IPRs And The WTO’s New Brazilian President: Heading South, Hopefully Up

By Benny Spiewak

The new Director General of the World Trade Organization has been announced: Brazilian Ambassador H.E. Roberto Azevedo. Two candidates were in the final running for the position. Both of them were Latin Americans. This alone was a fact is to be celebrated, as the most relevant multilateral trade-related forum was about to be headed by an emerging economy national.

The new scenario might possibly change not only the way trade works, but also the tools it uses to operate, including the intellectual property system. Whilst equal on paper, the underlying rationales supporting the implementation of IP-related policies are absolutely different in the developed and developing economies. An emerging economy leader to the WTO is likely to highlight that.

For starters, it is fair to assume an emerging economy-driven IP policy will be highlighted like never before, including: technology-transfer topics; the traditional knowledge and genetic resources agenda, including the interplay between IP and biodiversity aspects; broader impact of copyright exceptions and a lesser enthusiastic agenda concerning new IP regimes, e.g., a broadcast treaty.

The election of the Brazilian candidate awards an individual who is energetic, skilful and highly experienced in all WTO-related matters, having headed the Permanent Mission of Brazil in Geneva and guided the delegation of Brazil in many high-profile dispute settlement cases. Ambassador Azevedo represents the emerging economies’ soft power at its best.

For instance, the candidate headed the Brazilian Mission at the WTO during the remarkable, game-changing case on US subsidies on upland cotton. In a nutshell, according to the decision issued in that case, the WTO arbitrators authorised Brazil to adopt countermeasures facing the US not only in goods, but also on services and intellectual property, which have not been implemented yet.

Objectively an outstanding victory for Brazil as one of the biggest supporters of the IP system, the US would have little room to challenge Brazil´s certain measures affecting the local IP system, e.g., the decision to confirm (link in Portuguese) the National Regulatory Authority’s (ANVISA) authority over patentability criteria of pharmaceutical-related products and processes.

To the extent most developing economies rely on universal healthcare systems, i.e., in which the government is the single most important player and buyer of therapies, the recent Brazilian move could clear the path for similar strategies, as developed by other emerging economy states. How is an emerging economy leader of the WTO likely to address such trends?

An emerging economy leader is likely to share a more proactive perspective when it comes to the full implementation of the Development Agenda, i.e., the so-called balanced assessment of IP and social needs may start pending more assertively towards an access to knowledge-like arrangement. Finally, geographic indications may lose its vital importance to certain economies, as emerging economy countries are still struggling to develop their local policies guiding recognition of regional and special goods and services.

Nationally, the election of the Brazilian candidate could push forward certain initiatives, such as the long-awaited adhesion of Brazil to the Madrid Protocol, a component of the Madrid System for the International Registration of Marks, as well as more structured, funded pro-IP activities. As the director of the free trade world, Brazil needs to lead by example.

The next Director General of the WTO will face enormous challenges, including those related to the paths of the global IP system. One of the most critical tests is the one concerning the effective combination of innovation and intellectual property. While pushing for stronger innovative industries, emerging economies are extremely cautious and often times negative when it comes to discussing IP.

An emerging economy leader of the WTO must rationally address the importance of this combination, rather than battling for their segregation. Hopefully, the IP system will benefit from the upcoming samba approach, rather than becoming a target.

Benny Spiewak is a partner and head of the Intellectual Property, Life Sciences and Emerging Technology practice at the Sao Paulo-based ZCBS law firm.