Recent Multilateral and Bilateral Trends in IP Policy Making: Lessons and Challenges for Africa

Cape Town, South Africa, 6 October 2006

Description |Agenda| Participants| Documents


International intellectual property (IP) rules have far-reaching implications on numerous public policy issues. These rules tend to be complex and their economic, social and environmental impacts are multifarious and often difficult to measure. IP has been conceived as a tool to benefit society by providing an incentive to innovators, authors and artists. Experience shows that the appropriate level of IP protection in a particular country may vary significantly over time according to local models of production and levels of development. There is therefore no unique IP model to suit all countries.

Many experts and policy-makers have challenged the so-called "one-size-fits-all" approach to IP, arguing in favour of a rebalancing of the global IP architecture. Attention so far has focused thus far on preserving and enhancing flexibilities under the WTO Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) of 1994 - as evidenced by the debate on access to medicines.

The Doha Development Round in the WTO has been temporarily suspended. Nevertheless, it cannot be denied that in the case of the WTO, some aspects of the TRIPS Council negotiations have been very fruitful for the public interest in the last years. This is particularly true in the case of the Doha Declaration of TRIPS and Public Health and the recent amendment to article 31 of the TRIPS Agreement. Yet, some negotiating items of the Doha Development Agenda will still be outstanding. These relate mainly to the relationship between the Convention on Biological Diversity (CBD) and TRIPS, and geographical indications (GIs).

Negotiations at WIPO have intensified over the last few years. Since the TRIPS Agreement entered into force, new multilateral treaties have been signed and new negotiations are underway, both on substantive patent law and broadcasting. These negotiations might move towards increased harmonisation of IP standards. This process is further reinforced through international technical cooperation designed not simply to make national legislation more uniform, but to make the highest IP standards the common minimum denominator for all countries. This, in turn, has spurred concerns on the failure of the current trends to take into account both the development needs of member countries and the flexibilities under TRIPS.

In response to these developments, a group of developing countries called upon the WIPO General Assembly (2004) to consider the integration of a development agenda in the work of the organization. Their objective was to ensure that IP policy-making better takes into account development concerns, such as the need to promote access to technical knowledge, transfer of technology, maintain public interest flexibilities and prevent anticompetitive practices.

Simultaneously, free trade agreements (FTAs) are mushrooming at the regional and bilateral level. According to the World Bank, the number of agreements in force now surpasses 250, and it has risen six fold in just two decades. These treaties are often one component of a larger political effort to deepen economic relations between countries. They also serve as a mean to lock bilateral and regional trading partners into particular commitments that reflect the multilateral negotiating goals of the stronger partners. The principle driving force behind this trend has been the USA that has led the emergence of a new generation of FTAs which include comprehensive chapters on IP that go well beyond TRIPS ("TRIPS-plus"). The United States Trade Representative (USTR) is further negotiating under the Trade Promotion Authority (TPA), to expire in July 2007, a number of FTAs. On their part, the EU and EFTA have also been active in producing trade agreements with different emphases on IP issues. It is expected that the EU and EFTA bilateral models might become more aggressive in certain areas such as geographical indications and trade marks, UPOV like plant variety protection, and increased enforcement.

While FTAs might offer important market access opportunities in developed countries a number of experts have expressed concerns that the TRIPS-plus provisions included end up reducing the opportunities to use flexibilities and exceptions that have been designed to safeguard certain public interest objectives and for LDCs, remove any developmental benefits from the extension of the TRIPS transition period. Obligations in this new generation of FTAs raise many implementation challenges regarding policy coherence and maintenance of flexibilities left in those agreements. At the same time, most developing countries are still struggling to implement the minimum standards of the TRIPS Agreement.

With this background, this meeting aims to:

  • Provide a platform for a strategic discussion between relevant stakeholders on relevant trends at the multilateral and bilateral level;
  • Generate a deeper understanding of new IP obligations in the new generation of FTAs;
  • Explore implications of new IP standards in FTAs on marketing of local products, biodiversity and traditional knowledge, access to educational materials.

© ICTSD 2004 - Last Update: 05-Oct-2009