Efficient, well-designed and balanced intellectual property (IP) systems promote investment in innovation and growth. Intellectual Property Rights (IPRs) are one of the principal means through which companies, creators and inventors generate returns on their investment in innovation and creativity.[1] FTA’s allow countries to tailor their interests in their individually drafted FTA’s and hence, leaves them with more flexibility and room/leeway to draft provisions, in compliance to the overarching WTO law, of course.
An example of a possible FTA can be seen to be with EU and the United Kingdom. A FTA has not yet come into force yet leaving it up to nations gives them more freedom to negotiate individual terms and conditions, suiting their interests. This does not entail that they will not adhere to general TRIPS obligations, however, on terms that will mutually benefit both nations through negotiations, and implementing eforrcement, redress, mechanisms.
Moving on, historically during post-TRIPS, the regulatory landscape for international copyright had been bilateralism by major countries for strengthening copyright provisions promoting specific implementation models for international obligations.
Recent copyright provisions, negotiated in bilateral and regional FTAs, have further strengthened the layers of international copyright obligations in two primary ways (i.e. seen as two justifications for FTA’s)
Firstly, the FTAs have purposefully extended the geographic reach of the WIPO treaties by requiring ratification of the treaties as a component of the FTAs.
Secondly, certain provisions in the FTAs infuse content into the open-ended principles of the WCT and Berne and TRIPS, thus narrowing, in some cases quite materially, the scope of sovereign discretion to implement these provisions in a manner consistent with local norms, practices and priorities.
Interpretations of TRIPS or WCT provisions contained in the FTAs could result in a body of normative principles on these specific matters, thus supplying a basis for establishing those interpretations as an international standard. In other words, the FTAs could result in the creation of a zone of international “common law” where particular renditions of the obligations contained in multilateral copyright agreements could be invoked.
Furthermore, it is important to point out, however, that the smaller context of FTA agreements means that owners can more easily police the activities of developing countries with respect to domestic enactments in intellectual property matters. The unusual opportunity offered by bilateral or regional agreements to closely monitor domestic activities will lead inexorably to unwillingness by developing countries to exercise creative legislative discretion for fear of destabilizing the economic arrangement governed by the FTA.[2]
Major industrial countries such as U.S. FTAs include language on limitations and exceptions that parallels TRIPS Art. 13. For example, Article 17.7(3) of the U.S.-Chile FTA provides that “[e]ach Party shall confine limitations or exceptions to rights to certain special cases which do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.”136 Through a non-derogation principle, the U.S.-Chile FTA binds Chile to the full force of the TRIPS jurisprudence surrounding the three-step test.[3]
[1] Report on the protection and enforcement of intellectual property rights in third countries (europa.eu) [2] https://unctad.org/system/files/official-document/iteipc200610_en.pdf [3] https://unctad.org/system/files/official-document/iteipc200610_en.pdf
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