IP Rights Through Two Lenses At Next Week’s TRIPS Council: Improving Lives, Competition Law

Next week, the World Trade Organization intellectual property committee is invited to discuss two distinct aspects of intellectual property protection. One group of countries is proposing to explore the value of IP and its role in improving lives in a persistent agenda item on IP and innovation. Another group of countries is pushing for a more recent agenda on IP and the public interest and next week is suggesting to discuss how to use competition laws against the abuse of IP rights.

China and South Africa have tabled a proposed discussion on the importance of competition law, which in their view is the least discussed TRIPS flexibility.

The Council for the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is scheduled to meet on 5-6 June.

The communication of China and South Africa, tabled last week, mentions the report of United Nations Secretary General’s High-Level Panel (HLP) on Access to Medicines, and in particular the use of the flexibilities in the TRIPS agreement.

According to the co-authors, “many least developed and developing countries cannot implement competition regimes due to the lack of capacity to use competition law to achieve public health objectives.”

Within TRIPS, “Members are free to design competition laws in such a way so as to take account of their domestic interests and needs, including taking account of their respective levels of development, subject only to the natural limits defined by the territorial limits of such laws,” they said.

The co-authors urge WTO members to share their national experiences and examples of how competition law is used to achieve public health and related national objectives. “Debate and information exchange could serve to enhance understanding of Members of various approaches to the use of competition law and policy to prevent or deter practices such as collusive pricing or the use of abusive clauses in licensing agreements that unreasonably restrict access to new technology, prevent the entry of generic companies and may result in higher prices for medicines,” they said.

Among questions the co-authors wish to discuss are difficulties faced by countries in using competition law policy, including pressure from other countries and corporations; what policies have members established to deal with “unreasonably high” royalties in the context of technology transfer; and the experiences of members in the use of compulsory licences.

IP Leads to Innovation Improving Lives

From another perspective, Australia, Canada, the European Union, Japan, South Korea, Taiwan, Switzerland, and the United States submitted a discussion item on the value of intellectual property in the new economy, and how IP improves lives.

According to the document, “In the education and training sector, students enjoy learning from a wide range of intellectual property rich materials, including innovative research, books and documentaries, which foster their ability to make social and economic contributions to society.”

IP also supports technological developments, it says, including in new methods and tools of learning, and plays an important role in the creative sector through the promotion and protection of artistic expression.

New technology is transforming the world, helping to save time and money, as well as improve health, safety, and protection, the co-authors said. They encouraged members to share national and regional experiences on the role of IP and innovation frameworks in improving lives.

In particular, the proponents suggest to discuss examples of inventions that have benefited or improved lives that have been made possible by IP systems, and how international cooperation in the area of IP and trade in innovative goods and services has contributed to improving the quality of life.

Implementation of Technology Transfer Duty

Following a request by the Group of Least-Developed Countries (LDCs) at the last meeting of the TRIPS Council in February on the implementation of technology transfer rules by developed countries, the discussion is set to continue this week (IPW, WTO/TRIPS, 28 February 2018).

The LDC Group submitted a document [pdf] requesting developed countries to fully implement their technology transfer requirements under WTO rules. The group said there is a lack of clarity in notifications on the nature of incentives by developed countries, and whether such incentives result in technology transfer to LDCs.

 

Image Credits: Catherine Saez