Intellectual Property Provisions of bilateral and Regional Trade Agreements in light of US Federal Law

Date period
1 February 2006

SummaryIntellectual Property Rights (IPRs) have never been more economically and politically important or controversial than they are today. They are frequently mentioned in discussions and debates on diverse topics such as public health, food security, education, trade, industrial policy, traditional knowledge, biodiversity, biotechnology, the Internet, and the entertainment and media industries. In a knowledge-based economy, there is no doubt that a better understanding of IPRs is indispensable to informed policy making in all areas of human development.

Empirical evidence on the role of intellectual property protection in promoting innovation and growth in general remains limited and inconclusive. Conflicting views also persist on the impact of IPRs on development prospects. Some argue that in a modern economy, the standards laid down in the World Trade Organization’s Agreement on Trade-Related Aspects on Intellectual Property Rights (TRIPS) will bring benefits to developing countries by creating the incentive structure necessary for knowledge generation and diffusion, thus inducing innovation, technology transfer and private investment flows. Others counter that intellectual property, especially some of its elements, such as the patent regime, will adversely affect the pursuit of sustainable development strategies for instance by raising the prices of essential drugs to levels that are too high for the poor to afford; limiting the availability of educational materials for developing country school and university students; legitimising the piracy of traditional knowledge; and undermining the self-reliance of resource-poor farmers. While TRIPS has established substantive minimum standards of protection and enforcement of IPRs, recent regional and bilateral free trade agreements (hereinafter “FTAs”) include IPR commitments that go beyond these TRIPS standards. The FTAs require significant changes in the domestic legislation of participating countries.

It is urgent, therefore, to ask the questions: how best can the developing countries use intellectual property tools to advance their development strategy? What are the key concerns surrounding the issues of IPRs for developing countries? What are the specific difficulties they face in intellectual property negotiations? Is intellectual property directly relevant to sustainable development and to the achievement of agreed international development goals? Do developing countries have the capacity, especially the least-developed among them, to formulate their negotiating positions and become well-informed negotiating partners? These are essential questions that policy-makers need to address in order to design intellectual property laws and policies that best meet the needs of their people, as well as to negotiate their positions effectively in the future.

It is to address some of these questions that the UNCTAD/ICTSD Project on Intellectual Property Rights and Sustainable Development was launched in July 2001. One central objective has been to facilitate the emergence of a critical mass of well-informed stakeholders in developing countries – including decision makers, negotiators but also the private sector and civil society – who will be able to define their own sustainable human development objectives in the field of intellectual property and effectively advance them at the national and international levels.

The present paper on Intellectual Property Provisions of Bilateral and Regional Trade Agreements in Light of U.S. Federal Law is a part of the efforts of the UNCTAD/ICTSD Project on Intellectual Property Rights and Sustainable Development to contribute to a better understanding of issues relating to the implementation of intellectual property provisions arising from FTAs and their impact on both developed and developing countries.

This paper examines, from a public interest perspective, recent regional and bilateral FTAs concluded by the United States. The analysis is provided against the background of U.S. domestic laws and policies, as specified through U.S. case law and statutory provisions.

We hope you will find this study a useful contribution to the debate on IPRs and sustainable development.