European Commission DG Trade1 Seminar for ORs and OCTs EPAs: the Intellectual Property context Christophe DE VROEY

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European Commission DG Trade1 Seminar for ORs and OCTs EPAs: the Intellectual Property context Christophe DE VROEY Slide 2 European Commission DG Trade2 I. What are IPRs? Rights given to persons over the creation of their minds Exclusive negative right to prevent Balance of interests social contract Encourages creativity and innovation Encourages investment and technology transfer Protects consumers Slide 3 European Commission DG Trade3 Main categories of IPRs Copyright Artistic works Literary works [computer software and data bases] Related (neighbouring) rights Performers Phonogram producers Broadcasters Industrial property Trademarks Geographical indications Industrial designs Patents Plant varieties protection Topographies of integrated circuits Undisclosed information (e.g. trade secrets; test data) Slide 4 European Commission DG Trade4 The International IP system Multilateral agreements: Key Organisations: WTO, WIPO The TRIPS Agreement Standard-setting Treaties: Paris Convention, Berne Convention, Rome Convention, etc, also sectoral: UPOV, CBD Global protection systems: Madrid Agreement, PCT Classification Treaties: Strasbourg (patents) Regional and bilateral agreements: impact of MFN principle Trends in international IP rules: Widening of protectable subject matter Creation of new rights Harmonisation and standardisation of approach to protection Slide 5 European Commission DG Trade5 WIPO UN specialized agency with 182 Member States (90% of world countries), born in 1970 on the footsteps of BIRPI (Paris and Berne Conventions Bureau) Functions: Administer international treaties on IP (25) Harmonize and simplify IP rules and practices Monitor developments in IP field Provide technical assistance and facilitate dispute resolution Slide 6 European Commission DG Trade6 The WIPO agreements IP Protection - Berne Convention - Brussels Convention - Film Register Treaty - Madrid Agreement (Source) - Nairobi Treaty - Paris Convention - Patent Law Treaty - Phonograms Convention - Rome ConventionBerne ConventionBrussels ConventionFilm Register TreatyMadrid Agreement (Source)Nairobi TreatyParis ConventionPatent Law TreatyPhonograms ConventionRome Convention - Trademark Law TreatyTrademark Law Treaty - Washington Treaty - WCT - WPPTWashington TreatyWCTWPPT Protection systems - Budapest Treaty - Hague Agreement - Lisbon Agreement - Madrid Agreement (Marks) - Madrid Protocol - PCTBudapest TreatyHague AgreementLisbon AgreementMadrid Agreement (Marks)Madrid ProtocolPCT Classification - Locarno Agreement - Nice Agreement - Strasbourg Agreement - Vienna AgreementLocarno AgreementNice AgreementStrasbourg AgreementVienna Agreement Slide 7 European Commission DG Trade7 WTO OBJETIVES: Raise standards of living Full employment Optimal use of the worlds resources and sustainable development PRINCIPLES: Non discrimination: MFN and national treatment Freer and fairer trade Ensure participation of developing countries FUNCTIONS: Further objetives and facilitate implementation of the agreements Forum for negotiations among its Members Administer TPRM and dispute settlement system Slide 8 European Commission DG Trade8 The WTO agreements WTO TRADE POLICY REVIEW MECHANISM DISPUTE SETTLEMENT SYSTEM GOODSSERVICES INTELLECTUAL PROPERTY TRIPS: most comprehensive IP agreement ever Objective: promote technological innovation and technology transfer to the mutual advantage of producers and users => social and economic welfare Slide 9 European Commission DG Trade9 TRIPs General Paris and Berne Natioanl Treatment MFN Exhaustion principles Standards Copyrights Trademarks GIs Designs Patents topographies Undisclosed information Enforcement General obligations civil/adm procedures Border Measures Criminal procedures Slide 10 European Commission DG Trade10 TRIPS: main elements Applicability of basic principles of GATT, of other IP agreements, plus specific principles: Non discrimination (MFN, NT) Balanced protection (Art.7 & 8) Free method of implementing minimum protection (Art.1) Private enforcement Minimum standards of protection of IPRs Enforcement of IPRs Prevention and settlement of disputes Transitional arrangements Slide 11 European Commission DG Trade11 TRIPS negotiations DDA & TRIPS Council Ministerial Conference General Council Trade Negotiating Committee Neg Group on Market Access Neg Group on Rules Special Sessions Councils/Committees TRIPS Council in Regular Session: review of legislation, public health, biodiversity, TK, TT, TA, NVCs, extension until 2002 TRIPS Council in Special Session: GI register + Technical consultations on extension Slide 12 European Commission DG Trade12 TRIPs and Public Health Article 31(f) TRIPs. Declaration on the TRIPs Agreement and Public Health at the Doha Ministerial Conference (2001) confirms that Members are free to issue compulsory licences for reasons of public health. 30 August 2003 the WTO General Council adopted the Decision on the Implementation of Paragraph 6 of the Declaration on the TRIPs Agreement and Public Health ("Perez Motta text"). On 29 October 2004, the Commission adopted a proposal for a Regulation on compulsory licensing of patents relating to the manufacture of pharmaceutical products for export to countries with public health problems. Also Council Regulation No 953/2003 of May 2003 (Tiered Pricing Regulation) Slide 13 European Commission DG Trade13 TRIPs and Geographical Indications EC proposals GIs Register The EU proposes an international registry with legal effects (recognition by all WTO Members). The registration of a GI in the registry would in particular make it possible to reverse the burden of proof (in the current situation, it is the producer who is the victim of usurpation who must demonstrate that he is the true owner of the GI). Extension Extension of the protection granted by Article 23 TRIPs - which currently benefits only wines and spirits - to all products. Producers and manufacturers would no longer have to prove that the public has been misled in order to prevent the misuse of their GIs. Not the idea to claw back GIs which are currently being used in good faith in third countries (TRIPs exceptions fully respected). Slide 14 European Commission DG Trade14 TRIPs and technical assistance IP cooperation programs in third countries The EC is a major provider of technical assistance in favour of developing and least- developed countries in the IP area. The objective of this assistance is to facilitate the implementation of international IP obligations, in particular those resulting from bilateral and multilateral agreements such as the TRIPs Agreement. Such assistance generally include the preparation of laws and regulations on the protection and enforcement of IP rights and on the prevention of their abuse, as well as support regarding the establishment or reinforcement of domestic IP offices and agencies relevant to these matters, including the training of staff in the administration of IP protection and management methods. Slide 15 European Commission DG Trade15 TRIPs and Biodiversity Main features of the EC proposals: disclosure in patent applications should be a mandatory requirement; if the patent applicant fails or refuses to declare the required information, then the application should not be further processed; if the information provided is incorrect or incomplete, sanctions should be envisaged outside the field of patent law. Since genetic resources and traditional knowledge (TK) can be used in patentable inventions, DCs ask for an equitable sharing of the benefits arising from this use, in accordance with the principles established in the CBD. This adjustment would consist of the introduction of an obligation to disclose the origin of the genetic resource or TK in patent applications Slide 16 European Commission DG Trade16 II. Regional approaches: the EU and IPR EU single market: eliminate restrictions to free movement and distortions of competition => environment conducive to innovation and investment How? Harmonisation of national laws and/or Creation of Community IPRs: one application, EC- wide protection Lisbon agenda: establishing a knowledge economy Slide 17 European Commission DG Trade17 Regional approaches: the EU and IPR Copyright and related rights: significant harmonisation of copyright law; towards collective management of copyright across EU ( national collecting societies). EC in WIPO treaties Geographical Indications: depending on product, from Community GI to no harmonisation except TRIPS Trademarks and Designs: harmonisation of national laws & creation of Community TM (OHIM). June 04: EC accedes to Madrid Protocol Patents: national patent systems harmonised through international conventions. Two supra-national approaches: European Patent System based on Munich Convention, which established the EPO. Not in Community legal order! Proposal for the Community Patent in 2000: not yet agreed Slide 18 European Commission DG Trade18 Regional approaches: the EU and enforcement Enforcement in the EU: progress in harmonisation of approach across the EU: Action Plan 2000 and Green Paper, followed by the EU Enforcement Directive 2004/48/EC. Applies to all EU-regulated IPRs Applies mainly to infringements with commercial purpose or causing significant harm minimum standard , i.e. member states may go further Council Regulation 1383/2003, in force on 1 July 2004: conditions for intervention by the customs authorities EU enforcement strategy in third countries: various actions to confront a complex problem. Current survey on priority countries Slide 19 European Commission DG Trade19 Regional approaches: ACP Article 46 of Cotonou Agreement: Objective: ensure adequate and effective protection of IPR in line with international standards with a view to reducing distortions and impediments to bilateral trade. Special provision: may consider agreements on TMs & GIs IPRs covered: copyright &am