En el discurso que pronunció el 20 de octubre en Ginebra ante una conferencia de la Federal Circuit Bar Association organizada en cooperación con la OMC, la Organización Mundial de la Propiedad Intelectual y la Oficina Europea de Patentes, el Director General Roberto Azevêdo dijo que “los dos últimos decenios han mostrado que el Acuerdo sobre los ADPIC puede proporcionar una base multilateral sólida y equilibrada para el crecimiento del comercio de productos y servicios ricos en conocimiento”. Señaló que el año pasado las exportaciones mundiales de regalías y derechos de licencias de propiedad intelectual ascendieron a 310.000 millones de dólares, cifra que casi iguala el total combinado del comercio de servicios de comunicaciones, de construcción y de seguros. El Director General dijo lo siguiente:
(de momento sólo en inglés)
Thank you, Mr Edgar Haug (president-elect of the FCBA), for inviting me to this event.
It’s a great privilege for me to join this distinguished gathering of jurists, legal practitioners and experts from around the world.
I congratulate the Federal Circuit Bar Association on this event and for putting together such an interesting programme. And I thank you for reaching out to collaborate with us in the international community here in Geneva.
The theme for this conference “Systems, Challenges, Solutions: Trade, Intellectual Property, Courts, and Governance” — has strong resonance for us at the WTO and in Geneva.
It is now 20 years since IP standards were built into the system of international trade law in the form of the WTO TRIPS Agreement.
Since then, IP has only grown in policy and economic significance.
The WTO currently deals with a host of international governance issues at the intersection of trade, IP and public policy.
Today, the WTO continues to play a crucial role in building and sustaining a transparent and rules-based multilateral trading system.
At the same time, we are also confronting a number of challenges. Dispute settlement is becoming ever more complex, and we must seek solutions to advance multilateral trade negotiations. IP is now and will remain an integral part of the trade policy mix.
Therefore, I’d like to use this time today to reflect on intellectual property within the multilateral trading system, after almost two decades of the WTO.
CREATION AND ELEMENTS OF TRIPS
At Punta del Este in 1986 — a generation ago — trade ministers laid the groundwork for negotiations on what they termed ‘trade-related aspects’ of intellectual property rights — or what we call ‘TRIPS’ for short at the WTO.
IP therefore formed part of the blueprint for the Uruguay Round of negotiations that produced the WTO itself, alongside trade in goods and trade in services.
In setting this ground-breaking mandate, ministers recognized the need to promote an effective balance between the adequate protection of intellectual property rights, on the one hand, and the benefits that such protection would bring to society, on the other hand.
At the same time, they also sought to ensure that IP enforcement did not itself create barriers to legitimate trade.
It was the start of a long multilateral discussion — one that actually continues today in many ways — about how balanced protection and enforcement of IP can be and can enable countries to prosper in international trade. How it can serve as a means of producing public goods based on innovation and creativity.
TRIPS was therefore very important, and in fact a landmark agreement.
It built substantive IP standards into multilateral trade law for the first time.
And it consolidated and strengthened the international framework for the national systems that grant, administer and enforce IP rights.
The text of TRIPS Agreement that entered into force 20 years ago updated, extended and codified substantive standards for a wide range of IP rights. It also incorporated into WTO trade law the key WIPO conventions, notably the Paris Convention on industrial property and the Berne Convention on copyright.
TRIPS broke new ground also in establishing multilateral standards for the balanced and effective enforcement of IP rights. In doing so it dealt directly with the interplay between trade and IP enforcement, with the goal of suppressing illegitimate trade — particularly counterfeit trademark and pirated copyright goods — while not infringing on legitimate trade.
And it linked IP standards with the WTO dispute settlement system. It therefore provided a multilateral avenue to deal with contentious IP matters between trading partners in a rules-based and transparent manner.
It also created a mechanism for monitoring and reviewing national IP legislation. It provides unprecedented transparency about national IP law-making and policy at a time of exceptional dynamism in this field.
TRIPS also reminds us that the IP system is a vital tool of public policy.
It spells out that the objective of IP protection is to contribute to the promotion of technological innovation and to the transfer and dissemination of technology.
IP protection should also operate to the mutual advantage of producers and users of technological knowledge, thereby helping to support social and economic welfare.
Much of the work on the TRIPS Agreement since then — in the WTO itself and in other international fora as well, WIPO for example — can be considered as a collective effort to give effect to these objectives across a wide range of sectors and national systems.
TRIPS ISSUES AT THE WTO
So let’s turn now to the TRIPS-related work that we do at the WTO. There are four areas that I would like to highlight to you.
First, as part of the monitoring function of the WTO, the TRIPS Council has closely reviewed the IP systems of some 130 WTO Members, going over more than 4,000 legal texts of Members implementing TRIPS.
This far-reaching review has covered the process of overhauling legislative, administrative and judicial mechanisms across the very diverse Membership of the WTO.
This is the most active and the most geographically inclusive period of legal and policy development ever witnessed in the field of IP.
What is particularly remarkable is that this process has proceeded largely under its own momentum. It has been driven by a growing collective recognition of the need for balanced and effective IP systems as a key ingredient for growth and well-being in an age where knowledge is central to trade and economic policymaking.
I turn to the second area of WTO IP activities. It concerns the work that the TRIPS Council has done on a range of public policy questions.
This development is part of the maturing of the work of the Council. Now that the initial phase of TRIPS implementation is largely concluded for all but the least developed countries of the WTO, the TRIPS Council is shifting gear somewhat. It is now moving to consider what could be called the ‘applied regime’ — comparative experiences of working on policy issues within the framework established by the TRIPS Agreement.
I will give you an example. Most recently, for instance, the Council has taken up an important debate among Members on the interplay between the IP system and responses to the challenges of climate change, and has discussed different aspects of innovation policy.
But public health is undoubtedly the TRIPS-related policy issue that has attracted the most attention over the past two decades.
As the world enters another international health crisis, we are reminded of the urgent need to encourage and enable health innovation, while also ensuring access to medical technologies for those that need it most.
In addressing this issue at the Doha Ministerial Conference in 2001, the Doha Declaration on the TRIPS Agreement and Public Health was a landmark for several reasons:
- The world’s trade ministers for one put on record their shared concern about the global burden of diseases, and the need for international action to address this matter.
- They also underscored that the IP system, and TRIPS in particular, formed part of the solution.
- They identified a number of ways in which TRIPS rules can support public health outcomes.
- And the Declaration itself mandated negotiations on a new flexibility, a new pathway for access to medicines for countries confronted with limited or no production capacity whatsoever. And as a result members were able to achieve an agreement on the first amendment to the entire package of WTO trade law, with the goal of promoting public health outcomes.
Furthermore, the Doha Declaration also helped reinforce the foundation for cooperation on public health issues within the multilateral system. For instance, in the wake of the Declaration, the WHO, WIPO and the WTO have increasingly joined forces to offer coordinated support to governments on issues at the intersection of public health, trade, and IP.
Last year we saw the launch of a joint trilateral study providing a unique overview of the full policy framework supporting innovation and access in medical technology.
The idea was to build a broad base for policy discussion and technical cooperation in this critical area, and to break down the silos of expertise that can impede much-needed collaboration across sectors.
And our coordinated, holistic approach to trilateral cooperation and policy dialogue has continued to evolve.
In two weeks, for example, I will welcome to the WTO my counterparts, the Directors-General of the WHO and WIPO, for a trilateral policy symposium.
So we are still working on coordinated effort.
Moving on, the third area of our work that I wanted to highlight is the discussion of TRIPS-related issues in the context of the Doha Round trade negotiations.
The Doha Ministerial Conference saw the launch of work within the WTO on several IP issues — aspects of protecting geographical indications, and the relationship of the patent system with the principles of the Convention on Biological Diversity.
I don’t think you will be surprised if I say that this work is currently showing little sign of progress — due to the situation in the negotiating arm of the WTO. We had a major breakthrough in Bali last December, with the unanimous agreement of the Bali package. And this promised a new era in negotiations.
However, WTO Members are now facing a considerable challenge in implementing what they agreed in December.
At present we don’t have a solution to the current impasse in our negotiations. We are working hard to find one.
I told all WTO members last week that we have to find ways to continue our work and to keep moving forward, while still trying to find solutions for the impasse.
As far as the TRIPS issues are concerned, they have also proven to be difficult in themselves, reflecting the strong interests and divergent views existing across the membership.
Interestingly the different positions we see today illustrate how the perceived divisions of the past — north vs south, developed vs developing — are giving way to a more complex and diverse range of interests within the framework of the IP system.
The longstanding geographical indications debate, for instance, sees different developed and developing countries joining together on both sides of the fence.
The final area of our work that I want to mention today relates to disputes.
The obligations under the TRIPS Agreement are subject to the WTO dispute settlement system, in the same way as trade disputes concerning goods and services.
Although there were concerns that developing countries would be on the receiving end of extensive litigation on IP protection, subsequent experience has again defied expectations of a simple north-south divide.
The bulk of TRIPS complaints have, in fact, been directed against developed countries, not developing countries.
For instance, the seven TRIPS complaints lodged in the past five years all originate from developing countries and challenge developed country practices.
To date, the TRIPS Agreement has been cited in 7% of all WTO disputes – 34 complaints in all, relating to 24 separate matters.
Many of these disputes have been settled by mutual agreement, reflecting a broad preference for positive-sum outcomes over contentious proceedings.
I myself was involved in two of those disputes which were amicably resolved.
Most of these disputes have also included claims referring to other WTO Agreements, such as agreements on goods and services. This confirms that Members see appropriate IP standards as a legitimate and integral element of the broader framework of trade law.
For lawyers and policymakers alike, the TRIPS disputes have yielded important jurisprudence shedding light on the delicate balance between the protection of IP rights and trade liberalization, and public policy questions.
One example, which is very familiar to patent lawyers, concerns the regulatory review exception under patent law.
This represents a specific tool for balancing legitimate patent rights against the due operation of the pharmaceutical regulatory system to facilitate access to medicine.
The appropriate scope of the regulatory review exception was clarified in a landmark TRIPS case in 2000, and this has subsequently facilitated its application in a range of national jurisdictions.
I would also like to highlight a true partnership that the WTO and the World Intellectual Property Organization have formed on a range of policy issues and on technical cooperation.
This event is one example of this excellent working relationship.
And the dispute settlement experience has also recalled that this relationship has an important, more formal legal component given that TRIPS incorporated the key WIPO treaties.
So despite early concerns that the international law of IP may become fragmented, or split into two streams, the actual experience with dispute settlement has the opposite outcome. Dispute settlement panels have made a practice of seeking factual information from WIPO about the drafting history of the agreements and subsequent practice of WIPO treaties.
In a series of cases, this information which we got from the WIPO guided the interpretation of provisions in and adapted from those treaties, strengthening the complementarity and coherence of international IP law.
So, as we look back on nearly 20 years of working with TRIPS, and as we look forward to the opportunities of the future, the picture is complex, but undoubtedly it is more positive than some earlier concerns may have suggested.
Since the introduction of the TRIPS Agreement, we have seen a revolution in the nature of international trade.
IP is increasingly integrated within traded goods and services — responsible for the ‘value added’ in a wide range of high-tech, branded and design-rich products, ranging from smart phones to fashion apparels to traditional food products.
And IP is now an object of international trade in its own right as new business models emerge in the music, publishing and software sectors.
Last year, reported global exports of IP royalties and license fees stood at 310 billion US dollars, just short of the combined total of trade in communication, construction and insurance services.
The dramatic increase in the knowledge component of trade underscores the relevance of IP in the contemporary international trading system.
And the past two decades have shown that the TRIPS Agreement can provide a sound and balanced multilateral foundation for the growth of trade in knowledge-rich products and services.
Intellectual property remains, nonetheless, a complex and even forbidding technical field for non-specialists.
The expertise that you bring to this conference is therefore not just impressive and illuminating for a general trade policy audience — it is essential.
I believe that an inclusive, active dialogue between IP specialists and the rest of us is now a vital ingredient of multilateral work.