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Trade facilitation through border enforcement of Intellectual Property Rights: issues, concerns and possible remedies

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posted on 28.03.2022, 19:12 by Syed Saifuddin Hossain
In the present era of rapid globalisation, countries are intrinsically integrated with each other by way of international trade to ensure optimal utilisation of their resources. Trade facilitation is now recognised as a key driving factor in determining export competitiveness of a country. Customs administrations, the frontier border agency responsible for regulating import and export of legitimate goods, are increasingly faced with the challenge of intellectual property rights (IPR) infringement. In addition to national governments, various international organisations have devised guidelines and tools to facilitate and empower Customs agencies in their fight against IPR infringement. In particular, the multilateral Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) articulates a prescription for border enforcement of IPRs in Articles 51-60. In this backdrop, this thesis attempts to answer a very fundamental question: What are the implications of ‘Border Measures’, specified under the WTO TRIPS Agreement, for facilitating international trade? To this end, it critically examines the concepts of trade facilitation, TRIPS and IPR protection to highlight the links that connect them and the missing links that need to be established. Obligations to protect IPR under national and international laws are also scrutinised. Research shows that efforts by WTO, World Customs Organization (WCO) and World Intellectual Property Organization (WIPO) have been instrumental in this context. While policy planning at the national level should be the first priority, commitment by the advanced economies to support their less developed counterparts through technology transfer (TT) is of paramount importance. The thesis suggests that TRIPS-plus provisions, if implemented arbitrarily by developed countries, have the potential to undermine the interests of countries with resource constraints. In this context, the thesis analyses the effects and implications of the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership (TTIP) agreements, and the Revised Kyoto Convention (RKC) for the border protection of IPRs. The thesis investigates the socio-economic impacts of IPR infringement and articulates strategies to be adopted and applied at individual, collective, business and government levels to stop trade and use of IPR infringed goods. Drawing on the analysis of the relevant WTO Articles, scrutiny of various border measures put in place by national governments and international bodies, and current state of play under the Doha Development Round (DDR), the thesis puts forward a set of short and long term policy recommendations for all relevant stakeholders. These inclusively include: (i) strengthening risk management procedures; (ii) cooperation and coordination at national and international levels; (iii) awareness raising initiatives; (iv) establishing advanced technologically driven border enforcement system; (v) empowering Customs with effective administrative authority; (vi) IP related technical capacity building within the Customs and business community; (vii) technology transfer to LDCs from developed countries; and (viii) LDC friendly dispute settlement process under the WTO.

History

Table of Contents

Chapter 1. Introduction -- Chapter 2. Trade facilitation, TRIPS and IPR protection : links and missing links -- Chapter 3. TRIPS agreement and border enforcement of IPRS -- Chapter 4. Role of Customs as a border security agency -- Chapter 5. Socio-economic impacts of IPR enfringement -- Chapter 6. Conclusion and recommendations.

Notes

Theoretical thesis. Bibliography: pages 262-274

Awarding Institution

Macquarie University

Degree Type

Thesis PhD

Degree

PhD, Macquarie University, Faculty of Arts, Department of Macquarie Law School

Department, Centre or School

Macquarie Law School

Year of Award

2016

Principal Supervisor

M. Rafiqul Islam

Additional Supervisor 1

Niloufer Selvadurai

Rights

Copyright Syed Saifuddin Hossain 2016. Copyright disclaimer: http://mq.edu.au/library/copyright

Language

English

Extent

1 online resource (xxiv, 274 pages)

Former Identifiers

mq:55711 http://hdl.handle.net/1959.14/1151546