Abstract
This chapter addresses the specific question whether “development-friendly” provisions incorporated in recent European Union (EU) economic partnership agreements (EPAs) may serve as models for the progressive development of international intellectual property law. Other chapters in this volume strongly suggest that the intellectual property (IP) provisions represent a concession or cost for developing country parties in favor of the EU, including generally by eliminating flexibility to develop and implement industrial policy. The EU may view incorporation of the objective of sustainable development, enhanced protection of geographical indications (GIs), adherence to the Madrid System treaties and/or references to transfer of technology as representing benefits or gains for developing country parties. The general objective of sustainable development already is recognized in the Agreement establishing the World Trade Organization and various other international instruments, and its incorporation in EPAs does not confer material supplemental benefits on developing country parties. The EPA between the EU, on one side, and Colombia and Peru, on the other (EU/CP EPA), also incorporates references to sustainable development relating to protection of biodiverse resources. However, these references do not commit the EU beyond what it has already accepted in multilateral forums or internal legislation. While developing countries may (or may not) benefit from enhanced protection of GIs depending on their particular situation, the list of GIs subject to protection under the EU/CP EPA is weighted very heavily in favor of EU products, suggesting that EU producers will gain substantially more from the agreement than Colombian or Peruvian exporters. The latter countries will also bear costs associated with internal displacement of agricultural products. Developing country parties may gain from adherence to the Madrid System agreements because such adherence is helpful to small and medium-sized enterprises. But these countries do not need an EPA to undertake such adherence. Finally, the technology transfer provisions in the EPAs are framed in hortatory terms, and lack concrete funding mechanisms. In the absence of concrete funding commitments, it is difficult to construe these provisions as providing material benefits. In sum, the provisions that might be considered “development friendly” appear insufficient to offset the loss of flexibility and specific concessions on IP made by developing countries in the EPAs, and generally do not lend themselves as models for the progressive development of international IP law.
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Notes
- 1.
See WTO, WT/DS50/AB/R 1997, and Art. 1.1, TRIPS Agreement.
- 2.
See, e.g., Maskus (2000).
- 3.
Abbott (2005c).
- 4.
See, e.g., US Federal Trade Commission (FTC) (2003), Chapter 3.
- 5.
See, e.g., Abbott (2011).
- 6.
See Trade Agreement between the European Union and Colombia and Peru, available at http://trade.ec.europa.eu/doclib/press/index.cfm?id=691.
- 7.
Decision 391, Common Regime on Access to Genetic Resources, available at http://www.comunidadandina.org/ingles/normativa/d391e.htm.
- 8.
Decision 486, Common Intellectual Property Regime, available at http://www.comunidadandina.org/ingles/normativa/d486e.htm.
- 9.
WTO, WT/DS58/AB/R 1998.The Appellate Body stated, at paragraphs 129–132:
While Article XX was not modified in the Uruguay Round, the preamble attached to the WTO Agreement shows that the signatories to that Agreement were, in 1994, fully aware of the importance and legitimacy of environmental protection as a goal of national and international policy. The preamble of the WTO Agreement—which informs not only the GATT 1994, but also the other covered agreements—explicitly acknowledges “the objective of sustainable development”:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development … [emphasis added].
Given the recent acknowledgement by the international community of the importance of concerted bilateral or multilateral action to protect living natural resources, and recalling the explicit recognition by WTO Members of the objective of sustainable development in the preamble of the WTO Agreement, we believe it is too late in the day to suppose that Article XX(g) of the GATT 1994 may be read as referring only to the conservation of exhaustible mineral or other non-living natural resources [footnotes omitted].
- 10.
- 11.
The EU/CP EPA establishes a Subcommittee on Trade and Sustainable Development. Article 15(1)(f), EU/CP EPA. The provisions on trade in services also incorporate a reference to sustainable development, at Article 107(1).
- 12.
Article 201 provides:
CHAPTER 2Protection of Biodiversity and Traditional Knowledge
Article 201
-
1.
The Parties recognise the importance and value of biological diversity and its components and of the associated traditional knowledge, innovations and practices of indigenous and local communities. The Parties furthermore reaffirm their sovereign rights over their natural resources and recognise their rights and obligations as established by the CBD with respect to access to genetic resources, and to the fair and equitable sharing of benefits arising out of the utilization of these genetic resources.
-
2.
The Parties recognise the past, present and future contribution of indigenous and local communities to the conservation and sustainable use of biological diversity and all of its components …
-
3.
Subject to their domestic legislation, the Parties shall, in accordance with Article 8(j) of the CBD respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity, and promote their wider application conditioned to the prior informed consent of the holders of such knowledge, innovations and
-
4.
In accordance with Article 15 paragraph 7 of the CBD, the Parties reaffirm their obligation to take measures with the aim of sharing in a fair and equitable way the benefits arising from the utilization of genetic resources. The Parties also recognise that mutually agreed terms may include benefit-sharing obligations in relation to intellectual property rights arising from the use of genetic resources and associated traditional knowledge.
-
5.
Colombia and the EU will collaborate in further clarifying the issue and concept of misappropriation of genetic resources and associated traditional knowledge, innovation and practices so as to find, as appropriate and in accordance with the provisions of international and domestic law, measures to address this issue.
-
6.
The Parties shall cooperate, subject to domestic legislation and international law, to ensure that intellectual property rights are supportive of and do not run counter to their rights and obligations under the CBD, in so far as genetic resources and associated traditional knowledge of the indigenous and local communities located in their respective territories are concerned. The Parties reaffirm their rights and obligations under Article 16 paragraph 3 of the CBD in relation to countries providing genetic resources, to take measures with the aim to provide access to and transfer of technology which makes use of such resources, upon mutually agreed terms. This provision shall apply without prejudice to the rights and obligations under Article 31 of the TRIPS Agreement.
-
7.
The Parties acknowledge the usefulness of requiring the disclosure of the origin or source of genetic resources and associated traditional knowledge in patent applications, considering that this contributes to the transparency about the uses of genetic resources and associated traditional knowledge.
-
8.
The Parties will provide, in accordance with their domestic law, for applicable effects of any such requirement so as to support compliance with the provisions regulating access to genetic resources and associated traditional knowledge, innovations and practices.
-
9.
The Parties will endeavour to facilitate the exchange of information about patent applications and granted patents related to genetic resources and associated traditional knowledge, with the aim that in the substantive examination, particularly in determining prior art, such information can be considered.
-
10.
Subject to the provisions of Chapter 6 (Cooperation) of this Title, the Parties will cooperate on mutually agreed terms in the training of patent examiners in reviewing patent applications related to genetic resources and associated traditional knowledge.
-
11.
The Parties recognise that data bases or digital libraries which contain relevant information constitute useful tools for patentability examination of inventions related to genetic resources and associated traditional knowledge.
-
12.
In accordance with applicable international and domestic law, the Parties agree to collaborate in the application of domestic frameworks on access to genetic resources and associated traditional knowledge, innovations and practices.
-
13.
The Parties, previous mutual agreement, may review this Chapter subject to the results and conclusions of multilateral discussions.
-
1.
- 13.
Title IX is titled Trade and Sustainable Development and includes in Article 272(4)–(5) language similar to that found in the Title on IP. There is a dispute settlement mechanism involving a group of experts’ recommendations (Article 285) associated with the Subcommittee on Trade and Sustainable Development.
- 14.
See, e.g., Abbott (2005b). See also ILA Reports.
- 15.
(27) Whereas if an invention is based on biological material of plant or animal origin or if it uses such material, the patent application should, where appropriate, include information on the geographical origin of such material, if known; whereas this is without prejudice to the processing of patent applications or the validity of rights arising from granted patents.
- 16.
See, e.g., CBD Secretariat.
- 17.
See, e.g., Abbott (2008). See also ILA Reports.
- 18.
See Abbott (2005a), pp. 350–352.
- 19.
See discussion of international trademark registration system generally in Abbott et al. (2011), pp. 434–442.
References
Abbott FM (2005a) Geographical indications at the Hong Kong ministerial. ICTSD session on recovering multilateralism in IP policy making: can the WTO deliver? Reprinted (2011). In: Abbott FM, Cottier T, Gurry F (eds) International intellectual property in an integrated world economy, 2nd edn. Aspen, New York
Abbott FM (2005b) Preservation and use of genetic resource assets and the international patent system. Study for the Ministry of Foreign Affairs of Norway, Hong Kong Ministerial Revision. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1924481
Abbott FM (2005c) Toward a new era of objective assessment in the field of TRIPS and variable geometry for the preservation of multilateralism. J Int Econ Law (8)1:77–100
Abbott FM (2008) Post-mortem for the Geneva mini-ministerial: where does TRIPS go from here? ICTSD Information Note No. 7. http://ictsd.org/i/publications/16949
Abbott FM (2011) Intellectual property and public health: meeting the challenge of sustainability, Global Health Programme Working Paper No. 7/2011. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1965458
Abbott FM, Cottier T, Gurry F (eds) (2011) International intellectual property in an integrated world economy, 2nd edn. Aspen, New York
Biennial reports of the Committee on International Trade Law of the International Law Association regarding developments in TRIPS. http://www.ila-hq.org/en/committees/index.cfm/cid/24
Brown Weiss E (1992) Introductory note, United Nations Conference on Environment and Development, 31 I.L.M., 814
CBD Secretariat: About the Nagoya protocol. http://www.cbd.int/abs/about/
Rio Declaration on Environment and Development (1992) Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, Annex I. http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm
International Law Association (ILA) (2000-2012) Biennial Reports of the Committee on International Trade Law regarding developments in TRIPS. http://www.ila-hq.org/en/committees/index.cfm/cid/24
Maskus K (2000) Intellectual property rights in the global economy. Petersen Institute for International Economics. Petersen Institute for International Economics, Washington
US Federal Trade Commission (FTC) (2003) To promote innovation: the proper balance of competition and patent law and policy. http://www.ftc.gov/os/2003/10/innovationrpt.pdf
World Trade Organization (WTO). (a) WT/DS50/AB/R, Report of the Appellate Body, India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, 19 December 1997. http://www.wto.org/english/tratop_e/dispu_e/tripab.pdf. (b) WT/DS58/AB/R, Report of the Appellate Body, United States - Import Prohibition of Certain Shrimp and Shrimp Products, 12 October 1998. http://www.wto.org/english/tratop_e/dispu_e/58abr.pdf
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Abbott, F.M. (2014). Trade Costs and Shadow Benefits: EU Economic Partnership Agreements as Models for Progressive Development of International IP Law. In: Drexl, J., Grosse Ruse - Khan, H., Nadde-Phlix, S. (eds) EU Bilateral Trade Agreements and Intellectual Property: For Better or Worse?. MPI Studies on Intellectual Property and Competition Law, vol 20. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-39097-5_8
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