Intellectual property
An Integrated Health, Trade and IP Approach to Respond to the COVID-19 Pandemic
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 the last version launched in October 2021 in the light of more recent developments as of 17 May 2023.
Trade in Knowledge
Technological change has transformed the ways knowledge is developed and shared internationally. Accordingly in the quarter-century since the WTO was established and since its Agreement on Trade-Related Aspects of Intellectual Property Rights came into force both the knowledge dimension of trade and the functioning of the IP system have been radically transformed. The need to understand and respond to this change has placed knowledge at the centre of policy debates about economic and social development. Recognizing the need for modern analytical tools to support policymakers and analysts this publication draws together contributions from a diverse range of scholars and analysts. Together they offer a fresh understanding of what it means to trade in knowledge in today’s technological and commercial environment. The publication offers insights into the prospects for knowledge-based development and ideas for updated systems of governance that promote the creation and sharing of the benefits of knowledge.
Competition policy and intellectual property in today's global economy
The fast-evolving relationship between the promotion of welfare-enhancing competition and the balanced protection of intellectual property (IP) rights has attracted the attention of policymakers analysts and scholars. This interest is inevitable in an environment that lays ever greater emphasis on the management of knowledge and innovation and on mechanisms to ensure that the public derives the expected social and economic benefits from this innovation and the spread of knowledge. This book looks at the positive linkage between IP and competition in jurisdictions around the world surveying developments and policy issues from an international and comparative perspective. It includes analysis of key doctrinal and policy issues by leading academics and practitioners from around the globe and a cutting-edge survey of related developments across both developed and developing economies. It also situates current policy developments at the national level in the context of multilateral developments at WIPO WTO and elsewhere.
A dramatic impact on health systems and responses at the global level
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 trade intellectual property (IP) policy and the framework for and management of innovation and access including issues related to technology transfer.
Intellectual property aspects
The global IP system provides an incentive framework in which urgently needed innovation in relation to COVID-19 can be encouraged. It covers the stages from invention to supply of a product or service. The impact of patents on access is complex and an area of particular focus. Other IP rights including trade secrets are also being discussed. IP policy and the administration and enforcement of IP laws aim to balance and accommodate a range of interests in a way that promotes overall public welfare. A wide range of policy options and flexibilities are built into the international IP regime and can be used to promote access to health products and other public health objectives.
The way forward
The COVID-19 pandemic has placed immense pressure on health systems and trade systems around the world. The urgent search for technologies that may help to control the pandemic has mobilized unprecedented research efforts and investments. It has given rise to new models of working. Rapid and efficient innovation is needed more than ever and global equitable access to new technologies is of paramount importance. Adequate management of IP is central to achieving these goals.
Introduction
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” (the Trilateral Study) 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. The Trilateral Study and the special insert were designed to serve as background reference for policy-makers in the widest sense – lawmakers government officials delegates to international organizations non-governmental organizations (NGOs) and researchers who seek a comprehensive presentation of the full range of issues including institutions and legal concepts with which they may be unfamiliar. It is also designed to serve as a factual resource for the three organizations’ technical cooperation activities.
Preserving effective international trade
While low- and middle-income countries face particular challenges caused by the global scarcity of key health technologies the vast majority of countries are net importers of all categories of health technologies including those needed to address COVID-19.
Regulatory responses
Regulatory assessment and approval of health technologies are essential in every health system to ensure product quality safety and efficacy. An effective COVID-19 treatment has not yet been found. Clinical trials are ongoing for new treatments as well as for repurposed medicines. “Compassionate use” of medicines (i.e. their clinical use before approval) is taking place in specific cases.
Meeting the demand for health technologies and medical services
The pandemic continues to trigger a massive global demand for vaccines as well as for existing health technologies to respond to COVID-19 including diagnostics medicines ventilators and other medical devices and consumables used in hospitals such as personal protective equipment (PPE). This has put pressure on public procurement systems and led to shortages and other supply and access challenges for certain products in developed and developing countries. WHO provides information about the global response such as R&D landscapes regulatory approval status and the manufacturing and distribution of vaccines.
Promoting Access to Medical Technologies and Innovation, 2nd edition
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.
Undisclosed information, unfair competition and anti-competitive practices
This chapter deals with the provisions of the TRIPS Agreement that set out standards for protection of undisclosed information including test data (Article 39 of Section 7 in Part II of the Agreement) and measures for the control of anti-competitive practices in licences (Article 40 of Part II of the TRIPS Agreement). It also deals with the suppression of unfair competition a matter which is specifically referred to in Articles 22 (relating to protection of geographical indications) and 39 (relating to protection of undisclosed information) and also arises through the reference in Article 2 of the TRIPS Agreement to the Paris Convention: Article 10bis of that convention sets out general standards for the suppression of unfair competition. As for all sections of Part II these sections have to be read together with the relevant provisions of pre-existing treaties in the area of international IP law which are incorporated by reference into the TRIPS Agreement. Reference will be made to these treaties in the sections below. This chapter will also have to be read in conjunction with other relevant provisions of the TRIPS Agreement explained in other chapters (such as concerning non-discrimination enforcement of IP rights and the administration of IP). Wherever appropriate cross-references are made to other chapters.
Industrial designs and layout-designs of integrated circuits
This chapter deals with the provisions of the TRIPS Agreement that set out standards for protection of industrial designs (Articles 25 and 26 in Section 4 of Part II of the Agreement) and protection of layout-designs or topographies of integrated circuits (Articles 35 to 38 in Section 6 of Part II). As for all sections of Part II these sections have to be read together with the relevant provisions of pre-existing treaties in the area of international IP law which are incorporated by reference into the TRIPS Agreement. Reference will be made to these treaties in the sections below. This chapter will also have to be read in conjunction with other relevant provisions of the TRIPS Agreement that are explained in other chapters (such as those concerning non-discrimination enforcement of IP rights and the administration of IP). Wherever appropriate cross-references are made to other chapters.
Enforcement
The purpose of this chapter is to introduce the key features of the provisions of Part III Sections 1 to 5 of the TRIPS Agreement entitled ‘Enforcement of Intellectual Property Rights’. This Part of the Agreement elaborates in 21 articles the enforcement procedures that members have to make available to permit prompt and effective action against infringements of IPRs covered by the TRIPS Agreement.
A Handbook on the WTO TRIPS Agreement
This Handbook describes the historical and legal background to the TRIPS Agreement its role in the WTO and its institutional framework. It reviews the following areas: general provisions and basic principles; copyright and related rights; trademarks; geographical indications; patents; industrial designs layout-designs undisclosed information and anti-competitive practices; enforcement of IPRs; dispute settlement in the context of the TRIPS Agreement; TRIPS and public health; and current TRIPS issues. It contains a guide to TRIPS notifications by WTO members and describes how to access the official documentation relating to the TRIPS Agreement and related issues. Furthermore it includes the legal texts of the TRIPS Agreement and the relevant provisions of the WIPO conventions referred to in it as well as subsequent relevant WTO instruments and related non-WTO treaties. The new edition covers the public health revision of the Agreement that entered into force in 2017 and provides updates on other recent developments.
Patent-Related Actions taken in WTO Members in Response to the COVID-19 Pandemic
COVID-19 caused by SARS-Cov-2 was declared to be a pandemic by the World Health Organization on 11 March 2020. Since then the issue of the relationship between patent protection and the development of and access to medical treatments and technologies – a longstanding and enduringly important public policy issue – has become central to the debate on the linkages between IP innovation access and public health between stakeholders with divergent interests.
The TRIPS Agreement and COVID-19
The WTO Secretariat has published a new information note about how the global intellectual property (IP) system relates to the COVID-19 pandemic and potential contributions it could make to efforts to address it. The note provides an overview of IP-related measures taken by WTO members and other stakeholders since the start of the crisis.
The policy context for action on innovation and access
This chapter outlines the policy framework for public health intellectual property (IP) international trade and competition focusing on how they intersect with particular emphasis on medical technologies. The framework comprises the human rights dimension of access to medicines; the policy economic and legal features of IP and innovation systems; regulation of medical products; competition policy; and relevant trade policy measures including import tariffs non-tariff measures rules on trade in services government procurement and regional and bilateral free trade agreements (FTAs). In addition it discusses the economics of innovation and access to medical technologies and outlines the interface between genetic resources traditional knowledge and traditional medicine IP and trade.
Medical technologies: the fundamentals
Against the background of the global burden of disease (GBD) and global health risks this chapter outlines the fundamental imperative for collaboration. It demonstrates the need for a coordinated approach taking into account health intellectual property (IP) and trade variables to ensure coherent decision-making in the area of public health at the international regional and domestic levels.
Executive summary
Public health is inherently a global challenge and thus assumes high priority for international cooperation. The World Health Organization (WHO) is the directing and coordinating authority for health but the interaction between health issues and other policy domains human rights development policy intellectual property (IP) and international trade creates a strong rationale for cooperation and coordination between the WHO and other international organizations in particular the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO). This study and its updated and reviewed second edition have emerged from an ongoing programme of trilateral cooperation among these agencies. It responds to an increasing demand particularly in developing countries for strengthened capacity for informed policy-making in areas of intersection between health trade and IP focusing on access to and innovation of medicines and other medical technologies. The need for cooperation and coherence at the international level has intensified over the past decades as successive multilateral decisions have confirmed.
An integrated health, trade and IP approach to respond to the COVID-19 pandemic
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 the management of innovation including those relating to intellectual property (IP) rights.
Medical technologies: the innovation dimension
Chapter II has described the main elements of the policy framework for innovation and access. This chapter considers how this policy framework applies to innovation in medical technologies. It reviews the factors that have spurred innovation in medical technologies in the past identifies how current models of R&D are evolving and charts the role of established and new participants in the innovation process including in the context of neglected diseases emerging pathogens with pandemic potential and antibacterial treatments. It also covers the role of IP particularly patents in the R&D system.
Medical technologies: the access dimension
Chapter III explained the role of intellectual property (IP) and other policy measures in health innovation; this chapter provides a detailed description of the access dimension and the concepts laws and policies underlying it as well as data on availability and access to health technologies and methodological approaches to their measurement. It also offers an overview of the main determinants of access related to health systems IP and trade policy.
Foreword
International cooperation on public health is inherently multi-dimensional with a focus on building effective health systems. It is dynamic and responsive to the demands of countries around the globe. Towards this goal the World Health Organization (WHO) the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO) have been working closely together for almost two decades to support global endeavours to improve health outcomes.
Promoting Access to Medical Technologies and Innovation, 2nd Edition
Medical technologies – medicines vaccines and medical devices – are essential for public health. Access to essential medicines and the lack of research to address neglected diseases have been a major concern for many years. To promote innovation and to ensure equitable access to all vital medical technologies policy-makers need a clear understanding of the innovation processes that lead to new technologies and of the ways in which these technologies are disseminated in health systems. This study seeks to reinforce the understanding of the interplay between the distinct policy domains of health trade and intellectual property and of how they affect medical innovation and access to medical technologies. This collaborative effort by the World Health Organization the World Intellectual Property Organization and the World Trade Organization draws together the three Secretariats’ respective areas of expertise. The study is intended to inform ongoing technical cooperation activities undertaken by the three organizations and to support policy discussions. It has been prepared to serve the needs of policy-makers as well as lawmakers government officials delegates to international organizations non-governmental organizations and researchers. The second edition comprehensively reviews the existing material and captures new developments in key areas since the initial launch of the study in 2013. Among the new topics covered by the study are antimicrobial resistance and cuttingedge health technologies. The second edition provides updated data on health innovation trends in the pharmaceutical sector and trade and tariffs. It includes an updated overview of access to medical technologies globally and key provisions in free trade agreements and takes account of developments in IP legislation and jurisprudence.
Acknowledgements
This publication is the product of extensive collaboration between the WHO WIPO and WTO Secretariats led by the Department of Public Health Innovation and Intellectual Property in the WHO the Global Challenges Division in WIPO and the Intellectual Property Government Procurement and Competition Division in the WTO.
Saudi Arabia, Kingdom of - Measures Concerning the Protection of Intellectual Property Rights
On 16 June 2020 the WTO circulated the panel report in the case brought by Qatar in “Saudi Arabia — Measures concerning the Protection of Intellectual Property Rights” (DS567).
Australia - Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging
On 9 June 2020 the Appellate Body issued its reports in the cases brought by Honduras and the Dominican Republic in “Australia — Certain Measures Concerning Trademarks Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging” (DS435 and DS441).
WIPO-WTO colloquium papers 2019
The WIPO-WTO Colloquium Papers is a peer-reviewed academic journal published jointly by the World Intellectual Property Organization and the World Trade Organization each year since 2010. Providing a uniquely representative and diverse showcase for emerging IP scholarship from across the globe the journal aims to stimulate analysis and debate on intellectual property (IP) issues particularly of interest to developing countries. And it offers an avenue for the dissemination of a broader and more geographically diverse and representative range of scholarship than is common in much of the academic literature on IP law and policy.
Product Patents and Access to Innovative Medicines in a Post-TRIPS era
This WTO working paper studies availability and affordability of new and innovative pharmaceuticals in a post-TRIPS era. The WTO’s TRIPS Agreement (TRIPS) makes it obligatory for WTO members– except least-developed country members (LDCs) - to provide pharmaceutical product patents with a 20-year protection term. Developing country members other than LDCs were meant to be compliant with this provision of TRIPS by 2005.
A world of opportunities and challenges
Research published by the European Parliament in 2017 claimed that Blockchain could “change our lives” (Boucher 2017). What the various blockchain applications that are being developed in areas as diverse as trade finance trade facilitation trade in services intellectual property and government procurement show is that Blockchain has the potential to impact both the traders and the government agencies involved in international trade significantly. Opportunities are multifaceted but will only be realized if several key challenges are addressed.
Conclusion
Research published by the European Parliament in 2017 claimed that Blockchain could “change our lives” (Boucher 2017). What the various blockchain applications that are being developed in areas as diverse as trade finance trade facilitation trade in services intellectual property and government procurement show is that Blockchain has the potential to impact both the traders and the government agencies involved in international trade significantly. Opportunities are multifaceted but will only be realized if several key challenges are addressed.
Introduction
The world is continually changing driven by technological innovations that affect the way we live and do business. The history of the world economy is intimately linked to technological progress. The invention of the steam engine mechanized production the discovery of electricity enabled mass production and the rise of the internet made it possible to coordinate various production stages at a distance leading to a fragmentation of production that gave rise to global value chains.
Acknowledgements
My sincere thanks go to my colleague Ms Kenza Le Mentec for her precious guidance. Kenza introduced me to the subject and provided invaluable inputs in particular for the technical sections describing the technology and the section on trade facilitation. This publication would not have been possible without her support.
Can blockchain revolutionize international trade?
Trade has always been shaped by technological innovation. In recent times a new technology Blockchain has been greeted by many as the next big game-changer. Can Blockchain revolutionize international trade? This publication seeks to demystify the Blockchain phenomenon by providing a basic explanation of the technology. It analyses the relevance of this technology for international trade by reviewing how it is currently used or can be used in the various areas covered by WTO rules. In doing so it provides an insight into the extent to which this technology could affect cross-border trade in goods and services and intellectual property rights. It discusses the potential of Blockchain for reducing trade costs and enhancing supply chain transparency as well as the opportunities it provides for small-scale producers and companies. Finally it reviews various challenges that must be addressed before the technology can be used on a wide scale and have a significant impact on international trade.
Can Blockchain revolutionize international trade?
The number of headlines claiming that Blockchain can revolutionize various areas of international trade from trade finance to customs procedures and intellectual property are legion. The transparent decentralized and immutable nature of Blockchain has sparked the interest of private actors – and governments – to explore the potential of this technology to enhance the efficiency of trade processes and a myriad of proofs of concepts and pilot projects using Blockchain have been developed in virtually all areas of international trade.
WIPO-WTO colloquium papers 2018
The WIPO-WTO Colloquium Papers is a peer-reviewed academic journal published jointly by the World Intellectual Property Organization and the World Trade Organization each year since 2010. Providing a uniquely representative and diverse showcase for emerging IP scholarship from across the globe the journal aims to stimulate analysis and debate on intellectual property (IP) issues particularly of interest to developing countries. And it offers an avenue for the dissemination of a broader and more geographically diverse and representative range of scholarship than is common in much of the academic literature on IP law and policy.
Australia - Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging
On 28 June 2018 the WTO circulated the panel report in the cases brought by Honduras the Dominican Republic Cuba and Indonesia in “Australia — Certain Measures Concerning Trademarks Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging.
Competition Agency Guidelines and Policy Initiatives Regarding the Application of Competition Law Vis-À-Vis Intellectual Property
Competition agency guidelines policy statements and related advocacy are an important vehicle for policy expression and the guidance of firms across the full spectrum of anti-competitive practices and market conduct.
Least-Developed Countries, Transfer of Technology and the Trips Agreement
This paper examines the background of Article 66.2 of the TRIPS Agreement the nature of this obligation on developed country Members that pertains to the promotion of technology transfer to LDC Members and how it is being implemented and how such implementation is being monitored in the TRIPS Council.
The Application of Competition Policy Vis-À-Vis Intellectual Property Rights
This paper examines the evolution of national competition (antitrust) policies and enforcement approaches vis-à-vis intellectual property rights (IPRs) and associated anti-competitive practices in major jurisdictions over the past several decades. It focuses especially on the underlying process of economic learning that has the authors suggest driven relevant policy changes.
WIPO-WTO colloquium papers 2017
The WIPO-WTO Colloquium Papers is a peer-reviewed academic journal published jointly by the World Intellectual Property Organization and the World Trade Organization each year since 2010. Providing a uniquely representative and diverse showcase for emerging IP scholarship from across the globe the journal aims to stimulate analysis and debate on intellectual property (IP) issues particularly of interest to developing countries. And it offers an avenue for the dissemination of a broader and more geographically diverse and representative range of scholarship than is common in much of the academic literature on IP law and policy.
Interplay Between Patents and Standards in the Information and Communication Technology (ICT) Sector and its Relevance to the Implementation of the WTO Agreements
The interplay between patents and standards in the information and communication technology (ICT) sector has been intensively debated at international regional and national levels over the past decades. In essence the debate is firstly about the extent and impact of patent holdup and holdout in the ICT sector and then about how to eliminate or reduce these practices.
WIPO-WTO colloquium papers 2016
The WIPO-WTO Colloquium Papers is a peer-reviewed academic journal published jointly by the World Intellectual Property Organization and the World Trade Organization each year since 2010. Providing a uniquely representative and diverse showcase for emerging IP scholarship from across the globe the journal aims to stimulate analysis and debate on intellectual property (IP) issues particularly of interest to developing countries. And it offers an avenue for the dissemination of a broader and more geographically diverse and representative range of scholarship than is common in much of the academic literature on IP law and policy.
Some memories of the unique TRIPS negotiations
The invitation to contribute to this book was certainly a pleasant surprise. The question for me was what I should write about: I had not been one of the negotiators and the chapter on the TRIPS negotiations from the perspective of the GATT Secretariat is dealt with by Adrian Otten who was the Secretary of the TRIPS Negotiating Group. Several suggestions were made by my co-authors and upon reflection I decided to contribute with just a short compilation of some memories in respect of a diverse set of aspects whether trade-related or not.
Why we managed to succeed in TRIPS
There have been many books and articles written about the TRIPS Agreement. Most go into great detail over the costs and benefits of the various provisions of the Agreement. As one of the negotiators of the Agreement I will not attempt to debate such an analysis. Rather this chapter will provide brief personal reflections of my experiences during the negotiations which have had a significant impact on the rest of my career as a Canadian diplomat focusing on trade issues.
Dispute settlement in TRIPS: A two-edged sword
In the Uruguay Round of multilateral trade negotiations under the GATT the negotiations on the TRIPS Agreement were not alone in making a slow start. IPRs were a radically new subject matter for the GATT. There was both uncertainty as to just what could be considered trade-related aspects of IPRs and disagreement over the appropriateness of trying to incorporate them into a negotiation about goods. The constructive ambiguity of the mandate – necessary to achieve consensus at Punta del Este – led to strong disagreement over what did or did not fall within it. This disagreement continued throughout most of the negotiations and was only attenuated towards the end.
Negotiating for Hong Kong
Hong Kong’s overall approach to the TRIPS negotiations was made clear to the other participants from an early stage: Hong Kong held itself out as the exemplar of free trade with a mature respected legal system providing comprehensive protection across the range of IP to right holders.
Patents: An Indian perspective
In this chapter I share my recollections as a representative of India from 1989–90 in the TRIPS negotiations focusing on India’s defensive interests with respect to the patent provisions of the TRIPS Agreement. I also include some relevant background information as well as some recollections of my interaction with other parties to the TRIPS negotiations.
The TRIPS negotiations: An overview
As a former official within the Secretariat of the GATT/WTO with responsibility for TRIPS matters my aim in this chapter is to set the scene for the contributions to this book of the negotiators themselves by outlining the origins and various stages of the negotiations that led to the TRIPS Agreement. I will also make some general observations on the negotiations in particular on how it proved possible to negotiate an agreement as substantial as the TRIPS Agreement and on why the WTO has been finding it difficult to achieve results comparable to those of the Uruguay Round of multilateral trade negotiations. I will of course do this from the perspective of a former Secretariat official; other chapters will add additional perspectives. I should add that I left the WTO Secretariat in 2008.
Foreword
As we mark the 20th anniversary of the WTO it seems appropriate that we should put a spotlight on the TRIPS Agreement which also turns 20 this year. When the TRIPS Agreement came into being in 1995 it introduced substantive and comprehensive disciplines on intellectual property rights (IPRs) into the multilateral trading system.
Negotiating for Argentina
To prepare a chapter that presents the experiences of a negotiator of the TRIPS Agreement as close as possible to reality is not an easy task. This is because the Agreement is complex as it covers many subjects related to IP and is made up of a set of rules with varied degrees of specificity and detail. Approaching this task 25 years after the negotiations has introduced complications and involuntary distortions that have made this task even more difficult.
Copyright: A Nordic perspective
During the Uruguay Round of multilateral trade negotiations I worked at the Finnish Ministry of Education and Culture where my main responsibilities included copyright law and policy. I participated in coordination of the Nordic countries (Finland Iceland Norway and Sweden) in the capitals and represented the Nordic countries in the later stages of the TRIPS negotiations in Geneva. During the same period I was also actively involved in WIPO’s work on copyright and the protection of layout-designs of integrated circuits and also contributed to the intergovernmental work under various other international and European fora such as the International Convention for the Protection of Performers Producers of Phonograms and Broadcasting Organizations (Rome Convention). Since January 1995 I have served at the WTO Secretariat IP Division.
Copyright: An Indian perspective
My unexpected participation in the TRIPS negotiations as my country’s sole negotiator on copyright remains one of the unforgettable experiences of a 38-year civil service career.
Appendices
I would like to thank you very much for inviting me to this Symposium. It is really great to be back in Geneva. I have indeed very fond memories of my long stay here and coming back gives me the great pleasure to meet dear old friends.
Revisiting the TRIPS negotiations: Genesis and structure of this book
The 1986 Punta del Este Declaration inaugurated a set of negotiations on “traderelated aspects of intellectual property rights” as part of the Uruguay Round mandate for multilateral trade negotiations. These negotiations led ultimately to the conclusion of the TRIPS Agreement an integral element of the single undertaking constituting the legal framework for the newly established WTO which came into existence in 1995.
Preface
This book was conceived in mid-2014 when members of the Intellectual Property Division (IPD) of the WTO began to reflect on what facets of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) could be highlighted for WTO members and the public at large in 2015 a year marking the 20th anniversary both of the WTO and of the entry into force of the TRIPS Agreement. The IPD under the leadership of its Director Antony Taubman planned a capacity-building Symposium on the TRIPS Agreement and a book on TRIPS negotiations informally dubbed the “TRIPS@20” project.
Working together towards TRIPS
The negotiations on IP during the Uruguay Round of multilateral trade negotiations of the GATT (1986–94) were able to build upon a large body of existing law both international and domestic. The main disciplines and notions of IP protection were already well established at the inception of the negotiations in 1986 with the adoption of the Ministerial Declaration in Punta del Este and its compromise that meant that negotiations would be conducted only on so-called trade-related aspects of intellectual property rights. The Paris Convention for the Protection of Industrial Property of 1883 and the Berne Convention for the Protection of Literary and Artistic Works of 1886 – both amounting to the very first multilateral agreements in the field of international economic law long before the advent of the GATT in 1947 – provided the underpinnings in international law.
Negotiating for Switzerland
Learning is a continuing process in one’s life. Some lessons are well archived on our “personal hard disk” with learning by doing being the most efficient method of saving those lessons. Negotiating the TRIPS Agreement was “unforgettable” to cite a famous American TV series. Indeed it is one of the most well-archived and prominent learning experiences of my career. Having been born and grown up in a developing country namely Viet Nam (south) with its realities printed in my DNA I came a long way eventually working at representing a small developed country. Switzerland which is characterized by an economy based on free enterprise innovation and exports of manufactured goods and services as well as by a compromise-oriented “culture” in terms of policy law-making and negotiating set the stage for this learning experience in the field of IP prior during and after the Uruguay Round of multilateral trade negotiations under the GATT.
The Making of the TRIPS Agreement
A comprehensive account of the establishment of the World Trade Organization focusing on those who shaped its creation as well as those who have influenced its evolution. The book examines trade negotiations the WTO’s dispute settlement role the presence of coalitions and groupings within the WTO the process of joining the organization and many other topics including what lies ahead for the organization.
WIPO-WTO colloquium papers 2015
The WIPO-WTO Colloquium Papers is a peer-reviewed academic journal published jointly by the World Intellectual Property Organization and the World Trade Organization each year since 2010. Providing a uniquely representative and diverse showcase for emerging IP scholarship from across the globe the journal aims to stimulate analysis and debate on intellectual property (IP) issues particularly of interest to developing countries. And it offers an avenue for the dissemination of a broader and more geographically diverse and representative range of scholarship than is common in much of the academic literature on IP law and policy.
TRIPS Agreement
The establishment of the WTO’s TRIPS (trade-related aspects of intellectual property rights) Agreement in 1995 changed the face of international intellectual property (IP) law and policy-making. TRIPS negotiators recognized that shortcomings and inconsistencies in IP protection can distort trade and impede its benefits. The TRIPS Agreement helps ease trade tensions about IP issues while leaving WTO members ample space to pursue diverse domestic policies. This brochure produced to mark the WTO’s 20th anniversary looks into the use of IP rights covered by the Agreement.
Intellectual Property Rights Protection and Export Diversification
We examine in this paper the impact of the tightening of IPRs notably patents rights and the adoption of utility model laws on export diversification. To perform our analysis we used panel data covering 89 developing and developed countries (of which 55 developing countries) over the period 1975 – 2003 and Lewbel (-2012-)'s instrumental variable technique. Our results lead us to conclude that for developing countries legal protection for minor and adaptive inventions could be a springboard for further strengthening of IPRs protection in spurring export diversification which is essential for the structural change needed for their economic development.