Sustainable Development In International Intellectual Property Law – New Approaches From EU Economic Partnership Agreements?

Date period
11 October 2010
SummarySustainable Development in International Intellectual Property Law -New Approaches from EU Economic Partnership Agreements? by Henning Grosse Ruse-Khan, from Max Planck Institute for Intellectual Property, Competition and Tax Law (MPI), provides innovative analysis on the link between sustainable development and intellectual property (IP) in light of the EC-CARIFORUM Economic Partnership Agreement (EPA) signed in October 2008.

The paper emphasizes that the general objectives and principles of the EC-CARIFORUM EPA allow the concept of sustainable development to play a significant role - if the contracting parties are able and willing to use its potential. It underlines that the implementation of the agreement's sustainable development objective empower and commit all actors involved in the implementation of the treaty to take a holistic approach in the process of decision-making, including with regard to the IP relevant provisions where it is stated that fostering innovation and creativity is a crucial element in achieving sustainable development and that IP protection should be tailored to the level of development..

The paper also broadens the reflection to international IP law more generally. In this regard, it suggests that incorporating sustainable development as a treaty objective in international agreements on the protection of IP can function as a tool to overcome the structural bias and self-contained nature of international IP regulation. The concept of sustainable development provides negotiators in the treaty-drafting process, domestic actors in the course of treaty implementation, and international courts and tribunals when settling disputes over the proper treaty application an option to address intersections between economic, social and environmental interests.
ForewordSustainable Development in International Intellectual Property Law –New Approaches from EU Economic Partnership Agreements?



Is a recent contribution of the ICTSD Programme on Intellectual Property Rights and Sustainable Development. Many trade agreements – in whatever form (free trade or economic partnership agreements) - following the adoption of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), have addressed intellectual property (IP) issues particularly by deepening the minimum standards of protection and enforcement established by TRIPS. In recent years, ICTSD has produced a number of studies analyzing the breadth, scope and implications of such undertakings.*

Free trade agreements (FTAs) offer opportunities for consolidating and expanding market access and domestic reforms in developing countries. However, the potential impact of IP provisions in these agreements has generated concern among various stakeholders on the use of flexibilities that have been designed to safeguard certain public interests and development objectives. In this regard, trade agreements raise many negotiating and implementation challenges regarding policy coherence and the attainment of public policy objectives.

Against this background, the study by Henning Grosse Ruse-Khan aims to achieve a better understanding of the policy of the European Union (EU) regarding intellectual property rights (IPRs) in bilateral and regional trade agreements. One of its innovative features is the attempt to explore the link between sustainable development and intellectual property and the way the recent comprehensive EPA, signed in October 2008, between the European Community and its member states and the CARIFORUM group of Caribbean countries has approached the issue.

The study suggests that the general objectives and principles of the recent EC-CARIFORUM agreement do allow the concept of sustainable development to play a significant role. According to the author, the obligations the contracting parties undertook with regard to the implementation of the agreement’s sustainable development objective empower and commit all actors involved in the application of the treaty to take a holistic approach in the process of decision-making. This is the case with respect to the main provisions in the innovation and IP chapter where it is stated that fostering innovation and creativity is a crucial element in achieving sustainable development and that IP protection should be tailored to the level of development. Furthermore, the provision dealing with the nature and scope of obligations implements a sustainable development objective by adopting an integrative approach that reconciles economic and social interests within the EPA’s IP section. Its main function is to determine the nature and scope of the obligations related to IP: their nature and scope must allow the protection of public health and nutrition as well as safeguarding access to medicines.

The author concludes with relevant observations about what can be learned from this sustainable development approach for a reform of the international IP system. He argues that incorporating sustainable development as a treaty objective in international agreements can function as a tool to overcome the structural bias and self-contained nature of international IP regulation. For example, international obligations – especially under TRIPS – should not a priori prevent thinking of flexible solutions to integrate all relevant interests affected by IP protection. The policy space flowing from the sustainable development objective in the Preamble of the WTO Agreement offers adequate discretion for a tailored domestic attempt to give effect to public interests.

The EC - CARIFORUM Economic Partnership Agreement may serve as a template not only for EPA negotiations with other regional groups of African, Caribbean and Pacific (ACP) countries, but also for other FTAs the EU is currently pursuing with a number of developing countries. Given the constraints of multilateral negotiations, the standards set by FTAs are the most important benchmarks that are likely to impact future multilateral processes. In this respect, the agenda pursued and the provi si ons negotiated by one of the most i mpor tant tradi ng blocs are par ti cul arly relevant. In the IP context, they not only consist of the obvious \\\\\\\"TRIPS-plus\\\\\\\" standards to be expected from North-South agreements, but also several interesting norms that address and are affected by the concept of sustainable development.

The study is a further contribution by ICTSD to a better understanding of the IP and development nexus. ICTSD’s activities in this important area are premised on the need for a proper understanding of the impact of IPRs to informed policy making in all areas of development while bearing in mind that empirical evidence on the role of IP protection in promoting innovation and growth remains inconclusive and that diverging views persist on the impacts of IPRs on development prospects.

In carrying out its work, ICTSD has been a hub for debate and ideas on various facets of TRIPS and its relationship with development. It has been regularly reporting, through its periodicals, on ongoing activities in the major IP forums and providing stakeholders, through its policy oriented research, with options to implement IPRs rules in a manner that balances private rights and public interests. This work has contributed to identifying many of the concerns regarding the negotiation and implementation of new international commitments in the field of IP and has served as a catalyst for the work of several other organizations now actively involved in TRIPS and TRIPS-plus debates. One important orientation of this work has been the tenet that IP policy could contribute to development if properly formulated to respond to national needs and stages of development by promoting innovation and creativity, as well as contributing to the integration of developing countries in the multilateral trading system. Further, the formulation and implementation of IP should accommodate a diversity of approaches, i.e. developing countries should not be pressed to forgo stages of development by adopting inappropriately high standards of IP protection that are not commensurate with their levels of development.

We hope you will find this new study a useful contribution to this continuous debate on IP and sustainable development particularly in responding to the need for increased awareness about the new trends and implications of proposed IP provisions in FTAs.

Ricardo Meléndez-Ortiz

Chief Executive, ICTSD