IntellectualPropertyprovisionsinRegionalTradeAgreementsandthe

Click to edit Master title style,*,*,I,ntellectual Property provisions in Regional Trade Agreements and the TRIPS,Agreement,David Vivas-Eugui,International Centre for Trade and Sustainable Development,WTO Seminar on Regional Trade Agreements,November,200,3,1,Road Map,Current trends in intellectual property rule making at the international level,Regional Trade Agreements and the TRIPs agreement,Regional Trade Agreements and IPRs,Some cases of,RTAs,with IPRs provisions,A case study the FTAA Chapter on IPRs,The need for a positive development agenda in IPRs negotiations,Conclusions,2,Trends in IPRs rule making at the international level,Existence of,multifora,negotiations,Progressive harmonization,Extension of subject matter: patentability of life forms, software protection, etc.,Creation of new forms of IPRs: integrated circuits,sui,generis (semi conductors, plant varieties, TK),Extension of the terms of protection,Need for political decisions to keep flexible interpretations,Reduction of technology transfer clauses,Limited S&D,Increased primacy of private rights vs. public interest,Increasing concerns about,TRIPS-plus,in developing countries, academia, and civil society organizations,3,Regional Trade Agreements and IPRs,Why IPRs commitments are included in Regional,Trade Agreements?,Increased interest in protecting new technologies,Need to consolidate market access of products with high technological content,Existence of a minimum floor (the TRIPS Agreement),Increasing number of,RTAs,:,more than 250,Increasing number of,RTAs,with IPRs provisions,US more than,43,in 2003,EU more than,27,in 2003,In the Americas,5,RTAs,have IPRs rules of which,4,are among developing countries,Increasing inclusion of IPRs related provisions and coverage in trade, investment and stand alone bilateral agreements,BITS,:,IPRs as an investment, fair and equitable treatment/international standards, prohibitions on performance requirements, investor-state dispute settlement,BIPS,:,Agreements of focus nature,4,Regional Trade Agreements and the TRIPs,The Most favored Nation clause in the TRIPS Agreement,The legal nature of article 4d) of TRIPS and its,expansive effect,Possible legal,Interpretations of article 4d) of TRIPS,Only legal provisions adopted before 1995 would not be covered by the MFN exemption,Subsequent laws, regulations or jurisprudence,in the course of regional integration,Some examples of Notifications under Article 4 d) of TRIPS,Treaty of Rome,:,notification includes existing IPRs provisions, jurisprudence and future acts,The Cartagena Agreement,: provisions and its application but also future regulations,Treaty of Asuncion,:,provisions, decisions, resolutions, guidelines adopted or to be adopted,The NAFTA,: the NAFTA treaty to be exempted for MFN clause,5,Some cases of RTAs with IPRs provisions: the Americas,Regional Trade Agreements,Treaty/regulation,Nature of obligations,Coverage,ANDEAN COMMUNITY,Cartagena Agreement. Decisions 486,351,345 and 391,Substantive and procedural obligations,Very Broad,G-3 FREE TRADE AGREEMENT,Free trade Agreement between Mexico, Colombia and Venezuela,Substantive and procedural obligations,Broad,NAFTA,Free trade Agreement between Canada, Mexico and the US,Substantive and procedural obligations,Broad,MERCOSUR,Harmonise Protocol on Trademarks, Geographical Indications and Indications of Source,Substantive and procedural obligations,Limited to trademarks signs and GIs,SIECA,Convenio Centroamericano para la Proteccin de la Propiedad Industrial,Substantive and procedural obligations,Limited to trademarks and signs,6,Some cases of RTAs with IPRs provisions: Asia and Africa,Regional Trade Agreements,Treaty/regulation,Nature of obligations,Coverage,ASEAN,Framework Agreement on Intellectual Property Cooperation,Cooperation activities (no substantive IPRs obligations),Broad not only covers IPRs but also technology transfer,ARIPO (,African Regional Industrial Property Organization ),The Harare Protocol and the Banjul Protocol,Substantive, procedural obligations, cooperation and common registration services,Limited to Industrial property,OAPI (African Intellectual Property Organization),Bangui Agreement,Substantive, procedural obligations, cooperation and common registration services,Broad: it includes industrial property and breeders rights,7,The FTAA process: the,Mandate of San Jose Ministerial Declaration (1998):,“,To,reduce distortions in trade,in the Hemisphere and,promote and ensuree adequate and effective protection,to intellectual property rights.,Changes in technology,must be considered”,The FTAA Chapter on IPRs,98% of the text in brackets,No identification of the origin of the proposals,Draft text open to the public in November 2002,Not all sections are agreed by consensus,Next step: cleaning up the text,Very ambitious text (TRIPS plus),The proposal for an,FTAA Light,(Brazil),A case study the FTAA Chapter on IPRs (1),8,Negotiating and systemic issues in the FTAA negotiations,Systemic issues,More restrictive legal interpretations,Creations of new IPR areas,A prior acceptance of existing or future IPRs commitments:,9 treaties, 1 set of rules, 2 recommendations issued under WIPO,1 non IPR treaty,4 future treaties,Expansion of the subject matter and rights conferred in the case of patents,Expansion of the periods of protection,New cost for implementation and enforcement,Negotiating links,The theory of the “hammer and the anvil”,Trade offs in free trade agreements: need for assessments,Perpetual expansion of IP commitments,The negotiating comfort of developed countries in the TRIPS Council,MFN in TRIPS (article 4d),Difficulties in recovering space for public policy,Lack of a transparency,9,Toward a positive agenda in IPRs: Some concerns of Civil Society,Policy spaces to undertake,all necessary,measures to protect public health,in light of the TRIPS and Public Health Declaration and subsequent decisions should be,kept and enhanced;,Flexibilities to address public interest concerns in,the TRIPS Agreement and national,laws,should be,kept,and enhanced,The,CBD and the new ITPGRFA principles, together with adequate legal mechanisms for assuring legal access,should be,incorporated,in relevant international, regional or bilateral IPR Agreements,;,Protection of traditional knowledge and folklore,should be,provided for and fully developed;,Effective ways for facilitating technology transfer,to be,included;,Regulation against abuse of rights,should be,allowed and developed; and,S,&D,treatment is actually incorporated and enhanced,10,