This issue of the South Bulletin reports on the meeting between the South Centre’s Chairman, Mr. Benjamin Mkapa, and China’s President, Mr. Xi JinPing, held in Tanzania.

Mr. Mkapa explained the work and priorities of the Centre and President Xi praised the efforts of the Centre in promoting South-South cooperation and in increasing the representation of the Centre, and said China would continue to provide help to the Centre.

The IP Negotiations Monitor summarizes the latest developments in multilateral and regional fora where intellectual property negotiations are taking place, and informs on upcoming meetings and events.

(Covering period August–December 2012)

The South Centre is pleased to respond to the call for specialist submissions by the Commission on how can the law be used to scale up effective HIV responses and how can the law be a 'game-changer'. In this submission we explain how intellectual property law and its implementation in national legislation may affect public health and access to medicines, including effective HIV responses.

This issue of South Bulletin focuses on the emerging crisis of investment treaties. An epidemic of international legal suits taken by companies against governments for billions of dollars is causing public concern and leading to reviews of international investment treaties.

Research Paper 45, June 2012

The new research paper discusses on contexts and recent negotiations in Technology Transfer, Sustainable Development and Climate Change. In terms of proprietary rights, the author categories technologies and related products into three domains: the Public Technologies; Patented Technologies and Future Technologies. After revealing the Effects of Patents on Access to Climate-Related Technologies, a number of measures are discussed to address problems arising should patents become a barrier to the transfer of climate related technologies.

May 2012

The IP Negotiations Monitor summarizes the latest developments in multilateral and regional fora where intellectual property negotiations are taking place, and informs on upcoming meetings and events.

(Covering period January-March 2012) 

Policy Brief 8, April 2012

The current incentive-based model of pharmaceutical R&D has failed to make needed medicines available to a large number of people, especially those living in developing countries. This Policy Brief recognizes the urgent need of shifting from the incentive-based model of R&D to a model that effectively promotes not only innovation but more importantly access to medicines, particularly for diseases that disproportionately affect developing countries.

Research Paper 43, March 2012

This paper examines possible modalities of collaboration for research and development (R&D), understood as comprehensive of scientific studies and of activities for the generation of new processes and products and the improvement of existing ones . It briefly discusses, first, the various sources of technology for adaptation to and mitigation of climate change. Second, the paper examines different elements relevant for fostering cooperation in R&D and the modalities that such cooperation may adopt, having in view experiences made in other areas of science and technology. Finally, an analysis of the cooperative model used to promote the development and diffusion of seeds in the ‘green revolution’ is presented, with the aim of exploring its possible applicability to the case of environmentally sound technologies.

This issue of the South Bulletin has two major main issues: The Durban Climate Conference, and the WTO's 8th Ministerial Conference, both held in December 2011.

The Durban conference has given rise to a new round of climate change negotiations, which will start in 2012 and is scheduled to end in 2015. This decision was made after intense negotiations lasting several days and during a dramatic night of plenary sessions marked by passionate speeches. Though the decision was made to launch new talks leading to a legal protocol or "an agreed outcome with legal force", the terms of reference of the new round will be decided next year, when the differences among countries can be expected to continue.

At the WTO's Ministerial Conference in Geneva, there was (in contrast to Durban) a calm and relaxed atmosphere. But there were also many issues that divided the countries, mainly on North-South lines. The South Bulletin provides preliminary analyses of these two major events.

Policy Brief, November 2011

The Declaration on the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and Public Health was adopted on 14 November 2001 by the 4th World Trade Organization (WTO) Ministerial Meeting at Doha, Qatar. The declaration was made by the highest decision-making body of the WTO, with the aim of promoting a balanced interpretation and implementation of the provisions of the TRIPS Agreement in a manner that is supportive of a WTO Member’s right to protect public health and promote access to medicines for all.

Analytical Notes, June 2011

1)  Key Overview Paper: Present Situation of the WTO Doha Talks and Comments on the 21 April 2011 Documents

WTO released on 21 April 2011, a 600-page package providing an overview of the last 10 years of Doha negotiations. This paper is an analysis of this overall package. Although Doha started as a “Development Agenda” with a pledge that developing countries’ interests would be at the centre, ironically there is hardly any development content left in the Doha elements. The agricultural deal has side-stepped the major issue of subsidies by developed countries. Special and Differential Treatment (S&D) for developing countries such as the Special Safeguard Mechanism (SSM) is practically inoperable and ineffective. There are no results in cotton. In NAMA, the packaged is imbalanced and problematic in terms of the shrinking of developing countries’ policy space to carry out much needed industrialisation. The services report puts a ‘necessity test’ back in as an option in the domestic regulation negotiations. Key areas of interest to developing countries have been sidelined – Article XXIV; S&D and Implementation issues.

The new South has a cover story on why developing countries should also be eligible for compensation by transnational companies responsible for environmental disasters. The recent $20 bil fund set up by BP for the oil spill in the Gulf of Mexico should be a model for companies to compensate for disasters such as in Bhopal, the Ecuadorian Amazon and the Niger Delta.

The Bulletin also focuses on ACTA (Anti-Counterfeiting Trade Agreement), a TRIPS-Plus treaty being negotiated by 11 members that would be harmful to health and consumer interests and to developing countries. The Bulletin analyses ACTA and carries statements by India, China and Brazil at the WTO on why TRIPS-Plus enforcement is harmful.

Other articles make comments on the austerity policies of developed countries, and on why a climate deal needs to be based on equity in “carbon space”

Analytical Note, August 2009

This Analytical Note examines flexibilities in the Agreement on Trade-Related Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) and possible technology transfer approaches under the UN Framework Convention on Climate Change (UNFCCC) as among the possible modalities that developing countries can use to obtain access to and affect transfers of climate-relevant technologies. It looks at the possibilities and challenges that need to be addressed in this regard.

South Centre Research Paper 22,  July 2009

This paper examines the scope of policy space available to integrate economic, social and environmental concerns under the World Trade Organization’s (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). By comparing the amount of discretion available for domestic public interest measures in two other core areas of WTO regulation, i.e. trade in goods and services, the paper concludes that the notion of general exceptions under the General Agreement on Tariffs and Trade (GATT) and under the General Agreement on Trade in Services (GATS) finds no equivalence in TRIPS.

South Centre Research Paper 19 - December 2008

The objective of this research paper is to extract lessons from the negotiation process of SECURE, an initiative to promote TRIPS-plus-plus standards on IP enforcement at the WCO, and assist developing countries in addressing the emerging global challenges in IP enforcement initiatives. Although the proponents of SECURE had adopted a fast-track approach for its speedy conclusion, effective coordination among developing countries foiled the attempt to adopt the SECURE draft at the June 2008 WCO Council and led to the suspension of the SECURE Working Group at the WCO Policy Commission in Argentina in December 2008.

This Issue reflects upon the recent financial crisis in the US which threatens the global economy. The Editorial by Dr. Yash Tandon, Executive Director of the South Centre is on “Global Financial Meltdown and Lessons for the South”. The Op-Ed is on "Rebalancing the TRIPS Agreement and Strengthening Enforcement for Development" by Ambassador Sun Zhenyu, Permanent Representative of China to the WTO in Geneva.

Analysis and commentaries appearing in the Bulletin, include on Global Challenges 2008 and the Group of 77, Citizen Mobilisation Needed to Prevent Financial Crisis Impacts, South American Unity Taking Shape, Climate Change under Neo-liberal Capitalism and Trade Liberalisation Fails to Improve Africa's Export Performance.

Policy Brief 11 October 2007 

Executive Summary

The discussion on TRIPS and CBD in the WTO demonstrates the growing convergence on content, scope, relevance and effectiveness of an international mandatory obligation on disclosure of source and country providing biological resources and traditional knowledge. Remaining divergences focus on the substantive and procedural functions of the disclosure requirement and in particular, the legal consequences on the processing, granting and validity of a patent. The availability of discretionary power for national administrative and judicial authorities to revoke a patent for non-compliance with the disclosure requirement would be important in the absence of an alternative effective mechanism for its enforcement.

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T.R.A.D.E. Research Papers 8 August 2006

The proliferation of investment and intellectual property (IP) agreements recently has been accompanied by an increasing number and expanded scope of investment disputes. The agreements give rise to various issues that particularly affect developing countries. One of the issues that has recently started to influence the negotiations for new investment agreements involves the question of the status of IP rights and the impact of investment agreements on the rights, obligations and regulatory discretions of countries under the Agreement on Trade-Related Aspect of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO).

IP rights validly acquired in accordance with the domestic law can constitute investment. Domestic law determines the scope, content and form of IP rights that have the characteristics of investment. However, the definition of investment assets under the investment agreements may result in a higher standard of IP protection when it specifically includes, for example, encrypted programcarrying satellite signals, under an investment agreement involving a country that has not adopted similar rights under its domestic law or by ratifying multilateral instruments that protect similar rights. The protection of IP rights under investment agreements gives rise to a TRIPS-plus impact on developing countries in the determination of the scope, the availability and validity of IP rights that constitute investment assets. The investment standards also protect for the activities associated of investment including the acquisition, protection and enforcement of IP rights. In addition, the investment agreements protect undisclosed data and other information submitted for investment and other approval purpose.

The determination of the extent to which countries can take TRIPS-consistent measures to protect public interest and regulatory measures like competition policy, compulsory license, and technology transfer faces additional layers of standards under investment agreements. These include adherence to due process and transparency requirements, adoption and implementation of the measures in good faith and that do not involve arbitrary and unjustifiable discrimination or disguised restriction on investment, and consistency with specific requirements under the TRIPS or the IP section of the agreements, as in the case of the U.S. Free Trade Agreements (FTAs). These additional standards open the possibility of challenging the consistency of the measures and the application of the standards of compensation under the investment agreements.

The extent of the impact of investment agreements on the flexibilities and obligations of developing countries under the TRIPS Agreement varies depending on the language of each agreement. However, one general observation of investment agreements is that they leave government measures open for challenge by utilising the mechanisms for the settlement of investment disputes. In the absence of a clear exclusion of IP disputes from the scope of an investment dispute settlement, arbitration tribunals should give considerable weight to the existence of effective settlement mechanisms, with specialized expertise, and legal procedures for IP rights. IP issues have their own dimension, jurisprudence and political economy completely different from investments. Finally, the developing countries should adequately consider the provisions of investment agreements during negotiation and renewal of existing agreements in order to limit the protection of IP rights to the TRIPS and other agreements and their respective domestic laws.

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South Centre Analytical Note May 2005

In an era characterised by the proliferation of forums for norm-setting in intellectual property (IP) and a growing understanding by developing countries of the implications of IP rules on their socio-economic and cultural development, the North- South investment agreements are increasingly being used as additional and/or alternative route for enhancing and expanding the protection and enforcement of IP. The investment agreements are being used to protect and enforce IP by including IP rights, licenses and intangible property in the definition of ‘investment’ and ‘royalty’ payments related to the use of IP in the definition of ‘return’. In this context, investment agreements are being employed to promote stringent IP protection and enforcement, to sustain the expansion of the scope of coverage of IP and to undermine the flexibilities available to developing countries under the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and other international IP agreements.

In order for developing countries to take appropriate action, it is imperative to examine the trends of IP protection under the investment agreements to identify the implications for the multilateral processes of norm-setting in IP, dispute settlement and determination of the applicable law, protection of biodiversity, traditional knowledge and folklore, implementation of policies for technology transfer, education, public health, public moral and other policies for sustainable development. In this analytical note we examine, in particular, the implication of the emerging approaches relating to the fair and equitable treatment and the national and mostfavoured nation (MFN) treatment in investment agreements for the overall regimes for the protection and enforcement of IP in developing countries.

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T.R.A.D.E. Occasional Papers 3 December 2000

Introduction 

1. This paper provides some reflections on the review of the TRIPS Agreement required under Article 71.1. It notes the need for a full review of the Agreement from a development standpoint, in line with the decision of WTO Members at the General Council Meeting of 7 February 2000, which provides that “The General Council also agreed that mandated reviews should address the impact of the agreements concerned on the trade and development prospects of developing countries.”1 It suggests that the review should carefully examine the impact of implementing the TRIPS Agreement on developing countries, and should acknowledge that intellectual property protection is not an objective in itself and should thus be viewed in the context of the trade and development conditions in these countries.

2. In Section II, the paper commences with a discussion of the scope of the review. Section III explores a number of issues that have been identified by developing countries as relevant to the Article 71.1 review. It begins by examining the TRIPS Agreement’s objectives and principles, including the need to maintain a balance of rights and obligations. It then identifies the importance to WTO Members of gaining experience about the potential impacts of implementing the Agreement on the transfer and dissemination of technology, competitive markets, and the capacity of Members to maintain a balance of rights and obligations by establishing exceptions to the rights of, and applying obligations to, title-holders. The Section concludes by suggesting that Members should extend the moratorium on the application to the Agreement of the non-violation remedy, and explore the possibility of bringing the Agreement into line with other WTO Agreements by inserting general exceptions to ensure that, in the event of conflict, intellectual property rights are not given preeminence over other important national policy goals.

3. The discussion in this paper is not intended to provide a comprehensive overview of these subjects, but rather to provide a useful starting point for developing countries when considering how to approach the Article 71.1 review.

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