ABSTRACT
In a letter published in the Financial Times on 24 May 2007, a number of academics and trade experts warn the European Union (EU) that strict standards for the protection of Intellectual Property Rights (IPRs) in Economic Partnership Agreements (EPAs) may undermine social and economic development, especially in least-developed countries (LDCs). They write: ‘All available evidence indicates that increased levels of greater intellectual property protection will generate more costs than benefits for ACP countries’ (Correa 2007). EPAs are negotiated in order to put economic cooperation systems in place between groups of African, Caribbean and Pacific (ACP) countries and the EU that will stimulate development and are compatible with the principles of the World Trade Organization (WTO). This requires a high level of reciprocity in trade in goods. As far as services are dealt with in EPAs, the provisions of the General Agreement on Trade in Services (GATS) Article V must be taken into account. The Agreement on Trade-Related Intellectual Property Rights (TRIPS), however, contains no parallel provision in this regard and there is, therefore, no compelling reason flowing from WTO law to include new IPR obligations in EPAs. Yet the trade-related issues, and IPR protection as one of them, have become a serious bone of contention in the EPA negotiations. This chapter will shed light on the different negotiating positions on this issue and will analyse the negotiating process, in particular for the relations between the EU and the Southern African Development Community (SADC). The Intellectual Property (IP) landscape has changed drastically over the last few years. Developed countries have always pursued the interests of their rights holders, but now IPRs are an essential feature of their overall growth strategy. IP protection and enforcement are particularly important measures in this approach; comprehensive and sophisticated IP provisions which go beyond the TRIPS Agreement are certain to find their way into any future trade arrangement. Our concern, however, is more immediate – will IPRs be included in the current EPA negotiations; and if so, in what manner will these be included? The second section of this chapter examines this new accelerated IP approach and tries to gauge the degree in which the EU wants to include IPRs in the current EPA
negotiations. This new approach differs drastically from the usual EU approach followed in previous arrangements and warrants careful analysis. Many developing countries have no IP strategy in place. The continuing absence of any IP policies in the ACP countries became particularly evident during the EPA negotiations. The SADC EPA configuration categorically resisted any negotiations which could lead to binding commitments, and this point of view was shared by many of the other ACP configurations. This was the official negotiating position – but do all the countries within the various configurations share the same sentiments? Thinking about IP has been evolving in some developing countries and the links to development have been recognized. But how is this belief reconciled with the aspirations of the overarching group? The SADC EPA group is a prime example of differentiation within a configuration. The current configuration includes four LDCs, three developing countries with various degrees of development, and another country – South Africa – that has already signed an agreement with the EU. The third section considers the general approach to IP by developing countries, and furthermore analyses the IP policy, or absence thereof, of the SADC EPA group in finer detail in the fourth section. The structure and setup of the SADC EPA is unique, with particular challenges only applicable to this specific configuration. EPAs will replace the current Cotonou arrangement in place between the ACP countries and the EU. Parties have already agreed to certain terms and conditions in the Cotonou Agreement and the EPA negotiations must be guided by these accepted principles. Section five evaluates the guiding principles of Cotonou and determines whether the EPAs should contain an IP chapter, and what should be addressed. A critical feature of the anticipated EPAs is WTO compatibility. Countries have been struggling to successfully conclude EPAs; this – and other reasons – have influenced the EU to propose a type of temporary arrangement. These interim agreements that focus on trade in goods only, are provisionally implemented to prevent the interruption of market access into the EU in 2008. The chapter looks at how these interim agreements are implemented and how they function. The EU insists that the agenda of trade-related issues (including IPRs) be dealt with at a later stage. The chapter concludes with the outcome of the EPA negotiations and the manner in which the rest of the agenda has been built into the interim agreements.
