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Trade-Insight-9.Pdf Intellectual Property Rights and Development October 2007 note INTELLECTUAL property (IP) refers to creations of the mind: inventions; literary and artistic works; symbols, names and images; and designs used in commerce. Intellectual property rights (IPRs), exclusive rights or mo- PUBLISHED BY nopolies to the creators (inventors) of IP in the forms of patents, copy- South Asia Watch on Trade, rights, trademarks etc., have now become an integral part of the market Economics & Environment (SAWTEE) economy. Most economies today, including those in South Asia, have editors’ laws that provide protection to IP. However, with the rapid growth in REGIONAL ADVISORY BOARD international trade, policies related to IPRs are no more confined to the Bangladesh national sphere but have also become an important element of interna- Dr Debapriya Bhattacharya tional economic governance. India The inclusion of the Agreement on Trade Related Aspects of Intellec- Dr Veena Jha tual Property Rights (TRIPS) in the World Trade Organization (WTO), Nepal despite vehement opposition by developing Members, means that all WTO Dr Posh Raj Pandey Members are obliged to provide a minimum protection to IP. Though stron- Pakistan ger IPR regimes are said to encourage innovation and benefit the econo- Dr Abid Qaiyum Suleri mies as a whole through enhanced investment and technology transfer, Sri Lanka they do not merely create restrictions on the use of new products and Dr Saman Kelegama processes but also pose various challenges to the developing countries, including those in South Asia. EDITOR-IN-CHIEF Most developing countries lack the institutional, financial and hu- Navin Dahal man capacity to implement such regimes. Stronger protection and longer periods of monopolies to right holders, especially those on medicines, are likely to make healthcare expensive, and in most cases, out of the reach of EDITOR the poor in these countries. Similarly, the need to provide protection to Kamalesh Adhikari new plant varieties may affect the biodiversity and agricultural systems in developing countries. Stronger IPR regimes espoused by TRIPS pose a EDITORIAL ASSISTANCE threat of misappropriation of biological and genetic resources and tradi- Paras Kharel tional knowledge, jeopardising the rights of their local, indigenous and Shivendra Thapa farming communities. Furthermore, if proper safety nets are not intro- duced, these impacts are likely to aggravate gender disparities as women DESIGN are more vulnerable to negative consequences in the health and agricul- Indra Shrestha tural sectors. Given that many developing countries are already Members of the ILLUSTRATION & COVER WTO and need to provide a minimum IP protection, it is important that Abin Shrestha they utilise the flexibilities in the WTO system to use IPRs as a tool to achieve their development objectives. The recent examples of some devel- oping countries indicate that this is possible. Thailand and Rwanda have PRINTED AT used the flexibilities in TRIPS to provide cheaper HIV/AIDS drugs to Jagadamba Press their citizens. Similarly, India has enacted the Plant Variety Protection Kathmandu and Farmers’ Rights Act, which ensures that those who commercialise the knowledge or plant varieties that have been preserved and developed by farmers or local communities share the benefits with the latter. The developing countries can also use “geographical indications”, a form of IPR recognised by TRIPS, to promote their “indigenous products” in the international market. While utilising the flexibilities in the WTO system, developing coun- P.O. Box: 19366 254 Lamtangeen Marg tries need to be cautious that they do not bind themselves to implement- Baluwatar, Kathmandu, Nepal ing stricter IPR regimes than those required by the TRIPS Agreement. Tel: 977-1-4415824/4444438 Some developed countries have been eager to ratchet up IPR standards Fax: 977-1-4444570 through bilateral and regional trade agreements, which have “TRIPS plus” E-mail: [email protected] clauses. Web: www.sawtee.org It is important to ensure that developed countries do not restrict the PUBLISHED WITH THE SUPPORT FROM “policy space” of developing countries but assist them in realising their development goals. In this process, developed countries need to show flexibilities and provide assistance to developing countries for enabling them to address the challenges of and benefit from IPRs. n Contents Trade Insight • V ol. 3, No. 2, 2007 WIPO DISCUSSION 4 TRADE WINDS 5 PATENT AND TK 8 Patent Pathology and Protection of T raditional K nowledge GEOGRAPHICAL INDICATIONS 11 Promoting Trade and Pro-Poor Growth through Geographical and Indications Development Concerns DOHA ROUND ISSUES 19 Making Use of IPR Decisions of the Doha Work Programme: in South Asia The Case of India COVER FEATURE 14 PUBLIC HEALTH 27 TRIPS Flexibilities and Intellectual Property Rights and Access to Medicine Gender IPR DISPUTE 33 Protection and Enforcement of Intellectual Property Rights Are there any options to LEGAL ISSUES 36 reduce gender disparities, likely to be generated by IPR The Nexus between Indian Laws and International IPR Conventions regimes? ACTIVITIES 38 GENDER ISSUES 23 SAWTEE NETWORK BANGLADESH 1. Associates for Development Initiatives Protecting Farmers’ Rights in the (ADI), Dhaka 2. Bangladesh Environmental Lawyers’ Association (BELA), Dhaka Global IPR Regime INDIA 1. Citizen consumer and civic Action Group (CAG), Chennai 2. Consumer Unity & Trust Society (CUTS), Jaipur Given the implications of IPRs 3. Development Research and Action Group (DRAG), New Delhi on farmers’ livelihood 4. Federation of Consumer Organisation of Tamilnadu & Pondichery (FEDCOT), and biodiversity, what Thanjavur approaches need to be adopted NEPAL 1. Society for Legal and Environmental to realise farmers’ rights ? Analysis and Development Research (LEADERS), Kathmandu 2. Forum for Protection of Public Interest FARMERS’ RIGHTS 30 (Pro Public), Kathmandu PAKISTA N 1. Journalists for Democracy and Human Rights (JDHR), Islamabad 2. Sustainable Development Policy Institute The views expressed in the articles published in Trade Insight are those of (SDPI), Islamabad the authors and do not necessarily reflect the official position of SAWTEE SRI LANKA or its member institutions. 1. Law & Society Trust (LST), Colombo WIPO discussion Member States adopt Development Agenda for WIPO MEMBER States of the World In- and will discuss intellectual prop- tellectual Property Organisation erty (IP) and development-related (WIPO) made a decision on 28 issues as agreed by the Committee September 2007 to adopt a De- and decided by the General As- velopment Agenda consist- sembly. ing of a series of recommen- The Committee will be dations to enhance the “devel- open to all accredited inter - opment dimension” of the or- governmental and non- ganisation’s activities. The governmental organisa- recommendations include a tions and is expected to set of 45 agreed proposals hold its first meeting in the covering six clusters of activities, first half of 2008. The Com- including: mittee will report and may make • Technical assistance and ca- recommendations annually to the pacity b uilding; General Assembly. • Norm-setting, flexibilities, Following a process of informal p ublic p olicy and p ublic Member States agreed to estab- consultations prior to the General knowledge; lish a Committee on Development Assembly, in the context of the Pro- • Technology transfer, informa- and Intellectual Property to devel- visional Committee on a WIPO De- tion and communication tech- op a work programme for the imple- velopment Agenda, Member States nology and access to k nowl- mentation of the adopted had identified 19 proposals for im- edge; recommendations. This Committee mediate implementation. With the • Assessments, evaluation and will monitor, assess, discuss and re- approval of the General Assembly, impact studies; and port on the implementation of all rec- these proposals will now be imple- • Institutional m atters includ- ommendations adopted by coordi- mented immediately by WIPO ing m andate and governance. nating with relevant WIPO bodies (www.wipo.int, accessed 03.10.07. ) n Work on TK, GR and Folklore MEMBER States of the World In- velopment of an international in- tellectual Property Organisation strument or instruments in this (WIPO) have agreed to continue field without prejudice to the accelerated work on intellectual work pursued in other fora. property (IP) and traditional In the General Assembly, del- knowledge (TK), genetic resourc- egates urged the Committee to es (GR) and folklore/traditional work towards a substantive con- cultural expressions (TCEs), with clusion in the coming two a focus on the international years. Many delegates also dimension. The WIPO General called for a binding internation- Assembly has extended the man- al legal instrument as the only date of the Inter-governmental eral Assembly’s 2005 directions to fully effective response to the glo- Committee on Intellectual Prop- the IGC to accelerate its work, and to bal phenomenon of misappropri- erty and Genetic Resources, Tra- focus, in particular, on the interna- ation and misuse of TK and ditional Knowledge and Folklore tional dimension of IP, and TK, GR TCEs for industrial and commer- (IGC) for two years. and TCEs. The mandate excludes no cial use ( www.wipo.int, accessed This decision renews the Gen- outcome, including the possible de- 03.10.07 ). n 4 • Trade Insight • V ol.3, No.2, 2007 trade winds G12: A new parallel negotiating The US agrees to cap
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