On The Evolution Of International Intellectual Property Rules

Based on the Paris Convention and the Berne Convention,the rules in the TRIPS Agreement have established protection standards for the protection of intellectual property rights in international trade at the turn of the century and even today.The entry into force of the agreement marks the entry into a new stage of uniform standards for the international intellectual property protection system: it not only stipulates the enforcement measures for intellectual property rights(IPRs)that were not stipulated in the previous treaties,but also the principles of Most Favoured Nation Treatment and the Minimum Protection Standards in international trade rules.The principles of protection standards have been incorporated into the international intellectual property protection system.So far,international intellectual property protection has achieved some development,however,the needs of developed and developing countries have not been fully realized through the agreement.At the same time,the agreement has some shortcomings such as failure to make a forward-looking response to various changes triggered by network technology.Therefore,since the agreement came into effect,many “TRIPS-plus” rules have appeared in regional or bilateral arrangements,and these rules have had an impact on the rules in the agreement.Whether in bilateral investment treaties(BITs),the protection of IPRs has changed from implicit to explicit,or in free trade agreements(FTAs),the protection of IPRs has changed from weak to strong,both reveal that the continuous improvement of protection standards has become the main development trend of current international intellectual property protection standards.With the continuous improvement of the current international intellectual property protection standards,the intellectual property system is gradually out of balance between authorized reasonable monopoly and alienation into the abuse of exclusive rights.The goal of the intellectual property system to promote social progress cannot be achieved,and doubts about the rationality of this system have spontaneously arisen.Such doubts can be seen not only in the issue of patent protection and public health that caused the WTO's Doha Round negotiations to fall into a deadlock,but also in the insufficient protection of public interests by international intellectual property rules-the loss of protection of traditional knowledge by the international intellectual property system.In a word,the characteristics of the current changes in international intellectual property rules include that the field is expanding and diversified,soft law has gradually become a carrier form,and the voice of developing countries has increased,and they are trying to build a system that meets their interests and needs through strengthening regional cooperation.The changes in international intellectual property rules are mainly caused by the following three reasons: First,the shaking of economic globalization and the development of anti-globalization.In the context of slowing down of economic globalization,with the surge of negotiations on FTAs and BITs,there are differences between the intellectual property protection rules and TRIPS Agreement,that is,the international intellectual property rules have changed.Second,the interaction between technological factors and international intellectual property rules.Technological development has brought many new problems.These problems did not appear when the TRIPS Agreement was formulated,but they have now challenged the international intellectual property protection system.In order to adapt to the situation of technological innovation,international intellectual property rules should also be adjusted.At the same time,both developed and developing countries hope to promote domestic technological development through the formulation of intellectual property strategies,and technological progress will also require relevant rules to keep pace with the times.Therefore,it is reasonably foreseeable that as the scope of technological innovation continues to expand,the process of changes in international intellectual property rules will also continue.Third,the state,international organizations,non-governmental organizations(NGOs)and the private sector are actively promoting.Intellectual property has attracted widespread attention in every field.Whether it is a country,international organization,NGO,or private sector such as multinational companies,enterprises,etc,they feel that they are closely related to international intellectual property protection and have their own propositions and opinions.As far as the national level is concerned,with the changes in the national power of countries in the world,the increasing voice of developing countries has improved to a certain extent the situation that they could only passively accept relevant rules in the past.As far as international organizations are concerned,WTO and WIPO have played an important role in the establishment and development of the international intellectual property protection system and the promotion of the convergence of international intellectual property rules.Now they have less influence in setting international intellectual property rules than they used to.As far as the level of NGOs is concerned,their role in the process of changes in international intellectual property rules cannot be ignored,especially in improving the level of global public health.As far as the private sector is concerned,private groups led by multinational corporations indirectly participate in the formulation of rules in a variety of ways,which has played a positive role in promoting the changes in the international intellectual property system.The theory of relative fairness and justice and dynamic balance of interests are the basis for judging the legitimacy of the international intellectual property system.According to this,the international intellectual property protection system with the TRIPS Agreement as the core has the theoretical support of legitimacy and rationality.With the rise of regional and bilateral arrangements and the emergence of“TRIPS-plus” rules,considerations on their legitimacy and rationality also need urgent follow-up.To begin with,the change of international intellectual property rules has led to the continuous improvement of protection standards,but its rationality needs to be considered.First,the extension of copyright protection term fails to effectively reflect the concept of dynamic balance of interests.If the author's lifetime plus 50 years of copyright protection term is enough to fully protect the author's rights,then there is no reasonable basis for the extension of copyright protection term.Second,the improvement of patent protection standards shows that too much attention is paid to the protection of private rights,ignoring the consideration of public interests.Whether granting Data Exclusivity,establishing Drug Patent Linking,or restricting them by raising compensation standards for compulsory licensing,are not conducive to developing countries taking advantage of the flexibility provisions of the TRIPS Agreement,and the national health of these developing parties will be affected accordingly.Third,the enforcement standards of IPRs have been improved,eroding the discretion left to members under the TRIPS Agreement.“Trips-plus” intellectual property law enforcement standards will lead to more complex and unpredictable systems,which may not only disrupt the international trade order,but also cause interest imbalance between developed and developing countries.On the contrary,the improvement of the protection standards of geographical indications is not only the result of the vigorous promotion of developed countries,but to a certain extent,it is also in line with the interests of developing countries and is more reasonable.Similarly,the protection of copyright and trademark rights in the digital environment is a useful supplement to the TRIPS Agreement,which arouses the awareness of various countries to protect IPRs in the network environment,and provides effective legal protection for the development of trade in the network environment.Then,the discussion protectability of traditional knowledge under intellectual property system,to a certain extent,effectively make up for the lack of attention to this issue in the TRIPS Agreement.In practice,the protection methods of traditional knowledge vary from country to country.Although developing countries hope to form a unified and widely recognized protection method for traditional knowledge,this goal is indeed difficult to achieve in a short period of time.In this context,developing countries are also aware of the important role of regional or bilateral arrangements in the changes of international intellectual property rules,and introduce the protection of traditional knowledge that is closely related to their interests into the negotiations.The conclusion of regional or bilateral arrangements has promoted a change in the protection stance of traditional knowledge users led by the United States,and the protection of traditional knowledge under intellectual property system has made some progress.Finally,although the IPR protection rules in international investment treaties are different from those in FTAs,the protection standards embodied in some rules have exceeded the protection standards established by the rules in the TRIPS Agreement.As the rules in BITs are gradually incorporated into the international intellectual property protection system,to a certain extent the balance between private and public interests established in the field of trade-related intellectual property protection rules has been broken.International intellectual property rules have been undergoing development and changes.From the overall perspective,the historical development of international intellectual property protection is mainly a one-way process of continuously improving protection standards.The interaction of multiple independent intellectual property local environments formed through regional or bilateral arrangements indirectly affects multilateral international rules and the international environment of intellectual property protection.As the scope of this influence becomes wider and wider,the intellectual property protection standards of various countries will also become unified through coordination.The “TRIPS-plus” intellectual property protection rules in regional or bilateral arrangements have both positive and negative effects on China.These rules may form intellectual property trade barriers,but from a long-term perspective,these rules will form a forcing mechanism to enhance Chinese core competitiveness in the global market,and help China pay attention to whether the intellectual property rules can reflect the concept of balance of interests,form a more reasonable and inclusive international intellectual property system view,and achieve balanced economic and social development.As the largest developing country in the world,China should speak on behalf of the developing countries in the process of participating in the construction of international intellectual property rules,safeguard the legitimate interests of developing countries,and build a fair and reasonable international intellectual property protection system.As the second largest economy in the world,China should continue to promote regional free trade cooperation,and at the same time actively explore the establishment of reasonable intellectual property protection rules in BITs,take part in relevant forums,and actively participate in the construction of international intellectual property rules through a variety of paths.Specifically,China should coordinate the domestic rule of law and foreign-related rule of law,and coordinate the relevant domestic rules with the rules in the regional or bilateral arrangements in which China participates.At the same time,China should cultivate and enhance its soft power to provide new rules on intellectual property to the international community,actively participate in the formulation of new rules,and lead the construction of a new order for international intellectual property protection.