Category Trade Agreements

The TRIPS Intellectual Property Waiver Proposal: Creating the Right Incentives in Patent Law and Politics to end the COVID-19 Pandemic

[Siva Thambisetty, Aisling McMahon, Luke McDonagh, Hyo Yoon Kang, and Graham Dutfield] ...This paper elucidates the legal issues surrounding the ‘TRIPS waiver’ proposal ... We analyse the different intellectual property rights relevant to the proposal – focusing primarily on patent rights and trade secrets – which are most relevant to the present COVID-19 vaccine context. We explain why the existing TRIPS flexibilities around compulsory licensing are incapable of addressing the present pandemic context adequately, both in terms of procedure and legal substance The extent of the current health crisis posed by COVID-19 is as undeniable as the current global response is untenable. Given the ongoing absence of sufficient engagement by the pharmaceutical industry with proposed global mechanisms to share intellectual property rights, data and know-how to address the pandemic, we argue that mandatory mechanisms are needed. The TRIPS waiver is an essential legal instrument in this context for enabling a radical increase in manufacturing capacity, and hence supply, of COVID-19 vaccines, creating a pathway to achieve global equitable access. Click here for more.

World trade organization’s export-oriented compulsory licensing mechanism: Foreseen policy concern for Africa to mitigate the COVID-19 pandemic

[Muhammad Z Abbas] Abstract: Africa has a history of grappling with outbreaks and high prevalence of disease. It currently confronts COVID-19 which is escalating because of local community transmission of the disease. Poorly resourced health systems in Africa are ill-prepared for the surging number of COVID-19 cases. This paper emphasizes that in the current battle against COVID-19, policymakers should not lose sight of future policy challenges.

New Paper Shows Data Exclusivity Linked to Higher Prices of Pharmaceutical Imports

[Mike Palmedo] Some studies that estimating the impact that trade agreements have had on medicine prices have found it to be small, as the effects take a long time to become fully apparent. Studies that have instead studied the effect of TRIPS-Plus rules required by trade agreements – such as patent term extensions, rules on the protection of test data – have often found significant impacts on prices or availability of medicines. Many of the existing studies have focused on one country, and/or on a few drugs. In a new working paper, I take another approach by focusing on one TRIPS-plus provision required by all US trade agreements and demonstrating that the provision has been associated with faster inflation of imported pharmaceutical import prices in a set of 42 countries. Specifically, the price of drug imports rose on average between 2.4 and 4.5 percentage points faster in the countries that had implemented data exclusivity than in those without it.

Afraid to Lead: Canadian Government Launches Timid Consultation on Implementing Copyright Term Extension

[Michael Geist] After years of rejecting copyright term extension beyond the international law standard of life of the author plus 50 years, the Canadian government caved to pressure from the United States by agreeing to the equivalent of life of the author plus 70 years in the U.S.-Canada-Mexico Trade Agreement (USMCA). As part of that agreement, Canada obtained a 30 month transition period that would allow for consultation on how to implement the copyright term obligation. That consultation was launched late yesterday, with the two departments responsible for copyright – ISED and Canadian Heritage – launching the consultation and a consultation document. The consultation period is very short with responses due by March 12, 2021. The department says that all responses will be made available online once the consultation is concluded.

Intellectual Property in the EU–MERCOSUR FTA: A Brief Review of the Negotiating Outcomes of a Long-Awaited Agreement

[Roxana Blasetti and Juan I. Correa] This paper provides a first glance at the Intellectual Property Chapter of the Free Trade Agreement (FTA) between the Southern Common Market (MERCOSUR) and the European Union (EU). It is not intended to provide an exhaustive analysis of the commitments involved but rather to briefly review the scope of intellectual property in the bi-regional negotiations, which took more than 20 years and ended in June 2019 with an “agreement in principle.” It also aims to put the Chapter into context with the whole commitments covered by the FTA and, finally, to highlight its most relevant aspects.

Revisiting the Question of Extending the Limits of Protection of Pharmaceutical Patents and Data Outside the EU – The Need to Rebalance

[Daniel Opoku Acquah] The European Union (EU) has instituted internal and external measures aimed at protecting and enforcing intellectual property rights. In the area of pharmaceutical patents, the Union has also sought to protect its industries through patent term extension and data exclusivity. Recent EU free trade agreements (FTAs) with developing countries contain chapters on intellectual property that extend patent terms and data exclusivity for pharmaceutical products. Such acts further prolong the lifespan of protection given to existing products and limit generic market entry.

Balanced Copyright in RCEP

The Regional Cooperation for Economic Partnership (RCEP), signed on November 15, 2020 by sixteen countries in the Asia Pacific region, includes language on copyright exceptions that builds on provisions that appeared in the Comprehensive and Progressive Trans Pacific Partnership Agreement (CPTPP) and the Korea US Free Trade Agreement (KORUS).

Multilateral Matters #7: The draft Protocol on Intellectual Property Rights to the African Continental Free Trade Agreement (AfCFTA): Annotations on Genetic Resources, Traditional Knowledge and Cultural Expressions

[Wend Wendland] The continent-wide free trade zone created by the Agreement Establishing the African Continental Free Trade Area (the AfCFTA) has the potential to catalyse intra-African trade, boost economic development and lift tens of millions of Africans out of poverty. From a trade and development perspective, the AfCFTA advances a fresh trade model focused on inclusive and sustainable development. In recognizing the centrality of intellectual property (IP) protection in today’s economy, and the benefits of continental cooperation on IP, the AfCFTA will include a Protocol on IP, an early draft of which has been published. Finalization of the IP Protocol holds the promise of a home-grown, single, coherent and Africa-centred IP regime. This could harmonize the fragmented IP landscape of today while safeguarding national policy space on key issues, strengthen the hands of African negotiators in international forums and even help propel currently deadlocked international negotiations towards the finish line. This blog post examines the elements of the draft Protocol related to genetic resources, traditional knowledge and traditional cultural expressions (expressions of folklore). It is too soon to tell whether the IP Protocol will realise its promise and advance the policy objectives, principles and transformative potential of the AfCFTA. Future drafts of the Protocol will be followed closely by “Multilateral Matters”.

EIFL-KLISC Fact Sheet on US-Kenya Trade Talks

[Electronic Information for Libraries] EIFL and our partner library consortium in Kenya, the Kenya Libraries and Information Services Consortium (KLISC), have issued a fact sheet on the proposed US-Kenya Free Trade Agreement (FTA), a comprehensive bilateral trade agreement that aims to strengthen economic ties between the US and Kenya... At least 20 priority areas for negotiation have been identified, including intellectual property (IP). However, any requirement to apply a standard of IP protection similar to that found in US law to Kenya, as a developing country, raises significant concerns among libraries and other civil society stakeholders.

A New Trend in Trade Agreements: Ensuring Access to Cancer Drugs

[Maria Fabiana Jorge] Abstract: ... prices are clearly out of reach for most patients who will need them increasingly more to stay alive. While competition is critical to ensure lower drug prices, we have seen a number of strategies, including through trade agreements, to prevent competition and extend monopolies over these drugs and their very high drug prices. It is no accident that the exclusivity granted to biologic drugs has been one of the most conflictive provisions in recent trade agreements such as the United States-Mexico-Canada Agreement (USMCA) and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). Nevertheless a new trend in trade agreements started in 2007 when U.S. Members of Congress pushed back against the interests of powerful economic groups seeking longer monopolies for drugs.

Sen. Tillis Asks USTR to “Prioritize Strong Intellectual Property Protections” in Agreement with India

Thom Tillis, Chairman of the Senate Judiciary Subcommittee on Intellectual Property, has written U.S Trade Representative (USTR) Robert Lighthizer asking him to "prioritize strong intellectual property protections" in a trade agreement currently under negotiation with India. His letter states that "India has an unusually restrictive market when it comes to biopharmaceutical innovations," and notes that it is regularly included in the Special 301 Report.

United States: An Obsolete Trade Practice Undermines Access to the Most Expensive Drugs at More Affordable Prices

[Maria Fabiana Jorge] Access to affordable drugs is a top policy priority for the United States with real bipartisan support but it increasingly seems to be an unreachable goal, in part, due to conflicting government policies. While the Administration’s Blueprint to Lower Drug Prices and Reduce Out-of-Pocket Costs highlighted the importance of competition to ensure lower drug prices, U.S. trade policy in general, and the Special 301 Annual Review in particular, do exactly the opposite: broaden and lengthen the monopolies granted to pharmaceutical companies thus delaying or deterring the launch of generic and biosimilar drugs and with that, the chances of lowering drug prices.