roof’s expansive mosaics of the sky are the real showstopper. Subjects cleverly range from looking up at a high jumper, workers atop a building, spires of Orthodox cathedrals, to nimble aircraft humming by, a fleet of prop planes spelling out CCCP in the bluest of skies.

Novoslobodskaya Station

Novoslobodskaya is the Metro’s unique stained glass station. Each column has its own distinctive panels of colorful glass, most of them with a floral theme, some of them capturing the odd sailor, musician, artist, gardener, or stenographer in action. The glass is framed in Art Deco metalwork, and there is the lovely aspect of discovering panels in the less frequented haunches of the hall (on the trackside, between the incoming staircases). Novosblod is, I’ve been told, the favorite amongst out-of-town visitors.

Komsomolskaya Station

Komsomolskaya Station is one of palatial grandeur. It seems both magnificent and obligatory, like the presidential palace of a colonial city. The yellow ceiling has leafy, white concrete garland and a series of golden military mosaics accenting the tile mosaics of glorified Russian life. Switching lines here, the hallway has an Alice-in-Wonderland feel, impossibly long with decorative tile walls, culminating in a very old station left in a remarkable state of disrepair, offering a really tangible glimpse behind the palace walls.

Dostoevskaya Station

Dostoevskaya is a tribute to the late, great hero of Russian literature . The station at first glance seems bare and unimpressive, a stark marble platform without a whiff of reassembled chips of tile. However, two columns have eerie stone inlay collages of scenes from Dostoevsky’s work, including The Idiot , The Brothers Karamazov , and Crime and Punishment. Then, standing at the center of the platform, the marble creates a kaleidoscope of reflections. At the entrance, there is a large, inlay portrait of the author.

Chkalovskaya Station

Chkalovskaya does space Art Deco style (yet again). Chrome borders all. Passageways with curvy overhangs create the illusion of walking through the belly of a chic, new-age spacecraft. There are two (kos)mosaics, one at each end, with planetary subjects. Transferring here brings you above ground, where some rather elaborate metalwork is on display. By name similarity only, I’d expected Komsolskaya Station to deliver some kosmonaut décor; instead, it was Chkalovskaya that took us up to the space station.

Elektrozavodskaya Station

Elektrozavodskaya is full of marble reliefs of workers, men and women, laboring through the different stages of industry. The superhuman figures are round with muscles, Hollywood fit, and seemingly undeterred by each Herculean task they respectively perform. The station is chocked with brass, from hammer and sickle light fixtures to beautiful, angular framework up the innards of the columns. The station’s art pieces are less clever or extravagant than others, but identifying the different stages of industry is entertaining.

Baumanskaya Statio

Baumanskaya Station is the only stop that wasn’t suggested by the students. Pulling in, the network of statues was just too enticing: Out of half-circle depressions in the platform’s columns, the USSR’s proud and powerful labor force again flaunts its success. Pilots, blacksmiths, politicians, and artists have all congregated, posing amongst more Art Deco framing. At the far end, a massive Soviet flag dons the face of Lenin and banners for ’05, ’17, and ‘45. Standing in front of the flag, you can play with the echoing roof.

Ploshchad Revolutsii Station

Novokuznetskaya Station

Novokuznetskaya Station finishes off this tour, more or less, where it started: beautiful mosaics. This station recalls the skyward-facing pieces from Mayakovskaya (Station #2), only with a little larger pictures in a more cramped, very trafficked area. Due to a line of street lamps in the center of the platform, it has the atmosphere of a bustling market. The more inventive sky scenes include a man on a ladder, women picking fruit, and a tank-dozer being craned in. The station’s also has a handsome black-and-white stone mural.

Here is a map and a brief description of our route:

Start at (1)Kievskaya on the “ring line” (look for the squares at the bottom of the platform signs to help you navigate—the ring line is #5, brown line) and go north to Belorusskaya, make a quick switch to the Dark Green/#2 line, and go south one stop to (2)Mayakovskaya. Backtrack to the ring line—Brown/#5—and continue north, getting off at (3)Novosblodskaya and (4)Komsolskaya. At Komsolskaya Station, transfer to the Red/#1 line, go south for two stops to Chistye Prudy, and get on the Light Green/#10 line going north. Take a look at (5)Dostoevskaya Station on the northern segment of Light Green/#10 line then change directions and head south to (6)Chkalovskaya, which offers a transfer to the Dark Blue/#3 line, going west, away from the city center. Have a look (7)Elektroskaya Station before backtracking into the center of Moscow, stopping off at (8)Baumskaya, getting off the Dark Blue/#3 line at (9)Ploschad Revolyutsii. Change to the Dark Green/#2 line and go south one stop to see (10)Novokuznetskaya Station.

Check out our new Moscow Indie Travel Guide , book a flight to Moscow and read 10 Bars with Views Worth Blowing the Budget For

Jonathon Engels, formerly a patron saint of misadventure, has been stumbling his way across cultural borders since 2005 and is currently volunteering in the mountains outside of Antigua, Guatemala. For more of his work, visit his website and blog .

Photo credits: SergeyRod , all others courtesy of the author and may not be used without permission

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The Most Beautiful Stations on the Moscow Metro

You might have heard that there are some beautiful metro stations in Moscow. Soviet decorations, chandeliers, mosaic painting and statues are common in many of the stations. The good news is that the Moscow Metro does not cost a lot of money and many of the most beautiful stations on the Moscow metro are on the same line, so you can almost get on and off at each station to visit these. Over the New Year holidays, I had a free afternoon and decided to visit some of these stations. Check out what I found below…..

The main stations that you will want to visit are on the Number 5 line, also known as the Circle Line. An advantage of this line is that you can get to it very easily and quickly no matter where you are in Moscow. The announcements on the metro are in Russian as well as English so you don’t need to worry if your Russian language skills are not good.

If, like me, you arrive in Moscow via train from Kyiv , then you will arrive at a metro station which many Muscovites believe to be the most beautiful of them all…..

Kievskaya metro station was opened in 1954 and features white marble walls which curve upwards and have with large mosaics surrounded by a gold trim in a very classical style. The mosaics depict life in Ukraine and was designed by a Ukrainian who wanted to display Ukraine’s influence and contribution to Soviet Russia.

Kievskaya, one of the most beautiful stations on the Moscow metro

Soviet era artwork between the arches

Mosaic with golden trim

People carrying flags is a common theme

Going into battle

Belorusskaya

If you look at a map of the metro , you will want to go in a clockwise direction on the circle line. So you will want to get on the train going in the Barrikadnaya direction and not Park Kultury. Stay on this line until you reach the 2nd station, Belorusskaya. This station was built in 1952 and like Kievskaya also features white marble pylons and a plaster ceiling.

The ceiling features 12 mosaics in an octagonal shape depicting Belarusian life, while the tiling on the floor is said to resemble a Belarusian quilt. One of the passageway exits of the station has a statue called ‘Belarusian Partisans’ of three men wearing long coats, holding guns and carrying a flag.”

Belorusskaya metro platform

Soviet artwork on the roof

The hammer and sickle features prominently in the metro artwork

Three men carrying guns, holding the flag…

Mayakovskaya

To get to the next station, we need to change onto the green line (line 2) and go just one stop to the station of Mayakovskaya. This station has an art deco theme and, for some, resembles an elaborate ballroom. The columns are faced with stainless steel and pink rhodonite while the marble walls and ceiling have 34 mosaics with the theme “24-hour Soviet Sky. Apparently, Stalin resided here during the 2nd World War as the station was used as a command post for Moscow’s anti-aircraft regiment.

Mayakovskaya metro

24-Hour Soviet Sky mosaic

Bomber planes

It looks like planes flying over Red Square

Novoslobodskaya

It’s time to get back on the metro and return to Belorusskaya. At Belorusskaya, change to the circle line again and continue clockwise to the next station, Novoslobodskaya. With its 32 stained glass panels, this station reminds me of a church. The panels were designed by Latvian artists and are surrounded by a brass border.

Novoslobodskaya metro

The platform of Novoslobodskaya metro

Stained glass artwork

The golden trim around artwork is also very common

Prospekt Mira

Back on the metro and again just one stop until our next station, Prospekt Mira. This station was originally called Botanichesky Sad after the nearby Botanical Gardens of the Moscow State University. The pylons are covered in white marble and decorated with floral bas-relief friezes. The ceiling is decorated with casts and several cylindrical chandeliers.

Prospekt Mira metro station

Notice the floral decoration

Komsomolskaya

On the metro once more and once more we are going just one stop to the next station – Komsomolskaya. This station is famous for its its yellow ceiling. The chandeliers in this station are huge. The photos below do not do this station justice. For me, this station resembles a presidential palace. You hace to see it for yourself to truly appreciate it.

Because of it’s location, this is one of the busiest stations in the Moscow metro as it serves three of the main train stations in the city – Leningradsky, Yaroslavsky, and Kazansky so be prepared for a lot of people.

Komsomolskaya metro

The yellow ceiling seems to go on forever

Yellow ceiling and artwork

One of the ceiling mosaics

Elektrozavodskaya

When you are ready to leave Komsomolskaya metro station behind, then get back on the circle line and go one stop to Kurskaya and change to the blue line (line 3) and go to two stops to the Elektrozavodskaya station. This station gets it’s name from a nearby electric light bulb factory and has a somewhat industrial but also futuristic style, with 6 rows of circular lamps (there are 318 lamps in total). I think this is one of the most beautiful stations on the Moscow metro for how unique it is. The station was opened in 1944 after a delay because of the 2nd World War and features 12 marble bas-reliefs of the struggle on the home front during the war.

The Komsomolskaya metro station

The struggles of war at home

Fixing machinery

Hard at work

Making weapons

Building a tank

Even the station sign is elaborate

Ploschad Revolyutsii

Back on the metro line 3 (but in the other direction), getting off at the 3rd stop – Ploschad Revolyutsii (Revolution Square). This is located underneath the square in Moscow of the same name and is a short walk from Red Square in the city centre. It is the perfect place to end a visit around Moscow’s metro. The station features red and yellow marble arches with a total of 76 sculptures in between each arch. The sculptures are supposed to represent the people of the Soviet Union and include soldiers, farmers, industrial workers, children etc… I noticed a lot of people touching the golden chicken in the photo below as well as the show of the woman. I am assuming that this is for good luck.

Industrial worker

Touch the chicken for good luck

Sculpture of the people of the Soviet Union

Woman reading a book – touch the shoe for good luck

In education

Parent and child

These are some of what I think are the most beautiful stations on the Moscow metro. Which ones are your favourite? Would you add any to this list?

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19 comments.

Kievskaya definitely caught me off guard. Didn’t know Moscow metro stations were THIS extravagant! Mayakovskaya is gorgeous too with the marble walls and mosaics. I might just need to book a flight over to admire all of these!

Do it! Kievskaya was my first introduction to the Moscow metro as I got an overnight train from Kyiv.

You know, in the States, all we ever hear is bad stuff about Russia. It’s nice to see other (and lovely!) dimensions of such a controversial place.

It’s the same in the UK which is why I prefer going to see somewhere and making up my own mind. It’s all ‘politics and bullshit’ as I say

I went to Moscow about 13years for Christmas and went to train stations, so I can see these amazing mosaics and chandeliers. I agree with you that are beautiful Stations for sure and I could of wandered around for days. I think Kievskaya is definitely my favourite out of them all and I even have some similar pictures as you.

I imagine Moscow would have been a little different 13 years ago but these stations have probably always looked beautiful

Food and Footprints

You chose some great stations for this write up! Beautiful details in these stations and would love to visit them sometime. Particularly like the Komsomolskaya station with that yellow ceiling!

Thank you very much. Komsomolskaya seems to be a lot of peoples favourite stations too

Sumit Surai

Wow! Without the text I would have thought them to be some museum or gallery.

I know exactly what you mean!

Rosie Fluskey

Wow, it is just stunning! How does anyone get to work with so much to look at. I’m surprised at the very bourgeois-looking Komsomolskaya station. I would have thought it was all too Tzarist looking, but then I haven’t been to Russia yet lol. This has just made me want to go more!

Wow, that’s a lot of artwork. I wonder how old some of these pieces are?

Generally most of the stations are from 1940-1960 approximately. The later stations are more functional than style.

My mother-in-law was in Moscow fifty years ago and still raves about the metro stations. So far, I could not imagine much. But now! The pictures are great and I think it’s almost a pity that this splendor is underground. But for every user of the Metro can enjoy a free trip to the world of art. Susanne

True. It is like having a free trip to an art museum/gallery. I hope that you can one day visit Moscow and see for yourself.

Oh wow, I would never have known that these were metro stations. The ceilings remind me of how you need to look up sometimes, even in the commuter rush!

It is true about life in general, we just go from A to B looking directly in front of us instead of around us

Wow, I would have never guessed that these were stations. The decor is so pretty and not one I’m used to seeing at metro stations. Love the ceiling at The Komsomolskaya metro station.

They certainly don’t look like metro stations. The ceiling there is one of my favourites too!

The Bryson Tiller Tour 2024 (Minneapolis)

Get ready for an unforgettable experience at The Bryson Tiller Tour, taking place at Armory on June 28, 2024. The venue, located at 500 South 6th St, Minneapolis, MN, 55415, will come alive with Bryson Tiller's chart-topping hits like "Exchange," "Wild Thoughts," and "Inhale." This highly anticipated event promises a night filled with soulful melodies and captivating performances. Tickets for The Bryson Tiller Tour go on sale starting March 22, 2024, at 3:00 PM, and will be available until June 29, 2024, at 3:00 AM. Don't miss your chance to witness one of R&B's brightest stars in action. Mark your calendars and secure your spot to immerse yourself in a musical journey like no other. The Bryson Tiller Tour is set to be a spectacle that music enthusiasts won't want to miss!

Provided by Luisina | Published Mar 26, 2024

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Watch CBS News

Want to book a last-minute 2024 spring break trip? Experts share tips on saving money on travel

By Kris Van Cleave, Analisa Novak

Edited By Camille Knox

March 22, 2024 / 11:32 AM EDT / CBS News

As the countdown to spring break ticks closer, airlines are bracing for an unprecedented surge in travelers, with an estimated 167 million passengers expected to fly during March and April, marking a 6% increase from last year. But finding a deal may require some flexibility, experts say.

Among the millions looking to escape the daily grind is the Ayala family, who have chosen to spend their spring break soaking in the excitement of spring training in Arizona.

"It's our spring break, and they gotta see some players, get some signatures," said Angela Ayala.

Airports are bracing for the influx, with the TSA reporting a 6% increase in checkpoint activity over last year's already record pace. United Airlines, is expecting its busiest spring break ever and is planning for a 10% increase in passengers over 2023.

For the Lancaster family of Houston, this season marks their first international spring break. They chose Cancun as the destination.

"This is our first time traveling international on spring break with our daughter … so we're in for a treat," said Samantha Lancaster.

Finding a good deal, however, requires flexibility with travel dates and destinations, advises Lindsay Schwimer, a consumer travel expert with Hopper. Warm weather spots like Orlando, Las Vegas and Miami top the domestic charts, while Cancun, London and Punta Cana in the Dominican Republic lead internationally. Even so, bargains are still within reach, including notable deals from New York to Cancun for $250 round trip, Chicago to Dublin for under $500 and Los Angeles to Fort Lauderdale, Florida, for about $140.

"If you're eyeing Miami, maybe skip some of the more crowded beach destinations, consider a Fort Myers, a Tampa, a Fort Lauderdale, that's gonna help you save a little bit more and you'll avoid the crowds," said Schwimer.

Emily Kaufman, also known as The Travel Mom, said flexibility in travel plans is key when it comes to savings.

"You've gotta be flexible. You may be taking a road trip. You may be taking a cruise. It depends where the deals are," said Kaufman.

She noted that "cruises are a terrific value because the closer we get to the departure time, the less the price becomes."

She also advises travelers to explore discounts available through memberships such as the AARP, AAA and teacher's unions, or deals associated with being in the military or geared toward first responders.

"All of them get travel perks and benefits you might not realize you have," said Kaufman.

Kris Van Cleave is CBS News' senior transportation and national correspondent based in Phoenix.

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march madness

Prize fight in Memphis: No. 1 UH survives OT thriller after No. 9 Texas A&M erases 13-point lead

The Houston Cougars face the No. 4 Duke Blue Devils on Friday in Dallas.

MEMPHIS, Tennessee (KTRK) -- Head shots, knock downs to the floor, punches and counter-punches.

You would think a heavyweight boxing bout broke out in Memphis on Sunday night, but it was all part of the intensity of the No. 1 Houston Cougars' 100-95 overtime win over the No. 9 Texas A &M Aggies in the second round of March Madness' South Region.

The Coogs, two nights removed from a 40-point first-round blowout of the No. 16 Longwood Lancers, engaged in physical play underneath the hoop and used their brand of stifling defense that kept the Aggies at arms length for most of the game.

That was until the Aggies went on a 13-3 scoring run in the last minutes of regulation, including a buzzer-beating three-pointer by A &M's Andersson Garcia to bring it to 86-86.

Houston's stars came up big, with Emanuel Sharp leading the way with a career-high 30 points, including seven three-pointers.

Jamal Shead and L.J. Cryer added 21 and 20 points, respectively.

The big story, though, was the foul situation. Cryer and Ja'Vier Francis fouled out before overtime. Sharp and Shead fouled out in OT.

The victory gave the Cougars their fifth consecutive Sweet Sixteen trip. Houston faces the No. 4 Duke Blue Devils on Friday night in Dallas. Tip-off is scheduled for 8:39 p.m. CT.

Sunday's game was the second meeting this season between the two teams. The Cougars won the previous matchup in a 70-66 victory over the Aggies at the Toyota Center on Dec. 16, 2023.

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WORLD TRADE ORGANIZATION

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legal texts

AMENDED TRIPS AGREEMENT

Agreement on Trade-Related Aspects of Intellectual Property Rights (as amended on 23 January 2017)

The TRIPS Agreement is Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization , signed in Marrakesh, Morocco on 15 April 1994.

The TRIPS Agreement was amended through the Protocol of 6 December 2005 that entered into force on 23 January 2017. The amendment inserted a new Article 31 bis into the Agreement as well as an Annex and Appendix. These provide the legal basis for WTO members to grant special compulsory licences exclusively for the production and export of affordable generic medicines to other members that cannot domestically produce the needed medicines in sufficient quantities for their patients.

PREAMBLE to the Agreement on Trade-Related Aspects of Intellectual Property Rights

PART I General Provisions and Basic Principles

Part ii standards concerning the availability, scope and use of intellectual property rights.

1. Copyright and Related Rights

2. Trademarks

3. Geographical Indications

4. Industrial Designs

6. Layout-Designs (Topographies) of Integrated Circuits

7. Protection of Undisclosed Information

8. Control of Anti-Competitive Practices in Contractual Licences

PART III Enforcement of Intellectual Property Rights

1. General Obligations

2. Civil and Administrative Procedures and Remedies

3. Provisional Measures

4. Special Requirements Related to Border Measures

5. Criminal Procedures

PART IV Acquisition and Maintenance of Intellectual Property Rights and Related Inter-Partes Procedures

Part v dispute prevention and settlement, part vi transitional arrangements, part vii institutional arrangements; final provisions.

Annex and Appendix to the TRIPS Agreement

> Explanatory note

Download full text in: > Word format (31 pages; 150KB) > pdf format (33 pages; 194KB)

The texts reproduced in this section do not have the legal standing of the original documents which are entrusted and kept at the WTO Secretariat in Geneva.

Go to a basic explanation of the agreements ...
...or a more technical one
List of Abbreviations

'Join me or I'll join you': 5 takeaways from Biden and Trump's dueling border showdown

If voters wanted an early taste of the likely election rematch between President Joe Biden and Donald Trump, they need not look further than the showdown at the U.S.-Mexico border.

During rivaling trips to Texas 325 miles apart, Biden and Trump sparred in remarks aired within a half-hour of each other. They both took walks along parts of the border in Texas. And they took turns blaming each other in an extraordinary clash over surging migration eight months before the 2024 presidential election.

Perhaps most memorably , Biden challenged Trump to get behind border legislation the former president helped kill.

Here are five takeaways from the visits:

Biden to Republicans: 'Show a little spine'

As expected, Biden used his visit to Brownsville, Texas, to blame congressional Republicans for inaction on the border after they blocked legislation in the Senate that would have created some of the most aggressive border restrictions in a generation.

Prep for the polls: See who is running for president and compare where they stand on key issues in our Voter Guide

Republicans took their cues from Trump, who urged the defeat of the bill, denying Biden a major political win in an election year.

"Both houses supported this legislation until someone came along and said, 'Don't do that, it will benefit the incumbent,'" Biden said, referring to Trump. "That's a hell of a way to do business in America for such a serious problem."

The bill would establish a new “border emergency authority,” allowing the president to temporarily prohibit individuals from seeking asylum in the U.S. when daily border crossings exceed a daily average of 4,000 in any one-week period.

Among other provisions, the bill would also fund 100 new inspection machines to detect fentanyl at the border, 1,500 Border Patrol Agents and customs officers and 4.300 new asylum officers to speed up the review of asylum claims.

Biden called on congressional Republicans to "show a little spine" and reconsider the legislation. "Those senators who oppose it need to set politics aside and pass it on merit, not on whether it's going to benefit one party or benefit the other party," Biden said.

A striking split screen

The visits made for a striking split screen for a likely election rematch between Biden and Trump, who visited Eagle Pass, Texas.

While Biden talked about bipartisanship, Trump stuck to his hardline immigration pitch that helped fuel his entry into national politics. Trump has promised the mass deportation of undocumented immigrants if he returns to the White House

"This is a Joe Biden invasion," Trump said, flanked by Texas Gov. Greg Abbott and Brandon Judd, the president of the National Border Patrol Council union. "It's allowing thousands of people to come in from China, Iran, Yemen to Congo, Syria, and a lot of other nations − many nations are not very friendly to us."

Trump said the U.S. is being overrun by "Biden migrant crime," pointing above all to the death of Laken Riley, a 22-year-old nursing student whose body was found on a wooded trail at the University of Georgia. Republicans seized on the tragedy after a 26-year-old migrant from Venezuela was charged with her kidnapping and death.

"Biden will never say Laken Riley's name," Trump said. "But we will say it and we will remember."

Abbott blamed Biden for record-setting border crossings while hailing four Trump-era immigration policies: the end of "catch and release;" Title 42; the remain-in-Mexico policy; and border-wall spending.

"All Joe Biden had to do to secure the border was to keep in place what President Trump put in place in the first place," Abbott said. "But instead, what Joe Biden did, he signed executive orders eliminating all of the effective policies that President Trump put in place."

Biden's dare to Trump

Biden, speaking from inside a Border Patrol station, only once mentioned Trump by name in his prepared remarks. It came as he called on the former president to get behind the border bill.

"I understand my predecessor is in Eagle Pass today," Biden said. "Here's what I would say to Mr. Trump. Instead of playing politics with the issue, instead of telling members of Congress to block this legislation, join me or I'll join you in telling the Congress to pass this bipartisan border security bill. We can do it together."

Biden's visit marked his most public display yet of his new get-tough strategy on immigration.

Ahead of the presidential election, Biden has embraced stronger rhetoric on the border, seeking authority to "shut down" the border when it is overwhelmed and acknowledging the border is not secure.

By killing the border bill, Republicans gave Biden an opening to go from defense to offense against Trump on the border − an issue Republicans have historically used to attack Democrats.

"You know, and I know," Biden said, still referring to Trump, "it's the toughest, most efficient, most effective border security bill this country's ever seen."

No executive action announced

Biden did not announce any executive action as he continues to mull whether to address the border unilaterally.

"The fact of the matter is that the only enduring solution is legislation," Homeland Security Secretary Alejandro Mayorkas told reporters during the trip. "Actions taken outside of legislation are often met with litigation challenges in court."

Biden has been exploring executive action under Section 212(f) of the 1952 Immigration and Nationality Act to achieve similar restrictions as the legislation on asylum-seekers trying to enter the U.S. illegally. But Biden has not made a decision or even determined whether he has the legal authority to restrict asylum-seekers.

Even before any executive action is taken, progressive Democrats are pushing back, underscoring the delicate line Biden must walk as he navigates the border crisis in an election year.

The House Congressional Hispanic Caucus has said its members oppose unilateral attempts by the White House to overhaul the asylum system.

Why Brownsville?

By choosing Brownsville for his border visit, Biden did not go to the busiest stretch of the border.

That would have been Tucson , Arizona, which had 250,611 apprehensions in the area between October 2023 and January.

The Rio Grand Valley, where Brownsville is situated, had 76,436 apprehensions over the same period, making it a less active crossing site than the Eagle Pass area as well.

"He's not even going to the right place," Judd told The Daily Mail ahead of the visit. "He's going to Brownsville, Texas. The Rio Grande Valley has been very slow for the past, 11, 12 months."

Biden met with Border Patrol agents and local officials during his visit and walked with them on a gravel road looking over the border.

Mayorkas said Brownsville provided Biden an important glimpse into the border situation, crediting "enhanced efforts" by the Mexican government for the decline in migrant crossings the city is experiencing. Mayorkas said it resulted from conversations Biden and other administration officials had with Mexican President Andrés Manuel López Obrador in December.

In contrast, he said Tucson has seen an increase in border apprehensions because of patrolling difficulties in Sonora, a Mexican state directly south of Arizona.

Taylor Swift’s perfect yellow bikini from her Bahamas trip with Travis Kelce is somehow still in stock

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She wore an itsy bitsy teenie weenie yellow striped bikini.

Taylor Swift and Travis Kelce are both enjoying some time off from work together , and were spotted soaking up the sun in the Bahamas on Thursday.

The “Karma” singer, 34, who is on a brief break from her Eras Tour, enjoyed a PDA-packed dip in the surf and a stroll on the sand alongside her boyfriend while wearing a Montce bikini top ($143) and bottom ($94), seemingly in the brand’s Canary Stripe colorway.

Taylor Swift and Travis Kelce vacation on Harbour Island, Bahamas

Montce Lucy Bikini Top and Lulu Bikini Bottom

“Couldn’t be more excited to wake up this morning to see Taylor in Montce. She looks amazing in the bikini,” the brand’s owner and designer, Alexandra Grief, tells Page Six Style.

“She’s wearing our go-to Lulu bottom — a super versatile and flattering bottom that can be worn high on the leg for maximum flattery — and the Lucy top, a great-fitting underwire style for all sizes that features an adjustable tie-up detail in the front that can be used to add more support, or just for the cute bow.”

Montce’s suits have also been spotted on Sydney Sweeney, Shay Mitchell and Olivia Culpo, the latter of whom just debuted a collaboration with the brand .

And should yellow not be your color preference, Swift’s top and bottom are available in several other colors and patterns.

Kelce, 34, also opted for printed swimwear while splashing around in the clear blue Bahamian water, sporting blue shibori-inspired tie-dye trunks.

The Kansas City Chiefs tight end is certainly due for a relaxing vacation after winning the 2024 Super Bowl last month — and traveling around the world to watch his girlfriend perform in both Australia and Singapore .

The couple weren’t shy about showing off their love on the shore; the pair were snapped holding hands in the water, walking arm in arm and kissing on the beach while enjoying some beverages.

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They dried off with yellow towels and laid out in the sun next to each other on a seemingly private beach.

Kelce recently fueled engagement rumors — and even hinted at wanting a baby — on his podcast, “New Heights,” earlier this week.

He joked with brother Jason Kelce about lab-grown diamonds and lab-grown humans, although the Philadelphia Eagles quickly dismissed his statements as “fueling conspiracy theorists.”

Travis and Taylor’s vacation follows their quick trip to Los Angeles to attend Madonna’s high-security Oscars party , and precedes Swift’s return to the stage in May and Kelce’s summer training camp sessions in July.

Seems both will be returning to work with a tan.

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Trump Media soars in first day of public trading

A stock-market rush toward the parent company of truth social helped add billions of dollars to the former president’s net worth..

Former president Donald Trump’s social media start-up surged in its first day of trading as a public company Tuesday, a stock-market debut that helped deliver the Republican presidential candidate a multibillion-dollar fortune.

The newly merged Trump Media & Technology Group, which owns the social network Truth Social, saw its share price climb roughly 35 percent in its first morning on the Nasdaq exchange under its new ticker symbol, DJT — Trump’s initials.

The company took over the stock held by Digital World Acquisition, its merger partner, which saw its share price soar on Monday more than 30 percent. Shareholders on Friday approved the merger , which was first announced in 2021.

Trump owns 60 percent of Trump Media, or roughly 78 million shares, a stake now worth more than $5 billion.

The company’s valuation, however, stands at odds with its business performance. Trump Media earned about $3.4 million in revenue and lost $49 million in the first nine months of 2023, a Securities and Exchange Commission filing shows.

By noon, the Trump company’s shares were trading for about $67 — around the same price as the discussion-board platform Reddit, which went public last week, has tens of millions more active users than Truth Social and generated more than $800 million in revenue last year.

The trading frenzy has helped make the company one of the largest parts of Trump’s net worth, according to Bloomberg, which said Monday was “the single-greatest day on record for the former president’s wealth” and had elevated him for the first time onto its list of the 500 richest people.

Trump, however, can’t sell his shares or use them as collateral for six months due to a common business-deal provision, known as a lockup, designed to give investors confidence that major shareholders won’t quickly cash out once a deal closes.

When Trump Media and Digital World announced their plans to merge in 2021, Digital World’s share price skyrocketed too, to a high of $175 a share. But the stock plunged in the days afterward and faced years of low prices and volatility due in part to merger delays. Its shares were selling for about $17 at the start of this year.

Roughly 400,000 retail investors bought shares in Digital World, but the official changeover to Trump Media has seemingly motivated a new class of investor. On Reddit’s prominent “WallStreetBets” subreddit, many posters have called to pour money into the “meme stock” for short-term gains: “LETS GO TO THE MOON!!” one post Monday said.

Trump Media chief executive Devin Nunes, a former Republican congressman from California, said in a statement Monday that the company will work “to reclaim the Internet from Big Tech censors” and “stand up to the ever-growing army of speech suppressors.”

The merger unlocked for Trump Media more than $300 million that Digital World raised from investors in 2021 and which the company has said it intends to use toward expanding the online infrastructure supporting its main source of revenue, ads on Truth Social.

The company, however, is far smaller than its social media peers, which also sell ads. Truth Social’s most popular user, Trump , currently has 6.7 million followers. Digital World said in a prospectus last month that the platform had received 8.9 million sign-ups since launching in 2022.

For comparison, X said last year it had more than 540 million monthly active users. Meta’s new social network, Threads, said in July it had signed up 100 million new users in five days.

In the prospectus , Digital World said Trump Media believed that “adhering to traditional key performance indicators” — common measurements for the industry, like sign-ups and active users — could “divert its focus” from the growth of its business.

Trump Media “believes that focusing on these KPIs might not align with the best interests of [Trump Media] or its shareholders,” the prospectus said.

Trump Media’s soaring value on paper is far higher than Trump’s own assessment of it last April, when the merger process was delayed. In a campaign financial disclosure filing that month, Trump said his stake in the company was worth between $5 million and $25 million.

Truth Social is Trump’s central online megaphone, and many of its posters are Trump supporters who share conservative memes, echo his talking points and attack his political opponents. Trump Media is based in Sarasota, Fla., and says on LinkedIn it has between 51 and 200 employees.

Trump has invested no money in the company, which was launched in early 2021 by Andy Litinsky and Wes Moss, two former contestants on Trump’s television show “The Apprentice.” The men are now suing Trump Media, claiming the company had worked to dilute their shares.

Trump Media will assume the stock ticker symbol of Trump’s last publicly traded company, Trump Hotels & Casino Resorts . The company lost more than $1 billion during Trump’s time as chairman and filed for bankruptcy in 2004, The Post reported in 2016.

The merger agreement says Trump could waive his six-month lockup provision with approval from Trump Media’s board, whose directors now include Nunes, Trump’s son Donald Trump Jr., and several high-profile Trump allies, including Robert E. Lighthizer, Linda McMahon and Kash Patel, an SEC filing shows.

But allowing Trump to cash out early could flood the market and erode the company’s share price, financial experts told The Washington Post.

In a Truth Social post on Saturday, one Digital World investor, Chad Nedohin, said a stock drop on Friday was the fault of “MASSIVE market manipulation” and “fake news” reporting about the lockup. Nedohin also insisted Trump would never sell his shares, because “such a move would be TERRIBLE for Trump and would destroy the value in his own company.”

Trump, however, could use the money to pay toward some of his hundreds of millions of dollars in legal penalties. A New York appeals court panel said Monday that Trump would need to post a $175 million bond within 10 days to delay enforcement related to his $454 million civil-fraud judgment, including the potential seizures of his assets.

On Truth Social, Trump posted on Monday a “beautiful” message he said he received from a supporter, which said, “It’s ironic that Christ walked through His greatest persecution the very week they are trying to steal your property from you.”

The stock’s performance has helped highlight how investors and influence-seekers could now give money to a public company mostly owned by a former president and presumptive presidential nominee.

Though Trump Media will face more financial-disclosure requirements as a public company, major shareholders will not have to immediately publicly disclose their investments.

A report released in January by Democrats on the House Oversight Committee found that Trump’s businesses had received at least $7.8 million from foreign governments and officials during his presidency.

On the Reddit investing forum, one poster wrote on Monday that anyone betting against the company “doesn’t understand how many actors in the [U.S.] and around the world have an interest in giving money to DJT.”

Noah Bookbinder, the chief of Citizens for Responsibility and Ethics in Washington, a progressive government watchdog group, said “Trump for years has been very open about the fact that he is receptive to being influenced by anyone who will support his businesses … and this seems like an opportunity that is tailor-made for that.”

“We have every reason to think he is going to look favorably on anyone who benefits him financially,” Bookbinder added.

Shannon Devine, a Trump Media spokeswoman, said in a statement that the claim was a “new set of inane conspiracy theories about Truth Social.”

Country Living

The 8 Coolest Train Trips You Can Take

Posted: March 25, 2024 | Last updated: March 25, 2024

<p>With air travel continuing to be more and more unstable, many are reverting to the old ways of transportation for their next getaway—<a href="https://www.countryliving.com/life/travel/a44174207/us-road-trip-perfect-70-degree-weather/">road trips</a>, cruises, and, yes, <a href="https://www.countryliving.com/life/travel/g4742/fall-foliage-train-rides/">train travel</a>. Both in the United States and worldwide, there are many scenic routes that are worth the lengthier journey. Imagine hopping on and off a train between vineyards in Napa, ascending more than 10,000 feet for a stellar view of one of the world’s most famous mountains, or enjoying a murder mystery-themed train that doesn't skimp on either luxury or entertainment.</p><p>Whatever your preferred journey may be, these eight train trips are definitely bucket list-worthy.</p>

With air travel continuing to be more and more unstable, many are reverting to the old ways of transportation for their next getaway— road trips , cruises, and, yes, train travel . Both in the United States and worldwide, there are many scenic routes that are worth the lengthier journey. Imagine hopping on and off a train between vineyards in Napa, ascending more than 10,000 feet for a stellar view of one of the world’s most famous mountains, or enjoying a murder mystery-themed train that doesn't skimp on either luxury or entertainment.

Whatever your preferred journey may be, these eight train trips are definitely bucket list-worthy.

<p>Switzerland is synonymous with train travel, thanks in part to the impeccably clean coaches, reliably accurate timetables, and striking landscapes found in every region. Visit Zermatt, a car-free village at the base of the Matterhorn. While the city itself offers an impressive view of the mountain, a ride aboard the Gornergrat-Bahn climbs more than 10,000 feet into the Alps for an even better view. From here, you can view glaciers, ski runs, and the amazing Alps as far as the eye can see, plus enjoy immersive experiences, an onsite restaurant, and more.</p>

1) Gornergrat-Bahn

Switzerland is synonymous with train travel, thanks in part to the impeccably clean coaches, reliably accurate timetables, and striking landscapes found in every region. Visit Zermatt, a car-free village at the base of the Matterhorn. While the city itself offers an impressive view of the mountain, a ride aboard the Gornergrat-Bahn climbs more than 10,000 feet into the Alps for an even better view. From here, you can view glaciers, ski runs, and the amazing Alps as far as the eye can see, plus enjoy immersive experiences, an onsite restaurant, and more.

<p>Belmond trains are in a class of luxury all their own, and while any route is sure to memorable, this <a href="https://www.belmond.com/trains/europe/uk/belmond-british-pullman/journeys/murder-mystery-lunch?adults=2&departureDate=2023-11-30&packageCode=PMM">England-based</a> journey transports passengers back to the 1950s. While sipping champagne and enjoying a five-course meal, things begin to seem amiss as costumed actors wander the cars adding to the mystery. Spend your time both enjoying the Kent countryside and helping solve a murder in this clever immersive experience.</p>

2) British Pullman

Belmond trains are in a class of luxury all their own, and while any route is sure to memorable, this England-based journey transports passengers back to the 1950s. While sipping champagne and enjoying a five-course meal, things begin to seem amiss as costumed actors wander the cars adding to the mystery. Spend your time both enjoying the Kent countryside and helping solve a murder in this clever immersive experience.

<p>The Rocky Mountaineer operates luxury train routes throughout the Rocky Mountains in both the United States and Canada. You can’t go wrong with any journey, but the “<a href="https://www.rockymountaineer.com/train-routes/first-passage-west">First Passage to the West</a>” is extra special. Beginning in Vancouver, passengers can see snow-capped mountains and glistening waters before routing through the lakes in Kamloops. Ultimately, passengers arrive in Banff National Park and the beautiful Lake Louise.</p>

3) The Rocky Mountaineer’s First Passage to the West

The Rocky Mountaineer operates luxury train routes throughout the Rocky Mountains in both the United States and Canada. You can’t go wrong with any journey, but the “ First Passage to the West ” is extra special. Beginning in Vancouver, passengers can see snow-capped mountains and glistening waters before routing through the lakes in Kamloops. Ultimately, passengers arrive in Banff National Park and the beautiful Lake Louise.

4) GoldenPass Express

Switzerland has no shortage of stunning routes, but the brand new GoldenPass Express journey shouldn’t be missed. Connecting the Interlaken region (which is largely German) to Montreux (which is more French), the train introduces innovation in both technology and design, as well as a new passenger class. The Prestige Class includes seats that heat, recline, and even swivel so passengers can change their view. The route is included with the popular Swiss Travel Pass.

<p>You’ll need to leave the keys behind during a visit to Napa Valley’s historic vineyards, so the <a href="https://www.winetrain.com/">Wine Train</a> has your transportation covered. Board a 100 year old train car for a six-hour journey through the valley, stopping at a handful of prominent vineyards for tastings along the way. While on board, enjoy a welcome glass of bubbles, a four-course meal, and plush interiors while cruising through stunning landscapes.</p>

5) Napa Valley Wine Train

You’ll need to leave the keys behind during a visit to Napa Valley’s historic vineyards, so the Wine Train has your transportation covered. Board a 100 year old train car for a six-hour journey through the valley, stopping at a handful of prominent vineyards for tastings along the way. While on board, enjoy a welcome glass of bubbles, a four-course meal, and plush interiors while cruising through stunning landscapes.

<p>The innovation of this trip alone earns it a spot on the list. While the interiors may be comparable to a commuter airplane, the <a href="https://go.redirectingat.com?id=74968X1553576&url=https%3A%2F%2Fwww.eurostar.com%2Fuk-en%2Ftrain%2Flondon-to-paris&sref=https%3A%2F%2Fwww.countryliving.com%2Flife%2Ftravel%2Fg45653170%2Fbest-train-trips-you-can-take%2F">high-speed journey</a> connects two bustling cities in a trip that takes just over two hours. The journey is possible thanks to the Channel Tunnel, which opened in 1994 and burrows 75 meters underneath the English Channel. At 31.5 miles long, it’s the world’s longest undersea tunnel. </p>

6) Eurostar from London to Paris

The innovation of this trip alone earns it a spot on the list. While the interiors may be comparable to a commuter airplane, the high-speed journey connects two bustling cities in a trip that takes just over two hours. The journey is possible thanks to the Channel Tunnel, which opened in 1994 and burrows 75 meters underneath the English Channel. At 31.5 miles long, it’s the world’s longest undersea tunnel.

<p>A tale as old as time, the Orient Express began operation in 1883, charming travelers with its unparalleled decor and quality dining options. While a replicated experience won’t be available until 2025, climb aboard the <a href="https://www.orient-express.com/la-dolce-vita/a-dream-train/">La Dolce Vita</a> journey through Italy operated by the same company. Destination options include stops in Venice, Rome, Siena, Portofino, Montalcino, and more.</p>

7) The Orient Express La Dolce Vita

A tale as old as time, the Orient Express began operation in 1883, charming travelers with its unparalleled decor and quality dining options. While a replicated experience won’t be available until 2025, climb aboard the La Dolce Vita journey through Italy operated by the same company. Destination options include stops in Venice, Rome, Siena, Portofino, Montalcino, and more.

<p>The <a href="https://www.belmond.com/trains/south-america/peru/belmond-hiram-bingham/">Hiram Bingham</a> train from Belmond is an ultra-lux way to travel to the Lost City of the Incas. Beginning in Cusco, Peru, traveling through the Sacred Valley, this roundtrip adventure ultimately arrives at the entrance of Machu Picchu. You'll also enjoy a cocktail, brunch and gourmet Peruvian lunch, as well as stunning views both in the early morning and evening.</p>

8) Hiram Bingham

The Hiram Bingham train from Belmond is an ultra-lux way to travel to the Lost City of the Incas. Beginning in Cusco, Peru, traveling through the Sacred Valley, this roundtrip adventure ultimately arrives at the entrance of Machu Picchu. You'll also enjoy a cocktail, brunch and gourmet Peruvian lunch, as well as stunning views both in the early morning and evening.

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COMMENTS

WTO
2. For the purposes of this Agreement, the term "intellectual property" refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II. 3. Members shall accord the treatment provided for in this Agreement to the nationals of other Members. (1) In respect of the relevant intellectual property right ...
WTO
1. A patent shall confer on its owner the following exclusive rights: (a) where the subject matter of a patent is a product, to prevent third parties not having the owner's consent from the acts of: making, using, offering for sale, selling, or importing (6) for these purposes that product; (b) where the subject matter of a patent is a ...
WTO
Read a summary of the TRIPS Agreement > interpretation. Download full text in: > Word format (31 pages; 150KB) > pdf format . The texts reproduced in this section do not have the legal standing of the original documents which are entrusted and kept at the WTO Secretariat in Geneva.
TRIPS
TRIPS. Article 6 - Exhaustion. For the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 3 and 4 nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights. Previous section ...
Checklist of Issues on Enforcement under TRIPS Art. 63.2
TRIPS Review Materials. Review of TRIPS Implementing Legislation; Review under Art. 24.2 - checklist; Review of Provisions of Art. 27.3(b) - checklist; TRIPS-related Reports. Developed Country Members' Reports on Art. 66.2 (Technology Transfer to LDCs) Reports on Technical Cooperation Activities under Art. 67; TRIPS Council. TRIPS Council ...
Ch.2 Nature and Scope of Obligations
This chapter examines the nature and scope of obligations in the Trade-related Aspects of Intellectual Property Rights (TRIPS) Agreement. The first sentence of Article 1.1 of the TRIPS Agreement re-states a basic principle of international law: pacta sunt servanda. It makes clear that the obligations imposed by the Agreement are to be given effect by Members within their respective jurisdictions.
TRIPS Agreement
TRIPS was negotiated during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1986-1994. Its inclusion was the culmination of a program of intense lobbying by the United States by the International Intellectual Property Alliance, supported by the European Union, Japan and other developed nations. Campaigns of unilateral economic encouragement under the Generalized ...
Interpreting the Flexibilities Under the TRIPS Agreement
The terminology 'TRIPS flexibilities' does include the exemption for LDCs, but it also encompasses possible variations in the manner in which the TRIPS Agreement's provisions are interpreted and implemented as they are applied to countries actually subject to them. Such terminology was used for the first time with this latter meaning in the context of the WTO in paragraph 4 of the Doha ...
TRIPS
Like several other WTO agreements, the TRIPS Agreement also creates general obligations of 'national treatment' and 'MFN treatment'. With regard to IP protection, subject to permitted exceptions (again defined in part by reference to existing IP treaties), Members agree to accord to the nationals of other Members 'treatment no less favourable' than they accord to their own ...
Agreement on Trade-Related Aspects of Intellectual Property ...
The TRIPS Agreement binds all Members of the WTO (see Article II.2 of the WTO Agreement)." The TRIPS Agreement was amended through the Protocol of 6 December 2005 that entered into force on 23 January 2017. The amendment inserted a new Article 31bis into the Agreement as well as an Annex and Appendix.
Chapter 6 TRIPS Agreement: The Negotiating History of the TRIPS ...
However, even with such regulations, adjudication by the icj was not effective. 309. The trips Agreement stands unique from the other wto Agreements by way of acknowledging individual rights. 310 Thus at one end it precludes discrimination between international trade 311 and on the other it allows the members necessary flexibility to countries to interpret crucial substantive issues like ...
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The Moscow Metro Museum of Art: 10 Must-See Stations
Take a look at (5)Dostoevskaya Station on the northern segment of Light Green/#10 line then change directions and head south to (6)Chkalovskaya, which offers a transfer to the Dark Blue/#3 line, going west, away from the city center. Have a look (7)Elektroskaya Station before backtracking into the center of Moscow, stopping off at (8)Baumskaya ...
7 Cruisers That Are Perfect For Touring (6 That Are Made For Short Trips)
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McAllister Recreation Center announces new "Daycation" monthly bus trips
Registration is now open to the public for the first three "Daycation" bus trips online at LafayetteParks.org. "Daycation" bus trips are confirmed with full payment and are non-refundable. You must be 18 or older to register for the trips. Check-in will be at McAllister Recreation Center at 2351 N. 20 Street Lafayette, IN 47904.
The Most Beautiful Stations on the Moscow Metro
But for every user of the Metro can enjoy a free trip to the world of art. Susanne. Reply Damien April 11, 2018 at 22:11. True. It is like having a free trip to an art museum/gallery. I hope that you can one day visit Moscow and see for yourself. Reply AMBER April 9, 2018 at 12:25.
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AMENDED TRIPS AGREEMENT. Agreement on Trade-Related Aspects of Intellectual Property Rights (as amended on 23 January 2017) The TRIPS Agreement is Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh, Morocco on 15 April 1994.. The TRIPS Agreement was amended through the Protocol of 6 December 2005 that entered into force on 23 January 2017.
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Whatever your preferred journey may be, these eight train trips are definitely bucket list-worthy. Suphanat Wongsanuphat - Getty Images 1) Gornergrat-Bahn.