January 21, 2004
Translation: FTAA Secretariat
COMMITTEE OF GOVERNMENT REPRESENTATIVES ON THE PARTICIPATION OF
CONTRIBUTION IN RESPONSE TO THE OPEN AND ONGOING INVITATION
Vivo Positivo, Union of Filmworkers, Chilean Editors Association, Public
Services International, Chilean Alliance for Fair and Responsible Trade
FTAA entities addressed in the contribution
Negotiating Group on Intellectual Property
Committee of Government Representatives on the Participation of Civil
FTAA Process (check if the contribution is of relevance to all the
COMMITTEE OF GOVERNMENT REPRESENTATIVES ON THE PARTICIPATION OF CIVIL
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
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.
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
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.