Abstract
The linkage between trade and intellectual property rights has long been at the center of controversy since the Agreement on Trade-Related Aspects of Intellectual Property Rights was negotiated and became one of agreements annexed to the Agreement Establishing the World Trade Organization. WTO members have fiercely debated over how to protect indigenous cultural heritage, including biodiversity, traditional knowledge, or traditional cultural expression since the TRIPS Council initiated the review of Article 27.3(b) of the TRIPS Agreement. Despite so, many countries attempt to address this issue through free trade agreements by incorporating relevant provisions in IPR chapter in which goes beyond the TRIPS Agreement requires. While these so-called “WTO-Extra” or “WTO-Plus” provisions seemingly aim to protect indigenous cultural heritage, they are facing plenty of challenges or obstacles to be fully implemented by constituent parties to the FTAs. This chapter will firstly examine these provisions in recent free trade agreements and explore if there are any different approaches taken by Northern or Southern countries in addressing the issue of protecting cultural heritage in their FTAs. This chapter will then discuss potential legal problems surrounding these provisions including the application or interpretation of most-favored-nation clause, the highest international standard provision, and/or disclosure requirement over the origin of traditional knowledge, etc. After a brief analysis of current challenges faced in most bilateral or regional FTAs, this chapter tries to argue that plurilateral trade arrangement like the Trans-Pacific Partnership (TPP) Agreement may be a better opportunity to secure more effective protection of indigenous cultural heritage in the Asia-Pacific region.
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Notes
- 1.
Issues over the review of Article 27.3(b), see generally, Tansey G (1999).
- 2.
Pursuant to Article 2 of CBD , “biological diversity ” has been referred to “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.”
- 3.
Traditional knowledge which can also be called “traditional environmental or ecological knowledge” has been defined as “a body of knowledge and beliefs transmitted through oral tradition and first-hand observation. It includes a system of classification, a set of empirical observations about the local environment, and a system of self-management that governs resource use” (Johnson 1999, pp. 3–4).
- 4.
The focus of this chapter is the biodiversity-related provisions in free trade agreements, those bilateral or regional trade arrangement that involves more than trade in goods or services. The FTAs have been also called the Preferential Trade Agreements or Regional Integration Agreements. Moreover, bilateral arrangements may include bilateral investment treaties (BITs) or intellectual property rights agreements which may be related to the issue to be discussed in this chapter. However, the main focus of this chapter is on broader trade agreements.
- 5.
See generally GRAIN in cooperation with SANFEC, “ TRIPS-plus ” Through The Back Door: How Bilateral Treaties Impose Much Stronger Rules For IPRs On Life Than The WTO (July 2001), http://www.grain.org/briefings_files/trips-plus-en.pdf. Accessed 2 April 2016 [hereinafter “TRIPS -plus” Through The Back Door]. GRAIN in collaboration with Dr. Silvia Rodriguez Cervantes, FTAS: Trading Away Traditional Knowledge: Traditional Knowledge in Increasingly Popping Up in Bilateral and Regional Free Trade Agreements. What’s Going On? (March 2006), http://www.grain.org/briefings_files/fta-tk-03-2006-en.pdf. Accessed 2 April 2016. [hereinafter FTAS: Trading Away Traditional Knowledge].
- 6.
Patent and plant variety protection are the main IPRs to be discussed in this chapter. The protection of folklore is not covered for it mainly involved with the protection of copyright.
- 7.
Relevant TRIPS-plus provisions on biodiversity can be referred at GRAIN, Bilateral agreements imposing TRIPS-plus intellectual property rights on biodiversity in developing countries (2008).
- 8.
See David Vivas-Eugui, Regional and Bilateral Agreements and a TRIPS -plus World: the Free Trade Area of the America (FTAA). TRIPS Issues Paper 1, p.4 (2003), http://www.quno.org/geneva/pdf/economic/Issues/FTAs-TRIPS -plus-English.pdf. Accessed 2 April 2016.
- 9.
In this chapter, North-South FTAs refer to those concluded between developed and developing countries , while South-South FTAs refer to those concluded between developing countries . For North-South FTAs, this chapter focuses on those where the US, EU, or Japan is one of the constituent parties. Unless clearly identified, the North-North FTA is not covered in this chapter since most of the standards for IPR protection are similar to those required under North-South FTAs.
- 10.
North-South FTAs include: EFTA-Colombia FTA , US-Central American States (and Dominican Republic) FTA (CAFTA ), US-Panama TPA , US-Peru TPA , New Zealand-Thailand Closer Economic Partnership Agreement, Cotonou Partnership Agreement , US-Bahrain FTA, US-Chile FTA , US-Jordan FTA , US-Morocco FTA, and Trans-Pacific Strategic Economic Partnership Agreement (between Brunei Darussalam, Chile, New Zealand and Singapore); South-South FTAs include: Panama-Taiwan FTA , Nicaragua-Taiwan FTA, Economic Cooperation Organization Trade Agreement (ECOTA ), etc.
- 11.
For example, US-Jordan FTA , US-Morocco FTA.
- 12.
Article 16.7.1 of US-Singapore FTA.
- 13.
Article 15.8.2(b) of the US-Oman FTA provides: “Each Party may exclude from patentability: (b) animals other than micro-organisms, and essentially biological processes for the production of animals other than non-biological and microbial processes.”
- 14.
Article 15.9.2 of the US-Panama TPA.
- 15.
Article 16.9.2 of the US-Peru TPA.
- 16.
US-DR-CAFTA Article 15.9.2 provides: “Nothing in this Chapter shall be construed to prevent a Party from excluding inventions from patentability as set out in Articles 27.2 and 27.3 of the TRIPS Agreement. Notwithstanding the foregoing, any Party that does not provide patent protection for plants by the date of entry into force of this Agreement shall undertake all reasonable efforts to make such patent protection available. Any Party that provides patent protection for plants or animals on or after the date of entry into force of this Agreement shall maintain such protection.”
- 17.
US-DR-CAFTA Article 15.9.2
- 18.
- 19.
Article 46.5 of Cotonou Agreement provides: “For the purpose of this Agreement, intellectual property includes in particular … patents including patents for bio-technological inventions and plant varieties or other effective sui generis systems ….”
- 20.
Article 46.1 of Cotonou Agreement provides: “Without prejudice to the positions of the Parties in multilateral negotiations, the Parties recognize the need to ensure an adequate and effective level of protection of intellectual, industrial and commercial property rights , and other rights covered by TRIPS ….”
- 21.
See “TRIPS -plus” through the back door, at p. 2.
- 22.
See id. at p. 3.
- 23.
For those FTAs concluded with the US, a footnote has been added to clarify the intentions of constituent parties. Most developing countries expressed their concerns that by acceding to the UPOV , the local breeders or farmers may not be able to conduct farming in a traditional manner. To ease the concern, it has been recognized that “the UPOV Convention 1991 contains exceptions to the breeder’s right, including for acts done privately and for non-commercial purposes, such as private and non-commercial acts of farmers.” Moreover, the UPOV Convention 1991 “provides for restrictions to the exercise of a breeder’s right for reasons of public interest, provided that the Parties take all measures necessary to ensure that the breeder receives equitable remuneration.” And each party may avail itself of these exceptions and restrictions. Nonetheless, such language provided in the footnote cannot be overstated as developing countries have been constrained the possibility by committing to accede to the UPOV let alone the parties understand that “there is no conflict between the UPOV Convention 1991 and a Party’s ability to protect and conserve its genetic resources .”
- 24.
The US-Australia Free Trade Agreement: Report of the Industry Functional Advisory Committee on Intellectual Property Rights for Trade Policy Matter (IFAC-3), at p. 13, Washington DC, (12 March 2004), https://ustr.gov/archive/assets/Trade_Agreements/Bilateral/Australia_FTA/Reports/asset_upload_file813_3398.pdf Accessed 7 April 2016
- 25.
See Jean-Frederic Morin, The Future of Patentability in International Law according to the CAFTA , Centre International Uniosfera Internal Centre, pp. 3–4 (March 2004), http://www.bilaterals.org/IMG/pdf/Morin_-_TRIPS _CAFTA _-_March_2004.pdf Accessed 2 April 2016.
- 26.
See id.
- 27.
See CAFTA Article 15.9.9: “Each Party shall provide that a disclosure of a claimed invention shall be considered to be if it provides information that allows the invention to be made and used by a person skilled in the art, without undue experimentation, as of the filing date.” Article 15.9.10: “Each Party shall provide that a claimed invention is sufficiently supported by its disclosure if the disclosure reasonably conveys to a person skilled in the art that the applicant was in possession of the claimed invention as of the filing date.” Similar provisions can also be found in the US-Peru TPA Article 16.9.9 (Each Party shall provide that a disclosure of a claimed invention shall be considered to be sufficiently clear and complete if it provides information that allows the invention to be carried out by a person skilled in the art, without undue experimentation, as of the filing date and may require the applicant to indicate the best mode for carrying out the invention known to the inventor as of the filing date.) and 16.9.10 (With the aim of ensuring that the claimed invention is sufficiently described, each Party shall provide that a claimed invention is sufficiently supported by its disclosure if the disclosure reasonably conveys to a person skilled in the art that the applicant was in possession of the claimed invention as of the filing date.).
- 28.
See FTAS: Trading Away Traditional Knowledge, at pp. 6–7.
- 29.
See id., at pp. 2–4. The study also finds that current patterns have different directions depending whether the U.S. is one of the parties to the FTA.
- 30.
EFTA members include Liechtenstein, Iceland, Norway, and Switzerland. The first EFTA FTA with a developing country was the Agreement with Morocco in 1997 and the latest the one with Colombia in 2008. See Chronology of EFTA’s Free Trade Agreements, Declarations on Co-operation and Exploratory Talks, http://www.efta.int/content/free-trade/efta-chronology/chron.pdf. Accessed 2 April 2016.
- 31.
See Vivas-Eugui (2009), p. 2.
- 32.
Article 6.5 of EFTA-Colombia FTA.
- 33.
See Vivas-Eugui (2009), p. 11. The Taiwan-Nicaragua FTA has similar provisions.
- 34.
On protection of folklore, Article 16.06 provides: “Each Party shall ensure the effective protection of all folklore expressions and manifestations and of artistic manifestations of the traditional and popular culture of the indigenous and local communities.”
- 35.
Article 16.05.2 of Taiwan-Panama FTA.
- 36.
Article 16.05.2 of Taiwan-Panama FTA.
- 37.
Article 16.07 of Taiwan-Panama FTA
- 38.
The members of the ECOTA include the Transitional Islamic State of Afghanistan, the Republic of Azerbaijan, the Islamic Republic of Iran, the Republic of Kazakhstan, the Kyrgyz Republic, the Islamic Republic of Pakistan, the Republic of Tajikistan, the Republic of Turkey, Turkmenistan, and the Republic of Uzbekistan.
- 39.
The members of the BIMSTEC include Bangladesh, Bhutan, Burma, India, Nepal, Sri Lanka, and Thailand.
- 40.
The members of the SAASRC include Afghanistan, Bangladesh, India, Maldives, Nepal, Pakistan, and Sri Lanka.
- 41.
Article 19.2 of the ECOTA provides “For the purpose of the Agreement, protection of “intellectual property rights ” includes in particular … patents, plant varieties as well as traditional knowledge ….” Article 19.4 provides that “[t]he Contracting Parties shall co-operate in matters of intellectual property rights . They shall hold, upon request of any Contracting Party, expert consultations on these matters, in particular on activities relating to the existing or to future international conventions on harmonization , administration and enforcement of intellectual property and on activities in international organizations, such as WTO and WIPO , as well as relations of the Contracting Parties with third countries on matters concerning intellectual property .”
- 42.
Article 12.5 (Other Cooperation) of New Zealand-Thailand FTA provides: “1. Recognizing that intellectual property rights can facilitate international trade through the dissemination of ideas, technology and creative works, the Parties, through their respective agencies responsible for intellectual property , shall: (d) cooperate to enhance understanding in new areas of intellectual property such as traditional knowledge , genetic resources , and folklore, recognizing that each Party may wish, consistent with its obligations under the WTO Agreement, to establish appropriate measures to protect traditional knowledge , genetic resources and folklore.” Those new areas of IP are referred to those “in the World Intellectual Property Organization Inter-Governmental Committee on Traditional Knowledge, Genetic Resources and Folklore.”
- 43.
Brunei Darussalam, Chile, New Zealand, and Singapore are parties to the P4 Agreement. According to Article 10.3.3 of the P4 Agreement, the parties affirm that “they may … (d) establish appropriate measures to protect traditional knowledge .”
- 44.
According to Article 10.1 of P4 Agreement, TK is not included as one of the IPRs . TK has been referred to in another provision entitled “General Provisions,” which may indicate that it is up to the party to decide specific ways of TK protection.
- 45.
Based on the elements for a section on IPRs , Article 11.1 shall comply with “Article 2 through 9 of the Budapest Treaty (1977, amended in 1980) and Article 12.1 provides that “[t]he Parties shall comply with the UPOV (Act of 1991).” With respect to PVP , a provision has been put to protect farmer’s right to “save, use and/or exchange protected farm-saved seed or propagating material” and the parties shall have the right to provide for exceptions to exclusive rights provided under the UPOV . However, these exceptions have to be “subject to national law” and “in line with the applicable international rules.”
- 46.
Article 13.2 of CARIFORUM-EC EPA.
- 47.
Article 13.3 of CARIFORUM-EC EPA.
- 48.
Article 13.4 of CARIFORUM-EC EPA.
- 49.
Article 23 of the Cotonou Agreement.
- 50.
Exempted from the MFN obligation are any advantage, favor, privilege, or immunity accorded by a member: “(a) deriving from international agreements on judicial assistance and law enforcement of a general nature and not particularly confined to the protection of intellectual property ; (b) granted in accordance with the provisions of the Berne Convention (1971) or the Rome Convention authorizing that the treatment accorded be a function not of national treatment but of the treatment accorded in another country; (c) in respect of the rights of performers, producers of phonograms and broadcasting organizations not provided under this Agreement; (d) deriving from international agreements related to the protection of intellectual property which entered into force prior to the entry into force of the Agreement Establishing the WTO , provided that such agreements are notified to the Council for TRIPS and do not constitute an arbitrary or unjustifiable discrimination against nationals of other Members.”
- 51.
See Vivas-Eugui (2003), pp.5–6.
- 52.
Appellate Body Report, United States — Section 211 Omnibus Appropriations Act of 1998, WT/DS176/AB/R, para. 335 (2 January 2002)
- 53.
See Carlos M. Correa, Bilateral Investment Agreements: Agents of new global standards for the protection of intellectual property rights ?, GRAIN, p. 20, (August 2004), http://ictsd.net/downloads/2008/08/correa-bits-august-2004.pdf. Accessed 2 April 2016.
- 54.
A similar question related to this argument is whether the disclosure requirement is consistent with the TRIPS Agreement especially the rules for patents. It has been argued that the disclosure requirement is not inconsistent with the TRIPS Agreement for it is not an additional requirement of patentability and not discriminate in the enjoyment of patent rights. See Carlos M. Correa, The Politics and Practicalities of a Disclosure of Origin Obligation, Occasional Paper 16. Quaker United Nations Office, pp. 5–6 (January 2005), http://www.quno.org/geneva/pdf/economic/Occassional/Politics-of-Dec-of-Origin.pdf. Accessed 2 April 2016.
- 55.
TRIPS Article 29 (Conditions on Patent Applicants) provides: “Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application” (para. 1).
- 56.
See US-Australia FTA, article 17.9.11 and 17.9.12.
- 57.
In the Understanding signed on 12 April 2006, the USA and Peru recognize “the importance of TK and biodiversity, as well as the potential contribution of TK and biodiversity to cultural, economic, and social development.” They also recognize (1) the importance of “obtaining informed consent from the appropriate authority prior to accessing genetic resources under the control of such authority; (2) equitably sharing the benefits arising from the use of TK and genetic resources ; and (3) promoting quality patent examination to ensure the conditions of patentability are satisfied.” While these recognitions address the concern from Peru, it goes on to recognize that “access to genetic resources or traditional knowledge , as well as the equitable sharing of benefits that may result from use of those resources or that knowledge, can be adequately addressed through contracts that reflect mutually agreed terms between users and providers.” Finally, in order to prevent bad quality patents, they “shall endeavor to seek ways to share information that may have a bearing on the patentability of inventions based on traditional knowledge or genetic resources by providing: (a) publicly accessible databases that contain relevant information; and (b) an opportunity to cite, in writing, to the appropriate examining authority prior art that may have a bearing on patentability.”
- 58.
With respect to the side letter signed on 28 June 2007 between the USA and Panama, both parties also recognize “the importance of traditional knowledge and folklore to its people.” Therefore, they “will seek to work together in consulting on issues and positions in the World Intellectual Property Organization Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore in addressing matters related to traditional knowledge and folklore.” It is noteworthy that “if the United States and another government sign a free trade agreement that contains provisions addressing traditional knowledge or folklore, the United States and Panama shall promptly consult after that agreement enters into force on whether to apply similar provisions, as appropriate , between the United States and Panama.”
- 59.
It has been argued that it is “an important achievement” to include such side letter on biodiversity even if the text contains no obligation per se. See Manuel Ruiz, The Not-So-Bad US-Peru Side Letter on Biodiversity, Bridges. ICTSD, p.18 (February 2006), http://www.iprsonline.org/resources/docs/Pages%20from%20BRIDGES10-1%202.pdf. Accessed 2 April 2016.
- 60.
See FTAS: Trading Away Traditional Knowledge, at p. 10.
- 61.
Article 15.9.6 of the US-Panama TPA.
- 62.
Taiwan and Panama signed the FTA on 21 August 2003, and it entered into force on 1 January 2004. The USA and Panama signed a TPA on June 28, 2007. Panama approved the TPA on July 11, 2007, whereas the USA has not yet approved the TPA.
- 63.
Article 18.16 of the TPP Agreement provides: “1. The Parties recognise the relevance of intellectual property systems and traditional knowledge associated with genetic resources to each other, when that traditional knowledge is related to those intellectual property systems. 2. The Parties shall endeavour to cooperate through their respective agencies responsible for intellectual property , or other relevant institutions, to enhance the understanding of issues connected with traditional knowledge associated with genetic resources , and genetic resources . 3. The Parties shall endeavour to pursue quality patent examination, which may include: (a) that in determining prior art, relevant publicly available documented information related to traditional knowledge associated with genetic resources may be taken into account; (b) an opportunity for third parties to cite, in writing, to the competent examining authority prior art disclosures that may have a bearing on patentability, including prior art disclosures related to traditional knowledge associated with genetic resources ; (c) if applicable and appropriate , the use of databases or digital libraries containing traditional knowledge associated with genetic resources ; and (d) cooperation in the training of patent examiners in the examination of patent applications related to traditional knowledge associated with genetic resources .”
- 64.
Article 20.13 of the TPP Agreement provides: “1. The Parties recognise the importance of conservation and sustainable use of biological diversity and their key role in achieving sustainable development. 2. Accordingly, each Party shall promote and encourage the conservation and sustainable use of biological diversity , in accordance with its law or policy. 3. The Parties recognise the importance of respecting, preserving and maintaining knowledge and practices of indigenous and local communities embodying traditional lifestyles that contribute to the conservation and sustainable use of biological diversity . 4. The Parties recognise the importance of facilitating access to genetic resources within their respective national jurisdictions, consistent with each Party’s international obligations. The Parties further recognise that some Parties require, through national measures, prior informed consent to access such genetic resources in accordance with national measures and, where such access is granted, the establishment of mutually agreed terms, including with respect to sharing of benefits from the use of such genetic resources , between users and providers. 5. The Parties also recognise the importance of public participation and consultation, in accordance with their respective law or policy, in the development and implementation of measures concerning the conservation and sustainable use of biological diversity . Each Party shall make publicly available information about its programmes and activities, including cooperative programmes, related to the conservation and sustainable use of biological diversity . 6. Consistent with Article 20.12 (Cooperation Frameworks), the Parties shall cooperate to address matters of mutual interest. Cooperation may include, but is not limited to, exchanging information and experiences in areas related to: (a) the conservation and sustainable use of biological diversity ; (b) the protection and maintenance of ecosystems and ecosystem services; and (c) access to genetic resources and the sharing of benefits arising from their utilisation.”
- 65.
See Fighting FTAs: An International Strategy Workshop, Organized by FTA Watch with bilateral.org, GRAIN and Medecins Sans Frontieres, Bangkok, Thailand 27–29 July 2006, Summary Report, p1 (September 2006), http://www.bilaterals.org/IMG/pdf/Fighting-FTAs-summary-report.pdf. Accessed 2 April 2016.
- 66.
See Aaron Cosbey et al., The Rush to Regionalism: Sustainable Development and Regional/Bilateral Approaches to Trade and Investment Liberalization. International Institute for Sustainable Development (IISD) and International Development Research Centre (IDRC), pp. 21–25 (2005), http://www.iisd.org/pdf/2005/trade_rush_region.pdf. Accessed 2 April 2016.
- 67.
John H. Barton, The Future of The Intellectual Property System And Consequent Negotiation Topics, in Views on The Future of The Intellectual Property System. ICTSD Programme on IPRs and Sustainable Development, International Centre for Trade and Sustainable Development, p. 15 (June 2007), http://www.iprsonline.org/ictsd/docs/Views%20Future%20IP%20System.pdf Accessed 2 April 2016
- 68.
Other potential problems have been identified when applying the principle of reciprocity to the protection of TK and a multilateral solution is preferred to bilateral or regional one for the interest of developing countries . See generally Srinivas (2008). This chapter tries to find a possible bilateral or regional solution based on a moderate approach in reconciling the interests of the North and the South.
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Yang, PK. (2016). Protection of Indigenous Cultural Heritage in Free Trade Agreements: Issues and Challenges from a North-South Perspective. In: Lo, Cf., Li, N., Lin, Ty. (eds) Legal Thoughts between the East and the West in the Multilevel Legal Order. Economics, Law, and Institutions in Asia Pacific. Springer, Singapore. https://doi.org/10.1007/978-981-10-1995-1_19
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