Access to Knowledge 2008

A2K and International Trade

The Panel

The last panel of the day explores the relationship between access to knowledge and international trade and features Thiru Balasubramaniam, Knowledge Ecology International, Catherine P. Bennet, National Foreign Trade Council, Margaret Chon, Seattle University School of Law, Gabrielle Marceau, WTO Secretariat and University of Geneva, Sisule Musungu, University of Bern & IQsensato and moderated by Miguel Rodriguez Mendoza, ICTSD

The Uruguay Round of the Multilateral Trade Negotiations which concluded with the Establishment of the WTO can be said to have revolutionized the international trading system. Beyond structural changes the new system significantly expanded the subject matter coverage. Beyond the regulation of trade in goods, the WTO system brought under the ambit of international trade disciplines new issues such as trade in services; intellectual property as well as introducing rules on areas such as import licensing, rules of origin and subsidies. When concluded, the ongoing Doha Round of Multilateral Trade Negotiations is expected to usher in another wave of liberalization, particularly in the areas of agriculture and industrial goods. In parallel to the multilateral trade liberalization processes, new bilateral and regional free trade agreements (FTAs) have proliferated at a record pace. How does this web of rules relate to and/or impact access to knowledge goods and services and hence A2K goals and causes? This panel will seek to answer this main question.

This panel will therefore seek to systematically examine and identify the linkages between A2K and in a broad sense. The discussion will go beyond just examining the relationship between intellectual property rules within the international trade framework, such as those established by the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and address the linkages (positive and negative) between A2K and other trade disciplines, such as tariffs, trade in services, investment, government procurement etc.

Miguel Rodriguez:

There are various rules of trade on services, import licensing, agriculture and subsidies, which are critical to the development discussion. A number of bilateral and free trade agreements that have incorporate free trade rules over various industries as well. The key question: How do trade and trade rules relate to and impact access to knowledge and what are the consequences on the A2K goals?

We will try in our deliberations to answer questions such as:
1. What are the trade disciplines that are most relevant to A2K?
2. How have Doha and other trade negotiations impacted A2K goals and objectives?
3. What would be the measures that ensure that A2K goals are met?

Notably, this is the first time that we are discussing the relationships between A2K and trade.

Sisule Musungu:

A key driver of globalization is trade. The World Trade Report of 2008 is entitled Trade in Globalizing World. Trade is regulated and creates linkages at three levels: the international, regional and national level.

Considering the WTO framework of rules, what is the relationship between trade and access? WTO rules regulate trade in goods and services — this includes knowledge goods (such as patents that control access to medicines) and knowledge services (various education services). What are the implications of these rules on the A2K? Health, telecom, financial services , and maritime are similarly all industries that are fundamental to issues of A2K and should be a point of focus in addition to intellectual property.

This is currently happening, slowly. In an EPA (economic partnerships agreement) recently signed between the EU and various Caribbean countries there are attempts to discuss issues of innovation in the text of the agreement. This represents an important step towards thinking about how to incorporate A2K issues into trade agreements.

We must look to all of these various industries implicated in trade discussions, not just intellectual property, in our attempts to further the A2K movement.

Gabrielle Marceau:

Most of the rules of WTO are relevant to A2K. While the patents to medicine are important, the pills themselves still have to move from one point to another.

There are four major rules guiding the main agreement of the WTO:
1. Respect the negotiated commitments regarding schedules (i.e. tariff rules, etc.)
2. Non-discrimination
3. National treatment – once the tariff is paid, a country shouldn’t treat a foreign good differently than it would treat a domestic product.
4. Prohibition on quotas – notably, a country can ban if it is dangerous to health, or place quotas if there is a concern about majorly hurting domestic industry

After signing the main agreement, the various signatories built more optional sub agreements between themselves.

Fundamentally important to A2K are the WTO’s Transparency Policies: All governments of the WTO are required to publish all domestic regulations that are relevant to trade. Of course, rules on subsidies and labels are also relevant.

It is important to remember that all provisions apply at the same time which sometimes leads to problems because all of these various agreements were negotiated separately and occasionally conflict with each other.

Catherine Bennet:

Trade and investment is central toA2K. However, the private sector is weary of the confrontational nature of IP issues. Often time, pro-IP people talk to each other and anti-IP people talk to each other and ultimately both groups end up talking past each other. As such, the A2K movement should focus on finding common ground on a lot of these issues.

Implementation of IP is important to development. The balance between IP and freedom is difficult and hard to get right. For example, patents are good and necessary incentive for drug development. Threatening to take away patents is not helpful. We should instead engage in technology transfer and license technology to local manufacturers and train employees.

So let’s engage in a dialogue that allows us to make real change.

Thiru Balasubramaniam:

We should consider a trade framework & multilateral agreement on global public goods (GPG) that is a WTO agreement with binding commitments by governments to increase the supply of a heterogeneous class of public goods. It should involve negotiations and binding agreements to support creation & access to public goods. Moreover, it should operate like analogous commitments to reducing tariffs, subsidies or liberalizing services.

GPGs are non-rivalrous and non-excludable. According to the International Task Force on Global Public Goods, global public goods address issues that are deemed to be important to the international community that cannot, or will not, be adequately addressed by individual countries acting alone, and therefore, must be addressed collectively on a multilateral basis, by both developed and developing countries.

Examples of GPGs include international economic stability, security (political stability), environment, regulations for civil aviation and telecommunications, humanitarian assistance, and knowledge. The focus here is on developing a proposal for a mechanism to address the under-supply of knowledge as a public good.

There is an under-supply of GPGs for many reasons including “sovereignty”, differing preferences and priorities, and the free rider problem. For public goods involving knowledge, the private sector’s role is growing (Wikipedia, IETF, W3C), but these efforts are insufficient to address many problems, and actions by governments are necessary. Governments have greater incentives to increase the welfare and consumption of their citizens than to contribute to the entire world, so there is an under supply of “global” public goods.

The World Trade Organization is according to its own charter above all a negotiating forum that is not just about liberalizing trade, and interested in allowing governments to meet social and environmental objectives.

The WTO TRIPS Agreement is not about trade liberalization. The TRIPS Agreement requires restrictions on the free movement of goods. TRIPS is an exercise in global norm setting — promoting the enclosure and privatization of knowledge through a set of mandatory IPRs.

A WTO Agreement on GPKG would focus on voluntary but binding commitments to enhance supply of heterogeneous GPKG, be modelled in some ways on the GATS (for ex. a country would not have to make any offer)‏, and would present benefits such as allowing countries to aggregate willingness to pay for or supply certain goods when it is dependent upon matching offers by third party.
GPKG are under-supplied and this won’t change without global mechanism to address free/rider/prisoners dilemma issues. The WTO has strong enforcement measures, and useful models for inducing voluntary but binding offers. There is no reason why trading can only be used to promote trade and consumption of public goods.

Margaret Chon:

What other trade disciplines affect access to knowledge?
A2K concerns:……………..Standards:
Innovation systems…………….Open source
Digital education………………..CC Licenses
Climate Change………………….Clean development mechanism – Carbon trading
Public Health…………………….Food Safety standards (though this is largely done privately by NGOs)
Human rights…………………….Social performance standards

There is a framework of normative pluralism under which we are operating where on one side the actors range from regulatory entrepreneurs and on the other side we have regulatory oligopolists. Ranging from one end to the other we see industry associations, firms etc. to NGOs to States to IGOs. As a result of this normative pluralism we see the production of various soft and hard laws by various actors that are sometimes conflicting.

Additionally, the standards (norm)-setting and certification process is largely invisible process where it is difficult to identify the various stakeholders how they are represented.

The good news is that under this normative pluralism framework, the system is decentralized and there is lots of space for new regulatory entrepreneurs to offer new ideas and new vibrancy to the debate.