I ntellectual Property provisions in R egional Trade Agreement s and the TRIPS Agreement

1. Intellectual Property provisions in Regional Trade Agreements and the TRIPSAgreement 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 S&D • 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 RegionalTrade 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

7. Some cases of RTAs with IPRs provisions: Asia and Africa

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 technologymust beconsidered” 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, • S&D treatment is actually incorporated and enhanced