Bilateral IP and Trade Agreements that Operate beyond the WTO and WIPO - Coursework Example

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Bilateral IP and Trade Agreements that Operate beyond the WTO/WIPO (Topic School: Number: Word Count (Excluding Title Page, Headings, Foot Notes, In-text and References) = ~ 3400 words Bilateral IP and Trade Agreements that Operate beyond the WTO/WIPO (Topic 1) Introduction The World Trade Organisation (WTO) is an international institution that develops policies for international trade and ensures smooth and predictable practices for global trade.   It replaced the GATT (General Agreement on Tariffs and Trade) and came into being since 1st January 1995, and now developed the multilateral trade agreements.  Following a large increase in the global trade, the WTO’s role as a regulatory body for international trade has become even more critical, and due to the needs, its role has been extended beyond its primary role in negotiating and formulating trade agreements and providing solutions to international trade conflicts.  The WTO has also other functions including reviewing the international trade policies, providing support to the developing nations to develop policies, assisting in training with respect to trade and bringing about international mutual cooperation with relation to trade.  There are more than 153 under the WTO and more than 96% of the global trade is enabled, along with several non-full-time members that make take part in discussions with respect to specific issues1. The WIPO is another International organization that aims at the management of policies for international protection of IP. It has created the WIPO Development Agenda (WDA) which aims to be an integral part of the WIPO operations. It was being put into place in October 2007 and then was 45 recommendations when it was formally adopted2. The WIPO Development Agenda’s can be divided into 6 groups, along with managing the implementation of these 45 Recommendations by several Development Committees setup on IP3. These Committees would also monitor and develop these recommendations further and handle any kind of problem related to these recommendations, along with the General4. Role of the WIPO and the WTO The highest decision making body of the WTO is the Ministerial Conference, chosen every 2 years, followed by the General Council (made up f Ambassadors or delegates) and the Goods Council, Intellectual Property Council or the TRIPS and the Services Council (which work under the General Council).  Other than these, the WTO also has special committees, task force and working groups.  The WTO Declaration was created during the Uruguay Round of Negotiations during the period1986 to 19945.                 The WTO is primal to protection and development of Intellectual property and application trade from across the world.  It has administered the “Trade Related Aspects of Intellectual Property Rights” (TRIPS), which helps set minimum standards in various forms of intellectual property along with enforcement and managing infringement of IP.  During the Uruguay Round of the GATT negotiations, the TRIPS was developed and several nations are signatory to the same.   Many areas of IP are covered under the TRIPS regulations including patents, trademarks, copyrights, Geographical indications, industrial designs, appellation of origin, plant varieties, trade dress, confidential information, etc.  It would also setup various enforcement measures, dispute resolution and remedies to prevent violation of IP, besides, safeguarding the owner’s IP and ensuring effective sharing and transfer of technology, and also permitting benefits for the society.   However, today TRIPS has been criticised by several 3rd world nations as the costs of drugs are on the rise and there is no relief for several of the burning public health problems.  The DOHA Declaration of 2001 was created so that the interested of the developing nations could be protected especially from health epidemics which were huge public health concerns. TRIPS had been certain leniencies and it was not clearly understood whether it could help meet the public health needs of the developing world. In the year 2003, after widespread condemnation the developing countries with health problems were allowed to import drugs from nations with greater manufacturing capability to tackle serious health problems6 and such drugs had to be packaged in different coloured containers.   However, often the drug companies look for higher profitability margins even though people in the least of developed nations are suffering hugely due to shortage of drugs. The TRIPS agreement has created standards which in turn are affecting the ability of several poor nations to meet the public health worries7.                  75% of the nations are WTO members and many of the least developed nations are also members8.  The WTO Agreements have inbuilt clauses that aim for protection of the interests of the least developed nations. However, companies and trade corporations are developing means and ways of overcoming these so as to maximise profits even at the costs of the poor. The WTO is organizing training sessions and providing technical assistance to the poor nations.  However, many of the developing and the least-developed nations are finding it very difficult to meet with the WTO clauses due to economic and social problems.  Further to add salt to the injury, the developed nations are pressurizing the WTO to upgrade standards9.  In all, it may be very difficult to meet the interests of the poor nations, as the developed nations were elbowing the poor nation’s interests out10.   The WIPO Development Agenda (WDA) includes 45 set of recommendations accepted by the member nations. Among these, there were a few recommendations that were suggested by the General Assembly to be implemented immediately. The Recommendations were implemented not based science or application areas, but on the processes involved in development and intellectual and industrial property management. The recommendations were divided into 6 categories or clusters:- A. Cluster A: Technical Assistance and Capacity Building B. Cluster B: Norm-setting, flexibilities, public policy and public domain C. Cluster C: Technology Transfer, Information and Communication Technologies (ICT) and Access to Knowledge D. Cluster D: Assessment, Evaluation and Impact Studies E. Cluster E: Institutional Matters including Mandate and Governance F. Cluster F: Other Issues11 The idea of having any IP protection for any nation was to promote technical development and ensure that means of dissemination of technology exists. The idea of providing IP would be for the general benefit for the society, but TRIPS has separated away from the means of the protection such that anticompetitive trends have begun to occur in the market. Hence, there is a determine the protection or incentives that has to be provide to the IP owner for the expenditure spend on developing a new technology The owner would have to seek profitability from the innovation, and in turn the society would have to pay for the innovation. However, this should not go to the extent wherein the developing world may have to be forced to work on the terms and conditions offered by innovators from the developed world. The WDA should aim to reduce this gap between the North-South Divide. Not only is the divide between the North-South but also within the North Country or North-North Divide. Some of these IP means do not promote equity and fairness. This strongly requires greater harmonization of the IP and WIPO through the WDA recommendations should aim to achieve this. The Global IP system should motivate the transfer of technology between North and South Countries, and the WDA has strongly voiced its concern through the WDA that the North Countries should support the needs of the South Countries. However, it has been noticed that once IP measures are being implemented in a developing nation’s legal system, it would tend to make the costs of the new technology unaffordable, hence, requiring the IP system to be more flexible and ensure that IP enforcements are beneficial rather than destroying the market of a developing nation. One important concern is the Costs of the new technology that is payable by customers from the developing nation, and often the WDA could be a technical guide for ensuring that the means of cost analysis performed by the vendor would be balanced for the benefit of the society and the IP holder 12. Till today, several of the corporate have been using the WDA as a tool to gain greater profits in developing nations. Most of the recommendations are general and not specific in nature, as the WIPO does not have any specific objective or target. However, if you go into greater detail of the WDA, it include several tasks such as enabling transfer of technologies, providing technical assistance and checking anti-competitive tendencies13. There are flexibilities incorporated within the WDA through exceptions and limitations, but the application of the same needs to be addressed appropriately (circumstances and conditions of application). Another limitation of the WDA is that all of them are not definitive nature and does not include certain tasks that need to be taken up by the WIPO in its effort to develop IP14. Since it is found that the WTO and the WIPO Agreements and Agendas are in fact general tools for administration of IP and in case of sorting out the problems that are specific to a particular nation based on the characteristics of that nations and the problems faced by it, it is important that nations have bilateral agreements with other nations and regions that can aim to cover greater depth and address the individual problems faced by each nation. In general, the WTO and the WIPO Agreements should provide a general infrastructure, and this infrastructure should be used as a tool to decide the further resources need by the individual nations, through mutual discussions with individual nations. Bilateral Agreements between Nations regarding trade It is very critical to understand in-depth about treaties and agreements, which can actually be classified into 3 types. The first type is treaties that are created during certain discussions and form very substantive standards. Some of the treaties that are present include UPOV, WCT and the WPPT. The second is classification treaty which creates a classification system with regards to a particular type of IP. This includes the Vienna Treaty, the NICE Agreement, etc. The Third is a global protection mechanism that aims to provide an international convenience in registering or filling out an IP. An example of this includes PCT, Hague, Budapest System and the Madrid Agreement15. Under the Free Trade areas (FTAs) several of the regional trade agreements are uprising and today cover up to 40 to 50% and one nation may be a member to 5 to 6 regional trade agreements. Some of the RTA’s are so comprehensive in nature that they deal with specific issues concerning trade and IP problems that may be present in the circumstances of trade between the individual nations. As mentioned earlier in this paper, TRIPS and the WDA are basic principles that create standards in most nations, and applying TRIPS may not solve the minute problems faced by several nations individually. As a result of this, the functioning of the TRIPS and the WDA has been unsatisfactory in general, and there is a need for these Agreements to be supported by bilateral agreements. The FTA between 2 nations or regions should be flexible in nature, though TRIPS and WDA have ensured some amount of flexibilities through exceptions and limitations. A developing nation for example, would be agreeing to grant certain concessions to the developing nation much more than what TRIPS or WDA can afford, and in general these concessions and exceptions can be customised based on the products or technology that should be incorporated through trade between the two nations or between the two regions. Such concessions and exceptions are usually provided to the developing nation provided the developing nation takes effective steps in protecting the IP of the developed nations from abuse. Hence, in this way though the profits for the developed world would be reduced, they can still seek enforcement of IP in the developing along with granting entry of the technology from the developed nation into sometimes a larger and a more stronger market, even though it may be presented in a third world nation16. In many instances, the Agreement between the developed and the developing nation may go beyond TRIPS in providing commitments that may not be covered by TRIPS. However, in such instances it is important that the minimal standards provided by TRIPS be enforced. TRIPS permits the trading nations to implement standards or enforcements that are higher or stronger than those that are provide by TRIPS. However, these agreements should not derange any other agreement that provides for a more favourable treatment. Hence, in general, all the bilateral agreements should aim for a higher standard of enforcement, but should not derange any current agreement between nations17. IPR as an issue need to be settled through bilateral agreements as in most instances, IPR is a bilateral issue and not a multilayer issue. There may be certain occasions when the IPR matters between nations have to be settled through a multilateral mode. It is important to note that the bilateral or multilateral agreement would not hurt minimum standards, but in fact boost them by providing a higher level of protection and a ground to build. Through the FTA’s nations find effective tools to disseminate technology and to implement the TRIPS positions18. Many of the Agreements signed by different nations with the US seek to implement measures that actually meet the TRIPS and the WDA. THE European Agreements are more comprehensive in nature and maintain standards that are being followed by the various nations of the EU. A treaty bilaterally should also act as a mechanism to break a deadlock or settle a dispute between 2 nations. Most of the multinational agreements that have been implemented following TRIPS tries to incorporate the standards of TRIPS Plus. One such agreement is the WPPT which aims to extend the period of protection, provides greater rights and better right management. Another example is the UPOV 1991 and the Joint Recommendations for the protection of Trademarks by the WIPO. The Joint Protection measures aim to protect the trademarks of the owners who wish to use their marks on products that are traded through international e-commerce. Such a treaty would provide the applicable law, determining of infringement, management of rights when the marks are similar or identical so as to enable concurrent use of marks on the internet, and also remedies in case of breaches19. One such FTA that is of special interest is the FTA between Chile and US to create a free trade agreement between the 2 nations. Special emphasis is given on the protection of various forms of IP, and with contributing to the TRIPS-plus criteria. Both WE and Chile have negotiated to develop this FTA. THE FTA as such used the framework provided by various multilateral agreements such as TRIPS. It contains only few provisions on those that are dealt by TRIPS and goes into greater detail on those issues that are not covered by TRIPS. These include domain names (internet), digital rights management, protection of satellite broadcast signals, and related issues with relation to copyrights. Under the Copyright Act of Chile, before the FTA, only 50 years of protection was given, but after signing the FTA, the duration of copyright protection was given for 70 years. Besides, it amended the pharmaceutical patents laws to ensure that adequate protection was given to pharmaceutical products under the patent laws. These included extension of patent protection to about 5 years when unreasonable delays occur in granting patents, prevention of use of undisclosed information and granting of marketing rights to third parties20. Many of the domestic laws require significant changes when an FTA is signed. Hence, the developing nations should not sign an FTA in haste but discuss the same with a host of stakeholder with IP in their particular nation. These stakeholders would include the governments, policy makers, industry, academic organisations, decision makers, negotiators, etc. These stakeholders would be able to speculate the concerns from various areas and accordingly develop means to ensure sustainable development21. Khor 2005 has developed has considered the main characteristics of the FTA between a developed and a developing nation. Most of the time developed nation would include the EU, Japan or US, and whenever a FTA is signed there are certain issues that need to be incorporated including the market access of goods or services, specific areas being included in the FTA, the related-non-trade issues such as investments, competition and government policy, labour standards and environment policy. These issues are often called as the Singapore Issues as they were first incorporated in a Singaporean Ministerial conference in 199622. Michael Finger from the World Bank estimates that when the developing nations have to implement TRIPS, it costs about $60billion every year, and this kind of investment is not sustainable. Hence, there is a movement to amend the ways of TRIPS. Through the DOHA Declaration some amount of amendments has been made especially for provision of flexibilities through compulsory licenses in case of a public health crisis. However, there is a greater need for more protection of the IP that has been created in the developing world. These include explanation of the source of origin for any kind of genetic resource that has an IP claimable. On the other hand, the developed nations are trying desperately to remove all the flexibilities and to establish an even higher standard of protection23. FTA’s have in general been a part of the domestic laws of the US and through FTA’s with other nations, the US have been expanding their domestic laws. Many of these FTA’s in general promote a higher standard favouring US companies and would seek to benefit the US at the cost of the developing nation. Under the US Domestic law, a patent can be extended for a drug, if there is unreasonable delay in providing the patent for the drug. Besides, there is also patent extension for those drugs that undergo regulatory approval. Between the US and Australia, there is a compulsory transfer of trade secret FTA which seeks to incorporate TRIPS-plus criteria. Under clause, compulsory licensing can be provided only in cases of anticompetitive practices, national emergency, public health emergency, non-commercial use, etc. However, when there is a national emergency, the owner need not transfer any kind of secret information regarding the transfer of technology. The US is also stringent with the use of parallel imports as a means of controlling the prices of goods in the developed world. The copyright laws have been put to certain limitations with the fair use clause. Fair use is only permitted if the purpose is for a non-profit or educational purpose, small amount of work copied and such copying does not damage the copyright of the goods in the market24. Conclusion In general, though the WTO and the WDA international or multilateral treaties are able to create a basic framework through which IP can be protected by means of developing legislations with minimal standards, along with enforcement and infringements, both these treaties may be difficult to use in the case of sorting out complex issues concerning trade and IP between the developing and the developed nations. Developed nations are likely to dictate their terms and conditions to the developing nations and often extent their laws to these nations. On the other hand, developing nations are left at the hands of the developing nations to plunder their IP and gain profits at the cost of public welfare. Besides, the mere investment of ensuring TRIPS compliance is itself costly and unsustainable for the developing world. FTA’s as a mean can help deal with greater detail of the developing and enforcing the IP laws. Many of the FTA’s dictate terms and conditions to the developing nations, and this ideally should not occur as the developing nations has several resources including traditional and genetic resources which are a potentially source of trade and should not be abused by the developed nation. Hence, the developing nation should consider that they have greater control over negotiating the FTAS with the developed nations. Three basic issues need to be in place before an FTA is setup. Firstly, a national development plan should be in place that includes national and issue-based plans. Secondly, the benefits of the proposed FTA should be clearly identified and noted by the developing nation. Thirdly, the developing nation needs to assess its resources and evaluate them before entering into an FTA25. Bibliography Abbott, F. 2006. Intellectual Property Provisions of bilateral and Regional Trade Agreements in light of US Federal Law [online], Available: http://ictsd.org/i/publications/11732/?view=document, [Accessed on: 2011, December 11]. Amico, T. and Weiss, M. 2006. IPR in regional trade agreements : What is hot and what is not [Online], Available: http://www.tomamico.com/wp-content/uploads/2006/12/ipr-in-regional-trade-agreements.pdf [Accessed: 2011, December 11]. Cruz, M. S. 2007. Intellectual Property Provisions in European Union Trade Agreements Implications for Developing Countries [Online], Available: http://www.iprsonline.org/resources/docs/Santa-Cruz%20Blue20.pdf [Accessed: 2011, December 11]. ICTSD 2011. 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[Online], Available: http://www.wto.org/english/thewto_e/whatis_e/tif_e/utw_chap6_e.pdf , [Accessed: 2011, December 11]. Read More