Intellectual Property & Free Trade Agreements (International Intellectual Property Law Series)

306 Pages·2007·1.12 MB·English

by  Christopher Heath

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INTELLECTUAL PROPERTY AND
FREE TRADE AGREEMENTS
Intellectual Property and Free Trade Agreements presents the papers of the sixth
IP conference organised by the Macau Institute of European Studies (IEEM) on
intellectual property law and the economic challenges for Asia. The objective of
the conferences is to provide up-to-date information on developments in global
intellectual property law and policy and their impact on regional economic and
cultural development. The current volume deals with the implications of free
trade agreements for the international framework of intellectual property law,
a topic of enormous economic and legal importance given the increasing num-
ber of free trade agreements in force or under negotiation.
International Intellectual Property Law: Volume 4
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IEEM series on International Intellectual Property Law
The involvement of the Institute of European Studies of Macau (IEEM) in mat-
ters of intellectual property is based on annual conferences that take up topical
issues of intellectual property from a comparative perspective with a particular
focus on Asia and Europe. The first of these conferences was held back in 2000,
and has meanwhile become an annual event complemented by an Intellectual
Property School and IP Master Classes. All three venues serve as a platform for
academic teaching and discussion on intellectual property awareness and the
proper place and function of intellectual property law in the context of society
and public interest.
From the very start, the intellectual property conferences, the IP Law School
and the Master Classes have enjoyed the support, assistance and commitment of
Mr Gonçalo Cabral, who is an advisor to the Government of Macau, of
Ms Maria do Céu Esteves, past president of the IEEM, and the IEEM’s current
president Dr. José Luís de Sales Marques. The latter was also instrumental in
setting up an IEEM chair for intellectual property law at the University of
Maastricht, currently held by Anselm Kamperman Sanders, thereby further
contributing to IEEM’s academic commitment to the field of intellectual
property law.
The conference papers, as revised and updated, are edited by Christopher
Heath and Anselm Kamperman Sanders as an IEEM Intellectual Property Series
the volumes of which are listed below:
1. Intellectual Property in the Digital Age—Challenges for Asia
Christopher Heath and Anselm Kamperman Sanders (eds)
Published by Kluwer Law International 2001
ISBN 90-411-9847-4
2. Intellectual Property in the Bio-Medical Age—Challenges for Asia
Christopher Hea th and Anselm Kamperman Sanders (eds)
Published by Kluwer Law International 2003
ISBN 90-411-9926-8
3. New Frontiers of Intellectual Property Law
Christopher Heath and Anselm Kamperman Sanders (eds)
Published by Hart Publishing 2005
ISBN 1-84113-538-0
4. Intellectual Property and Free Trade Agreements
Christopher Heath and Anselm Kamperman Sanders (eds)
Published by Hart Publishing 2007
ISBN 978-1-84113-801-5
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Intellectual Property and
Free Trade Agreements
Edited by
Christopher Heath and
Anselm Kamperman Sanders

OXFORD and PORTLAND, OREGON
2007
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Published in North America (US and Canada) by
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Preface
The editors hereby present papers of the sixth IP conference organised by the
Macau Institute of European Studies (IEEM) on intellectual property law and
the economic challenges for Asia.
The objective of the conferences is to provide up-to-date information on
developments in global intellectual property law and policy and their impact on
regional economic and cultural development. The current volume deals with the
implications of free trade agreements for the international framework of intel-
lectual property law, a topic of enormous economic and legal importance given
the increasing number of free trade agreements in force or under negotiation.
The interest the US and the EU have taken in inserting IP protection standards
in such agreements uncomfortably show that WTO/TRIPS marked not the end,
but rather the beginning of a spiralling upward trend towards more and
stronger IP protection, often with a corresponding loss of commons contrary to
public interest. Thus, most of the contributions in this book are rather critical
not only regarding the coercion particularly developing countries are subject to
when negotiating bilateral free trade agreements, but also with the level of IP
protection and enforcement these agreements demand.
The success of the past IEEM intellectual property law seminars have turned
the venue into an annual event that since the year 2005 has been coupled with
the IP Law School and the IP Law Master Classes. The IP Law School is a unique
initiative in Asia offering a taught programme in international intellectual prop-
erty law and its relevance for Asian, European and global economic develop-
ment and innovation policy. The Master classes are much more topical and are
taught jointly by the regular IP Law School team and expert speakers at the IP
Seminar. The IP Law School and Master Classes form a seamless companion

programme to the Annual Intellectual Property Seminar. The seventh confer-
ence in 2006, whose proceedings are forthcoming, analysed the issues of spares,
repairs and intellectual property rights, while the eighth conference in 2007 will
look at intellectual property and the pharmaceutical industry.
The editors would specifically like to thank Mr. Gonçalo Cabral, who has
been instrumental in organising both the IEEM annual seminars and the intel-
lectual property summer school, and José Luís de Sales Marques, President of
the IEEM, for his continuing support for both venues. The Netherlands
Organisation for Scientific Research (NWO-ISW # 460-05-008) provided addi-
tional means to get the manuscripts in shape for publication. Moreover, the
seminars would not have happened without the tireless commitment of
Bentham Fong and the other staff members of IEEM in Macao. Last but not
least, the editors would like to thank Richard Hart for having agreed to publish
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vi Preface
the proceedings of this and future conferences as a series on international intel-
lectual property law.
Christopher Heath and Anselm Kamperman Sanders
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Contents
Preface v
Detailed Table of Contents ix
On the Authors and Editors xvii
Part I General Issues
Chapter 1 The Development Agenda for Intellectual Property 3
ANSELM KAMPERMAN SANDERS
Chapter 2 TRIPS-Plus Rules under Free Trade Agreements 27
JAKKRIT KUANPOTH
Part II Law and Policy of Multilateral v Bilateral Agreements
Chapter 3 The Changing Landscape of International Intellectual
Property 49
DANIEL J GERVAIS
Chapter 4 TRIPS and FTAs: A World of Preferential or Detrimental
Relations? 87
ROGER KAMPF
Chapter 5 The Most-Favoured Nation Treatment and Intellectual
Property Rights 127
CHRISTOPHER HEATH
Part III FTAs and Patents
Chapter 6 Parallel Imports of Pharmaceuticals—Doha versus Free
Trade Agreements 157
NG-LOY WEE LOON

Chapter 7 Free Trade Agreements, UPOV and Plant Varieties 171
MARISTELA BASSO & EDSON BEAS RODRIGUES JR
Part IV FTAs and Copyrights
Chapter 8 Exporting the DMCA through Free Trade Agreements 211
ANDREW CHRISTIE, SOPHIE WALLER &
KIMBERLEE WEATHERALL
Chapter 9 Copyright and Free Trade—A Korean Perspective 245
BYUNG-IL KIM
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Part V FTAs and Antitrust
Chapter 10 International Antitrust and Intellectual Property 261
ANDREAS HEINEMANN
Index 283
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Detailed Table of Contents
Preface v
On the Authors and Editors xvii
Part I General Issues
Chapter 1—The Development Agenda for Intellectual Property
Rational Humane Policy or ‘Modern-day Communism’? 3
ANSELM KAMPERMAN SANDERS
I. Introduction 3
II. Plan 4
III. The Development Agenda 5
IV. Access to essential medicine 9
V. Compulsory Licensing and the Flexibility of the 10
TRIPS Agreement
VI. Data Exclusivity 14
VII. Incentives for innovation 16
VIII. The Development Agenda and IPR policy 19
IX. In conclusion 21
X. Post Script 24
Chapter 2—TRIPS-Plus Rules under Free Trade Agreements: 27
An Asian Perspective
JAKKRIT KUANPOTH
I. Introduction 27
II. General background of FTAs 27
III. TRIPS-plus rules and their impact on access to medicines 30

1. TRIPS-plus rules on pharmaceutical patents 32
a) Patentable subject-matter 32
b) Compulsory licensing 33
c) Revocation of patents 35
d) Parallel imports 36
e) Prohibiting pre-grant opposition 37
f) Term of protection 37
g) Linkage of drug registration and the patent
status of a drug 38
2. Data protection 38
IV. TRIPS-plus rules and their impact on agriculture 39
V. TRIPS-plus rules and their impact on access to
knowledge 42
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x Detailed Table of Contents
1. Extension of the term of copyright protection 42
2. Digital Agenda under the US FTAs 42
a) Anti-circumvention provisions 43
b) Temporary copying 43
c) Internet service provider liability 44
VI. Conclusion 44
Part II Law and Policy of Multilateral v Bilateral Agreements
Chapter 3—The Changing Landscape of International Intellectual
Property 49
DANIEL J GERVAIS
I. Introduction 49
II. TRIPS Lessons 51
1. The Emergence of the TRIPS Agreement 51
2. Post-TRIPS Developments in the WTO 55
3. TRIPS and Public Health 55
4. TRIPS and Traditional Knowledge 58
5. Factors Influencing Current Changes 58
III. Economic Analysis 62
1. Recent Economic Surveys 62
a) Impact of intellectual property protection on
economic growth 62
b) FDI vs trade 64
c) FDI vs ‘comfort levels’ 69
2. ‘Balance’ 72
3. WIPO’s Development Agenda 74
4. Bilateral Trade Agreements and Intellectual Property 76
IV. Towards a Comprehensive Knowledge Strategy 76
1. TRIPS Viewed as Part of the ‘Right Balance” 78
2. Intellectual Property as Part of an Economic
Development Strategy 80
3. Towards a National Strategy 83
a) Priority setting 83
b) Education and Institutional Capacity Building 84
c) Subsidies 85
d) FDI ‘marketing’ 85
e) Non IP- Regulatory Adaptation 85
f) Patent mining 85
V. Conclusion 86
Chapter 4—TRIPS and FTAs: A World of Preferential or Detrimental
Relations? 87
ROGER KAMPF
I. Introduction 87