On 15 April 2024, the World Trade Organization (WTO) published a document, IP/C/W/712, entitled, Review of the implementation of the TRIPS Agreement: Article 71.1; this date marks 30 years after the establishment of the WTO. Colombia’s proposal can be found here: W712
As Health Policy Watch (HPW) reported in November 2023, at the 7th round of negotiations of the WHO pandemic accord, Simon Manley, Ambassador and Permanent Representative, UK Mission to the WTO, UN and Other International Organisations (Geneva), stated:
“Speaking as one of those Geneva ambassadors who has the good fortune to cover both the United Nations and the World Trade Organisation, I do need to reaffirm our conviction that the WTO is the appropriate forum to discuss our obligations on intellectual property.”
Perhaps mindful of the United Kingdom’s exhortation, Colombia submitted a proposal for a comprehensive Article 71 review of the WTO TRIPS Agreement.
ARTICLE 71 AS AN OPPORTUNITY FOR DIALOGUE
1. A comprehensive review of the implementation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) is both an unfulfilled commitment and a necessity. Carrying out the review mandated in Article 711, along with the 30th anniversary of the TRIPS Agreement, will provide an opportunity to: i) increase dialogue and transparency on the impact of international rules on Intellectual Property (IP) issues; ii) start overcoming the existing impasse of the TRIPS discussions and negotiations at the TRIPS Council; iii) support political and technical discussions that are taking place in other forums and settings; iv) identify/produce relevant metrics to inform better implementation in the future.
2. Colombia considers that after 30 years of the TRIPS Agreement implementation, a Member driven policy discussion, supported by metrics and data, should provide the basis for a review on best practices, identification of obstacles, potential implementation improvements, among other elements. The discussions will provide added clarity and transparency, offer learning experiences for every Member to enhance their strategies within the general balance among the policy goals underlying the TRIPS agreement.
3. The World Trade Organization is a relevant forum for these discussions, as the host of the strictest framework that binds intellectual property laws worldwide. The valuable experience accumulated by other International Organizations, primarily WIPO, WHO and UNCTAD should inform the WTO discussion.
Colombia provided this policy rationale for its proposal:
8. In summary, the TRIPS Agreement norms provide a significantly stricter framework than what existed under the WIPO substantive agreements, despite its important menu of options. Moreover, TRIPS exhibits important differences or peculiarities when compared with other WTO Agreements. The Agreement entailed a new institutional framework, both at the international and domestic levels, which has been described as a “watershed event”.
9. These provisions entailed a change of paradigm: A different version of the balance of the triangle of policy goals associated with intellectual property protection was achieved: i.e., the promotion of innovation on one side; the broad access to technologies on another, and the promotion of national competitiveness-industrial policy on the third. It must be underscored that the TRIPS Agreement’s balance is a set of normative choices that reflects the ideas, experiences, and conditions prevalent in the early 1990s. The whole notion of including a review clause hints at the negotiators acknowledgement that contexts might change in time and that the permanent and periodic review of the implementation of the agreement should remain an integral part of the Members actions at the WTO. However, the review mechanism has not been carried out since the TRIPS adoption. Now, after 30 years of implementation, it is just the right time to do so.
Paragraph 12 of Colombia’s submission delineates its approach:
12. Regarding the substantive content, Colombia aims to engage in collaborative discussions at the WTO to identify (or produce) relevant analytical metrics and data, which are currently non-existent, incomplete, or not appropriately used, to better assess the implementation of the TRIPS Agreement over the years, and better guide the discussions and domestic policymaking process of Members. These new metrics could become part of a permanent source of information at the TRIPS Council, at Trade Policy Reviews of individual Members, or at the Trade Monitoring exercise by the Secretariat, among others. For the attainment of these objectives, Colombia proposes to address discussions on the following implementation aspects:
a. To analyse both domestic and international concentration of production in knowledge intensive sectors over the years, based on relevant metrics.
b. A global stocktake on royalties paid in and out by country for the use of Intellectual Property Rights, as expressed in the Balance of Payments of countries.
c. A global stocktake on the use of Compulsory Licences since 1996, with a focus on the problem of export limitations faced by ´sandwich´ countries (not too small, not too large).
d. A global stocktake on the residency/nationality of innovators across Members, coupled with an examination of Patenting activity by Office of Subsequent Filing -OSF- (to better understand who is patenting internationally and domestically, and the incentive mechanisms that exist for innovators to go abroad).
e. A related discussion on the exploitation of ´disclosures´ after IPRs finish their terms of protection. As an implementation matter, are these innovations/creations publicly available? Are they used by Members (especially developing ones)? Are they available for training of artificial intelligence models? (optional trigger questions).
f. The utilization of Article 44(2) of TRIPS by WTO Members.
It is notable that as part of the proposal for an Article 71 review of the TRIPS Agreement, Colombia calls for scrutiny into the “utilization of Article 44(2) of TRIPS by WTO Members”.