Under the Paris Convention, the national treatment principle allowed for what was usually called the "asymmetries", i.e., the adoption of different standards of protection by different countries in accordance with different levels of national development (provided national treatment was secured). The TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement of the World Trade Organization (WTO) established minimum standards of protection that each government has to give to the IP of fellow WTO members, thus limiting the former scope for flexible national approaches.
However, the TRIPS Agreement incorporates certain "flexibilities." These aim to permit developing and least-developed countries to use TRIPS-compatible norms in a manner that enables them to pursue their own public policies, either in specific fields like access to pharmaceutical products or protection of their biodiversity, or more generally, in establishing macroeconomic, institutional conditions that support economic development.
Government offices in charge of drafting laws frequently request advice from WIPO regarding how to use the TRIPS flexibilities so as to accommodate particular national interests or resolve issues that are specific to their countries. Advice is provided only after careful consideration of the flexibilities, TRIPS-consistency and their legal, technical and economic implications. The ultimate decision regarding the choice of legislative options lies exclusively with each individual Member State.
The WIPO Secretariat, in tandem with Member States, has identified four clusters of flexibilities:
Flexibilities as to the method of implementing TRIPS obligations
These result from the language of Article 1.1 of the TRIPS Agreement. Under these flexibilities, WTO Members can exploit creative solutions to transpose into national law and practice those concepts that the TRIPS Agreement simply enunciates but does not define. Examples of those flexibilities include concepts such as novelty and inventiveness; or of situations of extreme urgency for the purposes of compulsory licenses.
Flexibilities as to substantive standards of protection
These flexibilities can operate either downward or upward, i.e. they may permit measures that reduce or limit the rights conferred; or measures that raise the level of protection above the minimum standards established by the TRIPS Agreement. (The latter are sometimes referred to as TRIPS plus).
Examples of the former are the introduction of exceptions to rights conferred (such as experimental use and the "Bolar" exceptions; and the limitation to the use of trademarks in packages and advertisement of products considered prejudicial to health, like alcohol and tobacco).
Examples of raising the level of protection are the introduction of temporary protection of industrial property rights before the grant of protection; the extension of the term of patents to compensate for delays in granting the marketing approval of products; or the extension of the scope of patentability and/or registrability of trademarks beyond the minimums established, respectively, by Articles 27 and 15 of the TRIPS Agreement.
Flexibilities as to mechanisms of enforcement
In the field of enforcement, the TRIPS Agreement (in Part III)
- identifies the mechanisms that Members are obliged to adopt in order to make enforcement rights available to IP owners; and
- prohibits Members from adopting stricter measures against defendants than those that are established.
Nevertheless, Members can resort to their own legal system and practices to implement enforcement obligations. WTO Members are, for example, free to maintain their own judicial system. They also can use enforcement measures to implement flexibilities as to the standards of protection.
Flexibilities as to areas not covered by the TRIPS Agreement
The TRIPS Agreement does not cover a number of areas of IP subject matter, either because there was no consensus at the time the Agreement was negotiated, or because the areas in question had not yet emerged, or simply because the negotiators of the TRIPS Agreement did not consider that problems of barriers to trade existed in those areas. Some of those areas are of particular interest to developing countries, such as utility models, traditional knowledge and handicrafts.
Unlike the "upward" standards of protection mentioned above, these flexibilities lie outside the TRIPS Agreement. Therefore, countries legislating on those subjects do not need to conform to the principles and provisions of the Agreement. For example, the protection of traditional knowledge can be extended to foreigners on a basis of reciprocity only.