Abstract
This paper addresses four interrelated topics: the exportation of intellectual property (IP) standards, the impact on resources and welfare of new IP undertakings, the relationship between IP chapters contained in new trade agreements and the Agreement on Trade Related Aspects of Intellectual Property Rights and, finally, the flexibility existing in the area of IP enforcement. A feature that the European Union, the United Sates and the European Free Trade Association share when concluding free trade agreements is their willingness to export their respective IP legal orders. The exportation of European and North American standards can be a source of positive inspiration when interpreting the negotiated texts. Taking into account the ambivalent consequences of new IP enforcement rules on developing countries’ welfare, and the fact that these norms arise from very different legal traditions, the paper shows that avenues to adapt IP norms on enforcement to national contexts and human rights compromises exist.
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Notes
- 1.
“FTA” will be used synonymously with economic partnership agreement (EPA), a term that will also be used.
- 2.
Section 2102 of the US Bipartisan Trade Promotion Authority Act of 2002 states that “The principal negotiating objectives of the United States regarding trade-related intellectual property are … ensuring that the provisions of any multilateral or bilateral trade agreement governing intellectual property rights that is entered into by the United States reflect a standard of protection similar to that found in United States law”. The EU Strategy for the enforcement of IP rights in third countries envisages “to make the enforcement clauses in future bilateral or bi-regional agreements more operational and to clearly define what the EU regards as the highest international standards in this area and what kind of efforts it expects from its trading partners”; specifically, the “EU Directive harmonising the enforcement of IPR within the Community, as well as the new customs’ Regulation on counterfeit and pirated goods may constitute an important source of inspiration and a useful benchmark” (http://trade.ec.europa.eu/doclib/docs/2005/april/tradoc_122636.pdf, p. 6).
- 3.
The Commission on Intellectual Property Rights stated in 2002 that “Developing countries – and in particular poor consumers of products which may be protected by IP rights – negotiate from a position of relative weakness. There is a fundamental asymmetry in relationships between developed and developing countries, based ultimately on their relative economic strength”. Commission on Intellectual Property Rights (2002), p. 7.
- 4.
The asymmetry refers not only to the negotiation phase, but also to implementation. Section 101 of the implementation bill of the US-Central America-Dominican Republic Free Trade Agreement (US-CAFTA-DR) establishes the conditions for entry into force of the Agreement: “At such time as the President determines that countries … have taken measures necessary to comply with the provisions of the Agreement that are to take effect on the date on which the Agreement enters into force with respect to those countries that provide for the Agreement to enter into force for them” (emphasis added).
- 5.
Article 140 of the agreement between the EU and the CARIFORUM alludes to this particular status, recalling the situation of Haiti.
- 6.
Trade Agreement between the European Union and its Member States, of the one part, and Colombia and Peru, of the other part, OJ L 21.12.2012, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:354:0003:2607:EN:PDF (accessed March 2013).
- 7.
See, in detail, the different national traditions that influenced EU Directive 2004/48 in Heath and Petit (2008).
- 8.
Article 14 of Decisión 486, Régimen Común de Propiedad Industrial, 2000. Available at www.comunidadandina.org/normativa/dec/D486.htm. Accessed October 2011.
- 9.
See Article 16.9.1 of the Colombia-United States FTA. Available at www.ustr.gov/trade-agreements/free-trade-agreements/colombia-fta/final-text. Accessed October 2011.
- 10.
Instructivo Examen de Solicitudes de Patente de Invención y Modelo de Utilidad, Memorando 12-2282-1-1, 8 February 2012, adopted by Jefe de la Oficina Asesora de Planeación de la Superintendencia de Industria y Comercio.
- 11.
According to the OECD positive effects can be expected in the following fields: “(i) general socioeconomic effects (on innovation and growth, criminal activities, environment, employment, foreign direct investment, and trade), (ii) effects on rights’ holders (on sales volume and prices, brand value and firm reputation, royalties, firm-level investment, costs and the scope of operations), (iii) effects on consumers (health and safety risks and consumer utility) and (iv) effects on government (tax revenues, expenditures and corruption)”. OECD (2007), p. 6.
- 12.
See for instance Li (2009), p. 75.
- 13.
C Fink has however reflected on the intricacies and the often forgotten aspects of IP enforcement costs and benefits. Fink (2010).
- 14.
When the TRIPS Agreement was adopted some international organizations developed programs to assist the implementation of the treaty. The activities financed had to do with institutional enhancement, personnel training and legislative reform, thus pertaining to the area of IP enforcement. The budget of these programs is helpful to partially approach the total quantity a country had to invest in order to implement the enforcement section of the treaty. See Finger and Schuler (1999).
- 15.
Seuba et al. (2010), p. 14.
- 16.
The July 2011 agreement between the EU and India seems to acknowledge the arguments of free trade promoters and defenders of fundamental principles of IP rights, including the territorial principle. According to this agreement, and following the European Court of Justice jurisprudence on the matter, only the existence of a real and manifest risk of diversion into the EU internal market will trigger the EU courts’ jurisdiction over patented goods in transit.
- 17.
Article 234.4 of the treaty between Colombia, Peru and the EU states that “This Chapter does not create for the Parties … any obligation with respect to the distribution of resources for the enforcement of intellectual property rights and for the enforcement of law in general”.
- 18.
Article 139.2 of the CARIFORUM treaty establishes that “enforcement of intellectual property rights should take account of the development needs of the CARIFORUM States”.
- 19.
See European Union-Korea Article 10.67.1, OJ L127, 15.5.2011, p. 6.
- 20.
In the Corfu Channel case the International Court of Justice held: “It would indeed be incompatible with the generally accepted rules of interpretation to admit that a provision of this sort occurring in a Special Agreement should be devoid of purport or effect”. Judgment of 9 April 1949: I.C.J. Reports, 1949, p. 24.
- 21.
Article 299 of the Trade Agreement between the European Union and its Member States and Colombia and Peru, in http://trade.ec.europa.eu/doclib/docs/2011/march/tradoc_147704.pdf (accessed March 2013).
- 22.
Chappell v. United Kingdom, Series A No 152; Application No 10461/83 European Court of Human Rights (1990) 12 EHRR 1 30 March 1989, p. 21.
- 23.
Olsson judgment of 24 March 1988 [Series A no. 130, p. 30, para 61 (b)].
- 24.
Human Rights Committee (2007), para 13 (emphasis added).
References
Commission on Intellectual Property Rights (2002) Integrating intellectual property rights and development policy. London
Finger JM, Schuler P (1999) Implementation of the Uruguay round commitments: the development challenge. World Bank Development Research Group, Policy Research, Working Paper No. 2215
Fink C (2010) Enforcing intellectual property rights: an economic perspective. ICTSD, Issue Paper No. 22
Heath C, Petit L (eds) (2008) Patent enforcement worldwide. Writings in Honour of Dieter Stauder, 2nd edn. Hart, Oxford
Human Rights Committee (2007) General Comment No. 32, Right to equality before courts and tribunals and to a fair trial, CCPR/C/GC/32
Li X (2009) WCO secure: legal and economic assessments of the TRIPS-plus-plus IP enforcement. In: Li X, Correa C (eds) Intellectual property enforcement. International perspectives. Edward Elgar, Cheltenham
OECD (2007) The economic impact of counterfeiting and piracy. www.oecd.org/dataoecd/13/12/38707619.pdf. Accessed Oct 2011
Seuba X (2013) Checks and balances in the intellectual property enforcement field: reconstructing EU trade agreements. In: Geiger C (ed) Constructing European intellectual property: achievements and new perspectives. Edward Elgar, Cheltenham
Seuba X, Rovira J, Bloemen S (2010) Welfare Implications of Intellectual Property Enforcement Measures. American University Washington College of Law, PIJIP Research Paper Series, 9-1-2010. http://digitalcommons.wcl.american.edu/research/5/. Accessed Oct 2011
Acknowledgments
This research is funded by the Knowledge and Economy Department of the Catalan Government in the context of the COFUND Program of the EU Marie Curie Actions of the Seventh Framework Program. I thank Henning Grosse Ruse-Kahn for his comments. All errors remain mine.
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Seuba, X. (2014). Implementation Issues Arising from Intellectual Property Chapters Contained in Trade Agreements Between the EU and Developing Countries. In: Drexl, J., Grosse Ruse - Khan, H., Nadde-Phlix, S. (eds) EU Bilateral Trade Agreements and Intellectual Property: For Better or Worse?. MPI Studies on Intellectual Property and Competition Law, vol 20. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-39097-5_14
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