Intellectual property

Even before the World Trade Organization (WTO) lurched into its current state of crisis, bilateral FTAs had become a tool of choice for corporate and state interests seeking to expand intellectual property rights (IPR) standards. IPRs confer monopoly rights over intangible goods and services — methods of doing business on the internet, trademarks, computer programmes, designs, manufacturing processes, drug formulations or types of rice. They give IPR owners the right to prevent anyone from making or using their "creation". As such, they provide companies a direct tool to control a portion of the market, to block out competition and to fence off territories. Ironically, while IPR chapters are key aspects of many “free” trade and investment agreements, they are little more than protectionism for transnational corporations (TNCs), administered by governments. TNCs argue that without monopolies, there will be no innovation. Sharing should be banned; only capitalistic trade based on exclusive private property should be the norm.

Through FTAs, bilateral investment treaties (BITs) and other forms of direct agreements between countries, the US and Europe are insisting that the partner country adopt their standards of IPR protection and enforcement. This process has happened multilaterally via the WTO and the World Intellectual Property Organization. But it is now being pushed very aggressively through unilateral, bilateral and regional agreements — deals which go much further than the WTO’s Agreement on Trade-Related aspects of Intellectual Property rights (TRIPs). FTAs are setting “TRIPs-plus” standards.

The US imposes patents on plants and animals in its FTAs, while the EU and Japan, for the benefit of their biotech companies, push the UPOV Convention, a set of patent-like rules to prevent farmers from saving seeds. Meanwhile, pharmaceutical corporations have turned to FTAs as tools to impose stricter rules preventing the manufacture and trade of generic drugs. For many countries, and many peoples, these propositions are nothing short of revolutionary. Because it means they have to

- extend protection for branded drugs and limit parallel imports, hampering the availability of affordable generic medicines
- start patenting plants and animals, which means farmers cannot save seed or reproduce fish breeds or livestock
- get rid of screen quotas that give preference to the showing of local films
- start patenting computer software, to the detriment of local programmers and the creative open source movements now mushrooming up across the world as a cheaper alternative to Microsoft
- extend copyright protection, which already causes serious problems for students, libraries and educational institutions
- clamp down on piracy of popular consumer goods like digital products, clothing and music
- make IPR infringements criminal offences, even though IPR is part of civil law
and the list goes on.

Through IPRs, corporations seek monopoly control over vast areas of life. They expect that we should all regularly pay them licenses to use their products and to reimburse their research and development costs. Never mind all the public subsidies, tax breaks, university contract labour and so on that go into their research and development in the first place. IPR laws being pushed through bilateral channels make it public policy that countries should protect the TNCs, the real pirates.

Because of the serious implications that ‘TRIPs-plus’ IPR chapters of FTAs have for broad cross-sections of societies, in some anti-FTA struggles, such as the fightback against the US-Thailand FTA, farmers and people living with HIV/AIDS have joined together in their opposition of this new threat to their survival. Concerns have also been raised about the way in which the EU’s EPAs include TRIPs-plus provisions, while Indigenous Peoples in many countries continue to assert alternative frameworks for the use and sharing of traditional knowledge that challenge the capitalist, commodified logic of “intellectual property rights” enshrined in free trade and investment agreements.

More recently, a new development in transnational IPR enforcement has sparked opposition and controversy, including major protests in many European cities. In October 2011, after a secretive negotiations process, the Anti-Counterfeiting Trade Agreement (ACTA) was signed by a number of countries and will come into effect once six countries have ratified it. ACTA would potentially set up a new international legal framework for enforcing IPR. Opponents have criticized the agreement’s impact on privacy, freedom of expression and internet freedoms, and generic drug manufacturing.

last update: May 2012


    Articles

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  • 12-Aug-2015 KEI KEI briefing note on the evolution of TPP negotiating text on patentable subject matter
    The KEI briefing note underlines the evolution of certain sections of the TPP negotiating text on patents and patentable subject matter.
  • 12-Aug-2015 ZDNet NZ IT industry mobilises to fight TPP software patent threat
    The Institute of IT Professionals joins the NZ Open Source Society in questioning TPP deal on software patents.
  • 11-Aug-2015 Tech Dirt Why TPP threatens to undermine one of the fundamental principles of science
    Data exclusivity is a kind of super-patent that is an incredibly powerful form of monopoly.
  • 11-Aug-2015 Scroll.in Why South Africa’s health minister is so worried about India caving in to big pharma
    A big supplier of cheap lifesaving drugs to developing nations, India admirably balances public health needs with private profits and innovation. But it is under pressure to change this model.
  • 31-Jul-2015 ZDNET ​Open source leader ’livid’ at TPPA software patent capitulation
    Negotiations for the Trans Pacific Partnership Agreement appear likely to undo New Zealand’s ban on software patents, showing "how disconnected the government and the negotiators are from the interests of New Zealanders."
  • 31-Jul-2015 The Hill CAFTA’s 10th anniversary spotlights TPP’s threat to affordable life-saving drugs
    Ten years ago today, in the dead of night, Congress passed the US-Central America Free Trade Agreement by two votes. Lessons learned from the actual effects of CAFTA on access to affordable life-saving prescription drugs provide a vivid illustration of the impact of TPP-like rules on people and their health.
  • 27-Jul-2015 KEI USTR proposal in TPP would undermine state sovereign immunity for patents, copyrights
    TPP would violate the right of US states to protection from suit for patent, trademark or copyright infringement
  • 22-Jun-2015 IAM Pressure intensifies on India over software and pharma patent protection in key Asian trade negotiations
    Recently leaked documents show that India’s policies on software and pharmaceutical patents are firmly on the RCEP agenda.
  • 11-Jun-2015 KEI What does the TPP do as regards prices of drugs and other medical technologies?
    Two-page summary of the main provisions in the Trans-Pacific Partnership Agreement (TPP) that will lead to higher prices for drugs and other medical technologies.
  • 11-Mar-2015 Heesob’s IP Blog US Ambassador confirms patent linkage under FTA includes biologics
    The US Ambassador Lippert has sent a letter to the Korean Minister of Food and Drug Safety requesting protection of biologics under the patent linkage system. He also confirmed that the US seeks the same protection in TPP.
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    Links

  • Citizens Trade Campaign - Intellectual Property Rights
  • Don’t trade our lives away
    DNP+ and MSF Access Campaign India have set up a blog about the ongoing negotiations of a number of multi- and bilateral free trade agreements, which harm the access to essential medicines.
  • Electronic Frontier Foundation: FTAA and bilateral FTA resources
    The Electronic Frontier Foundation is studying the copyright provisions related to information technology of free trade agreements (e.g. US-Chile, US-Singapore)
  • IIPA’s FTA page
    The International Intellectual Property Alliance, a US lobby group defending copyright industries, is very active on FTAs
  • Intellectual Property Watch
    IP Watch is a Geneva-based initiative to report on the interests and ‘behind the scenes’ dynamics which influence intellectual property policies, including those carried through bilateral and regional trade agreements.
  • IP Justice
    IP Justice is an international civil liberties organization that promotes balanced intellectual property law in a digital world, active on the IP implications of the FTAA and specific FTAs
  • Media Trade Monitor
    Media Trade Monitor is a resource pool for information about the impact of global, regional, and bilateral trade agreements on media, culture, and communication.
  • Observatorio para la Cibersociedad