TRIPS Issues 1 Papers - World Trade Organization 3 examines the negotiation process of the Free Trade Area of the Americas and the recently disclosed second draft of the chapter on

Regional and bilateral agreementsand a TRIPS-plus world the Free Trade Area of the Americas (FTAA)

David Vivas-Eugui

Published by

Quaker United Nations Office (QUNO) GenevaQuaker International Affairs Programme (QIAP) OttawaInternational Centre for Trade and Sustainable Development (ICTSD) Geneva

Project undertaken with the financial support of the Government of Canada provided through the Canadian International Development Agency (CIDA)

1TRIPS Issues Papers

Contents

Summary 21 Introduction 32 Regional and bilateral negotiations on IPRs in the Americas 5

21 Regional Trade Agreements 522 Bilateral Agreements 7

3 The FTAA 1031 Negotiations on IPRs 1032 The FTAA Draft IPRs Chapter 1233 Links between the FTAA other treaties and negotiations 1334 Systemic issues in the Draft Chapter 1535 Sectoral issues 17

4 Final remarks 22Acronyms 23Figure 1 Regional trade agreements in force by date of notification to the GATTWTO 5

Box 1 Main Regional Trade Agreements in the Americas including IPRs provisions 6Box 2 Illustrative list of performance requirements useful in promoting technology transfer 8Box 3 Setting the objectives of trade-related IPRs negotiations 10Box 4 US trade policy on IPRs 11Box 5 Coverage of the TRIPS Agreement and the FTAA Draft IPRs Chapter 13

Annex 1 Bibliography Literature Survey and Position Papers on FTAA and Intellectual Property 24Annex 2 Comparison of the main elements of the TRIPS Agreement and the FTAA 28

Supplementary table (available separately on the web or from the publishers) Simple legal text comparison of the TRIPS Agreement and FTAA Draft IPRs Chapter

1

About these papers

In these issues papers authors are invited to examine a subject ofimportance in the developing international intellectual propertyregime and highlight key issues they see arising The topics havebeen chosen following consultations with negotiators fromdeveloping countries and respond to their concerns Our aim is tocontribute to a greater understanding of the impact of changes inthis area upon peoplersquos lives and better inform debate andnegotiations

About the authorDavid Vivas-Eugui is currently Programme Manager ofIntellectual Property Technology and Services at the InternationalCentre for Trade and Sustainable Development (ICTSD) He wasformerly Attacheacute for legal affairs in the Mission of Venezuela tothe WTO and Senior Attorney at the Center for InternationalEnvironmental Law

The opinions given herein belong solely to the author and do notinvolve any of the organizations mentioned in this work

copy Copyright QUNO QIAP ICTSD 2003 This paper may bereproduced or translated for not-for-profit purposes provided theattributions on the cover are kept and QUNO QIAP and ICTSDare informed For other uses please contact publishers

AcknowledgementsThe author would like to thank Heike Baumuumlller Michael BassettTrineesh Biwas Chantal Blouin Christophe Bellmann GrahamDutfield Richard Elliott Paul Mably Christoph SpennemannBlanka Peltz Geoff Tansey Ken Traynor Tasmin Rajotte PedroRoffe and Peigi Wilson for their comments

This paper and others arising from QUNOrsquos TRIPS programmeare available on the web at wwwgenevaqunoinfo or wwwqiapca orwwwictsdorgiprsonline

Paper copies and the supplementry table may be requestedfrom either

Quaker UN Office Avenue du Mervelet 13 1209 GenevaSwitzerland email qunoqunoch or

Quaker International Affairs Programme 97 Powell Ave OttawaOnt K1S 2A2 Canada email qiapquakerca or

International Centre for Trade and Sustainable Development 11-13 Ch Des Aneacutemones 1219 Geneva Switzerland email ictsdictsdch

Series editor Geoff Tansey

Designer Mike Barrett

Higher levels of intellectual property rights (IPRs) protectionin an increasingly global regime could adversely affect publicinterests in developing countries in agriculture educationfood security public health technology transfer and biodiver-sity management among others according to a growing rangeof governments academics civil society actors and even a UKGovernment Commission Many developing countries are stillimplementing their commitments deriving from theAgreement on Trade-Related Aspects of Intellectual PropertyRights (TRIPS) of the World Trade Organisation (WTO) andvarious conventions adopted in the World Intellectual PropertyOrganization (WIPO) At the same time a range of parallelnegotiations at the international regional and bilateral levels isalready reshaping the existing IPRs regime

Developing countries are concerned about so-called TRIPS-plus agreements especially at the regional and bilateral levelThese types of agreements include commitments that gobeyond what is already included or consolidated in the mini-mum standards of the TRIPS Agreement

This paper provides an overview based on IPRs negotiationsin the Americas of some of the implications of regional andbilateral TRIPS-plus agreements for the current minimumstandards under TRIPS

Section 1 provides an introductory background while section2 discusses the most important developments at the regionaland bilateral level on IPRs in the Americas At the regionallevel these developments include an increasing number ofRegional Trade Agreements (RTA) in which IPRs protectionhas become an important part the most-favoured-nation(MFN) principle in the TRIPS Agreement and its impact inexpanding IPRs commitments and the contents of RTAs withemphasis in TRIPS-plus commitments At the bilateral levelvarious examples show how bilateral trade intellectual prop-erty and investment agreements are promoting TRIPS-plusstandards

Section 3 examines the negotiation process of the Free TradeArea of the Americas and the recently disclosed second draftof the chapter on IPRs The analysis points out how IPRs pro-tection is becoming an objective in itself rather than a meansfor promoting innovation creation and technology transferthe existence of many TRIPS-plus areas and features and thedifferent national positions in the negotiating process whichrange from TRIPS-like approaches to those close to the pro-tection existing in the USA

This second draft of the IPRs chapter poses important chal-lenges to developing country negotiators These challengesinclude among others the perpetual push to raise the levels ofIPRs protection in trade negotiations the limitations of com-

mercial trade-offs when looking at public policy issues thelack of sustainable development assessments the danger ofautomatic spreading effects of the MFN clause in the TRIPSand the impossibility of reclaiming policy spaces alreadygiven up

Various systemic issues arise from a development perspectiveThe Draft Chapter could bring more restrictive legal interpre-tations when applying exceptions linked to the public interestnew areas of IPRs that are unknown to many countries a pri-ori acceptance by national governments of other existing andfuture IPRs agreements expansion of the protected subjectmatter and the periods of protection and new and unmea-sured implementation costs for developing countries

Sectorally the Draft Chapter could affect areas of public inter-est in health food security biodiversity traditional knowl-edge folklore information technologies competition policytechnology transfer and special and differential treatment fordeveloping countries

The final section concludes that an IPRs chapter in the FTAAwould only make sense if

bull Adequate commercial and sustainability assessments areundertaken

bullTransparency and consultation processes are enhanced

bull Policy spaces to undertake measures necessary to protectpublic health in the IPRs system are kept and enhanced

bull The CBD and the new FAO treaty principles together withadequate legal mechanisms for assuring legal access areincorporated

bull Protection of traditional knowledge and folklore is pro-vided for and fully developed

bull Effective ways for facilitating technology transfer areincluded

bull Flexibilities to address public interest concerns in nation-al patent laws and copyright laws are kept

bull Flexibilities to choose and use the most convenient sys-tem to protect plant varieties whether through patents or asui generis system are kept

bull Regulation against abuse of rights is allowed and devel-oped and

bull Special and differential treatment is actually incorporatedand enhanced

Finally developing countries are recommended not to negoti-ate on IPRs at the regional and bilateral level but to keep thesenegotiations in the multilateral level where more balancedresults can be obtained

2

Summary

Higher levels of intellectual property protection in anincreasingly global regime could adversely affect publicinterests in developing countries in agriculture educationfood security public health technology transfer and biodi-versity management among others according to a growingrange of governments academics civil society actors andeven a United Kingdom (UK) Government CommissionThe IPRs regime is being shaped by a range of parallel nego-tiations taking place at the international regional and bilat-eral levels (ie multilevel negotiations) Trends are movingtowards widening the scope of protectable subject matter thecreation of new intellectual property rights (IPRs) progres-sive harmonisation stronger enforcement measures weak-ening of special and differential treatment for developingcountries and weakening or removal of existing flexibilitiesThe Agreement on Trade-Related Aspects of IntellectualProperty Rights (TRIPS) one of the key agreements in theWorld Trade Organisation (WTO) already imposes mini-mum relatively high standards for IPRs on all WTO mem-bers But the TRIPS Agreement is not the end of the story Itappears to be just one step in the consolidation of the inter-national trends of the intellectual property system led bydeveloped countries to raise TRIPSrsquo minimum standards(TRIPS-plus)

This paper provides an overview based on activities in theAmericas of some of the implications of regional and bilat-eral TRIPS-plus agreements for the current minimum stan-dards under TRIPS First it outlines the regional and bilater-al negotiations on IPRs Next it introduces the context andcoverage of the Free Trade Area of the Americas (FTAA)negotiations on IPRs and the FTAA Draft IPRs Chapter Itthen analyses links among these multilevel negotiations andthe interests of developing countries and gives a briefassessment of systemic and sectorial problems that mightarise as a consequence of a potential intellectual propertychapter in the FTAA In this analysis the paper uses the mostambitious TRIPS-plus proposals presented by countries inthe FTAA negotiations so as to provide readers with theldquomaximumrdquo TRIPS-plus scenario in the current FTAAprocess Even the most minimal set of proposals howeverwill lead to TRIPS-plus in some areas

In brief negotiations take place at various levels

Bilateral agreements between developing and developedcountries increasingly include and expand IPRs commit-ments both directly through IPRs and bilateral trade agree-

ments and indirectly through the recognition of IPRs as anldquoinvestmentrdquo in bilateral investment treaties (BITs)

Regional Trade Agreements (RTAs) have become increas-ingly popular in the last 10 years among WTO membersMost regional treaties include chapters with IPRs commit-ments The FTAA is one of the most important currentregional trade negotiations and it aims to build one of thelargest free trade areas in the world by 2005 The FTAAnegotiations on IPRs started in 1998 when Ministers of theAmerican Hemisphere established the objectives of theNegotiating Group on Intellectual Property Rights (NGIP)These objectives seek to

ldquoreduce distortions in trade in the American Hemisphereand promote and ensure adequate and effective protec-tion to intellectual property rights In this negotiatingprocess changes in technology were consideredrdquo1

Multilateral negotiations are taking place at the internationallevel (in the TRIPS Council and the World IntellectualProperty Organisation (WIPO)) The TRIPS Council towhich all WTO members belong monitors the operation ofthe TRIPS Agreement and undertakes any task on IPRs man-dated by WTO Ministers or the WTO General CouncilCurrent issues include

bull negotiations under paragraph 6 of the Doha Declarationon TRIPS and Public Health about finding an adequatesolution for the effective use of compulsory licensing bycountries with little or no manufacturing capacity 2

bull negotiations on a multilateral register of geographicalindications (GIs) for wines and spirits in special sessionsof the TRIPS Council and the review of the GIs sectionof TRIPS according to Article 24

bull the mandated reviews of Article 273(b) which has beenunderway since 1999 and should have taken one yearand of Article 711 of the TRIPS Agreement

bull discussions on implementation issues and concerns3notably on the scope and modalities for applying non-violation complaints4 and a mechanism for ensuring themonitoring and full implementation of incentives fortechnology transfer for least developing countries inlight of Article 662 of the TRIPS Agreement and

bull the relationship between TRIPS and the Convention onBiological Diversity (CBD) the protection of tradition-al knowledge and folklore and new developments

Discussions elsewhere in the WTO are also relevant in par-

3

1 Introduction

1 San Jose Ministerial Declaration of 1998httpwwwftaa-alcaorg2 WTO document WTMIN(01)DEC2 20November 2001

3 Most developing countries and various expertsconsider this lsquodiscussionrsquo to be negotiations underparagraph 12 of the Doha Ministerial Declarationthe Decision on Implementation Related Issues

and Concerns and the Compilation onOutstanding Implementation Issues and Concerns 4Article 642 of the TRIPS Agreement

ticular those in the Working Group on Trade and TechnologyTransfer set up after the Doha ministerial meeting

Prior to the WTOrsquos TRIPS agreement WIPO was the maininternational forum for discussion of IPRs and remains themain technical body on IPRs with a mandate to promote theprotection of intellectual property throughout the worldSince 1995 WIPO has expanded the number of internation-al treaties and recommendations (soft law5) adopted under itsauspices as well as the number of treaty negotiations

Treaties adopted after 1995 include

bull WIPO Copyright Treaty and WIPO Performances andPhonographs Treaty (1996) which are known as the newldquointernetrdquo WIPO treaties

bull Patent Law Treaty (2000) which covers proceduralpatent law and

bull Patent Cooperation Treaty (1970 last review 2001)

Recommendations adopted after 1995 include those con-cerning

bull the provisions on the protection of well-known trade-marks (1999)

bull trademarks licenses (2000) and

bull provisions on the protection of marks and other industri-al property rights in signs on the Internet (2001)

Negotiation processes initiated after 1995 include those on

bull Substantive Patent Law Treaty

bull reform of the Patent Cooperation Treaty

bull a potential treaty on the protection of audiovisual per-formances (including an unsuccessful diplomatic con-ference)

bull certain copyright and neighbouring rights questions(including an unsuccessful diplomatic conference) and

bull further harmonisation of the trademark laws under theTrademark Law Treaty

Many developing countries are still implementing their com-mitments deriving from the TRIPS Agreement and variousWIPO commitments whether directly incorporated into the

TRIPS text (ie Paris or Berne Conventions) or derived fromdirect signature and ratification of WIPO agreements andrecommendations Developing countries generally are notvery enthusiastic about engaging in seemingly limitless andever deeper IPRs negotiations Developed countries howev-er are adept at using these different negotiations and shiftingbetween different international fora to achieve their objec-tives6 which usually go beyond the minimum levels of IPRsprotection in TRIPS (so called ldquoTRIPS-plusrdquo)

In principle TRIPS-plus refers to commitments that gobeyond what is already included or consolidated in theTRIPS Agreement TRIPS-plus agreements or commitmentscan imply

bull Inclusion of a new area of IPRs (eg protection of non-original databases)

bull Implementation of a more extensive standard (egextend the period of protection from 10 to 15 years in thecase of trademarks or in copyright the calculation of pro-tection terms based on the life of the author plus 95years) and

bull Elimination of an option for Members under the TRIPSAgreement (eg an obligation to protect plant varietiesldquoonlyrdquo by the International Union for the Protection ofNew Varieties of Plants (UPOV) system 197891)

TRIPS-plus commitments do not only occur in bilateral andregional negotiations but also in international fora outsidethe WTO such as WIPO The implications of these multilat-eral negotiations however are beyond the scope of thispaper Forum shopping at the multilateral level has alsobecome a concern when looking at TRIPS-plus commit-ments Negotiations at these various levels are promoting aldquoone size fits allrdquo system of IPRs and increased internation-al harmonisation based on developed countriesrsquo legislationwithout taking into account development objectives and inmany cases public interest concerns According to a reportby the UK Commission on IPRs there is a risk that region-albilateral agreements could undermine the multilateral sys-tem by generally limiting the use by developing countries offlexibilities and exceptions allowed for in the TRIPSAgreements7

4

5Soft law refers to non-binding bodies of rules thatare designed to provide guidance and orientationIt has an important value as precedent in the

interpretation of law (ie recommendations guide-lines etc)

6Drahos 2002 7Commission on Intellectual Property Rights 2002

The inclusion of IPRs commitments has become a commonfeature in regional trade agreements and in bilateral agree-ments for three main reasons

1 The increased interest of developed countries inenhanced protection for their technologies and cre-ations from ldquofree ridersrdquo 8

2 The need to consolidate and expand market access forproducts and services with a high technological value9

in third countries

3 The belief by developed countries that any regional andbilateral negotiations covering IPRs only make sense ifthey lead to levels of protection higher than thosealready agreed at the multilateral level

21 Regional Trade AgreementsThe scope of RTAs can vary greatlymdashfrom simple tariff pref-erences to full comprehensive bodies of applicable trade andeconomic law RTAs can include custom unions (same set ofcustoms duty rates on imports for non-members) and freetrade areas (which usually address important tariff reductionamong members and common regulation on trade relatedissues) According to the WTO Secretariat regional agree-ments have allowed groups of countries to negotiate rules andcommitments that go beyond what was possible at the timemultilaterally In turn some of these rulesmdashfor example inservices and IPRs protectionmdashpaved the way for the UruguayRound agreements10 By early 2003 over 250 RTAs had been

notified to the WTO11 (and its predecessor GATT) with atleast 150 of them notified after 1994 (Figure 1)

Before the Uruguay Round most RTAs basically dealt withtariff reductions and trade regulations for goods Since the1980s RTAs have tended to include trade-related issues suchas IPRs investment government procurement environmen-tal and labour rules In the Americas most RTAs includeother issues beyond tariff preferences or trade in goods rules(see Box 1 for RTAs including IPRs)12

One important issue in RTAs is the most-favoured-nation(MFN) clause In principle under a MFN clause any advan-tage favour privilege or immunity given to any membershould be extended to other members RTA customs unionsor free trade areas can be excluded for the purposes of theMFN when certain criteria are fulfilled13

The application of a MFN standard in the TRIPS Agreementis an innovation in the multilateral context and precedent istherefore limited14 Article 4 of the TRIPS Agreement pro-vides for the immediate and unconditional extension tonationals of all Members ldquoany advantage favour privilegeor immunityrdquo granted with respect to the protection of IPRsto nationals of any country (including a non-Member of theWTO)15 The main difference between the TRIPSrsquo and theGATTrsquos 1994 MFN clause is that the TRIPS clause appliesto nationals (ie the right holders) and not to products orMembers due to the intangible16 and private nature of IPRs

5

2 Regional and bilateral negotiations on IPRs inthe Americas

Figure 1 Regional trade agreements in force by date of notification to the GATTWTO

Source WTO Secretariat and Regionalism notified regional trade agreements regionalism facts and figures WTO 2000 See httpwwwwtoorgenglishtratop_eregion_eregfac_ehtm

8 In this context it would mean producers thathave not participated or made an investment inthe innovation or creation processes9 Maskus and Penubarti (1998) argue that there isa strong positive relationmdashie market expansionmdashbetween the manufacturing exports ofOrganisation for Economic Cooperation andDevelopment (OECD) countries and the strengthof patent rights in large and small developingcountries Smith (1999) considers that weakpatent rights are a barrier to US Exports

10 WTO 200211 Over 170 RTAs are currently in force an addi-tional 70 are estimated to be operational althoughnot yet notified By the end of 2005 if RTAsreportedly planned or already under negotiationare concluded the total number of RTAs in forcemight well approach 300 httpwwwwtoorgenglishtratop_eregion_eregion_ehtm 12That with the Caribbean Community countries(CARICOM)mdashAntigua and Barbuda Bahamas

Barbados Belize Dominica Grenada GuyanaHaiti Jamaica Montserrat St Kitts and Nevis StLucia St Vincent and the Grenadines Surinameand Trinidad and Tobagomdashdoes not include IPRs 13 For further information about the criteria seeArticle XXIV of GATT 1994 14 UNCTADICTSD 2003 15 Idem16 In intangibles you can only protect the personbehind the right (the titleholder)

250

150

100

50

0Nu

mb

er

of

RTA

s

1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000

establishment of WTO

Exceptions to MFN treatment in the TRIPS Agreement arelimited in scope The only exception that could under certainconditions apply to RTAs and also to bilateral agreementsrelated to IPRs is in Article 4(d) of the TRIPS Agreement

ldquo (d) deriving from international agreements related to theprotection of intellectual property which entered intoforce prior to the entry into force of the WTO Agreementprovided that such agreements are notified to the Councilfor TRIPS and do not constitute an arbitrary or unjustifi-able discrimination against nationals of other Membersrdquo

Three RTAs in the Americas which include IPRs commit-

ments have been notified to the TRIPS Council under thisArticle The Andean Community the North American FreeTrade Agreement (NAFTA) and the Mercado Comuacuten delSur (MERCOSUR) Of these only NAFTA includes bothdeveloped and developing countries indicating that someRTAs only among developing countries also include negoti-ations on IPRs standards

One limitation of Article 4(d) of the TRIPS Agreement withimportant consequences for the FTAA and other bilateralagreements related to IPRs is that it only applies to agree-ments in force before January 1 1995 Any agreementwhether regional or bilateral which is related to IPRs and

6

Regional TradeAgreements

Andean Community(Bolivia ColombiaEcuador Peruacute andVenezuela)

G-3 Free TradeAgreementb (ColombiaMexico and Venezuela)

NAFTA (Canada Mexicoand the USA)

MERCOSUR (ArgentinaBrazil Paraguay andUruguay)

SIECA (Costa Rica ElSalvador HondurasGuatemala andNicaragua)

International legalinstruments

Decision 486 Decision 345 Decision 351Decision 391

Chapter on intellectual prop-erty

Chapter XVII on intellectual property

Harmonise Protocol onTrademarks GeographicalIndications and Indicationsof Sourcec

Convenio Centroamericanopara la Proteccioacuten de laPropiedad Industriald

IPR coveragea

bull Industrial property patents utility models layout designs ofSemiconductor Integrated Circuits industrial designs trademarks andother signs denominations of origin and trade secretsbull Breedersrsquo rightsbull Copyright and related rightsbull Regulation of access to genetic resources and traditional knowledgebull Enforcement measures

bull Copyright and related rightsbull Trademarks bull Patentsbull Layout designs of semiconductor integrated circuitsbull Geographical indicationsbull Trade secretsbull Industrial designsbull Breedersrsquo rightsbull Technology transferbull Enforcement measures

bull Plant varieties protectionbull Control of abusive or anticompetitive practices or conditionsbull Copyright and related rightsbull Program-carriying satellite signalsbull Trademarks bull Patentsbull Layout designs of semiconductor integrated circuitsbull Trade secretsbull Geographical indicationsbull Industrial designsbull Plant varieties protection (by direct incorporation of UPOV 7891)bull Enforcement measures

bull Trademarksbull Geographical indications

bull Trademarks and other signs

Box 1 Main Regional Trade Agreements in the Americas including IPRs provisions

Notes a The order of areas covered follows the order existing in the mentioned RTA b See text at httpwwwiadborgintaltratadosg318htm c Adoptedby Decision 0895 of the MERCOSUR Council d Agreed by Guatemala El Salvador Honduras Nicaragua and Costa Rica in 1968 httpwwwgoldser-vicecomsvconvenio_centroamericano_para_la_proteccion_de_la_propiedad_industrialdoc

which entered into force after 1 January 1995 will not beexempted from the MFN clause Therefore all advantagesfavours privileges and immunities will be automaticallygranted to all nationals of WTO Members not originating inthe region or in the countries subscribing to the particularbilateral agreement This limits the possibility of countriesnegotiating intellectual property rules in a RTA to give pref-erential treatment to strategic trade partners

The main RTA agreements in the Americas that include IPRsobligations are shown in Box 1 In the Andean CommunityG-3 and NAFTA there is detailed coverage of IPRs Mosthave standards that are very similar to those in TRIPS but insome cases they are TRIPS-plus This is because they weresubscribed to before the end of 1994 In the Decisions of theAndean Community there is a high level of harmonisation onIPRs among members The G-3 IPRs clauses are mostlybased on the NAFTA IPRs Chapter In NAFTA TRIPS-plusstandards include the extension of coverage (ie protectionof plant varieties based on UPOVrsquos models or protection ofprogram-carrying satellite signals) or limitations in flexibili-ties that were later agreed to at the international level in theTRIPS Agreement (ie causes for the revocation of patentsare limited to cases where for example the granting of acompulsory license has not remedied the lack of exploitationof the patent) In MERCOSUR and SIECA IPRs regulationis limited to trademarks and other signs showing a direct linkwith trade in goods and services and their regional market-ing Recently the USA and Central American countriesannounced that they will start negotiations on a RTA thatcould also include IPRs commitments

22 Bilateral AgreementsBilateral agreements tend to be very focused and have a lim-ited scope Three types are especially relevantmdashinvestmenttrade and obviously intellectual property bilateral treaties

One of the main reasons why developing countries acceptedthe TRIPS Agreement during the Uruguay Round was theexpectation that they would not be subject to bilateral pres-sures on IPRs by certain developed countries especially theUSA Developing countries had at that time unpleasantexperiences with the application of section 30117 of the UScode (legislation allowing the use of unilateral measuresunder certain circumstances) and the linkages between bilat-eral investment agreements and bilateral IPRs agreementsInclusion of the TRIPS Agreement in the final package of theUruguay Round was based on some concessions in otherareas (ie agriculture and textiles) and reduction of bilateral

pressures under an international rule-based system

However more than six years after the TRIPS Agreemententered into force bilateral activity has not diminished Onthe contrary bilateral activity has increased and the level ofambition on IPRs commitments in those agreements hasreached unprecedented levels According to UNCTAD18BITs have increased from 385 in 1989 to 1857 in 1999Bilateral treaties on IPRs with the USA have increased fromone treaty in 1986 to 42 in 199819 Bilateral trade treaties aremore difficult to track because they tend to be merged in sta-tistics with RTAs but as an indicator the European Union(EU) has bilateral treaties with 27 countries It could not beestablished how many bilateral trade treaties the USA hassigned although some of these treaties have had a high pro-file such as the US-Jordan or US-Chile treaties and moreare in the pipeline (eg Morocco Singapore and SouthAfrica)

Bilateral treaties are usually based on models prepared bydeveloped countries that have many standardised clauses andlittle space for manoeuvring in negotiations These modelsare reviewed regularly to include higher standards or unad-dressed issues

1 Bilateral investment agreements (BITs) do not regulateIPRs in a precise way Nevertheless they could have a strongimpact on how international IPRs commitments may beimplemented at the national level and on the regulatorycapacity of host countries over foreign investments whenlooking at technology transfer One important objective inmany BITs is adequate and effective protection for IPRsBITs regulate conditions for entry treatment protection andexit of investments between two countries Usually IPRs aredefined as ldquoinvestmentrdquo and protected under the provisions ofsuch treaties For example in the definition of investment inthe BIT between Bolivia and the USA (1998) it states that

ldquoThe term lsquoinvestmentrsquo of a national or company meansevery kind of investment owned or controlled directly orindirectly by that national or company This general def-inition includes but is not limited to rights in companiescontractual rights tangible property (real estate) andintangible property (rights such as leases mortgages liensand pledges) intellectual property rights and rights con-ferred pursuant to law such as licenses and permits20

(emphasis added)rdquo

In some BITs IPRs are defined in a broad way In thosebetween Canada and Venezuela (1998) and Canada and CostaRica (1999) for example IPRs are defined as including

7

17 Special Section 301 basically stipulates that theUSA can start investigations and actions on theground that a foreign country is denying adequateand effective protection of IPRs even if the coun-try concerned is fully complying with its WTO obli-gations in this regard The Special Section 301provisions deal with IPRs protection abroad andprovide for a range of country listings remediesand possible investigations to persuade other

nations to yield to US demands and views Therange of country listing includes a Priority ForeignCountry list a Priority Watch list a Watch listand a Special-Mention category each triggeringa particular course of investigation and possibleremedies or actions US unilateralism multilateral-ism co-exist SUNS 1996 httpwwwsunsonlineorgtradeprocessfollowup199611120196htm

18 UNCTAD 2000 19 Calculations are based on Table I of Drahos2002 The author is unaware of other bilateralIPRs treaties with the USA since 1998 Most IPRsnegotiations have been incorporated as part oftrade negotiations20 httpwwwsiceoasorgbitsBolus1_easp

ldquoCopyright and related rights trademark rights patentrights rights on layout designs of semiconductor integrat-ed circuits trade secret rights plant breedersrsquo rightsrights in geographical indications and industrial designrightsrdquo21

Some of the most important provisions of BITs that provideprotection for IPRs or intangible technological assets (ie knowhow) are fair and equitable treatment protection against indi-rect expropriation performance requirements prohibitionsand the investor-state dispute settlement mechanisms

The fair and equitable treatment standard depending on howit is interpreted could have implications on the expansion ofintellectual property protection There are two possible inter-pretations of what is to be considered fair and equitable treat-ment in the BITs context the plain meaning approach andthe international minimum standard The ldquoplain meaningrdquoapproach basically indicates that where an investor has anassurance of treatment under this standard a straightforwardassessment needs to be made as to whether a particular treat-ment meted out to that investor is both ldquofair and equitablerdquo22According to the Oxford English Dictionary treatment is fairwhen it ldquois free from bias fraud injustice equitable legiti-mate hellip not taking undue advantage disposed to concedeevery reasonable claimrdquo and fair treatment is that which isldquocharacterized by equity fairness hellip fair just reasonablerdquoThe ldquointernational minimum standardrdquo approach suggeststhat the concept of fair and equitable is synonymous with theconcept of international minimum standards applied in inter-national law This interpretation proceeds from the assump-tion that under customary international law foreigninvestors are entitled to a certain level of treatment (mini-mum international standards) and treatment that falls shortof this level gives rise to liability on the part of the state Insome last generation BITs23 and in the FTAA Draft Chapteron Investment24 fair and equitable standards tend to includeboth the plain meaning approach and the minimum interna-tional standard approach

How this latter is approached might affect the protection ofIPRs When an investment takes the form of IPRs or isaccompanied by IPRs and the particular BIT or RTA includesthe minimum international standard of protection then theTRIPS and WIPO treaties and possibly a potential FTAAChapter on IPRs could be relevant in any possible legalinterpretation of what ldquominimum international standardrdquo orldquointernational lawrdquo means This would mean a transfer ofstandards of treatment in international IPRs agreements intoBITs commitments In the most recent BITs reference ismade to the ldquohighest international standardrdquo or ldquointernation-

al lawrdquo and not the minimum international standard

Protection against expropriation regulation aims to protectforeign investors against outright seizure Many BITs nowinclude provisions on ldquoindirect expropriationrdquo and measurestantamount to expropriations Many civil society organisa-tions25 are concerned that these provisions against indirectexpropriation might deeply limit governmental regulatorypowers in areas of public interest when broadly interpretedExamples have occurred under the NAFTA arbitration pro-cedures26 that limit the use of regulation for environmental orsocial purposes Limitations over regulations pursuing pub-lic policy objectives that are based on arguments linked toindirect expropriation could become particularly worrisomein the IPRs field when dealing with for example compulso-ry licensing for national emergencies or other purposes orwhen introducing drug price controls in both developed anddeveloping countries

Performance requirements27 (Box 2) are commonly used topromote effective technology transfer under or through theuse of national investment laws They are permitted underthe Agreement on Trade-Related Measures on Investment(TRIMS) and are not covered by the TRIPS AgreementPolitical efforts to introduce limitations on performancerequirements were among the main reasons for the failure ofthe Multilateral Agreement on Investment under theOrganisation for Economic Cooperation and Development(OECD) In some of the last generation BITs28 prohibitionson performance on technology transfer have been widelyincluded Prohibitions on performance requirements couldlimit the use of this policy mechanism to promote technolo-gy transfer as a precondition to obtain investor status indeveloping countries having an attractive market (regions orcountries) or a particular comparative advantage

Investor-state dispute settlement provisions may be one ofthe most powerful legal tools in the hands of investors thathave been incorporated in recent BITs Such provisions

8

21 httpwwwsiceoasorgbitscaven1_easp andhttpwwwsiceoasorgbitscancos_easp22 UNCTAD 199923 The US BIT model envisages that the treatmentin addition to being fair and equitable must be noless favourable than international law

24 Article 6 of the Second FTAA Draft on Chapteron Investment httpwwwftaa-alcaorgftaadraft02engngine_1asp 25 Center for International Environmental Law(CIEL) Friends of the Earth International Institutefor Sustainable Development(IISD) and Oxfam 26 Cases under NAFTA Metalclad Corp vs

Mexico 1996 and Pope amp Talbot Inc vs Canada1998 27 Conditions set by a host country to pre-estab-lishment as an investor 28 Eg in the BIT between Canada and Uruguay(1998)

Box 2 Illustrative list of performance requirementsuseful in promoting technology transfer

bull Performance requirements for foreign direct investment (FDI)requiring joint-ventures in sectors of potential value-addition dif-ferentiation and diversificationbull Performance requirements for FDI requiring local research anddevelopment and the adaptation of foreign technologies to localneedsbull Performance requirementsincentives for FDI to impart trainingskills in ldquobest practicesrdquo and application technologies to localwork force or to local providers

allow a foreign investor to sue a host state for an alleged vio-lation of certain treaty provisions29 States however are notallowed to sue investors This situation has generated anotable increase in disputes (eg under the World BankInternational Center for Settlement of Investment Disputesthe number of disputes under BITs increased from six duringthe period 1966-1997 to 43 cases pending in 200130) SomeNGOs31 have argued that the investor-state dispute settlementin NAFTA jurisprudence is having a negative effect on regu-latory authorities especially in the environmental field32 andis limiting the capacity of national authorities to regulate inareas of public interest (so called ldquoregulatory chill effectrdquo)This scenario could apply to the IPRs field where regulatoryauthorities might be willing to implement policies to addresspublic health nutritional or environmental problems Wecould add to the potential problems of the chill effect byintroducing accumulative and alternative dispute settlementmechanisms one in WTO one in the FTAA and in variousarbitration mechanisms in BITs

2 Bilateral IPRs Agreements are usually a consequence ofbroader trade-offs between two countries Bilateral IPRsAgreements between developed and developing countriescan be linked with back-to-back signing of BITs science andtechnology cooperation agreements or even with economicor aid assistance These agreements tend to focus on specif-ic amendments and enforcement measures in which the par-ticular developed country is interested (eg US efforts toexpand protection on copyrights in the digital environmentor plant varieties protection to UPOV levels the EU empha-sis on higher levels of protection for GIs plus the signing andratification of UPOV) After 1994 Bilateral Agreements onIPRs tend to be mostly TRIPS-plus or at least tend to haveTRIPS-plus provisions

Since 1993 the various bilateral treaties and memoranda ofunderstandings on IPRs in the Americas include thosebetween the USA and Ecuador (1993) Jamaica (1994)Nicaragua (1998) and between Bolivia and Ecuador (2002)Two cases that illustrate how these treaties have been nego-tiated are given below

(i) Nicaragua and the USA signed a Bilateral IntellectualProperty Rights treaty in January 1998 The treaty had to beimplemented by July 1999 ahead of the expiry ofNicaraguarsquos TRIPS deadline33 (2000) It contains variousTRIPS-plus features including an obligation to join UPOV adeletion of the exceptions for the patentability of life and amandatory use of the classification system for trademarks of

the Nice Agreement on the International Classification ofGoods and Services for the Purpose of Registration of Marks(agreement subscribed to under WIPO)34 In this particularnegotiating sequence a BIT (which Nicaragua probablywanted) was linked to an IPRs agreement35 (whichNicaragua probably did not wantmdashcertainly not its TRIPS-plus features)36 During the negotiation of the bilateral aSection 301 procedure was invoked presumably to speed upthe negotiating cycle which had been proceeding too slowlyfor the USA37

(ii) Ecuador and the USA in October 1993 signed an IPRstreaty that mandates full protection for copyrights trade-marks patents (including pipeline protection for pharmaceu-tical products) satellite signals computer software integrat-ed circuits layout designs and trade secrets38 The treatyrequires the establishment of criminal and border enforce-ment systems However apparently the EcuadorianCongress has not yet ratified the treaty Ecuador in its acces-sion process to the WTO committed itself to implement theTRIPS Agreement before 1998 when the period of imple-mentation for developing countries contained in the TRIPSwas the year 2000 It did so by approving its national IPRslaw in 199839 According to a report by the US TradeRepresentative (USTR)

ldquothe new law [Ecuadorrsquos] provides significantly greaterprotection and notwithstanding the lack of implementingregulation enforcement of patents and copyrights hasimproved Still it can be difficult to gain protectionthrough the legal system In 1998 the USTR reaffirmedEcuadorrsquos place in the Priority Watch List under Special301 provision of the 1998 trade actrdquo40

3 Bilateral trade agreements have started to become veryattractive to some developing countries Many governmentsbelieve that they can create ldquoprivileged trade relationsrdquo withbig developed countries These agreements have as wide-ranging coverage as RTAs and many of them have IPRschapters with TRIPS-plus standards The free trade agree-ment between USA and Chile signed in 2002 is one exam-ple of the inclusion of IPRs standards in bilateral trade agree-ments In this case the Chilean government has expresslyaccepted that they have not finalised the implementation ofthe TRIPS Agreement and that the two sets of legislation arestill pending in the Parliament41 Nevertheless the Chileangovernment has affirmed that once these laws are passed thelevel of IPR protection will be slightly in excess of that inTRIPS42 The coverage of this bilateral includes among oth-

9

29 CIEL 200230 Idem31 CIEL IISD and WWF the global environmentnetwork32 IISD-WWF 200133 Drahos 200234 The last two TRIPS-plus features were found inthe version of the bilateral deal on the web site of

the Consumer Project on Technology where thetext presented is intended for general referenceonly and is under review for accuracy and com-pleteness httpwwwcptechorgiphealthcagreementsecuador-iphtml 35 This also occurred in the failed negotiationprocess of a BIT between the USA and Venezuela 36 Drahos 200237 Idem

38 US Trade Representative (USTR) 199939 Ley 83 Registro Oficial 320 19-V-98httpwwwsiceoasorgint_propnat_legEcuadorL320indasp 40 USTR 1999 41 Tratado de Libre Comercio con Chile De que seTrata Gobierno de Chile Direccioacuten General deRelaciones Econoacutemicas Internacionales 2002 42 USTR 1999

ers trademarks geographical indications Internet domainnames program-carrying satellite signals copyright andrelated rights patents enforcement measures undisclosedinformation and adoption of various international agree-ments under WIPO

The free trade agreement between the USA and Singapore43

is reported to sharply restrict the use of compulsory licensingto copy patented products (eg drugs) and new barriers areset up to the import of patented drugs sold at lower prices inthird countries44 Together the provisions in this agreementstrengthen protection of US drug companies in ways that

were explicitly disallowed in the WTO by the DohaDeclaration on the TRIPS Agreement and Public HealthCivil society organisations like Oxfam America havealready raised concerns about this agreement saying thatnew limits on compulsory licensing would impedeSingaporersquos ability to buy cheaper drugs45 The agreementalso takes other steps toward strengthening the rights ofpatent holders including provisions to extend patent terms tocompensate for delays in receiving patent protection It alsorequires patent protection for genetically modified plants andanimals whereas the TRIPS Agreement allows for weakerforms of protection

10

The effort to integrate the economies of the western hemi-sphere into a single free trade agreement began in Miami in1994 at the Summit of the Americas Then the heads of stateand government of the 34 countries in the region agreed toconstruct a Free Trade Area of the Americas or FTAA inwhich barriers to trade and investment could be progressive-ly eliminated and to complete negotiations for the agree-ment by 200546 According to the regionrsquos trade ministers theFTAA process has been built on existing sub-regional andbilateral arrangements in order to broaden and deepen hemi-spheric economic integration and to bring the agreementstogether47 The FTAA process includes negotiations in vari-ous trade and trade-related fields including market accesssubsidies and countervailing duties antidumping invest-ment services agriculture government procurement com-petition policy and IPRs

31 Negotiations on IPRs In 1998 the trade ministers created nine negotiating groupsone of whichmdashthe Negotiating Group on IntellectualProperty Rights (NGIP)mdashdeals with IPRs issues Assistanceto the negotiating groups has been provided by the FTAATripartite Committee which consists of the Inter-AmericanDevelopment Bank the Organisation of American Statesand the United Nations Economic Commission for LatinAmerica and the Caribbean Almost all countries negotiatingthe FTAA Draft IPRs Chapter are WTO members and thereappears to be a tacit understanding in the NGIP that theTRIPS Agreement would be the floor for measuring anyresult of the negotiations

The NGIP negotiation objective contains similar elements tothose agreed upon in the 1986 Punta del Este Declaration atthe beginning of the Uruguay Round which created a direct

link between market access and IPRs protection by seekingthe reduction of trade distortions (Box 3)

ldquoTrade distortionsrdquo usually refer to the effects generated bya measure that shifts the natural conditions of competition Inthe IPRs field they tend to include acts of piracy counter-feiting and weak IPRs protection Ensuring adequate andeffective protection basically means that legal protectionsmust be accompanied by enforcement mechanisms and theavailability of means for IPRs holders to enjoy their rights

3 The FTAA

Box 3 Setting the objectives of trade-related IPRsnegotiations

San Joseacute Ministerial Declaration Costa Rica 1998a objectives of the NGIP To reduce distortions in trade in the Hemisphere and promoteand ensure adequate and effective protection to intellectual prop-erty rights Changes in technology must be considered

Punta del Este Declaration section on intellectual propertyb D Subjects for NegotiationsTrade-related aspects of intellectual property rights includingtrade in counterfeit goodsIn order to reduce the distortions and impediments to internation-al trade and taking into account the need to promote effectiveand adequate protection of intellectual property rights and toensure that measures and procedures to enforce intellectualproperty rights do not themselves become barriers to legitimatetrade the negotiations shall aim to clarify GATT provisions andelaborate as appropriate new rules and disciplines Negotiationsshall aim to develop a multilateral framework of principles rulesand disciplines dealing with international trade in counterfeitgoods taking into account work already underway in GATTThese negotiations shall be without prejudice to other comple-mentary initiatives that may be taken in the World IntellectualProperty Organization and elsewhere to deal with these matters

Notes a httpwwwftaa-alcaorg b GATT Punta del Este Declaration 1986httpwwwsiceoasorgtradePunta_easp

43 Negotiations were completed in January 2003 44 Inside US Trade 2003

45 Idem46 FTAA 2001

47 Idem

11

The reference to changes in technology uses similar lan-guage to that in Article 711 of the TRIPS Agreement whereit states ldquoThe Council may also undertake reviews in thelight of any relevant new developments which might warrantmodification or amendment of this Agreementrdquo There areno current definitions of what constitutes a ldquochange(s) intechnologyrdquo or ldquonew developmentsrdquo

In the TRIPS Council new developments raised by somemembers include the protection of traditional knowledge andfolklore harmonisation of intellectual property law and e-commerce and the Internet48 In the FTAA context ldquochangesin technologyrdquo seems to be more restrictive than ldquonewdevelopmentsrdquo and linked to advances in current technologyor changes that could generate new technological fields Theuse of ldquochanges in technologyrdquo reflects the interest of certainlobby groups in the USA Australia EU Japan and Canadathat seek higher levels of IPRs protection and new techno-logical measures to fight violations in areas where advancesor new technological fields are being developedmdashnotably inthe biotechnology movie music and software industries

The NGIPrsquos objective does not necessarily provide a devel-opment friendly mandate for developing-country interests inthe hemisphere It points towards a strengthening of IPRsstandards and their enforcement in the regional setting Itdoes not include developmental and technology transferobjectives similar to those present in Articles 7 and 8 of theTRIPS Agreement Furthermore it does not call for theinclusion of effective special and differential treatment fordeveloping countries

The mandate of the FTAA also confuses objectives withmeans The objectives of a FTAA Chapter on IPRs should bethe promotion of innovation and the dissemination and trans-fer of technology and not simply the protection of IPRsIPRs protection is not in itself a goal but a means to achievethese objectives Making the protection of IPRs an objectiveof the negotiations could undermine the ultimate develop-ment and public interest objectives by promoting the tacitinclusion of different objectives (ie consolidation orenhancement of market access) or by limiting options avail-able to achieve the real objectives of IPRs

So far the negotiations in the NGIP have been relativelyinsubstantial when compared to the level of detail in the FTAAdraft chapter on IPRs Three main options on how to imple-ment NGIPrsquos objectives have been discussed harmonisationof IPRs rules in the region developing the TRIPS Agreementand work on issues linked to trade The NGIP has agreedhowever that the IPRs Chapter should be based on commit-ments adopted by FTAA countries in accordance with interna-tional agreements and not oriented towards harmonisation49

1 Negotiating positions The positions of countries in theNGIP negotiations broadly match the trade-bloc schemes ofthe region with the exception of the NAFTA Generally thebloc positioning has been the following50

a NAFTA countries These countries have not presentedpositions as a bloc The USA has presented some propos-als that would reflect a standard of protection similar tothat found in its own national law (Box 4) They havesuggested that the final outcome of the negotiationsshould elevate the TRIPS floor harmonise the criteria forpatentability eliminate exceptions and exclusions clarifythe text to avoid ambiguities and reinforce enforcementmechanisms Canada is looking for an IPRs Chapter thatwould look similar to the NAFTA Chapter on IPRs whilekeeping existing exceptions Canada has also expressedthe need to keep the cultural exceptions in the final agree-ment51 Mexico is also looking for a NAFTA-like IPRs

Box 4 US trade policy on IPRs

The public law on the Trade Promotion Authority of the USAa

regarding IPRs states thatThe principal negotiating objectives of the United States regard-ing trade-related intellectual property arebull to further promote adequate and effective protection of intellec-

tual property rights including throughmdash (i)(I) ensuring acceler-ated and full implementation of the Agreement on Trade-RelatedAspects of Intellectual Property Rights referred to in section101(d)(15) of the Uruguay Round Agreements Act (19 USC3511(d)(15)) particularly with respect to meeting enforcementobligations under that agreement and (II) ensuring that the pro-visions of any multilateral or bilateral trade agreement governingintellectual property rights that is entered into by the UnitedStates reflect a standard of protection similar to that found inUnited States law (ii) providing strong protection for new andemerging technologies and new methods of transmitting anddistributing products embodying intellectual property (iii) pre-venting or eliminating discrimination with respect to mattersaffecting the availability acquisition scope maintenance useand enforcement of intellectual property rights (iv) ensuring thatstandards of protection and enforcement keep pace with tech-nological developments and in particular ensuring thatrightholders have the legal and technological means to controlthe use of their works through the Internet and other global com-munication media and to prevent the unauthorized use of theirworks and (v) providing strong enforcement of intellectual prop-erty rights including through accessible expeditious and effec-tive civil administrative and criminal enforcement mechanisms

bull to secure fair equitable and non-discriminatory market accessopportunities for United States persons that rely upon intellectu-al property protection and

bull to respect the Declaration on the TRIPS Agreement and PublicHealth adopted by the World Trade Organization at the FourthMinisterial Conference at Doha Qatar on November 14 2001

Note aPublic Law 107-210 Aug 6 2002 116 STATU 933httpwwwtpagovpl107_210pdf

48 In relation to e-commerce and the Internet themain political objective is to transfer the WIPOrsquosCopyright Treaty and the Treaty on Performancesand Phonograms into TRIPS Vivas-Eugui 200249 FTAA document FTAAngip03 June 2002

50This section is based on the perceptions of somenegotiators in the FTAA51 Canada is using the occasion of the FTAA nego-tiations to promote recognition of the importanceof preserving cultural diversity and has proposed

a cultural exemption for the FTAA which couldaffect the negotiations on services investmentand IPRs See Cultural Diversity in the FTAA -Canadas Position February 2001 httpwwwdfait-maecigccatna-nacC-PampP-enasp

12

52 Referred to as the Draft Chapter from now on53 document FTAATNCw133rev2 November

2002 httpwwwftaa-alcaorgftaadraft02engngipe_1aspIPR

54 Examples of civil society organisationsrsquo com-ments are at httpwwwceiporgfilespdfTED-Quito-Civil-Society-Presentationpdf

Chapter but has been careful not to support proposals theyconsider to be ldquoexcessiverdquo in the regional context

b The Andean Community has attempted to prevent thenegotiations from moving too far from TRIPS-like com-mitments They have emphasised issues linked to geneticresources and traditional knowledge as well as the impor-tance of keeping exceptions linked to ordre public andthose based on health concerns

c MERCOSUR has led the opposition to the eliminationof exceptions and proposals that would undermine theflexibility contained in the TRIPS Agreement

d SEICA has been generally sympathetic toward US pro-posals

e CARICOM has shown interest in increased protectionof copyright and related rights when linked to the musicindustry

f Chile has adopted a ldquomiddle groundrdquo position betweenmoving towards deeper harmonisation and keepingTRIPS flexibilities

32 The FTAA Draft IPRs Chapter The FTAA Draft IPRs Chapter52 contains a wide variety ofproposals with almost 98 of the text still in brackets at theend of 2002 In the Buenos Aires Ministerial Declaration of2002 Ministers instructed the Negotiating Groups ldquoto inten-sify efforts to resolve existing divergences and reach con-sensus with a view to eliminating the brackets from drafttexts to the maximum extent possible to work on consoli-dating textsrdquo According to some Latin American delegationsthe discussions in the NGIP have not been very deep on sub-stance and many of the issuesmdashincluding crucial ones likespecial and differential treatment and technology transfermdashhave not even been discussed

The current Draft Chapter53 contains proposals ranging fromthose close to the TRIPS Agreement to some that are US law-plus The following analysis is based on the highest level ofprotection that could be granted under the current DraftChapter and also examines proposals that have been made toaddress public interest concerns when relevant In the currentFTAA draft the origin of the proposals has not been dis-closed

The full draft text of the FTAA Agreements was consolidat-ed and sent to Ministers in Quito at the end of 2002 for con-sideration The Ministerial Declaration of Quito agreed topublish the complete second draft of the FTAAAgreement inan effort to promote transparency in the negotiating processThe participation of civil society and industry in the processusually has worked through the presentation of comments toMinisters of the Americas in side events54 These commentswere until the Quito Ministerial in 2002 very general due tothe lack of access to the official documents of negotiations

and different draft proposals by countries This tardiness inpresenting the official draft and its advanced state have givenrise to many doubts about the comments that civil societyactors in the Americas could actually put forward These andother questions still need to be answered in the FTAAprocess

In Quito the Ministers instructed the Chairs of theNegotiating Groups to further refine their reports to theFTAA Trade Negotiations Committee (TNC) about thepoints on which there is no agreement within the negotiatinggroups and which might require further decision Thesereports must provide the TNC with a clear description of thedifferences in positions indicating alternatives where possi-ble The reports will be instrumental in enabling the TNC tofulfil its role as the executive body of the negotiatingprocess which includes inter alia guiding the work of thedifferent FTAA bodies while striving to maintain balancedprogress in all negotiating areas in accordance with theirobjectives and mandates Even though almost all of the textis still in brackets this process puts pressure on the Chairs ofthe Negotiating Groups to define areas of divergence It alsoestablishes a more rapid process for reducing differenceswith the ultimate goal of obtaining a clear draft text

1 Coverage The coverage of the TRIPS Agreement and theDraft Chapter do not match in a number of ways (Box 5)Both texts include common areas of IPRs (eg patents andcopyright) but there are also important differences (eg theprotection of traditional knowledge and folklore) Not allareas included in the Draft Chapter are accepted under con-sensus by the NGIP and the final text of the FTAA might notinclude some of these Two annexes and a supplementarytable expand on the brief comparison in Box 5 The first is abibliography and literature survey on IPRs in the FTAA andrelated articles (Annex I) The second summarises the con-tent of each section of the TRIPS Agreement and DraftChapter (Annex II) A supplementary table provides a legaltext comparison identifying the main differencessimilaritiesof language between the two texts (this is available on theinternet and on request due to its length)

2 Possible outcomes It is highly speculative to imaginewhat could be the possible outcome of the FTAA negotia-tions The minimum scenario resulting from the negotiationswould produce an agreement very similar to TRIPS with afew substantive and procedural TRIPS-plus rules orientedtowards effective enforcement in the hemisphere The maxi-mum scenario would produce an agreement that will includemost of the TRIPS-plus features identified in the text of theDraft Chapter Other scenarios lie somewhere in betweenCountries should however note two important negotiatingfacts The first is the experience of the Uruguay Round inTRIPS negotiations which started with a ldquogeneral under-standingrdquo that the negotiations would only deal with rules for

13

Intellectual property area TRIPS Agreement FTAA Draft IPRs

Substantive obligations

Copyright and related rights

Codified program-carrying satellite signals Not covered

Internet domain names Not covered

Protection of expressions of folklore Not covered

Trademarks

Geographical indications

Industrial designs

Utility models Not covered

Patents

Layout Designs of Semiconductor Integrated Circuits

Traditional knowledge and access to genetic resources under the IPRs framework Not covered

Plant variety protection Indirectly covered b

Undisclosed information (trade secrets)

Unfair competition

Control of anti-competitive practices in contractual licences

Enforcement measures

Civil and administrative procedures

Border measures

Criminal procedures

Measures against technological circumvention Not covered

Other relevant provisions

Technical cooperation

Technology transfer

Dispute prevention and settlement

Availability of a dispute settlement procedures for violation

Notes aThe classification of this box does not follow that in TRIPS and the Draft Chapter New areas have been included to facilitate an understanding ofthe differences in coverage bDirect reference to UPOV Substantive commitments are based on UPOV 1991

counterfeited goods and not other issues The second is thatUS negotiators have been mandated by the Trade PromotionAuthority Act of 2002 to seek a level of IPRs protection sim-ilar to that existing in US Law which is the highest standardapplied in the world in general terms (Box 4)

33 Links between the FTAA other treatiesand negotiations

Some developed countries the USA and the EU in particu-lar want developing countries to comply with internationalIPRs treaties or to adopt higher standards of IPRs protec-tion55 Other countries like Japan Canada56 and Australia57

have lately become very active in seeking higher IPRs pro-

tection in multilateral negotiations For the USA regionaland bilateral treaties together with effective use of WIPOnegotiations are the main vehicles for achieving their objec-tives The EU tends to prefer the use of multilateral forumswhether the TRIPS Council or WIPO over regional or bilat-eral negotiations58 for promoting higher standards of IPRsprotection Thus developing countries are being led into ahighly complex multilateralregionalbilateral web of negoti-ations on IPRs standards that are progressively eroding notjust their ability to set domestic standards but also their abil-ity to interpret their application through domestic adminis-trative and judicial mechanisms59 These multilevel negotia-tions require burdensome preparations by developing coun-tries and may make it impossible for them to defend ade-

55 Drahos 200256 Eg the presentation of a proposal before theWTO Seattle Ministerial for the creation of aWorking Group on Biotechnology The only areaat the multilateral level where Canada has pre-sented formal opposition to TRIPS-plus proposalshas been the discussion on scope and modalitiesfor the application of non-violation complaints in

the TRIPS Council WTGCW359 httpdocsonlinewtoorgDDFDocumentstWTGCW359doc and IPCW249 httpdocsonlinewtoorgDDFDocumentstipcw249doc respectively 57 Eg a proposal for undertaking the review ofArticle 711 of the full text of the TRIPSAgreement IPCW210 httpdocsonlinewtoorgDDFDocumentstIPCW210DOC

58 Some EU regional and bilateral agreementshave promoted TRIPS-plus obligations (eg theinterim agreement between the EU and Lebanonof 2002 Annex 2) httpeuropaeuintcommexternal_relationslebanonintroaghtm 59 Drahos 2002

Box 5 Coverage of the TRIPS Agreement and the FTAA Draft IPRs Chaptera

14

quately the interests of their citizens The FTAA negotiationson IPRs should be viewed in the context of the possible linksbetween regional and bilateral treaties negotiations at themultilateral level and the interests of developing countries Iwish to highlight seven such links

1 Shaping developing countriesrsquo legislation the theory ofthe hammer and the anvil The TRIPS Agreement has almostbecome a universal set of minimum IPRs standards at theinternational level TRIPS together with the availability of adispute settlement system that allows cross-sectoral traderetaliatory measures is becoming an anvil upon which tocraft legislation on IPRs in developing countries RTAs andbilaterals are then used as the hammer and the anvil for shap-ing their legislation at will The TRIPS Agreement has inreality created a suitable environment for pushing deeperIPRs standards in many parallel negotiations and bilateralagreements

2 ldquoTrade offsrdquo in free trade agreements Developingcountries have as any other sovereign state the right toagree or to ldquoexchangerdquo all the concessions they consider ade-quate for their own interests Nevertheless the TRIPSAgreement was accepted in the Uruguay Round withoutassessing the impacts on development through a clear bene-fit cost analysis by developing countries Concessions underthe WTO Agreement on Agriculture have proven to be inef-fective and insufficient to allow a substantive increase indeveloping country exports In the WTO Agreement onTextiles and Clothing actual benefits for some developingcountries will start to be felt only after 200560 Yet TRIPS hasfully applied to developing countries since the year 2000This situation clearly shows that in sectors where developingcountries have trade interests benefits will usually comelater or it might even take new rounds of negotiations toachieve them However in certain areas of interest for devel-oped countries benefits are obtained in a faster way Thisgives rise to doubts about whether some ldquotrade offsrdquo in theUruguay Round were given sufficient consideration MostRTAs and bilateral negotiations have not carried out assess-ment exercises and new ldquounmeasuredrdquo commitments havebeen accepted by many developing countries raising ques-tions about the future impact of these agreementsDeveloping countries in the Americas should before enter-ing into more commitments compare transfer paymentsfrom technology and copyright licensing to the developedcountries in the hemisphere with the value of exports of agri-cultural and industrial products They will then be able todetermine the actual ldquotrade negotiating valuerdquo of the poten-tial commitments on IPRs they might adopt

3 Perpetual expansion of IPRs commitments RTAs andbilaterals are generating a continuous review of commit-ments on IPRs even before the TRIPS Agreement is fully

implemented by all developing countries In some RTAs andbilaterals the type of commitments included are sometimesTRIPS-plus or even US legislation plus For example in theDraft Chapter one agreement on IPRs (WIPOrsquos Patent LawTreaty) that has been signed but not yet ratified by the USAhas been directly incorporated in the Draft Chapter (Article5 Part I)61

4 Negotiating comfort of developed countries in theTRIPS Council Owing to the proliferation of RTAs andbilaterals developed countries and particularly the USA arelosing interest in negotiating issues in the TRIPS CouncilThe USA has already demonstrated its lack of interest innegotiating issues different from the mandated negotiationsin the TRIPS Council (ie basically a multilateral system ofregistration and notification of GIs on wines and spiritsalthough some would say that even in this case they have nointerest) A similar attitude should be expected in the futureby the USA until an ldquoacceptablerdquo harvest of RTAs and bilat-erals containing TRIPS-plus IPRs commitments allows themto pursue negotiation of higher standards in the TRIPSCouncil

5 MFN in the TRIPS spreading RTA and bilateral com-mitments Some of the benefits of an aggressive RTA andbilateral IPRs negotiating strategy can be obtained evenbefore multilateral standards are raised again through theMFN provisions of TRIPS as discussed in Section 21 Thelimited scope of the MFN exemption under Article 4(d) ofTRIPS applies only to agreements reached prior to TRIPSallowing automatic MFN status for subsequent regional orbilateral agreements containing substantive IPRs commit-ments Two examples are found in the IPRs Chapter of theG-3 Free Trade Agreement which was signed after January1 1995 It contains a general obligation by which Partieshave to grant protection to plant varieties Parties are encour-aged to follow the substantive provision of the UPOV systemwhen implementing plant variety protection in their nationallegislation (there is no mention of the year) Parties alsohave to protect trademarks for a minimum period of tenyears In these two cases obligations will be automaticallymultilateralised according to the MFN clause contained inArticle 4 of the TRIPS

6 Difficulties of recovering policy spaces once they havebeen committed One lesson from the TRIPS and healthdebate in the WTO is that it is very difficult to change com-mitments that limit spaces for undertaking public policiesonce they have been agreed to In the case of paragraph 6 ofthe Doha Declaration on the TRIPS Agreement and PublicHealth the TRIPS Council is at an impasse on finding solu-tions after more than one year of discussions This creates adanger that as developing countries are worn down propos-als could be accepted that include provisions more restrictive

60 The Multifibre Agreement was dismantled asconsequence of the WTO Textile AgreementNevertheless quotas on textiles were kept and

subject to a three steps phase out process Thelast step of the phase out process will take placein 2005

61 WIPO 2003

15

than those contained in the TRIPS Agreement or the DohaDeclaration With RTAs and bilateral treaties it is even moredifficult to modify commitments due to the differences in thebargaining power and the lack of political bodies followingthe implementation of those treaties Many RTAs only havetemporary secretariats while bilateral agreements do notusually have administrative bodies Any political ldquodecisionrdquoabout a bilateral treaty and the monitoring of commitmentsare dealt with in ad hoc bilateral committees which are usu-ally not open to the public

7 Existence of undemocratic and non-transparent nego-tiation processes In the WTO there have been efforts sincethe Doha Ministerial to disclose negotiating documents to agreater extent than before Many WTO members are autho-rising automatic and immediate derestriction of their docu-ments In the FTAA however the negotiating documentshave not been derestricted The first draft of a possible agree-ment was made available only after more than five years ofnegotiations just before the Quebec Summit of the Americasin 2001 and the second draft was released after the QuitoMinisterial in November 2002 In bilateral agreements it isimpossible to find proposals and in many cases even the textsof the agreements In the case of the recently finalised bilat-eral trade agreement between the USA and Chile theChilean and the US governments only made public succinctsummaries of the content of this bilateral before its signatureThe text of this agreement was recently made available to thegeneral public62 In these two cases civil society groupsraised serious concerns about the undemocratic nature of thenegotiations and non-transparent processes due to the limit-ed participation and the lack of publication of official andnegotiating documents

34 Systemic issues in the Draft ChapterLooking more specifically at the Draft Chapter a number ofsystemic issues arise In the WTO systemic usually refers toissues that would have consequences for the basic concep-tion of the trade system In the following discussion systemicrefers to issues in the FTAA text that could have an impacton the basic objectives and on the balances existing in theIPRs system The primary justification for granting IPRs pro-tection in the past was that it brings benefits to society bypromoting innovation creation and consumer protection63In the preamble of the Convention establishing WIPO64 thereis an indication of the desire of members to encourage cre-ative activity and to promote the protection of IPRs through-out the world

Although objectives might change from one agreement toanother Article 8 of the TRIPS Agreement acknowledgesobjectives other than the promotion of creativity and innova-tion including technology transfer mutual advantage for

producers and users and a balance of obligations These bal-ances are fundamental in promoting the public interest andusually include

1 Standards for granting protection that clearly limit whatis under the public domain and what is protected underIPRs law

2 Some limited exceptions (on subject matter or on grant-ed rights) based on public interest concerns (healthenvironment education morality etc)

3 Limitation on the periods of protection to give societythe possibility of using the inventions or creations aftersuch a period in finished and

4 In the case of patents a description of the invention topermit replication of the invention and the use of com-pulsory licensing under certain conditions

The Draft Chapter includes text that limits and in some casesdeletes provisions necessary to achieve the objectives ofIPRs protection and to keep existing balances in the TRIPSAgreement or in national IPRs legislation Some of the mainsystemic issues arising from the Draft Chapter are as fol-lows

1 More restrictive legal interpretations The DraftChapter could lead to more restrictive legal interpretations ofcommitments on IPRs owing to the lack of a preamble thenature of obligations it contains and the national treatmentclause Even though preambles do not contain operative lan-guage they tend to include some important principles thatcould be relevant to the interpretation of particular articles ofinternational agreements For example the TRIPS preambleincludes the recognition that IPRs are private rights therecognition of underlying public policy objectives of nation-al systems including developmental and technological objec-tives and the recognition of the special needs of the leastdeveloped countries in respect of maximum flexibility Thesetypes of principles are important for enhancing the flexibili-ties contained in the TRIPS Agreements or in any futureIPRs agreements whether international regional or bilateralOn the scope and nature of obligations the Draft Chapterwould require a clear commitment to ldquoprovide adequate andeffectiverdquo protection and enforcement of IPRs thus limitingspace for any interpretation on how obligations on imple-mentation are or should be interpreted In the case of nation-al treatment the TRIPS obligation to provide no lessfavourable IPRs protection would be expanded to the ldquoenjoy-ment of rights and any benefits derived therefromrdquo follow-ing the path of the broader coverage used in BITs65 Thiswould basically mean that the agreement would not only pro-tect the rights of titleholders but also any action seeking theenjoyment of those rights and their economic interests orexpectations Enhanced protection in this context would

62 httpwwwustrgovnewftaChiletextindexhtm 63 Walker 2001 and Commission on IntellectualProperty Rights 2002

64 Convention signed in 1967 and amended in1979 wwwwipointcleadocsenwowo029enhtm 65 Vivas-Eugui 2002

16

limit the type of measures that a state could use to addresspublic interest concerns and would expand the nature of obli-gations under IPRs

2 Creation of new areas of IPRs As shown in Box 4 thecurrent draft includes various new areas of IPRs includingplant variety protection according to the UPOV model utili-ty models codified program-carrying satellite signals inter-net domain names unfair competition well known trade-marks and measures against technological circumventionThis generates over specialisation of IPRs and excessivespecificity in the existing areas at the international levelSimilarly the creation of new areas of IPRs substantiallyreduces the area in the public domain In some cases it couldundermine the basis of innovation and creativity by limitingor making it more difficult to use ldquoknowledge informationor creationsrdquo that were freely available before the creation ofa new area of IPRs The inclusion of new areas of IPRs pro-tection however is not necessarily negative for develop-ment Some new areas can provide tools for protecting thetype of innovation or creations that developing countries door could do Utility models (petty patents) can help to protectldquosmall innovations or adaptationsrdquo in industry They are inthe Draft Chapter but not the TRIPS Agreement Utilitymodels are usually defined as new shapes configurations orarrangements of components of any device tool implementmechanism or other object that permits improves or allowsa different operation use or manufacture of the object incor-porating it or that endows it with any utility advantage ortechnical effect that it did not previously have In this casethe criteria for protection are less stringent than those ofpatents and easier for industries in developing countries touse The UK IPRs Commission Report has highlighted thepositive effects of utility models in promoting innovationAccording to the Commission studies of Japanrsquos patent sys-tem from 1960-1993 have suggested that utility models weremore important than patents in stimulating productivitygrowth It also found some evidence on the usefulness ofutility models to protect and promote innovations in particu-lar industrial sectors in Brazil and The Philippines showingthe value of using different types of IPRs protection that canhelp to address development concerns

3 a priori acceptance of existing and future IPRs agree-ments The Draft Chapter could result in the highest IPRsprotection standards ever adopted in a regional trade agree-ment As well as TRIPS many new international treatiescould be directly incorporated in the final text includingnine treaties one set of rules and two recommendationsadopted under the auspices of WIPO and one non-intellectu-al property treaty the Convention on Biological Diversity

(CBD) More worryingly four future IPRs treaties that arebeing or may be negotiated under WIPO could be includedwithin the FTAArsquos scope66 This raises serious concerns aboutgiving IPRs negotiators prospective and perpetual legisla-tive-like powersmdashin effect a blank check with an a prioricommitment by FTAA members to enforce future IPRs pro-tection obligations This raises major questions about whichobligations countries are really signing onto in the FTAAprocess Moreover the texts of the Doha Declaration on theTRIPS Agreement and Public Health the new InternationalTreaty on Plant Genetic Resources for Food andAgriculture67 and the Bonn Guidelines68 which have impor-tant links with IPRs are not included in the list of incorpo-rated IPRs agreements and recommendations

4 Expansion of the subject matter and rights conferredin the case of patents The Draft Chapter expands the sub-ject matter of patents by deleting some or all of the excep-tions to patentability that are contained in Articles 272 and273 of the TRIPS Agreement69 These exceptions are basedon particular moral safety health and environmental con-cerns and on the nature of certain types of subject matter (ieplants and animals other than micro-organisms) The DraftChapter also includes new rights for patent holders over bio-logical patents giving them rights over biological materialderived through multiplication or propagation of the patent-ed product70 These two examples show a clear reduction ofthe flexibilities given by the TRIPS Agreement in patentsand an expansion of patent holdersrsquo rights over biotechno-logical inventions See also Annex II and the supplementarytable for more details

5 Expansion of the periods of protection Some periods ofprotection for IPRs are expanded in various proposals in theDraft Chapter Any justification for the expansion of the peri-ods should be analysed according to the needs in the partic-ular field of technology and in light of the public interest Asimple expansion designed to satisfy the demands of indus-try will limit access to the subject matter of the particularIPRs for a longer period of time without new benefits forsociety The periods of protection have been expanded in theDraft Chapter directly or indirectly depending on the partic-ular case Direct expansion would occur by extending theperiod of protection in the case of copyright by calculatingthe period of protection from the original authorsrsquo life plus50 years after the making of the work to 95 years71 Indirectexpansion could occur for example by including a manda-tory and automatic extension of the period of protectionwhen delays occur in the granting of a patent72

6 New costs for implementation and enforcement It willcost an estimated US$ 15-2 million per country to imple-

66 Article 10 Section 2 Part II67 Agreed at the Food and Agriculture Organisationof the United Nations (FAO) in 200168 CBD Bonn Guidelines on Access to GeneticResources and Fair and Equitable Sharing of the

Benefits Arising out of their Utilization CBDConference of the Parties Decision IV24 of 2002httpwwwbiodivorgdecisionsdefaultaspm=cop-06ampd=24 69 Article 2 Section 5 Part II Options presented inthese Articles are proposed for deletion

70 Articles 33 and 34 Section 5 Part II 71 Article 10 Section 2 Part II 72 Article 82 Section 5 Part II

17

ment TRIPS73 This cost could rise substantially in theimplementation of the Draft Chapter proposals Developingcountries in the region will have to pay again for substantivereform of IPRs rules when the benefits to be realised fromsubsequent revisions of laws on IPRs are unclear In theDraft Chapter many new and costly enforcement commit-ments are included (eg obligations to protect new copyrightand related rights in the digital environment preparation ofstatistical information on IPRs protection and ex officio bor-der measures74) The draft text also includes a general obli-gation on each party not to use the distribution of resourcesfor enforcement as an excuse for a Party not complying withthe provisions of the Agreement75 This general obligationcould restrict the sovereign right of governments to preparetheir budgets according to nationally chosen priorities

The case of ex officio border measures is the typical examplewhere private rights are protected at public expense IPRs areprivate rights Private rights are usually enforced through awide range of civil actions that are initiatied by the interest-ed party in the case of any infringement Ex officio actionsmean that administrative authorities must monitor and under-take actions against a particular violation of IPRs whether ithas been demanded or not by the IPRs holder These ex offi-cio actions at the border are financed by the public budgetand directed to protect foreign private interests Ex officioactions will therefore imply an extra cost for public budgetsof future FTAA parties even in countries where no econom-ic benefits have been obtained from further IPRs protection

Countries that usually have budget restrictions or lack fundsfor these types of activities must carefully weigh these limi-tations in budget flexibility If countries in the Americasdecide to accept such an obligation it should be accompa-nied by financial assistance for implementing such measures

35 Sectoral issues Apart from the systemic issues the Draft Chapter couldaffect the public interest through its impact on several sec-toral issues including

bull public health and access to medicines

bull food security access to seeds and biotechnology

bull biodiversity and traditional knowledge

bull folklore

bull information and digital technologies

bull competition policy

bull transfer of technology and

bull special and differential treatment

This section examines the main proposed provisions in rela-tion to these sectoral issues and briefly assesses some of the

problems that might arise

1 Public health and access to medicines Proposals in theFTAA draft could undermine the capacity of governments totake measures to protect public health The draft text makessome links with recent WTO work although there is noexpress mention of the Doha Declaration on the TRIPSAgreement and Public Health The Draft Chapter states that

ldquono provision of the IPR chapter prevents and should notprevent any Party from adopting measures to protect pub-lic health and it should be interpreted and implemented ina manner that takes into account each Partyrsquos right to pro-tect public health and in particular to promote access toexisting medicines and to the research and developmentof new medicinesrdquo76

This general provision basically repeats a small part of thetext of the Doha Declaration on the TRIPS Agreement andPublic Health It could help in facilitating some space forfavourable legal interpretations on the relationship betweenIPRs and public health policies since this provision has beendirectly incorporated in the body of the Draft Chapter and isnot in a preamble or in a separate political declaration thusraising its legal value in case of a possible regional disputeHowever this provision only refers to promotion of access toexisting medicines For new medicines the obligations onlyapply to research and development and not to access whichhas been one of the main issues at stake in the IPRs and pub-lic health debate at the multilateral level This differentiationshould not exist and could even be considered Doha-minusin the sense that it tries to limit the scope of the DohaDeclaration paragraph 4 of which states that the TRIPSAgreement ldquocan and should be interpreted and implementedin a manner supportive of WTO membersrsquo right to protectpublic health and in particular to promote access to medi-cines for allrdquo without making any differentiation betweenmedicines whether in existence or new

The general provisions and basic principles patent and theundisclosed information sections of the Draft Chapter con-tain various proposals that could limit existing flexibilities inthe TRIPS Agreement and the Doha Declaration on theTRIPS Agreement and Public Health The Draft Chapter lim-its the principle of international exhaustion of rights set outin TRIPS by proposing its substitution with the principle ofregional exhaustion If a country recognises the doctrine ofregional exhaustion the right of an IPRs holder to controlmovement is extinguished when a good or service is firstsold or marketed in any country of the region77 If a countryrecognises a doctrine of ldquointernational exhaustionrdquo the rightof an IPRs holder to control movement is extinguished whena good or service is first sold or marketed anywhere in theworld The application of regional exhaustion would permit

73 UNCTAD 1996 and World Bank 200274 Articles 6 5 and 1 of Part III 75 Articles 19 of Part III

76 Article 14 Part I77 Article 4 Part I In the Draft Chapter the region-al exhaustion principle applies in general to allIPRs covered by the Chapter

18

the blocking of the movement of goods and services cominginto the region giving the right holder the possibility of seg-regating the regional market In practice blocking movementof goods and services from countries outside the regionwould limit the possibility of acquiring legitimate goods inthis particular case pharmaceuticals at potentially lowerprices

Similarly there are proposals to limit to the use of compul-sory licensing The TRIPS Agreement does not limit the rea-sons states can use to grant compulsory licenses The mostcommon ones in the comparative legislation include patentabuse failure to work or insufficient working of the inven-tion78 national emergencies or other circumstances ofextreme urgency (including for health reasons and other pub-lic interests) and public non-commercial use as a remedyagainst anticompetitive practices The Draft Chapterincludes a proposal to limit compulsory licenses to only pub-lic non-commercial use or in situations of a declared nation-al emergency or other situations of extreme urgency79Accordingly the authorisation to use the subject matter of apatent would only be allowed for governmental use or use bya private party acting on behalf of the government Otherlimitations in the Draft are a prohibition on use of compul-sory licensing until four years after the grant of the patentand obligatory judicial and administrative review All theselimitations would undermine and limit the capacities ofcountries in the Americas to use rights in the TRIPSAgreement and the Doha Declaration on the TRIPSAgreement and Public Health for granting compulsorylicences

A proposal to prohibit the use of information on the safetyand efficacy of protected pharmaceutical oragriculturalchemical products for marketing generic prod-ucts without the ownerrsquos authorisation for five years from thedate of approval is also included in the Draft Chapter80 Thisproposed prohibition does not mention the confidential char-acter of the information and it refers to data on the safetyand efficacy of the product whether it is confidential or notThis would basically mean that the prohibition to accessinformation would apply not only to confidential informa-tion81 but also include information that is available to thepublic today In addition unlike the TRIPS Agreement itwould apply to new products or mere variants on alreadyknown products This would limit the use of important infor-mation for timely compulsory licensing82 and would implythe erection of artificial barriers to the entrance of competi-tive products which do not appear to be required for the pro-tection of intellectual assets

2 Food security access to seeds and biotechnology TheDraft Chapter contains many proposals that would allow thegranting of or a substantial expansion of ldquoexclusive rightsrdquoover living organisms especially on plants and seeds Twosections are particularly relevant those on patents and onbreedersrsquo rights83 Patents and breedersrsquo rights allow for thecapture of economic benefits as a stimulant to the develop-ment and dissemination of innovation Many farmers agri-cultural researchers academics and civil society groups areconcerned about the potential effects of these instruments onfood security access to seeds farmersrsquo rights84 control overagricultural genetic resources orientation of research anddevelopment in the agricultural field structure of the marketand direction of seed production the creation of excessiveincentives to monoculture and the promotion of the use ofgenetically modified organisms without risk assessment andethical issues regarding the patentability of life forms

The patent section strengthens many patent rules when com-pared with the TRIPS Agreement so as to facilitate thepatentability of biotechnological inventions It limits and insome cases deletes the exceptions to patentability of plantsand animals thus eliminating flexibilities provided byArticle 273(b) of TRIPS It gives new exclusive rights toholders of biological patents by covering rights over biolog-ical material derived from multiplication or propagation ofthe patented product85 Furthermore when patents protect aspecific gene sequence or biological material containing thatsequence the protection will cover any product that includesthat sequence or material expressing that genetic informa-tion These proposals would provide incentives to use patentsto protect plant and animal inventions (or discoveries in thecase of the USA) Patents usually have stronger exclusiverights and fewer exceptions than plant variety protection sys-tems

Requiring the patentability of plants could undermine farm-ersrsquo rights Many national patent laws do not contain excep-tions that allow farmers to save use exchange and sell farm-saved seedpropagating material Plant variety protectionsystems such as UPOV 1991 limit farmersrsquo rights but somepractices for breeding are still allowed If the FTAA allowspatentability of plants without the inclusion of an appropri-ate exception to save use and exchange farm-saved seeds itwould provide an incentive for organisations to use patentsto protect plant ldquoinventionsrdquo rather than plant variety protec-tion systems whether UPOV or not

The patentability of plants if not accompanied by mecha-nisms to enforce the CBD and the ITPGRFA in patent filingprocesses could create even more incentives for illegal

78 This ground for issuing compulsory licensing isspecifically authorised by the Paris ConventionArticle 5(A)(4) Some national IPRs laws allowcompulsory licensing for lack of working of theinvention (egBrazil) A case was brought to theWTO by the USA against Brazil on this issue butthe complaint was withdrawn There is no WTO

decision on the matter

79 Article 51 Section 5 Part II

80 Articles 12 and 14 Section 10 Part II

81 Essential Action 2002

82 Correa 2002

83 Sections 5 and 9 of Part II

84 Including compensation for their collaboration inkeeping a great variety of in situ germplasm andthe possibility of continuing traditional exchangeand reuse of seeds


19

access and use of genetic resources or associated traditionalknowledge by opening the possibility of obtaining exclusiverights over inventions that use or incorporate plant geneticmaterial

The TRIPS Agreement requires members to provide for theprotection of plant varieties either by patents or by an effec-tive sui generis system or by any combination thereofArticle 273(b) gives flexibility to all countries to choosewhich system they would prefer to use Some proposals inthe Draft Chapter restrict these options in several ways

bull by requiring the patentability of life forms86 (by basical-ly proposing the deletion of the exceptions to patentabil-ity contained in Article 273b of the TRIPS Agreement)

bull by directly incorporating UPOV 789187

bull by considering UPOV to be the only sui generis sys-tem88 and

bull by adding a full section on breedersrsquo rights which buildson UPOV 789189

The section on breedersrsquo rights shows differences in posi-tions over whether breedersrsquo rights should be modelled afterUPOV 1978 or 1991 The section does not substantiallychange UPOV 1991 standards Nevertheless in some casesthe existing language strengthens or adds to those standards(eg propagation acts of all plant varieties and commercialuse of ornamental plants or parts of those plants as propagat-ing material are added to the list of rights conferred by abreederrsquos certificate)

The Draft Chapter includes the right of parties to restrictbreedersrsquo rights in order to permit farmers to use for propa-gation or multiplication purposes on their own holding theproduct of the harvest of the protected varieties There arealso proposals not to include this right (known as ldquofarmersrsquoprivilegerdquo) in the breedersrsquo rights section or to limit it by notallowing its application to fruit ornamental and forestspecies This latter type of proposal is not consistent with thenew ITPGRFA regarding farmersrsquo rights The section onbreedersrsquo rights does not contain any recognition of the con-tribution that indigenous and local communities and farmershave made and will continue to make in the conservationand development of plant genetic resources These contribu-tions constitute according to the ITPGRFA90 the basis offood and agriculture production throughout the world

The Draft Chapter fails to address current concerns related tofood security and access to seeds On the contrary many pro-posals seem to be designed to limit or eliminate any flexibil-ity existing in the TRIPS Agreements as well as farmersrsquorights recognised by the new ITPGRFA

3 Biodiversity and the protection of traditional knowl-edge One of the Draft Chapterrsquos main achievements is thedirect incorporation of the text of the CBD It acknowledgesthat

ldquo[t]he relationship between the protection of traditionalknowledge of indigenous communities and local commu-nities and intellectual property as well as the relationshipbetween access to genetic resources and intellectual prop-erty shall comply with the provisions of the Conventionon Biological Diversityrdquo91

Some defensive mechanisms to prevent illegal access to anduse of genetic resources have been included in the DraftChapter by incorporating an obligation for ldquosafeguarding andrespecting biological and genetic heritagerdquo when grantingIPRs92 Similarly the granting of patents on inventions thathave been developed on the basis of material obtained fromgenetic resources or from the traditional knowledge ofindigenous and local communities ldquoshall be subject to thelegal acquisition of that material in accordance to the nation-al laws of the country of origin of such knowledge andresourcesrdquo93 There is no mention of requiring the disclosureof the origin of the biologicalgenetic resources or the tradi-tional knowledge in patent filing procedures in the DraftChapter a demand that has been insistently proposed by bio-diversity rich countries in the WTO and WIPO For the firsttime in an IPRs text specific obligations to establish nation-al sui generis systems to protect traditional knowledge fol-lowing Article 8(j) of the CBD94 have been included TheDraft Chapter goes even further by explicitly indicatingsome possible elements of such national sui generis systemsThese elements are95

bull the right of indigenous communities to make decisionswith respect to their knowledge (prior informed con-sent)

bull the existence of fair and equitable remuneration foraccess to or use of such knowledge by third parties

bull some limited exceptions and

bull an effective system (which basically means havingenforcement measures)

In the Americas the positions over traditional knowledge bydeveloping country governments do not necessary matchthose of the indigenous communities While some develop-ing country governments would like to incorporate somelegal safeguards against illegal access and use of traditionalknowledge in the IPRs system and to establish a sui generissystem of protection indigenous organisations resist the ideaof considering or categorising traditional knowledge as IPRsFor some developing country experts a sui generis systemwould imply a kind of ldquoblendrdquo of some principles of the

86 Articles 2 and 3 Section 5 Part II87 Article 11 Section 9 Part II88 See Article 12 section 9 Part II89 Section 9 Part II

90 Article 9 of the ITPGRFA 91 Article 12 section 6 Part II92 Article 11 section 6 Part II 93 Article 15 section 6 Part II

94 Article 12 and 13 section 6 Part II 95 Article 12 13 14 and 15 section 6 Part II

20

CBD (ie prior informed consent and fair and equitable shar-ing of any benefits) and some IPRs features (eg automaticrecognition after the creation and innovation moral rightsexclusive rights protection against unfair competition data-base protection for compilations and registers of traditionalknowledge etc) For many indigenous organisations a suigeneris solution for traditional knowledge seems to imply amore holistic approach where human rights self determina-tion CBD principles customary law and rights over ances-tral lands and natural resources are incorporated andenhanced96 in a kind of ldquoindigenous rights code or treatyrdquothat would prevail over IPRs and certain types of govern-mental rights (eg granting mining concessions insideindigenous lands) One important indigenous organisation inthe Americas has made statements showing this dichotomybetween developing country governments and indigenouscommunities and has rejected the current FTAA negotiationprocess as a solution to indigenous problems97

Independently of the above mentioned dichotomy someadvances on biodiversity issues and on traditional knowledgeprotection have been achieved in the section on ldquotraditionalknowledge and access to genetic resources under the intel-lectual property frameworkrdquo of the Draft Chapter Howeverthere is no guarantee that these issues will remain in the finaltext since they are not considered as issues accepted underconsensus by the USA98 The unwillingness of some coun-tries to consider biodiversity and traditional knowledge aspart of the issues under consensus in the FTAA shows anunfriendly position by some countries toward the recognitionof the concerns of biodiversity rich countries and indigenousand local communities

The main merit of the section on ldquotraditional knowledge andaccess to genetic resources under the intellectual propertyframeworkrdquo is to transfer many of the political positions thathave been flagged by developing countries in the TRIPSCouncil into draft treaty language This language is not verydetailed but it could serve as a basis for discussion in theTRIPS Council regarding particular recommendations forthe WTO Cancun Ministerial in 2003 when addressing para-graph 19 of the Doha Ministerial Declaration

4 Protection of folklore The Draft Chapter proposes thatcountries would have to protect effectively expressions offolklore and artistic expressions of traditional and folk cul-ture as a general obligation99 A ldquomoral rightrdquo-type clause has

been integrated in the Chapter mandating that any fixationrepresentation publication communication or use in anyform of literary artistic folk art or craft work shall identifythe community or ethnic group to which it belongs100 Onceagain some countries do not consider the protection of folk-lore as an issue accepted under consensus and so this sectionmay disappear in the final outcome

5 Information and digital technologies As part of theNGIP objective that ldquochanges in technology must be consid-eredrdquo the Draft Chapter contains various proposals for theprotection of IPRs linked to information and digital tech-nologies Substantive proposals exist for granting specialprotection for program-carrying satellite signals and Internetdomain names Protection of program-carrying signals ismainly designed to ban decoding or to use or make availableprogram-carrying signals without the authorisation of thedistributor of that signal101 The draft text also requires mem-bers to participate in the Government Advisory Committeeof the Internet Corporation for Assigned Names andNumbers in order to promote adequate administration ofdomain names and to take part in its uniform dispute resolu-tion to address the problems of cyber piracy of trademarks102

Enforcement measures against technological circumventionhave also been proposed which follow the provisions of theUS Digital Millennium Act103 and the new WIPO ldquoInternetrdquotreaties104 (these treaties have been directly incorporated inthe Draft Chapter105) More specifically the current textwould require signatory states to provide adequate legal pro-tection and effective remedies against the circumvention ofeffective technological measures that are used by titleholdersof copyright and related rights in the digital environment inconnection with the exercise of their rights106

Most developing countries in the Americas have notexpressed reservations about protection for information anddigital technologies Since 1996 more than 14 LatinAmerican and Caribbean countries107 have ratified the WIPOldquoInternetrdquo treaties This tendency shows an increased interestof Latin American countries in copyright especially in rela-tion to music and some audiovisual works108 Neverthelessthere is no current assessment of the possible cost of fulfill-ing obligations under these agreements and the potentialneeds for technical assistance It seems important for thesecountries to measure any possible costs and needs whentransferring obligations of WIPO Agreements (which do not

96 Eg Declaracioacuten de la Cumbre de Pueblosindiacutegenas de las Ameacutericas Ottawa Canada2001httpwwwdialoguebetweennationscomdbnet-workspanishdeclaracionpdf and Conhecimentotradicional indiacutegena Sebastiao Ajiacute Manchineri(COICA Coordinador) 2001httpwwwcoicaorginternaasps=5ampr=1 97 COICA frente al ALCA Sebastiao AjiacuteManchineri 2003httpwwwcoicaorginternaasps=5ampr=20 98 In the FTAA process not all issues are accepted

under consensus The USA has rejected the inclu-sion of a section on biodiversity and traditionalknowledge related issues as has Mexico accord-ing to some government delegates interviewed inpreparation of this paper Note too that the USAhas signed but not ratified the CBD99 Article 11 Section 4 Part II100 Article 12 Section 4 Part II 101 Article 20 Section 3 Part II 102 Article 13 Section 1 Part II 103 Adopted by the US Congress in 2000

104 WIPO Copyright Treaty and WIPOPerformances and Phonograms Treaty of 1996105 Article 5 Part I 106 Article 21 section 3 Part II and Article 6 of Part III 107 Argentina Colombia Chile Costa RicaEcuador El Salvador Guatemala HondurasJamaica Mexico Nicaragua Panama Paraguayand Peru 108 According to the recording Industry Associationof America the Latin music industry claimed a49 share of the US music industry The total US

21

have a dispute settlement mechanism) to regional or bilater-al agreements (that might have one)

In the USA one expert109 has raised concerns about theabsence in the Draft Chapter of certain exceptions that are inthe Digital Millennium Act These exceptions include non-profit libraries law enforcement intelligence and other gov-ernment activities reverse engineering to make softwareinteroperable encryption research technology used to avoidaccess to minors measures used to protect identifiable infor-mation and security testing Some might consider that thesetypes of measures should fall under the general exception forcopyright and related rights contained in the draft text or maybe under the incorporated exceptions of the WIPO ldquoInternetrdquotreaties In any event it does appear that the US delegation isnegotiating inside the NGIP to include those exceptions so asto avoid inconsistency with US law

6 Competition policy While IPRs may occasionally serveas a tool to enhance competition and product differentiationstrengthened IPRs may have adverse impacts on competitivemarkets110 IPRs grant exclusive marketing rights (monopo-listic rights) for a limited period of time111 These rights bytheir nature limit competition Abuse of IPRs may give riseto the problems of cartels such as price fixing restrictionson supply market and customer divisions and the use oflicensed technology for innovation or re-engineeringprocesses In the international economy this tendency isexacerbated by the practice in some countries of grantingover-broad patents the acquisition and strategic use of patentportfolios to prevent competition by similar but non-infring-ing products and the continued blurring of the lines betweeninvention and discovery One civil society institution haseven suggested that the IPRs terminology should be changedto reflect more accurately the nature and reality of theseinstruments112 Hence it has been suggested that the use ofldquointellectually-based monopoly privilegesrdquo would betterreflect the social basis on which IPRs are granted the reali-ty of what they do and the balance that needs to be achievedin their design and application

The TRIPS Agreement includes two general provisions oncompetition and IPRs Article 40 notes that ldquosome licensingpractices or conditions pertaining to intellectual propertyrights which restrain competition may have adverse effectson trade and may impede the transfer and dissemination oftechnologyrdquo Article 82 of TRIPS also states ldquothat appro-priate measures may be required to address abuses of intel-lectual property rightsrdquo The Draft Chapter applies directlythe content of Article 40 of TRIPS It expands the regulation

over the exercise of rights or abuses of rights if compared toTRIPS since it indicates that

ldquono party shall recognize the abusive use or abusive nonuse of a right In this regard each party may apply appro-priate measuresto prevent the abusive exercise of intel-lectual property rights by rights holders or practices thatunreasonably limit trade or adversely affect the transfer oftechnology113 [and that] each party shall take into con-sideration for the recognition and exercise of such rightsthe social purposes of intellectual property which maynot be used to arbitrarily or unjustifiably discriminateagainst or restrict technological development or technolo-gy transfer nor cause the abuse of dominant position onthe market or the elimination of competitionrdquo114

According to the UK IPRs Commission the regulation ofIPRs to control anti-competitive practices by rights holdersshould be given a high priority in the design of public policyand institutional frameworks In most developing countriesmechanisms aimed at controlling restrictive business prac-tices or the misuse of IPRs are weak or non-existent115 Therecognition and inclusion of regulations on competition inthe Draft Chapter will be a useful tool for addressing nation-ally anti-competitive practices and abuses of IPRs It wouldalso help in creating a legal base to develop pro-competitiveattitudes build sound regional markets and to protect thegeneral public and consumerrsquos interests The recognition andinclusion of competition in the Draft Chapter should be com-plemented with assistance for the development of IPRsregimes in concert with the development of appropriate com-petition policies and institutions as recommended by the UKIPRs Commission

7 Technology transfer Technology transfer clauses are com-monly found in various international agreements whethercommercial or not These clauses are usually important for thefulfilment of the substantive obligations contained in theagreements especially by developing countries The practicalsuccess of these clauses has always been limited by the lack ofreal will and effective mechanisms or incentives for assuringthe transfer The Draft Chapter shows a clear tension betweenthe need for mandatory vs best endeavour clauses on technol-ogy transfer For developed countries in the Americas tech-nology transfer clauses should be based on voluntary cooper-ation among IPRs authorities and the promotion of the use ofIPRs For the great majority of developing countries in theAmericas the existence of effective mechanisms and incen-tives is essential to achieve the core objectives of the DraftChapter and actual technology transfer

music market is valued in US$9billion SeeMidyear Market Report on Latin Music ShipmentsRecording Industry Association of America 1999Note that the Latin America music industry in theUSA is not a territorial concept but has a morecultural connotation It includes Latin artists andproducers in Latin America and in the USA

Film productions are still sporadic ones and do

not constitute a movie industry Currently manycountries in Latin America are producing andexporting many soap operas (telenovelas) to oth-ers countries in the region USA Asia andEurope Vivas-Eugui 2000 109 Klosek 2002110 Stilwell and Tuerk 2001

111 Cottier and Meitinger 1998 112 Food Ethics Council 2002 113 Article 101 Part I 114 Article 102 Part I115 Correa 1999

The Working Group on Trade and Technology Transfer in theWTO is just in its initial phase It is not yet clear how WTOmembers will use the results from their examination of therelationship between trade and technology transfer ManyWTO countries could benefit from the experience and thetype of debate on technology transfer happening in the NGIPas a way to focus their work and find more practical solutionsin the WTO framework To further develop work on technol-ogy transfer developing countries should revisit the contentof the Draft Code on Conduct on Transfer of Technology pre-pared under the auspices of UNCTAD in 1995116 to see whichproposals might be useful in the FTAA context

8 Special and differential treatment (SampD) provisionsThe existence of differentiated obligations between devel-oped and developing countries has always been seen as anessential need by developing countries in the field of IPRs

due to the differences in technological development InTRIPS SampD provisions mostly imply longer periods forimplementation The Draft Chapter basically follows thepath of TRIPS by mentioning time periods for implementa-tion as the only SampD available The difference is that theperiods for implementation are shorter in the FTAA than inTRIPS passing from four years to one for the generalimplementation of obligations The FTAA allows an extraperiod of two years for countries facing structural reform oftheir IPRs system and special problems

In the Draft Chapter there is no mention of SampD for leastdeveloped countries (there is only one in the Americas Haiti)If no direct mention of transitional periods for Haiti is includ-ed in the Draft Chapter this country would lose the benefitsof SampD contained in the TRIPS Agreement117 and the DohaDeclaration on the TRIPS Agreement and Public Health118

22

116 httpwwwlawsuffolkedufacultyvisitingmpat-tersonintliplicensingmaterialscodetechtfrhtml

117 Article 651 and 5 of the TRIPS Agreement 118 Paragraph 7 of the Declaration of TRIPSAgreement and Public Health 2001

4 Final remarks

While strong IPRs may promote the competitive advantageof some companies and countries they may not necessarilyserve the best interests of developing countries small pro-ducers users of IPRs in the international community or civilsociety The push towards ever-stronger IPRs through mul-tilevel treaties and negotiations and forum-shifting strate-gies threatens to undermine the balance achieved in manynational laws and the capacity of developing countries to useflexibilities existing at the international level to achievedevelopmental and public policy goals

Developing countries are becoming aware that IPRs are usedas a tool for obtaining deeper market access assuring renttransfers and consolidating market positions The existenceof real benefits from strong IPRs systems at multilateralregional and bilateral levels must be carefully assessedbefore engaging in new negotiations or accepting new com-mitments Assessment exercises should weigh many non-commercial considerations in the IPRs field such as healthfood security environment consumer interests and technol-ogy transfer to avoid oversimplified exchanges of marketaccess for public interest issues that could in the end havehigher costs than benefits for the citizens of the Americas

The Draft Chapter might end up being the highest level IPRstreaty ever adopted A lack of transparency and adequate par-ticipation in this and other bilateralregional processes is

affecting the possibility of reaching an agreement thataddresses public interest concerns and is undermining thelegitimacy of the process The Draft Chapter as currentlywritten could exacerbate imbalances already existing in theIPRs system Examples discussed in this paper includeamong others the expansion of the subject matter of protec-tion (patents on life new copyrights protection of plant vari-eties according to UPOV) weakening existing balances(reduction of grounds for issuing compulsory licensing andexpansion of periods of protection) and more costly enforce-ment mechanisms (at the border or through electronicmeans)

It seems unrealistic that IPRs standard setting will disappearaltogether from bilateral and regional commercial diploma-cy A number of Latin American negotiators have informallyexpressed the fear in relation to the FTAA process that therewill be very little real space for negotiating on the text of theDraft Chapter in the end They feel that they will be told nearthe end of the negotiations that they must accept a TRIPS-plus text in the FTAA if they want to get any actual conces-sions on agriculture and goods from the USA The impera-tive then is for developing countries to ensure that policyobjectives for IPRs standards in regionalbilateral tradeagreements are demonstrably consistent with their broaderobjectives for promoting international development andpoverty reduction

23

To that end the incorporation of a wide range of stakehold-ers and transparency would strengthen positions takennationally and internationally by developing countries whendealing with policy objectives and IPRs standard settingExperience in the TRIPS negotiations and in the manage-ment of the TRIPS Council has shown that lack of transpar-ent procedures can lead to strong criticism and imbalancedresults The NGIP of the FTAA has been even more restric-tive regarding access to official proposals and negotiatingdocuments This hinders participation by relevant stakehold-ers in the Americas and could lead them to adopting burden-some commitments without sufficient benefits for their citi-zens

On sectorial issues the potential Draft Chapter would onlymake sense if such issues as

bull Policy spaces to undertake necessary measures to pro-tect public health in the IPRs system are kept andenhanced

bull The CBD and the new ITPGRFA principles togetherwith adequate legal mechanisms for assuring legalaccess are incorporated


bull Effective ways to facilitate technology transfer areincluded

bull Flexibilities to address public interest concerns innational patent laws and copyright laws are kept

bull Flexibilities to chose and use the most convenient sys-tem to protect plant varieties whether through patents ora sui generis system are kept


bull Special and differential treatment is actually incorporat-ed and enhanced

Finally countries in the Americas should also give consider-ation to the option that the FTAA process should not dealwith IPRs issues at all or if their inclusion is unavoidableshould try to deal with them to the least extent possible at theregional and bilateral level Discussions and negotiations onIPRs should be left to the multilateral level where more bal-anced results for developing countries and the public interestare more likely to be obtained

BITs Bilateral Investment Treaties

CARICOM Caribbean Community

CBD United Nations Convention onBiological Diversity

EU European Union

FAO Food and Agriculture Organisation ofthe United Nations

FDI Foreign Direct Investment

FTAA Free Trade Area of the Americas

GATT General Agreement on Tariffs andTrade

GIs Geographical Indications

IPRs Intellectual Property Rights

ITPGRFA International Treaty on Plant GeneticResources for Food and Agriculture

MERCOSUR Mercado Comuacuten del Sur

MFN Most Favoured Nation

NAFTA North American Free TradeAgreement

NGIP Negotiating Group on Intellectual

Property Rights (FTAA)

OECD Organisation for EconomicCooperation and Development

QUNO Quaker United Nations Office

RTAs Regional Trade Agreements

SIECA Secretariacutea de Integracioacuten EconoacutemicaCentroamericana

TNC Trade Negotiations Committee

TRIPS Trade-Related Aspects of IntellectualProperty Rights

UK United Kingdom

UNCTAD United Nations Conference on Tradeand Development

UPOV International Union for the Protectionof New Varieties of Plants

USA United States of America

USTR Office of the United States TradeRepresentative

WIPO World Intellectual PropertyOrganisation

WTO World Trade Organisation

Acronyms

ACT-UP Philadelphia ldquoUSA The FTAA and the AIDS Crisis inthe Global Southrdquo 15 March 2001httpwwwcorpwatchorgbulletinsPBDjsparticleid=478

Alianza Social Continental ldquoAlternatives for the AmericasrdquoDecember 2002 httpwwwasc-hsaorgpdfAlternativas20ene20200320englishpdf

Andean Community ldquoSubstantive aspects of the new AndeanCommon Intellectual Property Systemrdquo httpwwwcomu-nidadandinaorginglespoliticsintelec1htm

Antequera Parilli Roberto ldquoRecomendaciones y conclusionesdel taller de derechos de propiedad intelectualrdquo Quinta ReunioacutenMinisterial de Comercio y Foro Empresarial Toronto CanadaNovember 1999httpwwwsiceoasorgftaatorontoforumwksrecrintpr_sasp

Arana Courrejolles Mariacutea del Carmen ldquoALCA y la Propiedadintelectual Grupo de Trabajo de Propiedad IntelectualComisioacutenrdquo ALCA PERU 1998httpwwwcamaralimaorgpealcaperuart-oct98htm

Bastida Muntildeoz C Mindaumlhi ldquoAmericas Sustainability IssuesBiodiversity indigenous knowledge and intellectual propertyrightsrdquo 2000 httpwwwrobartsyorkucapdfbastidapdf

Bera E Krishna ldquoScrap the FTAA Support sustainable pro-farmer food systems that feed people not corporationsrdquo 20March 2001 httpwwwfloraorgfaoOttawaAction10

Binder Louise and Marchione Michelle ldquoCanadian TreatmentAdvocates Council Denounces FTAA as Deadly for People withHIVAIDSrdquo The Canadian HIVAIDS Legal Network 17 April2001 httpwwwaidslawcaMaincontentissuesctsCTACstatementhtm

Boulet P and Cohen R M ldquoEl ALCA y el acceso a los medica-mentosrdquo 9 September 2002 httpekeko2rcpnetpeAIS-LACnoticiasalcahtm

Brazil-US Business Council ldquoBrazil-US Private SectorConsensus Recommendations for the FTAArdquo httpwwwbrazil-councilorgpolicyprioritiespolicy_consensus_abf_bueno-saires_01html

Cabrera Medaglia Jorge and Saacutenchez Hernandez Joseacute PabloldquoLas Negociaciones sobre Derechos de Propiedad Intelectual elComercio y el Ambiente Notas para una Agenda Positivardquo June2001 httpwwwgooglechsearchq=cachepw7xsjmq_WUCwwwgrainorgspdocsdpipdf+alca+propiedad+intelectu-alamphl=deampie=UTF-8

Canadian Chamber of Commerce and Canadian Council forInternational Business (CCIB) ldquoFTAA Trade Related Issuesand Negotiating Priorities for E-Commerce and the Informationamp Communication Technology Sector(s)rdquo 2002httpwwwchambercapublic_info2002abf2002pdf

Canadian Department of Foreign Affairs and International

Trade ldquoDraft Chapter on Intellectual Property CanadarsquosPosition amp Proposalrdquo June 2001 httpwwwdfait-maecigccatna-nacIP-PampP-enasp

Canadian Department of Foreign Affairs and InternationalTrade ldquoFTAA Draft Text Canadarsquos Positions and Proposalsand Frequently Asked Questions Draft Chapter on IntellectualProperty - Description of the Chapterrdquo 6 December 2002httpwwwdfait-maecigccatna-nacIP-Desc-enasp

Canadian Ecumenical Justice Initiatives ldquoFTAA AffordableMedicines Threatenedrdquo httpwwwkairoscanadaorgenglishprogrammeFTAAmedicineshtm

Castillo Dacio ldquoEl Area de Libre Comercio de las Ameacutericas y laPropiedad Intelectualrdquo Direccioacuten General de PropiedadIntelectual de HondurashttpwwwsiecaorggtpublicoProyectosDeCooperacionProalcaPIRevistasR1A1ElALCAyPIhtm

Chade Jamil ldquoBrasil nacirco deve ceder aos EUA na Alca sobrepatente diz ongrdquo 30 October 2002 httpwwwestadaocombreconomianoticias2002out30162htm

CIEL ldquoForeign investment and sustainable developmentrdquo LawIssue Briefs and the World Summit on Sustainable Development2002 httpwwwcielorgTaeWSSD_Issue_Briefshtml

Cohen Jonathan ldquoFTAA Summit Reject Tighter Patents onAIDS Drugs HIVAIDS amp Human Rightsrdquo Human RightsWatch 29 October 2002httpwwwhrworgpress200210ftaa1029htm

Cohen Rachel MSF FTAA testimony Meacutedecins sans Frontiegraveres(MSF) 9 September 2002 httplistsessentialorgpipermailip-health2002-September003437html

Commission on Intellectual Property Rights (UK) IntegratingIntellectual Property Rights and Development Policy London2002 httpwwwiprcommissionorggraphicdocumentsfinal_reporthtm

Consumer Project on Technology (CPT) Electronic FrontierFoundation (EFF) National Writers Union (UAW Local1981) Electronic Privacy Information Center (EPIC) andNetAction ldquoComments to USTR regarding FTAA negotiationson intellectual property and information policyrdquo 29 July 1998httpwwwcptechorgtreatyftaaftaa-info2html

Correa Carlos ldquoAlca Estados Unidos busca una mayor protec-cioacuten de la propiedad intelectualrdquo 2002

Correa Carlos Intellectual property rights and the use of com-pulsory licensing options for developing countries SouthCentre Geneva 1999

Cottier Thomas and Meitinger Ingo ldquoThe TRIPS without acompetition agreementrdquo 1998httpwwwfeemitwebactivwpabs9965-99pdf

Cruz (de la) Rodrigo ldquoCapitulo 9 Propiedad Intelectualrdquo

24

Annex I Bibliography Literature Survey and PositionPapers on FTAA and Intellectual Property

COICA 20 October 2002httpwwwmmrreegovecespanolEcuador y elALCAlibroCAPITULO 9doc

Danaher Kevin ldquoFree Trade Area of the Americas favors onlycorporate interestsrdquo Global Exchange 11 April 2001httpwwwprogressiveorgpmpda1101html

Dante B Fascell ldquoCan the FTAA move ahead after theMillennium Round is launchedrdquo 1999 North-South Centerhttpwwwmiamiedunscpublicationspubs-white-pdfLandepdf

Davis Paul ldquoNew Trade Agreement for the Americas JeopardizesBrazilrsquos Acclaimed Generic Aids Drug Programrdquo ACT UPPhiladelphia 12 April 2001 httpwwwcptechorgiphealthtradeFTAArelease04122001html

Dawkins Kristin ldquoNegotiations on Intellectual PropertyThreaten Access to Pharmaceuticals and Seeds UndermineInternational Agreements and Human Rightsrdquo Institute forAgriculture and Trade Policy 2001 httpwwwgreensorgs-r2525-15html

Derfel Aaron ldquoExperts Prescription Drug Costs Will Soarrdquo 19April 2001 Common Dreams News Center httpwwwcom-mondreamsorgheadlines010419-01htm

Diario Estrategia ldquoEEUU Utilizaraacute a Chile Como Referenciaen Propiedad Intelectualrdquo 29 November 2002httpwwwestrategiaclhisto20021129ambitoinhtm

Dillon John and Dawkins Kristin ldquoAnaacutelisis del Borrador delAacuterea de Libre Comercio de las Ameacutericas Sobre Derechos dePropiedad Intelectualrdquo in El ALCA al desnudo criacuteticas al textoborrador del Area de Libre Comercio de las Ameacutericas de noviem-bre de 2002 Alianza Social Continental Enero 2003 p 98

Dillon John and Dawkins Kristin ldquoAnalysis of the Draft FreeTrade Area of the Americas on Intellectual Property Rightsrdquo inThe FTAA Exposed A Citizensrsquo Critique of the November 2002Draft of the Free Trade Area of the Americas HemisphericSocial Alliance January 2003 p 98

Dion Casey ldquoComments of Public Citizen Inc On TradeMatters Related to the Free Trade Area of the Americasrdquo PublicCitizen Global Trade Watch 2000 httpwwwcitizenorgtradeftaaBackgroundarticlescfmID=1700

Drahos Peter ldquoBilateralism in Intellectual Propertyrdquo OxfamPolicy Paper December 2001 httpwwwoxfamorgukpolicypapersbilateralbilateralhtml

Edelman Magalit ldquoThe Latin Lag on Intellectual Property ldquo inJournal of Commerce The Alexis de Tocqueville Institution 12November 1999 httpwwwadtinethtml_filesipLatin_Laghtml

Essential Action ldquoFTAA IPR and Access to MedicinesrdquoNovember 2002 httpwwwcitizenorgtradeftaaquito_ministarticlescfmID=8563

Food Ethics Council TRIPS with everything Intellectual prop-erty and the farming world 2002 httpwwwfoodethicscoun-cilorgtripshtm

Foreign Trade Information System (SICE) ldquoReport of theWorkshop of Intellectual Property Rightsrdquo Seventh AmericasBusiness Forum Quito Ecuador 29 ndash 31 October 2002httpwwwsiceoasorgftaaquitoforumreportsintprop_easp

FTAA ldquoOverview of the FTAA processrdquo 2001 wwwftaa-alcaorgView_easp

Graham Bill and Bulte Sarmite ldquoThe Free Trade Areas of theAmericas Towards a Hemispheric Agreement in the CanadianInterestrdquo First Report of the Standing Committee on ForeignAffairs and International Trade First Report of the Sub-Committee on International Trade Trade Disputes andInvestment 1999 httpwwwparlgccainfocomdoc362faitstudiesreportsfaitrp01-ehtm

Gruenwald Juliana ldquoTrade Agreement has domain name disputelanguagerdquo Interative Week 9 July 2001httpnewszdnetcoukstory0t269-s209091700html

Human Rights Watch ldquoThe FTAA Access to HIVAIDSTreatment and Human Rightsrdquo in Human Rights Watch BriefingPaper 29 October 2002httpwwwhrworgpress200210ftaa1029-bckhtm

ICTSD-IUCN ldquoCivil Society Group Scrutinise IntellectualProperty Provisions in the FTAA Textrdquo in BRIDGES BioResVol2 17 7 Nov 2002 httpwwwictsdorgbiores02-11-07story2htm

IISD-WWF ldquoPrivate rights public problems A guide toNAFTArsquos chapter on investor rightsrdquo 2001httpwwwiisdorgpdftrade_citizensguidepdf

International Intellectual Property Alliance ldquoExecutiveSummary and Comments Submitted to the Americas BusinessForum VII Workshop on Intellectual Property Rightsrdquo QuitoEcuador August 30 2002httpwwwiipacomrbi2002_Aug30_FTAApdf

International Intellectual Property Alliance ldquoExecutiveSummary and Comments Submitted to the Americas BusinessForum VI Workshop on Intellectual Property Rightsrdquo BuenosAires Argentina February 10 2001httpwwwiipacompdf2001_Feb10_FTAA_Argentinapdf

International Intellectual Property Alliance ldquoExecutiveSummary Improving Copyright Protection and Enforcement inthe Americas Americas Business Forum IVrdquo in San Joseacute CostaRica Workshop on Intellectual Property Rights March 16-181998 httpwwwiipacomrbi1998_Mar16_ftaapdf

International Intellectual Property Alliance ldquoLetter to the USInternational Trade Commission Request for Public Commentson the ITC Investigation on the US-Chile Free TradeAgreementrdquo Inv No 332-434 66 Fed Reg 59451 (Nov 282001) 12 December 2001httpwwwiipacompdf2001_Dec12_ChileFTApdf

International Intellectual Property Alliance ldquoLetter to theUSTR about Chile FTArdquo 5 November 2002httpwwwiipacomrbi2002_Nov5_CHILE_FTApdf

International Intellectual Property Alliance ldquoLetter to theUSTR Request for Public Comments on the Preliminary DraftConsolidated Texts of the Free Trade Area of the Americas(FTAA) Agreement 66 Fed Reg 36614 (July 12 2001)rdquoAugust 2001 httpwwwiipacomrbi2001_Aug22_FTAApdf

International Intellectual Property Alliance ldquoLetter to theUSTR Request for public comments concerning market accessand other issues in the Free Trade Area of the Americas negotia-tions 66 Fed Reg 49732 (July 31 2002)rdquo September 2002httpwwwiipacomrbi2002_Sep23_FTAApdf

International Intellectual Property Alliance ldquoLetter to theUSTR Comments Regarding Negotiations Toward a Free TradeArea of the Americas 64 Fed Reg 72715 (Dec 28 1999)rdquo

25

February 2000 httpwwwiipacompdf2000_Feb7_FTAAFedRegCmntspdf

International Intellectual Property Alliance ldquoPaper of theInternational Intellectual Property Alliance submitted to theAmericas Business Forum V Workshop on Intellectual PropertyRightsrdquo Toronto Canada 10 September 1999httpwwwiipacomrbi1999_Sep10_ftaa_torontohtmlInternational Intellectual Property Alliance ldquoPosition Paper TheImportance of Improving Copyright Protection and Enforcementin the Americas Workshop VII Technology and IntellectualAmericas Business Property Rightsrdquo Belo Horizonte Brazil 13-15 May 1997 httpwwwiipacomrbi1997_May13_ftaahtml

Inside US Trade Vol 21 No 11 14 March 2003

Klosek Jacqueline ldquoFTAA Draft Addresses ImportantIntellectual Property Issuesrdquo in North American Free Trade ampInvestment Report Vol 12 8 15 October 2002 p1 httpwwwgoodwinproctercompublicationsklosek_10_15_02pdf

Latin TradeMarknet ldquoActualizacioacuten de la Ley y el Negocio dela PI la Propiedad Intelectual y el FTAA en Panammiddotrdquohttpwwwlatintrademarknetspanishactualizacion_leyesasp

Lippert Owen ldquoOne Trip to the Dentist Is Enough Reasons toStrengthen Intellectual Property Rights through the Free TradeArea of the Americas Nowrdquo in Competitive Strategies for theProtection of Intellectual Property Introduction FraserInstitute 1999 pp125-172 httpcollectionnlc-bncca100200300frasercompetitive_strategies

Love James ldquoA Free Trade Area for the Americas Draft Sign-OnPosition Paper To be Submitted To The Working Group OnIntellectual Property Rights Fourth Trade Ministerial AndAmericas Business Forumrdquo San Jose Costa Rica Center forStudy and Responsive Law 1998httpwwwcptechorgipdraftipwg98html

Love James ldquoA Free Trade Area for the Americas A ConsumerPerspective On Proposals As They Relate To Rules RegardingIntellectual Property Comments for the Working Group OnIntellectual Property Rights Third Trade Ministerial andAmericas Business Forumrdquo Belo Horizonte Brazil Center forStudy and Responsive Law 1997httpwwwcptechorgpharmbelopaperhtml

Love James ldquoCPT comments to USTR on FTAA provisionsregarding intellectual property and health carerdquo ConsumerProject on Technology 29 July 1998httpwwwcptechorgtreatyftaaftaa-290798html

Love James ldquoFTAA sign-on IP position paperrdquo ConsumerProject on Technology 3 February 1998httpwwwcniorgHforumsroundtable1998-010126html

Maskus Keith and Penubarti Mohan ldquoHow trade related areintellectual property rightsrdquo Journal of InternationalEconomics 1998

Meacutedecins Sans Frontiegraveres (MSF) Essential Action Health GAPand the National Council of ChurchesChurch World ServiceldquoMeeting Report Strategy Session on the Free Trade Area of theAmericas (FTAA) Intellectual Property Rights and Access toMedicinesrdquo Washington DC 3 October 2002 httpwwwglob-altreatmentaccessorgcontentpress_releases02100302_HGAP_MR_FTAA_DCdoc

Mekay Emad ldquoUS Stance on FTAA Will Mean More

Expensive Drugs ndash NGOrdquo Inter Press Service 1 November2002 httpwwwaegiscomnewsips2002IP021101html

Milchen Jeff ldquoCorporate Rule Masquerading as Trade Policythe Misnamed FTAArdquo ReclaimDemocracyorg 20 April 2002httpwwwreclaimdemocracyorgglobal_corporatizationftaa_misnamedhtmlMoore Wes ldquoCorporate Totalitarianism and theFTAArdquo disinformation 10 April 2001 httpwwwdisinfocompagesdossierid1054pg4

Murphy John ldquoNotification Of Intent To Testify In The 9902Hearing Before The Trade Policy Staff Committee On MarketAccess And Other Issues In The Free Trade Area Of TheAmericas Negotiationsrdquo US Chamber of Commerce 9September 2002 httpwwwuschamberorgpresstestimo-ny020909murphyhtm

Naiman Bob ldquoProtecting Intellectual Propertyrdquo in ldquoFreedomsthat are abolished Are you ready to stop them Understandingthe FTAA a Guide for Activistsrdquo ACERCA Green Paper 32001 p14httpwwwasejorgACERCAftaadownloadsftaapdf

Office of the US Trade Representative ldquoFTAA NegotiatingGroup on Intellectual Property Public Summary of USPositionrdquo httpwwwustrgovregionswhemisphereintelpdf

Oxfam Canada ldquoLetrsquos Harness Trade for Development WhyOxfam Opposes the FTAArdquo 2001httpwwwoxfamcanewsPeoples_SummitintellectualProperty

Peters Philip ldquoIntellectual Property and the Free Trade Area ofthe Americasrdquo the Alexis de Tocqueville Institutionhttpwwwadtinethtml_filesimmCILFAhtml

Peters Philip et al ldquoLa Proteccioacuten de la Propiedad Intelectualand el Area del Libre Comercio de las Ameacutericasrdquo Declaracioacutenpresentada al IV Foro Empresarial de las Ameacutericas San JoseacuteCosta Rica 19 March 1998httpwwwadtinethtml_filesipSJOFINALhtm

Plan Noticias ldquoGMOrsquos Agri-Business and the FTAArdquohttpwwwnoticiasnlglobal_eng_artikelphpid=283

Raghavan Chakravarthi ldquoUSA pushes for greater IPR privi-leges in FTAArdquo Third World Network 3 April 2001httpwwwtwnsideorgsgtitlepusheshtm

Richardson M John ldquoThe OAS and Intellectual Property APractitionerrsquos viewrdquo httpwwwsajoasorglcpGuttman_IPdoc

Sherwood M Robert and Primo Barga A CarlosldquoIntellectual Property Trade and Economic Development ARoad Map for the FTAA Negotiationsrdquo 1996httpnskreativenetipbenefitsdownloadroadmaprtf

Smith Pamela ldquoAre weak patents rights a barrier to USexportsrdquo Journal of International Economics Vol 48 pages151-177 1999

Stilwell Matthew and Tuerk Elizabeth ldquoToward a full reviewof the WTOrsquos TRIPS Agreement under Article 711rdquo Center forInternational Environmental Law 2001 httpwwwcielorgPublicationsAssessment_Trips_article711pdf

Tegucigalpa ldquoHonduras coordinaraacute negociacioacuten sobre derecho dela propiedad intelectual en negociaciones de ALCArdquo 14 October1997 httpwwwlaprensahncomeconoarc9710e14003htm

The Alexis de Tocqueville Institution ldquoIntellectual PropertyProtection and the Free Trade Area of the Americas A Statementsubmitted to the Fifth Business Forum of the AmericasrdquoToronto Canada 1 November 1999

26

httpwwwadtinethtml_filesipToronto_paperhtml

Torgeson Kris ldquoUS Trade Position Threatens Access toMedicines in Latin America and the Caribbeanrdquo Meacutedecins SansFrontiegraveres 31 October 2002 httpwwwglobaltreatmentaccessorgcontentpress_releases02103102_MSF_PR_FTAA_quitohtml

Torrente (de) Nicolas (MSF Guatemala) and Valverde Olaf(Access to Essential Medicines Campaign) ldquoMSF Comment onthe Draft Free Trade of the Americas Agreementrdquo 1 May 2002httpwwwcptechorgiphealthtrademsf05012002html

US Council for International Business ldquoUSCIB Comments onthe Preliminary Draft Text of the FTAA Agreementrdquo August2001 httpwwwusciborgindexaspDocumentID=1829

US Chamber of Commerce Association of American Chambersof Commerce in Latin America and US Section of the Brazil-USBusiness Council ldquoPosition Paper Submission to the VIAmericas Business Forum Recommendations for the IntellectualProperty Workshoprdquo Sixth Americas Business Forum BuenosAires Argentina 4-5 April 2001 httpwwwsiceoasorgFTAABAiresABFpaperschcip_easp

US Section of the Brazil-US Business Council US Chamber ofCommerce and Association of American Chambers ofCommerce in Latin America ldquoPolicies PrioritiesRecommendations for the VI Americas Business Forumrdquo 2001httpwwwbrazilcouncilorgpolicyprioritiesftaaftaa_submis-sion_BuenosAires_iphtml

UNCTAD The TRIPS Agreement and Developing CountriesUNCTAD Geneva 1996

UNCTAD Bilateral investment treaties 1959-99 UNCTADGeneva 2000

UNCTAD Fair and Equitable Treatment UNCTAD series onissues in international investment agreements UNCTADGeneva 1999 httpr0unctadorgensubsitesditeIIAIIA_Seriesfairpdf

UNCTADICTSD Capacity Building Project on IntellectualProperty and Sustainable Development TRIPS andDevelopment Resource Book 2003 httpwwwictsdorgiprsonlineunctadictsdprojectoutputshtmresource

US Trade Representative (USTR) report on foreign trade barriersof Ecuador 1999 httpwwwustrgovpdf1999_ecuadorpdf

Vivas-Eugui David ldquoIdentification and analysis of emerging andexisting industries related to TRIPS Agreement in developingcountriesrdquo AITIC 2000

Vivas-Eugui Davidrdquo Intellectual Property in the FTAA newimbalances and small achievementsrdquo Bridges ICTSDNovember 2002 httpwwwictsdorgmonthlybridgesBRIDGES6-8pdf

Vivas-Eugui David ldquoBrief on the Treatment of IntellectualProperty in the Doha WTO Ministerial Declaration mandatesnegotiations and reviewsrdquo Center for InternationalEnvironmental Law 2002httpwwwcielorgPublicationsDoha_IPpdf

Walker Simon The TRIPS Agreement Sustainable Developmentand the Public Interest IUCN CIEL 2001

Walsh Kevin ldquoFTAA and food securityrdquo 27 March 2001httpcsfcoloradoeduarchive2001food_securitymsg00140html

Ward Matthew ldquoBushrsquos Foreign Pharmaceutical Policy ImperilsLatin Americardquo httpwwwcohaorgnewsletterftaapharmhtm

Weissman Robert ldquoThe FTAA Intellectual Property and Accessto AIDS and Other Essential Medicinesrdquo Essential Action2001 httpstopftaaorgnewarticlephpid=32

Weissman Robert ldquoEssential Action Preliminary Analysis ofNew Draft FTAA Provisions on Intellectual Property and theirImplications for Access to Medicinesrdquo 6 November 2002httpwwwglobaltreatmentaccessorgcontentpress_releas-es02110602_EA_BP_FTAA_Quitohtml

Weissman Robert ldquoFree Traderdquo and the Medicines in theAmericas Essential Action httpwwwlightpartycomForeignPolicyFreeTradeMedicnehtml

Weissman Robert ldquoFree Trade Expensive Medicinesrdquo EssentialAction 11 April 2001 httpwwwfpiforgmediareleas-es2001041101trade_bodyhtml

World Bank ldquoGlobal economic prospects and the developingcountriesrdquo 2002 2002 httpwwwworldbankorgprospectsgep2002fullhtm

World Intellectual Property Organisation ldquoActions in respectof treaties administered by WIPO not yet in forcerdquo 2003httpwwwwipointtreatiesdocumentsenglishwordu-page33doc

World Trade Organization ldquoRegionalism ndash friends or rivalsrdquo2002 httpwwwwtoorgenglishthewto_ewhatis_etif_ebey3_ehtm

WTO ldquoRegionalism notified regional trade agreements regional-ism facts and figuresrdquo 2000 httpwwwwtoorgenglishtratop_eregion_eregfac_ehtm

27

Copyright and related rights trademarks geographical indicationsindustrial designs patents layout designs of integrated circuits undis-closed information control of anti-competitive practices in contractuallicences (Article 12)

Like TRIPS In addition new areas of IPRs protection expressions of folk-lore traditional knowledge and genetic resources utility models protectionof plant breeders rights according to UPOV Also extension of traditionalIPRs trademarks cover Internet domain names copyright obligation to pro-tect program-carrying satellite signals and to prevent circumvention of tech-nological measures (encryption) used to protect copyrighted goods (espe-cially sound carriers)

28

Annex IIComparison of the main elements of the TRIPSAgreement and the FTAAa full text comparison of the two agreements is given in a supplementary table available on the web or from the publishers (see page 1)

TRIPS Agreement FTAA Draft IPRs Chapter Reference is made only to TRIPS-plus proposals

Relationship to other IPR Conventions

National treatment

Most-favoured-nation treatment (MFN)

Exhaustion of IPRs

General obligationsbasic principles

Scope

Mandatory compliance of all WTO Members with essential provisions ofParis and Berne Conventions and the Washington Treaty on IntegratedCircuits(Articles 21 91 35 TRIPS)

Mandatory compliance of all Parties with essential provisions of Parisand Berne Conventions Additionally obligation to comply with mostother existing IP agreements (such as TRIPS Rome ConventionUPOV WIPO treaties on copyright and performances and phonogramsetc) WIPO joint recommendations and even treaties currently undernegotiation No reference to Doha Declaration on the TRIPS Agreementand Public Health FAO Treaty on Genetic Resources (ITPGRFA) or theCBD Bonn Guidelines on Access and Benefit Sharing (Part I Article52)

Requires all Members to treat nationals of other countries no lessfavourably than their own nationals on all matters concerning the protec-tion of IPRs subject to certain exceptions already provided in conven-tionstreaties related to IPRs (Article 3)

National treatment with regard to the protection and enjoyment of IPRsand of any benefits derived therefrom (Part I Article 6)

Concerning the protection of IPRs advantages privileges granted by aMember to the nationals of any other country should be extendedunconditionally to the nationals of all other Members (Article 4)

MFN with regard to protection and enjoyment of IPRs (Part I Article 7)

For the purposes of dispute settlement nothing in the Agreement shallbe used to address the issue of exhaustion of IPRs provided there iscompliance with national treatment and most-favoured-nation treatment(Article 6) Thus Members free to adopt national regional or internation-al exhaustion

One general and several category-specific provisions a) General ruleParties committed to adoption of at least regional exhaustion within peri-od not exceeding 5 years (Part I Article 41) b) Trademarks i) interna-tional exhaustion ii) at least regional exhaustion after 5 years iii) region-al exhaustion after 2 years (Part II Section 1 Article 41) c) Copyright i)at least regional exhaustion after 5 years ii) national exhaustion(Section 3 Article 53 and 54) d) Patents i) international exhaustion ii)at least regional exhaustion after 5 years (Section 5 Article 61) e)Industrial Designs i) international exhaustion ii) at least regional exhaus-tion after 5 years (Section 8 Article 51) f) Breeders Rights no specifi-cation as to location of the first sale (Section 9 Article 61)

29

Standards


Relation to other copyright treaties

Protection of computer programs and compilation of data

Rental rights

Protection of performers producers of phonograms and broadcasting organisations

All members are required to comply with the substantive provisions ofthe Berne Convention except for the obligation on moral rights Eligibleworks must be protected on the basis of their expression as a literarywork not on the basis of ideas procedures methods of operation ormathematical concepts as such (Article 9)

Like TRIPS Discussion on mandatory vs voluntary protection of moralrights (Part II Section 3 Article 9) In addition Parties shall comply withthe essential provisions of the

- 1961 International Convention for the Protection of PerformersProducers of Phonograms and Broadcasting Organisations

- 1971 Geneva Convention for the Protection of Producers ofPhonograms Against Unauthorised Duplication of their Phonograms

- 1974 Convention Relating to the Distribution of Program-CarryingSignals Transmitted by Satellite

- 1996 WIPO Performances and Phonograms Treaty

- 1996 WIPO Copyright Treaty

- Instrument for the Protection of Audio-Visual Performersrsquo Rights (cur-rently under negotiation)

- Treaty for the Protection of Non-Copyrightable Elements of Databases(currently under negotiation)

- Instrument for the Protection of Broadcasting Organisations Rights(currently under negotiation) (Part I Article 5)

Concerning computer programs Members shall provide to authors therights to authorise or to prohibit the commercial rental of their works tothe public As for cinematographic works this obligation exists only ifcommercial rental has led to widespread copying which is materiallyimpairing the reproduction rights (Article 11)

Such rental right not only with respect to computer programs and cine-matographic works but with respect to all literary and artistic works ingeneral (Part II Section 3 Article 6)

Computer programs are protected (for the normal period of literaryworks if the term is calculated on the basis of the life of the author)Compilations of data are also protected under the Agreement (Article 10)

Like TRIPS In addition obligation for government agencies to use onlycomputer programs authorised for intended use (Part II Section 3Article 24)

Specific provisions are introduced for the protection of performers pro-ducers and broadcasting organisations and the term of protection isextended (no less than 50 years for performers and producers 20 yearsfor broadcasts organisations) (as compared to the Rome Convention)(Article 14)

Similar to TRIPS But term of protection granted to broadcasting organi-sations is extended to 50 years (Part II Article 18)

Basic objectives and principles

The protection and enforcement of IPRs should contribute to the promo-tion of technological innovation and to the transfer and dissemination oftechnology They should also contribute to the mutual advantage of pro-ducers and users of technological knowledge and in a manner con-ducive to social and economic welfare and to a balance of rights andobligations The Agreement allows Members to adopt measures neces-sary to protect public health and nutrition and to promote the publicinterest in sectors of vital importance to their socio-economic and tech-nological development At the same time appropriate measures can betaken in order to prevent the abuse of IPRs or the resort to practiceswhich unreasonably restrain trade or adversely affect the internationaltransfer of technology (Articles 7 amp 8)

Like TRIPS In addition Parties may take measures to prevent abusivepractices that unjustifiably limit trade or prejudice local industry oremployment (Part I Article 32)


30

Collecting societies

Not covered Obligation of each Party to facilitate and encourage collective administra-tion of copyrights and related rights Obligation to recognise legitimacy ofsuch societies and to let them exercise such rights under the terms oftheir own statutes These statutes shall be the only legal title for the pur-pose of rights enforcement in administrative or judicial proceedings (PartII Section 3 Article 23)

Not covered Each Party obliged to ensure effective protection of all expressions offolklore and artistic expressions of the traditional and folk culture Anyuse of such folklore shall identify the community or ethnic group of origin(moral type clause) (Part II Section 4 Articles 11 12)

Provides equal treatment to trade and service marks (Article 151) Undercertain circumstances also provides protection against use of dissimilargoods and services (Article 163)

Like TRIPS

Protection of expressions of folklore

Protection of service marks and of dissimilar goods and services

Requirement of use

Trademarks

Protectable subject matter

Members may require as a condition of registration that signs be visu-ally perceptible (Article 151 3rd sentence)

No Party may require that signs be visually perceptible to be eligible forregistration (Part II Section 1 Article 12) This will basically allow theregistration of new types of trademarks identifiable by their smell or tex-ture

Registrability may not be made dependent on actual use of the trade-mark before the expiry of a period of three years from the date of appli-cation for registration (Article 153)

Maintenance of a registration may be made dependent on use of thetrademark But cancellation only in case of an uninterrupted period ofthree years of non-use

No express provision

Like TRIPS But registration may only be cancelled after five years ofnon-use or uninterrupted suspension of use (Part II Section 1 Article91)


Protection of program-carrying satellite signals

Obligations concerning technological measures

Not covered Parties obliged to provide adequate legal protection and effective legalremedies against circumvention of effective technological measures usedby title holders of copyright and related rights to prevent unauthoriseduse of their protected works (encryption) (Part II Section 3 Article 211)

Not covered Mandatory protection against

- the decoding of encrypted program-carrying satellite signals withoutthe authorisation of the lawful distributor of the signal

- and the reception or further distribution of decoded signals without theauthorisation of the lawful distributor of the signal

Both actions are to be treated as criminal and civil offenses (Part IISection 3 Article 201)

31

Additional protection

Actions available

With regard to wines and spirits protection must be provided evenwhere there is no threat of the public being misled as to the true originof the good A multilateral system of notification and registration will beestablished for wines eligible for protection (Articles 23 amp 24)

Like TRIPS (general reference to the entire Section 3 of Part II ofTRIPS see Part II Section 2 Article 21)

Obliges Members to provide means to prevent use of geographicaldirect or indirect indications from misleading the public as to the true ori-gin of the good or indications which constitute an act of unfair competi-tion (Article 22) As to wines and spirits such means have to be avail-able even where public is not misled and there is no act of unfair com-petition (Article 23)

Parties may protect GIs with ex officio actions (Article 12)

For industrial designs a protection of at least 10 years is requiredSpecial provisions on textile designs which leave each Member todecide whether to provide protection through copyright law or industrialdesign law (Articles 25 amp 26)

In addition to the ten-year term of protection each Party shall endeavorto provide for in their laws at least a five-year renewal (Part II Section8 Article 32) As to textile designs no option to protect through copy-right law (Article 11)

Industrial designs

Term of protection textile designs


Term of protection

Protection of Internet domain names


Definition and scope

Not covered Each Party required to participate in the Government AdvisoryCommittee of the Internet Corporation for Assigned Names andNumbers (ICANN) to promote adequate administration of domainnames and to participate in the ICANN Uniform Dispute ResolutionProcedure to address the problem of cyber-piracy of trademarks

Geographical indications are for the purposes of this Agreement indica-tions which identify a good as originating in the territory of a Member ora region or locality in that territory where a given quality reputation orother characteristic of the good is essentially attributable to its geo-graphical origin (Article 22) This definition applies only to goods

Like TRIPS (Part II Section 2 Article 11) GIs or denominations of ori-gin can identify goods and services (Article 12)

Minimum period of seven years (Article 18) Minimum period of ten years (Part II Section 1 Article 81)

Elimination of restrictions on use of trademarks (Article 20)

Use of trademarks is not to be encumbered by special requirementssuch as use with another trademark

Like TRIPS

32

Exceptions to rights conferred

Authorisation of limited exceptions which do not unreasonably conflictwith normal exploitation of a patent and do not unreasonably prejudice apatent owners legitimate interests taking account of legitimate interestsof third parties No express reference to cases where third parties needto use invention for marketing approval purposes prior to patent expiry(eg production of generic pharmaceuticals to be marketed right afterpatent expiry) Clarification through WTO panel exception clause per-mits production to extent necessary but no stockpiling (Bolar excep-tion) (Article 30)

Express and exhaustive list of cases in which patent rights may be dis-regarded No reference to public health problems Consequently suchproblems may not be addressed under this provision Express referenceto cases of third-party use of patented inventions for marketing approvalpurposes limited to the extent necessary to demonstrate that the gener-ic product is scientifically equivalent to the previously approved patentedproduct In addition if patent granted before marketing approval Partyobliged to extend patent term by a period sufficient to confer reasonableterm of exclusivity Any generic product made for marketing approvalpurposes may not be commercially exploited domestically or by exporta-tion except as reasonably performed for obtaining marketing approvalPatent owner is to be informed about identity of any entity using aboveauthority to seek marketing approval prior to expiration of the patent(arguably to facilitate efficient defence of patent holders exclusiverights) (Section 5 Article 42 and 44)


Patentability of pharmaceutical products

Non-discrimination in the field of technology

Protection should be available for any inventions whether products orprocesses in all fields of technology (Article 27) As to patentedprocesses patent extends at least to the product directly obtained bythe process As to patented products patent covers only that product(Article 281 TRIPS) Inventions that threaten ordre public or moralityneed not be patented provided the commercialisation of such inven-tions is also prohibited Micro-organisms must also be protected butplants and animals and essentially biological processes for the produc-tion of plants and animals (excluding non-biological and micro-biologicalprocesses) may be exempted from patent protection

As to patented processes comparable to TRIPS As to patented prod-ucts patent extends to any biological material derived through multipli-cation or propagation of the patented product Where patent protectsspecific genetic sequence or biological material containing thatsequence protection extends to any product including that sequence orto material expressing that genetic information (important potential forcloning purposes) (Part II Section 5 Article 33 and 34)

As to inventions contrary to ordre public or morality like TRIPS

As to living organisms deletion of the exception available under TRIPSThus patenting becomes mandatory (Article 21)

There is a list of what shall not be considered as inventions (Article15) The list includes discoveries

Pharmaceutical products in some Members only patentable as of112005 (except LDCs) But in the meantime mailbox applications andexclusive marketing rights (EMRs) (Articles 271 654 708 709)

Authorisation to delay application of IPRs disciplines to areas or sectorsnot so protectable under domestic law on the general date of applicationof the FTAA This is practically useless probable date of application is 1January 2006 By then all WTO Members (except LDCs) will have toprotect product patents under their domestic laws (due to TRIPS seeleft) (Part V Article 13)

The Agreement requires non-discrimination in the granting of patentsand the enjoyment of rights in relation to the field of technology theplace of invention and whether patented products are imported or locallyproduced (Article 271

Like TRIPS (Part II Section 5 Article 13)

Patents

Scope of protection

Utility Models

Not covered Obligation to protect utility models through patents or utility model certifi-cates for a period of at least ten years Exceptions authorised for proce-dures chemical and other substances and matters excluded frompatent protection (Part II Section 7 Articles 12 21 31) A utility modelis any new shape configuration or arrangement of components of anydevice tool implement mechanism or other object or any part thereofthat permits improved or different operation use or manufacture of theobject incorporating it or that endows it with any utility advantage ortechnical effect that it did not previously have (Article 11)

33


Process patents (burden of proof)

Plant varieties

Layout designs of integrated circuits

Substantive provisions of the Washington Treaty must be respected witha number of additional obligations scope of protection includes not onlythe protected chip but also articles incorporating it Term of protectionmust be 10 years An lsquoinnocent infringerrsquo must be free from liability butonce he has received notice of infringement he is liable to pay a rea-sonable royalty (Articles 35-37)

Like TRIPS (no express provisions But general reference to inter aliathe TRIPS disciplines on layout designs Part I Article 52 e))

Traditional knowledge (TK) and access to genetic resources under the IPRs framework

Not covered Each Party shall grant protection to genetic resources and TK by meansof a sui generis system ensuring fair and equitable remuneration for thebenefits derived from the access to such resources or the use of TK(Part II Section 6 Article 13)

Protection of IPRs shall respect genetic resources and TK (Article 11)

The relationship between TK and access to genetic resources on theone hand and IPRs is subjected to the CBD (Article 12)

The granting of patents developed on the basis of material derived fromgenetic heritage or TK is subject to the acquisition of that material inaccordance with international regional sub-regional and national law(Article 15)

Plant varieties including seeds must be protected through patent oralternative sui generis means or a combination thereof (Article 273b))

The FTAA (IPRs Chapter) contains an independent Section on the rightsof breeders of plant varieties See below

Reversal of the burden of proof in civil proceedings relating to infringe-ments of process patent is to be established in certain cases (Article 34)


Term of protection

The duration of protection must not be less than 20 years from the dateof filing application (Article 33)

20 years from the filing date To be extended at the request of thepatent holder in case of unreasonable delays in the patent grant (ieissuance of the patent at least four years after filing or two years afterthe request to examine the application has been made whichever peri-od is later) The same extension is to be accorded to patents granted tothe same invention in other countries on the basis of the delayed exami-nation in the first country (Part II Section 5 Article 82)

Other uses without authorisation of the patent holder (compulsory licences)

No substantive restrictions are placed on granting compulsory licensingand government use of patents Members free to determine grounds forcompulsory licensing However these practices must respect a numberof procedural conditions to prevent patent-holdersrsquo rights being under-mined Authorisation of such use should be considered on its individualmerits The detailed conditions for granting these authorisations are list-ed in the Agreement (Article 31)

Substantive restrictions on the issuing of compulsory licencesCompulsory licensing can only be used for public non-commercial pur-poses or in declared national emergencies or other extreme urgencyproducts not to be sold to private parties products exclusively fordomestic use public health problems to be dealt with under this provi-sion (Article 51)

34


Test data provided by a company in order to gain marketing approval forpharmaceutical and agricultural chemical products must be protectedagainst unfair commercial use this arguably allows third parties fromrelying on test data earlier presented by others for marketing approval

Test data must also be protected against disclosure except unlesssteps are taken to ensure that the data are protected against unfaircommercial use or where necessary to protect the public (Article 393TRIPS) The latter arguably applies to cases in which public health isthreatened undisclosed informationtechnical know-how related to apatented invention may then be disclosed to a compulsory licensee ifsuch information is required for the use and marketing of pharmaceuti-cal products necessary to protect the public

Reference to Article 393 TRIPS (Part II Section 10 Article 11b))Additional rules For at least five years from the first marketing approvalof pharmaceuticals third parties seeking marketing approval for thesame or similar product are precluded from relying on information sub-mitted by another party for first marketing approval (Article 12)Likewise where the first approval was made in another Party (Article14) If the product is patented the above term of protection is not to beshortened if the patent expires prior to that term (Article 15b)) In casethe product is subject to patents in two Parties the second Party shallextend the term to expire no earlier than the patent in the first Party(Article 15c)) If the patented product is subject to a compulsory licenseParties not obligated to require patent holder to transfer undisclosedinformation or technical know-how to licensee (Section 5 Article 51d)

The Agreement recognises that countries may specify in their domesticlegislation the commercial licensing practices that constitute an abuse ofintellectual property protection and take steps to address these throughappropriate measures (Article 40)


Members must cooperate with each other including through the provi-sion of information in investigations of alleged abuse of IPRs that haveinternational dimensions


Anti-competitive practices in contractual licences

Licensing practices

Protection of test data

Consultations among Members

Undisclosed information (or trade secrets) must be protected againstacquisition use or disclosure in a manner contrary to honest commer-cial practices To benefit from such protection information must besecret have commercial value owing to such secrecy and have beensubject to reasonable steps to keep them secret (Article 392)

Like TRIPS (Part II Section 10 Article 11 a))

Undisclosed information and test data

Protection of undisclosed information

Plant variety protection

Indirectly covered in the Section on patents plant varieties includingseeds must be protected through patent or alternative sui generismeans or a combination thereof Members are free to choose a suigeneris system appropriate to their social and economic development(Article 273(b))

Directly covered in an independent Section obligation to provide protec-tion according to UPOV 1978 or 1991 (Part II Section 9 Article 11 and12) Express list of rights conferred to breeders (Article 4) provides moreextensive rights than Article 5 of UPOV 1978 With respect to Article 14UPOV 1991 list of rights is partly more partly less extensive Lessextensive Parties are free to extend protection to essentially derivedvarieties (Article 4 last para may whereas mandatory under UPOV1991) More extensive FTAA list covers propagation in general not onlyconditioning for the purposes of propagation Also addition of the rightto use ornamental plants commercially or parts of plants as multiplica-tion material for the purpose of producing ornamental and fruit plants orparts of plants or cut flowers Excepted from the breeders right arethose varieties that farmers obtain from their own production and use forpropagating and multiplication purposes on their own holdings But com-mercial use only of the raw material not of the material obtained frommultiplication reproduction or propagation (Article 53)

35


Customs cooperation

Acquisition and maintenance of IPRs

Criminal procedures

Indemnification of the defendant

Compensation for the abuse of enforcement measures is specifiedincluding payment of defendant expenses which include appropriateattorneyrsquos fees (Article 48)

Like TRIPS (Article 23 f))

Technological Measures

Not covered Parties obligated to provide adequate legal protection and effective legalremedies against acts undertaken for economic gain that circumventencryption technologies or that take advantage of such acts of circum-vention (Article 6)

Procedures or formalities for obtaining intellectual property rights shouldbe fair reasonably expeditious not unnecessarily complicated or costlyand generally sufficient to avoid impairment of the value of other com-mitments (Article 62)

Unlike TRIPS there is not a separate section Covered in a general pro-vision on transparency of procedures governing the filing prosecutingand cancellationoppositioninvalidation of applications for the protectionof IPRs (Article 112)

Right holders must have the means to obtain the cooperation of the cus-toms authorities in preventing imports of pirated copyright and counter-feit trademark goods (Article 51)

Like TRIPS (Article 5)

Criminal procedures and penalties must be available in case of wilfultrademark-counterfeiting or copyright piracy on a commercial scale Nodefinition of commercial scale Where appropriate (ie according to thecourts discretion) available remedies shall include seizure forfeitureand destruction of inter alia the infringing goods (Article 61)

Like TRIPS In addition Parties are obligated to recognise the commer-cial scale of a wilful infringement in case this infringement is significanteven if there is no direct or indirect motivation of financial gain on thepart of the infringer (Article 41) Also Parties shall oblige their judicialauthorities through domestic legislation to order the forfeiture anddestruction of inter alia all infringing goods (ie no discretion for thecourts as in the case of Article 61 of the TRIPS Agreement) (Article 43)

Enforcement

General obligations


Members must provide effective means of action for any right holderforeign or domestic to secure the enforcement of his rights while at thesame time preventing abuse of the procedures (Article 41)

Like TRIPS (Part III Article 1)

The Agreement specifies procedures available to right holders for civiland judicial action including means to produce relevant evidence Civilremedies that must be available include injunctions damages anddestruction of infringing goods or disposal of these outside the channelsof commerce Provisional measures must be available to prevent infring-ing activity and to preserve relevant evidence Judicial authorities musthave the authority to adopt provisional measures inaudita altera parte(without listening to the other party (Articles 43-50)

Like TRIPS (Article 1) But procedures not only for right holders butalso for their exclusive licensees in their respective territory (Article 29)

Unfair competition

No express provisions Reference in Article 21 to Article 10bis of theParis Convention applies only in respect of Parts II III and IV of theTRIPS Agreement Thus no general applicability of rules on unfair com-petition but only as far as protection of geographical indications andundisclosed information is concerned (Articles 222(b) 391 and 2)

Independent Section 11 on unfair competition in general Modelled afterArticle 10bis of the Paris Convention Obligation of Parties to assureprotection against unfair competition Acts of unfair competition are interalia acts creating confusion with establishment goods or activities of acompetitor false allegations possibly discrediting a competitor certainacts misleading the public as to nature and other characteristics ofgoods In addition to the exemplary list under Article 10bis Paris the fol-lowing acts are to be considered contrary to honest commercial prac-tices deliberate breach of contract fraud breach of confidence andinducement to infringe

36


Transitional arrangements


Least developed countries

Developing countries

One-year transitional period for all countries to apply the Agreement(Article 65)

Part V Article 11 equally provides a one-year transitional period fordeveloping country Parties Proposal to include developed countryParties There are no special transitional periods for least developedcountries

Developing countries can delay application of the Agreement for anotherfour years except for national treatment and MFN obligations Thesecountries are entitled to an additional five-year period for introducingproduct patents in areas of technology (pharmaceuticals and agriculturalchemicals) that are not protected at the date of application of theAgreement This 10-year delay in the implementation of these provisionsshould be seen in conjunction with Article 708 of the Agreement whichprovides in respect of pharmaceutical and agricultural chemical prod-ucts the following arrangements any Member who does not makeavailable as of 1 January 1995 patent protection for the pharmaceuticaland agricultural chemical inventions must accept the filing of applica-tions for patents for such inventions (establishment of a lsquomailboxrsquo forpatent applications claiming such product patents) and must do so from1 January 1995 even if it is a country which may delay the applicationof the Agreement as indicated above Once the Agreement becomesapplicable in that country it must take a decision in respect of the appli-cation (either reject it or grant a patent) but in doing so it must apply(retroactively) the criteria of patentability as laid down in the AgreementIf its decision is to grant a patent that patent will be available for theremainder of the term (Article 70 para 8) However an lsquoexclusive mar-keting rightrsquo (for a period of five years) must be granted concerning theinvention which is the subject matter of the application if after 1 January1995 in another country a patent application has been filed and apatent granted for that product and marketing approval obtained in suchother Member (Article 70 para 9)

Possibility to further delay for two years the application of the FTAAsIPRs Chapter in case a developing country is undertaking structuralreforms of its IPRs system and facing special problems in the prepara-tion or implementation of IPRs laws and regulations Proposal to extendthis exemption to developed country Parties (Article 12)

Authorisation of any Party to delay for additional period of five years theapplication of IPRs disciplines to areas or sectors not so protectableunder domestic law on the general date of application of the FTAA (ie1 January 2006 see Article 281 of the Draft Text on General andInstitutional Issues) In practice this extension will not apply to areas orsectors already covered by TRIPS developing countries have had torespect TRIPS since 2000 (and for product patents at the latest by2005) This is arguably the reason why the draft does not include anyobligations to provide for a mailbox for patent applications nor anyobligation to establish exclusive marketing rights

Least developed countries are entitled to delay application of theAgreement except for national treatment and MFN until 1 January2006 However they are also covered by the requirement to protect allpharmaceutical inventions made after the entry into force of WTO

Acording to paragraph 7 of the Declaration on the TRIPS Agreementand Public Health least developed countries do not need to protectphamaceutical products until 2016

Not covered No provision on least developed countries

The Agreement calls upon developed Members to provide technical andfinancial assistance in favour of developing Members on mutuallyagreed terms and conditions (Article 67)

Comparable provision (Part IV Article 1)

David Vivas-Eugui and Christoph Spennemann (TRIPS column partly from The TRIPS Agreement and Developing Countries UNCTAD 1996)

Dispute settlement

WTO Dispute Settlement Understanding (DSU) applies to the TRIPSAgreement

(Article 64)

FTAA Chapter on Dispute Settlement similar to DSU with binding (interpartes) panel and Appellate Body decisions similar remedies but inaddition to DSU there could be provision on payment of damages (noproposed text as yet)

Non violation complaints

The TRIPS Council is examining the scope and modalities for the appli-cation of non-violation complaints (Article 64) There is a potential avail-ability of these actions

There is availability of non-violation complaints in the FTAA DraftChapter on Dispute Settlement (Article 2)

Discussion Papers

Food Security Biotechnology and Intellectual PropertyUnpacking some issues around TRIPSGeoff Tansey July 2002

Sui Generis Systems for Plant Variety Protection Options underTRIPSBiswajit Dhar April 2002

Traditional Knowledge and Intellectual Property Issues andoptions surrounding the protection of traditional knowledgeProf Carlos Correa November 2001

Trade Intellectual Property Food and Biodiversity Key issuesand options for the 1999 review of Article 273(b) of the TRIPSAgreementGeoff Tansey February 1999

Occasional Papers

10 Negotiating intellectual property Mandates and options inthe Doha Work Programme Jonathan Hepburn November 2002

9 Compulsory Licensing for Public Health Needs The TRIPSAgenda at the WTO after the Doha Declaration on Public Health Prof Frederick Abbott February 2002

8 Geographical Indications and TRIPS Prof Michael Blakeney November 2001

7 The TRIPS Agreement Access to Medicines amp the WTODoha Ministerial ConferenceProf Frederick Abbott September 2001

6 Some Assumptions on Patent Law and Pharmaceutical RampDProf Carlos Correa July 2001

5 TRIPS Disputes Implications for the Pharmaceutical SectorProf Carlos Correa July 2001

4 Exploring the Hidden Costs of PatentsStuart Macdonald May 2001

3 Generic Drugs Compulsory Licensing and other IntellectualProperty Tools for Improving Access to MedicineMichael Gollin May 2001

2 Micro-organisms Definitions and Options under TRIPSDr Margaret Llewelyn and Dr Mike Adcock November 2000

1Trade-Offs and Trade Linkages TRIPS in a Negotiating ContextDr Peter Drahos September 2000

Seminar Reports and Other PapersThe WTO TRIPS Agreement and the Protection of PublicHealth Implementing paragraph 6 of the Doha Declaration Report on workshop held at Utstein Kloster Norway July 2002Norwegian Ministry of Foreign Affairs QUNO Jonathan Hepburn

Legal Options for Implementing Paragraph 6 Of the MinisterialDeclaration on the TRIPS Agreement and Public HealthPresentation made at workshop at Utstein Kloster Norway July2002Prof Frederick Abbott

Legal Options for Implementing Paragraph 6 Of the MinisterialDeclaration on the TRIPS Agreement and Public HealthPresentation made at workshop at Utstein Kloster Norway July2002Marco Bronckers

Promoting participation for negotiating food and biodiversity inthe post-Doha TRIPS work programmeReport on fifth residential seminar at Jongny-sur-Vevey May 2002Jonathan Hepburn

Review of TRIPS Article 273(b) Proposals submitted in the WTOJonathan Hepburn April 2002

What did developing countries get in Doha Some QUNOassessments of the WTO Ministerial ConferenceBrewster Grace and Jonathan Hepburn December 2001

A TRIPS Agenda for development Meeting food health and bio-diversity needsReport on conference held in The Hague Netherlands October2001 Netherlands Ministry of Foreign Affairs QUNOJonathan Hepburn

A Development Agenda for Implementing TRIPS Addressingbiodiversity food and health needsReport on fourth residential seminar at Jongny-sur-VeveySeptember 2001Jonathan Hepburn

Development Co-operation TRIPS Indigenous Knowledge andGenetic ResourcesReport on third residential seminar at Jongny-sur-Vevey April 2001Jonathan Hepburn

Quaker United Nations Office Geneva

QUNO publications on trade development andintellectual property1999-2002

Quaker United Nations Office Geneva13 Avenue du Mervelet 1209 Geneva Switzerland tel +41 (0)22 748 4800fax +41 (0)22 748 4819email qunoqunochhttpwwwgenevaqunoinfo

Quaker International Affairs Programme97 Powell Avenue Ottawa Ontario Canada K1S 2A2tel (613) 231 7311fax (613) 231 7290email qiapquakercahttpwwwqiapca

Contents

Summary 21 Introduction 32 Regional and bilateral negotiations on IPRs in the Americas 5

21 Regional Trade Agreements 522 Bilateral Agreements 7

3 The FTAA 1031 Negotiations on IPRs 1032 The FTAA Draft IPRs Chapter 1233 Links between the FTAA other treaties and negotiations 1334 Systemic issues in the Draft Chapter 1535 Sectoral issues 17

4 Final remarks 22Acronyms 23Figure 1 Regional trade agreements in force by date of notification to the GATTWTO 5

Box 1 Main Regional Trade Agreements in the Americas including IPRs provisions 6Box 2 Illustrative list of performance requirements useful in promoting technology transfer 8Box 3 Setting the objectives of trade-related IPRs negotiations 10Box 4 US trade policy on IPRs 11Box 5 Coverage of the TRIPS Agreement and the FTAA Draft IPRs Chapter 13

Annex 1 Bibliography Literature Survey and Position Papers on FTAA and Intellectual Property 24Annex 2 Comparison of the main elements of the TRIPS Agreement and the FTAA 28

Supplementary table (available separately on the web or from the publishers) Simple legal text comparison of the TRIPS Agreement and FTAA Draft IPRs Chapter

1

About these papers

In these issues papers authors are invited to examine a subject ofimportance in the developing international intellectual propertyregime and highlight key issues they see arising The topics havebeen chosen following consultations with negotiators fromdeveloping countries and respond to their concerns Our aim is tocontribute to a greater understanding of the impact of changes inthis area upon peoplersquos lives and better inform debate andnegotiations

About the authorDavid Vivas-Eugui is currently Programme Manager ofIntellectual Property Technology and Services at the InternationalCentre for Trade and Sustainable Development (ICTSD) He wasformerly Attacheacute for legal affairs in the Mission of Venezuela tothe WTO and Senior Attorney at the Center for InternationalEnvironmental Law

The opinions given herein belong solely to the author and do notinvolve any of the organizations mentioned in this work

copy Copyright QUNO QIAP ICTSD 2003 This paper may bereproduced or translated for not-for-profit purposes provided theattributions on the cover are kept and QUNO QIAP and ICTSDare informed For other uses please contact publishers

AcknowledgementsThe author would like to thank Heike Baumuumlller Michael BassettTrineesh Biwas Chantal Blouin Christophe Bellmann GrahamDutfield Richard Elliott Paul Mably Christoph SpennemannBlanka Peltz Geoff Tansey Ken Traynor Tasmin Rajotte PedroRoffe and Peigi Wilson for their comments

This paper and others arising from QUNOrsquos TRIPS programmeare available on the web at wwwgenevaqunoinfo or wwwqiapca orwwwictsdorgiprsonline

Paper copies and the supplementry table may be requestedfrom either

Quaker UN Office Avenue du Mervelet 13 1209 GenevaSwitzerland email qunoqunoch or

Quaker International Affairs Programme 97 Powell Ave OttawaOnt K1S 2A2 Canada email qiapquakerca or

International Centre for Trade and Sustainable Development 11-13 Ch Des Aneacutemones 1219 Geneva Switzerland email ictsdictsdch

Series editor Geoff Tansey

Designer Mike Barrett






















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Unfair competition




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Technology transfer













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Acronyms




























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National treatment


Exhaustion of IPRs


Scope









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Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers













































2

Summary















3

1 Introduction



























4







in third countries







5







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100

50

0Nu

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er

of

RTA

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1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000







6













IPR coveragea



















7












8














9








10






3 The FTAA






45 Idem46 FTAA 2001

47 Idem

11


















12

















13







Trademarks


Industrial designs


Patents





Unfair competition




Border measures

Criminal procedures




Technology transfer













14











61 WIPO 2003

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17








bull folklore













18













82 Correa 2002




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22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers






































3

1 Introduction



























4







in third countries







5







250

150

100

50

0Nu

mb

er

of

RTA

s

1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000







6













IPR coveragea



















7












8














9








10






3 The FTAA






45 Idem46 FTAA 2001

47 Idem

11


















12

















13







Trademarks


Industrial designs


Patents





Unfair competition




Border measures

Criminal procedures




Technology transfer













14











61 WIPO 2003

15














16











17








bull folklore













18













82 Correa 2002




19





















20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers















































4







in third countries







5







250

150

100

50

0Nu

mb

er

of

RTA

s

1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000







6













IPR coveragea



















7












8














9








10






3 The FTAA






45 Idem46 FTAA 2001

47 Idem

11


















12

















13







Trademarks


Industrial designs


Patents





Unfair competition




Border measures

Criminal procedures




Technology transfer













14











61 WIPO 2003

15














16











17








bull folklore













18













82 Correa 2002




19





















20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers



























in third countries







5







250

150

100

50

0Nu

mb

er

of

RTA

s

1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000







6













IPR coveragea



















7












8














9








10






3 The FTAA






45 Idem46 FTAA 2001

47 Idem

11


















12

















13







Trademarks


Industrial designs


Patents





Unfair competition




Border measures

Criminal procedures




Technology transfer













14











61 WIPO 2003

15














16











17








bull folklore













18













82 Correa 2002




19





















20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers





























6













IPR coveragea



















7












8














9








10






3 The FTAA






45 Idem46 FTAA 2001

47 Idem

11


















12

















13







Trademarks


Industrial designs


Patents





Unfair competition




Border measures

Criminal procedures




Technology transfer













14











61 WIPO 2003

15














16











17








bull folklore













18













82 Correa 2002




19





















20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers



































7












8














9








10






3 The FTAA






45 Idem46 FTAA 2001

47 Idem

11


















12

















13







Trademarks


Industrial designs


Patents





Unfair competition




Border measures

Criminal procedures




Technology transfer













14











61 WIPO 2003

15














16











17








bull folklore













18













82 Correa 2002




19





















20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
































8














9








10






3 The FTAA






45 Idem46 FTAA 2001

47 Idem

11


















12

















13







Trademarks


Industrial designs


Patents





Unfair competition




Border measures

Criminal procedures




Technology transfer













14











61 WIPO 2003

15














16











17








bull folklore













18













82 Correa 2002




19





















20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
































9








10






3 The FTAA






45 Idem46 FTAA 2001

47 Idem

11


















12

















13







Trademarks


Industrial designs


Patents





Unfair competition




Border measures

Criminal procedures




Technology transfer













14











61 WIPO 2003

15














16











17








bull folklore













18













82 Correa 2002




19





















20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers




























10






3 The FTAA






45 Idem46 FTAA 2001

47 Idem

11


















12

















13







Trademarks


Industrial designs


Patents





Unfair competition




Border measures

Criminal procedures




Technology transfer













14











61 WIPO 2003

15














16











17








bull folklore













18













82 Correa 2002




19





















20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























11


















12

















13







Trademarks


Industrial designs


Patents





Unfair competition




Border measures

Criminal procedures




Technology transfer













14











61 WIPO 2003

15














16











17








bull folklore













18













82 Correa 2002




19





















20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























12

















13







Trademarks


Industrial designs


Patents





Unfair competition




Border measures

Criminal procedures




Technology transfer













14











61 WIPO 2003

15














16











17








bull folklore













18













82 Correa 2002




19





















20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























13







Trademarks


Industrial designs


Patents





Unfair competition




Border measures

Criminal procedures




Technology transfer













14











61 WIPO 2003

15














16











17








bull folklore













18













82 Correa 2002




19





















20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























14











61 WIPO 2003

15














16











17








bull folklore













18













82 Correa 2002




19





















20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























15














16











17








bull folklore













18













82 Correa 2002




19





















20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























16











17








bull folklore













18













82 Correa 2002




19





















20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























17








bull folklore













18













82 Correa 2002




19





















20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























18













82 Correa 2002




19





















20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























19





















20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























20












21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























21

















22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers




























22



4 Final remarks






23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























23















EU European Union



















UK United Kingdom







Acronyms




























24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers



















































24































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers





















































25






























26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers





















































26


























27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers

















































27



28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers


























28




National treatment


Exhaustion of IPRs


Scope









29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























29

Standards




Rental rights






















30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























30





Like TRIPS



Requirement of use

Trademarks
















31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























31


Actions available







Industrial designs



Term of protection










Like TRIPS

32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























32
















Patents

Scope of protection

Utility Models


33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























33



Plant varieties













Term of protection






34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























34










Licensing practices










35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























35


Customs cooperation


Criminal procedures












Enforcement

General obligations






Unfair competition



36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























36

















Dispute settlement


(Article 64)





Discussion Papers





Occasional Papers
























Discussion Papers





Occasional Papers






















