1. Intellectual Property provisions in Regional and Bilateral Trade Agreements in the Americas David Vivas-Eugui International Centre for Trade and Sustainable Development, 2004

2. Road Map Introduction Regional and Bilateral Trade Agreements with IP provisions: Why and how many? Some concerns, costs and benefits of implementing new IP rules Regional Trade Agreements and the TRIPS Agreement Negotiating and systemic issues in the FTAA negotiations Two cases of BTAs with IPRs provisions: US-Chile US-CAFTA Some lessons from Regional and bilaterals Trade Agreements

3. RTAs with IP provisions  Why developed countries are interested in IPRs commitments in RTA  Increased interest in protecting investment in new technologies  Need to consolidate market access of products with high technological content  Existence of a minimum floor  Why Developing countries get into RTA with IP commitments?  Need for market access and consolidation of unilateral tariff preferences  Expectations about investment  Privileged relationship with the leading economy  Political and security concerns  Increasing number of RTAs and bilaterals  1994: 100  2004: more than 250

4. Some concerns, costs and benefits of implementing new IP standards Public policy concerns  Implementation of the TRIPS remains unfinished  Reduction of the public domain  Need of complementary innovation and R&D policies  Limits may be establish to follow on research activities  Difficulties in keeping or using flexibilities  Lack of S&D  Lack of synergies with CBD and ITPGR Direct costs:  Legal framework reform: laws and regulations  Institutional reform: Administrative and judicial  Infrastructure costs  Maintenance of capacities  Potential and actual benefits  Potentially attracts foreign investments –it is one factor but it is not the most important  Promotes certain types of innovation;  Protects the investment in R&D and in certain activities linked to particular industries;  Increases willingness of holder of technology to license “hard core” technologies;  Increases revenues of IPR offices.

5. RTAs 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 4d) 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/regulationNature of obligations Coverage ANDEAN COMMUNITY Cartagena Agreement. Decisions 486,351,345 and 391 Substantive and procedural obligations + Jurisprudence Very Broad TRIPS standards with deep harmonization G-3 FREE TRADE AGREEMENT Free trade Agreement between Mexico, Colombia and Venezuela Substantive and procedural obligations Broad TRIPS like standards NAFTA Free trade Agreement between Canada, Mexico and the US IdemBroad Limited TRIPS + MERCOSUR Harmonise Protocol on Trademarks, Geographical Indications and Indications of Source IdemLimited to trademarks signs and GIs SIECA Convenio Centroamericano para la Protección de la Propiedad Industrial IdemLimited to trademarks and signs

7. PartiesStatusNature of obligations Coverage US Chile EU Chile Signed to be ratified Substantive and procedural obligations Very Broad TRIPS ++ standards US -CAFTA Signed to be ratified Substantive and procedural obligations Very Broad TRIPS+++ US- limited Andean (Colombia, Ecuador y Peru) In process IdemVery Broad Limited TRIPS ++++ FTAA In process IdemTRIPS +++ New regional and bilateral processes

8. Negotiating and systemic issues in the FTAA negotiations Systemic issues  More restrictive legal interpretations  Incorporation 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 (CBD)  4 future treaties  Expansion of the subject matter and rights conferred in the case of patents  Expansion of the periods of protection  New costs for implementation and enforcement  Subject to dispute settlement/non violation Negotiating links  Trade offs in free trade agreements: need for assessments  Block power but not bargaining power  The never ending story  MFN in TRIPS (article 4d)  Difficulties in recovering space for public policy  The transparency issue  Multilateral setting is always better

9. US-Chile and US-CAFTA  Main contents and features  Preamble:  Only in the US-CL, this is an exception in US bilaterals  Direct recognition of Doha Declaration principles US-CL  Main obligations:  Non derogation clause: The rights and obligations under the TRIPS are not derogated (only the US-CL, and US/CF not in other bilaterals);  Direct incorporation of 7 WIPO treaties and best efforts to incorporate 4 other;  National treatment: “protection” but also “enjoyment” of rights of nationals;  MFN: not included in both BTAs.  Right to take measures against anticompetitive practices;

10. US-Chile and US-CAFTA Patents, regulated products and plant varieties  Omission of 27.2 and 27.3 of TRIPS;  Relaxation of the patentability criteria in the US-CAFTA.  Definition of industrial application as “specific, substantial and credible utility” - US/CF;  Expansion of the subject matter:  Undertake all reasonable efforts to protect plant through patents;  Obligation to ratify UPOV 91 – US/CL and best efforts US/CF;  Exclusive rights on data of regulated products for 5 years in case of pharmaceutical –10 years agrochemicals;  Compensation for delays in granting patents (delays of more than 5 years);  Revocation of the patents only when grounds are the same as the refusal of granting the patent: lack of novelty, inventive step or industrial application (mandatory disclosure of origin may become incompatible);  Electronic filing of Patents (PCT and PLT).

11. Copyrights and related rights  Incorporation of new WIPO treaties WCT and WPPT and DMCA  Extension of the period of protection in copyrights: life + 70 years  Exceptions to copyrights are based in the DMCA  Software for government use must be duly authorized  Inclusion of legal effective measures against technological circumvention  Protection of programme carrying satellite signals  Availability of dispute settlement for domain names US-Chile and US-CAFTA

12. Geographical indications, trademarks and other signs  Protection for certification, collectives and sound trademarks.  Best endeavor clause to protect scent TM and GIs  Special protection to well known trademarks  Provision an electronic filing system  There is an article on mutual protection of listed GIs.

13. Some lessons for Regional and Bilaterals Trade Agreements  In the case of Trade Agreements with the US IPRs is “the trade off”  Negotiation capacity can make a difference in results  Cost and benefits assessment needs to be undertaken prior to negotiations  Negotiators have affirmed that civil society action is fundamental to mild excessive requests  More IP protection is a one way street, it is very difficult to go back  The TRIPS and Public Health Doha Declaration and other flexibilities are being weakened  S&D is basically a timetable for implementation  No solutions were provided to biodiversity concerns  It is obvios that the bargaining power of developing countries is reduced in bilateral negotiations