Intellectual Property: Americas Trade Deal May Not Cover Intellectual Property

William New
National Journal

While intellectual property rights may not be the top issue on the agenda of Western Hemisphere trade ministers when they meet for negotiations in Miami next week, it will be part of the debate.

The issue takes several shapes in free-trade agreements, but in the Free Trade Area of the Americas (FTAA) being negotiated by 34 hemispheric nations, it may be dropped altogether. In trade negotiations, the United States typically pushes for stronger intellectual property protections, and the FTAA is no different. But Brazil, the U.S. counterweight in leading the talks, has indicated that it would like to see the topic dropped from the FTAA, sources said.

That would fit nicely with the wishes of some nonprofit groups following the talks, such as the Consumer Project on Technology (CPT), which on Wednesday held an event for congressional staff and others to explain its position.

The CPT event focused heavily on preventing exceptions from compulsory licensing for pharmaceuticals but touched on other intellectual property areas as well. Under compulsory licensing, an exclusive patent on a product can be overridden to serve the public good.

In the FTAA, the United States is trying to restrict compulsory licensing to reasons of antitrust and government use, according to CPT Director James Love. U.S. negotiators are trying to change the compensation for such licensing from the measure of "adequate," under World Trade Organization rules, to the equivalent of lost profits, according to Rob Weissman, a CPT attorney.

The message to drop intellectual property from FTAA talks will be conveyed to ministers in their meeting with officially sanctioned nonprofits, including CPT, next Wednesday, he said.

Nonprofits in Miami also seek to drop investment language from the FTAA. The provisions favoring investor nations that the United States has favored in trade agreements since the North American Free Trade Agreement (NAFTA) have raised concerns since their inception. The provisions, which were included in NAFTA to protect businesses from non-competitive actions by the other governments in the treaty, have several downsides for consumers, Weissman said.

The investor clauses effectively prohibit compulsory licensing and prohibit government expropriation of private assets without compensation. But they dramatically expand the definition of expropriation to cover any action that is "tantamount" to expropriation. In addition, the clause permits companies to sue governments directly for regulations or legislation. Some NAFTA cases have sought tens of millions of dollars.

The Nov. 16-21 Miami ministerial is drawing the attention of anti-globalization protestors and may see a number of events in the periphery. One event outside the secure negotiating area will be a workshop on negotiating intellectual property provisions in trade agreements that will look at issues involving patents, trademarks, copyrights and other intellectual property.

The goal of the workshop is to give negotiators a "toolkit" of information about basic concepts of intellectual property law, implications of provisions in trade agreements and alternatives.

Another event scheduled for inside the negotiating area will focus on access to information and the copyright and related rights provisions in the FTAA.

Separately, in a Wednesday meeting with Latino business and community leaders, U.S. Trade Representative Robert Zoellick reinforced the objective of negotiating on investment. He also highlighted the U.S. goal of building "networked information societies."

By William New

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