FTAA: Background

Click image for large view Footnote: 1 - Because of a lack of transparency in CAFTA negotiations, the draft text of CAFTA has not been made public, and it is therefore impossible to provide an informed analysis of the intellectual property provisions being proposed in the agreements. However, intellectual property provisions in other bilateral free trade agreements (e.g. the US-Singapore agreement) are clearly TRIPS-plus, and these are consistent with proposed provisions in the FTAA agreement. It is safe to assume that the same provisions are being proposed in CAFTA. Even if intellectual property provisions were to be excluded from FTAA, Central American countries could be locked into more stringent intellectual property rules than is required in TRIPS as early as December 2003 if negotiations are concluded within the proposed timeframe.
The international debate over the last four years about the impact of global trade rules on public health and access to medicines has raised concerns about the effects of intellectual property (IP) protection - particularly patents - on prices and access to medicines. Patents are tools of public policy that are supposed to guarantee that society as a whole benefits from any innovation. But, in the case of medicines, when patent protection is too strict in a developing country, it can limit the ability of governments and the private sector to produce or import more affordable products. However, governments of the Americas are not powerless. They can help counter the negative effects of patents by including safeguards to protect public health in their national laws. This right is enshrined in the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and was reinforced at the 4th WTO ministerial meeting in Doha, Qatar, in November 2001 in an historic declaration - the Ministerial Declaration on the TRIPS Agreement and Public Health - which has become known as the "Doha Declaration". The Doha Declaration placed the protection of public health above the protection of private commercial interests, and in particular, affirmed the right of countries to take measures to override patents when necessary in order to protect public health and promote access to medicines for all. The Doha Declaration reaffirmed many key flexibilities in the TRIPS Agreement, including:
  • The right of countries to issue a compulsory license (see glossary) at their discretion, not only in cases of emergency.
  • The right of countries to determine for themselves what constitutes a national emergency or situation of extreme urgency in which case the procedure for issuing a compulsory license becomes easier and faster. Some countries are starting to make use of the flexibilities reaffirmed in Doha. However, wealthy countries are putting pressure on developing countries to accept proposals in multilateral, regional, and bilateral trade negotiations that would limit their ability to implement the Doha Declaration and safeguard public health. Countries in the Americas are bearing the brunt of this pressure. For example, the United States has negotiated a bilateral agreement with Chile and is negotiating a regional agreement with five Central American countries (Costa Rica, El Salvador, Honduras, Guatemala, and Nicaragua) known as the Central American Free Trade Agreement or CAFTA, likely to be completed by the end of 2003. These agreements are being touted as models for the hemisphere-wide Free Trade Areas of the Americas (FTAA) agreement.1 Worldwide, the FTAA is the most far-reaching and extreme attempt to weaken the Doha Declaration.