TRIPS Council To Look At IP And The Public Interest, Business Interest

The World Trade Organization is the prime gathering point for the world’s governments of all sizes to discuss and negotiate on policies of the day. A decades-long swinging pendulum within the WTO’s committee on trade and intellectual property is IP’s contribution to innovation and economy and its contribution to the public interest. At its meeting this week, the committee will feature discussions on both.

The WTO Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) is scheduled to meet on 13-14 February. The meeting is closed to non-observers, including the press.

On the agenda is document IP/C/W/650 [pdf] on intellectual property and innovation, a “Summary on the 2018 Theme – the Societal Value of IP in the New Economy.” It is a communication dated 30 January from Australia, Canada, Chile, the European Union, Hong Kong, Japan, South Korea, Singapore, Switzerland, Taiwan, and the United States. It lays out arguments for the importance of IP focused around: IP-intensive industries and their economic impact on society; IP and improving lives; and intellectual property and new business.

The document recounts discussions from the three 2018 TRIPS Council meetings, including that, “Society has benefitted greatly from the innovation of game-changing technology and the greater availability of creative works, notably in education and training, the creative sector, and in the fields of transportation, goods delivery and agricultural and environmental monitoring systems. Intellectual property plays a critical role in incentivizing the development of new technologies and creative endeavours that contribute to improving the quality of our lives. Creative solutions prosper if inventors are able to commercialize their inventions in a predictable and stable legal environment.”

It continues: “Members conveyed inspiring stories of how innovators and creators, including in partnership with governments, have used IP tools to address global challenges, which have contributed to technological and creative progress for the benefit of humanity. Members highlighted advancements in the areas of: education/training and digital applications for the visually impaired; creative works programmes to facilitate cross-border exchanges and cross-cultural awareness; healthcare products to provide faster diagnosis and better treatments; digital healthcare solutions to reform healthcare services; agricultural technology to help farmers harvest double yields; technology development projects either applied or developed in countries in need of assistance; and the use of electric and digital sources in the transportation, environment and machine manufacturing sectors. Also highlighted were efforts to improve IP systems awareness and accessibility to help a wider range of people harness the power of IP.”

And it gives a nod to the question of access, through business, to the new IP-protected technologies: “Lastly, Members highlighted government and private sector/non-profit initiatives to promote exchanges and business opportunities so that the benefits of IP are shared between and applied to people who need them.”

An additional document, IP/C/W/652 [pdf], dated 8 February, has also been submitted by the same group of cosponsors under the IP and innovation subject, on the subject of “Public-Private Collaborations in Innovation.” It encourages members to discussion on several questions:

“a. How to balance supporting innovative businesses with accountability for public funds;
b. Considerations regarding how IP should be owned and managed; and
c. How public agencies can help the private sector acquire and develop expertise in R&D and acquire IP.”

In contrast, document IP/C/W/651 [pdf] looks at “Intellectual Property and the Public Interest: Promoting Public Health through Competition Law and Policy.” It is a communication dated 1 February from South Africa, which states it “proposes to advance the discussion … through questions which are set out herein below. As demonstrated before, the TRIPS Agreement explicitly permits WTO Members to employ specific measures in order to protect public health and nutrition, and to promote the public interest. Various flexibilities are provided to Members to adopt measures to prevent abuse of IPRs. In recent times, excessive pricing in the pharmaceutical industry has been under the spotlight and there has been a number of competition enforcement cases regarding exploitative excessive pricing.”

In some way, the two documents (both of which draw on previous documents) address the same aim – the betterment of society. On one hand, the argument is that IP protection, including trade secrets (which do not allow others to learn from the idea the way patents do), is necessary to give security to innovators to come up with life-improving and life-saving inventions. On the other hand, many in the world are barred from access to these new inventions when the monopoly that ensues from IP protection puts them out of reach.

The questions posed in the South Africa document are:

“(1) When dealing with exploitative excessive pricing in the context of anti-trust or competition enforcement in the pharmaceutical and medical technology sector, should competition/anti-trust authorities become quasi price regulators? What are the practices or guidelines that Members have followed to address exploitative excessive pricing in their respective markets with specific emphasis on actions undertaken by competition/anti-trust authorities?
(2) What examples of best practice can Members identify on the subject of the control and remedies for exploitative excessive pricing? Are there context-specific methodologies employed by Members for determining if prices are excessive, and what mechanisms are used to remedy and control pricing abuse?
(3) To what extent can abusive practices currently prevalent in the pharmaceutical industry be addressed through improving the patent system, by for example, raising the bar of patentability requirements or increasing registration fees? What have Members’ experiences been with these types of measures or other approaches that have been followed?
(4) Have any Members recently conducted market inquiries into the pharmaceutical sector to assess its impact on access to medicine or more generally the impact of the pharmaceutical sector on competition in particular market segments? If so, what were the findings and what remedial actions were recommended or taken?
(5) To what extent can technical assistance and capacity building contribute to the delivery of more effective policies by WTO Members in the field of competition law to address the abuse of intellectual property rights? What role can international organisations play in this regard, including the WTO?”

Other Issues

Separately on the agenda is an item entitled, “Information on Relevant Developments Elsewhere in the WTO,” under which is document IP/D/39/Rev.1 (Request for consultations by the European Union – revision). This document relates to the EU’s request for WTO dispute settlement consultations with China over technology transfer measures potentially violating IP rights.

A sometimes touchy issue on the agenda is “non-violation and situation” complaints, which involve complaints against a WTO member for actions causing economic harm to another WTO member despite not technically violating any WTO agreement.

Another sometimes key issue is implementation of TRIPS Art. 66.2, which relates to ensuring developed countries are providing technology transfer and technical assistance to others.

The agenda also includes a number of standard and longstanding items, such as: reviews of national implementing legislation; the relationship between TRIPS and the UN Convention on Biological Diversity; and the review of TRIPS Article 27.3 (b), on whether plant and animal inventions should be covered by patents, and how to protect new plant varieties.

Protection of traditional knowledge and folklore also appears on the agenda, as does a review of the application of provisions on geographical indications under Art. 24.2.

Several members, such as Japan and the United States, have notifications to the Council of changes in their national laws relating to intellectual property.

And the agenda includes a still-pending list of organisations seeking observer status at the Council. Document IP/C/W/52/Rev.14 [pdf] of 22 January states:

“Requests from the following international intergovernmental organizations for observer status in the Council for TRIPS are still pending1:
– African, Caribbean and Pacific Group of States (ACP Group);
– Bioversity International2;
– Conférence des Ministres de l’Agriculture de l’Afrique de l’Ouest et du Centre (CMA/AOC);
– The European Free Trade Association (EFTA)3;
– International Organisation of Vine and Wine (Organisation International de la Vigne et du Vin, OIV)4;
– International Vaccine Institute;
– Islamic Development Bank (IsDB);
– Latin American Economic System (SELA);
– Organization of American States (OAS);
– Organisation of the Islamic Conference (OIC);
– Secretariat of the Convention on Biological Diversity (CBD);
– Secretariat of the General Treaty on Central American Economic Integration (SIECA);
– South Centre; and
– United Nations Environment Programme (UNEP).

 

Image Credits: Catherine Saez