The WTO, WIPO and the TRIPS Council

1. The World Trade Organization

Established by the Marrakesh Agreement of 15 April 1994, in force on 1 January 1995, at Geneva. The TRIPS Agreement is Annex 1C and binds every member as part of the “single undertaking”: a country cannot join the WTO for goods trade without accepting TRIPS. That linkage is why developing countries accepted IP standards they had resisted at WIPO.

• Ministerial Conference: the highest body, meeting at least every two years (Doha 2001; Geneva MC12 in 2022; Abu Dhabi MC13 in 2024).
• General Council: acts between conferences, and also sits as the Dispute Settlement Body and the Trade Policy Review Body.
• Councils for Trade in Goods, Trade in Services and TRIPS (Article IV:5).
• Decisions by consensus in practice. Authoritative interpretations need a three-fourths majority (Article IX:2); waivers need three-fourths (Article IX:3); amendments follow Article X (Article 31bis came into force after two-thirds of members accepted it).

Dispute settlement under the Dispute Settlement Understanding: consultations, panels, appeal to the Appellate Body, and authorised retaliation, including cross-retaliation across agreements. Since December 2019 the Appellate Body has had no members because the United States has blocked appointments; appeals “into the void” can stall a panel report. Some members use the Multi-Party Interim Appeal Arbitration Arrangement (2020); India has not joined it.

TRIPS disputes relevant to this paper:

1. India — Patent Protection for Pharmaceutical and Agricultural Chemical Products (complaint by the US; Appellate Body, 1997): India had to set up a proper “mailbox” for product patent applications and give exclusive marketing rights during the transition (Article 70.8 and 70.9), leading to the Patents (Amendment) Act 1999.
2. Canada — Pharmaceutical Patents (2000): the regulatory review exception was allowed, stockpiling was not.
3. EU and a Member State — Seizure of Generic Drugs in Transit (India and Brazil, 2010): Dutch customs had seized Indian generics passing through Europe to Latin America and Africa; the dispute was settled in 2011 when the EU agreed to change its customs rules.
4. Australia — Tobacco Plain Packaging (panel 2018, Appellate Body 2020): plain packaging was upheld as a justifiable public health measure under the TRIPS trade mark provisions, read in the light of Articles 7 and 8 and the Doha Declaration.

2. The TRIPS Council

Article 68: the Council monitors the operation of the Agreement and members’ compliance, affords opportunities for consultation, carries out tasks assigned by members, and assists in dispute settlement; it may consult WIPO and other sources. Its work:

• reviewing members’ laws notified under Article 63.2;
• the review of Article 27(3)(b) and, under Doha paragraph 19, the relationship with the CBD and traditional knowledge, including the disclosure-of-origin proposals;
• the paragraph 6 solution of 2003 and the Article 31bis amendment of 2005;
• annual reports by developed members on Article 66.2 incentives for technology transfer to least-developed members, and extension of LDC transition periods (to 2033 for pharmaceuticals and 2034 generally);
• the moratorium on non-violation complaints under TRIPS (Article 64), renewed at each Ministerial Conference; developing members fear such complaints could be used against use of the flexibilities;
• the COVID-19 waiver proposal of India and South Africa (October 2020), debated in the Council for well over a year before the narrower MC12 Ministerial Decision of June 2022; and
• agenda items on IP and innovation, and on IP and the public interest, raised by different groups of members.

The Council has observers, including WIPO, WHO and UNCTAD, but it is a body of trade officials; the CBD Secretariat’s request for observer status has long been blocked. Human rights bodies have no formal role.

3. The World Intellectual Property Organization

Established by the Convention signed at Stockholm on 14 July 1967, in force in 1970, at Geneva. It succeeded BIRPI (1893), which had administered the Paris and Berne Conventions. It became a UN specialised agency in 1974; the agreement with the UN asks it to promote creative intellectual activity and to facilitate the transfer of technology related to industrial property to developing countries.

• Organs: the General Assembly, the Conference, the Coordination Committee and the International Bureau headed by the Director General.
• Treaties and services: it administers the Paris, Berne, Rome, PCT, Madrid, Hague, Lisbon, Budapest and other treaties, and runs the global filing systems for patents (PCT), marks (Madrid) and designs (Hague), which fund most of its budget.
• Committees: the Standing Committees on patents (SCP) and on copyright (SCCR); the Intergovernmental Committee on IP and Genetic Resources, Traditional Knowledge and Folklore (IGC), set up in 2000; and the Committee on Development and IP (CDIP), set up in 2007.
• The Development Agenda (2007): 45 recommendations on technical assistance, norm-setting that preserves flexibilities and the public domain, technology transfer and access to knowledge.
• Treaties with a human rights purpose: the Marrakesh Treaty (2013, in force 2016) requiring copyright exceptions for accessible-format copies for blind and visually impaired persons, which India was the first country to ratify; and the Treaty on IP, Genetic Resources and Associated Traditional Knowledge (May 2024).
• Platforms: WIPO GREEN (2013) for environmental technology, WIPO Re:Search for neglected tropical diseases, and the WIPO Arbitration and Mediation Center.
• Cooperation with the WTO: the WIPO–WTO Agreement of 1995 on notification of laws and technical assistance to developing countries.

4. Comparing the forums

Forum shifting. Developed countries moved IP from WIPO to the GATT in the 1980s to get binding standards and enforcement (Susan Sell’s Private Power, Public Law and Drahos and Braithwaite’s Information Feudalism, both on the reference list, trace how a small group of US companies drove this). After TRIPS, they moved to bilateral trade agreements for TRIPS-plus rules. Developing countries in turn shifted to WIPO (Development Agenda), WHO, the CBD and the human rights bodies to press for balance. Laurence Helfer calls this “regime shifting”.

How this is examined

Likely long questions: “Discuss the role of WTO and WIPO in the protection of IPR and their impact on human rights,” “Examine the functions of the TRIPS Council,” or “Compare WIPO and the WTO as forums for international IP norm-making.” Short notes: the TRIPS Council; the WIPO Development Agenda; the Marrakesh Treaty; the IGC; the India — Patents dispute. Use the comparison table and close with the forum-shifting argument.