Way Forward on IP Issues at the WTO Still Unclear

17 June 2009

Last week's WTO Council for Trade-Related Aspects of Intellectual Property Rights saw very little, if any, progress towards resolving TRIPS issues in the context of the Doha negotiations.

The Council, which met on 8 June, 2009 has yet to see substantial progress in the discussions on the three intellectual property issues that have dominated the talks thus far: extension of ‘geographical indication', or GI, protections to all products; the establishment of a GI register; and the adoption of an amendment of the TRIPS agreement to require that patent applicants disclose the origin of any genetic resources or traditional knowledge used in the inventions.

Technical cooperation and capacity-building also arose at last week's meeting. But the issue that dominated the session was the recent seizure of a shipment of the generic drug Amoxicillin, which was held up by German customs officials in Frankfurt en route from India to Vanuatu (for coverage of that story, please see Bridges Weekly, 10 June 2009, http://www.ictsd.org/bridges-news/bridges/news/european-generic-drug-seizures-take-centre-stage-at-trips-council-meeting).

Delayed Movement on Disclosure Requirement

Movement on the disclosure requirement continues to be delayed by deep divisions among Member states as to how to move forward the discussions on this issue.

"Most countries support the full negotiation of the TRIPs agreement on biological resources, traditional knowledge and folklore. However there is continuing lack of consensus," Egypt told the TRIPS Council on behalf of the African group.

"It is difficult and costly for developing countries to fight for their rights on biological resources and/or traditional knowledge," the Egyptian delegate added. "The disclosure requirement is important for poor communities to protect their rights."

Brazil also noted that the disclosure requirement was important for its contribution to commercialising biological resources; increasing the accessibility of genetic resources, traditional knowledge and folklore for society; widening developing countries' participation in the system; and creating an international uniform legal framework.

India also lent its support in this regard, pointing out that there is no contradiction between the TRIPS Agreement and the Convention on Biological Diversity (CBD). It also volunteered to create a traditional knowledge database, but stressed that such a measure should be complementary to the disclosure requirement, not a substitute for it.

Since 2006 a number of developing countries have called for an amendment to the TRIPS Agreement to include a mandatory requirement for patent applicants to disclose the origin of any genetic resources and/or associated traditional knowledge involved in their inventions. In July 2008, an unprecedented coalition of developed and developing countries put forward a proposal to this effect, often referred to as the ‘draft modalities text' on IP issues at the WTO (See Bridges Weekly, 23 July 2008, http://www.ictsd.org/north-south-coalition-sets-out-‘draft-modalities’-on-trips).

Originally proposed by Brazil, China, Colombia, Cuba, India, Pakistan, Peru, Thailand and Tanzania, by last summer, the proposal had drawn the support of more than 100 WTO Members, including the EU and Switzerland.

At last week's meeting, these two developed members also reaffirmed their commitment to the proposal - document TN/C/W/52 - and expressed their readiness to address the developing countries' concerns. Although the EU has said it sees some merits in other proposals, such as the database approach favoured principally by Japan, it does not consider such alternatives to be as sufficient or as effective as the disclosure requirement.

The United States, joined by Argentina, Australia, Canada, Chile, Japan, New Zealand and Taiwan reaffirmed its opposition to the approach spelled out in the draft modalities. According to the US, the disclosure requirement is not essential and bringing CBD into the TRIPS Agreement would not make sense.

The draft modalities proposal calls for the inclusion of the IP issues "as part of the horizontal process" of the Doha round, advocating that the three controversial IP issues be included in the negotiations as part of the ‘single-undertaking'.

The coalition that supports the ‘draft modalities' includes more two-thirds of the WTO membership, but that stance has been met with strong opposition from Australia, Canada, Chile, Mexico, New Zealand, South Korea, Taiwan and the US, who have sponsored a competing initiative dubbed the ‘joint proposal'. These countries hold that including intellectual property issues in the horizontal negotiations on modalities in the industrial and agricultural sectors would "substantially set back efforts to arrive at a viable way forward for the Doha negotiations."

Outsourcing Discussions of TRIPS and the CDB?

Australia, Canada, and New Zealand suggested the possibility of shifting discussions on the TRIPS Agreement and the CBD to another forum. According to sources, these countries proposed that discussions on this issue might be better placed in the World Intellectual Property Organisation, where there is a specific committee to address genetic resources issues.

But several developing-country Members opposed the suggestion to shift these discussions to WIPO. Given the urgency of halting the misappropriation of genetic resources, these countries say, the international community needs an amendment to the TRIPS Agreement, as such a measure would be binding and therefore stronger than an agreement outside the WTO.

Technical Cooperation and Capacity-building

Egypt suggested that all approaches to technical cooperation and capacity-building should be development-oriented, driven by demand, neutral and transparent. As many countries supported this suggestion, Uganda shared its experience on two capacity-building projects funded by the EU and expressed its need for more technical cooperation.

While noting the experience of Uganda, the Swiss delegate proposed that an assessment be undertaken by least developed countries in order to provide a basis for effective assistance.  The delegate also offered that nations should coordinate to avoid repetition and ensure efficiency. Switzerland's proposal was welcomed by many countries.

Special Session on GI Register

A special session of the TRIPS council met on 10 June under the chairmanship of Ambassador Trevor Clarke of Barbados. These special sessions are specifically mandated to discuss the creation of a multilateral register for geographical indications on wines and spirits.

During the session, several Members requested that the proponents of a mandatory, legally binding GI register draft a legal text detailing how such a mechanism would function. But this request was promptly refused, as the EU, one of the main supporters of the proposal, dismissed the request as an unnecessary diversion from the real issue at hand - the level of Member participation in the register and the consequences of such participation.

Other Members added that a legal text on the GI register section (document TN/C/W/52) would be difficult to draft, considering that the document is a negotiated compromised text. They say it may prove difficult to reach consensus on further details.

The two other proposals for a GI register on the table are the ‘joint proposal' advocated by the opponents to a mandatory and legally binding register and the ‘Hong Kong proposal'.  Both of the proposals have been drafted as legal texts.

Several member states, including China, Angola, Pakistan, and Peru, expressed their disappointment in the slow progress the TRIPS Council has made on these three main IP issues.

According to Ambassador Clarke, progress in the special sessions will remain slow as some Members prefer to have the three IP issues move forward together in the broader context of the Doha Round.

The next session of the TRIPS council is scheduled for later this year.

ICTSD reporting.

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