PTC FORUM: Online Journal
of the Patent, Trademark and Copyright Research Foundation

BRAZIL - FTAA / INTELLECTUAL PROPERTY / WTO - TRIPs

Intellectual Property Rights and the Free Trade Area of America

Stuart P Seidel

Review of the Brazilian Association of Intellectual Property (Revista da ABPI), Jan-Feb 2003

Work on the creation of the Free Trade Area of America inevitably involves the drafting of provisions on (among other things) intellectual property; and, in this article, the author charts the progress of the Working Group charged with the preparation of an inventory of the intellectual property treaties, agreements and arrangements existing in the Hemisphere, including all international conventions to which American states are parties; the preparation of an inventory of intellectual property laws in the Hemisphere, identifying areas of commonality and divergence; the drafting of recommendations on the promotion of understanding and effective implementation of the TRIPs Agreement; the identification of areas requiring technical assistance in the intellectual property field; analysis of the implications of emerging technologies for intellectual property rights; and the drafting of recommendations for structuring the Free Trade Area of America to this end. Based on TRIPs, the draft covers the eight areas of: copyright and related rights; trade marks; geographical indications; industrial designs; patents; layout designs; trade secrets; and anti-competitive practices in contractual licences; to which the draftsmen have added: traditional knowledge and genetic resources; utility models; plant varieties; and unfair competition. Among many problems now under consideration are patentability and the compulsory licensing of patents. Unites States negotiators will be influenced by current debates in Congress on "trade promotion authority". Non-Governmental Organisations are associated with the negotiations by way of consultation. For the time being, the publicly released Chapter on Intellectual Property rights contains a number of bracketed sections of the text, suggesting that there are still major differences over some of the draft provisions. In particular, there is some controversy over whether attention should be concentrated on the full implementation of TRIPs or whether the draftsmen should go further with additional obligations. Moreover, it is not yet settled whether all the countries covered by the draft Agreement on the Free Trade Area of America are ready to accept certain WIPO conventions, such as the treaties on copyright in performances and phonograms. The draftsmen have provided a primary list of treaties, such as the Pareis and Berne Conventions, of which signatory states would be expected to adopt substantive provisions; and a secondary list of treaties (such as the Patent Cooperation Treaty) to which the signatory countries are expected to "make best efforts" to accede. Draft provisions on enforcement generally follow the pattern set by TRIPs. Negotiations are planned to end by the year 2005. [20101]