South Bulletin (Issue 41): 22 September 2009  

Luis Vayas Valdivieso

In recent years, the developed countries have launched many initiatives and measures to tighten the enforcement of intellectual property.  The aim is to get developing countries to take on TRIPS-Plus obligations that go beyond the already high standards of the WTO’s TRIPS Agreement.

This IP enforcement issue has been high on the agenda of recent G8 Summits, where the political leaders of the richest countries have been planning new TRIPS-Plus initiatives. The strategy included developing IP enforcement measures in the World Customs Organization (WCO) through an agreement called SECURE, and to conclude a new agreement among developed countries called ACTA.

Combating piracy and counterfeiting and the harm they cause is an understandable and legitimate objective.  But rules and actions should be developed in a transparent and democratic manner, with participation by developing countries.

Agencies becoming  (Patent Police)

The WCO does not have a mandate from the 174 member countries to address intellectual property issues. However the developed countries initiated action in this non-transparent organization, in which the private sector is actively involved in decision making.

The provisions being proposed in the ACTA are highly in favour of IPR owners and greatly limit the legitimate rights of consumers and the public. While the draft ACTA states that its provisions would be voluntary, there is a danger their TRIPS-plus provisions would be transferred to developing countries through bilateral and regional free trade agreements.

The developed countries are also pursuing their TRIPS-plus enforcement agenda in other international organizations such as the Universal Postal Union (UPU), the WHO and UNESCO.

At the 24th Congress of UPU, they proposed a draft resolution number 40, entitled "Counterfeit and pirated items shipped through the mail” and tried to hastily push it through. A group of developing countries managed to change the original text and referred to the sovereign power of states to determine whether an item is fake or not through their own laws and authorities.

WHO and Counterfeit

Recently, developed countries also attempted to get the WHO to introduce aspects of IPR enforcement in connection with medicines. While the WHO has handled issues related to intellectual property as they relate to public health and innovation, the WHO had not before entered into specific aspects of IPR enforcement.

However, the WHO now has created a structure for IPR enforcement, operated by the so-called Ad Hoc Group Against Counterfeiting of Medicinal Products (IMPACT).  The group seeks to implement international standards that are highly restrictive and could adversely affect the generics industry and/or traditional medicine, because the tenets of IMPACT are obscure, and therefore has confused the issue of low-quality drugs with the issue of counterfeit products.  The concern of developing countries and health groups is that the supply of legitimate and good-quality generic medicines may be threatened because they may be confused with counterfeit products.

This development of new initiatives on the enforcement of IPR will continue in these international organizations and perhaps emerge in others. The IP-enforcement proposals in the WCO (SECURE), the WHO (SECURE), and the UPU (Resolution 40) were planned by the developed countries, and developing countries have had to fight a defensive battle against these.  The same situation could also evolve in UNESCO, with the implementation of the Global Anti-Piracy Observatory. These proposals are TRIPS-plus in that they oblige developing countries to take on obligations beyond the already high standards in TRIPS.

Give priority to development

Organizations such as WIPO, UPU, WHO and UNESCO that are part of the UN system should prioritize the UN’s development principles and not seek to undertake controversial IP enforcement activities.

At the WTO, emphasis should be placed on Article 7 of the TRIPS Agreement on the objective that "the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and transfer and dissemination of technology to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare and the balance of rights and obligations.”

WIPO has agreed to establish a Development Agenda. Its recommendation number 45 says WIPO should    "consider the enforcement of IPR from the perspective of the general interests of society and the objectives of encouraging the development ... "

These are principles that should guide the framework for the enforcement of IPRs. Developing countries should also be pro-active in advocating their issues, especially "biopiracy". Addressing biopiracy is an overdue demand of developing countries rich in biodiversity. It is unacceptable that the issue of misappropriation of and adequate protection of genetic resources, associated traditional knowledge and traditional cultural expressions are so inadequately addressed at the international level, while developed countries seek to increase the enforcement of IPRs.

The definition of biopiracy has not yet been agreed at international level. This concept is used when discussing the protection of biological resources against their illegal exploitation, ownership and sale, without the consent of the State or owner of those resources, and the misuse of traditional knowledge related to these biological resources. The issue of biopiracy is as legitimate as the issues of counterfeiting and piracy.

Principle of Sovereignty

The actions of States in the international community are founded on the principles of equal rights and sovereign equality. However, these principles are violated when countries promote rigid standards of IPR enforcement without the democratic participation of developing countries, whose priorities include reducing poverty and promoting socio-economic development.

The enforcement of IPRs should be understood in the context of the right to development which should not be compromised .  Promoting IPRs should not be an end in itself but must be translated into a tool for development. Enforcement of IPR should be treated in a way that does not contradict but complement development.

To achieve this, discussions must take place in a transparent and democratic way in the appropriate forums and within the context of development.

This opinion article is by Luis Vayas Valdivieso, who is a diplomat at the Mission of Ecuador to the United Nations in Geneva.