In this year’s Special 301 report, the United States Trade Representative listed Ukraine as a “Priority Foreign Country” (aka PFC), triggering a 30 day countdown to initiate an investigation under Section 301 of the Trade Act to determine trade sanctions. 19 USC 2412(2)(A). This is only the second time that the U.S. has threatened a WTO-member country with sanctions as a PFC. And thus it is an appropriate time to ask what restrictions the World Trade Organization places on the operation of the Special 301 program. As described more fully below, any sanction of Ukraine, including removal of General System of Preferences (GSP) benefits, would likely violate WTO rules. Indeed, the listing of Ukraine as a PFC, and the more general operation of “watch lists” threatening sanctions for intellectual property matters, could be challenged under the WTO even prior to any sanction actually going into effect.
In this year’s State of the Union Address, President Obama announced talks for a Transatlantic Trade and Investment Partnership with the European Union. This agreement will likely include provisions on intellectual property (IP), which are often controversial . If IP provisions are included, they will likely reflect language in existing treaties. Below is a comparison of language between two of the most substantive and recent free trade agreements (FTAs) adopted by the US and the EU for one controversial area of IP: liability for internet service providers (ISP) for infringing content.
Tobacco giant, Philip-Morris, brought actions this year under investor-State arbitration mechanisms in investment treaties to challenge laws limiting (in Uruguay) or prohibiting (in Australia) the display of its trademarks in tobacco packaging. This has caused the Australian government to take a strong stance against any investor-State arbitration provisions in free trade agreements (FTAs), including exemptions from the proposed investor-state settlement provisions of the Trans Pacific Partnership Agreement (TPP), currently being negotiated. However, a closer look reveals a broad collection of older treaties that do not contain exceptions in modern treaties that could have avoided this situation. As a multinational-enterprise, Philip-Morris has attempted to evade these exceptions by going through subsidiaries to bring claims under more favorable treaties. This reveals that Australia’s new stance against investor-State arbitration may do nothing to prevent similar claims being brought in the future.
Author: Mohammed El Said
Abstract: Leaked diplomatic cables related to the United States’ foreign policy implementing and enforcing intellectual property in developing countries draw a bleak picture. U.S. interest groups and local agents collaborate to achieve higher levels of intellectual property protection without taking into consideration the public interest and consumer rights of local communities.
With the U.S. round of the Trans-Pacific Partnership Agreement (TPPA) underway in Chicago, intellectual property and information policy experts from around the world have released a Washington Declaration on Intellectual Property and the Public Interest that challenges the dominant direction of the negotiations on intellectual property in U.S. trade agreements.
The Declaration was created through a consultative process with over 180 experts from 35 countries in six continents at the Global Congress on Intellectual Property and the Public Interest, August 25-27 at American University Washington College of Law.
Citing an “unprecedented expansion of the concentrated legal authority exercised by intellectual property rights holders” through recent trade agreements, the experts call for new efforts to “re-articulate the public interest dimension in intellectual property law and policy.”
In October 2009, Ecuador’s President Rafael Correa issued Decree 118 to improve access to medicines and support public health programs through a protocol that would reduce drug costs. The protocol established procedures for the compulsory licensing of pharmaceutical patents. Compulsory licensing authorizes generic competition with patented, monopoly protected drugs. Generic competition reduces costs and enables public agencies to scale-up treatment and other services.
Ecuador’s protocol limits compulsory licensing to medical conditions that are priorities for public health, requiring interagency cooperation to grant licenses on a case-by-case basis and pay royalties to patent holders.
Nevertheless, cables from U.S. Embassy personnel in Ecuador to the U.S. Department of State, released by Wikileaks, show the United States, multinational pharmaceutical companies, and three Ministers within the government shared information and worked to undermine Ecuador’s emerging policy.