This week, the WTO’s Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is meeting in Geneva to discuss a number of IP issues related to the 1994 World Trade Organization (WTO) agreement. One of the items reportedly on the agenda is a discussion on the legitimacy of various so-called “TRIPS-plus” measures: bilateral and multilateral agreements between countries that raise the bar on intellectual property (IP) protections.

News from Geneva is that China and India are concerned about ongoing efforts—namely the Anti-Counterfeiting Trade Agreement (ACTA) being negotiated by the U.S., EU, and nearly a dozen other countries—to improve cooperation and enforcement activities between these states against the growing problems of counterfeiting and piracy. The ACTA negotiating  countries are working to forge an ACTA, wholly consistent with TRIPS, because IP theft is killing jobs, stifling innovation, harming consumers, and retarding their economic recovery.  

Makes sense; so what’s the problem?  

According to an unnamed developing country official, China and India believe that TRIPS-plus measures “constrain flexibilities and undermine the balance of rights in the TRIPS agreement.” They believe that TRIPS is a “ceiling,” and that further efforts such as ACTA have no merit. However, this complaint doesn’t jibe with the facts—either today or over fifteen years ago when countries started signing up to this agreement.

A recent white paper, TRIPS: Floor Versus Ceiling?, has analyzed this debate and shows that TRIPS is indeed a global “floor” when it comes to IP protections. For starters, the text of the TRIPS argument itself states that TRIPS “establishes minimum levels of protection that each government has to give to the intellectual property of fellow WTO members.…” IP scholars and experts of all stripes agree that TRIPS is a “floor,” and other references to this fact can be found throughout the TRIPS agreement, as the white paper points out. Moreover, other international agreements, such as the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, also go beyond the minimum standards of TRIPS. 

Another apparent complaint is that developing countries are “pushed into” these TRIPS-plus agreements by developed countries. But as everyone knows, free trade agreements (which often include enhanced IP protections) are voluntary arrangements where each side gives and takes to improve its own net welfare; no one is “forced” into an agreement that is detrimental to their interests. The fact is, when it comes to IP, stronger protections lead to higher levels of innovation, job creation, and economic growth in the long run.  Study after study shows that countries that have clear legal frameworks that protect IP rights and enforce these  rights vigorously, tend to see higher levels of foreign direct investment, technology transfer, and other benefits that spur development, prosperity, and economic growth.  

And this growth is not only attributed to outside investment, but also to domestic entrepreneurs, innovators, and industries that also rely on IP protections to secure capital, conduct R&D, and commercialize products that promise a sufficient return on investment safe from counterfeiters and pirates.

So what to make of India and China’s concerns over “TRIPS plus” agreements like the ACTA?  One might argue that both countries are concerned that enhanced efforts to stop counterfeit medicines, stolen software, pirated movies and music, fake apparel, and other goods coming into the EU and U.S. on a daily basis might further expose their insufficient efforts to stop these items from leaving their shores in the first place. After all, according to the Obama administration, nearly 80% of the counterfeit goods that enter the U.S. illegally each year—and valued in the hundreds of millions of dollars—comes from China. 

Or maybe these measures will demonstrate that both Beijing and New Delhi need to do more to improve their IP laws, regulations, and processes to ensure that they meet international norms and expectations.  This is something the recent Special 301 Report from the U.S. Trade Representative made abundantly clear this year…again.  

The bottom line is that countries in both the developed and developing world shouldn’t be distracted this week by China’s and India’s attempts to muddy the waters on IP protections. Global problems associated with counterfeiting and piracy these days—such as job destruction, fake goods that harm, and disincentivizing innovation—are a result of IP laws and enforcement being too weak, not too strong.  TRIPS is a global “floor” of rights and protections created to provide enhanced opportunities for the trade of innovative and creative works. In order to continue to encourage this ingenuity, foster economic growth, and combat the detrimental effects of IP theft, the international community must continue to work to strengthen—not question—IP rights and protections around the world.