Ruse-Khan, Henning Grosse --- "Assessing the Need for a General Public Interest Exception in the TRIPS Agreement" [2011] ELECD 205; in Kur, Annette (ed), "Intellectual Property Rights in a Fair World Trade System" (Edward Elgar Publishing, 2011)

Book Title: Intellectual Property Rights in a Fair World Trade System

Editor(s): Kur, Annette

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849800099

Section: Chapter 4

Section Title: Assessing the Need for a General Public Interest Exception in the TRIPS Agreement

Author(s): Ruse-Khan, Henning Grosse

Number of pages: 41

Extract:

4. Assessing the need for a general
public interest exception in the
TRIPS Agreement
Henning Grosse Ruse-Khan*

This chapter examines the scope of the policy space to integrate other
economic, social and environmental concerns under the World Trade
Organization's (WTO) Agreement on Trade Related Aspects of
Intellectual Property Protection (TRIPS).1 It does this by comparing the
amount of discretion available for domestic public interest measures in
the two other core areas of WTO regulation: trade in goods and services.
The chapter concludes that the notion of general exceptions under the
General Agreement on Tariffs and Trade (GATT)2 and under the General
Agreement on Trade in Services (GATS)3 finds no equivalence in TRIPS.
Still, an equivalent amount of policy space can be achieved: by taking the
TRIPS balancing objective and the WTO sustainable development objec-
tive seriously in the process of TRIPS interpretation and implementation.
This opens significant room to integrate economic, social and environmen-
tal concerns in intellectual property (IP) regulation and decision-making.
It coincides with the approach all WTO Members agreed to in para.4, 5
(a) of the Doha Declaration on the TRIPS Agreement and Public Health.
As I have examined elsewhere, TRIPS, GATT and GATS can have an



* This chapter is a condensed version of a Research Paper prepared for the
South Centre. I wish to thank Xuan Li, Hanns Ullrich, as well as Annette Kur,
Marianne Levin and all other members of the IP in Transition project for their
comments ...