Intellectual Property Programme

Intellectual Property In The FTAA: Little Opportunity And Much Risk

by MARIA JULIA OLIVA

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Intellectual property is heralded by some as the “foundation of human existence,2” protecting invention and innovation while improving standards of life through choices for consumers and new outlets for human activity.3 Others see intellectual property rights (“IPRs”) as merely a government sanctioned monopoly and subsidy that puts territorial borders around technologies and other inventions so that firms can maximize their profits.4 Charged with analyzing whether and how IPRs could play a role in reducing poverty and hunger, improving health and education, and ensuring environmental sustainability, the Commission on Intellectual Property Rights established by the UK government (“IPR Commission”) concluded that the value of intellectual property protection for society varies according to factors such as the economic and social circumstances in which it is applied.5 In other words, in order for intellectual property to act as an effective instrument of sustainable development, countries must design their regimes according to their particular needs and conditions.

Attempts to adapt IPRs to their national requirements, however, now face hurdles set by international intellectual property rules. Multilateral intellectual property agreements establish standards of protection that must be implemented at the national levels and thus delineate and circumscribe countries’ prerogatives in the field of intellectual property. The Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”), for instance, establishes minimum standards of intellectual property protection that all World Trade Organization (“WTO”) Members will eventually have to comply with.6 These increased standards of protection present many challenges to developing countries attempting to fulfill them while adopting policies to achieve economic and social development. These facts notwithstanding, the TRIPS Agreement does contain some flexibilities which may allow countries to overcome some of the obstacles that high intellectual property standards may present to their sustainable development.

Other intellectual property rules currently being developed, though, may erode these flexibilities. Particularly worrisome are those rules being agreed upon through bilateral negotiations. Both the United States and the European Union, for example, are pursuing an increasing number of bilateral trade and investment negotiations that often include intellectual property. 7 These negotiations have resulted in agreements that take intellectual property protection standards beyond the levels established at the multilateral sphere and seriously threaten countries’ room to tailor intellectual property to correspond to their public policy objectives.

What role does the Free Trade Area of the Americas (“FTAA”) play in this context? Can this regional trade agreement counter the wave of higher IPRs standards generated through bilateralism? Can developing countries use their numerical advantage in the FTAA negotiations to include issues fundamental to sustainable development, traditional knowledge, for instance, that have still not been resolved by the WTO or the World Intellectual Property Organization (“WIPO”)? Or, is the FTAA merely another stepping stone to higher intellectual property standards that primarily benefit developed countries that are home to the producers of knowledge and owners of IPRs?

This article asserts that the FTAA presents more of a risk than an opportunity for intellectual property to act as a tool for sustainable development. It analyzes some of the intellectual property provisions in the draft Chapter on IPRs that exemplify the loss of countries’ ability to take measures indispensable to ensure IPRs do not negatively affect key areas to sustainable development. In addition, it looks at the uncertain possibilities of the FTAA having positive outcomes for development, such as precluding bilateral negotiations.

Specifically, section I will provide background on the nature of IPRs, the process of international intellectual property standard-setting, and the challenges it presents to sustainable development. Section II will focus on the inclusion of intellectual property in the FTAA analyzing some of the potential opportunities and risks of the draft Chapter on IPRs. Finally, this article will conclude by highlighting the reasons why the draft Chapter on IPRs poses more problems than possibilities for sustainable development.