High Quality
Open the downloaded document, and select print from the file menu (PDF reader required).
Global Social Justice
Justin Frewen10/Feb/10
TRIPS-Plus
Despite the initial euphoria of the business community and their lobbying groupsregarding the successful incorporation of the Trade-related Aspects of IntellectualProperty Agreement (TRIPS) into the WTO and the increased business and revenueprospects it appeared to promise, the honeymoon was short lived. Almost immediatelyan increasing level of grumbling was to be heard belching forth from the bowels of someof the globe’s largest technological corporations that TRIPS had failed to adequatelyrespond to their needs as it failed to deliver
...the highest standards of IP protection needed to promote global trade and to respond to the requirements of the digital age. (Roffe 2004: 49)
Soon, these transnational companies were lobbying, as actively as they had been duringthe creation of TRIPS, for the introduction of even more stringent Intellectual PropertyRights (IPR). As was the case with TRIPS, the US led the way. Just as it had pressurisedthose countries reluctant to accept TRIPS during the GATT Uruguay Round of trade talksthat led to the founding of the WTO:
The USA... pressured some developing countries to accept TRIPS-plus rules as part of the concessions required of countries newly acceding to the WTO. ... [using] a variety of unilateral pressures to push for higher IP protection – including trade sanctions,reduction in foreign assistance, withdrawal of trade preferences, and the use of technical assistance programmes. (Malpani 2007: 4)
However, whereas previously efforts to obtain agreement had consisted almostexclusively of the threat of trade sanctions or the refusal to activate trade concessions,as had occurred during the TRIPS negotiations, the North now frequently resorted toobtaining increased IPR through bilateral or regional Free Trade Agreements (FTA) andinvestment agreements.Nor was the US alone in compelling countries in the South to accept increased IPRprotection. From the start, the EU amply demonstrated its keenness to get in on the act:
Since the mid 1980s the US and EU have used a combination of unilateral pressure and forum shifting from bilateral agreements to multilateral standard setting and then back to bilaterals again as a way of securing trade concessions from developing countries,including stronger intellectual property (IP) protection for exported knowledge-goods.(Mayne 2005: 1)
For many commentators the reversion to bilateral FTA as a means of obtaining increasedIPR was a puzzling one, particularly as from an economic point of view the transactioncosts involved would be higher than doing so through a multilateral forum such as theWTO. However, the reversion to bilateral or multilateral trade agreements on the part of the US, EU and other ‘developed’ states had more to do with their willingness to adoptwhichever approach they believe most suited to the realisation of their strategic aims.Therefore, while these countries saw the incorporation of TRIPS into the WTO as havingestablished a baseline for IPR they believed that FTA and multilateral trade agreementswould enable them obtain even greater levels of IPR protection.The turn on the part of the North to bilateral FTA and multilateral trade agreements alsooccurred against the backdrop of a greater assertion on the part of the South at theWTO, which had made it more difficult for the North to achieve further concessionsthere.
Global Social Justice
Justin Frewen10/Feb/10
Through FTA and similar agreements the North has worked to ensure that thosecountries signing up to these accords adopt TRIPS-Plus provisions, which include:
Extending patents and copyright to new kinds of subject matter; eliminating or narrowing permitted exceptions including those still provided in US and European IPRlaws; extending protection terms; introducing new TRIPS-mandated IPR rules earlier than the transition periods allowed by TRIPS; and ratifying new World Intellectual Property Organization (WIPO) treaties containing TRIPS plus measures. (Dutfield 2005:535)
In the case of the US, the North American Free Trade Agreement (NAFTA) and existingUS legislation rules have been used as a template for the development of its FTA withother states. Despite these agreements being in principle the products of opennegotiation, there is a striking similarity between all the FTA entered into by the US withonly minor deviations from the preferred model and structure being permitted. In thismanner, the US has been able to realise the
neoliberal economic goals of deregulation and privatisation more thoroughly and faster than can be achieved through multilateral negotiations, including through changes indomestic regulation [with] The template... [being] provided by the Canada-US FTA that was expanded to include Mexico and became the North American Free Trade agreement (NAFTA) from 1994. (Ranald 2006: 34)
As the ex-EU Commission Trade Commissioner candidly admitted, albeit with referenceto the EU approach to FTA:
We always use bilateral free trade agreements to move things beyond WTO standards.By definition, a bilateral trade agreement is "WTO plus". Whether it is about investment,intellectual property rights, tariff structure, or trade instrument, in each bilateral freetrade agreement we have the "WTO plus" provision.
(Jakarta Post 2004)
At the same time, the EU has also used trade agreements to draw countries that are notmembers to the WTO and thence non-signatories to the TRIPS Agreement into accedingto all relevant international IPR conventions on IP, as indicated in Part I of the TRIPSAgreement.Through such an approach, the EU had already succeeded by early 2003 in obtainingTRIPS-plus IPR commitments on life forms in nearly 90 developing countries.At the same time, the North has also resorted to dangling the carrots in the form of specific incentives to entice states in the South into signing up to these agreements. Inthe same way as agriculture and textiles were put on the table during the GATT UruguayRound negotiations to help the South swallow the pill of the tabling of TRIPS as an issuefor discussion and its subsequent incorporation into the GATT 1994 Agreement,
...countries concluding a bilateral or regional treaty with the US... are required to provide more stringent IPRs regimes than any other countries, [receiving] in exchange...greater access for their exports to the US market. (Kuanpoth 2006: 2)
We have therefore, now arrived at a situation where
The intellectual property rules in TRIPS are considerably less stringent than the rulesdeveloping countries are increasingly adopting in free-trade agreements with the United
Global Social Justice
Justin Frewen10/Feb/10
States and other Western governments. The “TRIPS-plus” agreements place greater restrictions on the use of TRIPS flexibilities. For example, many free trade agreementsmake it much more difficult for generic drugs to enter the market upon patent expirationand extend patent period beyond twenty years. (Forman 2007: 342)
For many countries in the South this renewed drive by the North to further raise thelevel of IPR globally has come as a shock, as they had believed that their acceptance of TRIPS, while highly unpalatable for many of them, had drawn a line under the issue of global IPR regulation while also potentially entailing some ancillary trading benefits:
Many, if not most, developing countries accepted TRIPS (those that were not coerced into accepting it) with the expectation that it would be both easier to deal withdeveloped countries demands on intellectual property rights in a multilateral forum likeWTO and that in exchange developed countries would make concessions in agricultural subsides. (Barrio: 2006)
The reality, however, has been that for the North TRIPS has been treated as a steppingstone on the way to institutionalising progressively stringent IPR through otheragreements. Ironically, the rapid proliferation of FTA including increasingly stricterTRIPS-plus conditions has even raised concerns that the work of the WTO might beundermined in the area of IPR.In the South, the inclusion of more rigid TRIPS-plus IPR has led to widespread publicopposition and demonstrations. This was the case in Thailand when large-scale protests,held in Chiang Mai to oppose US insistence on TRIPS-plus commitments in an FTA,eventually led to the collapse of the ongoing negotiations.However, unified opposition on the part of the South remains, as it was during the TRIPSnegotiations, compromised by the diversity of its members’ interests due to the widedisparities in their levels of economic development, political and economic structures,political and economic importance to the North and so on.
Pharmaceuticals
Arguably the major commercial sector that has come under sustained internationalscrutiny as to how the effect of the new IPR is that of pharmaceuticals. One particularlycontroversial flashpoint was the 2001 ARV drugs case taken by 39 major multinationalpharmaceutical corporations against South Africa for their enactment of a law thatpermitted the easy production and importation of generics to try and make these drugsaffordable for HIV patients. The corporations soon dropped their case, followingwidespread international condemnation and negative media coverage.Sustained pressure from the South, NGOs, civil society and other concerned partiestogether with the pharmaceutical industry’s own perceived need to tackle the ‘credibilitygap’ created by this case, led to the Doha Declaration in November 2001. The DohaDeclaration stated that the TRIPS Agreement should not prevent states enacting therequired measures to ensure their citizens had access to necessary medicines and that itshould be read as being ‘supportive of WTO Members’ right to protect public health andpromote access to medicines for all.While for some commentators, the Doha Declaration was a useful and positiveclarification of elements of the TRIPS Agreement, for others it merely re-emphasized thegeneral thrust of TRIPS itself that held up health emergencies as providing justificationfor the compulsory licensing of pharmaceuticals. Furthermore, it risked being renderedmeaningless by TRIPS-plus components in FTA. As Correa writes:
Add a Comment