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Abstract:
The breeding of an international apparatus to deal with the crucial aspect of world competition policy, as it is anticipated to be finally discussed on the Cancun Ministerial Meeting of the WTO in September 2003. Should this matter be restricted to the WTO context? Is the WTO the proper venue, especially when analyzing the theme from the standpoint of Brazil and other developing countries? There should be any international institution dealing with the matter, or, for instance, an unattended system of bilateral treaties would do? Given the complexity of international, domestic, regional and Third World-specific interests, the criteria of fairness and rationality seem to advise the setting up of an international institution, entirely dedicated to competition matters. It would seem that, if such assumptions are correct, a non-trade entity should be built upon the joint experience of both pre-WTO and post Doha competition collaboration. We are not certainly proposing an international institution that should chase and prosecute the international public interest on an autonomous and cavalier fashion. On the contrary, the reality of multilateral negotiation and complex national and regional policies indicate that only a prudent entity, acting in the same, ad hoc, case-by-case basis as the international judicial courts have been hitherto acting, could be of any practical import.

World Trade Organization, Competition Policy, Doha Declaration, World Competition Agency, International Institutions, TRIMs, TRIPs, GATS, Transnational Corporations, international public interest, International Antitrust

Abstract:
An understanding of intellectual property's classic innovation mandate as only one of many cross-cutting development goals should be well-accepted by now within international intellectual property law and policy, given the pervasiveness of development rhetoric at the WTO, WIPO and other regional and bilateral fora. Yet development "walk" lags behind development "talk" on both international and domestic levels. This article focuses on how intellectual property can promote development, not only through innovation, but also by the promotion of broad-based human development implicitly underpinning global knowledge economies. First, we consider the rapidly evolving relationship of development and trade to intellectual property, and conclude that current approaches to all three of these areas emphasize balanced rules, which means assessments of costs and benefits, preservation of flexibility, and transparency of development impact. To increase this pro-development balance within the current international intellectual property regime, each of us offers a specific proposal. Barbosa proposes three principles of treaty interpretation to maximize the potential of TRIPS articles 7 and 8 as balancing mechanisms within WTO jurisprudence. These include the principles of integration, evolutive interpretation and vectorial interpretation all of which are consistent with a teleological approach to TRIPS as an instrument of development. Chon posits "development" as a key legal term of art throughout the international intellectual property regime via a substantive equality principle; this principle is applied here to the current Development Agenda within WIPO, to link intellectual property and innovation to human development priorities such as education. Finally, Moncayo von Hase advocates for the recognition of emerging rules of customary international law, such as the emerging human right to health, in the context of interpreting related intellectual property obligations; in addition, he argues in favor of maximizing international law principles of non-derogation and freedom of implementation, to maintain national policy space and flexibility for social welfare objectives in the context of post-TRIPS bilateral and regional treaties. By its very structure, this article attempts to demonstrate the thesis that a pro-development balancing "walk" must occur simultaneously within and among all aspects of the international intellectual property regime, the complexity of which is manifest in multiple fora and jurisdictions, globally and domestically.

Development, Development Agenda, FTAs, Globalization, Human Rights, Intellectual Property, TRIPS, WIPO, WTO

Abstract:
The range and effects of art. 7 and 8 of Trips are not clear to this moment. According to the Appellate Body of WTO, in the Canada Generics case, those Articles still await appropriate interpretation.

This author's contention is that the ensemble of such provisions may be held to function on a quasi-constitutional manner towards the TRIPs text. From art. 7, it can be destiled a objective standard of balancing of interests, somewhat akin to the positive value of balancing by itself, that could be discerned through the reasoning of the US Supreme Court in Bonito Boats,Inc. V. Thunder Craft Boats, Inc., 489 U.S. 141 (1989), whereby the balanced body of Federal IP law would restrain disturbing state action.

From art. 8, it can be read a list of public interest values (health and development, inter alia), which would overweight competing interests in the interpretation and limitations posed to national laws or international agreements within the purview of TRIPs. This is also a balancing rule.

From the aggregate art. 7 and 8 it also can be seen a non discrimination standard, in harmony with the prior GATT case law that interpreted art. XX (b) of GATT 1947 as applicable to IPRs. The elaboration of such understanding as an equal protection-like quasi-constitutional device is a matter for further study.

Those standards should be applied to the sum of post-TRIPs FTA provisions dealing with IPR matters. This reading could weight the legitimacy of negotiation, if divertive from the balanced approach that TRIPs can be a model; the eventual contestability of over-the-balance FTAs provisions as compared to TRIPs model; and the eventual bias that unbalanced FTAs may cause towards future multilateral negotiations. A second set of issues is the effects that unbalanced FTAs may have in the internal law of the major negotiating agents (USA and EU), especially through the MFN clauses of the WTO ambiance; and the intrinsic inequality of the agreements where the major party has in fact lesser Intellectual Property obligations than the other party.

This Paper submitted was to the Workshop on IP, FTAs, and Sustainable Development held at the American University Washington College of Law on 27 - 28 February 2006.

Intellectual Property, TRIPs, FTA, International Law

Abstract:
From the point of view contemporaneous to the first negotiation rounds of TRIPs, the aim of all exercise was to eliminate national diversity in the IP field. Diversity here is essentially the power to set the pace of IPR impact in each specific economy and culture. Ten years from the inception of TRIPs as a legal instrument, such fear was not dispelled. Much to the contrary, TRIPs seems to be an old-fashioned and well-meant instrument, allowing a balanced perspective upon IP mechanisms applicable to developed and developing countries alike.

The problem is much worse as the anti-diversity exercise did not stop ten years ago. The fact that in some limited areas, especially in the public health sector, TRIPs has actually been used to achieve balance and poise do not change the overall issue. The unilateral thrust which TRIPS was meant to end just increased. It is reasonable to guess whether, in absence of TRIPs, the situation would be the same.

A very important aspect of this post-TRIPs era, by the way, is the denial of the multilateral promise. We were assured that unilateralism was over. All of us were members of the club, after paying the steep entrance fee. It was not so. Members or non-members, the bullying continued and grew. Fact is, however, that the world contemporaneous to the Uruguay Round discussions has severally changed. It was changing fast during the negotiations, and TRIPs when came to force was a gift from a former Christmas. And such changes were particularly felt within the scope of this study.

Intellectual Property probably caused the Information Society, and is not coping with it. The plethora of legal means invented to prevent copy in such Society is only comparable to the profusion of technical means to make for the insufficiency of legal means, and the ingenuity of legal means to assure that the technical means would work as intended. In the last years, copyright appeared to be a frenzied dog chasing its own tail.

In this context, the ideas of open access to the wealth of information, as expressed in the proposed A2K treaty, is not a marginal or negligible aspect of Intellectual Property Law. It is an official aspect of Brazilian IP policy at this moment. It is a clear sign that we need a increased supply of Intellectual Property rights.

Only that now, they must be inclusive rights.

Intellectual Property, WTO, TRIPs, Copyrigght, Acess to Information, Latin America, Brazil

Abstract:
Market economies historically led the stimulus to creation to a model where the author has an exclusive right to exploit economically its work. Such exclusiveness is however "artificial", as long as the information, once effected to the public, naturally spreads out without inherent constraints, therefore undermining the initial scarceness, which would drive its production. The concoction of exclusive rights, introducing an extrinsic constraint to general access to information, fulfills the need to adequate the production of technological and expressive creations to the market environment.

This brief study, which is an extract of a longer research on the intersection of Intellectual Property and competition policies in South America, weights the comparative legal approaches of treating those exclusive rights as monopolies or property, with the purpose to enlighten such intersections in a cross-doctrinal environment.

Intellectual Property, competition, monopoly, property

Abstract:
According to the original notion advanced by Denis Diderot in the Encyclopedia, universal rights should be sought "in the principles of the written law of all organized nations, in the social acts of the savages and barbarians, in the implicit conventions of the enemies of the human gender among them, and even in the indignation and resentment, the two passions that nature generates in the animals to supply the faults of social law or public vengeance".

This study advances the argument that any a priori determination of what are universal human rights is tainted. It suggests that even democratic vote, if not truly universal vote, does not cure such a priori stigma. The affirmation of such a priori universals through political or military pressure - or even through international tribunal decisions - also does not overcome its original defects. Our contention is that universals must first to be found, and then declared.

We have not intended, in this paper, to describe any rooster of formal or substantive universals, which we think are indispensable to establish a group of actually legal human rights, as distinguished from its rhetorical status. We understand that this scientific pursuit would be the effective way to build the human rights on a way to respect the diversity of human nature.

It would also seem that coerced universalism does not validate, but rather erodes, the human and moral values that a de facto and empiric universalism would perhaps validate. The path that goes from the unilateral universalism to a de facto libertarian universality would follow very simple rules: just apply as traffic rules the principles of freedom and equality both among societies and individuals.

Human rights, universalism, linguistics, antropology

Abstract:
The Brazilian Government has just drafted a bill amending the Plant Variety Protection ("PVP") Statute passed in 1997. This amendment represents a significant re-thinking of the system, in a divorce of sorts from the Brazilian original standpoint following the implementation of TRIPs requirements, and an appraisal of the draft could shed light on a new - and independent - third-world assessment of how Intellectual Property Rights ("IPRs") can be adjusted to meet local interests and needs.

Intellectual Property, Plant Variety Protection, Brazil

Abstract:
This paper is an English language abridgement of the study requested by ICTSD/UNCTAD on the relations of the Intellectual Property and Antitrust policies in the South American Countries.

Intellectual Property, Antitrust, Competition