Rezension zu: Inge Govaere and Hanns Ulrich (eds.): Intellectual Property, Public Policy and International Trade

The contemporary intellectual property rights (IPR) system is not a simple, smoothly working block of rules but is complex and full of ambiguities, and as many argue, imperfections. Some deficits relate on the one hand to the inherent centrality of authorship, originality and mercantilism to the ‘Western’ IP model, which leaves numerous non-Western, collaborative or folkloric modes of production outside the scope of protection. On the other hand, some imperfections stem from the way IPR are granted, whereby creators acquire a temporary monopoly over their works and thus exclude the public from having access to them. In this sense, it is often uncertain whether the existent IPR model appropriately reflects the precarious balance between private and public interests, and whether the best incentives to promote creativity and innovation - the initially stated objectives of intellectual property protection - are offered. The matter becomes still more complicated when one considers that the IPR system is not domestically contained but is globalised and strongly affected by rules at the regional and international levels. The question of whether the balance between private interests and public values is sustained within the international legal framework, epitomised by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO), is precisely the topic of the book reviewed here. Review of Intellectual Property, Public Policy, and International Trade, edited by Inge Govaere and Hanns Ullrich, P.I.E. Peter Lang, 2007.

Commentary of GATS Article IX : Business Practices

Commentary of Article IX of the General Agreement on Trade in Services (GATS) on business practices, including a textual analysis of the provision, as well as an examination of the pertinent WTO case law and of other related international and regional rules and practices.

International Regulation of Postal Communications

The article provides a concise overview of the rules applicable to postal communications at the international level. Particular attention is paid to the regulations of the Universal Postal Union (UPU), the General Agreement on Trade in Services (GATS) of the World Trade Organization (WTO), as well as the relationship between the two. Outlook on possible future developments accounting for the rapid technological advances and the liberalisation of markets wraps the analysis up. This is a 2010 update that takes into consideration the changes made in the UPU acts in 2008, as well as the latest developments in the WTO's Doha Round negotiations.

Postal Communications, International Regulation

The article provides a concise overview of the rules applicable to postal communications at the international level. Particular attention is paid to the regulations of the Universal Postal Union (UPU), the General Agreement on Trade in Services (GATS) of the World Trade Organization (WTO), as well as the relationship between the two. Outlook on possible future developments accounting for the rapid technological advances, in particular the Internet, and the liberalisation of markets wraps up the analysis. This is a 2013 update that takes into consideration the changes made in the UPU acts in 2012, as well as the latest developments in the WTO's Doha Round negotiations.

Towards a treaty instrument on marine genetic resources

Marine genetic resources other than fish and mammals are of increasing commercial interest and importance in genetic engineering, but fail being properly addressed in the law of the sea and in international economic law. The paper analyses the implication of the United Nations Convention on the Law of the Sea, the Convention on Biodiversity, the WTO Agreement on Trade Related Aspects of Intellectual Property Rights and related instruments under the auspices of WIPO. The paper argues that the triangle of these agreements does not adequately address marine genetic resources in particular in the high seas. Neither concerns of protecting biodiversity nor of access and benefit sharing find appropriate answers commensurate to the commercial potential of marine genetic resources. The paper suggests developing an instrument inspired by, and comparable to, the mechanisms developed by the International Treaty on Plant Genetic Resources for Food and Agriculture. The instrument would grant facilitated access to marine genetic resources and offer a more detailed set of rules with respect to the sharing of benefits resulting from their use, thereby addressing the existing legal gaps in a comprehensive way.

The WTO and Food Security: What’s Wrong with the Rules?

The WTO Agreement on Agriculture (AoA) is the predominant multilateral legal framework governing agricultural trade. The objective of the AoA is to liberalise trade in agriculture through reductions in tariffs, domestic support and export subsidies. The AoA has not, however, ‘levelled the playing field’ and has not resulted in the equitable distribution of food, particularly for the poorer developing countries. On the other hand, support for small farmers does not ensure food security for the poor. While food security has no simple solutions such as “free trade is good for you”, reform proposals for trade rules which only address agricultural policy instruments fail to account for consumer and other interests: neither tariff reductions and subsidy disciplines, nor safeguards and other measures of producer protection can automatically increase food security. Rather, what is needed is the full and proper implementation of a number of commitments which the international community has already entered into in various human rights treaties, but which even the envisaged results of the now failed Doha Round negotiations could not ensure without revisiting relevant multilateral trade and investment rules.

Towards a new balance of trade in agriculture

Trade in agriculture is linked to a whole range of economic, environmental, societal and future interests. For this reason, international regulation of trade in agricultural goods is highly contentious. While mainly directed towards an opening of markets, the WTO Agreement on Agriculture also has some entry points for ‘non trade concerns’. However, the agreement still looks like a casual patchwork that allows rather unsystematic ally for exemptions, without explicitly exposing the grounds that allow for them. The question arises of how the agreement could be drafted in a more structured way, in order to make sure that the economic objectives are efficiently pursued, and at the same time that human rights and environmental concerns are adequately taken account of? The concept of sustainable development provides for a methodical ‘seven step’ framework that gives guidance on integrated decision making processes. In this paper, this framework is partially applied to the Agreement on Agriculture. This working paper served as an introductory note to a brainstorming workshop on the subject that took place on 27 March 2009 at the World Trade Institute, University of Bern.

Subsidies, Clean Energy, and Climate Change

Estimates show that fossil fuel subsidies average USD 400–600 billion annually worldwide while renewable energy (RE) subsidies amounted to USD 66 billion in 2010 and are predicted to rise to USD 250 billion annually by 2035. Domestic political rationales for energy subsidies include promoting innovation, job creation and economic growth, energy security, and independence. Energy subsidies may also serve social and environmental goals. Whether and to what extent subsidies are effective to achieve these goals or instead lead to market distortions is a matter of much debate and the trade effects of energy subsidies are complex. This paper offers an overview of the types of energy subsidies that are used in the conventional and renewable energy sectors, and their relationship with climate change, in particular greenhouse gas emissions. While the WTO’s Agreement on Subsidies and Countervailing Measures (ASCM) is mostly concerned with harm to competitors, this paper considers the extent to which the Agreement could also discipline subsidies that cause harm to the environment as a global common. Beyond the existing legal framework, this paper surveys a number of alternatives for improving the ability of subsidies disciplines to internalize climate change costs of energy production and consumption. One option is a new multilateral agreement on subsidies or trade remedies (with an appropriate carve-out in the WTO regime to allow for it if such an agreement is concluded outside it). Alternatively, climate change-related subsidies could be included as part of another multilateral regime or as part of regional agreements. A third approach would be to incorporate rules on energy subsidies in sectorial agreements, including a Sustainable Energy Trade Agreement such as has been proposed in other ICTSD studies.

Innovation and Development in the Age of Climate Change Adaptation: Open or Closed?

Change Adaptation: Open or Closed? Paper read at the Second African International Economic Law Network Conference, 7-8 March 2013, Wits School of Law, Johannesburg, South Africa. In a time of rapid convergence of technologies, goods, services, hardware, software, the traditional classifications that informed past treaties fail to remove legal uncertainty, or advance welfare and innovation. As a result, we turn our attention to the role and needs of the public domain at the interface of existing intellectual property rights and new modes of creation, production and distribution of goods and services. The concept of open culture would have it that knowledge should be spread freely and its growth should come from further developing existing works on the basis of sharing and collaboration without the shackles of intellectual property. Intellectual property clauses find their way into regional, multilateral, bilateral and free trade agreements more often than not, and can cause public discontent and incite unrest. Many of these intellectual property clauses raise the bar on protection beyond the clauses found in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In this paper we address the question of the protection and development of the public domain in service of open innovation in accord with Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) in light of the Objectives (Article 7) and Principles (Article 8) set forth in TRIPS. Once areas of divergence and reinforcement between the intellectual property regime and human rights have been discussed, we will enter into options that allow for innovation and prosperity in the global south. We then conclude by discussing possible policy developments.

Deforestation and forest degradation monitoring and assessment of biomass and carbon stock of lowland rainforest in the Analanjirofo region, Madagascar

Madagascar is currently developing a policy and strategies to enhance the sustainable management of its natural resources, encouraged by United Nations Framework Convention on Climate Change (UNFCCC) and REDD. To set up a sustainable financing scheme methodologies have to be provided that estimate, prevent and mitigate leakage, develop national and regional baselines, and estimate carbon benefits. With this research study this challenge was tried to be addressed by analysing a lowland rainforest in the Analanjirofo region in the district of Soanierana Ivongo, North East of Madagascar. For two distinguished forest degradation stages: “low degraded forest” and “degraded forest” aboveground biomass and carbon stock was assessed. The corresponding rates of carbon within those two classes were calculated and linked to a multi-temporal set of SPOT satellite data acquired in 1991, 2004 and 2009. Deforestation and particularly degradation and the related carbon stock developments were analysed. With the assessed data for the 3 years 1991, 2004 and 2009 it was possible to model a baseline and to develop a forest prediction for 2020 for Analanjirofo region in the district of Soanierana Ivongo. These results, developed applying robust methods, may provide important spatial information regarding the priorities in planning and implementation of future REDD+ activities in the area.

Genetic Variation and Population Structure in Native Americans

We examined genetic diversity and population structure in the American landmass using 678 autosomal microsatellite markers genotyped in 422 individuals representing 24 Native American populations sampled from North, Central, and South America. These data were analyzed jointly with similar data available in 54 other indigenous populations worldwide, including an additional five Native American groups. The Native American populations have lower genetic diversity and greater differentiation than populations from other continental regions. We observe gradients both of decreasing genetic diversity as a function of geographic distance from the Bering Strait and of decreasing genetic similarity to Siberians-signals of the southward dispersal of human populations from the northwestern tip of the Americas. We also observe evidence of: (1) a higher level of diversity and lower level of population structure in western South America compared to eastern South America, (2) a relative lack of differentiation between Mesoamerican and Andean populations, (3) a scenario in which coastal routes were easier for migrating peoples to traverse in comparison with inland routes, and (4) a partial agreement on a local scale between genetic similarity and the linguistic classification of populations. These findings offer new insights into the process of population dispersal and differentiation during the peopling of the Americas.

Orthogonal polarization spectroscopy to detect mesenteric hypoperfusion

OBJECTIVE: Orthogonal polarization spectral (OPS) imaging is used to assess mucosal microcirculation. We tested sensitivity and variability of OPS in the assessment of mesenteric blood flow (Q (sma)) reduction. SETTING: University Animal Laboratory. INTERVENTIONS: In eight pigs, Q (sma) was reduced in steps of 15% from baseline; five animals served as controls. Jejunal mucosal microcirculatory blood flow was recorded with OPS and laser Doppler flowmetry at each step. OPS data from each period were collected and randomly ordered. Samples from each period were individually chosen by two blinded investigators and quantified [capillary density (number of vessels crossing predefined lines), number of perfused villi] after agreement on the methodology. MEASUREMENT AND RESULTS: Interobserver coefficient of variation (CV) for capillary density from samples representing the same flow condition was 0.34 (0.04-1.41) and intraobserver CV was 0.10 (0.02-0.61). Only one investigator observed a decrease in capillary density [to 62% (48-82%) of baseline values at 45% Q (sma) reduction; P = 0.011], but comparisons with controls never revealed significant differences. In contrast, reduction in perfused villi was detected by both investigators at 75% of mesenteric blood flow reduction. Laser Doppler flow revealed heterogeneous microcirculatory perfusion. CONCLUSIONS: Assessment of capillary density did not reveal differences between animals with and without Q (sma) reduction, and evaluation of perfused villi revealed blood flow reduction only when Q (sma) was very low. Potential explanations are blood flow redistribution and heterogeneity, and suboptimal contrast of OPS images. Despite agreement on the method of analysis, interobserver differences in the quantification of vessel density on gut mucosa using OPS are high.

Definition, assessment and treatment of wheezing disorders in preschool children: an evidence-based approach

There is poor agreement on definitions of different phenotypes of preschool wheezing disorders. The present Task Force proposes to use the terms episodic (viral) wheeze to describe children who wheeze intermittently and are well between episodes, and multiple-trigger wheeze for children who wheeze both during and outside discrete episodes. Investigations are only needed when in doubt about the diagnosis. Based on the limited evidence available, inhaled short-acting beta(2)-agonists by metered-dose inhaler/spacer combination are recommended for symptomatic relief. Educating parents regarding causative factors and treatment is useful. Exposure to tobacco smoke should be avoided; allergen avoidance may be considered when sensitisation has been established. Maintenance treatment with inhaled corticosteroids is recommended for multiple-trigger wheeze; benefits are often small. Montelukast is recommended for the treatment of episodic (viral) wheeze and can be started when symptoms of a viral cold develop. Given the large overlap in phenotypes, and the fact that patients can move from one phenotype to another, inhaled corticosteroids and montelukast may be considered on a trial basis in almost any preschool child with recurrent wheeze, but should be discontinued if there is no clear clinical benefit. Large well-designed randomised controlled trials with clear descriptions of patients are needed to improve the present recommendations on the treatment of these common syndromes.

Outcome indicators for vitrectomy in Terson syndrome

PURPOSE: There is no general agreement on the best indication and timing of vitrectomy in patients suffering from Terson syndrome. Therefore, we reviewed our cases in order to assess factors interfering with the functional outcome and complication rates after vitrectomy. METHODS: In this retrospective consecutive case series, the records from all patients undergoing vitrectomy for Terson syndrome between 1975 and 2005 were evaluated. RESULTS: Thirty-seven patients (45 eyes) were identified, 36 of whom (44 corresponding eyes) were eligible. The best-corrected visual acuity (BCVA) at first and last presentation was 0.07 +/- 0.12 and 0.72 +/- 0.31, respectively. Thirty-five eyes (79.5%) achieved a postoperative BCVA of > or = 0.5; 26 (59.1%) eyes achieved a postoperative BCVA of > or = 0.8. Patients operated on within 90 days of vitreous haemorrhage achieved a better final BCVA than those with a longer latency (BCVA of 0.87 +/- 0.27 compared to 0.66 +/- 0.31; P = 0.03). Patients younger than 45 years of age achieved a better final BCVA than older patients (0.85 +/- 0.24 compared to 0.60 +/- 0.33; P = 0.006). Retinal detachment developed in four patients between 6 and 27 months after surgery. Seven patients (16%) required epiretinal membrane peeling and seven cataract surgery. CONCLUSION: Ninety-eight per cent of our patients experienced a rapid and persisting visual recovery after removal of a vitreous haemorrhage caused by Terson syndrome. A shorter time between occurrence of vitreous haemorrhage and surgery as well as a younger patient age are predictive of a better outcome. Generally, the surgical risk is low, but complications (namely retinal detachment) may occur late after surgery.

Genetic engineering and the world trade system

While the WTO agreements do not regulate the use of biotechnology per se, their rules can have a profound impact on the use of the technology for both commercial and non-commercial purposes. This book seeks to identify the challenges to international trade regulation that arise from biotechnology. The contributions examine whether existing international obligations of WTO Members are appropriate to deal with the issues arising for the use of biotechnology and whether there is a need for new international legal instruments, including a potential WTO Agreement on Biotechnology. They combine various perspectives on and topics relating to genetic engineering and trade, including human rights and gender; intellectual property rights; traditional knowledge and access and benefit sharing; food security, trade and agricultural production and food safety; and medical research, cloning and international trade.