This article is adapted from AQ’s print issue on piracy in Latin America
Trade and intellectual property (IP) have been bound together for a long time. The first major international agreement on intellectual property dates back to 1883 with the signing of the Paris Convention. The treaty was formed after inventors refused to participate in a global fair for fear of having their ideas stolen, sparking negotiations that created a path to protect patents, brands and industrial designs outside their countries of origin. In 1886, the Berne Convention for the Protection of Literary and Artistic Works was signed. These first initiatives were the foundation of what today is known as the World Intellectual Property Organization.
Since the 1960s, Latin American bilateral commercial treaties have included IP protection, but these have been mostly minor mentions. The need to protect products tied to large corporations in more technologically advanced countries started gaining traction in the 1980s and made significant progress during the General Agreement on Tariffs and Trade rounds in Uruguay. This round of negotiations gave rise to the World Trade Organization and tied IP to the world trade system through a multilateral agreement known as Trade Related Intellectual Property Issues (TRIPS). This agreement became the framework for IP clauses in treaties and international trade accords.
As signatories of TRIPS, Latin American countries establish mechanisms of observance and compliance at a national level to protect IP rights against piracy or contraband of goods. This also includes e-commerce and the right of ownership in digital media.
While TRIPS provides the template, each agreement has to take into account the specific needs of the nations involved. As a participant in seven rounds of negotiations of the U.S.-Colombia Free Trade Agreement, I witnessed the fight to protect Colombians’ constitutional rights, especially in terms of biological patents. We had to push to prevent the possibility of companies being able to outright patent elements from plants and other components from our flora and fauna, and instead guarantee the requirement of informed consent from the local communities that have traditionally protected those elements and grown those crops.
Colombia is one of the most biodiverse countries on Earth, and our indigenous and Afro-Colombian communities are an immense pool of traditional knowledge, which we need to protect. Within the Andean Community (CAN), of which Colombia is a member, we have common regulations on IP that protect copyrighted material, brands, innovations and industrial property patents such as genetic materials and plant varieties from agricultural developments. These laws are common to all CAN member countries and recognize the traditional knowledge of indigenous and Afro-descendent communities as their intellectual property and require authorization from those communities for use or research. Food and cosmetics companies from developed countries have a lot of interest in traditional communities’ biological resources and deep knowledge, which we protect with the international system of IP.
Latin American countries in general, and Colombia in particular, have strong IP laws. Colombia’s trade agreements include broad legislation to protect not only imports but also our exports. While we don’t have a large industrial base, we do have thriving cultural and agricultural industries. Our commitment has to be to balance the rights of authors, creators and communities with economic interests.
It is important for countries to guarantee that these mechanisms are included in all trade agreements, and that these resources are protected.
Molano is a professor at Colombia’s Universidad del Valle and specializes in intellectual property and is president of IRCE, Cali’s legal association.