Geographical Indications: A Review of Proposals at the TRIPS Council
UNCTAD-ICTSD Project on IPRs and Sustainable Development Series • Issue Paper 4
The present paper dealing with Geographical Indications: A Review of Proposals at the TRIPS Council: Extending Article 23 to Products other than Wines and Spirits is one contribution of the joint UNCTAD-ICTSD Project on Intellectual Property Rights (IPRs) and Sustainable Development to the ongoing debate on the impact and relevance of intellectual property to development. It consists of three broad parts. In the first part, the study provides an overview of the legal doctrines that frame and rationalise the protection of geographical indications (GIs), identifying the misleading use of indications and the dilution of an indication as the two main reasons for such protection.
The second part reviews the rules on GIs under the TRIPS Agreement. In this context, it clarifies the differences between some key terms, namely “geographical indication”, “indication of source” and “appellation of origin”. This part is completed by a comparative analysis of the different forms of protection offered under the TRIPS Agreement, highlighting the elevated level of protection conferred under Article 23 to GIs for wines and spirits, as opposed to the ordinary protection made available under Article 22 to GIs for all other goods.
The proposal to extend the additional protection under Article 23 to products other than wines and spirits has been sponsored by a group of WTO Members including both developing and developed (mostly European) countries. The developing countries included in this group of demandeurs are expecting economic benefits from the improved GIs protection of domestic or indigenous products. Other developing countries, sided by developed Members such as the US and Australia, have rejected any extension of protection, expressing concerns about limited access to export markets as a direct consequence of additional protection. Thus, the study shows that the question of GI extension cuts across a range of issues including protection of indigenous knowledge, sustainable development, and promotion of agri-rural development. The third part of the paper critically analyses the submissions to the TRIPS Council, where negotiations currently remain in a deadlock. It comes to the conclusion that further study, in particular with respect to the socio-economic consequences of GIs, is required before a final assessment of the economic value of GIs extension for developing countries can be made.
Intellectual property rights (IPRs) have never been more economically and politically important or controversial than they are today. Patents, copyrights, trademarks, industrial designs, integrated circuits and geographical indications are frequently mentioned in discussions and debates on such diverse topics as public health, food security, education, trade, industrial policy, traditional knowledge, biodiversity, biotechnology, the Internet, the entertainment and media industries. In a knowledge-based economy, there is no doubt that an understanding of IPRs is indispensable to informed policy making in all areas of human development.
Intellectual Property was until recently the domain of specialists and producers of intellectual property rights. The TRIPS Agreement concluded during the Uruguay Round negotiations has signalled a major shift in this regard. The incorporation of intellectual property rights into the multilateral trading system and its relationship with a wide area of key public policy issues has elicited great concern over its pervasive role in people’s lives and in society in general. Developing country members of the World Trade Organization (WTO) no longer have the policy options and flexibilities developed countries had in using IPRs to support their national development. But, TRIPS is not the end of the story. Significant new developments are taking place at the international, regional and bilateral level that build on and strengthen the minimum TRIPS standards through the progressive harmonisation of policies along standards of technologically advanced countries. The challenges ahead in designing and implementing IP-policy at the national and international levels are considerable.
Empirical evidence on the role of IP protection in promoting innovation and growth in general remains limited and inconclusive. Conflicting views also persist on the impacts of IPRs in the development prospects. Some point out that, in a modern economy, the minimum standards laid down in TRIPS, will bring benefits to developing countries by creating the incentive structure necessary for knowledge generation and diffusion, technology transfer and private investment flows. Others stress that intellectual property, especially some of its elements, such as the patenting regime, will adversely affect the pursuit of sustainable development strategies by raising the prices of essential drugs to levels that are too high for the poor to afford; limiting the availability of educational materials for developing country school and university students; legitimising the piracy of traditional knowledge; and undermining the self-reliance of resource poor farmers.
It is urgent, therefore, to ask the question: How can developing countries use IP tools to advance their development strategy? What are the key concerns surrounding the issues of IPR for developing countries? What are the specific difficulties they face in intellectual property negotiations? Is intellectual property directly relevant to sustainable development and to the achievement of agreed international development goals? Do they have the capacity, especially the least developed among them, to formulate their negotiating positions and become well-informed negotiating partners? These are essential questions that policy makers need to address in order to design IPR laws and policies that best meet the needs of their people and negotiate effectively in future agreements.
It is to address some of these questions that the joint UNCTAD-ICTSD Project on Intellectual Property and Sustainable Development was launched in July 2001. One central objective has been to facilitate the emergence of a critical mass of well-informed stakeholders in developing countries - including decision makers, negotiators but also the private sector and civil society - who will be able to define their own sustainable human development objectives in the field of IPRs and effectively advance them at the national and international levels.