IntroductionThe eighthround of global trade negotiations carried out under the GATT began in 1986with a meeting in Punta del Este and was concluded in April 1994 in Marrakesh.The round produced some important results for the liberalization ofinternational trade and relevant administrative reforms were put in action.
With the Uruguay Round, moreover, intellectual property rights (IPRs)officially entered into the multilateral system of trade. Intellectual property is defined by the WorldIntellectual Property Organization (WIPO) as referring to “creations of themind, such as inventions; literary and artistic works; designs; and symbols,names and images used in commerce”. Intellectual property rights are protectedin law by patents, copyright, trademarks and other instruments to recognize orfinancially benefit people from what they invent or create. The IP system’sgoal is to help creativity and innovation to flourish; moreover, IPRs try toensure the right balance between the interests of those who hold the rights tointellectual property and those who seek to use that property.
In so doing, theypromote innovation and create research incentives, which drives economic growth(European Parliament, 2017).Recent studies demonstratethe important contribution of intellectual property rights to the American andEuropean economies. The differences between the respective IPRs systems arecomparatively small, yet seen as hard to overcome. The negotiation of the EU-USTransatlantic Trade and Investment Partnership may present the opportunity fora step change in EU-US relations in respect of intellectual property rights(European Parliament, 2014, p. 1).The Trade-Related Aspects of Intellectual PropertyRights (TRIPs) AgreementSince 1994, defining the international application of internationalproperty rights has become a major preoccupation for the General Agreement onTariffs and Trade (GATT) system and for the World Trade Organization (WTO). Inthat year, indeed, an international agreement about the application of intellectualproperty rights was concluded: the Agreement on Trade-Related Aspects of IntellectualProperty Rights (TRIPs). As many other agreements concluded under the WTO, the TRIPs agreementwas integrated with some previously concluded conventions on the matter ofintellectual property rights, the most important being the Paris Convention forthe Protection of Industrial Property adopted in 1883 and the Berne Convention forthe Protection of Literary and Artistic Works concluded in 1886.
The problem of intellectual property rights hasincreasingly become an important issue for international trade. For a longperiod, many newly industrializing countries (NICs) and least developedcountries (LDCs) opposed to involving the issue of IP into the multilateralsystem, asserting that a specific international organization, expressly createdto handle multilateral conventions on the question, already existed since the endof the 20th century: this was the WIPO. Nowadays, the reciprocal sustaining relationbetween the two organizations represents a successful case of cooperationbetween international organizations, despite their differences in structure,goals and mechanisms. In the 1980s and 1990s, a number of the most economically advancedindustrialized nations faced increasing competition in manufactured exportsfrom NICs in Asia and Latin America. This increasing competition focusedattention on domestic policies of these nations that may adversely or evenunfairly disadvantage American or European trading interests (Treibilcock,Howse, Eliason, 2013, p. 514). As amatter of fact, before the Uruguay Round, many NICs and LDCs did not protect orinsufficiently protected intellectual property related to more technologicallyadvanced countries: piracy, trade mark forgery and systematical violation ofpatents were commercial strategies largely abused in some geographical areas,and had become real instruments of economic policy for some countries.
The main concerns which dominated the developed-country demands werethat, firstly, many developing countries had often afforded a shorter period ofpatent protection to products such as pharmaceuticals than the United States andmost European countries, with the result that domestic imitations of theseproducts often dominated developing-country markets and the original NorthAmerican or European producer who financed the innovation in the first placefaced a resultant loss of potential foreign sales. Furthermore, thepatent-granting process has been seen as lacking in transparency, legalsecurity and certainty in many developing countries. Finally, the tolerance ofsome developing-country governments with respect to the production and sale ofpirate sound recording and videos, and their attachment to cheap imitations whichhave no relationship to the original producer’s own manufactures, sharplyinfluenced the resistance of those countries as well. (Treibilcock, Howse,Eliason, 2013, p. 514). The attempt to introduce the issue ofintellectual property rights into the negotiations of the Tokyo Round failedbecause of the resistance of the developing countries. As a result of thepersistence of the abuses of the use of intellectual property rights, the USA,the Japan and the European Communities (CE) decided to introduce in theirterritories unilateral measures of retaliation against the firms of thosecountries which did not respect the intellectual property related to them.
Consequently, many developing countries and LDCs agreed to start thenegotiations in the Uruguay Round; those countries, however, asked to the mosttechnologically advanced countries to took on precise commitments about thetransfer of technologies, about the installation of the production units andabout the formation of local workers in order to accelerate the development ofthe less advanced areas, as a condition for starting the consultations. Underthese provisions, the negotiations were concluded and the agreement wasstipulated. Further steps towards an improvement in the dealing of the issue weremainly the Pharmaceutical Access Act of 2003 and the consequent decision tomake it permanent and to officially introduce it into the TRIPs agreement. It is in this manner that the issue of intellectual property rights hasbecome a prominent item on the trade agenda, as reflected in the extensiveprovisions on intellectual property in both the Uruguay Round Final Act and theNorth American Free Trade Agreement (NAFTA), and the very far-reaching’TRIPS-plus’ provision of more recent Preferential Trade Agreements(Treibilcock, Howse, Eliason, 2013, p. 514).The TRIPs Agreement consists of seven parts:1. A statement of general principlesand of the interaction of the Agreement with the Paris and Berne Conventions;2. Substantive norms with respect tothe protection of the various forms of intellectual property;3.
Obligations with respect to the domesticenforcement of intellectual property rights;4. Obligations with respect to thefacilitation in domestic legal systems of the acquisition and maintenance ofintellectual property rights;5. Dispute settlement;6.
Transitional arrangements;7. A WTO-based institutional frameworkfor TRIPs.The Agreement in the Uruguay FinalAct represents a complex balance between conflicting national perspectives andinterests with respect to the protection of intellectual property rights (Treibilcock,Howse, Eliason, 2013, p. 528). The Transatlantic Trade and Investment Partnership(TTIP)The Transatlantic Trade and Investment Partnership is a proposed tradeagreement between the United States and the European Union, whose aim is thepromotion of trade and multilateral growth “on both sides of the Atlantic”, toincrease employment and competitiveness, as well as creating a common approachto global trade. The TTIP would create the world’s largest Free Trade Agreement(FTA), as the USA and EU accounted for almost half of global GDP and 30% ofworld trade in 2012 (European Parliament, 2014, p. 25).
The TTIP is the largest bilateral trade initiative ever negotiated accordingto Karel de Gucht, European Commissioner for Trade between 2010 and 2014, notonly because it involves the two largest economies in the world but also”because of its potential global reach in setting an example for futurepartners and agreements”. Even if the initial intentions were good, the agreement is far frombeing concluded, as there are still many outstanding issues, especially in thearea of market access. In general, it presents many controversial elements andit is source of disagreement from all over the world. The deal was designedby the ‘High Level Working Group on Jobs and Growth’ (HLWG), which was set upin 2011 and chaired by the European Trade Commissioner Karel De Gucht and thethen US Trade Representative Ron Kirk. In its final report, the Group not onlyrecommended entering into the negotiations but went into some detail as to whatshould be put on the table, with the far-reaching aim of moving towards a”transatlantic marketplace.” (Todhunter, 2014). On the 14th of June 2013, the Member Statesof EU gave the European Commission the green light to start talks with theUnited States and adopted clear guidelines for the European Commission. Inparticular, the Member States asked the European Commission to ensure “abalanced outcome between the elimination of duties, the elimination ofunnecessary regulatory obstacles to trade and an improvement in rules, leadingto a substantial result in each of these components and effective opening ofeach other’s markets.
” (EuropeanCommission, 04/2016, p. 2).Twenty-four joint EU-US working groups are set for workingand developing the TTIP Agreement texts, each of them considering a separateaspect of the deal. Negotiations should be held in weekly cycles alternatingbetween the USA and Brussels. The negotiators were hoping to conclude their work by the end of 2016,but it did not happen.
In 2014 the European Commission released somedocuments about the negotiations, in which the main areas treated areunderlined; those are: market access, regulatory convergence and non-tariffbarriers (NTBs) and, finally, broader rules, principles and modes of co-operationfor global trade. The TTIP includes chapters on market access for goods and services thataim to remove “custom duties on goods and restrictions on services,gaining better access to public markets, and making it easier to invest”. Thegoods part includes rules on market access for goods, agriculture and processedagricultural products, and rules of origin. The European objective is to ensurean ambitious and balanced outcome across the three main market access areas(tariffs, services and public procurement) (European Commission, 04/2016, p. 4).As for regulatory cooperation, the EU aims to establish a framework forenhanced cooperation between regulators from both sides in a way that reducesobstacles to trade, and which provides specific outcomes on key industrialsectors.
The main principle followed is that outcomes would never lowerexisting standards of protection (European Commission, 04/2016, p. 5).Finally, the last part, which is about general rules and modes ofco-operation, sees the EU wanting to contribute to the development ofinternational trade rules, both bilaterally and in the multilateral context.The main areas discussed are: sustainable development, competition, investmentprotection, customs and trade facilitation, energy and raw materials andintellectual property rights.Many concerns have arisen about the transparency and democratic base ofthe agreement. About the issue, the European Commission has developed anunprecedented policy of transparency in the TTIP negotiations.
All the EUposition papers and negotiating proposals are made public shortly after theyare tabled in the negotiations (European Commission, 04/2016, p.6-7). Theparties of the agreement hoped to conclude the deal before the end of 2016; however,international circumstances have changed and the objective set could not beachieved. The decision of Great Britain to exit the European Union first, andthe change of Presidential Office in the USA with the election of Donald Trumpthen, have influenced the path of the conclusion of the TTIP, which is nowincreasingly uncertain. In particular, French and German ministers have blamedAmerican “protectionism” for the failure of the TTIP.
Indeed, the revival ofprotectionist ideas and the belief that opening to a higher liberalization oftrade with foreign countries would damage the domestic competition leaving theown country worse off, have stopped the process of conclusion of the agreementand it seems that the TTIP negotiations will go nowhere in the next years. Intellectual property rights in the TTIPIn the context of the TTIP, intellectual property rights are, asmentioned before, part of the broader rules on trade which are dealt in theproposed agreement. However, IPRs have always been controversial in international trade and theirregulation is difficult to solve in the TTIP as well.According to the European Commission, discussions are ongoing to identifyissues of common interest. Both sides have presented proposals on some ofpotential components of the TTIP.
The EU, for example, has made proposals onborder measures. The EU would also like to find a pragmatic solution toguarantee an appropriate level of protection for Geographical Indications (GIs)on agricultural products, foodstuffs and those wines and spirits not yetprotected under the existing 2006 EU-US bilateral Trade in Wine Agreement. (EuropeanCommission, 04/2016, p. 7). Both parties apply the WTO Agreement onTrade-Related Aspects of Intellectual Property Rights (TRIPs) as well as othermajor international conventions on IP rights. U.S.
policies are based onbroadly similar principles to EU rules, but some differences remain.With regard to the enforcement of intellectual property rights, the EUand the USA are both interested in high intellectual property rights standardsand in promoting strong policies against counterfeiting. However, positionsdiffer strongly on two main issues: geographical indications (GIs) andanti-piracy policy on the internet (European Parliament, 2017). GeographicalIndications are an important issue of IP for European countries, as many foodand drink products are produced or processed in specific regions; thoseproducts have ‘names of origin’ linked to the place they are from. The EU andthe USA currently protect names of origin differently: European laws protectthem as Geographical Indications, whereas US laws allow producers to protectthem as trademarks, but many European products are not registered and thus theyare not protected. Consequently, consumers in the USA are often lead to misleadsand European producers lose a lot.
That’s the reason why the EU would like tobetter regulate the issue, through an agreed list of protected EU GIs, withrules aiming to stop other users misusing them. From a U.S. perspective, whichprotects GIs through trademark law, it would appear to be very difficult tofind a solution within TTIP (European Parliament, 2017). Concerning anti-piracy policy on the internet, and aspects of copyrightin general, such as resale rights for visual artists and public performance andbroadcasting rights, the EU aims at agreeing with the USA stronger bindingcommitments than the existing ones.As underlined before, the USA and the EU,together with other industrialized nations, have always pushed for betterenforcement measures against counterfeit and pirated goods and for regulationof IP from the perspective of trade policy.
Moreover, a number of bilateral andregional Free Trade Agreements between the EU or USA and third countries haveincluded IPRs chapters or IPRs provisions going beyond the minimum standardsagreed at multilateral level (European Parliament, 2014, p. 1).Since an IP chapter is then expected to feature in the TTIP undernegotiation, as a joint effort to promoting strong IP protection globally(European Parliament, 2014 p. 1), the spontaneous question which arises is:what could this chapter give as added value to both parties, and especially,from an European point of view, why should European countries want suchagreement?Civil societies and consumer associations haverisen concerns about the advantages that the TTIP could give to the area ofIPR. As previously shown, the main concerns are about specific issues, such asGIs and copyright questions. These attentions, however, could really prove astumbling block in the talks due to differences of approach between theparties.
The common believe is that including copyright and patent provisionswill lock up technology and stifle independent innovation, leading ultimatelynot to job creation but to stagnating employment. Moreover, criticisms point tothe lack of transparency in similar deals such as the Anti-Counterfeiting TradeAgreement (ACTA) and the Trans-Pacific Partnership (TPP). Skepticism thatnegotiators take into account the broader interests of Internet users, then,arose: the belief is that TTIP will be another opportunity to have bindingACTA-like provisions. The Transatlantic Consumer Dialogue (TCD) has expressed concerns thatthe IP provisions in TTIP could “weaken the rights to health, culture andexpression of U.S. and EU citizens by unfairly limiting access to knowledge andaccess to medicine”. Additionally, some experts believe that, due to therejection by the European Parliament of ACTA, including IPRs in the talks couldjeopardize the entire deal, as many would make a connection between TTIP andACTA’s IP provisions. Moreover, they maintain that the differences in IPsystems between the EU and the USA are quite small, although hard to reconcile,and in any case they do not constitute significant trade barriers (EuropeanParliament, 2014, p.
26-27).Nevertheless, at the same time industry and business associations in theEU have been calling for the inclusion of IPRs in the TTIP, which could act asa framework for encouraging better protection of IP in third countries, as wellas innovation and technological development in the transatlantic economy (EuropeanParliament, 2014, p. 26).In February 2016 the European Commission released adocument which gives an overview of the situation of the negotiations at thattime, describing the goals it aims to achieve, which, for what concerns IPrights, are mainly the ones underlined above. The document also discusses somecontroversial issues between the parties, as well as in the public opinion, andproposes some ways to overcome them.
The firstcontroversial issue is the ACTA, which was rejected by the European Parliamentin 2012, reason why the EU assures that it is not willing to negotiate on rulesregarding questions such as penal enforcement and internet penal liabilityalready refused. Many concerns regard then the possibility of raising pricesfor new pharmaceutical products, but the EU guarantees that this won’t happenas European public health service really intends to keep on having a rightbalance between innovation and keeping medicines affordable. Finally, the EUreaffirms that the level of protection of GIs currently offered will never belowered (European Commission, 02/2016, pp. 46-48).Given these elements and explanations, Europeancountries should be able to see the benefits which a further regulation of IPRin international trade with the USA would give to them.
The chapter included inthe TTIP should provide enhanced protection of EU geographical indications, itwill not bring back potential controversial position of ACTA, andpharmaceutical products will still be at the same level of availability.As a matterof fact, a deeper regulation of IPRs with the USA should be seen as a mean tofurther stimulate innovation and creativity and, finally, as a source of economicgrowth.Of course, some changes are needed in order to makethe parties more confident about the advantages of a reciprocal and mutualregulation which goes over the extent of what has already been achieved underthe TRIPs Agreement.
There is a necessity of more transparency in the talks andof clarification about what exactly will be in the Agreement and what will not,about how the rights will be dealt and which are the main intentions of theagreeing parties. Only in this way will everybody understand how important andbeneficial a chapter about IP rights in such an agreement as the TTIP could be. ConclusionInnovation and creativity drive economic growth in both the EU and theUnited States. They also help give consumers more choice and create jobs.
Intellectualproperty rights reward individuals and firms that innovate or put theircreativity to work (European Commission, 02/2016, p. 49).Intellectual property is an issue that is hereto stay on the international trade agenda. A range of recent bilateral andregional trade agreements contain provisions that require intellectual propertyprotection above that stipulated in TRIPs. Such agreements have been used bydeveloped countries to further increase protection beyond the TRIPs level(Treibilcock, Howse, Eliason, 2013, p. 561). However,this expansion of IPRs, in multilateral and bilateral agreements, as well as tonew subject matters led mainly by developed countries, has raised a range ofconcerns and opposition from developing countries, mostly concerned withensuring transfers of technology and access to generic medicines (EuropeanParliament, 2017). Nevertheless, IP rights proved to be an important potentialfactor of growth for a nation, therefore many efforts have to be done toincreasingly improve their international regulation.
The Transatlantic Trade and Investment Partnership isone of the current “key arena of political struggle” (Krisis, 2016); itpresents many controversial aspects which have raised preoccupations. Moreover,it was inaugurated in a substantial different environment and in differentpolitical circumstances than the ones present nowadays. After the election ofDonald Trump as President of the United States of America, talks on TTIP haveofficially stopped in 2017. At the moment, the EU needs to clarify with its U.S.counterparts if there is sufficient level of shared ambition and common groundto resume negotiations (European Parliament, 2017).In itsresolution of the 8th of July 2015 containing recommendations to theEuropean Commission on the TTIP negotiations, the European Parliament called onthe European negotiators to ensure that the TTIP includes an ambitious,balanced and modern chapter on intellectual property rights (European Parliament,2017). The intentions shown in the subsequent negotiations between the EU andthe USA, if correctly analyzed, demonstrate that, despite the common concerns,the European countries would benefit from a regulation of IP rights in thecontext of the TTIP.
They should therefore try not to block the process ofnegotiations, but instead solve those causes of concerns, such as the problemof transparency, in order to impart the right messages about the issue. Finally, due to increasing protectionism andmistrust in the benefits of international trade and of mutual cooperation, wecannot be sure about the future of the TTIP Agreement . As for intellectualproperty rights, what has been achieved through the WTO regulation and theTRIPs Agreement is important; however we still are far from a considerable andcorrect regulation of one potentially substantial tool in innovation andeconomic growth.