Intellectual Property Rights in the Free Trade Area of the Americas Discussions
Steve Suppan, Ph.D.
Director of Research
Institute for Agriculture and Trade Policy
The following review of discussions about intellectual property
protection at the Free Trade Area of the Americas (FTAA) is intended
to stimulate thinking about these discussions might affect their
work in food security and the conservation of biodiversity. The
review may also prompt NGOs to discuss how and to what end NGOs
might intervene in FTAA discussions. At present, only for-profit
entities, through the Business Forum of the Americas, have the
privilege of meeting with and making formal recommendations to
the FTAA Working Groups of government officials. Hopefully, the
consequences of excluding civil society from trade policy formulation
discussions and negotiations will lead governments in the near
future to provide NGOs the formal and informal venues for recommending
trade policy now only accorded to representatives of for profit
entities.
In February 1997, the United States presented a proposal for a
FTAA Work Group on Intellectual Property Rights (IPRs) that would
"go beyond" the commitments of the Trade Related Intellectual
Property Rights Agreement (TRIPs) of the World Trade Organization.
The proposal contends that new and more stringent protection of
intellectual property privileges are needed for IPR-dependent
industries, such as pharmaceuticals, computers, film and sound
recordings and biotechnology, in which the U.S. is dominant. The
U.S. would like to begin negotiating a FTAA chapter on intellectual
property privilege protections by April, 1998, a target that many
Latin American nations have thus far resisted. If U.S. negotiators
repeat past tactics, the negotiations towards a "WTO-plus"
form of intellectual property privilege protection will likely
be cited as a precedent for more stringent protectionism at the
meetings to amend TRIPs in 1999 and 2000.
The U.S. "Suggested 1997 Action Plan" recommends that
the "private sector, which already has extensive experience
in the [IPR] enforcement area, could play a particularly significant
role in advising the Working Group" on how to write policies
that would deter piracy and counterfeiting. The U.S. suggests
that would- be FTAA members could mount "public campaigns
describing the economic, social and legal costs of piracy and
counterfeiting."
Under the recommended goal to "reduce barriers for obtaining
intellectual property rights in the Hemisphere," the U.S.
suggests that prospective FTAA members ratify the Trademark Treaty
Law, and that a FTAA IPR Working Group "identify and implement
ways in which unnecessary duplication in patent examination systems
in the region could be implemented through, for example, data
sharing (in areas like biotechnology), exchanging data bases and
confirmation of patents." Under such a "simplified"
and "modernized" system of patent examination, patents
approved in the U.S., for example in agro-biotechnology, would
be more readily granted and recognized as valid in other FTAA
countries.
The U.S. paper also recommends that the governments represented
in the Working Group also "reaffirm their commitment to full
implementation of WTO's TRIPs Agreement" and "consideradopting
standards of treaties such as the Budapest Treay on the International
Recognition of the Deposit of Microorganisms for the Purposes
of Patent Procedure, the Patent Cooperation Treaty and the Trademark
Law Treaty." The paper's authors contend that "full
implementation of these agreements and treaties will further enhance
the ability of FTAA countries to attract investments in high-wage
and advanced technology industries and jobs." (However, it
is doubtful whether substantial profits from these investments
will remain in the signatory countries or whether any of the high-wages
jobs will go to nationals, if they also sign on to the Multilateral
Agreement on Investment, as advocated by the United States.)
Finally, the paper's comment the "Role of the Private Sector"
states the U.S. government's position on the public's role in
Working Group consultations: "Recognizing that intellectual
property rights are private rights, it is imperative that any
government group on intellectual property establish and maintain
close ties to the private sector. . . . An awareness of the private
sector's interests, concerns and goals is key to achieving a FTAA
that protects IPR now and in the future." The paper offers
the U.S. government's consultation process with the private sector
as an exemplar.
To judge by the minutes of the July 10-11 FTAA meeting on Intellectual
Property, held at the Organization of American States in Washington,
DC, most of the U.S. suggestions for the Working Group have been
incorporated, including the April 1998 start date for the formal
beginning of negotiations. For example, the minutes state that
"with respect to the fifth point of the agenda "Analysis
of the implications of emerging technologies with respect to the
protection of intellectual property rights," the Working
Group held a seminar/workshop the day prior to the meeting, which
allowed for an exchange of views and information on these issues
among countries. Costa Rica, Mercosur, Mexico and the United States
made contributions on biotechnology, and Columbia and the United
States on the implications of new technologies on copy rights."
Thus far, it has not been possible to obtain copies of the papers
presented at the Working Meeting.
At the October 2-5 meeting of the Working Group in Cartagena,
Columbia, four approaches were debated without resolution for
negotiating intellectual property privileges protection under
FTAA. The first approach, supported by the Andean Community, Costa
Rica, Guatemala, Honduras, Jamaica, the Dominican Republic, and
Mercosur (for the most part), calls for "gradual" negotiations,
consisting of implementing business facilitation measures before
proceeding to the negotiating of the IPR chapter itself. Mexico
also presented a proposal for "gradual" negotiations,
in which business facilitation measures would be negotiated concurrently
with the IPR chapter. Both gradual approaches call for studies
prior to negotiations on the impact of IPR regimes on the Gross
Domestic Product, and IPR technical assistance programs and a
longer phase-in period for smaller economies.
Mercosur alone put forward a third approach, which in addition
to steps towards gradual negotiations, requires that FTAA prospective
members must reach consensus on which international IPR agreements
are to be referenced as the basis for an FTAA IPR chapter. Mercosur
does not want to negotiate enforcement and dispute resolution
as part of the IPR chapter, in opposition to other governments
represented in the Working Group.
The U.S. approach reiterates the tenets of its February "Suggested
Plan of Action," and calls for "immediate negotiations
on all substantive and enforcement obligations" and simultaneous
implementation of business facilitation measures. The U.S. proposal
also calls for technical assistance to smaller economies to help
them carry out their obligations under an IPR chapter Impact studies,
training of bureaucrats in intellectual property protection enforcement
and the formation of IPR institutions would all be done simultaneously
with the negotiation of an FTAA IPR chapter. The United States
traditionally favors a "simultaneous" approach to negotiating
all issues, since it has the most financial and bureaucratic resources
to produce an agreement in its interests. The senior officials
on intellectual property protection issues will meet again at
the end of October to come to some agreement about how to launch
the IPR negotiations in April 1998 at the Summit of the Americas
in Santiago, Chile.
Meanwhile, as the U.S. is working to make its IPR agenda that
of the FTAA, it has not neglected trying to impose parts of that
agenda through bilateral negotiations. On September 20, 1996,
Ambassador Myles Frechette that Colombia would have to negotiate
bilateral agreements in intellectual property protection and in
investment, as prerequisites for Colombia or other nations to
join the FTAA. He said that Colombia would have to agree to "pipeline"
protections for pharmaceutical products, heightened protection
for computer software, enhanced IPR enforcement mechanisms, and
new laws on trademark and textile design protection. Ambassador
Frechette said that the Colombia constitution would have to be
amended to require compensation for expropriation of private property
taken in the public interest. In June 1997, the United States
told Colombia that it would have to implement the TRIPs Agreement
fully by June 1998, in advance of TRIPs obligations for developing
countries, in order to negotiate a bilateral investment agreement
with the United States.
Throughout 1997, the U.S. threatened to use Section 301 trade
sanctions in September against Ecuador, if its Congress did not
ratify a bilateral IPR agreement signed by Ecuador and the United
States in 1993. The Congress has been pressured not to ratify
by indigenous groups, particularly COICA, a group with membership
in nine countries in the Amazon Basin. Instead, the Congress passed
a biodiversity conservation and protection law in response to
charges that corporate bio-piracy was stripping Ecuador of its
genetic resources, and that ratifying the bi-lateral agreement
would legitimize bio-piracy.
These are but two examples of recent U.S. bilateral diplomatic
initiatives to create legal precedents for the IPR rules it would
like to see codified in an FTAA IPR chapter. It is by no means
certain that the U.S. agenda for IPRs will prevail. However, the
current agenda setting success of the U.S. in FTAA IPR negotiations,
together with the pressure it exercises through bilateral negotiations
and sanctions, pose a great challenge to those who would grant
intellectual property privilege protections only in exchange for
demonstrated performance in achieving social development and environmental
objectives, such as those outlined in Agenda 21. Given the unwillingness
or inability of many industrialized countries, including the United
States, to carry out their Agenda 21 commitments, it seems likely
that it will be a while before there will be a reciprocity between
the granting of intellectual property privileges by the state
in the name of its citizens and the fulfillment of socio-economic
and environmental obligations for those privileges.