Intellectual Property Provisions in European Union Trade Agreements: Implications for Developing Countries
Intellectual Property and Sustainable Development Series Series • Issue Paper 20
Intellectual Property Provisions in European Union Trade Agreements and Implications for Developing Countries addresses the scope, content and potential impact of proposed intellectual property (IP) provisions in Economic Partnership Agreements (EPAs) with the European Union (EU).
The EPA negotiations offer an important opportunity for consolidating and expanding market access in African, Caribbean and Pacific (ACP) countries and can lock-in or improve domestic market reforms. However, one aspect of the EPAs that has generated deep concern among various stakeholders is the potential impact of TRIPS-plus provisions on the use of flexibilities and exceptions that have been designed to safeguard certain public interests and development objectives. In this regard, EPAs raise many negotiating and implementation challenges regarding policy coherence and the maintenance of flexibilities in such agreements, as well as in improving predictability in the IP field.
This study is one further contribution of the ICTSD Programme on Intellectual Property Rights (IPRs) and Sustainable Development to a better understanding of the proper role of intellectual property in a knowledge-based economy. The objective of the study is to generate and expand understanding of the policy of the EU regarding IPRs in bilateral and regional trade agreements. Additionally, it attempts to evaluate the impact of IP provisions proposed by the EU at a critical phase of EPA negotiations. The premise of ICTSD’s work in this field, together with its joint project with UNCTAD, is based on the understanding that IPRs have never been more economically and politically important – or controversial – than they are today. Patents, copyrights, trademarks, industrial designs, integrated circuits and geographical indications are frequently mentioned in discussions and debates on such diverse topics as public health, food security, education, trade, industrial policy, traditional knowledge, biodiversity, biotechnology, the Internet, and the entertainment and media industries. In a knowledge-based economy, there is no doubt that a better understanding of IPRs is indispensable to informed policy making in all areas of development.
Empirical evidence on the role of intellectual property protection in promoting innovation and growth remains inconclusive. Diverging views also persist on the impacts of IPRs on development prospects. Some point out that, in a modern economy, the minimum standards laid down in TRIPS will bring benefits to developing countries by creating the incentive structure necessary for knowledge generation and diffusion, technology transfer and private investment flows. Others stress that intellectual property, especially some of its elements, such as the patenting regime, will adversely affect the pursuit of sustainable development strategies by: raising the prices of essential drugs to levels that are too high for the poor to afford; limiting the availability of educational materials for developing country school and university students; legitimising the piracy of traditional knowledge; and undermining the self-reliance of resource-poor farmers.
It is urgent, therefore, to ask the question: how can developing countries use IP tools to advance their development strategy? What are the key concerns surrounding the issues of IPR for developing countries? What are the specific difficulties they face in intellectual property negotiations? Is IP directly relevant to sustainable development and to the achievement of agreed international development goals? How we can facilitate technological flows among all countries? Do they have the capacity, especially the least developed among them, to formulate their negotiating positions and become well-informed negotiating partners? These are essential questions that policy makers need to address in order to design IPR laws and policies that best meet the needs of their people and negotiate effectively in future agreements.
To address some of these questions, the ICTSD Programme on Intellectual Property and Sustainable Development was launched in July 2000. One central objective has been to facilitate the emergence of a critical mass of well-informed stakeholders in developing countries – including decision makers, negotiators but also the private sector and civil society – who will be able to define their own sustainable human development objectives in the field of IPRs and effectively advance them at the national and international levels.
We hope you will find this study a useful contribution to the debate on IP and sustainable development and particularly in responding to the need for increased awareness about the new trends and potential implications of proposed IP provisions in EPAs. In addition, it seeks to identify offensive and defensive issues in the negotiations and analyse potential implications of new IP obligations for ACP countries.