Introducing ‘Principles for Intellectual Property provisions in Bilateral and Regional agreements’

I intend to introduce you all to the write-up ‘Principles for Intellectual Property provisions in bilateral and regional agreements’ (“Principles”) released by Max Planck Institute available here. The Principles recommends international rules and procedures that can achieve a better, mutually advantageous and balanced regulation of international IP. The Principles is open for signature [here] for anyone who shares the objectives.

The Principles is divided into two parts: Part One – Observations and Considerations and Part Two – Recommendations.

Part One – Observations and Considerations

I. IP as a Trade-off in Bilateral and Regional Agreements

The write-up notes that bilateral and regional agreements contain provisions on the protection and enforcement of IP which are more extensive than the multilateral standards contained in the Paris and Berne Conventions as well as the WTO TRIPS Agreement. The continuous extension of IP protection and enforcement increases the potential for law and policy conflicts with other rules of international law that aim to protect public health, the environment, biological diversity, food security, access to knowledge and human rights. At the same time, such extension often counters, rather than facilitates, the core IP goal of promoting innovation and creativity.

The TRIPS Agreement can be understood to pursue a certain balance between certain ceilings and flexibilities. This balance forms part of the negotiated consensus of all WTO Members. It is reflected in the object and purpose of the Agreement, as embodied in Articles 7 and 8 TRIPS. These provisions guide the interpretation and implementation of the TRIPS Agreement.

II. Relevance of the Multilateral Framework

As a multilateral agreement, TRIPS establishes a framework that IP provisions in bilateral and regional agreements amongst WTO Members may not contravene. Based on the safeguards international law contains against inter semodification, IP standards in such agreements should not affect core TRIPS flexibilities, derogation from which is incompatible with the effective operation of the object and purpose of TRIPS, as embodied in its Articles 7 and 8.

III. Eroding Multilateral Policy Space

IP protection and enforcement rules in bilateral and regional agreements tend to erode the policy space inherent in the TRIPS Agreement. States bound by such rules are less able to tailor their IP laws to fit their domestic environment and to adapt them to changing circumstances. These trends also affect current and future multilateral initiatives in international IP law. Given the difficulty in amending or withdrawing from international treaties, agreeing to detailed IP obligations in bilateral and regional agreements has far-reaching consequences.

IV. Transparency, Inclusiveness and Equal Participation

The current process of negotiating bilateral and regional agreements frequently lacks transparency, inclusiveness and equal participation of stakeholders and the public. These deficits cannot be corrected by parliamentary ratification or implementation processes without a meaningful option to influence the treaty text or its implementation. 

Part Two – Recommendations

I. Negotiation Mandate and Strategy

Countries demanding additional IP protection are required to take international principles of development cooperation, the recommendations of the WIPO Development Agenda and the level of development of their negotiating partner into account and accordingly adjust their demands. The text of the negotiation mandate should be openly available to the public in the negotiating countries. There should be a meaningful opportunity to raise concerns and influence the negotiation process.

II. Negotiation Process

The negotiations should be conducted in an open and transparent manner. They should allow for participation by all stakeholders in the negotiating countries that are potentially affected by the agreement in an open and nondiscriminatory manner. In particular, right-holder and industry groups should not enjoy preferential treatment over other stakeholders.

All stakeholders from the negotiating countries should have meaningful and equal opportunities to comment on draft texts. Publicly elected bodies that have to approve a final text should be consulted during the negotiating process. Each negotiating country should evaluate, for example in the form of impact assessments, the IP demands they face in terms of their implications for public interests, the realization of human rights, and the financial burdens and implementation costs they entail.

No country should demand or agree to any IP provision that has not been subject to a public negotiation process in which a full range of stakeholders has had the opportunity to review and comment on the wording of the provision.

III. Negotiated Outcome

If parties agree on IP provisions containing stronger protection or enforcement obligations, these provisions should nevertheless be sufficiently flexible to take into account the socio-economic situation and needs of both parties. The negotiated outcome should respect all international obligations of the parties, in particular those relating to the protection of human rights, biological diversity, the environment, food security and public health. It should allow countries to adopt exceptions and limitations necessary for giving effect to such concerns. The negotiated outcome should not undermine the ability of WTO Members to rely on the public-interest-related flexibilities in the TRIPS Agreement, including those mentioned in the Doha Declaration on TRIPS and Public Health.

IP obligations in bilateral and regional agreements should allow for appropriate transition periods and include a review clause whereby the impact of their implementation is comprehensively assessed. These assessments should focus on the effect on all stakeholders and take their comments into account. Bilateral and regional agreements should include an option for re-negotiating IP provisions in light of an impact assessment.

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Mathews P. George

Mathews is a graduate of National University of Juridical Sciences, Kolkata. His interest in intellectual property was kindled when he bagged the second position in his second year of Law School (in the prestigious Nani Palkhiwala Essay Competition on Intellectual Property). His stint as a student of Prof. Shamnad Basheer further accentuated his interest in intellectual property. Winner of almost a dozen essay competitions in his Law School days, he was involved in various research and policy initiatives relating to intellectual property. Mathews is, currently, based out of Munich, Germany. He had earlier done his LLM in 'IP and Competition Law' from Munich Intellectual Property Law Centre (jointly run by Max Plank Institute for Innovation and Competition, University of Augsburg, Technical University of Munich and George Washington University, Washington).

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