Maintaining Policy Space for Development: A Case Study on IP Technical Assistance in FTAs
A Case Study on IP Technical Assistance in FTAs
Intellectual Property Rights & Sustainable Development Series • Issue Paper 19
This study addresses the issue of how technical assistance is dealt with in the intellectual property (IP) chapters of Free Trade Agreements (FTAs). The study focuses on some of the technical assistance concerns raised by a new generation of IP obligations. It looks at the impact of such obligations and the challenges faced by developing countries with regard to their implementation, as well as human and institutional capacity building. It pays particular attention to FTAs between the US and a number of developing countries, especially those in Latin America. It centres its analysis on the needs and issues arising from the implementation phase of FTAs once the negotiation phase has ended.
This is the third ICTSD study on technical assistance in intellectual property. It demonstrates from a sustainable development perspective that this issue is one of the most strategically important — but also one of the most controversial — aspects for achieving a balanced IP system at the national level. The study concludes that the recent emergence of FTAs, many of which contain chapters on IP that go beyond the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), adds a new layer of complexity for countries in the implementation and enforcement of international IP rules and has important implications for policy coherence, institutional reforms and human resources. To this end, it argues that carefully crafted technical assistance is needed in order to make national IP systems effective tools for promoting innovation and technology transfer. The premise of ICTSD’s work in this field, together with its joint project with UNCTAD, is based on the understanding that intellectual property rights (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 issues as diverse 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 remains inconclusive as to the role of intellectual property protection in promoting innovation and growth. Divergent 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 the 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 patent regime, will adversely affect the pursuit of sustainable development strategies by, for instance: 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 crucial, 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 IPRs for developing countries in formulating their IP policy? 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 can we better facilitate technological flows between all countries? Do they have the capacity, especially the least developed among them, to formulate effective negotiating positions and become well-informed negotiating partners? These are essential questions that policy makers need to address in order to design and implement IP laws and policies that meet the needs of their people and negotiate effectively in future agreements.
To help address some of these questions, the ICTSD Programme on Intellectual Property and Sustainable Development was launched in July 2000. A central objective of the programme has been to facilitate the emergence of a critical mass of well-informed stakeholders in developing countries — including decision makers and 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 intellectual property and sustainable development, and particularly on how technical assistance should best be devised to address the challenges of implementing the new generation of IP obligations in FTAs.