IP Protection in EU Free Trade Agreements vis-à-vis IP Negotiations in the WTO

Abstract

The European Union’s (EU) use of the acquis communautaire as a model for free trade agreements (FTAs) is motivated by its desire to achieve in FTAs what it has failed to achieve in multilateral negotiations. While scholars are sounding a note of warning regarding the consequences on developing countries of TRIPS-plus commitments in FTAs, these countries are racing each other to make more FTA deals notwithstanding the level of intellectual property (IP) protection to which this commits them, provided market access is guaranteed and trade benefits are maintained. This chapter analyzes the IP obligations in EU FTAs on geographical indications, plant varieties, biodiversity and traditional knowledge and related IP issues under negotiation at the World Trade Organization (WTO) to show that the EU limits itself to IP concessions that reflect the EU level of protection, and hence does not make concessions on issues that have not yet been regulated at the Community level. It also shows that although such FTAs obligations do not set new IP rules which directly impact on the outcome of the negotiation process at the WTO, however they create a new state of play regarding these negotiations and changes in coalitions among WTO members. The chapter then concludes with the necessity for WTO Members to get back to the multilateral table before potentially conflicting bilateral or regional outcomes make future consensus in the WTO even more difficult.