Intellectual Property provisions in Regional Trade Agreements and the TRIPS Agreement David Vivas-Eugui International Centre for Trade and Sustainable Development WTO Seminar on Regional Trade Agreements, November 2003

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

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 S&D Increased primacy of private rights vs. public interest Increasing concerns about TRIPS-plus in developing countries, academia, and civil society organizations

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

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

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 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

Some cases of RTAs with IPRs provisions: Asia and Africa Regional Trade Agreements Treaty/regulationNature 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 AgreementSubstantive, procedural obligations, cooperation and common registration services Broad: it includes industrial property and breeders rights

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) A case study the FTAA Chapter on IPRs (1)

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

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, S&D treatment is actually incorporated and enhanced