Animated TRIPS Council Meeting Tackles Public Health, ACTA, Biodiversity

16 June 2010

Last week saw a lively meeting of the WTO’s Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as delegates took up a number contentious issues, including the Anti-Counterfeiting Trade Agreement (ACTA), public health, and the links between biodiversity and intellectual property.

On the morning of 8 June, the first day of the meeting, the Council debated whether two items should be included on the meeting’s agenda: a proposal from several developing countries on the implementation of the Paragraph 6 system, and a proposal from China and India on so-called TRIPS-Plus enforcement trends, which would look at whether some initiatives by developed countries have gone too far in strengthening enforcement of their IP rights.

On the China-India proposal, several rich countries argued that the enforcement discussions should be framed as neutrally as possible. Ultimately, it was decided that both items should be included on the agenda. The item on enforcement, however, was re-titled “Enforcement Trends,” dropping the reference to TRIPS-plus in view of the opposition by developed countries.

Public health and Paragraph 6

Turning to public health questions, delegates discussed the WTO’s Paragraph 6 system, which is intended to help developing countries gain affordable access to critical medicines. The system – which is named after the relevant section of the Doha Declaration on Public Health – is based on a waiver that removes a requirement that generic drugs produced under compulsory licence should be used mainly in the domestic market. Since it was enacted in 2003, the system has been used only once, for a shipment of HIV/AIDS drugs from Canada to Rwanda in 2008.

A discussion of the Paragraph 6 system had been requested by Brazil, China, Cuba, Ecuador, India, Indonesia, Peru, and Venezuela. Developing countries stated that the fact that Paragraph 6 has only been used once shows that the current system is burdensome and overly complicated to use.

The chair of the TRIPS Council, Martin Glass of Hong Kong, announced that during previous informal meetings, delegations had agreed by consensus that the second day of the October 2010 TRIPS Council meeting should be dedicated to a discussion of the implementation of the Paragraph 6 system. Countries also agreed that there should be a workshop on the matter prior to the October meeting.
But developed and developing countries disagreed over who should be invited to the workshop. China, India and their supporters said that pharmaceutical companies and representatives of NGOs should be allowed to attend, while rich nations argued that the workshop should be restricted to WTO delegates.

Enforcement Trends

China and India – the countries that had requested the discussion on enforcement – expressed their concerns on this front at length. The two countries said they are concerned about the potential effects of the Anti-Counterfeiting Trade Agreement (ACTA) that is now under negotiation among a handful of mostly developed nations. The pact aims to establish a new legal framework for the enforcement of intellectual property rights. China and India also expressed worry over bilateral and regional trade deals that similarly impose new intellectual property standards outside the TRIPS framework.

Such deals, the countries said, go above and beyond what is allowed under the WTO’s TRIPS Agreement and do not adequately consider the interests of developing countries. India acknowledged that TRIPS sets out minimum levels of IP protection, but added that the agreement also establishes certain ceilings on government action – ceilings that these new deals often break. India stressed that its greatest concern regarding ACTA is that the deal might restrict access to medicines in poor countries – specifically, that it could allow for further seizures of generic pharmaceuticals.

Peru, Cuba, Bolivia, Ecuador, South Africa, Egypt, and other developing countries added their support to India and China's statements.

A representative from the United States responded to India and China’s concerns. Bilateral and plurilateral agreements, including ACTA, are not at odds with TRIPS, the US delegate insisted. TRIPS is a minimum standard, the official argued, adding that ACTA is an independent initiative and does not interfere with TRIPS. Other members, including Korea, the EU, Japan, and Canada echoed these sentiments whereas Australia and New Zealand stated that they support transparency in the process.

The US’ primary reason for joining ACTA is to address the growing problems of counterfeiting and piracy, the delegate said, adding that given the scope of such activities, members are looking for solutions outside the WTO. The EU and Switzerland also responded to China and India's concerns. They noted that the trade of legitimate generic medicines will not be stopped by new ACTA regulations as there is no ACTA provision on border-stopping for patented goods. The EU also noted that counterfeiting and piracy are problems that affect developing countries as well.

Biodiversity

Delegates at the meeting also responded to a communication on biodiversity that Bolivia put forward in March. The document proposes a complete ban on all patents of biological entities or materials under Article 27.3(b) of the TRIPS Agreement.

Venezuela, Ecuador, and other developing countries voiced their support for Bolivia’s proposal at the TRIPS Council meeting. Moreover, many developing countries expressed their support for a disclosure requirement for biological patents. Such a stipulation would require those who seek to patent biological entities or processes to disclose where that information comes from, prove that they had informed consent from the community from which it was obtained, and demonstrate that the community was receiving fair and equitable compensation because of the patent and resulting commodities.

Switzerland, the United States and the EU rejected the idea of a ban on patents of biotechnology. Article 23 of the TRIPS Agreement, they argued, was already sufficiently flexible to protect the needs of the WTO member countries. Both Switzerland and the EU emphasised that WTO members can establish sui generis systems for the protection of biologics; such systems are more appropriate because they can be tailored to meet individual country needs, they said.

Other items on the agenda

In other business, the chair, Martin Glass, announced that India and Brazil have requested consultations with the European Union (WT/DS408/1 and WT/DS409/1) regarding the detention of generic drugs in transit through European ports. Canada, Brazil, Turkey, China and Japan have asked to join India’s consultations, while the Brazilian request has been seconded by Canada, Turkey, China, Japan and Ecuador. The TRIPS Council did not discuss the actual detentions, however; the chair presented the requests for consultation simply to keep members up to date.

The Council also heard from Rwanda and Bangladesh, as both countries presented the results of their respective assessments of their national technical and financial needs for TRIPS implementation and follow-up action plans. Backed by other developing countries, they called on developed nations to respond adequately to these submissions. The WTO secretariat also outlined its recent efforts to make needs assessments easier to carry out. Specific initiatives include a new guidebook now in preparation, a dedicated webpage on needs assessment Least Developed Countries (LDCs), as well as the other workshops that are taking place over the course of this year.

Ecuador concluded the meeting by presenting its recently successful issuance of compulsory license to allow importation of a key HIV/AIDS treatment drug. The Ecuadorian delegate noted that the drug in question was not under patent in the exporting country, and therefore the measure was taken under Article 31 of the TRIPS Agreement, rather than under Paragraph 6.

Several developing countries welcomed the move by Ecuador, emphasising that rich nations have made good use of compulsory licences, while developing countries have lagged behind in this respect. They noted that the Ecuadorian experience could help remove the stigma that is associated with the use of compulsory licenses in some developing countries.

ICTSD reporting.

* This article has been updated and corrected. A previous version inaccurately characterised the tone and contents of some of the discussions.

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