The last articles of the first part of the TRIPS Agreement provide the main basis states implementing their TRIPS obligations can rely on to take into account the socio-economic concerns. Article 7 is the only provision, which evokes the balance between the rights granted to individual IPR holders and the broader interests of the society, at large. In the context of the TRIPS Agreement, the focus is on the use of IPR as incentives for foreign investment and technology transfer. It provides that

[t]he 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 conducing to social and economic welfare, and to a balance of rights and obligations (Article 7 of the TRIPS Agreement).

Article 8 of the TRIPS Agreement applies, more specifically, to measures adopted by states to implement their TRIPS obligations. It provides specifically that states can adopt measures to protect public health and nutrition, as well as to promote the public interest in sectors of vital importance to socio-economic and technological development. The scope of the measures that can be adopted is, however, limited by the fact that such measures must be consistent with the operational provisions of the TRIPS Agreement. Member states of the WTO are also entitled to take measures against the abuse by right holders of their rights and against practices that unreasonably restrain trade or adversely affect the international transfer of technology. In other words, this provides general guidelines for states that want to regulate the scope of intellectual property protection through competition policy. Though there is very little use of these provisions by member states in practice, they have, for instance, been acknowledged by India as being overarching provisions that should qualify other provisions of TRIPS Agreement meant to protect IPR ²⁷.

Notes and References

²⁷ World Trade Organisation, Communication from India, WTO Doc IP/C/W/195 (2000).