[Jhonny Antonio Pabón Cadavid and Carlos A. Conde-Gutierrez] At the end of May, Colombia and Latvia have been invited to be part of the Organisation for Economic Co-operation and Development (OECD). Through the ensuing discussions related to the entry to OECD, Colombia should demonstrate compatibility with the principles of OECD, including its intellectual property standards. During recent years one area of OECD´s “aid for trade” in Colombia has been the training and campaign for protection and active enforcement of IP.
President Juan Manuel Santos has rhetorically suggested that by entering the OECD the country could adopt the OECD’s standards (Mr Santos calls the OECD “the club of best practices”). Mr Santos’ government has made the Colombian accession to the OECD a priority. An issue that must be a real concern for Colombia is that “best practices” on IP are the ones established by the USA and the European Union (which are the leading countries in the OECD). However, the implementation of these “best practices” does not take into account that Colombia remains a developing country with an extremely low investment in R&D of just 0.18% of GDP. There are also significant barriers for access to medicines, a low funded educational system, high levels of corruption, and above all a prevalent armed conflict.
Colombia has also taken a leading role in the Pacific Alliance, a group of Latin-American countries (Chile, Mexico and Peru) that already have Free Trade Agreements (FTAs) with the US and which IPRs policies are standardized under the criteria of the US FTAs. The Colombia government has already declared interest in joining the Trans-Pacific Partnership (TPP), even though the country has not taken part in the negotiations. Furthermore, Colombia has also declared an interest in being part of Asia Pacific Economic Cooperation (APEC); an organization that promotes trade among 21 countries of the pacific region including the USA, Australia, China and New Zealand.
Colombia has begun a path towards the adoption of developed countries’ policies in different issues such as corporate taxes, transnational anticorruption practices, and intellectual property rights; yet Colombia remains a developing country.
Accession of Colombia to OECD will affect Colombia’s IP policies and the role of the country in international organisations such as the World Trade Organization (WTO) and the World Intellectual Property Office (WIPO). In some aspects of IP, Colombia has side with developing countries’ agenda in international organisations. For instances, in 1999 during the negotiations of the Patent Law Treaty of the WIPO, Colombia submitted a proposal before the Standing Committee on Patents of the WIPO (SCP) which called State members of the organisation to enact patent procedures that secure protection of developing countries’ biological and genetic resources. Although the proposal was not adopted, it led to the creation of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) in which developing countries have been able to create an international agenda on the protection of biodiversity and traditional knowledge despite the fact that developed countries have opposed to the inclusion of these aspects in the World Trade Organisation (WTO).
However, Colombia is swapping its support towards developed countries. In the recent UN Human Rights Council (11 June 2013) Colombia aligned its position to the USA’s on access to medicines in the context of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, taking a step apart from the position of Brazil, UNASUR (a Latin American Organisation that aim to counterbalance the USA influence in the region) and other developing countries. According to the US Ambassador, one of the reasons the USA opposed the Brazilian proposal was its emphasis on issues of IP. The resolution presented by Brazil attempts to place in the agenda of the Human Rights Council a support for a flexible IP system. For example:
“To apply measures and procedures for enforcing intellectual property rights in such a manner as to avoid creating barriers to the legitimate trade of affordable, safe, efficacious and quality medicines, and to provide for safeguards against the abuse of such measures and procedures” and “To promote access to medicines for all, including through the use, to the full, of the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) which provide flexibility for that purpose, recognizing that the protection of IP is important for the development of new medicines, as well as the concerns about its effects on prices”.
However, Colombia is not the only developing country which has been through a change of international policy on IP. Other countries such as Chile and Mexico have already transformed their IPRs policies to adopt OECD standards. Indeed, both countries have facilitated patents on medicines and biotechnological inventions as well as adopting stronger IPRs standards in trademarks and copyrights. Although implementation of OECD standards in Mexico and Chile has faced opposition and criticism from local industries and politicians, both countries are committed to pass IP reforms. Nevertheless, Colombia does not have the same infrastructure and technological capability of Mexico and Chile.
Mr. Santos’ analogy of international trade organisations with clubs reflects his government efforts to comply with their “admissions” requirements, including IP mandates and standards. By joining in the OECD, TPP, and APEC, Colombia will have to implement developed countries’ trade policies such as being more open to foreign investments and adopting stronger IP standards. It remains to be seen whether Colombia’s efforts to join these “clubs” and to take a different stand from proposals of developing countries in international organizations such as the UN Human Rights Council, will be in the best interest of Colombian citizens.