|Free Trade Area of the Americas - FTAA
FTAA - COMMITTEE OF GOVERNMENT REPRESENTATIVES ON THE PARTICIPATION OF CIVIL SOCIETY
CONTRIBUTION IN RESPONSE TO THE OPEN AND ONGOING INVITATION
FTAA ENTITIES (Please check the FTAA Entity(ies) addressed in the contribution)
Third Issue Meeting on Intellectual Property and Civil Society
Participation of civil society and intellectual property rights
On the occasion of the FTAA open invitation to civil society, and taking into account the upcoming Issue Meeting on Intellectual Property, the undersigned non-governmental organizations hereby submit this contribution in order to ratify the need to ensure the ongoing participation of civil society in the very heart of the institutional architecture of the FTAA, not after the entry into force of the FTAA Agreement, but preferably during the negotiating stage, by legitimizing its presence and functioning so as to strengthen such participation in the future institutional structure of the FTAA.
Civil society participation in the institutional framework of the FTAA takes on key importance during the final stage of the negotiations. The declaration issued at the most recent Ministerial Meeting, held in Miami, provided for the concrete possibility of opening up the institutional structure of the FTAA to provide for the permanent participation of civil society (Paragraph 28).1
As set forth in Paragraph 28, there is an interest in consolidating the creation of an institutional forum for the participation of civil society at the time the Agreement enters into force. This runs counter to the requirements of civil society, however, which has requested that its participation become part of the FTAA institutional structure during the current negotiations and prior to the entry into force of the Agreement.
If civil society participation becomes part of the FTAA institutional structure during the negotiation process itself, rather than after the Agreement’s entry into force, the guiding principles of decision-making at the international level regarding circumstances that in the long or short term will have a direct impact on the lives of the people will have been respected and applied; namely, the principles of transparency, inclusion and participation.
The type of participation that is to be built into the institutional framework of this hemispheric trade scheme must not diverge from the structure as a whole; on the contrary, it must effectively contribute to the generation of a process that infuses all aspects of the negotiations pursued within the entities that are to be set up. The participation of civil society, at both the domestic and the international level, is a human right and becomes a responsibility that the representatives of each of the peoples involved in the FTAA must know how to fulfill.
The principles of transparency and participation go hand in hand with access to information, an essential tool for making the former a reality.
In light of the above and to return to the strictly institutional aspect of the issue, it is absolutely essential that the body representing civil society include as many commissions as negotiating areas (nine to date), each having influence over the issues under discussion. In this regard, specialists in each negotiating area would be required to represent the entities or organizations comprising this body, as would mechanisms to assess the relevance of each one of them.
Intellectual property practices must include competition and antitrust rules to meet the needs of smaller economies and developing countries.
On the other hand, we understand that it would not be feasible to move beyond the terms established in the TRIPS Agreement2 , since this would even further damage the economic, social and cultural rights of the people of developing countries and other small economies, as recognized by the United Nations.3
Intellectual property rights regulation must not further hinder consumers’ access to essential food and healthcare products. People must similarly have access to technology in order to progress and develop. In this respect, any new regulations that widen the gap between developed and developing countries will obviously heighten the already-existing differences and move the FTAA countries away from the goals established for trade measures at the outset of this hemispheric project for the development of trade measures, and this would, in turn, have a serious negative impact due to both the subsequent access difficulties and the cost of the products subject to such regulations.
As far as legislative technique in intellectual property is concerned, incorrect or ambiguous definitions are given for various terms; for example, in the expression “honest uses and practices”4 , or the definition of unfair competition, the latter being understood as “…any act to create confusion5, by any means, regarding products, services, etc., of a competitor…”. In this respect, more precise wording of regulations is required, otherwise, multiple interpretations will occur and this could foster abusive practices.
Trade distortions, such as technical barriers to trade, must therefore be reduced, and products that meet people’s basic needs and contribute to their economic development must be made accessible.
The protection of intellectual property rights must go hand in hand with the “when in doubt, proceed on the basis of development” maxim, which originated in and guided part of the Uruguay Round negotiations, and which is the result of the application of another principle, known in trade circles as “special and differential treatment”. This principle recognizes the different levels of development of countries and should be taken into account when applying international trade norms.6
We therefore find it necessary to draw attention to the following issues:
1. Given that the negotiations in this particular area are marked by
heavy interests (especially those of multinational enterprises that do
not take into account the interests of the consumers and users of the
goods available under this intellectual property scheme), it is
essential that those who participate in the definition of these matters
and draw up the basic regulatory guidelines consist of both official
experts and non-government advisers so that the population’s economic
and social needs are not overlooked in the process.
2. Considering that civil society is the ultimate recipient of the
effects of the policies agreed to and applied, its participation must be
enhanced both in the negotiating phase (which is drawing to an end) and
during the implementation of this project. In the case of the former,
consideration needs to be given to the various viewpoints that civil
society submit to the negotiating tables through the mechanisms each of
the States have set up as part of a plan to increase civil society’s
participation at the domestic level, and attention needs to be paid to
the contributions and suggestions made through the open invitations
issued by the FTAA so that these do not end up like unaddressed letters.
3. Greater attention needs to be paid to the terms according to which
the agreement on intellectual property is going to be defined so as to
avoid ambiguities and inaccuracies that could lead to discrimination
against developing countries and smaller economies.
4. In particular, efforts must focus on the conditions in which
developing countries and small economies will, under the intellectual
property regulations, have to tackle the differences in access to
technology and items that are essential for preserving health and human
life. The pursuit of economic growth with equity is imperative, and the
social development of the peoples of the Americas must not be overlooked
in the process.
5. It is important for the Hemispheric Agenda to be totally coherent,
and the consensus reached on trade issues within the FTAA must therefore
coincide with the objectives established in the Summits of the Americas
and the Inter-American Democratic Charter and place respect for human
rights above all commercial interests.
- CEDHA, Centro de Derechos Humanos y Ambiente (Human and
Environmental Rights Center)– Argentina -
28 of the Miami Declaration states: “We express our interest in creating
a civil society consultative committee within the institutional
framework of the FTAA upon the Agreement’s entry into force. Such a
committee could contribute to transparency and the participation of
civil society on an on-going basis as the FTAA is being implemented. We
instruct the Committee on Government Representatives on the
Participation of Civil Society, in coordination with the TCI, to
continue to study the issue and make recommendations to the TNC
concerning it. We ask the TNC to review these recommendations and make a
proposal concerning this matter for our future consideration.”
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