Steps Towards an Alignment of Intellectual Property in South-South Exchanges: A Return to TRIPs

Some of the most instrumental players in shaping the course of intellectual property policies in the South are the so-called BRIC countries. The acronym BRIC originally encompassed Brazil, Russia, India and China. In 2011, South Africa formally joined the BRIC countries, which are now referred to either by the original acronym or by BRICS. While categorizations like BRICS attract a fair amount of criticism, with questions surrounding the criteria used to aggregate disparate economies, the concept of emerging economies in the South seeking to advance similar development agendas has become accepted currency in multiple fields, from institutional cooperation to financial analysis and investment.Since the first BRIC summit, which took place in 2009, the range of areas on which the BRICS cooperate or plan to cooperate has expanded considerably. One of the areas that gained increasing attention from BRICS policy makers is intellectual property, particularly since 2013, when these countries signed their first agreement on cooperation between intellectual property offices. The agreement, known as the Roadmap, focuses primarily on cooperation in patent matters, and has the potential to trigger an alignment of patent policies in the South – or, more accurately, in the most economically-empowered arenas of the South.As the Roadmap comes into force, this article explores options for further cooperation between BRICS – and, potentially, developing countries in general – beyond the patent field. It begins by noting that patent law, in the form of TRIPS flexibilities, has consistently been at the heart of the boldest and most controversial intellectual property measures adopted by some of the leading economies of the South. It then describes the main features of the recent Roadmap, with an emphasis on its patent-centric design. The article proceeds to propose a set of TRIPS-compatible measures outside patent law that countries seeking to advance development agendas have yet to explore. In an era in which post-TRIPS and post-WTO approaches often relegate treaty interpretation to a residual position, these measures are derived from TRIPS and have the potential to further the innovation agendas of developing countries without increasing the overall levels of domestic intellectual property protection