Protecting First World Assets in the Third World : Intellectual Property Negotiations in the GATT Multilateral Framework

This article addresses industrialized countries' growing concerns over technology transfer and their efforts to obtain protection of intellectual property rights under the General Agreement on Tariffs and Trade (GATT). It analyzes the intellectual property problem in the context of the GATT framework and the weakness of current intellectual property protection. Developing countries do not accept the United States contention either that intellectual property is covered implicitly by the GATT or that the current lack of protection reflects a fundamental flaw in the General Agreement. The article focuses on this disagreement in laying out the framework for possible solutions, which include: 1) a separate GATT agreement or code; 2) a framework agreement by consensus decision; and 3) a formal amendment to the General Agreement. The author concludes that an amendment enacted through the GATT's article XXX(1) procedure, which would be effective upon two-thirds acceptance by the Contracting Parties on the Parties that accept it, would achieve the most realistic near-term solution to the intellectual property problem. The article also focuses on the issue of GATT reciprocity, considering whether the industrialized countries will be under a duty to compensate the developing countries in the event that an agreement on intellectual property is reached. It concludes that the General Agreement should be analogized to a frustrated long-term commercial agreement, and suggests a compromise on the issue of compensation