The Road from TRIPS-Minus, to TRIPS, to TRIPS-Plus

Implications of IPRS for the Arab World

Mohammed EL-SAID*

I. INTRODUCTION

The advent of the World Trade Organization (WTO) in 1994 marked a new beginning in international trade and economic relations. The WTO’S main components, the General Agreement on Tariffs and Trade (GATT), the General Agreement on Trade in Services (GATS) and the Trade-Related Aspects of Intellectual Property Rights (TRIPS), represent today the main pillars of the “new global economic order”. The conclusion of the TRIPS Agreement came about as a result of the developed countries’ relentless efforts driven by their domestic interest groups to include the protection of intellectual property rights under the multilateral forum.’ It is not surprising therefore that the TRIPS Agreement was regarded as the “most contentious and anomalous component of the Uruguay Round” of trade negotiations.2 Almost a decade after the WTO creation, there continues to be a lack of agreement and controversy over the expected benefits of this Organization, including its TRIPS Agreement.3 While proponents of the WTO have labelled it as “the greatest trade agreement in history”,4 opponents view it as a mere ‘‘TRAP’’ to both the developed and developing countries.5

The TRIPS Agreement represents the most comprehensive agreement ever to be concluded in the field of IPRs. It contains provisions which lay down universal minimum standards for each protected branch of intellectual property rights including protection of copyrights, patents, trademarks, geographical indications, layout-designs, trade secrets and unfair competition.

* Research Fellow, Faculty of Law, University of Manchester, UK. The author may be contacted at: cmelsaid@hotmail.com). Agreement on Trade-Related Aspects of Intellectual Property Rights, April 1994, The Marrakesh

Agreement Establishmg the World Trade Organization. Available at: www.wto.org/english/docs-e/legal-e/ 27-trips.pd6.

* G. Dunkley, The Free Trade Adventure: The WTO, the Uruguay Round and Globalisatiorr-A Critique, Zed Books, Third World Network, New York, 2000, at 69.

3 See M. Trebilock and R. Howse, The Regulntiot? ofInternntional Trade, 2nd edition, Routledge, London, 1999.

4 Statement by Peter Sutterland, GATT Director-General, in Dunkley, supra, footnote 2, at 3. 5 D. Chisum, commenting on why the term TRIP was selected instead of “why isn’t it ‘TRAP’, which night

be more descriptive”, Rernarks by Professor Chisum, 22 VanderbiltJournal for Transnauonal Law 2, 1989,341 at 342.

54 THE JOURNAL OF WORLD INTELLECTUAL. PROPERTY

The TRIPS Agreement is part of a “package” to which those countries seeking WTO membership have to adhere. Hence, countries seeking to join WTO have to accept and implement all obligations as required under TRIPS, GATS and GATT.~ Hence this called for the incorporation, into domestic legislations, of the requirements of the TRIPS Agreement even before signing up to the Organization. To cope with the short-term costs and to enable Member States to prepare their accession to the WTO, transition periods were agreed upon and provided during the Uruguay Round of trade negotiations which was concluded in 1994.7 These periods correspond to each country’s level of development and economic prosperity. Accordingly, five- and ten-year transition periods were granted to developing and least-developed countries (LDCS) respectively, to bring their IPR protection into conformity with TRIPS standards while the developed countries were awarded one year to implement the TRIPS Agreement.8

However, in recent years, a new development in the international regulation of IPRs emerged: it represents the latest wave of shifting the discussion on issues related to IPR protection from the ambit of the multilateral framework to a more forceful one-to-one system.9 This wave was clearly manifested by the growing tide of recent bilateral trade and investment agreements between developed and developing nations.10

This article sheds light on the evolution offree trade agreements (FTAS) and the IPR protection incorporated within such agreements. The emphasis will be on the latest free trade and investment agreements concluded between the United States and the European Union (EU) with the Arab world and their “TRIPS-Plus’’ nature. The article argues that FTAS are being used as political instruments to reward allies while, at the same time, enhancing the protection of intellectual property rights globally beyond the agreed levels of the TRIPS Agreement, hence resulting in a negative effect on both the developing and the Arab countries. This will circumvent and hinder the efforts of these countries to acquire the desired levels of technology and development.

11. THE TRIPS BARGAIN

The need to protect intellectual property rights on a global scale came mainly as a result of increased pressures from the governments of Western industrialized Countries, steered by their giant enterprises and multinationals, which were arguing that

6 TRIPS Agreement, Article 72 provides: “Reservations may not be entered in respect of any of the provisions of this Agreement without the consent of the other Members.”

7 Praga comments on this by saying that: “ ... the TRIPS bad effects will be diluted by the transitional periods.” C . Primo Braga, Trade-Related Intellectid Properfy Issues: T h e Uruguay Round Agreement arzd its Economic Implications, in W. Martin and A. Winters (eds.), The Uruguay Round and the Developing Countries, Chapter 12, Cambridge, Cambridge University Press, 1996, 341 at 367.

* TRIPS Agreement, Articles 65-66. However, in the WTO Ministerial Meeting in Doha in 2001, least-developed countries were granted additional 10-year transition periods up until 201 6 for pharmaceutical product patents.

L. Helfer, Regime Shijing: T h e TRIPS Agreement and New Dynamics o j International Intellectual Property Lawmaking, 29 Yale Journal of International Law 1, 2004, 1.

1” P. Drahos, Developing Countries and International Intellectual Property Standadset t ing, 5 J.W.I.P. 5, September 2002.765.

IMPLICATIONS OF IPRS FOR THE ARAB WORLD 55

counterfeiting and imitation in the developing world was costing them billions of dollars in losses every year.11 This encouraged industrialized countries, particularly the United States and the European Union, to pursue a unilateral and a bilateral agenda to bring about the desired tougher levels of IPR protection at an international level despite the developing countries’ unwelcoming approach to such protection.

Developing countries, on the other hand, initially heady opposed stronger IPR regulation under GATT and favoured the World Intellectual Property Organization’s (WIPO) role in the matter whch was more sympathetic to their demands. However, eventually, and under intensive pressure and increased promises of concessions in other areas &om developed countries (including increased market access for agriculture and textile as well as guarantees and assurances that developed counties wd refiain &om resorting to unilateral and bilateral pressures), developing countries accepted the adherence to a multilateral forum that incorporated globally higher minimum levels O f IPR protection.12

Accordingly, developing countries believed that the conclusion of the TRIPS Agreement would represent the end of the road and the last multilateral effort to regulate internationally the issue of IPRS. By removing the “burden” of intellectual property rights out of their way in exchange for several concessions in other vital sectors, developing countries hoped that they would succeed in preventing developed countries, especially the United States, from pursuing their unilateral and bilateral practices against them. Such a belief was reinforced by the developed countries’ own determination to shift the discussions surrounding IPKS to a more efficient and cohesive multilateral forum rather than depending on the already existing soft and fragde W 1 ~ 0 . 1 3

From the point of view of the developed countries, however, the WTO’S TRIPS Agreement was no more than just the beginning of a more heavily regulated global market for intellectual property rights.14 Thus, it appeared that TRIPS aimed at

11 In 1986, some estimates were that over 27 per cent of US. exports contained intellectual property components. M. Gadbaw, Intellectual Property and International Trade: Merger or Marriage of Convenience! 22 Vanderbilt Journal of Transnational Law, 1989,223 at 232.

12 May suggests that in 1995, developing countries took the “best deal” they could get by gaining market access to developed countries’ markets; developing countries believed that it was a price worth paying. C. May, W h y IPRS are a Global Political Issue! 25 European Intellectual Property Review 1, 2003, 1 at 1. Also, Abbott comments that developing countries agreed to TRIPS “not because they concluded that the agreement as a stand-alone matter was necessarily in their best interest rather than it being a part of the bargain”. F. Abbott, Commentary: The International Intellectual Property Order Enters the 21st Century, 29 Vanderbilt Journal of Transnational Law, 1996, 471 at 472.

‘3 Further remarks by some US. oficials were hinting in that direction as well. For instance, in 1989, Emory Simon, Director of Intellectual Property at the Ofice of the U.S.T.R. stated that: “ ... what happens if we fail to [obtain TRIPS?] I think there are a number of consequences to failure. First, wdl be an increase in bilaterahsm. For those of you who think that bilateralism is a bad thing, a bad thing will come about.” E. Simon, Remarks of Emory Simon, 22 Vanderbilt Journal of Transnational Law, 1989,367 at 370.

‘4 A letter !?om Pfizer (one of the world’s biggest pharmaceutical companies) to the U.S.T.R. in 1994 supports such a conviction; it states that: “Finally, GATT does not do it. Many Indians mistakenly (often very honestly) believe that if they endorse GATT they will have solved their intellectual property and pharmaceutical patent issue. Not so, particularly if they truly want to create an environment that attracts investment and provides better medicine legalistically agreeing to something (GATT) that brings this into play in ten years or more achieves neither of these two objectives.” Letter from C.L. Clcmente, Senior Vice President, Corporate Mairs, Pfizer Inc., to Joseph Papovich, Deputy Assistant U.S. Trade Representative for Intellectual Property, 7 June 2004. Cited in P. Drahos, Expanding Intellectual Property’s Empire: The Role of FTA, 2003. Availablc at: cwww.grain.org/rights/ tripsplus/cfm?id=28~.

56 THE JOURNAL OF WORLD INTELLECTUAL PROPERTY

universalizing the IPR protection according to Western intellectual property rights levels and standards as a first step towards further and wider protection.15 In this context, the subsequent collapse of the WTO Ministerial Conferences in Seattle and Cancun came mainly as a result of the developing countries’ frustration and scepticism about developed countries’ readiness to fulfil their earlier promises undertaken during the Uruguay Round of Negotiations and their resolve to unilateralism and bilateralism instead. 16

111. INTELLECTUAL PROPERTY RIGHTS IN THE ARAB WORLD

Generally, the Arab countries (as part of the developing countries) viewed IPR protection negatively. Emanating from a clear lack of awareness and a weak comparative advantage, Arab States awarded little attention to IPR protection and regulation. Thus, Arab States in their own mindset always followed a passive approach of only acting on the protection of IPRs “whenever they have t0”.l7

This is not to say that IPR protection did not exist or was a new issue in the Arab region prior to 1994. In fact most Arab countries have had IPR laws and legslations for decades; the problem has often been the evident lack of implementation and enforcement of these rights.18

However, in recent years, a large number of Arab countries have acceded to the WTO, while others are on the way to doing so. As a prerequisite to such accession, these countries had to undertake some major legislative changes in their IPR regime which resulted in upgrading their IPR laws to the international minimum levels of protection as required under the TRIPS Agreement. In other words, some Arab States have moved from a TRIPS-Minus situation, where the application and enforcement of intellectual property rights was weak, to a TRIPS situation, where stronger universal minimum levels of IPR protection were required with very little preparation and national debate.”

‘5 See I . Elangi Botoy, From the Paris Convention to the TRIPS Agreement: A One-Hundred-and-Twelve-Year Transitional Periodfor the Industrialized Countries, 7 J.W.I.P. 1, January 2004, 115. Also C. Correa, Intellectual Property Rights, The W T O and Developing Countries, Zed Books, Third World Network, London, 2000.

16 Some even go as far as suggesting that the “developed countries never had any intention of fulfilling implementation commitments.” K. Mukheji, W T O and South Asia: From Doha to Cancctn, Economic and Political Weekly, 13 September 2003, 3864 at 3864.

17 Sherif Saadallah, Director of the WIPO Arab Bureau, told Al-Ahram Weekly: “Thus far Intellectual Property (IP) laws have been misunderstood as not being in the interest of the general public.” N. Wahish, Tripping on TRIPS, Al-Ahram Weekly, Issue 604, September 2002.

18 Carroll comments: “ ... despite the host of Middle Eastern intellectual property laws, and some reported instances of enforcement, regulations are perceived to be lax and countries throughout the region tend not to enforce intellectual property law”. J. Carroll, Intellectual Property Rights in the Middle East: A Cultural Perspective, 11 Fordham Intellectual Property, Media and Entertainment Law Journal, 2000-2001, 555 a t 560.

19 For instance, in one of its reports, the International Crisis Group (IcG) quoted a major Jordanian entrepreneur complaining about such lack of consultation. He said that: “In the absence of parliament, major decisions are taken without the necessary checks and balances, for example, concerning Jordan’s membership in the World Trade Organization and the Free Trade Agreement with the United States. These agreements may have been rushed through and not have the best interest of Jordan in mind; better deals might have been negotiated.” ICG Briefing, The Challenge o j Political Refom: Jordanian Democratisafion and Rqional Instability, Amrnan/Brusscls, 8 October 2003. at 7.

IMPLICATIONS OF IPRS FOR THE ARAB WORLD 57

IV. BILATERALISM AND THE ARAB COUNTRIES

The collapse of the 1999 WTO Ministerial Conference in Seattle signalled the official beginning of more difficult times ahead for the global multilateral system as embedded under the WTO structure. However, the subsequent abrupt failure of the Cancun Ministerial Conference in 2003 led many to believe that the future of the world multilateral framework co-operation is in real jeopardy. However, what is interesting to note in this regard is the fact that even before the latest stalemate in discussions under the multilateral framework occurred, developed countries have already undertaken several measures that undermined the proper functioning of the world multilateral regime.

Although developed countries, and in particular the United States, made promises that they would not resort to unilateral or bilateral measures if a multilateral trading system was established during the Uruguay Round of Negotiations in 1994, empirical evidence refutes these arguments. One example is found in the increase in recent years in the number of bilateral trade and investment initiatives and agreements sought by the United States, and the European Union, to strengthen their trade relations with other developing countries. The world has experienced a tremendous rise in the number of bilateral free trade agreements in recent times, not only between developed countries but also between them and LDCS. The United States has already completed eight bilateral free trade deals, and is currently negotiating another fourteen agreements.20

Such agreements deal with various issues of trade, tariff reduction, market access, services, labour and environment. However, what is of relevance here are the detailed chapters incorporated within these agreements that emphasise the importance of protecting IPRS in accordance with the “highest international standards” and levels of protection. Such standards are achieved through a number of bilateral free trade and investment agreements.

Arab countries did not escape the recent wave of bilateralism. In fact, in less than half-a decade, the United States has signed FTAS with three Arab countries. These are the U.S.-Jordan F T A , ~ ~ the U.S.-Morocco F T A , ~ ~ and finally the US.-Bahrain

Other developed nations are also following suit. The European Union has recently completed more than thirty bilateral association agreements with countries located in

20 Four of these agreements were signed with countries in the Middle East and North Africa (MENA), including Jordan, Morocco, Bahrain and Israel.

2’ Signed 24 October 2000. This FTA was the first ever between the United States and an Arab or Islamic country and the first in the world of its type. It incorporates for the first time “WTO-PIUS” requirements related to labour and environment. Text available at: cwwwjordanusfta.com. For more on the US.-Jordan FTA, see R. Grynberg, The United States-Jordan Free Trade Agreement: A New Standard in North-South Fr&!, 2 J.W.I. 1, March 2001, 5.

22 Signed in 2003. It is the first ever FTA between the United States and a North &can country. Text available at: (www.moroccousfta.corn>.

23 Signed May 2004. It is the first ever FTA between the United States and an Arab Gulf country. Text available at: cwww.ustr.gov/trade-agreement/bilateral/Bahrain-FTA/section-index.htm). The United States is also currently seeking further FTAS with the United Arab Emirates and Oman.

58 THE JOURNAL OF WORLD INTELLECTUAL PROPERTY

the Middle East and North Africa (MENA) (including Jordan, Syria, Egypt, and the Palestinian Authority), and Eastern Europe,24 while Japan has also concluded a number of FTAS during the last year.25

What is interesting about these FTAS and association agreements is the effect they are having upon their weaker Member States (in such cases Arab and developing countries). Such agreements have resulted in what sometimes is referred to as TRIPS-P~US effect. However, it is important to pay close attention to the meaning and implications of such a development as far as Arab countries are concerned.

v. THE DEFINITION OF “TRIPS-PLUS”

The WTO’S TRIPS Agreement laid down minimum international standards for IPR protection. Although Members cannot derogate or provide lower ceilings of protection,26 they still have the right to apply and incorporate higher and more extensive levels of protection if they deemed so willingly, as long as they apply the general principles of most-favoured nation (MFN) and national treatment under this Agreement. In addition, the TRIPS Agreement also provides Member countries with the discretion to incorporate their own standards and procedures about how to implement the Agreement within their jurisdictions.

However, if a country is being forcefully required to implement more extensive levels and standards of IPR protection than that required under the TRIPS Agreement, or undertakes the elimination of an option which was awarded to it under the Agreement, it may then be said that this country is implementing a TRIPS-P~US Additionally, a TRIPS-Plus mechanism may also mean that countries are to interpret the TRIPS Agreement in a narrower sense thus ensuring the compliance of these countries in accordance with this Agreement with the utmost levels of efficiency.

However, during the past few years, it has been noticed that a number of countries have adapted and incorporated more enhanced levels of IPK protection unwikngly as a result of pressures exerted on them by the industrialized countries, either under the WTO or under some bilateral free trade agreements. The latter trend was championed by the United States and the European Union in their latest free trade and association agreements. In this context, an important question is often raised: what are the components of a TRIPS-P~US recipe under bilateral trade and investment agreements in relation to these agreements signed with the Arab World recently?

24 See Council of Canadians and Polaris Institute, WTO-FTAA: Making the Links Report, Bulletin Board,

25 Such as the Japan-Singapore FTA; Japan-Mexico FTA; both concluded in 2004. 26 TRIPS Agreement, Article 1.1 states: “Members shall give effect to the provisions of this Agreement.

Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.”

24 July 2003; available at: ~www.corpwatch.org/bulletins/PBD.jsp?articleid~7718~.

27 P. Drahos, BITS and Brps: Bilateralism in Intellectual Property, 4 J.W.I.P. 6 , November 2001, 791.

IMPLICATIONS O F IPRS FOR THE ARA€3 WORLD 59

VI. THE GENESIS OF “TRIPS-PLUS’’

Generally spealung, there can be no fixed definition for the term “TRIPS-Plus”. In fact, such a term is still in the process of evolution and has proven to be case- and country-specific. This can be viewed in conjunction with the emerging provisions of the recent FTAS in this field in which they all seem to add more to the existing literature. Following are some examples of the characteristics which may deem an agreement a TRIPS-Plus that characterizes bilateral trade agreements that have been signed between the United States and the European Union, on the one hand, and some Arab countries, on the other.

First, the TRIPS Agreement allows Member countries to exempt and exclude plant and animal patents from their national patent laws.28 Increasingly, countries are being forced through such FTAS to relinquish such a right by requiring them to award protection for such patents hence resulting in a TRIPS-P~US effect. A good demonstration of this trend is the U.S.-Jordan FTA which commits Jordan to provide protection for such patents,29 although this was not a condition attached to Jordan’s membership in the WTO. Such a provision was also echoed in the US.-Bahrain FTA and U.S.-Morocco FTA.30

Moreover, on the issue of revocation of patents, the TRIPS Agreement grants Member countries the discretion to incorporate the grounds of such revocation within their national legislations.31 However, some FTAS are increasingly restricting the basis of such revocation to include cases of fraud and misrepresentation which represents further commitments beyond the TRIPS Agreement.32

Second, a TRIPS-P~US effect may relate to extendmg certain periods of protection beyond the requirements of the TRIPS Agreement and forgoing certain benefits related to the enjoyment of transition periods by certain countries. An example of the earlier scenario is clearly manifested by the US.-Morocco FTA which provides that protection for copyrights should be calculated on the basis of the life of the author plus seventy years,33 a clear extension of the WTO’S TRIPS Agreement, which proposed that protection should be the life of the author plus fifty years.34

In addition, the TRIPS Agreement provided a minimum ten-year period of

28 TRIPS Agreement, Article 27(3)(b) states: “Members may also exclude from patentability: .._ (b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective mi generis system or by any combination thereof.”

29 U.S.-Jordan FTA, Article 4(18) states: “_.. each part may exclude from patentability: (a) inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre pwblic or morality, including to protect human, animal or plant life or health or to avoid serious prejudices to the environment provided that such exclusion is not made merely because the exploitation is prohibited by their law.”

30 The US.-Morocco FTA, Article 15.9(3) and the U.S.-Bahram FTA, Article 14.8(1) and (2). 3’ TRIPS Agreement, Article 23. 32 As in the U.S.-Morocco FTA, Article 15.9(5) and U.S.-Bahrain FTA, Article 14.8(4) 33 See US.-Morocco FTA, Article 15.5.5(a) and U.S.-Bahrain FTA, Article 14.4(4)(a). 34 TRIPS Agreement, Article 12.

60 THE JOURNAL OF WORLD INTELLECTUAL PROPERTY

protection for industrial designs.35 Under most FTAS, this period has been extended to at least fifteen years, therefore resulting in a TRIPS-Plus effect.36

TRIPS-PIUS effects can also be evident as a result of the pressure exerted on developing Countries to forgo privileges related to the transition periods under the WTO, which is clearly manifested in several FTA and association agreements. For example, under the EU-Jordan Association Agreement, Jordan was pressured to implement shorter periods of transition than that provided under TRIPS regarding the protection of patents.37

Third, a TRIPS-PIUS arrangement may oblige countries to join a specific international agreement or treaty related to a specific field of intellectual property rights. Such an effect was present in the requirement of the U.S.-Jordan FTA and EU-Jordan Partnership Agreement. Both of these agreements require Jordan’s submission to a number of international agreements and treaties such as the WIPO’S Internet Treatie~.3~ Moreover, Jordan was also expected to submit to the International Convention for the Protection of New Varieties of Plants (UPOV Convention) and the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks of 1999.39 Simdar provisions can also be found in several other FTAS signed with other Arab countries as well, hence also rendering them of TRIPS-P~US nat~re.~O

Fourth, the TRIPS Agreement’s strength lies in its extensive provisions related to enforcement. Accordingly, any bilateral agreement that modifies and adds to such measures will most likely result in a TRIPS-P~US effect. A clear model of this is the U.S.-Jordan FTA that obligates Jordan to raise its criminal penalties to Jordanian Dinar 6,00041 for copyrights and trademark counterfeiting and piracy.42 The U.S.-Jordan FTA also provides that, in the event of copyright piracy and trademark counterfeiting, authorities may initiate criminal actions and border measures without the need for formal complaint.43

35 TRIPS Agreement, Article 26(3). 36 EFTA-Morocco, signed 19 June 1999, Annex 5, Article 3(1) states: “.._ the States parties to this agreement

shall ensure in their national laws at least the following: - adequate and effective protection of industrial designs by providing in particular a period of protection of five years from the date of application with a possibility of renewal for two consecutive periods of five years.”

37 E.U.-Jordan Association Agreement, Annex vl1.3 provides: “Jordan undertakes to provide for adequate and effective protection of patents for chemicals and pharmaceuticals in line with Articles 27 to 34 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights, by the end of the third year from the entry into force of this Agreement or from its accession to the WTO, whichever is the earliest.”

38 These include the WIPO Copyright Treaty 1996 and the WIPO Performances and Phonograms Treaty 1996.

39 See Article 4.1(2-1) U.S.-Jordan FTA and Annex VII of the E.U.-Jordan Partnership Agreement, Article 1. 40 For example, see U.S.-Morocco FTA, Article 15.1(2-3), the U.S.-Bahrain FTA, Article 14.1(2) and the

41 Approximately US$ 9.000. 42 Memorandum of Understanding on Issues Related to the Protection of Intellectual Property Rights Under

the Agreement between the United States and the Hashemite Kingdom of Jordan on the Estabhshment of a Free Trade Area, Article 3 states: “ ... with respect to article 4.25 of the Agreement, Jordan shall raisc its crinlinal penalties to JDs 6000, so as to meet its obligation to ensure that statutory maximum fines are sufficiently high to deter future acts of infringement.”

43 US.-Jordan FTA, Article 4.26 stipulates: “ ... each party shall providc, at least in cases of copyright or trademark counterfeiting, that its authorities may initiate criminal sanctions and border measurc actions ex oflcio, without the need for a formal complaint by a private party or right holder.”

EU-Egypt Association Agreement, Annex VI.

IMPLICATIONS O F IPRS FOR THE ARAB WORLD 61

Fifth, on the issue of trademark protection, the TRIPS Agreement adopts a broad definition of what constitutes a “trademark”, and provides several examples of what may constitute a trademark.44 Increasingly, subsequent FTAS are incorporating other emerging types of signs for registration inclulng visual, scent and sound marks thus resulting in further higher levels of protection.45

Additionally, the TRIPS Agreement contains a separate part of provisions dealing with the issue of geographical inlcations. Currently, several FTAS are obliging Member States to treat geographical indications as trademarks for the purposes of protection, registration and implementation.46 Such treatment is most likely to result in additional protection for famous geographical marks belonging to the developed countries rather than the developing ones.

Moreover, protection for famous and well-known trademarks is also being strengthened under such FTAS by extending that protection to include not only similar goods but also dissimilar goods as identified by the famous or well-known trademarks.47

Sixth, the requirement of several FTAS and bilateral investment agreements for countries to adhere and implement “the highest international standards” of protection for intellectual property rights also makes such agreements subject to the TRIPS-P~US criteria. Although such standards are not defined precisely under these agreements, some suggest that such standards are being included to pave the way for the subsequent conclusion of a multilateral or bilateral investment treaty. Therefore, the effect of such provisions may not be felt initially, but is most likely to be felt subsequently in relation to variant issues including investment and attracting foreign direct investment ( F D I ) . ~ ~

Seventh, the imposition of alternative dispute settlement procedures under such FTAS other than that of the WTO is also considered as a TRIP-PIUS clause. In a number of FTAS, new dispute settlement procedures are being proposed49 to solve disputes arising from the implementation and interpretation of such agreement~.~O Such agreements are often based upon a binding arbitration mechanism. By bypassing the WTO lspute settlement, such FTAS are increasingly weakening the multilateral dispute settlement framework and squeezing weaker States to adhere to more sophisticated dispute settlement procedures (in which they have neither the resources nor the expertise to compete). This leaves the developing countries, inclulng Arab States, with less and more restricted options regarding the implementation of such agreements.

44 TRIPS Agreement, Article 15.1 45 US.-Morocco FTA, Article 15.2(1); US.-Bahrain FTA, Article 14.2(1). 4h US.-Jordan FTA, Article 4.6. 47 US-Jordan FTA, Article 4.7. 48 See P. Drahos, supra, footoote 14. 49 Such as the International Centre for Settlement of Investment Disputes (ICSID), the International Chamber

5O See US.-Jordan FTA, Article 17(2-4) and US.-Morocco FTA, Article 20.1 to 20.7. of Commerce and the UN Commission on International Trade Law (UNCITRAL).

62 THE JOURNAL OF WOFUD INTELLECTUAL PROPERTY

VII. TRIPS, ARAB STATES AND THE FUTURE O F THE W O R L D MULTILATERAL INTELLECTUAL PROPERTY REGIME

Immediately after the collapse of Cancun Trade talks in 2003, Robert Zoellick, the U.S. Trade Representative, declared that the United States would not be deterred from pursuing its unilateral and bilateral trade agenda. In fact, he went further to &vide countries into “can do” and “won’t do” FTAS with the United States.51 Such a development should not be seen as the beginning, rather a continuation of the United States approach of bringing around its desired moddications and changes to the world multilateral trading agenda, including the IPR protection through its unilateral and bilateral initiatives.

Such a process is not unprecedented in the history of IPR protection. It follows a pattern of a number of policies representing a “regime” and “forum shifi”52 to force the necessary changes to the multilateral framework through a policy of coercion and enforcement rather than consensus building and democratic bargaining.53 Indeed, today’s bilateralism represents the third wave of such a process that builds upon the first and second waves starting with shifting the discussion on intellectual property rights from the ambit of the international conventions (Pans and Berne) to WIPO, and subsequently from WPO to the umbrella of GATT and the WTO.

It could be argued that the world is experiencing, under the current wave of bilateralism, a policy of “competitive liberalization” advocated by the United States and the European Union. However, such a policy is undermining the world multilateral framework. The discriminatory nature of such agreements, coupled with the policy of rewarding allies for their political and international support54 rather than their trade credentials is indeed creating more complexities for the world multilateral framework.55

5’ R. Zoellick, America Will Not Wait For The Won’t-do Countries, Financial Times, London Edition, 22 September 2003, at 23. Can also be found online at: ~www.ustr.gov/speech-test/zoellick/2003-09-22-ft.htm~.

52 Helfer defines “regime shifting” as “an attempt to alter the status quo ante by moving treaty negotiations, law makmg initiatives, or standard setting activities from one international venue to another”. See L. Helfer, Regime Skijing: the TRIPS Agreement and New Dynamics .f International Intellectual Property Lawmaking, 29 Yale Journal of International Law 1, 2004, 1 at 14.

53 Drahos explains: “ ... when developing countries were successful in veto coalition on intellectual property, that success triggered a strategy offorum shifting.” He refers to the Treaty on Integrated Circuits which was rejected in 1989 by the developing countries but whose provisions were included in the TRIPS Agreement: P. Drahos, supra, footnote 10, at 780. Also Jean-Frkdtric Morin, Moving Fonuardjom Cancun: the Global Governance of Trade, Environment and Sustainable Development; The Bilateral IP Agreements, paper presented at the International Conference, Institute for International and European Environmental Policy, October 2003; available at: (www.ecologic-events.de/Cat-E/ en/documents/morin.pdf,.

54 A clear example of this is the U.S. suspension of negotiations of an FTA with Egypt in response to Egypt’F decision not to join the United States in a WTO complaint against the EU ban on genctically modified food. For more, see K. Mukherji, supra, footnote 16, 3864.

55 One can realize that there are linlited and underwhelming gains and benefits for the United States from such agreements. For example, U.S. exports to Jordan are minimal (US$ 404 million in 2002), as are the US. shipments to Morocco (US$ 565 million in 2002) and Bahrain (US8 419 million last year). Sidney Weintraud quipped “An FTA in other words is not necessarily an agreement in which all parties benefit from trade expansion, but rather a favour to be bestowed based on support 0fU.S. foreign policy”. S. Weintraud, The Politics of US Trade Policy, 3 September 2003, available at: cnews.bbc.co.uk/l/hi/business/3169649.stm~. Moreover, Jackson states that the United States shifted to a “more pragmatic-some might say ad hoc approach-dealing with trading pArtners on a bilateral basis, and rewarding friends.” J. Jackson, The Trading System: Law and Policy oflnternational Economic Relations, 2nd edition, MIT Press, Cambridge, Mass., London, 1997, at 173.

IMPLICATIONS OF IPRS FOR THE ARAB WORLD 63

The recent success of developing countries in bloclung the adaptation of any further commitments under the WTO through their collective united stand and coalition against such matters led the United States to believe that any changes it needs to bring to the multilateral agenda can be achieved first through bilateralism and trade sanctions.

Targeting “soft countries” is also aiding the United States and the European Union in creating their global vision of a more regulated intellectual property rights universe. Thus, it may be reahzed that these countries are indulging in the process of modifying and amendmg issues which they deem necessary to change under the multilateral framework through bilateral means. In addition, since most bilateral agreements require their Member States accession to a number of international intellectual property agreements, the developed States are fostering the process of “maturity” for these agreements thus bringing them into force ahead of their time.56

It is also important to draw attention to the flexible nature of each subsequent bilateral FTA between developed countries and a new LDC. They take a cumulative country-specific approach, addmg more features on top of current FTAS. The upshot is what some referred to as “state-of-the-art” FTAS, particularly with regard to IPR pr0tection.5~ Each agreement is being used ex ante as a standard model of negotiations with new countries, leading to a more enhanced TRIPS-P~US recipe.58

Although the creation of the TRIPS-Plus effect may be attributed to the pressure exerted by the developed countries, particularly the United States and the European Union, upon weaker developing countries through bilateralism, the deficient nature of the TRIPS Agreement itself also contributed and facilitated this process. In this regard, the TRIPS Agreement incorporates a number of vague, ambiguous and unpredictable provisions which may allow countries to deviate and interpret the agreement differently. s9

Such bilateral agreements are also acting as an impedment to Arab regional cooperation and development. Any Arab State signing a bilateral agreement with a developed country wlll not only be susceptible to harsher requirements of protection,

56 Such as the WIPO Internet Treaties (the WIPO Copyright Treaty 1996 and the WIPO Performances and Phonograms Treaty 1996).

57 For example, the US-Jordan FTA was the first trade agreement to incorporate provisions related to labour and environment. See Articles 5 and 6. Additionally, Grynberg remarks on the US.-Jordan FTA by stating “___ and within the space of a few weeks of its completion it became a template to future free trade agreements”. Grynberg, supra, footnote 21, at 11. Moreover, the subsequent US-Singapore FTA was described by Kang and Stone as “a-state-of-the-art” and “the first of its kind” as a result of adding up more commitments to previous agreements. P. Kang and C. Stone, 10, Trade, and U.S. /Singapore Relations-Signijicant Intellectual Property Provisions of the 2003 U.S.-Singapore Free Trade Agreement, 6 J.W.I.P. 5, September 2003, 721 at 722.

58 It is interesting how some US. officials describe these agreements. For example, R. Zoellick, the current U.S.T.R., remarks that: “ ... negotiating a free trade agreement with the U.S. is not something one has a right t-it’s a privilege.” T. Solo, Rob& Zoellicle’s Free Trade Evangelism, 17 November 2003, available at: <www.corpwatch.com,.

59 For example, Article 33 of the TRIPS Agreement permits an unlimited protection period when it says “the term of protection available shall not end before the expiration of a period of 20 years from the filing date”. Such a provision in reality does not provide a fured term ofprotection and therefore allows Member States to adopt and incorporate their own vision which may vary from one country to another. For more, see D. Shanker, k g i t i m a q and the TIUPS Agreement, 6 J.W.I.P. 1, January 2003, 155.

64 THE JOURNAL O F WORLD INTELLECTUAL PROPERTY

but will also force other neighbouring Arab States to adhere to even harsher provisions in order to be able to compete in attracting foreign direct investment. A clear example of this was the latest quarrel between the Arab Gulf Cooperation Council (AGCC) and Bahrain (which is a member of the AGCC) as a result of Bahrain’s signing of an FTA Agreement with the United States. In fact, the AGCC urged Bahrain to denounce and drop its FTA with the United States because of its negative effect on the future cooperation and development of the A G C C . ~ ~

To sum up, one can depict the creation of a systematic web of bilateral free trade agreements over which the developing countries will have no control. Industrialized countries are using different instruments to complete such agreements with LDCS, including the threat of trade sanctions and suspension of aid and FDI. Penetrating regional alliances is an important part of this policy. The United States now have in force at least one FTA or BIT in each region and continent, representing alliances with certain “soft” or “friendly” regimes that allows it to access such markets as well as facilitating its mission in creating a future multilateral investment treaty based on the previous failed Multilateral Investment Treaty model (MAI). Hence, one can anticipate that the real dangers of such a web of treaties are yet to be fully recognised in the near future after the completion of the current bilateral negotiations wave led by the United States and the European Union.

VIII. CONCLUSION

Jordan, Bahrain and Morocco represent an interesting case study for the protection of intellectual property rights in the world. These countries do so because in less than a decade, they have moved from a TRIPS-Minus situation to a TRIPS-PIUS one with little preparation and at immense speed. Whilst some argue that the one-hundred years period which preceded the establishment of the WTO was not enough for the developing countries to adjust and upgrade their IPR regimes accordingly,61 the speed at which these three Arab countries reformed and upgraded their IPR regime provides a very unique situation for developing countries that have a weak comparative advantage and very limited intellectual property rights assets and resources to protect.

Several developments are affecting the evolution of the TRIPS Agreement in the global arena in a direction that is only adding more constraints and protection to IPRS in developing countries, inclulng the Arab countries. Recent bilateral trade initiatives are increasingly rendering the TRIPS Agreement “ineffective” in the face of such initiatives.

The policy of “competitive liberalization” as advocated by the United States and the European Union is undermining the world multilateral framework. The

~ ~ ~~

6o Bahrain Defends Right to Sign FTA with U.S. , Khdeej Times, 29 November 2004. For more on the U.S.-Bahrain FTA and intellectual property rights, see D. Price, The US.-Bahrain Free Trade Apeement and Intellectual Properfy Protection, 7 J.W.I.P. 6, November 2004, 829.

61 See generally Botoy, supra, footnote 15, at 116.

IMPLICATIONS OF IPRS FOR THE ARAB WORLD 65

discriminatory nature of such agreements, coupled with the policy of rewarding allies for their political and international supp0rt,6~ rather than their trade credentials is indeed creating more complexities for the world multilateral framework. One must not look at the latest FTAS with Arab States as a separate development from international relations, but rather as a part of an organised global policy network-building exercised by the developed countries.

Such bilateral arrangements represent the third wave of shifting debate about IPRS from the WTO auspices to a mere State-to-State arrangement. Bypassing the WTO Dispute Settlement Procedure and the operation of such trade deals outside the ambit of the WTO should be considered as a major threat to the world multilateral trading regime under the w~0.63

The push by the developed Countries including the United States and the European Union to incorporate the TRIPS Agreement ahead of time and to further add more obligations which go beyond the TRIPS Agreement, upon the shoulders of Arab countries, should not be underestimated. This will result in restraining the ability of Arab countries to implement the TRIPS Agreement freely and will circumvent their negotiation power multilaterally.64

Arab countries must play a more active role in the international arena by uniting their efforts under the multilateral framework. This can be achieved by joining forces with like-minded countries. Moreover, Arab States must also adopt a comprehensive policy towards creating a national economy capable of fostering creativity and innovation aiming to compete globally. In this regard, the 2002 Arab Human Development Report,'j5 published by the United Nations, stresses the need for establishing incentives to support greater creativity and innovation in the Arab world via enhancing the IPR protection. However, for Arab countries to reap the benefits of such protection, they need to develop a national and regional agenda that pays precise attention and care to their development needs and priorities. Arab States can ignore such recommendations, but only at their penl.

62 A clear example of this is the U.S. suspension of negotiations of an FTA with Egypt in response to Egypt's decision not to join the United States in a WTO complaint against the EU ban on genetically modified food. For more, see Mukherji, supra, footnote 16, at 3864.

63 Economic gains from such bilateral initiatives are also being overestimated. A simulation study in the latest World Bank Report estimates that a broad global trade agreement could increase world income by US$ 263 billion by 2015, ofwhich US$109 billion would go to poor countries. Ifdeveloping countries all had bilateral agreements with big, rich trading partners (the European Union, the United States, Canada and Japan), global income would rise by much less: US$112 billion. The rich will scoop all this and more: US$ 133 bilhon. Although a handful of developing countries, such as Brazil and China, would gain a bit, poor nations as a group would be worse off than they are today. See World Bank Report, Global Economic Prospects, 2005, World Bank, Washington D.C., 2004.

64 There are increasing calls for developing countries to refrain from pursuing this bilateral route with the developed countries. For example, see lntegrating intellectual Property Rights and Development Poiicy, Report of the Commission on Intellectual Property Rights, September 2002, London, p. 1, available at: cwww.ipncommission.org. Also see United Nations Development Programme, Making Global Trade Work for People, 2003, Earthscan, U.K. and United States, 2003, Chapter 11; available at: www.undp.org/dpa/publications/globaltrade/pd6.

65 United Nations Development Programme, Arab Human Development Report 2002: Creating Opporfunities For Future Generations, Arab Fund for Social and Economic Development, 2002.