Pedro Roffe, Sergio Escudero and Xavier Seuba
The following is an excerpt from the executive summary of a forthcoming paper. The paper was written under an IISD project funded under the Knowledge Partnership Programme of DFID India and IPE Global Pvt Ltd. The views are strictly those of the authors.
The report addresses recent developments in the area of intellectual property rights (IPRs) since the adoption of the TRIPS Agreement (1994) with particular emphasis on trends in preferential trade agreements (PTAs) and plurilateral initiatives such as the Trans-Pacific Partnership Agreement (TPP), ACTA and the new agenda of the European Union (EU) on intellectual property... Principle conclusions of the report:
TRIPS has been a major stepping stone in the process of IP convergence paving the way for the proliferation of PTAs.
The PTAs phenomenon initiated immediately after the adoption of the TRIPS Agreement has proliferated in recent years, with the participation of an increasing number of emerging economies, which sometimes also conclude PTAs with IP provisions between themselves.
IP has been a controversial component of PTAs and an important bargaining chip used by advanced economies.
PTAs are the principal arena of norm setting negotiations explained in part by the paralysis or inability of multilateral institutions to build new consensus. For some, the new generation of IP norms is bringing into being precisely at this level.
The TPP is an ongoing process well advanced at the negotiating phase. KORUS is an important guide to judge the content and even the impact of the agreement. It is foreseeable that TPP would not be less demanding than KORUS.
Generally, higher IP standards in the pharmaceutical sector have been adopted in exchange of improved market access to powerful economies. KORUS and the European PTA with South Korea set the bar for future initiatives, including the TPP.
Among the areas attracting most of the attention and concern, public health stands out. New intellectual property rules have enhanced the position of pharmaceutical patents owners, particularly thanks to the conclusion of PTAs.
In recent years the trend towards strengthening patent protection has converged with another trend consisting of the inclusion of technical and regulatory standards relating to pharmaceutical products, which also benefits the position of innovative companies.
New enforcement rules have clarified and strengthened the enforcement related standards set forth in TRIPS Part III. In some cases, enforcement norms cover areas unregulated in TRIPS.
New norms on enforcement raise questions because of the general inclination to- mostly or solely- reflect the interests of right holders. This unbalance generates tensions vis a vis the protection of priority legal interests (health, privacy, access to information) and the objectives of the multilateral trade system, fundamentally that of enhancing free trade.
Following the failure of ACTA, PTAs remain the key instrument to increase the normative standards relating to IP enforcement. TPP will probably be not only TRIPS plus but also ACTA plus, as far as enforcement is concerned.
New IP commitments based on the transplantation of foreign law raise important issues and risk to increase the judicialization of IP matters.
Emerging economies participating in PTAs need to consider their medium and long term strategies and implement the new commitments without upsetting their policy space in sensible areas of development such as health, nutrition and education and preserve their initiatives to promote their scientific and technological development. Smart implementation of new commitments should be strategically considered from the outset of negotiations.
According to informal sources, and at the time of writing, TPP negotiations are near completion. Technical work has been sealed and outstanding issues have been elevated to a political level. A US trade authority bill is under consideration in Congress with partial bipartisan backing. The stake of the TPP in US Congress is of paramount importance but one should not neglect the views and positions of civil society, media and parliaments in the other 11 countries negotiating the agreement.
Full working paper available at: http://www.ipekpp.com/admin/upload_files/Report_3_54_From_2237283020.pdf
