从体制转换到体制协调:TRIPS的矫正之路——以发展中国家的视角

TRIPS作为由发达国家主导、发展中国家被动接受的一种制度安排,体现了发达国家的秩序主张,忽视了发展中国家的正义要求和利益关切,从而给发展中国家带来了负面社会后果。发展中国家一直没有停止过改变TRIPS的努力:首先推动在人权、公共健康、生物多样性等国际体制中制订与TRIPS相左的知识产权规范,然后试图在WTO体制内通过对TRIPS的解释和修订消除TRIPS与其它国际体制知识产权规范之间的冲突。这是一条从体制转换到体制协调的国际知识产权制度变革之路,关乎WTO成员之间利益关系的重新调整,因而势必遭到TRIPS既有秩序的受益者———发达国家的抵制,使其充满着艰难、曲折。对此,包括中国在内的发展中国家必须要有清醒的认识,做好因应准备。

From Regime-shifting to Regime-coordinating: The Way of Rectifying TRIPS

As a new system controlled positively by developed countries and accepted passively by developing countries,TRIPS reflected the claims of developed countries but neglected the requests of justice and interests of developing countries,which has caused detrimental social consequences in developing countries.Therefore,since TRIPS came into force,the efforts to revise TRIPS made by developing countries have not been stopped: at first,they formulated intellectual property rules which conflict with that of TRIPS in international regimes related to human rights issues,public health issues and biodiversity issues;then,they eliminated those conflicts through interpreting and revising the rules of TRIPS in WTO.This is a reformation of international intellectual property system from regime-shifting to regime-coordinating.Although the rectifications were partial in nature,they related to the readjustment of the interests among WTO members and accordingly have been resisted by the developed countries and the beneficiaries of the existing system,making the process full of difficulties,tortures and the risk of falling into abeyance.The developing countries including China need to have clear understanding of it and make enough preparations.