Intellectual property and the public interest
Since the creation of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), the relationship between intellectual property and the public interest has been widely debated by WTO members.
Intellectual property systems should balance the protection and enforcement of intellectual property rights with public interest considerations. Article 7 of the TRIPS Agreement recognises this balance, providing that "the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations".
Article 8 allows members to adopt measures necessary to promote the public interest, including to protect public health – so long as those measures are consistent with the TRIPS Agreement.
Safeguards and flexibilities built into the TRIPS Agreement provide avenues for WTO members to pursue public interest objectives within the TRIPS legal framework. Since 2017, members have discussed the relationship between intellectual property and the public interest in the WTO TRIPS Council. These discussions have been initiated by certain members. Topics covered under ad hoc agenda items include the promotion of public health through compulsory licensing, regulatory review exceptions and competition law and policy, research and development (R&D) costs and pricing of health technologies as well as the "three-step test" in the context of limitations and exceptions to copyright.
From the e-TRIPS gateway, you can access the TRIPS Council’s meeting records on intellectual property and the public interest.
Specific issues address by the TRIPS Council under this ad hoc agenda item include:
- Compulsory licensing
- Follow-up discussion on compulsory licensing
- Regulatory review exception
- Promoting public health through competition law and policy
- R&D costs and pricing of medicines and health technologies
- Intellectual property and the public interest: The WTO TRIPS Agreement and the copyright three-step test