TRIPS Council Debates Public Health, ‘Non-Violation’ Complaints

4 November 2009

WTO delegates tackled several contentious intellectual property issues - including access to medicines, ‘non-violation complaints' and biodiversity - at a two-day session last week. The formal meeting of the council of the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Council), which was held on 27 and 28 October, resulted in consensus on a public health question relevant to the upcoming ministerial, but provided little progress on the most pernicious trade-related intellectual property issues.

TRIPS and public health

Turning to public health concerns, members recommended that the WTO's General Council extend for another two years the deadline for governments to approve an amendment to the TRIPS Agreement that would loosen intellectual property protection to help developing countries gain access to critical medicines.

The proposed amendment would be largely symbolic, however, as a waiver agreed as part of the '30 August Decision' of 2003 largely fulfils the same goal. In that decision, members agreed to waive certain provisions of the TRIPS Agreement so that countries could legally export generic drugs produced without the patent-holders' consent to developing countries that are unable to produce the pharmaceuticals themselves.

Supporters of that waiver hailed it as proof that the trading system can take into account public health and development concerns. But critics have consistently argued that the onerous administrative procedures required by the deal render the waiver difficult to use in practice. So far Canada is the only country to have made use of the initiative. A Canadian representative told the meeting last week that it had completed its second shipment of drugs under the six-year-old waiver; its first delivery - a batch of generic HIV/AIDS drugs - arrived in Rwanda last year (see Bridges Weekly, 25 September 2008, http://www.ictsd.org/bridges-news/bridges/news/first-generic-drugs-en-route-to-africa-under-5-year-old-wto-deal).

Under the heading 'other business', India once again criticised the EU over several recent detentions of generic drugs en route through European ports.

The spat began nearly a year ago, after Dutch customs officials detained for more than five weeks a shipment of generic high blood pressure drugs that was docked in a port in the Netherlands while en route to Brazil. The medicines were ultimately shipped back to India, where they had been manufactured. Several other cases have arisen since, the most recent in Paris in October, an Indian representative told the meeting.

"What confuses us is the irony that while on the one hand, [European] countries are providing funds for public health programmes of developing countries, and at the same time barriers are being created to legitimate trade in generics and to hamper access to medicines," the Indian representative said at the meeting. Several other developing countries - including Brazil, China, Egypt and Peru, among others - chimed in to second India's criticisms.

But the European representative said that the detentions were simply intended to allow the holder of the drug's patent rights to verify the product, as trade in counterfeit medicines can be dangerous. The shipments were all returned to the importer, the representative noted, adding that the EU has long been committed to facilitating the legitimate trade of generic medicines.

News reports indicate that India and Brazil are preparing a WTO suit against the European seizures, but they have yet to file their complaint. This was not mentioned at the meeting.

'Non-violation complaints'

Discussions then turned to an item that will definitely be on trade ministers' agenda at the upcoming ministerial conference: the question of whether to extend the current moratorium on ‘non-violation complaints' under the TRIPS Agreement.

Under the current moratorium, WTO members are only allowed to file a complaint about an intellectual property issue at the WTO if the TRIPS Agreement has allegedly been breached. But some countries - notably the US and Switzerland - would like to see this ban eliminated. This is a long-standing question at the WTO, whose General Agreement on Tariffs and Trade allows for such ‘non-violation complaints' over trade in goods. So far, though, they have not been allowed for intellectual property.

The question of 'non-violation complaints' is definitively on the agenda for the WTO ministerial conference, which is set to take place in Geneva from 30 November to 2 December, but delegates have yet to decide what recommendation they will put in front of the ministers. A resolution could come soon, though, if delegates meet their unofficial target of this Friday, 6 November, for finalising a recommendation on non-violation complaints. The delegates are aiming to put the finishing touches on their recommendation on e-commerce, another ministerial agenda item, by the same day.

CBD question still unresolved

Delegates also debated another question over which members have long remained divided: namely, whether to introduce an amendment to the TRIPS Agreement that would require patent applicants to disclose the origin of any biological resources or associated traditional knowledge used in their inventions. Members' positions have not shifted on this question.

Proponents of the amendment - including the EU, Norway and many developing countries - say that such a measure would be the most effective way to put a stop to the misappropriation of genetic resources. Others, however, including the US and Japan, say that a TRIPS amendment is not the best way to tackle the problem and favour measures that would not be legally binding.

Review of China's policies

In other regular business, China underwent its annual ‘transitional review' that is required by the package of commitments that Beijing signed up to when it joined the WTO in 2001. China noted that it has made many updates to its legislation governing copyrights, trademarks, and patents, and other TRIPS-related issues, noting that the changes included stricter administrative sanctions for intellectual property violations.

But the EU and the US still had complaints. The European representative noted that 54 percent of all IPR-infringing goods seized at the EU border originated in China, while the US delegate said that Chinese websites are hosting "serious IPR infringements." China is home to a wholesale market in counterfeit medicines, the US official continued, and the trade in fake drugs is undermining public health.

The Chinese representative said that such claims are unsubstantiated.

ICTSD reporting.

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