Intellectual Property provisions in Regional Trade Agreements and the TRIPS Agreement

1
Intellectual Property provisions in Regional
Trade Agreements and the TRIPS Agreement
WTO Seminar on Regional Trade Agreements,
November 2003

• David Vivas-Eugui
• International Centre for Trade and Sustainable
  Development

2
Road Map

• Current trends in intellectual property rule
  making at the international level
• Regional Trade Agreements and the TRIPs agreement
• Regional Trade Agreements and IPRs
• Some cases of RTAs with IPRs provisions
• A case study the FTAA Chapter on IPRs
• The need for a positive development agenda in
  IPRs negotiations
• Conclusions

3
Trends in IPRs rule making at the international
level

• Existence of multifora negotiations
• Progressive harmonization
• Extension of subject matter patentability of
  life forms, software protection, etc.
• Creation of new forms of IPRs integrated
  circuits, sui generis (semi conductors, plant
  varieties, TK)
• Extension of the terms of protection
• Need for political decisions to keep flexible
  interpretations
• Reduction of technology transfer clauses
• Limited SD
• Increased primacy of private rights vs. public
  interest
• Increasing concerns about TRIPS-plus in
  developing countries, academia, and civil society
  organizations

4
Regional Trade Agreements and IPRs

• Why IPRs commitments are included in Regional
  Trade Agreements?
• Increased interest in protecting new
  technologies
• Need to consolidate market access of products
  with high technological content
• Existence of a minimum floor (the TRIPS
  Agreement)
• Increasing number of RTAs more than 250
• Increasing number of RTAs with IPRs provisions
• US more than 43 in 2003
• EU more than 27 in 2003
• In the Americas 5 RTAs have IPRs rules of which
  4 are among developing countries
• Increasing inclusion of IPRs related provisions
  and coverage in trade, investment and stand alone
  bilateral agreements
• BITS IPRs as an investment, fair and equitable
  treatment/international standards, prohibitions
  on performance requirements, investor-state
  dispute settlement
• BIPS Agreements of focus nature

5
Regional Trade Agreements and the TRIPs

• The Most favored Nation clause in the TRIPS
  Agreement
• The legal nature of article 4d) of TRIPS and its
  expansive effect
• Possible legal Interpretations of article 4d) of
  TRIPS
• Only legal provisions adopted before 1995 would
  not be covered by the MFN exemption
• Subsequent laws, regulations or jurisprudence
  in the course of regional integration
• Some examples of Notifications under Article 4
  d) of TRIPS
• Treaty of Rome notification includes existing
  IPRs provisions, jurisprudence and future acts
• The Cartagena Agreement provisions and its
  application but also future regulations
• Treaty of Asuncion provisions, decisions,
  resolutions, guidelines adopted or to be adopted
  
• The NAFTA the NAFTA treaty to be exempted for
  MFN clause

6
Some cases of RTAs with IPRs provisions the
Americas

•  

Regional Trade Agreements Treaty/regulation Nature of obligations Coverage
ANDEAN COMMUNITY Cartagena Agreement. Decisions 486,351,345 and 391 Substantive and procedural obligations Very Broad
G-3 FREE TRADE AGREEMENT Free trade Agreement between Mexico, Colombia and Venezuela Substantive and procedural obligations Broad
NAFTA Free trade Agreement between Canada, Mexico and the US Substantive and procedural obligations Broad
MERCOSUR Harmonise Protocol on Trademarks, Geographical Indications and Indications of Source Substantive and procedural obligations Limited to trademarks signs and GIs
SIECA Convenio Centroamericano para la Protección de la Propiedad Industrial Substantive and procedural obligations Limited to trademarks and signs
7
Some cases of RTAs with IPRs provisions Asia and
Africa

•  

Regional Trade Agreements Treaty/regulation Nature of obligations Coverage
ASEAN Framework Agreement on Intellectual Property Cooperation Cooperation activities (no substantive IPRs obligations) Broad not only covers IPRs but also technology transfer
ARIPO (African Regional Industrial Property Organization ) The Harare Protocol and the Banjul Protocol   Substantive, procedural obligations, cooperation and common registration services Limited to Industrial property
OAPI (African Intellectual Property Organization) Bangui Agreement Substantive, procedural obligations, cooperation and common registration services Broad it includes industrial property and breeders rights
8
A case study the FTAA Chapter on IPRs (1)

• The FTAA process the Mandate of San Jose
  Ministerial Declaration (1998)
• To reduce distortions in trade in the Hemisphere
  and promote and ensuree adequate and effective
  protection to intellectual property rights.
  Changes in technology must be considered
• The FTAA Chapter on IPRs
• 98 of the text in brackets
• No identification of the origin of the proposals
• Draft text open to the public in November 2002
• Not all sections are agreed by consensus
• Next step cleaning up the text
• Very ambitious text (TRIPS plus)
• The proposal for an FTAA Light (Brazil)

9
Negotiating and systemic issues in the FTAA
negotiations

• Systemic issues
• More restrictive legal interpretations
• Creations of new IPR areas
• A prior acceptance of existing or future IPRs
  commitments
• 9 treaties, 1 set of rules, 2 recommendations
  issued under WIPO
• 1 non IPR treaty
• 4 future treaties
• Expansion of the subject matter and rights
  conferred in the case of patents
• Expansion of the periods of protection
• New cost for implementation and enforcement

• Negotiating links
• The theory of the hammer and the anvil
• Trade offs in free trade agreements need for
  assessments
• Perpetual expansion of IP commitments
• The negotiating comfort of developed countries
  in the TRIPS Council
• MFN in TRIPS (article 4d)
• Difficulties in recovering space for public
  policy
• Lack of a transparency

10
Toward a positive agenda in IPRs Some concerns
of Civil Society

• Policy spaces to undertake all necessary measures
  to protect public health in light of the TRIPS
  and Public Health Declaration and subsequent
  decisions should be kept and enhanced
• Flexibilities to address public interest concerns
  in the TRIPS Agreement and national laws should
  be kept and enhanced
• The CBD and the new ITPGRFA principles, together
  with adequate legal mechanisms for assuring legal
  access, should be incorporated in relevant
  international, regional or bilateral IPR
  Agreements
• Protection of traditional knowledge and folklore
  should be provided for and fully developed
• Effective ways for facilitating technology
  transfer to be included
• Regulation against abuse of rights should be
  allowed and developed and,
• SD treatment is actually incorporated and
  enhanced
•