The following is an excerpt from Pacific Trade & Human Rights, a joint report by the World Health Organization, UN High Commissioner for Human Rights, and the UN Development Programme. The lead authors are Lloyd Lipsett, Miranda Forsyth, Selim Raihan, and Wesley Morgan.
Click here for the full report.
This case study on Vanuatu highlights the human rights dimension of the connection between trade agreements, intellectual property rights (IPR) and traditional knowledge (TK) in Pacific Island Countries. IPR are linked to the enjoyment of a range of economic, social and cultural rights, the rights to health, education, and food in particular. [91] However, it is often very challenging to get a comprehensive understanding of the exact nature of the relationship between IPR and human rights in a particular country or region, as local contexts have a profound effect on their inter-relationship.
The case study addresses the role of IPR in Vanuatu’s accession to the World Trade Organisation (WTO) in 2012 in order to illustrate how IPR regimes can impact upon human rights in a Pacific Island Country. We will also see how a lack of knowledge and misunderstandings about IPR and the protection of traditional knowledge can lead to trade negotiators accepting higher IPR standards than are in a nation’s best interest. Finally, this case study shows how adopting a human rights aware approach to IPR requirements in trade agreements can help to ensure that the potential negative impacts of IPR commitments on human rights are minimised.
All countries joining the WTO are required to sign up to the Agreement on Trade Related Aspects of Intellectual Property (“TRIPS”), which mandates certain minimum levels of IPR protection that all members of the WTO must both provide and enforce. Many countries are also pressured to make commitments beyond these minimum standards (“TRIPS Plus requirements”) as part of the WTO accession process, or through other trade agreements such as a European Partnership Agreement.
Links between human rights and IPR: Example of Vanuatu
The IPR commitments required in Vanuatu’s accession package for the WTO were very onerous, and indeed were the most burdensome of all the Least Developed Countries and Small Islands Developing States who joined the WTO in the last ten years.[92] Vanuatu was unable to take full advantage of any of the flexibilities that were available to it as a Least Developed Country, [93] and committed to several TRIPS Plus provisions. These IPR commitments impact on human rights in a variety of ways, the most significant of which are outlined here.
Vanuatu agreed in its accession package to become a member of the International Convention for the Protection of New Varieties of Plants (UPOV). This is a TRIPS Plus requirement that will require the introduction of a statutory regime that grants proprietary rights to commercial plant breeders, and restricts what farmers may do with seed and plant genetic material. This has potential consequences for food security as it will impact upon the relationship between farmers, genetic resources and sustainable agriculture. [94] UPOV-style plant variety rights protection is criticised on the basis that it encourages genetically uniform crops, affects farmers’ rights with regard to seed and genetic material, does not recognise the contribution of traditional knowledge and participatory plant breeding and concentrates agricultural control within large agro-industrial corporations. [95] For example, it has been argued that “strong restrictions on access to plant genetic resources may augment the technological divide between those who have reached the technological frontier and latecomers who rely on adaptation of foreign technologies and germplasm for their domestic food needs.” [96]
Although it may be argued that plant variety rights will encourage the breeding of new varieties, there are actually no commercial plant breeders in Vanuatu as well as in most Pacific Island Countries and the system is unlikely to be useable by small farmers who do not possess the necessary skills or capital. The Special Rapporteur on The Right to Food observed:
“No State should be forced to establish a regime for the protection of intellectual property rights which goes beyond the minimum requirements of the TRIPS Agreement: free trade agreements obliging countries to join the 1991 UPOV Convention or to adopt UPOV-compliant legislation, therefore, are questionable”.[97]
Under TRIPS, Vanuatu is required to become a signatory to the Berne Convention, meaning that it has to recognise and uphold the copyright of foreign authors over their work. Vanuatu also agreed to ratify the World Intellectual Property Organization (WIPO) Copyright Conventions (a TRIPS Plus requirement) that mandates certain levels of regulation of access to digital and Internet content.[98] Through the doctrine of copyright, all of these Conventions give owners monopoly rights over their works, which can have a dramatically curtailing effect on access to, and availability of, learning materials both in hard and electronic formats. This is therefore likely to impact upon the right to education.[99] For example, the practice of copying large sections of imported textbooks for use in schools and university is now illegal, as is circumventing
technological protection measures that “lock-up” digital content. In a 2002 report the UK Commission on Intellectual Property Rights stated:
“it is arguably the case that many poor people in developing countries have only been able to access
certain copyrighted works through using unauthorised copies available at a fraction of the price of the
genuine original product. We are therefore concerned that an unintended impact of stronger protection
and enforcement of international copyright rules as required, inter alia, by TRIPS will be simply to reduce
access to knowledge products in developing countries”.[100]
In many countries these negative effects can be mitigated to an extent by the establishment of statutory license schemes, but these do not currently exist in the region and may be too costly to establish given the smallness of the market.[101]
Third, the accession package required Vanuatu to introduce patent legislation that applies to pharmaceutical products and medical technology, thus impacting upon the right to health. In the short term this legislation is not likely to have a significant impact as Vanuatu currently has no local pharmaceutical manufacturing capacity, relies heavily on older essential medicines that are no longer protected by patent, and on donor funding for new pharmaceuticals that are still protected by patent. However, these circumstances may change and by entering into these IPR commitments, Vanuatu has constrained its future abilities to access new pharmaceuticals.[102] For example, such commitments prevent countries from purchasing generic (and therefore much cheaper) anti-malarial and anti-retroviral medicines from manufacturers in other Least Developed Countries. [103] This problem is heightened by the fact that Vanuatu has not included many of the available public health flexibilities permitted under TRIPS into its patent legislation. For example, Vanuatu is arguably entitled to avoid patent protection on pharmaceuticals altogether for as long as it remains a Least Developed Country,[104] due to a waiver agreement negotiated in 2013.[105]
Finally, Vanuatu’s IPR commitments impact indirectly on a variety of human rights by imposing a significant financial and administrative burden on the country. This necessitates a diversion of funds and human capacity that could be used to support health or education programmes. [106] The World Bank estimated that a comprehensive upgrade of the IPR regime in developing countries could require capital expenditure of USD$1.5 – 2 million,107 and the issue of administrative burden has been highlighted by many LDCs.
The reasons for agreeing to such commitments are complex, but most likely include:
- pressure from future trade partners,
- weak capacity of negotiators to engage with the complexity of global IPR regimes,[108]
- lack of input from the broad range of sectors potentially affected by a new IPR regime (many of whom simply would not be aware of the dangers due to their lack of previous engagement with the issues involved), and
- misunderstanding amongst negotiators and politicians about the supposed advantages of an IPR regime for Vanuatu.
In regard to this last point, there was a clear belief on the part of a number of politicians that IPR regimes could protect Vanuatu traditional knowledge and natural resources, such as the Pentecost land dive,109 kava, kastom110 names and local varieties of yams.[111]
However, in fact none of these can be protected by IPR, which are limited to new and original creations and inventions, plant variety rights that are new, distinct, uniform and stable, and artificially created state of affairs. Although there is potential for geographical indications of origin to be used to protect certain aspects of traditional knowledge, there is a real concern that establishing such a regime is a very expensive undertaking, requiring technical and administrative capacity that Pacific Island countries currently lack.[112]
State responsibilities and policy implications
The State has a responsibility to take into account human rights implications while negotiating trade agreements. The example of Vanuatu demonstrates the challenges of addressing the human rights issues related to IPRs, especially given the limited capacity of negotiators to engage with the technicalities involved in global IPR regimes, and the organisational constraints in consulting with all the different sectors affected (for example, agriculture, health and education).
In light of the above and based on global evidence, the following observations regarding IPR and human rights can help ensure that human rights issues are better considered in future trade negotiations:
IPR potentially impact negatively upon the realisation of a range of human rights, primarily the rights to health, education and food.[113] For example, IPR regimes limit access to digital and printed materials, such as textbooks that are essential for ensuring the right to education; they limit access to pharmaceuticals and other new medical technology that are essential for the right to health, and also limit access to plant genetic resources such as seeds, and new agricultural technology that are essential for the right to food. These rights are also interrelated and interdependent. The exact nature of their impact depends a lot upon context, and is likely to vary over time. For example, Pacific Island Countries like any other countries can negotiate with their trade partners for not having intellectual property chapters as requisite, included
in trade agreements.
A 2005 general comment by the UN Committee on Economic, Social and Cultural Rights stipulates e.g. that states should ensure that their legal or other regimes for the protection of the moral and material interests resulting from one’s scientific, literary or artistic productions constitute no impediment to their ability to comply with their core obligations in relation to the rights of food, health and education, as well as to take part in cultural life and to enjoy the benefits of scientific progress and its applications, or any other right enshrined in the International Covenant on Economic, Social and Cultural Rights. The private interests of authors should not be unduly favoured and the public interest in enjoying broad access to their productions should be given due consideration. Ultimately intellectual property is a social product and has a social function.[114]
The TRIPS Agreement contains important flexibilities (see Text Box 3) that can be utilised to mitigate the potential negative impacts of IPRs on a range of human rights, such as the rights to health and to food. Given the potential needs for Pacific Island Countries to access new medicines in the future to combat the rapidly increasing incidence of non-communicable diseases in the region,115 as well as communicable diseases such as malaria, TB and HIV, it is crucial that all these flexibilities are incorporated into domestic legislation.[116]
Many trade agreements contain TRIPS Plus provisions that curtail the use of flexibilities in TRIPS and heighten the likelihood of negative impacts on the range of human rights discussed. For example, this may involve obligations to join other conventions like the Patents Co-operation Treaty,[117] the WIPO Copyright Treaties and UPOV, forgoing transition periods, and including provisions for data exclusivity and linkage. Pacific Island Countries should consider seeking independent expert help in trade agreement negotiations to make sure that they do not unduly agree to provisions that go beyond TRIPS requirements and disproportionately undermine their policy space.[118]
One reason some countries consider signing up to global IPR systems is to promote overall socio-economic development by supporting local industries. However, empirical evidence suggests that from an economic perspective, less developed countries are “most likely to lose” from implementing TRIPS.[119] For example, introducing global IPR means that locals must pay to access works protected by foreign authors, and these are likely to be far more numerous than foreigners paying to use works by Pacific islanders. Although a few individuals may benefit from intellectual property laws, in general Pacific Island Countries are net importers of intellectual property and introducing new IPR regimes will therefore result in increased costs to individuals and governments.
Another reason some countries look favourably upon IPR provisions is because of a misguided belief that they can be used to protect traditional knowledge (“TK”). However, TK cannot be adequately protected by current IPR systems.[120]
Although there have been treaty negotiations to develop a treaty that would do this for over a decade, there is no current international system for the protection of TK[121], or one likely in the immediate future.[122] Any reference to the protection of TK in a trade agreement is highly likely to be merely aspirational and non-binding, and should not be seen as a worthwhile trade-off for agreeing to high IPR standards. In some situations, IPR systems may prejudice the protection of TK. For example, in 2013 Air Pacific lodged a trademark application in Fiji for 15 marks that were based on traditional masi designs, raising public concern that Fijian’s traditional rights to create such artwork may be in jeopardy.[123] To avoid such problems arising, it is essential that any national IPR laws that are agreed to as a result of trade agreements are drafted having regard to the local conditions, including the cultural context, rather than relying only on model laws.[124]
IPR regimes are expensive and require technical capacity that are currently not well developed in Pacific Island Countries. These costs, together with their cumulative impact upon a variety of human rights through the rents they render payable to developed countries for access to technology and knowledge, are likely to outweigh any benefits from filing fees.
When IPRs are required to be introduced domestically, breaches should ordinarily be treated as civil cases and not as giving rise to criminal offences. The TRIPS Agreement[125] only requires countries to provide criminal offences for “wilful trademark counterfeiting or copyright piracy on a commercial scale.”[126] Pacific Island criminal justice systems are all currently under strain and would likely require extra capacity to effectively enforce IPR violations or run the risk of seeing limited resources diverted to enforce such cases.
It is in the interest of developing countries that are making an informed decision to introduce IPRs through trade agreements to at least negotiate for long transition periods. Negotiators should also make sure that there is a commitment by the trade partners to providing technical support to building a locally based IPR system that is deliberately tailored to the local context and equitable to all parties. This will require long-term commitment, and is not the type of support usually provided.[127]
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ENDNOTES:
92 The others were Tonga, Nepal and Cambodia. For example, Vanuatu used the least number of years as a transition period, agreed to join UPOV when Nepal and Tonga managed to avoid this, agreed to linkage during the transition period when Nepal avoided this, indicated ‘readiness to join’ the Patent Cooperation Treaty which Nepal and Cambodia avoided, and the administrative resource commitments are more onerous than any of the other countries in that they specify the number of officials to be trained, require the establishment of an institution and recruitment of staff, and also the obtaining of facilities and equipment.
93 Such as the ability to delay introduction of IPR legislation through transition periods.
94 See Miranda Forsyth and Sue Farran, ‘Intellectual Property and Food Security in Least Developed Countries’ (2013) 34(3) Third World Quarterly pp. 516-533
95 See Robinson, Daniel ‘Sui Generis plant variety protection systems: liability rules and non-UPOV systems of protection’ Journal of intellectual Property Law and Practice (2008) 3 (10): 659-665; Dutfield, Graham ‘Food, Biological Diversity and Intellectual Property: The Role of the International Union for the Protection of New Varieties of Plants (UPOV),’ Quaker United Nations Office, Intellectual Property issue Paper Number 9, (2011) available at http://www.quno.org/geneva/pdf/economic/Issues/UPOV%20
study%20by%20QUNO_English.pdf
96 C. Chiarolla, Intellectual Property, Agriculture and Global Food Security: The Privatization of Crop Diversity, UK: Cheltenham, Edward Elgar, 2011, p.75.
97 Olivier de Schutter, Special Rapporteur on the Right to Food, Seed policies and the right to food: enhancing agrobiodiversity and encouraging innovation, A/64/170, http://www.farmersrights.org/pdf/RighttoFood-N0942473.pdf, 15
98 See D Shabalala “Towards a Digital Agenda for Developing Countries” South Centre 2007. Available at http://www.southcentre.org/publications/researchpapers/ResearchPapers13.pdf.
99 See further Armstrong, C and Jeremy de Beer et al (eds), Access to Knowledge in Africa: the Role of Copyright, 2010, Claremont, UCT Press, http://www.aca2k.org/attachments/281_ACA2K-2010-Access%20to%20knowledge%20in%20Africa-s.pdf, 2.
100 Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development Policy, 2002, http://www.iprcommission.org/graphic/documents/final_report.htm, 101
101 Although protecting copyright is also argued to be a human right under section 15 of the ICESCR, it has been interpreted as being concerned primarily with the moral right to be attributed as the author of a work, rather than the right to the economic rights associated with copyright. See “CESCR General Comment 17: The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”. UN Economic andSocial Council. 12 January 2006. paragraph 12. Available at http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/03902145edbbe797c125711500584ea8/$FILE/G0640060.pdf.
102 See Miranda Forsyth, ‘The Developmental Ramifications of Vanuatu’s Intellectual Property Commitments on Joining the World Trade Organisation’ Pacific Studies, 2013 Special Edition (Forthcoming). See also Meads, Sarah, ‘Trade, Medicines and Human Rights: protecting Access to Medicines in Fiji and the Pacific’ (2008) Masters Thesis, Victoria University of Wellington,70.
103 Rwanda, Cambodia and Uganda have all established pharmaceutical companies, exploiting their exemption from international patent rules as part of the LDC status. See http://www.unaids.org/en/media/unaids/contentassets/documents/unaidspublication/2011/ JC2258_techbrief_TRIPS-access-medicines-LDC_en.pdf
104 Vanuatu will graduate from the list in 2015. See: United Nations E/RES/2012/32, available at http://www.un.org/en/development/desa/policy/cdp/ldc2/e2012_32.pdf
105 See http://pacificinstitute.anu.edu.au/outrigger/2013/06/17/second-chance-for-pacific-island-countries-to-avoid-the-intellectualproperty-
straightjacket/; http://www.ip-watch.org/weblog/wp-content/uploads/2013/06/TRIPS-Council-Decision-on-LCD-Extension-
June-2013.pdf.
106 See Deere, Carolyn, The Implementation Game: The TRIPS Agreement and the Global Politics of Intellectual Property Reform in Developing Countries, Oxford University Press, 2009, 66-68.
107 See Blakeney, Michael and Getachew Mangistie, ‘Intellectual Property Policy Formation in LDCS in Sub-Saharan Africa’ African Journal of International and Comparative Law 19(1), 2011, 66-98, 68. In its accession package Vanuatu agreed to establishment of Intellectual Property office, recruitment of personnel, obtaining facilities and equipment, development of manuals and operating procedures, training of at least 15 officials, customs officers and private sector people as well as educators in TRIPs issues.
108 See Grynberg and Joy 2000, p160. See also Wallis p270
109 Radio Australia, ‘Vanuatu Minister warns against delaying WTO membership’, Pacific Beat, 17 August 2011.
110 Kastom refers to customary, traditional, and related to ancestors and the magic in Vanuatu
111 See Joshua, J. 2011. Patents Amendment Bill Isolated from Vanuatu’s Accession to WTO: Kaltongga. Vanuatu Daily Post, 5 December 2011. http://www.dailypost.vu/content/patents-amendment-bill-isolated-vanuatu%E2%80%99s-accession-wto-kaltongga
112 Michael Handler and Robert Burrell, ‘GI Blues: The Global Disagreement Over Geographical Indications’ in Kathy Bowrey et al (eds), Emerging Challenges in Intellectual property, Oxford University Press, 2011, pp126-144.
113 Wong, ‘Intellectual property Through the Lens of Human Development’ in Wong, T and Dutfield, G (eds) Intellectual Property and Human Development, 2011, Cambridge University Press, p.1.
114 See CESCR General Comment 17(2005), para. 35. See also See Committee on Economic, Social and Cultural Rights, (2001), “Human Rights and Intellectual Property”, Statement by the Committee on Economic, Social and Cultural Rights, 29 November 2001, E/C.12/2001/15.
115 The Forum Leaders Communique 2011 highlighted the current threat of non-communicable diseases to the region, observing that it has reached epidemic proportions in Pacific Island countries and territories and has become a “human, social and economic crisis‟ requiring an urgent and comprehensive response. Pacific Islands Forum Secretariat, Forum Communique: Forty-Second Pacific islands Forum Auckland, New Zealand, 7-8 September 2011 http://www.forumsec.org/resources/uploads/attachments/
documents/2011%20Forum%20Communique%20FINAL.pdf, Annex 2.
116 See Correa, Carlos, Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy Options, Penang, Zed Books Ltd, 2000, Sisule Musungu and Cecilia Oh, The Use of Flexibilities in TRIPS by Developing Countries: Can they promote Access to Medicines? Available at http://www.who.int/intellectualproperty/studies/TRIPSFLEXI.pdf; UNDP, ‘Enabling Effective Responses: HIV in Pacific Island Countries,’ http://www.undppc.org.fj/_resources/article/files/LowRes_3011.pdf..
117 See WHO, Regional Office for the Western Pacific, Informal Intercountry Consultation on Public health and Intellectual Property Rights for Selected Pacific Island Countries, Nadi, Fiji, 25-27 March 2009, 16. This report notes that PNG joined the PCT in 2003 and according to the statistics for that year, 81% of patent applications were PCT applications. See also Drahos, The Global Governance of Knowledge: Patent Offices and their Clients, Cambridge: Cambridge University Press, 270-272.
118 For example, the Public Interest Intellectual Property Advisors, see http://www.piipa.org/
119 Lall, Sanjay “Indicators of the Relative Importance of IPRs in Developing Countries” (2003) 32 Research Policy 1657-1680, 1663.
120 There is a voluminous literature on this issue. See for example Christoph Antons (ed) Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific Region (2009, Kluwer Law International). See also Miranda Forsyth, “The Traditional Knowledge Movement in the Pacific Island Countries: the Challenge of Localism” (2011) 29(3) Prometheus 269-286; Miranda Forsyth, “Lifting the lid on “the community”: who has the right to control access to traditional knowledge and expressions of culture?” (2012) 19 International Journal of Cultural Property 1-31.
121 For more information on this topic please see Miranda Forsyth, “How can Traditional Knowledge Best be Regulated? Comparing a Proprietary Rights Approach with a Regulatory Toolbox Approach” (2013) 25(1) The Contemporary Pacific 1-31.
122 http://www.wipo.int/tk/en/igc/
123 See Rawali, ‘Masi Design Concern’ The Fiji Times Online, 10 February 2013, available at http://www.fijitimes.com/story.
aspx?id=224837. Opposition proceedings were initiated against the application and are continuing as at October 2013.
124 For example, Vanuatu has made some provisions for dealing with indigenous knowledge in its copyright, patent and trademark
laws.
125 See note 4 above
126 Article 61, TRIPS.
127 Wallis argues that “many developed countries are prepared to provide assistance only on an ad hoc basis, and without accepting legal obligations to contribute. In addition, developed countries tend to construct technical assistance programmes that pursue their own interests.” Wallis, Joanne, ‘”Friendly islands”
