By David Cronin for Intellectual Property Watch
BRUSSELS – Concern is growing in both Europe and developing countries about whether a series of free trade agreements slated for signature later this year will contain overly stringent rules on intellectual property.

The European Union’s executive, the European Commission, has proposed that the Economic Partnership Agreements it wishes to conclude with 76 African, Caribbean and Pacific (ACP) by 31 December should commit all parties to a robust enforcement of IP rights.

The Commission’s thinking behind its efforts to have IP provisions in trade deals it reaches with countries outside the EU was outlined in a ‘market access strategy’ published in April. It identified “poor protection” of IP rights as one of the principal barriers to trade encountered by European firms trying to do business abroad.

Anti-poverty activists and ACP diplomats have expressed misgivings about the Commission’s approach, arguing that it could be used to prise open poor countries to Western firms to the detriment of local industry.

Dalindyebo Shabalala from the Center for International Environmental Law (CIEL) in Geneva argues that developing countries should have IP standards tailored to their own circumstances. “What has been put on the table in the EPA talks are EU standards,” he said.

EU negotiators have recommended, for example, that ACP countries should be required to comply with the terms of the Copyright Treaty and the Performers and Phonograms Treaty of the World Intellectual Property Organization, the so-called “Internet treaties, both of which entered into force in 2002.

Shabalala forecasts that the consequence of this provision will be that limits are placed on how developing countries can use the Internet before many of them have had an opportunity to explore it properly. It is unjustified, he contends, to apply this standard with the same rigour in all ACP countries, given that levels of industrialisation vary across them.

“In South Africa, a lot of people have Internet access and are beginning to share music and create blogs,” he said. “But in the Pacific, Internet penetration is minimal. Why is it that the Pacific gets exactly the same proposal on copyright protection as the Southern African region?”

Similarly, the EU has recommended that far-reaching IP rules should apply to databases. According to Shabalala, this could mean that data generated by governments such as geographical information of potential use in industrial development would no longer be freely available in libraries and educational facilities.

Marc Maes, a trade campaigner with the Belgian organisation 11.11.11, said that EU officials have “copied and pasted” significant amounts of the Union’s enforcement directive on IP rights into the EPA proposals. Put forward by the Commission in 2004, its objective was to make it easier to punish those who infringe on patents.

“ACP countries are being asked to sign up to the EU’s approach to global trade regulation and deregulation, very much regardless of where these countries are able to make these commitments,” Maes said.

Peter Power, the European Commission’s spokesman on trade, said that the EU is seeking to help ACP countries implement rules set down in the World Trade Organization Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS).

“This is about promoting innovation and development while safeguarding ACP rights to resources such as biodiversity and indigenous crops,” he said. “It is not about trying to set stricter standards or additional requirements regarding the protection of intellectual property.”

“These are complex issues but the underlying problem is one of a lack of secure intellectual property rights rather than their introduction,” he said. “Their absence acts as a brake on development as companies and research establishments with rights to technologies and information hesitate to release or license them if they are not protected. This applies to everything from computer software to food technology. Less scrupulous operators also exploit loopholes and benefit from resources taken from the ACP without returning any profits.”

Power added that “there are also potential market benefits” for ACP by introducing rules on geographical indications, covering the names of food, drink and other products associated with particular regions. “These protect the name of goods like Jamaican Blue Mountain coffee and allow producers to sell at higher prices,” he said.

Questions of Food Security, Medicines Access

The EPAs would apply IP protection to the development of new varieties of seeds by multinational firms. Environmentalists have argued that these provisions could prove inimical to small farmers using traditional varieties of seeds, with adverse effects on nature conservation and biodiversity.

“We are seeing the privatisation of a lot of seeds and agricultural knowledge,” said Charly Poppe from the Brussels office of Friends of the Earth. “Traditional knowledge is being given to corporations who grant themselves the right to sell seeds in the future.”

Having IP provisions in free trade deals may also not bode well for efforts to tackle climate change, Poppe added, as it may dissuade poor countries from manufacturing renewable energy systems under patent in Europe. “The EU is very competitive with developing new green technologies that are very expensive for poor countries to buy” he said. “IP rights are used to the benefit of industries in Europe but this could be a hindrance to the transfer of technologies that are badly needed to deal with climate change.”

Others are worried by how the IP provisions will cover pharmaceutical patents, without accompanying measures to protect public health and access to essential medicines. Shabalala said that under these provisions a drugs company holding a patent for a particular medicine could apply for an injunction on shipments of generic versions of that medicine into an ACP country. “Border officials would be obliged to impound and warehouse it,” he said.

Junior Lodge, a Jamaican official who represents governments from the Caribbean in the EPA talks, said the European Commission is using the EPAs as part of a broader effort to win as much business as it can for Western firms. He alleges that it has been trying to narrow the ability of poor countries to introduce their own policies on issues affecting their economies. “It is seeking more stringent rules on IP rights and competition in all developing countries,” he said. “We are violently opposed to this.”

Paul Goodison from the European Research Office, which monitors trade between the EU and developing countries, said that the Commission’s market access strategy is designed to go beyond rules on barriers to trade, including those on intellectual property, agreed at World Trade Organisation level. He believes that the Commission is likely to seek similar provisions in further deals with potentially more lucrative markets, such as India or Brazil.

“The ACP countries are the weak underbelly,” he said. “If they sign up to these provisions, then the Commission will be able to say ‘if LDCs [least developed countries] have agreed to these, why should Brazil be worried?’ The Commission has extremely skilled negotiators and they understand this fully.”

But Ilias Konteas from the employers lobby group Business Europe said the Commission’s approach is essentially correct.

“In principle, we feel that having strong IP enforcement systems put in place will also be for the benefit of developing countries,” he said. “It will facilitate the transfer of technology from the Western world to these countries and have a positive effect in building up their innovative capacity.”

David Cronin may be reached at info@ip-watch.ch.