TRIPs Council Split Over Role Of Intellectual Property To Prevent 'Biopiracy'

Delegates at the 25-27 June meeting of the WTO Council for Trade-related Aspects of Intellectual Property Rights (TRIPs) remained divided over the need to harmonise the TRIPs Agreement and the Convention on Biological Diversity (CBD) as a means for preventing 'biopiracy'. Related discussions also took place in the context of geographical indications (GIs), in particular regarding the usefulness of GIs as a tool for protecting traditional knowledge (TK).

CBD outcomes might give additional momentum to TRIPs discussions

Regarding the relationship between the TRIPs Agreement and the CBD, the TRIPs Council received a new submission from Brazil on behalf of a group of developing countries, including China, Cuba, the Dominican Republic, Ecuador, India, Pakistan, Thailand, Venezuela, Zambia and Zimbabwe. The submission (IP/C/W/356) stressed the need to modify the TRIPs Agreement, arguing that the Agreement contained no provisions to prevent biopiracy acts or ensure prior informed consent and the fair and equitable sharing of benefits. To this end, the group of countries proposed several conditions for acquiring patent rights related to biological materials or TK, including requirements for patent applicants to disclose the source of origin of the biological resource and associated TK; and evidence of prior informed consent and benefit-sharing. The Brazil-led submission, however, stressed that the proposed requirements would only provide "defensive" protection of TK. Echoing similar proposals raised in related fora (i.e. the CBD, WIPO [World Intellectual Property Organization] and preparations for the World Summit on Sustainable Development), the submission called on the TRIPs Council to also consider "positive" protection of TK, including, inter alia, an internationally agreed instrument that recognised national-level TK protection.

While the substance of the submission was not necessarily new, the context of the discussion had changed in several regards, one source noted. That is, the recent adoption of the Bonn Guidelines on Access and Benefit Sharing at COP-6 of the CBD -- and in particular references to disclosure requirements contained in the Decision -- had given the debate additional momentum and had provided direction for future discussions, the source explained (see BRIDGES Trade BioRes, 18 April 2002). Also, the negotiating context had changed, i.e. these discussions now took place in the context of the Doha mandate, which requires the TRIPs Council to report on progress to the Trade Negotiations Committee by the end of 2002 and which left open the possibility of including these issues as part of the negotiations. Finally, a submission by a group of countries rather than proposals by individual countries was likely to add additional weight to the demands.

During subsequent discussions, countries' positions remained unchanged. Most developed countries, including the EC, US and Japan, have generally resisted amendments to the TRIPs Agreement as proposed by the group of developing countries, arguing that there was no conflict between the TRIPs Agreement and the CBD, and that they could be simultaneously applied. The US, in particular, has so far strongly opposed the inclusion disclosure requirements in patent applications, which they say would be incompatible with the TRIPs Agreement since they added another substantive condition on patentability beyond those already provided. Many developing countries, however, view the inclusion of disclosure requirements as part of the effort to establish a legal regime for access and benefit sharing and TK protection in addition to developments and decisions in related fora.

As one source speculated, significant progress on these issues was unlikely before the next Ministerial Conference in Mexico in September 2003 given that discussions in the TRIPs Council continue to be dominated by issues related to public health (see BRIDGES Weekly, 3 July 2002) and GIs (see BRIDGES Weekly, 3 July 2002).

GIs as a possible tool to prevent 'biopiracy'?

During the meeting, delegates furthermore debated the pros and cons of extending the higher level of protection for geographical indications to products other than wines and spirits (set out in Art. 23). In this context, Switzerland raised the issue of GIs as a tool for protecting traditional knowledge, referring in particular to a paper by the WIPO Secretariat, which highlights GIs as a "suitable" mechanism for TK protection (WIPO/GRTKF/IC/3/7; see BRIDGES Trade BioRes, 27 June 2002). Brazil, however, while not objecting to the idea of using GIs for TK protection, pointed out that GIs were subject to the same limitations as any other intellectual property right (IPR). That is, GIs would not help against preventing 'biopiracy', as they only protected the product but not the genetic resources and associated TK, and would thus not prevent their use and patenting. The EC, however, while acknowledging that GIs did not necessarily prevent patenting of TK, stressed that GIs could at least make a contribution to TK protection as part of a larger framework.

Geographical indications, as defined in the WTO TRIPs Agreement, are identifications of the country or region where the quality, reputation or other characteristic of a product is essentially attributable to the geographical region. Additional protection of GIs already exists for wines and spirits (e.g. Champagne, Bordeaux and Cognac), and some countries (mainly Asia, Europe and Africa) are calling for this protection to be extended to other products (e.g. Basmati rice, Darjeeling tea or Camembert cheese). Some believe that by giving value to localised natural products and associated know-how, GIs can provide an incentive to preserve native varieties, the environment in which the respective resources are grown, and the traditional knowledge associated with them. Others, however, are concerned that GIs will only bring new obligations for developing countries while the benefits will mainly go to developed countries that are better prepared at the national level to take advantage of GI extensions and that might use GIs as a trade barrier against developing countries' exports.

ICTSD reporting.