Intellectual property rights (IPR) are theoretically intended to balance the interests of inventors, artists and other creators of socially useful products with those of society at large. However, the recent wave of trade agreements generally favors commercial activity over the public interest. Moreover, the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), which has become the standard for intellectual property rights provisions, is biased towards protecting and compensating private institutions, instead of society's more creative individuals.
Of special concern are the TRIPs rules that privatize, accommodate and monopolize products derived from biodiversity. Under these provisions, corporations have the right to patent products, processes and organic material such as medicines, biotechnology and seeds. These rights raise new ethical, economic and social issues because they affect the self-determination of individuals, groups and peoples, as well as their ability to meet basic human needs.
Traditionally, knowledge of biodiversity has been treated as the common property of local communities. In the FTAA and other trade negotiations, there has been a push for rules that go beyond those agreed to in the WTO, which we could call "TRIPs-plus". These rules even more rigorously facilitate private monopoly rights, despite the efforts of several regional groups to establish principles defending sovereignty and community rights to traditional knowledge and biological diversity.
a) Human rights. A United Nations Subcommittee on Human Rights has declared that "there are apparent conflicts" between TRIPS and human rights, specifically the right to food, the right to health, and the right to self-determination." Sovereign nations and intergovernmental institutions should demand that human rights have priority over trade laws, including those involving intellectual property.
b) Market competition in sectors covered by strengthened intellectual property rules. In many key markets for developing countries, particularly in agriculture and medical biotechnology, current rules are leading to reduced competition. Examples include: increasingly broad patent claims (e.g., over new crop varieties and pharmaceuticals); the acquisition and strategic use of patent portfolios to prevent competition by similar but non-infringing products; and continued blurring of the lines between invention and discovery. This consolidation of key industries into monopolies has serious implications for social welfare, including access to food, health, and nutrition for citizens in both developed and developing countries. This suggests that before countries agree to rules, they should consider the relationship between strengthened intellectual property rights, competition in these industries, and the economic and developmental interests of developing countries.
c) Investment in countries at different levels of development. The assessment should examine how strengthened intellectual property protections might affect the level and nature of investment in participating countries. In particular, attention should be given to the potential for strengthened intellectual property rights to: 1) undermine the opportunity for investment in follow-up research by permitting patents on fundamental research processes; 2) limit the extent to which local companies can invest in adapting existing technology to local conditions; and 3) otherwise limit access to fundamental products and processes.
d) Innovation in different sectors, including in the informal sector. Innovation exists in many countries with little or no enforceable intellectual property rights protection, illustrating that the existence of intellectual property rights is at best only one factor contributing to technological innovation and economic development. It is also possible, as has been observed in North American universities, that given the possibility of gaining a future patent, researchers stop sharing their results, reducing the pace of current discoveries. Countries should assess the potential implications of strengthened intellectual property rights on local innovation, particularly in the informal sector.
e) The implementation of other international agreements, including the Convention on Biological Diversity (CBD) and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR). Governments should ensure that any intellectual property rules are based on the CBD. In particular, governments should bear in mind Article 16.5 which calls on "Parties to co-operate, subject to national legislation and international law, to ensure that IPRs are supportive of and do not run counter to the CBD's objectives." Particularly in light of their submissions to the WTO's Council on TRIPs regarding the relationship between TRIPs and the CBD, developing countries should be careful not to adopt rules in any hemispheric agreement that would exacerbate concerns about the potential for IPRs to undermine the CBD's objectives. The ITPGR proposes the guideline that patents should not be authorized if they have the effect of limiting access to genetic resources for food and agriculture, specifically that they should not be authorized for "their parts or components, in the form received from the Multilateral System." Therefore, countries supported in the ITPGR should be careful not to create conflicts with this restriction on intellectual property rights according to this international treaty.
There are six different bracketed proposals in the draft text of the FTAA on what can be patented. None of them would prohibit patents on all life forms, although four options would definitively exclude patents on plant varieties and species, animal species and races, including explicit reference to genetic processes or to material that can replicate itself. There options also clarify the definition of an invention and include other important exceptions. However, these options do permit patents on genetically modified organisms, incorporating various aspects of the text of paragraph 27.3(b) of the TRIPS that states that a government can deny patents on plants and animals that are not microorganisms, and on fundamental biological processes to produce plants and animals that are not microorganisms. But paragraph 27.3(b) of TRIPS is itself subject to a debate within the WTO and subject to change. Currently, various governments grant patents on life forms under this article.
Compliance with this objective would require resistance to three U.S. proposals found in the draft FTAA text that would give greater protection to pharmaceutical companies than TRIPS itself and that would violate the text and the spirit of the Doha Ministerial Declaration on TRIPS and Public Health:
a) While the Doha Declaration would permit the use of compulsory licenses in order to introduce competition in the market under any circumstances, the U.S. proposal in the FTAA would limit their use "only for public non-commercial ends or in situations of a declared national emergency or other situations of extreme urgency."
b) The United States proposes the prolongation of patents beyond the 20 years granted under TRIPS in order to compensate patent holders for delays in granting a patent.
c) The United States proposes that information relative to the safety and effectiveness of a pharmaceutical or agricultural product be the exclusive property of the patent holder for five years. It will therefore be much more difficult for generic producers to produce copies because they will have to replicate all of the tests performed by the patent holder instead of demonstrating the "bioequivalency" of their product.