THE past two weeks have been very hectic as I attended two important meetings in South Africa and Canada that dealt with topical issues to do with the global architecture of the Intellectual Property System.
In Pretoria, the World Intellectual Property Organisation (WIPO) and the World Trade Organisation (WTO) convened the first Colloquium for teachers and researchers of Intellectual Property in Africa. The Pretoria colloquium was critical as it analysed the intercession between intellectual property and the impact of global trade policies administered by the WTO and their impact on African economies and sustainable development.
The intellectual property (IP) system is a tool of public policy: generally it is intended to promote economic, social and cultural progress by stimulating creative work and technological innovation.
The World Trade Organisation (WTO) is the legal and institutional foundation for the administration and development of trade relations among its 157 members, (Zimbabwe is a member) at the multi-lateral level. It aims to provide fair and stable conditions for the conduct of international trade with a view to encouraging trade and investment that raises living standards worldwide. It is important to point out that the WTO administers the Trade Related Aspects of Intellectual Policy Agreement (TRIPS) that came into force in 1995. The agreement is administered by the Council for TRIPS, which reports to the WTO General Council.
The TRIPS Agreement is a comprehensive multi-lateral agreement on intellectual property. It deals with each of the main categories of intellectual property rights, establishes standards of protection as well as rules on administration and enforcement of intellectual property rights, and provides for the application of the WTO dispute settlement mechanism to resolve disputes between members concerning compliance with its standards.
The TRIPS Agreement sets these standards firstly by requiring compliance with the substantive obligations of the main conventions of the World Intellectual Property Organisation (WIPO), the Paris Convention and the Berne Convention in their most recent versions.
With the exception of the provisions of the Berne Convention on moral rights, all the main substantive provisions of these two conventions are incorporated by reference and thus become obligations between WTO members under the TRIPS Agreement, separately from the obligations they mostly have to one another directly under those conventions.
The relationship between intellectual property systems and economic, social and cultural development has been a cross-cutting question, analysed and debated throughout the United Nations system, and other inter-governmental and regional organisations. These discussions frequently consider the provisions, role and implications of the TRIPS Agreement, with specific focus on the situation of developing countries and least developed countries in particular.
The development implications of the TRIPS Agreement have been considered extensively in many forums within WIPO since the agreement came into force in 1995.
In 2007, the General Assembly of WIPO adopted 45 recommendations relating to the WIPO Development Agenda and these included among others that WIPO and the WTO, WIPO shall make available advice to developing countries and LDCs, on the implementation and operation of the rights and obligations contained in the TRIPS Agreement, as well as on the understanding and use of flexibilities.
To approach intellectual property enforcement in the context of broader societal interests especially development-oriented concerns, with a view that “the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the 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 to a balance of rights and obligations”, in accordance with Article 7 of the TRIPS Agreement.
The United Nations Conference on Trade and Development (UNCTAD) has also undertaken a wide range of policy analysis and technical co-operation in relation to the TRIPS Agreement and development issues. Its programme on technical co-operation aims at improving understanding of the development implications of the TRIPS Agreement and strengthening the analytical and negotiating capacity of developing countries so that they are better able to participate in IPRs-related negotiations in an informed fashion in furtherance of their sustainable development objectives.
Other elements of the United Nations system have worked extensively on the TRIPS Agreement — these include the United Nations Development Programme (UNDP) and the United Nations Department of Economic and Social Affairs (UNDESA).
Intellectual property and competition policy
There are several fora where the application of competition policy provisions in the area of IP is discussed — these include WIPO, UNCTAD and the WTO; the interplay between competition policy and the IP system is one element of the WIPO Development Agenda.
At the level of individual WTO Members, the application of competition law vis-à-vis intellectual property has, in many cases, been the subject of relevant guidelines in addition to enforcement proceedings and/or policy discussion and debate. It should, nonetheless, be emphasised that approaches to these issues vary across WTO members and, indeed, are by no means settled in all jurisdictions. Within the WTO, a number of members have reported on their national experiences in relation to the Working Group on the Interaction between Trade and Competition Policy (WGTCP).
TRIPS and environmental agreements
The provisions of the TRIPS Agreement, especially those concerning patents and plant variety rights, have been considered in a number of multi-lateral environmental forums and by the United Nations Environment Programme (UNEP) as the United Nations system’s designated entity for addressing environmental issues at the global and regional level.
Two specific clusters of issues concerning TRIPS and environmental agreements have received particular attention: Policy discussions concerning the Convention on Biological Diversity (CBD) have considered the TRIPS Agreement in the context of two sets of issues in particular.
First, the intellectual property issues relating to the CBD’s principles of prior informed consent and equitable sharing of benefits from the use of genetic resources and associated traditional knowledge, within its work programme on access and benefit sharing (a work programme, which also led, in October 2010, to the conclusion of the Nagoya Protocol) and, secondly, the role of incentives and other technology transfer mechanisms in relation to provisions of the CBD dealing with access to and transfer of technologies that are relevant to the conservation and sustainable use of biological diversity or that make use of genetic resources and do not cause significant damage to the environment, as part of a CBD cross-cutting programme on technology transfer and cooperation.
The development, diffusion and transfer of technology relating to climate change mitigation and adaptation has been a key issue in multi-lateral work on climate change since the conclusion of the United Nations Framework Convention on Climate Change (UNFCCC) in 1992.
More recent negotiations under the UNFCCC have paid attention to the role of and impact of intellectual property, and the patent system especially, in relation to innovation and diffusion of technology relevant to climate change mitigation and adaptation. Policy discussions concerning climate change have therefore included consideration of TRIPS provisions on the scope of patentable subject matter, flexibilities such as compulsory licensing, and mechanisms for technology transfer.
-Aleck Ncube is an intellectual property scholar based in Bulawayo. He can be contacted for feedback on +263712374408 Skype: Matintas1 Twitter: @aleckncube Alternative E-mail: [email protected]