EU Commission celebrates 10 years of TRIPS
10 years ago, on 23 June 1994, the TRIPS agreement was concluded as a part of the Marrakesh Agreement establishing the WTO. A good reason for the European Commission to have a party. After all, the Brussels executive body has not only taken the helm within the EU in transposing the agreement, but also goes much further than the agreement requires by pushing for example for civil and penal sanctions for intellectual property rights infringements, legal protection for DRM systems and the patentability of software.
Even though constantly under attack for taking such disputable initiatives, the Commission likes to see itself sidelined by international experts in the field of Intellectual Property rights. However, neither the Commission’s ‘Mr. Copyright’ – Joerg Reinbothe, who is responsible for the proposals most widely acclaimed by IPR industries and most widely criticised by experts -, nor any of his colleagues of the Internal Market DG came to the two-day Conference organised in Brussels last week. Thierry Stoll, the DG Internal Market’s Deputy Director General, was replaced last minute by a colleague from DG Trade, co-organising the conference.
So Trade Commissioner Pascal Lamy was not interrupted by his colleagues when he asked whether the balance between rights-holders and users that TRIPS had established, was still valid ten years later. In his opening speech Lamy expressed a concern that recent bilateral agreements between developed and developing countries might force the latter into a ‘TRIPS plus’ situation, which may prevent them even from benefiting from what little flexibility TRIPS leaves. Lamy could not give a good answer to a question from the audience about the origins of copyright protection. “From the beginning of history, every country that has become wealthy had done so through copying – Germany and the U.S. copied from Britain, Japan from everyone else, and so one. To what extent is the the true purpose of TRIPS to prevent that from ever happening again?”
In a different context, the same question was raised by Vandana Shiva on the second day of the conference. TRIPS doesn’t actually globalise IPR, it redefines those rights according to a practice drafted by Western industries. For example, it imposes on a country like India, where Mrs. Shiva chairs the Research Foundation for Science, Technology and Ecology, to allow patents on life forms. These are not only a radical breach with Indian traditions that regard every form of life as sacred, but also allow for transnational companies to exploit traditional knowledge that has been in the public domain for ages.
This is were Lawrence Lessig took over. The Stanford law professor accused the Commission of having already lost sight of some obvious, simple truths by asking questions such as “Are there conflicts between IPRs and Human Rights?” or “Are intellectual property rights marginalising the public domain?”. Not all culture and knowledge is commercial, Lessig said, and current Intellectual Property Rights burden the spread of knowledge throughout the world. IPR per se do not have to be an extremism, as long as they are balanced. But presently they have been taken over by a rent-seeking extremism that produces more extremism on the other side, with a growing number of persons who are not willing to respect any IPR law any more. Larry Lessig called this ‘a failure of democracy’.
Conference site (23-24.06.2004)
(Contribution by Andreas Dietl, EDRI EU affairs director)