Публикация посвящена вопросам, связанным с защитой прав интеллектуальной собственности. Особенное внимание автор уделяет глобальной защите таких прав в Соглашении по торговым аспектам прав интеллектуальной собственности 1994 года (ТРИПС), а также в законодательстве и практике США, в частности, патентоспособности лекарственных препаратов и жизненных форм. В заключение отмечается, что современные правовые системы содержат некоторый перекос в правах и обязанностях, представляющий собой опасность для общественного благосостояния и социального развития.
Публикация сопровождается комментарием эксперта, в котором рассматривается украинское законодательство, регулирующее отношения по поводу защиты интеллектуальной собственности, в частности, антимонопольное законодательство и практика его реализации.
The growth of international trade and technology development in the era of globalization requires implementation of the global IPRs protection regime. Intellectual asset owners interested in securing their IPRs abroad have regularly pressed for international harmonization of IP law. States around the globe are on the path of converging upon the same set of IP standards. They are shifting these rules to higher standards than those which previously prevailed in their domestic legislation: longer terms of protection, fewer exceptions to the scope of rights. There is no doubt that global IP protection is important for technological development and economic growth. However, to what extent should this protection go?
Until the end of the 19th century, IP protection was strictly a national matter. Multilateral agreements aimed at IP law harmonization, first adopted in the late 19th century, attracted a widening membership over the course of the 20th century. The International IPRs protection system was created due to execution of multilateral agreements, such as the Paris Convention for the Protection of Industrial Property, Berne Convention for the Protection of Literary and Artistic Works, Madrid Agreement Concerning the International Registration of Marks, Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, Geneva Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms.
TRIPS Agreement
The first agreement which globalized IP protection was the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) adopted in 1994. It expanded the rights of IPRs owners, increased the range of regulatory standards that states are obliged to implement and in stitutionalized greater substantive convergence of national IP systems. The TRIPS Agreement has resulted in a significant shift in the balance in the IPRs regime away from the public interests towards the monopolistic privileges of IPRs holders. It has effectively globalized a “one size-fits-all” system of IPRs, where the same standards are established for countries with different levels of development.
This “one-standard-fits-all” approach of TRIPS is a great disservice for peripheral countries. Globalization of IP law by establishing uniform standards around the world raises the problem of a trade-off between the centre and periphery and incentive-access imbalance. Unification of IPRs protection in a world of deep inequalities is a direct assault on the economic rights of the poor. While uniform IP standards hinder access to knowledge and negatively affect poor countries, differential global protection (a regime that varies depending on economic indicators of each state) may become an effective solution for benefiting peripheral economies. Many present-day de veloped countries did not adopt strict IPRs protection standards when they were going through the stages of development that the peripheral countries of today are attempting to go through. If, at the same stage of their de velopment, countries of the core had had to observe the minimum standards set by the TRIPS, it is most doubtful that many of them would have attained the levels of technology that they achieved.
The global IPRs protection system under the influence of TRIPS has titled the balance between owners and users of technology and knowledge much too far in the direction of hold ers of IPRs. Moreover, in the balance of rights and obligations of IPRs owners, their privileges and rights have been overly protected, whilst their obligations to the social and economic welfare of the public have been loosely defined.
TRIPS Agreement is the central element of the global IPRs protection system. It has established minimum standards for a set of IPRs that WTO members have to institute through national legislation. TRIPS Agreement has important implications for economic development of peripheral states by locking up knowledge vital to the development of poor countries. TRIPS has a negative impact on innovation, economic development and the global division of labor.
TRIPS was a significant instance of the exercise of public power. It resulted from lob bying by private sector actors who had persuaded the U.S. government to promote their cause of expanding IP protec tion. The TRIPS Agreement re sulted largely from lobbying by multinational corporations who wished to mould international law to protect their markets. They pressed the U.S. Congress to recognize the critical im portance to the United States of trade in goods and services dependent upon IP protection worldwide, and to help forge the necessary law tools. Private actors pursued their interests through multiple channels and struck bargains with multiple actors (domestic inter-industry and foreign private sector coun terparts, domestic and foreign governments). In the 1970s and early 1980s. U.S. companies urged the government to pres sure foreign governments to adopt and enforce global IPRs agreement. First, they lobbied changes in U.S. trade legisla tion and later they achieved their main goal – adoption of the global agreement on IPRs protection.
Since the establishment of TRIPS, there has been increas ing evidence of many social and economic problems caused by the introduction of stricter IP protection regime. This is lead ing to increased public awareness that the present IPRs pro tection system is heavily tilted in favour of holders of IPRs and against the public interest. The global IPRs protection has caused asymmetries between the centre and periphery.
Patents on pharmaceuticals and life forms
The TRIPS Agreement met active resistance concentrating on patents on pharmaceuticals and life forms. A global campaign for access to essential compulsory licensing and fair medicines has emerged to protest against U.S. trade IP policy and the TRIPS trade-off in favour of commercial interests over public health concerns. The patenting of pharmaceuticals is being blamed by opponents as restricting public access to life-saving drugs. Introduction of the TRIPS Agreement complicated access of poor countries to essential medicines (in particular, the provision of HIV treatment). This is because TRIPS had a huge impact on generic drug production. Until 2005, prior to TRIPS provisions coming into force for developing countries, they were able to continue manufacturing generic drugs. This was important because the population of poor countries had access to cheap equivalents of new medicines which are less toxic and more effective at fighting HIV. After 2005, the developing countries that are members of the WTO have been required by TRIPS to issue patents. Patenting opponents argue that by preventing the manufacture of low cost generic drugs, patents became a cause for the spread of diseases rather than the cure of diseases in the poor countries. On the one hand, health activists are claiming that pharmaceuticals should not be protected by patents. On the other hand, pharmaceutical companies argue that in order to continue research and development of new drugs to combat life-threatening diseases, they must be able to recoup the cost of developing those drugs. Patent protection under TRIPS must take into account the interests of the developing world. It also must ensure that the pharmaceutical industry’s incentive to create new medicines remains strong. The appropriate balance should be achieved by the properly administered IPRs system combined with a compulsory licensing and fair parallel importing regimes.
It is important, however that patents are not the major barrier to access to treatment. There are some other factors which must be considered (such as lack of sufficient international financial aid to fund antiretroviral treatment in developing countries). Global access to medicines requires measures and policies much broader than simply amending global IPRs protection regime.
Before TRIPS, many peripheral countries did not permit the patenting of life forms, biological resources and knowledge about their use. Opponents argue that the culture of seed saving and exchange which has been the basis of agriculture in many countries is under threat today. The current IPRs protection regime allows corporations to usurp the knowledge of the seed and monopolize it by claiming it to be their private property. This results in monopolistic corporate control over the seed itself, restricting its free sharing within and across communities. Farmers rights and freedoms related to agricultural systems and seeds are being significantly eroded. Farmers are forced to give up their rights to save, exchange and improve seed. Since their varieties are not registered and they cannot afford the costs of registration, they are pushed into dependence on corporations who sell registered seed varieties.
In the area of life forms opponents of patenting (grass-roots activists, farmers, environmental, consumer and human rights groups) are claiming that the patenting of life forms means control by U.S. corporations over the world’s food supply. Some economists and scientists argue that there is no scientific basis for the patenting of life forms. The patent system is inappropriate for rewarding innovations in the field of biological sciences or in relation to biological materials and processes because living things are not invented. The conflict over plant genetic resource legislation is a conflict between farmers and the seed industry and between the public domain and private profits. It may be resolved by balancing public interests with private ones. Community rights must be respected and protected. Without them, agricultural communities cannot protect agricultural biodiversity and there is no political mechanism to limit monopolies in agriculture.
Exit the labyrinth
The protection and enforcement of IPRs should contribute to the transfer and dissemination of technology. It must be favour able for the mutual advantage of producers and users of knowledge, to social and economic welfare, and to a balance of rights and obligations. The current IPRs protection regime is threatening social development and public welfare.
The TRIPS Agreement, however, contains provisions minimizing the negative impact and allowing states to increase the competitiveness of the national economy. Clauses on parallel imports and compulsory licenses are allowing public access to vital drugs. They are important measures for safeguarding the public interest. In their absence private gain is at public cost. The said TRIPS provisions should be implemented and developed by states in their domestic laws as clauses favourable for innovation growth and competitiveness.
The global IPRs protection system contains numerous imbalances and asymmetries. In order to redress some of them there is a need, within the scope of TRIPS, to allow the periphery the flexibility to choose between options that are least damaging and that best pritect national and public interests. Countries should be allowed to exclude from patentability medicines that are needed for life-threatening ailments. This can be done through development of the list of exceptions to patentability in Article 27.3(b) of TRIPS. The peripheral countries should be allowed to exempt certain products and sectors from IPRs protection on grounds of public welfare. Article 66.2 of TRIPS should determine how technology transfer takes place and which specific measures might be taken within the WTO to encourage flows of technology. Finally, the countries of the centre must discontinue any form of coercion or pressure on the periphery.
Автор: V. VALLEE
Источник: Ukrainian Journal of Business Law. – 2012. – № 11. – Р. 29 – 31.