Intellectual property
Promoting Access to Medical Technologies and Innovation, 2nd edition
Intersections between public health, intellectual property and trade - Updated extract: integrated health, trade and IP approach to respond to the COVID-19 pandemic, 30 August 2021
Updated extract: integrated health, trade and IP approach to respond to the COVID-19 pandemic, 30 August 2021. The coronavirus disease 2019 (COVID-19) pandemic constitutes an extraordinary global public health crisis. It has created a pressing need for intensified global cooperation. The pandemic has from its outset raised issues at the crossroads of public health policy, trade policy and the framework for and management of innovation, including those relating to intellectual property rights. The second edition of the joint WHO, WIPO and WTO publication “Promoting Access to Medical Technologies and Innovation: Intersections between public health, intellectual property and trade”, published in 2020, included a special insert mapping the challenges posed by the COVID-19 pandemic in relation to the integrated health, trade and IP policy framework set out in the study. This update revises the information contained in that insert in the light of more recent developments as of 30 August 2021.
COVID-19 technologies: international initiatives to support R&D and equitable access
Since the start of the COVID-19 pandemic, myriad public and private actors have launched collaborative global efforts to develop treatments, vaccines and diagnostics with the aim of guaranteeing equitable access to those technologies. Many such efforts strive to address R&D and access needs simultaneously. Collaborative efforts include substantial investments in product development partnerships (PDPs) to support the non-commercial development of vaccines and large multi-stakeholder R&D initiatives.
Ensuring transparency
Transparency and the availability of up-to-date information on measures taken by governments are of critical importance and cut across both legal and policy areas addressed in the Trilateral Study.
Policy challenges posed by the pandemic
The COVID-19 pandemic has generated sudden, farreaching impacts on health systems, with significant social and economic repercussions around the world. The International Monetary Fund (IMF) Chief warned that, while there has been strong economic growth in wealthy countries, developing countries are being held back by slow vaccination rates, and that this is a: “[...] danger for the coherence of growth and it is also a danger for global stability and security.” World Bank data indicate that the pandemic has resulted in a steep increase in debt, especially in emerging markets and developing economies. Statistical briefs published by the UN Committee for the Coordination of Statistical Activities analysing the social and economic impact of the pandemic suggest that 71 to 100 million people are being pushed into extreme poverty by the pandemic.
Intellectual Property and Digital Trade Mapping International Regulatory Responses to Emerging Issues
This paper explores how regulatory responses to emerging IP issues in digital trade may develop at the international level and in particular how existing mechanisms might influence the chances of developing internationally agreed rules in this regard. The primacy of state sovereignty in intellectual property up to the late 19th century gave way to the important WIPO treaties, which still retained some independence of member states and based international regulatory responses directly on national experience. While more regulatory sovereignty was ceded in TRIPS, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, the adoption of non-binding instruments (such as the WIPO Joint Recommendations in the area of trademarks) show the limits of decision making by consensus.
The Shifting Contours of Trade in Knowledge
This paper charts the evolution and diversification of trade in knowledge that has taken place in the quarter-century since the WTO TRIPS Agreement came into force. Entirely new markets have come into being, potentially redefining the very character of 'trade'.
Copyright and related rights
Part II of the TRIPS Agreement sets out the substantive standards for the protection of IP that WTO members should follow. This chapter outlines the provisions of Section 1 of Part II (running from Article 9 to Article 14), which sets out the protection that members must make available in the area of copyright and related rights – specifically, for literary and artistic works, performances, phonograms (or sound recordings) and broadcasts.
Current TRIPS issues
This chapter provides a general overview of the ongoing work in the TRIPS Council and other WTO bodies on other aspects of TRIPS and public policy as of the time of writing, focusing on the issues, which have been the most prominent
Patents
This chapter explains the provisions of Section 5 of Part II of the TRIPS Agreement entitled ‘Patents’. Section 5, which contains eight articles, from Article 27 to Article 34, sets out the obligations of members with respect to standards concerning the availability, scope and use of patents. Starting with a general explanation of terms, this chapter goes on to explain each specific provision in this Section of the TRIPS Agreement.
Preface
At the heart of the World Trade Organization (WTO) is a set of rules that regulate trade between nations: a body of agreements which have been negotiated and signed by governments of most of the world’s trading nations, with the aim of promoting transparency, predictability and nondiscrimination in trading relations. These agreements, covering trade in goods, trade in services and trade-related aspects of intellectual property rights, help to define and inform the multiple roles of the WTO as an international, intergovernmental organization, in administering the provisions of these agreements, providing a forum for trade negotiations, handling trade disputes, monitoring national trade policies, providing technical assistance and capacity building for developing countries, and cooperating with other international organizations. Understanding these agreements and their practical, policy and legal contexts therefore provides significant insights into the WTO as an institution, its activities and international role, its partnerships with other organizations, and the way in which WTO member governments identify and pursue their national interests through this intergovernmental forum.
Trademarks
This chapter explains the provisions of Section 2 of Part II of the TRIPS Agreement entitled ‘Trademarks’. This Section contains seven articles, from Article 15 to Article 21, and deals with the protection that members have to make available for trademarks.
TRIPS and public health
Public health has been one of the most extensively discussed aspects of the TRIPS Agreement, both in terms of the treaty text itself and its implementation at the domestic level. Its significance is borne out by a proclamation at the ministerial level, the 2001 Doha Declaration on the TRIPS Agreement and Public Health (Doha Declaration), and by the ensuing amendment of the Agreement itself, the first amendment of any WTO multilateral trade agreement, undertaken specifically to provide the most vulnerable countries with an additional secure legal pathway to gain access to affordable generic medicines.
Guide to transparency under TRIPS
This Appendix provides a practical guide to the transparency mechanisms established under the TRIPS Agreement concerning how countries choose to implement provisions of the Agreement. These mechanisms help the TRIPS Council to monitor the operation of the Agreement and to promote understanding of members’ intellectual property (IP) policies and legal systems. This Appendix focuses only on the practical use of these mechanisms: the relevant chapters of this book should be consulted for their full background and context.
Dispute prevention and settlement
Chapters II to VIII have dealt with members’ commitments as regards the substantive standards for protection of IPRs under domestic laws, as well as their enforcement through their domestic legal systems. An important feature of the TRIPS Agreement is that disputes between members about compliance by member governments with these TRIPS obligations are subject to the dispute settlement system of the WTO. The TRIPS provisions on dispute settlement are contained in Part V of the TRIPS Agreement entitled ‘Dispute Prevention and Settlement’.
Guide to TRIPS documents
The TRIPS Agreement includes a set of transparency mechanisms, which require members to furnish extensive information about their IP laws and policies, and details about how IPRs are administered and enforced in their territories; these laws are also reviewed in detail in the TRIPS Council. In addition, the TRIPS Council has itself established a series of reporting processes concerning specific aspects of members’ IP systems. The operation of these transparency mechanisms in the years since 1995 has yielded a uniquely comprehensive and systematic body of information that now covers some 130 jurisdictions (essentially all WTO members other than LDC members, for whom these provisions do not yet apply).
Acknowledgements
Preparation of the Handbook was a collective endeavour by the WTO Intellectual Property, Government Procurement and Competition Division, drawing on years of practical feedback from technical assistance and training programmes prepared and delivered by the Division, in particular the material prepared for the first version of the TRIPS module of WTO eTraining. The former director of the Division, Mr Adrian Otten, substantively reviewed and enhanced earlier versions of this material.
Introduction to the TRIPS Agreement
This chapter provides an overview of the TRIPS Agreement. It first explains the historical and legal background of the Agreement and its place in the World Trade Organization (WTO). It then turns to the general provisions and basic principles, as well as other provisions and institutional arrangements, that apply to all the categories of intellectual property rights (IPRs) covered by TRIPS. Chapters II to VIII then discuss each of these categories, their essential principles, and their administration and enforcement, in more detail.
Geographical indications
This chapter explains the provisions of Section 3 of Part II of the TRIPS Agreement entitled ‘Geographical Indications’. A geographical indication (GI) is defined in the TRIPS Agreement as an indication which identifies a good as originating in the territory of a member, or a regional locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin. Typical examples would be ‘Cognac’ for a brandy coming from that region of France and ‘Darjeeling’ for tea coming from that region of India.