Having raised curiosity on the effectiveness of Article 67 of TRIPS in 'TRIPPING on IP Technical Assistance parts I and II', this blog is pleased to host this comment by Tom Suchanandan of the South African Department of Science and Technology. Taking a slightly different perspective, this is what Tom had to say regarding the use of FTAs by developed countries to derogate from the flexibilities under TRIPS:
"Just some concerns which should be brought to the fore in the implementation of Article 67 of TRIPS. It is obvious that DC have no intention in committing to its implementation. FTA have been the vehicle to work around Article 67. In all fairness DC should take measures to clarify and where necessary amend FTA provisions. My concern is that most FTA have a non-derogation clause – hence it is not clear if this clause would override a specific obligation to relinquish flexibilities under TRIPS.
A careful study of these FTAs seems to effectively take away flexibilities under TRIPS in many respects for example protection of information. Some of these FTAs go even further and require automatic patent term extension. So what’s the point in having domestic IP offices when the rules of engagement are determined outside national borders. What is more ridiculous in the FTAs is that test data and term of protection are linked which effectively makes mockery of domestic laws. Perhaps DC should get together and ensure that all flexibilities under TRIPS should be retained and respected in the FTAs.
To ensure that flexibilities are respected the IP components in the FTAs must clearly spell the objectives of IP with the focus of assisting developing countries in strengthening their IP offices. Where developing countries have entered into FTAs should seek creative ways to amend or at least clarify those provisions that impede the development of strong national IP legislation. Similarly, those developing counties intending entering into FTAs should resist for example changing patentability or any other IP criteria to conform to DC standards.
In sum my view is that FTA’s have turned IP on its head – rather than having a harmonized treaties on patents, copyright etc we should have a treaty on FTA."
| Afro Leo & Zebra happily signed a FTA to swap diets |
Yet more questions?
Indeed, Afro Leo envisages how certain regional and bilateral FTAs between developed and developing/least-developed countries can become like suitcases stuffed with a copy of the TRIPS Agreement-PLUS and other IP brochures and manuals for the latter to swear by.
As this Leo knows little to nothing about FTAs, he would be grateful for further insights from other readers on this topic. So please do share any thoughts in general, or on the following:
(1) What do you think of the concern that "....most FTA have a non-derogation clause – hence it is not clear if this clause would override a specific obligation to relinquish flexibilities under TRIPS"?
(2) Should there be a "treaty" governing FTAs?
(3) Do FTAs derogate from specific obligations under TRIPS, in particular, Article 67?
(4) Is it better for African countries to negotiate and enter into FTAs as a bloc or bilaterally?
(5) Are African countries not yet well-represented or getting better at negotiating and entering into these IP-related agreements?
(6) Is this the sort of area where PAIPO (see here, here and here) becomes a welcomed development in terms of negotiating IP-related agreements on behalf of African countries?
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A short summary on the potential impact of FTAs on public health, see here
The failed US-SACU FTA in hindsight, see here
The potential impact of TRIPS-plus in the US-SACU FTA could have been, see here
