DR-CAFTA - Extension to Patent Term

The Dominican Republic is considering an extension to patent protection in order to give effect to its free trade agreement with the US.

The DR-CAFTA was agreed back in December 2003 after only 12 months of negotiation involving the US, El Salvador, Guatemala, Honduras, Nicaragua, and Costa Rica. Costa Rica remained resilient in the negotiations until January 2004, generating ongoing oppositions that continue today. Just 10 days ago, Costa Ricans protested in a general strike challenging the DR-CAFTA and the moves of their President, Nobel Laureate Oscar Arias (pictured at right), to progress its conclusion. President Arias, who achieved his second term as President in the May elections this year after serving his original term 1986-1990, has been a strong supporter of the agreement, despite the opposition among his people.

The Dominican Republic negotiated a separate bilateral agreement with the US towards joining the CAFTA scheme, which it did in 2004. Despite this, the Dominican Republic remained on the Watch List in 2004, 2005, and 2006. As reported in the Dominican Today, a bill presented to the Congress for the implementation of the DR-CAFTA proposes amendments to the Industrial Property law 20-00 that will establish an extension to patent protection for a maximum of 3 years in addition to the 20 year term, through revisions of articles 27 and 30. The US has also called for periods of data exclusivity protection of 5 years for pharmaceuticals and 10 years for agricultural chemicals, leading to strong criticism from Dominican pharma.

The DR-CAFTA has been criticised as sustaining colonial tensions. Noam Chomsky (pictured at right) has said that the agreement will maintain Central America as a region under US control.

Chomsky was in Santo Domingo in March this year giving several talks and public lectures. During this time he spoke in a free public lecture on "Latin American and US Foreign Policy" to a huge audience at the Foundation for Democracy and Development. In June this year, at a press conference in New York, Chomsky described "For the first time in its history, first time since the Spanish colonization, Latin America is moving towards a degree of independence and also a degree of integration ... And the United States is terrified."

Consumer Rights and FTAs on the European Agenda

The President of the European Commission, Jose Manuel Barroso, has announced that consumer rights must become central to the economic and social agenda for the EU.

In a letter to colleagues, Barroso stated, "We must treat the internal market and social realities as one ... The citizens must move to the centre of our activities." In an article published today, Anne-France White suggests that this is a notable change from the focus on industry that has previously dominated the commission, as presented by EU executives Gunther Verheugen, Vice-President and European Commissioner for Enterprise and Industry, and Charlie McCreevy, European Commissioner for the Internal Market and Services.

Some commentators have suggested that Barroso's agenda is linked to his desire to secure a second five year mandate. But it is almost certainly motivated by attempts to revitalise moves towards a European constitution.

It has been predicted that the push will be resisted by some members of the Commission, including Charlie McCreevy and Peter Mandelson, European Commission for Trade.

Mandelson has been in the press recently on the Global Europe Strategy Paper, emphasising trade and the use of bilateral Free Trade agreements (FTAs) with key growing markets. In a speech echoing sentiments of US approaches to "contractual law-making," Mandelson says, "We must keep the WTO as the fundamental platform on which to build global liberalisation. There will be no European retreat from multilateralism. But we should also go beyond the EU's existing bilateral free trade agreements, by setting out the case for new free trade agreements designed to deliver more open markets and fairer trading conditions in new areas of growth, particularly in Asia". In that same speech, Mandelson emphasises the enforcement of intellectual property rights as central to the EU's trade strategy in China.

US-Malaysia Trade Talks

Monday this week, Malaysia and the US began talks towards a new trade agreement, with hopes of concluding the agreement at the end of this year, before the expiration in mid-2007 of the Bush administration's fast-track authority for legislative approval of international deals. In particular, the US is calling for an effective response to intellectual property piracy in the region, particularly trade in unauthorised copies of DVDs and computer software.

In March, the Prime Minister of Malaysia, Abdullah Ahmad Badawi, launched his plans for Malaysia to become the first developed Muslim nation by 2020. However, according to a report in the Financial Times, the Prime Minister is already facing strong political criticism for his economic reforms, making the passage of the US trade talks somewhat resisted. Further, it has been suggested that a US-Malaysia trade agreement would compromise Bumiputra laws, part of Malaysia's policy of affirmative action for ethnic Malays (motivated in part by the 13 May 1969 Chinese-Malay race riots).

The Second Finance Minister, Nor Mohammed Yakcop, has stated that Malaysia will insist on an agreement beneficial to the country, and will not be pressured by the deadline of 2007: "The FTA is an instrument that if it's beneficial for Malaysia, the country would use it; but if it is no longer in its interest, then Malaysia would not agree."

Trading in Tradition

As considered in previous blogs, free trade agreements (FTAs) are being examined as tools by which to impose legal obligations beyond those contained in multilateral agreements, such as the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). In a recent article produced by GRAIN in collaboration with Dr Silvia Rodriguez Cervantes, concerns are raised that traditional knowledge and indigenous peoples are increasingly vulnerable within such agreements because there is no international system of protection for traditional knowledge at the present time. Described in the article as "the latest threat to traditional knowledge," bilateral and regional FTAs are examined for the way in which they address traditional knowledge through the exclusive monopoly rights of intellectual property systems.

CAFTA Protest

US-Peru Agreement

In discussions that concluded last Wednesday, the United States and Peru have arrived at a bilateral trade agreement, known as a Trade Promotion Agreement (PTPA), despite the withdrawal of Colombia and Ecuador. As reported in IP-Watch, the Agreement includes provisions on data protection in pharmaceuticals - protection not required under TRIPS and restrictions which proved a major catalyst (as well as differences over farm trade issues) in the withdrawal of the other negotiating partners.

The expansion of bilateral trade agreements between the US and various countries has been strongly criticised by various groups, including Oxfam, CP-Tech, QUNO, and others, as a "back-door" to a global TRIPS-plus regime. In other words, the agreements have the effect of transforming certain interests into laws, laws which are increasingly "international" in scope through the expanding coverage of these bilateral agreements, despite never having been negotiated in international fora. For instance, many bilateral agreements override the option to exclude life forms from patent protection, as set out in TRIPS, or mandate the protection of biotechnological inventions.

However, the Peru-US Agreement is somewhat significant in that it is the first of its kind to include references to traditional knowledge, although it does so without any reference to intellectual property (see the report by ICTSD). My concern is that the text on traditional knowledge and genetic resources is distanced from the main text and thus the "main issues."

First, the references to indigenous cultures are marginalised physically in the side letter. Secondly, the Agreement separates these issues from the central concerns of intellectual property and trade. In making no reference to intellectual property with regard to biodiversity and traditional knowledge, the Agreement is not recognising the potential incompatibility between customary systems of traditional knowledge and intellectual property, but rather, is removing these concerns from any relationship to intellectual property. This relationship must be acknowledged in so far as these resources are frequently articulated within intellectual property systems, even if the customary management and subject matter is not necessarily dealt with justly in those systems. Thus, a mere reference in a side letter may instead risk obscuring the issues at stake when dealing with traditional knowledge. Thirdly, and related to the "absence" of intellectual property, the Agreement favours the use of contracts for genetic resources, rather than realising specific obligations (such as disclosure of origin in patent applications). But how can such contractual relationships give effect to a genuine bargain without first understanding the asymmetries in the relationships, not only with respect to benefits but also with respect to subject matter?

In an Agreement that apparently creates both a "level playing field" and a "two-way street," what more is round the corner apart from these geographical, indeed territorial, achievements?