Author: ICTSD Staff

Current Alliances in International Intellectual Property Lawmaking: The Emergence and Impact of Mega-Regionals

International Centre for Trade and Development, Link (CC-BY-NC) ICTSD is pleased to publish the fourth issue in the CEIPI-ICTSD series on Global Perspectives and Challenges for the Intellectual Property System produced jointly with the Centre for International Intellectual Property Studies (CEIPI). The new issue, edited by Pedro Roffe and Xavier Seuba, explores the impact of plurilateralism on intellectual property law. The chapters making up the volume review systemic, substantive and enforcement-related issues that have been the focus of attention of trade agreements negotiated after the establishment of the WTO in 1994.  Since then, the number of free trade agreements has burgeoned. The new volume analyses the past, the current context, and the most recently negotiated trade agreements, namely those of a plurilateral nature. Importantly, it considers the impact and possible scenarios brought about by the present impasse surrounding the future of these agreements and, more generally, the consequences of plurilateralism and the implications of these trends for the international system. The volume includes papers authored by prominent scholars with contributions by Thomas Cottier, Frederick M. Abbott, Mira Burri, Peter K. Yu, Padmashree Gehl Sampath, Pedro Roffe, and Xavier Seuba. The CEIPI-ICTSD publication series provides high quality academic and policy-oriented papers dealing with topics that are of global relevance because of their normative pre-eminence, economic relevance, and socio-economic impact. The previous issues in the series can be consulted at: Intellectual Property and Access...

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TRIPS Council Meets on Public Health, Access to Medicines

[ictsd.org] WTO members reviewed last week a series of recommendations by a UN panel aimed at supporting access to medicines, debating in particular the report’s findings relating to trade and intellectual property rights. The discussions took place under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Council, which is the WTO body that administers the TRIPS Agreement. The 8-9 November meeting was chaired by Ambassador Modest Jonathan Mero of Tanzania. Balancing innovation and access According to Geneva sources, the September report by the UN Secretary-General’s High-Level Panel on Access to Medicines took up a significant part of the WTO discussions, with members ultimately deciding to continue reviewing its recommendations at their next meeting in February 2017. The panel was convened by Secretary-General Ban Ki-moon last year in a bid to examine ways for overcoming discordance in policy governing health technologies and the intersection between trade rules, international human rights law, public health, and the rights of inventors. (See Bridges Weekly, 22 September 2016) The process began in the wake of UN members’ adoption of the 2030 Agenda for Sustainable Development and related Sustainable Development Goals (SDGs), particularly the third SDG on “ensuring healthy lives and promoting the well-being for all at all ages.” That particular goal features a series of targets, such as reducing global maternal mortality and the preventable deaths of new-borns and children; ending epidemics such as...

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E-Commerce Returns to WTO TRIPS Council Agenda

The WTO’s Trade Related Aspects of Intellectual Property Rights (TRIPS) Council discussed the topic of e-commerce last week for the first time since 2003, sources said, during a 7-8 June meeting in Geneva. Other topics on the meeting’s agenda included sustainable resources and low emission technology strategies, and the perennial issues of non-violation complaints and the relationship between the TRIPS agreement and the Convention on Biological Diversity (CBD). In addition, the EU presented its new Trade Mark Directive and Trade Mark Regulation, which raised concerns with some members over possible restrictions on the transport of generic medicines through the 28-nation bloc’s borders. Click here for the full story on...

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Specialised Intellectual Property Courts – Issues and Challenges

[CEIPI, ICTSD, Link]  The establishment of the WTO Agreement on TRIPS (Trade Related Aspects of Intellectual Property Rights) and the proliferation of plurilateral, bilateral and regional agreements have significantly contributed to the increasing complexities of the intellectual property system. The emergence of new actors, reflecting conflicting expectations and the adoption of new trade agreements that often exceed the standards set by the TRIPS agreement, have resulted in a new density of rules that have further fragmented the international system. These developments have unavoidably called for further analysis by academics and stakeholders. The second issue of the Series Global Perspectives and Challenges for the Intellectual Property System -a CEIPI-ICTSD joint publication- deals with issues and challenges around specialised intellectual property courts. The diversity of special tribunals is remarkable. The courts may have jurisdiction over controversies related to all aspects of intellectual property rights or simply with respect to certain intellectual property categories. Professor Jacques de Werra (University of Geneva) wrote the lead article of this second issue. As highlighted by the author, under the TRIPS Agreement countries have the option to create specialised intellectual property courts and on this basis, countries are free to decide what types of judicial body or bodies have the jurisdiction to hear disputes. In this respect, the experience in both developed and developing countries varies. Jacques de Werra concludes that how advantageous or necessary it...

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Rethinking International Intellectual Property Law: What Institutional Environment for the Development and Enforcement of IP Law?

[ICTSD, Link] The establishment of the WTO Agreement on TRIPS (Trade Related Aspects of Intellectual Property Rights) and the proliferation of plurilateral, bilateral and regional agreements have significantly contributed to the increasing complexities of the intellectual property system. The emergence of new actors, reflecting conflicting expectations and the adoption of new trade agreements that often exceed the standards set by the TRIPS agreement, have resulted in a new density of rules that have further fragmented the international system. These developments have unavoidably called for further analysis by academics and stakeholders. Rethinking International Intellectual Property Law: What Institutional Environment for the Development and Enforcement of IP Law?, offers a collection of papers dealing with the institutional environment for the development and enforcement of intellectual property law. This issue seeks to identify key developments and trends. It brings diverse voices together to address key questions of international intellectual property law which increasingly play a central role in economic, social and ethical debates at a global level The authors in this volume [Christophe Geiger, Professor of the University of Strasbourg; Carlos Correa, Professor of the University of Buenos Aires; Craig Nard, Professor of Case Western Reserve University; Daniel Gervais, Professor of Vanderbilt University; Xavier Seuba, Senior Lecturer of the University of Strasbourg; Pedro Roffe, Senior Associate at the International Centre for Trade and Sustainable Development], introduce four overriding themes that characterise contemporary...

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WTO Members Approve TRIPS Non-Violation Extension, Debate E-commerce Language

WTO negotiators have agreed to extend a moratorium on “non-violation and situation” complaints under the organisation’s intellectual property rules for an additional two years, forwarding the planned decision to the global trade body’s upcoming ministerial conference for adoption. The news comes as WTO members continue discussing the extension of another moratorium on customs duties on electronic commerce, as well as a decision regarding next steps for an ongoing, related e-commerce work programme. These are also being eyed as outcomes for the ministerial, scheduled for 15-18 December in Nairobi, Kenya. Both the “non-violation” moratorium and e-commerce areas have long been standing items on ministerial conference agendas. Meanwhile, with the Nairobi meet just weeks away, WTO members are looking to see what other deliverables they will be able to put together for their highest-level meeting, as well as how to structure their future work. TRIPS non-violation Under the current “non-violation and situation complaints” moratorium, WTO members are only allowed to file a complaint about an intellectual property issue if the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) has allegedly been breached. In other words, the moratorium is designed to prevent members from suing each other over damage arising from alleged violations of the spirit – but not the letter – of the organisation’s intellectual property rules, such as through an action that a government takes or another situation that arises....

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US-India Trade Ties Worsen, Amid Claims of Protectionism

[International Centre for Trade and Sustainable Development, Link] US-India trade ties have continued to worsen in recent weeks, with Indian Trade Minister Anand Sharma accusing Washington this week of “high and unacceptable protectionism.” The remarks from New Delhi’s top trade official comes after months fraught with tension, with the two sides openly sparring on topics ranging from renewable energy policies to patent protections. In his remarks, Sharma defended India’s compliance with the WTO’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Washington has repeatedly said that New Delhi’s policies on patent protections effectively put US pharmaceutical companies at a disadvantage compared to Indian producers of generic drugs. Sharma has denied this, saying that what the US wants from India goes above and beyond TRIPS’ terms – adding that India “will never accept” TRIPS-plus style policies. Another area of disagreement between the two sides has been India’s domestic content requirements for solar energy products, which led Washington to file its second complaint with the WTO on the subject last month. (See Bridges Weekly, 13 February 2014) The US claims that these requirements not only make it difficult for its exports to enter the Indian market, but also hinder the spread of renewable energy resources globally. New Delhi trade officials have denied these claims, asserting that national policy is in full compliance with its WTO obligations. In what analysts have...

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Technical Note: The LDC TRIPS Transition Extension and the Question of Rollback

When the WTO agreements entered into force in 1995, least developed countries (LDCs) were given until 1 January 2006 to implement the obligations contained in the then-newly adopted TRIPS Agreement. In 2002, the LDC transition period was extended until 2016 for pharmaceutical patents, with a later decision in 2005 extending the period for all intellectual property rights until July 2013. The 2005 decision also had a “no roll back provision” providing that LDCs should not implement policies during the transition period with a “lesser degree of consistency with the provisions of the TRIPS Agreement.” In light of the impending deadline, on November 5, 2012, Haiti on behalf of WTO LDC Members requested a further extension of the transition “for as long as the WTO Member remains a least developed country.” The extension request is stated unconditionally in the sense that it does not incorporate a no-rollback commitment similar to that embodied in the 2005 extension. At the request of Nepal on behalf of LDC Members, this proposal was discussed at the TRIPS Council meeting of March 5-6, 2013. While most countries agree in principle with an extension, there are disagreements about the modalities of such a measure including its time frame and scope. In response to the request made by LDC members, some countries have proposed a limited extension and inclusion of a “no-rollback” clause. This Policy Brief prepared...

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TRIPS Council: LDC Extension, Tobacco Plain Packaging Take Centre Stage

WTO members this week discussed a proposal by least developed countries (LDCs) to extend their transition period for implementing the organisation’s intellectual property rules, which is set to expire this July. Members at the 5-6 March meeting of the Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) also debated a proposed New Zealand law that would require plain packaging for tobacco products; a similar Australian policy is already facing three separate challenges at the WTO’s Dispute Settlement Body. Members discuss LDC extension proposal When the WTO agreements entered into force in 1995, LDCs were given until 1 January 2006 to implement the obligations contained in the then-newly adopted WTO TRIPS Agreement. In 2002, the LDC transition period was extended until 2016 for pharmaceutical patents, with a later 2005 decision extending the period for all intellectual property (IP) rights until July 2013. At the WTO’s 2011 Ministerial Conference, trade ministers directed the TRIPS Council “to give full consideration to a duly motivated request from least developed country members for an extension of their transition period,” in light of the impending deadline. (See Bridges Daily Update, 18 December 2011) In this context, Nepal presented on the LDC Group’s behalf a proposal – first tabled by Haiti at last November’s TRIPS Council meeting – that would extend the period for such members to enforce the TRIPS Agreement until a given country “cease[s] to be a...

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Counterfeit, Trademarks, and Copyright Top the Agenda at TRIPS Council

Last week’s meeting of the WTO’s Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) saw talks proceed on a host of issues, including counterfeit goods, exceptions and limitations to copyright, and a long-running dispute over a Cuban rum trademark. US, Japan table submissions on counterfeit goods The topic of counterfeit goods resurfaced at the 5 June meeting, with several developed countries – including the EU, Canada, Mexico, South Korea, and Switzerland – arguing that such products can have serious health and safety implications. Discussions on the topic were based on a paper by the US (IP/C/W/570) on securing supply chains against counterfeit goods and a paper by Japan (IP/C/W/571) on trends in the seizure of counterfeit goods. Both papers are available online at http://docsonline.wto.org. Developing countries such as Brazil, China, and India argued that intellectual property rights infringement should not be confused with sub-standard products, and that the protection of supply chains should instead be the responsibility of the private sector. India, for its part, argued that a focus on sub-standard goods could have detrimental effects on access to legitimate generic medicines. The EU has previously seized legal generic drugs from India – the world’s largest generics producer – in transit through European ports on the basis of a supposed trademark violation. India noted that the issue of IP enforcement is “distinct from issues of quality and safety,”...

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