9TH WTO MINISTERIAL CONFERENCE, BALI, 2013
Briefing note: Intellectual property — the ever-changing search for the right balance
Technology is changing rapidly, and with it the many debates about trade and intellectual property. Once, the discussion might have been about whether or not to protect intellectual property rights. Now it’s more likely to be about how these rights should be used and what constraints or limitations should apply.
Nevertheless, questions — some of them new — are still asked about whether it is appropriate to protect some material as intellectual property at all, and if so, when and in what way.
Updated: November 2013
THIS EXPLANATION is designed to help the public understand developments in the WTO. While every effort has been made to ensure the contents are accurate, it does not prejudice member governments’ positions.
Other WTO Ministerials:
The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), negotiated in the 1986–94 Uruguay Round, introduced intellectual property rules into the multilateral trading system for the first time. It’s one of the three main areas of work in the WTO, alongside trade in goods and services. The TRIPS Council’s job includes monitoring how well the TRIPS Agreement is working, how countries are applying it and their experience with the agreement.
The public perception about intellectual property is often that it creates a tension between private rights (of inventors and creators) and public interest (the ability to use the inventions and creations), and that public policy attempts to strike a balance between the two.
Policy-makers don’t necessarily see it that way. Take inventions, for example a new medicine. The balance that public policy tries to strike is to protect private rights just enough to encourage technical innovation — the objective is for a new medicine to be developed — and at the same time ensuring that the public can benefit from the results — they can use the medicine.
The patent on the new medicine allows the developer to recover the costs of invention. Other government policies would aim to ensure that the medicine is available to those who need it, including to patients who might not be able to afford the normal price. Finding the suitable combination of policies to achieve that is a major challenge (and patents are not the only way to encourage inventors). Allowing countries to search for the right balance, as they see it, is at the heart of the TRIPS Agreement.
Under the agreement, countries have to comply with essential requirements such as non-discrimination and meeting the same minimum standards for protection and enforcement. Otherwise, they have a considerable range of options at their disposal to choose how to put those standards into practice within their different legal systems, to meet their own objectives, and to set higher standards if they wish (sometimes called “TRIPS-plus”) so long as this is consistent with the agreement.
A selection of current issues
But opinions differ among WTO members on whether non-violation cases apply to intellectual property. The TRIPS Agreement contains a temporary restraint (a “moratorium”, Article 64.2) on bringing non-violation complaints.
This has been extended several times, more recently from one Ministerial Conference to the next. In October, the TRIPS Council agreed to recommend extending the present period until 31 December 2015, a decision ministers are expected to take in Bali. After that the council will look at how and when non-violation cases might apply in TRIPS.
All developed and developing countries now have to provide patent protection for pharmaceuticals. Least-developed countries do not, because they have “transition periods” allowing them more time to prepare to protect intellectual property (explained here). However, the TRIPS Agreement does allow governments to intervene (under certain conditions) if they feel public health interests are not being served properly.
One of these flexibilities is currently debated in the WTO. It was created by a 2003 decision making it easier for medicines produced under “compulsory licensing” in one country to be exported to another country that lacks production capacity. (Compulsory licensing is when a government allows someone else to produce the patented product or process without the consent of the patent owner.) This system for compulsory licensing to export has been used only once and WTO members are still debating whether the system is delivering the expected results.
Meanwhile, experts are digging deeper into the complex set of issues — many of them beyond intellectual property — that can affect the ability of poorer patients to receive treatment (or to have “access to medicines”). This is reflected in collaboration between World Health Organization (WHO), World Intellectual Property Organization (WIPO) and WTO, including a joint, in-depth study that provides background information and empirical data to help WTO members design and implement policies on access to medicines.
Members agree that this can be a problem. They disagree on how to solve the problem. Some want to amend the TRIPS Agreement so that patent applicants are required to disclose the country where the genetic resource comes from and any traditional knowledge used. Some advocate other ways of achieving these objectives without amending the TRIPS Agreement to require “disclosure”. These include contracts between researchers (“bio-prospectors”) and the local community or the state — whichever is considered to be the rightful owner. It also includes using databases, which patent examiners and others would consult in order to avoid bad patenting.
Some countries oppose patenting all life forms outright, meaning patenting would not be possible at all, even for micro-organisms, currently required under the TRIPS Agreement.
The topic is a major issue commercially, as can be seen from talks on bilateral or regional trade agreements around the world, but more recently within the WTO it has taken a back seat as members have tried to sort out other issues in the Doha Round.
Two issues come under the Doha mandate: negotiations to create a multilateral register for geographical indications for wines and spirits (explained here); and discussions on extending the higher level of protection (Article 23, explained briefly here and in more detail here) beyond wines and spirits.
Plain packaging for tobacco. Australia’s proposed law requiring cigarettes and other tobacco products to be sold in uniform packaging, with the same fonts used for all brand-names, and graphic health warnings, was first discussed in June 2011 in the TRIPS Council (and the Technical Barriers to Trade Committee, which deals with issues such as labelling). Since then, it has become law and challenged by Ukraine, Honduras, Dominican Republic, Cuba and Indonesia in a set of fully-fledged legal disputes in the WTO. (See disputes DS434, DS435, DS441, DS458, DS467.)
Tobacco-growing countries complain that their farmers’ livelihoods are at risk, and that plain packaging prevents companies from exercising their right to market their products using trademarks and geographical indications. (They also complain that the requirement blocks trade in a way that is not necessary to meet the objective of protecting health.) Countries supporting the requirement argue that the TRIPS Agreement allows them to act to protect public health, and that plain packaging is an effective means of achieving that.
Developed countries tend to see intellectual property protection as a means of encouraging innovation, while some developing countries are concerned about developed countries enjoying an unfair advantage and about what they consider to be the lack of technology transfer.
This does not exempt them entirely from applying the TRIPS Agreement. It does give them the freedom to choose whether or not to protect intellectual property. But if they do protect it — and several do have some intellectual property laws — then they have to apply provisions on non-discrimination.
The decision does not affect the separate transition period set in 2002 for least-developed countries to protect patents on pharmaceuticals — that deadline was 2016 and is explained here. The least-developed countries did not refer to this in their latest proposal for the general transition period.
Find out more:
The areas of intellectual property covered by the TRIPS Agreement:
• Copyright and related rights
These are explained here.