Public
FTAA.soc/civ/119
January 21, 2004

Original: Spanish
Translation: FTAA Secretariat

FTAA - COMMITTEE OF GOVERNMENT REPRESENTATIVES ON THE PARTICIPATION OF
CIVIL SOCIETY

CONTRIBUTION IN RESPONSE TO THE OPEN AND ONGOING INVITATION
 

TO:                 COMMITTEE OF GOVERNMENT REPRESENTATIVES ON THE PARTICIPATION OF CIVIL SOCIETY
                       CIVIL SOCIETIES OF THE AMERICAS:

On the occasion of the meeting on Intellectual Property and the FTAA, which is being organized by the Committee of Government Representatives on the Participation of Civil Society in the Dominican Republic, the undersigned, as members of Chilean civil society organizations, would like to contribute the following observations to the discussion on intellectual property:

1. We believe that the potential substance and impact of the free trade negotiations underway in the framework of the Free Trade Area of the Americas (FTAA) Agreement, particularly as regards intellectual property rights, would not be totally beneficial for the region.

2. We are also concerned about the historical lack of citizen participation with which these agreements have been pursued.

3. We must move towards strengthening economic, social and cultural rights, so as to ensure that our peoples are guaranteed their right “freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits”, as set forth in Article 27 of the Universal Declaration of Human Rights.

Specifically, we believe that “hegemony is wielded in many spheres, but ultimately, ideas, beauty, and what grows from our roots is what stands the test of time and allows for a dialogue among civilizations. Culture is the foundation, the component, and the goal of each society’s and each country’s type of development”, as indicated in the document of President Ricardo Lagos.¹

4. The agreements on intellectual property rights (IPR) signed by our country compromise its development agenda by limiting it to a single discourse and legally forcing the State to introduce amendments to domestic law in order to reduce the apparent obstacles to commercial development between the parties.

5. In regard to IPR, we believe that the text of the Chile-US agreement cannot and must not constitute the basis for any multilateral or bilateral negotiation, since its scope violates several constitutional guarantees and social, economic and cultural aspects of human rights, such as due process, the right to privacy, freedom of speech, the right to education and freedom of teaching, the right to identity, the right to own property and the right to acquire any type of good, as well as the right to engage in any economic activity, among others.

6. In this respect, the explicit recognition given to the Patent Cooperation Treaty of 1984 in the draft FTAA Agreement—which took effect in Chile on 1 January 2004 with the entry into force of the US-Chile Free Trade Agreement—is of particular concern, as it implies centralizing the administration of the awarding of patent-related industrial property rights in an entity outside of State jurisdiction.

7. In view of the text of the July 2000 resolution of the United Nations Sub-Commission on the Promotion and Protection of Human Rights, we maintain that the application of the TRIPS Agreement—recognized in the text of the FTAA Agreement as one of the main reference agreements—has generated circumstances that “constitute violations of international human rights law.” In particular, this situation involves real or potential conflicts “between the implementation of the TRIPS Agreement and the realization of economic, social and cultural rights in relation to, inter alia, impediments to the transfer of technology to developing countries, the consequences for the enjoyment of the right to food, of plant variety rights and the patenting of genetically modified organisms, … and restrictions on access to patented pharmaceuticals and the implications for the enjoyment of the right to health…”, as indicated in the July 2000 Resolution of the Sub-Commission on Human Rights, by the High Commissioner for Human Rights.

8. In this same context and in regard to patented pharmaceutical products, we advocate that the following documents be recognized and incorporated in light of their principles and their practical applicability, given the global state of emergency that has seen the HIV/AIDS pandemic become a “threat to world security”: the Declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001 by the WTO at its Fourth Ministerial Conference, held in Doha, Qatar; and the Declaration of Commitment on HIV/AIDS, made at the Special Session on HIV/AIDS of the General Assembly of the United Nations, held from 25-27 June 2001.

9. We propose that the participating governments, at this meeting:

First Assume that the Free Trade Area of the Americas Agreement, particularly the current version of the Chapter on Intellectual Property Rights, poses more of a risk than an opportunity for development.

Second Explicitly incorporate Article 27 of the Universal Declaration of Human Rights into the Agreement and specifically mention the Pact on Economic, Social and Cultural Rights, as these represent a fairer balance between legitimate copyright and people’s right to enjoy the benefits derived from copyright.

Third Exclude international IPR agreements that imply a violation of national sovereignty, such as the Patent Cooperation Treaty of 1997, from the negotiations.

Fourth Defend the collective rights of the originating and Afro-American peoples of the continent, as well as the knowledge produced by these communities, by classifying this knowledge as non-patentable, except by the aforementioned communities themselves.

Fifth Provide for greater flexibility regarding compulsory licenses, exceptions to technology protection measures, and fair use, as these represent some of the few mechanisms available to developing countries for tackling problems related to public health, technology development and access to cultural goods and services, among others.

Sixth Promote a more rational IPR exhaustion doctrine in the region whereby such rights expire after a term of only twenty years. The continued adaptation and increase of IPR complicates the implementation of public environment and health policies in developing countries.

Seventh Disregard any provision regarding patent laws for pharmaceutical products that favors commercial interests over the public health interests and needs of the countries of Latin America and the Caribbean, specifically in terms of restrictions imposed to increase production potential, and the marketing of generic or affordable medicines for developing countries. These provisions cannot exceed the scope of those contained in the Doha Declaration, which has been signed by the United States, as well as the countries of Latin America and the Caribbean and the WTO. According to the World Bank, four of the six countries in Latin America with the highest HIV/AIDS prevalence are in Central America. The signing of trade agreements that do not take these matters into account is a direct threat to the lives of thousands of people in the region.


Signatory Organizations

 Vivo Positivo
 Chilean Union of Filmworkers
 Chilean Editors Association
 Chilean Alliance for Fair and Responsible Trade (Alianza Chilena por un Comercio Justo y Responsable – ACJR by its Spanish acronym)
 Public Services International, PSI

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¹ ‘La cultura en el acuerdo de libre comercio de las Américas’ (Culture in the Free Trade Agreement of the Americas), Chilean Coalition for Cultural Diversity – Editores de Chile.