Despite the relevance of issues in its agenda for developing countries, discussions in the Council for TRIPS have been increasingly limited and subdued. In 2004, the run-up to the adoption of the General Council Decision on the Doha Work Program on 1 August 2004 (July Framework) rightly occupied the attention of World Trade Organization (WTO) Members, but even in its wake discussions in the Council for TRIPS were only slightly more pronounced.1 Another factor in the diminishing profile of discussion regarding the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement) is of course the increasing political relevance of negotiations at the World Intellectual Property Organization (WIPO) and at the bilateral level.2 The focus of developing countries and civil society on these latter negotiations is logical as they are mostly designed by developed countries to increase levels of intellectual property protection and circumvent the options, flexibilities, and unresolved issues present in the WTO system. Nevertheless, as the intellectual property and development debate broadens and the challenge of coordinating strategies and positions increases, the original piece of the puzzle – the TRIPS Agreement – is often critically overlooked.
The TRIPS Agreement remains the most comprehensive multilateral agreement on intellectual property. It still provides the basis for most other ongoing international intellectual property negotiations. In addition, it continues to have serious gaps and failures, as well as opportunities to address some of these problems. Several questions thus need to be considered as the Hong Kong Ministerial draws near: Are the items on the agenda of the Council for TRIPS still considered crucial for development? What are the potential and desired outcomes? What work can and should be done on these issues? How can developing countries improve their coordination and effectiveness in these discussions? How can civil society best support their efforts? Furthermore, questions arise as to the long-term perspective for the TRIPS Agreement: Given the growing web of intellectual property-related negotiations, what is now the role of the Council for TRIPS? What are the prospects for the TRIPS Agreement?
The present note, while not intending to answer all of these questions, does aim to present some strategic considerations for negotiations and discussions at the Council for TRIPS in the run-up to the Ministerial Conference in Hong Kong in December 2005, as well as in the longer term. After this introduction, Section B of the note provides a brief overview of the work conducted in the Council for TRIPS in 2004. Section C then considers possible strategies for the intellectual property and development agenda in the WTO in 2005 and beyond. Finally, Section D offers some concluding thoughts.