Steps towards an alignment of intellectual property in South-South exchanges: a return to TRIPs.

• Author: Rutschman, Ana Santos
• Position: Agreement on Trade-Related Aspects of Intellectual Property Rights

1. INTRODUCTION

   Some of the most instrumental players in shaping the course of intellectual property policies in the South are the so-called BRIC countries. (1) The acronym BRIC originally encompassed Brazil, Russia, India and China. In 2011, South Africa formally joined the BRIC countries, which are now referred to either by the original acronym or by BRICS. (2) While categorizations like BRICS attract a fair amount of criticism, with questions surrounding the criteria used to aggregate disparate economies, (3) the concept of emerging economies in the Global South seeking to advance similar development agendas has become accepted currency in multiple fields, from institutional cooperation to financial analysis and investment. (4)

   Since the first BRIC summit in 2009, the range of areas on which the BRICS cooperate or plan to cooperate has expanded considerably. (5) One of the issue areas that gained increasing attention from BRICS policy-makers is intellectual property. This has been particularly true since 2013, when these countries signed their first agreement on cooperation between intellectual property offices. (6) The agreement, known as the Roadmap, focuses primarily on cooperation in patent matters, and has the potential to trigger an alignment of patent policies in the South--or, more accurately, in the most economically-empowered arenas of the South.

   As the Roadmap comes into force, this article explores options for further cooperation between BRICS--and, potentially, developing countries in general-- beyond the patent field. It begins by noting that patent law, in the form of flexibilities within the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS Agreement" or "TRIPS", (7) has consistently been at the heart of the boldest and most controversial intellectual property measures adopted by some of the leading economies of the South. (8) It then describes the main features of the recent Roadmap, with an emphasis on its patent-centric design. The article proceeds to propose a set of TRIPS-compatible measures outside patent law that countries seeking to advance development agendas have yet to explore. In an era in which post-TRIPS and post-World Trade Organization ("WTO") approaches (9) often relegate treaty interpretation to a residual position, these measures are derived from TRIPS and have the potential to further the innovation agendas of developing countries without increasing the overall levels of domestic intellectual property protection.

2. CONTOURS OF A PROGRESSIVE ALIGNMENT OF INTELLECTUAL PROPERTY: FROM COMPULSORY LICENSING IN THE BRICS TO THE 2013 ROADMAP

   1. An Overview of Compulsory Licensing in the BRICS

      So far, the greatest intellectual property showdowns between the South and the North have taken place in the patent field, specifically in the pharmaceutical arena, with generics being at the center of most political and legal disputes. (10)

      Tensions between manufacturers of patented drugs in the North and generic industries (11) fueled the first years of TRIPS implementation and continue to the present day, amid trade threats (12) and WTO disputes. (13) Unsurprisingly, several of the BRICS have been at the center of these controversies. India, which grew a globally competitive generics industry by not recognizing pharmaceutical patents for several decades after 1972, finally amended its patent law in 2005 to comply with TRIPS obligations. (14) In the late 1990s and early 2000s, South Africa underwent a long war with manufacturers of patented drugs in an effort to curb its AIDS epidemics. (15) Today, South Africa is revising its intellectual property laws to position itself as a leader in generic drug manufacturing. (16)

      Brazil is often credited with being the savviest of developing countries in playing the "court of public opinion" to jump-start the generics industry. (17) In 1997, a local working requirement was incorporated into Brazilian domestic patent law. (18) In 1999, Brazil passed legislation enabling compulsory licensing for non- commercial public uses of patents in cases of national emergency and public interest. (19) While these legislative reforms were applicable to all fields of technology, Brazil took advantage of the ongoing debate surrounding the AIDS patents in South Africa to tie its patent reform both to AIDS crisis and, more broadly, to the claims of access to medicines movements around the developing world. (20) Brazil's careful framing of the situation, which at one point acquired human rights contours, succeeded in breaking resistance from the North, with the United States dropping a WTO complaint about the Brazilian patent reform. (21)

      India, which took significantly longer to grant compulsory licenses, faced the same kind of international pressure when it issued its first license. In 2012, the Controller of Patents in Mumbai approved compulsory licensing of Nexavar, a drug patented by Bayer. (22) Prompt response from the United States framed the approval as an undue restriction of intellectual property rights:

      India's decision in this case to restrict patent rights of an innovator based, in part, on the innovator's decision to import its products, rather than manufacture them in India, establishes a troubling precedent. Unless overturned, the decision could potentially compel innovators outside India--including those in sectors well beyond pharmaceuticals, such as green technology and information and communications technology--to manufacture in India in order to avoid being forced to license an invention to third parties. (23) India's first foray into compulsory licensing has contributed to the decision to keep the country on the higher level of the U.S. 301 Watch List (priority watch). (24) Brazil, on the other hand, has moved from the priority watch list to the lower category (watch list). (25)

      Among the other BRICS, China amended its law in 2012 to enable compulsory licensing of generics, (26) but so far no use has been made of the new provisions. (27) Similarly, Russian patent law contemplates the possibility of compulsory licensing, but there are no reports of any activity as to its progress. (28) Protection of pharmaceuticals is therefore moving towards alignment among the BRICS group. (29) All founding BRIC countries have compulsory licensing schemes in place, albeit the regimes differ slightly from one country to another. (30) South Africa is in the process of amending its patent to bring it more into consonance with practices in the other leading economies of the developing world. (31)

      Even outside the BRICS zone, compulsory licensing of pharmaceuticals has been expanding. One of the most well-known cases is Thailand, which issued a compulsory license for Efavirenz, a drug used in the treatment of HIV, in 2006. (32) There has also been compulsory licensing of pharmaceuticals throughout different regions of the Global South, from Indonesia and Malaysia to the Dominican Republic, to Ghana and Mozambique, to name a few examples. (33)

      As TRIPS reaches the end of its second decade of existence, (34) the most prominent point of convergence of intellectual property policies in the South has revolved around compulsory licensing of pharmaceuticals. This convergence does not appear to result from concerted efforts among developing countries (or even amidst the BRICS), but rather from an informal alignment of policies (and politics) surrounding a highly sensitive area. The situation may soon change; however, the intellectual property offices of the BRICS have recently signed a cooperation agreement to exchange best practices and potentially align their domestic intellectual property procedures and policies.

   2. The 2013 Roadmap: Alignment of Polices in the Patent Field

      At the 2012 BRICS Summit, held in Durban, South Africa, the trade ministers of the BRICS endorsed a Trade and Investment Cooperation Framework, (35) which was signed in March 2013. This agreement establishes an "open-ended and progressive" (36) framework with the primary purpose of "[promoting trade, investment and economic cooperation" among BRICS members. (37) While intellectual property is not the only target of this trade-centric framework, cooperation in "high technology areas" (38) and on IP rights is prominently endorsed. (39)

      As a consequence, in May 2013, the intellectual property offices of the BRIC countries agreed on an Intellectual Property Cooperation Roadmap ("Roadmap") in Magaliesburg, South Africa, seeking "to enhance cooperation between the respective BRICS IP offices with a view to enhancing the value of IP and to ensure its contribution to the economic development and growth in the member countries." (40)

      A reading of the prongs of the Roadmap indicates that its main focus is patentable innovation. The agreement identifies the following "cooperation streams:"

      1. Training of Intellectual Property Office Staff

      2. IP/Patent processes and procedures including search, classification and translation

      3. Promotion of public awareness on IP in BRICS countries

      4. National IP Strategy and IP Strategy for enterprises

      5. Information services on IP, e.g. exchange of patent documentation, taking account of local legislation

      6. Collaboration in International Forums as required and subject to consensus

      7. Examiner exchange programme (41)

      Specific domestic intellectual property offices in BRIC countries have been assigned tasks that reflect the intellectual property profile of each one of the BRICS in the so-called post-TRIPS era. (42) For instance, South Africa, which until recently had not seriously considered implementing patent examination procedures, is by and large excluded from leadership roles in the patent field. Instead, the Companies and Intellectual Property Commission of South Africa it is in charge of creating "national IP strategies" and "IP strategies for enterprises." (43)

      Training of intellectual property staff will be led by INPI, (44) the Brazilian...