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Protection of Intellectual Property Rights in Bilateral Investment Treaties: TRIPS Plus protection

Intellectual Property Rights are increasingly important in world economies. Developing countries are aware of this situation and have been adopting legal measures and instruments to tackle the area and to play a more active role as true creators and managers of Intellectual Property Rights and new technologies.
The international community has enabled states, and specifically developing countries, to progress in the gradual process of adapting to global demands in the protection of Intellectual Property Rights. The best example of this collaboration are the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO) forums, where states have the opportunity to explain their concerns, debate various positions and interests and to negotiate and adopt minimum acceptable standards of protection. These forums are of a multinational nature by definition, are nourished and enriched by their intervening states social and economic differences, and make it possible for them to form alliances with their peers to strengthen their positions and obtain favourable results.

For some time, countries have used Bilateral Investment Treaties (BITs) as a new scenario for debating Intellectual Property Rights protection. One might even talk of a global trend towards adhering to such treaties that contain Intellectual Rights protection regulations. This new inclusion is provided to widen the scope of states obligation to protect Intellectual Property Rights, perhaps to an even higher standard than the minimums adopted in international forums, particularly the WTO.

The United States and other world powers have developed an aggressive strategy to protect their Intellectual Property Rights around the world. In this sense, provisions on this topic have been included in the BITs that they sign with their trade partners, especially with Latin American countries.

Therefore, when developed countries enter into BITs they are aiming to widen their level of protection established in the TRIP’s (Agreement on Trade-Related Aspects of Intellectual Property Rights) in the receiver states, a phenomenon that has been called “TRIPS-PLUS”.

Unfortunately, recent research shows that the developing countries reasons for negotiating this type of treaty that include Intellectual Property Rights protection is unclear from an economic point of view and in most cases they tend to be “diplomatic” reasons, which have unfortunate consequences for the field of Intellectual Property Rights.

It is therefore possible to conclude that for developing countries it is much more advantageous to drive debate and negotiation of Intellectual Property Rights in international forums of the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO) or even the Andean Community of Nations rather than bilateral relations, as happens in investment agreements, to achieve a regulatory framework that enables them to start participating in the Intellectual Property and new technologies market as vendors, and not only as buyers.

Carmen Sánchez-Puelles