Introduction

The intellectual property rights protection regimes of the member States of the Gulf Cooperation Council (GCC) have undergone dramatic and progressive change and development over the last twenty years - since the establishment of the World Trade Organisation (WTO) and the compliance obligations enshrined in the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement). The major trend has been a shift towards greatly increased codification of law which has entailed increasing substitution of institutionalized procedures for former informal, discretionary exercise of personal authority sometimes based on local interpretation of Shariah legal principles. But having the requisite intellectual property laws, even if they are not fully compliant with the TRIPs Agreement, is one thing; being able to effectively enforce them and achieve the desired and required outcomes is another matter.

This chapter examines the challenge that exists amongst the GCC member States and Yemen as an aspiring GCC member, between the principle of intellectual property protection as enshrined in the various legislative regimes, and its practical application as exemplified by the nature of effective enforcement action. It suggests that there is a disjunct between the two, notwithstanding the presence of comprehensive sets of laws and treaty commitments throughout the region.

The GCC member States can now largely demonstrate comprehensive statutory regimes and are progressively initiating the consequential structural, judicial, and institutional reforms to give those regimes full and proper effect. However, the effectiveness of the enforcement outcomes, particularly in respect of the deterrence capability of sanctions, have yet to reach the standards required by the developed nations who constitute the major global exporters of intellectual property.

While they have generally succeeded in establishing the necessary legislative regimes and judicial frameworks that address the above TRIPs Agreement requirements (although not exclusively within intellectual property frameworks), the States have not been as successful in creating and bringing to a state of operational effectiveness the essential infrastructural and administrative strategies and processes.

TRIPS Enforcement Obligations and the Response of the Gulf States

Background

The TRIPs Agreement Part III requires WTO members to provide under their domestic laws a comprehensive regime that ensures that the intellectual property rights established in Part II of the Agreement can be effectively enforced, both by their own nationals and by foreign right holders.