(2000; 91 pages)
2.5.2 Development of TRIPs-compliant legislation in developing countries
While experience with the actual implementation of TRIPs in developing countries is limited, a number of observations can be made based on countries’ preparations for becoming “TRIPs compliant”:
• As mentioned earlier, TRIPs leaves substantial room for an implementation in a way which takes specific national policies and priorities into account. This flexibility is built into the TRIPs Agreement. Developing countries therefore should implement the TRIPs while truly taking into account Article 1.1 of the Agreement, which provides that members are free “to determine the appropriate method of implementing the provisions of this agreement within their own legal system and practice”.
• Efforts related to the implementation of the TRIPs Agreement will not end by the end of the transitional periods, since part 3 of the TRIPs Agreement provides minimum standards for the enforcement of IPR protection. The workload and pressure on the legal system of developing countries, related to enforcement, will only begin after the end of the transitional periods.
• Implementation will reach beyond the intellectual property offices, since the enforcement rules included in TRIPs may require the revision of national laws in respect of civil, criminal and administrative procedures as well as a revision of the role of police and customs authorities. Thus, TRIPs enforcement should be part of a wider approach which comprehensively strengthens the legal and law enforcement infrastructures.
A final important observation relates to post-TRIPs era: the legal structure of TRIPs emerged from and belongs to the legal and historical traditions of developed countries. In fact TRIPs has been described as reflecting the legal culture, paradigms and interests of industrialized nations. However often IP has been equated with TRIPs and it is important to make a distinction. IP does not have to be contradictory to the policy objectives of developing countries; in fact, some believe that increased protection of intellectual property rights may enhance the achievement of those objectives. The development IP rights which are of interest to developing countries, covering their knowledge base and information resources, may make IP a more positive discipline for these countries and can present an important aspect of sustaining the effectiveness and acceptance of IP systems worldwide. Specifically, a lot of interest has been expressed on the part of developing countries for standards providing for the protection of traditional medicine and know-how and biodiversity.