1 Managing Bilateralism and Multilateralism to Achieve IP Policy Objectives CIPP Workshop Buenos...

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Managing Bilateralism and Multilateralism to Achieve IP

Policy Objectives

CIPP Workshop Buenos Aires – September 2006

Maristela BassoBrazil

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Contents1. Multilateralism in intellectual property standards setting: A broke

promise2. The post-TRIPS age: From “old” to “renewed” bilateralism

patterns3. Post-TRIPS Age4. TRIPS-Plus and Extra Standards 5. The potential consequences of including IP in bilateral and

regional agreements for Latin American developing countries6. Managing effective strategies with regard to the relevant IP

development in various multilateral forums7. Combining multilateralism, regionalism and bilateralism for

developing countries: Dialogue not Coercion!8. Intellectual property policy on developing countries: Strategic

issues and alternatives for the future9. From theory to practice

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Multilateralism in IP standards setting: A broke promise

• Developing countries might reasonably have expected the WTO and WIPO to became the ultimate forum for new IP standards negotiations

• Despite these expectations no apparent decline in bilateral trade-based negotiations activity for IP occurred after TRIPS

• On the contrary, the level and the number of negotiating strategies set by developing countries (USA and UE) roughly increased

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The Post-TRIPS Age: From “old” to “renewed” bilateralism patterns

• The old US Bilateralism – response to its failure to obtain an agreement on counterfeit goods at the end of the Tokyo Round (1979)

- Section 301: The main enforcement tool of the US Trade Policy to obtain extraterritorial protection for US IP

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Post- TRIPS age

• Renewed bilateralism: the same tools of the old bilateralism to impose much stronger rules of IP rights than those of under in force of the WTO

• Old/Renewed bilateralism: involves new rules and powers and, ultimately, it leads to a complex reality of bilateral and regional “TRIPS-Plus” treaties

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TRIPS- Plus and Extra Standards

• These standards are being introduced through a range of bilateral, regional and sub-regional agreements between 2 or more countries

• Negotiated outside the multilateral system governed by WTO

• These agreements require higher and extra standards of protection than those provided by TRIPS

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• The most important of these agreements – in terms of economic power relations – are:

– Free trade agreements – FTAs (or Preferential Trade Agreement – PTAs)

– Bilateral Investment treaties – BITs

– There are more than 1,800 bilateral investment treaties currently in force – a five-fold increase since the end of 1980s

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• Most are signed between developed and developing countries (the US, Europe and Asia have signed the largest share)

• A full quarter of BITs are now between developing countries

• Investment in these treaties specifically concerns intellectual property provisions

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• With regard to the mantra of National Treatment and Most-Favored-Nation (MFN) principles parties are expected not only to facilitate and open their borders to foreign investment, but also to provide the “The highest international standards” of intellectual property protection

• Parties are expected to allow the full repatriation on IP rights

• No expropriation is allowed

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The potential consequences of including IP in bilateral and regional agreements in Latin

American Developing Countries CAFTA: US – Central America Free Trade Agreement

Chile and US Free Trade Agreement

FTAA – Free Trade of the Americas

According to the World Bank – the per capita income in Latin American and Caribbean is less than 10% of the US

Consequently: the majority of the people who will be affected by the FTAs and BITs are poor (in comparison to US general standards

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American Developing Countries• The analysis clearly illustrates that in a

sector where developing countries have trade interests – benefits will usually come later, or it might even take new round of negotiations to be achieved

• However, there are certain areas of developed countries interests (such as US and EU) which benefits are faster obtained

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American Developing Countries• New and higher standards of IP protection

for pharmaceutical products:

- The extension of patent terms

- Limits to compulsory licensing

- Mandatory five-years data exclusivity

- Linkage of patent and regulatory authorities

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Managing effective strategies with regard to the relevant IP developments in various

multilateral forums World Trade Organization (WTO) Council for Trade-Related Intellectual

Property Rights • TRIPS and public health: There are several concerns about the appropriate

legal form of an amendment to TRIPS that would allow the export of pharmaceutical products, under a compulsory license, to countries that are devoid of domestic manufacturing capacities. The revision of article 31 (31 bis) is a good example (Decision to the December 6, 2005, Agreement on an Amendment to TRIPS).

• TRIPS and the Convention on Biological Diversity (CBD): Brazil, India, Pakistan, Peru, Thailand and Venezuela, supported by Cuba and Ecuador, submitted a new proposal to the consideration of the TRIPS Council (IP/C/W/429). This new submission expands on the broader proposal made by a number of developing countries in March 2004 and opposed by the US and Japan, which suggested a check list of issues to cover the negotiations for biodiversity—including disclosure of origin, evidence of prior, informed consent and benefit sharing. The new proposal explores in greater detail disclosure requirements relating to the origin of genetic resources and any traditional knowledge used in an invention.

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multilateral forums• Non-violation and situation complaints: Non-violation and situation

complaints under TRIPS were included in this TRIPS Council meeting as a specific item of the agenda.

• Working Group on Trade and Transfer of Technology (WGTTT): The submission proposed by European Communities focuses on expertising in a particular technology transfer channels including foreign direct investment, licensing and franchising.The submission takes into account both home and host countries factors, such as domestic policies, the linkage between trade and transfer of technology, and how one could enhance and facilitate the other domestic policies. Some developing countries have presented two recommendations (WT/WGTTT/W/6) in conformity with this issue. The first suggests that provisions set forth in various WTO agreements relating to technology transference should be examined to make them both operational and meaningful. The second proposes an analysis of how to mitigate the negative effects of provisions that may hinder or, in a broader sense, block the transfer of technology to developing countries. Members also identified Article 31 of TRIPS as a provision of particular interest within this scenario.

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multilateral forumsWorld Intellectual Property Organization (WIPO)

• A proposal to establish a Development Agenda at WIPO and place it within the framework of international instruments such as the:

– United Nations Millennium Declaration;– Programme of Action for the Least Developed Countries for

the Decade 2001-2010;– Johannesburg Declaration on Sustainable Development;– Declaration of Principles and Plan of Action of the First Phase

of the World Summit on the Information Society; and– São Paulo Consensus adopted at UNCTAD XI.

• Proposal on a New Work Plan for the Substantive Patent Law Treaty (SPLT).

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multilateral forums• Proposal to increase Patent Cooperation Treaty

(PCT ) fees.• Standing committee on copyright and relating

rights (SCCR).• Convention on Biologic Diversity (CBS) invitation

to WIPO on genetic resources and disclosure requirement in intellectual property applications.

• The Assemblies also considered applications for permanent observers’ frameworks. This includes private sector organizations such as public interest NGOs and the Civil Society Coalition (CSC).

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multilateral forumsOther Multilateral Forums

• Intellectual property and related issues are often considered in a number of international organizations, such as:– World Health Organization (WHO)

The WHO has established a Commission on Intellectual Property and Public Health (CIPPH) to report on the links between intellectual property rights, innovation and public health. The CIPPH addresses the question of appropriate funding and incentive mechanisms for the creation of new medicines and other products against diseases that disproportionately affected developing countries.– United Nations Commission on Trade and Development

(UNCTAD)– United Nations Educational, Scientific and Cultural Organization

(UNESCO)

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multilateral forums- The United Nations Human Rights Bodies and Committees

• Over the last four years, there has been a clearly discernible trend for the human rights community and various UN bodies to examine and explore the implications of intellectual property for the protection and promotion of human rights, with a particular emphasis on the potential consequences of including intellectual property in bilateral free trade agreements. For instance, in a document made public on the October 4, 2004, the UN Committee on the Rights of the Child strongly recommended that Botswana, a Member of SACU, ensure that “regional and other free trade agreements do not have a negative impact on the implementation of children’s rights,” and noted that trade agreements should not “affect the possibility of providing children and other victims of HIV/AIDS with effective medicines for free or at lowest price possible

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Combining multilateralism, regionalism and bilateralism: Dialogue not coercion!

• For developing countries it is important to build an institutional infrastructure for evaluating and reconciling international intellectual property standards with systems of national and regional innovation.

• There is no doubt that a re-regulated global market does not benefit developing countries. While there are many theories about why their economies ultimately failed in implementing systems of innovation, one points to the simple lack of agility, skill, infrastructure, and industrial culture to compete with the innovation-based markets that drove the economic growth in the last quarter of twentieth century.

• There are consistent reasons to believe that, if the trend toward more and stronger standards of intellectual property rights protection remains unabated, as seems likely, even the long-term growth prospects of the most developed countries will be deterred..

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• Just when the developing countries may empower themselves to reach the next level of economic development, they might discover that the re-regulated global economy has indeed removed the ladder from under their feet.

• Maintaining a proper balance of public and private interest in the production of knowledge goods is important for all countries, but it seems indispensable for the technical progress of developing countries.

• If further agreements on intellectual property rights do not create a reasonable trade-off between welfare and innovation, and if re-regulation turns out to hamstring even the most advanced of developed countries, it could constitute a hard ceiling on the continuing evolution of prospective growth in developing countries

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• An important recommendation could be a moratorium on new international (multilateral, bilateral and regional) standards and reciprocal commitments against a non-controlled and, therefore, extreme free riding. With every increase in international intellectual property standards, there will be a corresponding loss of flexibility under TRIPS

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Intellectual property policy on developing countries: Strategic issues and alternative

for the future • Our challenges:

- How to evaluate individual projects or programmes of particular institutions (this is fairly easy), but how to develop a framework that can help developing countries to know where they are and what kind of problems they have;

- How to evaluate, over time, the overall contribution of many programmes and projects to the ultimate goals of ensuring that countries adopt intellectual property (IP) regimes that are appropriate for their development; and to know when and how to change these approaches.

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for the future• The evidence of poor design and delivery

of IP technical assistance is certainly in the inability to developing countries to incorporate the TRIPS flexibilities into their domestic legal institutions and policies, and to situate their IP policies in the overall development framework. In this sense, developing countries should review their own capacities and needs

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for the future• Appropriate and effective capacity building

will be crucial, especially if these countries intend to effectively use IP tools by virtue of their sustainable development goal.

• Priority areas and issues for future consideration regarding the legal design of IP in developing countries include:

* Training and human resource development;* Advice on legal and policy reform;* Institutional development and automation;

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for the future

* Patent information co-operation;

* Donors, programming policies and financing;

* Trade and investment should be seen not as ends in themselves, but rather as means for achieving equitable and sustainable development.

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From theory to practice

Some suggestions are drawn to alleviate TRIPS-Plus alternatives’ effects upon developing and least developed countries:

• Redirect international attention to human rights rules, which are binding on intellectual property and international trade treaties, and which are proportionally much stronger and more persuasive in civil society. Regardless of the fact that resolutions and recommendations—not only of international organizations but also from the third sector—are influential, it is crucial to consider to what point they have been followed.

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• Be more conscious of civil, political and economic rights as potential instruments to achieve the common good. Require transparency in all negotiations, including international trade agreements such as FTAs and BITs, that shall consider civil society participation, or at least small representative groups of diverse interests.

• Bring the above mentioned fact (2) into question at international Community forums, particularly at WTO and TRIPS Council, so as to assure that the above-mentioned practices do not ever infringe upon developing and least developing countries’ legitimate interests

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• Ensure that certain clauses set forth in BITs and FTAs are in accordance with the principle of good faith. Comparative disadvantages between the parties have to be taken into consideration in the light of the context, object and the purpose of the agreement, pursuant to Vienna Convention on the Law of Treaties, namely articles 53, 61 and 62 (Judges have important rules)

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• Adopt internal measures related to BITs and FTAs signed by some countries, with the intention of alleviating some of the effects of the rules by adopting the most favorable definitions or reinterpretations of the terms and general clauses of the agreements.

• Ensure that multilateralism and bilateralism are in harmony; agreements cannot be mutually exclusive when properly conducted. Regional agreements should represent strengths, so that developing or least developed nations with similar characteristics obtain comparative advantages when negotiating with developed countries, attempting to construct a more balanced economic order.

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• The “old regionalism” should be substituted for a “new regionalism,” promoting sustainable development in a diversity of areas. In other words, “new regionalism” is a model of strength and transition for the developing and least developing countries as well as a new form of multiregionalism that results from regional integration as a way of promoting fair and free trade

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• Thank you ….

• [email protected]

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