Best practices for intellectual property in international trade deals

By Jeremy de Beer

International law makers could help make the global knowledge governance system more transparent, participatory, legitimate, and effective by following best practice guidelines.

Intellectual property (“IP”) provisions in international agreements should not be negotiated secretly, but transparently. They should not serve special interests, but the public interest. And they should not be one-sided, but fair and balanced. This can be done by adhering to the Max Planck Principles for Intellectual Property Provisions in Bilateral and Regional Agreements (the “Principles”).

As IP issues become ever more intertwined with international trade, environmental sustainability, human rights, and many other issues, the fundamental nature of international IP legal instruments and the way they are negotiated is evolving. Recent procedural and substantive changes in international IP lawmaking have triggered a variety of criticisms from both academics and non-governmental organizations whose work generally aligns with the “access to knowledge” movement.

To address these systemic problems, the Principles are a statement of principles designed to establish and guide best practices. This article applies the Principles to several contemporary and still-being-negotiated international lawmaking instruments.

Applying these principles provides a litmus test not only of the agreements’ perceived legitimacy, but also of their prospect for public acceptance and successful implementation. Cognizant of the recent trends and perceived injustices being created, the Principles reflect a collective commitment to improve both the process and substance of international IP law.

The Anti-Counterfeiting Trade Agreement

The Anti-Counterfeiting Trade Agreement (ACTA) could be the poster child for all the problems the Principles aim to address. Despite having been signed by several countries, public backlash has caused several governments to reject adoption or recommend delaying ratification. ACTA aims to set high uniform standards for the enforcement of IP rights by expanding civil and criminal enforcement measures, as well as enhanced border measures. ACTA’s restrictive IP provisions were criticized for being too radical and restrictive. Most notably, representatives from the world’s poorest countries, consumer groups, and civil society organizations were excluded from the negotiation process. Applying the Principles to ACTA leads to the conclusion that even if ACTA is eventually implemented, enforcement depends upon perceived legitimacy, of which ACTA does not have an abundance.

The Trans-Pacific Partnership

The Trans-Pacific Partnership (TPP) is an ambitious agreement currently being negotiated between several countries. The official goals of the TPP include the enhancement of trade and investment, promotion of innovation and the creation and retention of jobs in partner countries. Unlike ACTA, the TPP is a more formally structured regional agreement contemplated within the scope of the Principles. Although stakeholder updates are given in some countries, full transparency and public participation remains a problem, in particular because certain industry groups share in confidential information while many civil society organizations do not. However, the wide-ranging scope of topics being discussed in the TPP, including trademarks, geographical indications, copyright, trade secrets, genetic property and all other general forms of intellectual property, validates the observation in the Principles about the broadening of subjects being negotiated in multilateral IP frameworks.

The Canada-European Union Comprehensive Economic and Trade Agreement

The Canada-European Union Comprehensive Economic and Trade Agreement (CETA), like the TPP, is exactly the type of agreement for which the Principles were designed. Again there are procedural concerns about transparency and preferential access to negotiation information, however not on the same scale as ACTA. What distinguishes CETA is that all the negotiating parties are well-developed countries with advanced economies. As such, the trade-offs in negotiation take a different form. There is little worry about an abuse of power situation where a dominant power might take advantage of a weaker one. The CETA negotiations become complicated because of Canada’s federal structure. While the federal government signs treaties, individual provinces whose constitutional jurisdiction dictate that they govern certain areas, say the importation of wines, must individually sign on to the agreement. For this reason, the European Commission has insisted on having representatives from the Canadian provinces present during the negotiations. It is a complex situation, and the Principles were not necessarily designed to address such complications.

The Pan-African Intellectual Property Organization

The Pan-African Intellectual Property Organization (PAIPO) is in a category distinct from the others, to which the Principles might apply. It is not a trade agreement, but an institution proposed by the African Union to regulate intellectual property in the continent. PAIPO would create a new institutional body to deal with IP issues across Africa. It does not, however, purport to replace the other existing regional autonomous bodies, but proposes to work with them. Some critics suggest that the limited resources available would be better spent on enhancing the current bodies rather than creating a new one. PAIPO has received further criticism because the commission consultations and the work of the IP Expert Panel have not been disclosed to the public or the autonomous groups with which they claim to maintain a close working relationship. There is also concern regarding which language to draft the agreements in. Some say that the Principles do not apply because PAIPO is not an international IP law-making body. However, there is an argument to be made that adherence to the Principles could be important because the capacity-building functions performed by PAIPO “on the ground” may be more important than abstract international laws.

The Marrakesh VIP Treaty

The Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities (VIP Treaty) was signed in 2013 by 50 countries. It is not a trade agreement and its form places it technically outside the scope of the Principles. However, the VIP Treaty represents an interesting contrast where successful substantive outcomes are achieved through transparent and participatory procedures. The final version of the VIP Treaty is hailed as a landmark in international IP lawmaking because it is the first multilateral instrument that establishes harmonized standards for limitations and exceptions to, rather than the protection of, IP rights. It also allows for cross-border exchange of accessible format works. Applying the Principles to the process and substance of the VIP treaty leaves little room for complaint. It is a shining example of the Principles’ recommendation that international IP norms ought to consider not only minimum protections and standards but also maximum ceilings and flexibilities.

While the Max Planck Principles were designed to apply to bilateral and regional trade agreements, this article examines the possibility that they could and perhaps should be applied beyond this scope. Overall, this analysis suggests that by following the Principles and other best practice guidelines, international law makers could help make the global knowledge governance system more transparent, participatory, legitimate, and effective.

About the author

Jeremy de Beer
As founder and principal of his own firm with almost 15 years of experience, Jeremy’s current work as a lawyer focuses on appellate litigation, business and legal strategy, and policy advice. He has argued numerous cases before the Supreme Court of Canada, advised businesses and law firms both large and small, and consulted for agencies from national governments and the United Nations. Jeremy is also an award-winning professor at the University of Ottawa’s Faculty of Law and a co-founding director of the Open African Innovation Research network (Open AIR). He may be contacted at jeremy.debeer@uottawa.ca.