TRIPS: MEMBERS STILL DIVIDED ON BIODIVERSITY, GIs, AND ENFORCEMENT

WTO Members continue to broadly disagree on how best to achieve the objectives of biodiversity conservation and intellectual property protection. The issue, along with the enforcement of intellectual property rights (IPRs), featured prominently in discussions during a 5 June meeting of the TRIPS Council.

Separate informal consultations on another contentious intellectual property issue -- the protection of geographical indications (GIs) -- took place the following day.

Disclosure Group expands

The misappropriation of genetic resources and traditional knowledge (TK) through patents ("bio-piracy") has been a source of major concern to a large number of Members, particularly several developing countries. For this reason, a group of developing countries (Brazil, China, Colombia, Cuba, India, Pakistan, Peru, Thailand, Tanzania, Ecuador, and South Africa) last summer proposed amending the TRIPS Agreement to require patent applications to include disclosure of the origin of genetic resources and associated traditional knowledge as well as evidence of prior informed consent and benefit sharing (IP/C/W/474; see BRIDGES Trade BioRes, 16 June 2006, http://www.ictsd.org/biores/06-06-16/story3.htm). They argue that such requirements are necessary to support patent-related obligations that arise from the Convention on Biological Diversity (CBD).

These countries have since repeated their call for making mandatory disclosure requirements part of WTO rules, calling for text-based negotiations to develop a specific amendment. They have been opposed by Members such as Australia, Canada, and New Zealand, which argue that such negotiations would be premature and that even disclosure requirements might not prevent 'bad patents' from being granted.

Notably, the so-called "Disclosure Group" expanded considerably at the recent meeting, with Venezuela, the members of the African Group and the members of the Group of Least-Developed Countries (LDCs) announcing their support for the proposal.

Apart from that, the discussion followed a familiar pattern. Australia, Canada, and New Zealand said that more facts-based discussions on concrete cases of misappropriation were necessary. Japan and the US underlined their opposition to any TRIPS amendment on disclosure, saying that there is no contradiction between the WTO agreement and the CBD.

Norway supported the Disclosure Group's call for text-based negotiations, pointing to its own similar proposal for an amendment (IP/W/473). Instead of patent revocation, the Norwegians would sanction patent applicants that fail to meet disclosure requirements outside the outside the patent system. Several countries in the Disclosure Group welcomed the Norwegian approach as a step in the right direction.

Finally, the EU reiterated its call for disclosure requirements to be negotiated outside the WTO, at the World Intellectual Property Organization.

Brazil said that Members' political will to engage in negotiations on disclosure as part of the Doha Round negotiations was growing. According to the Brazilian delegate, technical discussions would be pursued in informal consultations rather than at the meetings of the TRIPS Council.

The new chair of the TRIPS Council, Ambassador Yonov Frederick Agah (Nigeria) will consult with Members on whether to grant the CBD Secretariat observer status at the WTO, after Brazil expressed support for doing so but the US indicated its opposition.

Disagreement persists over enforcement

A number of mainly industrialised nations such as Switzerland, Japan, the EU, and the US, (but also El Salvador) have been seeking to make the enforcement of intellectual property rights a permanent item on the TRIPS Council's agenda, pointing to increasing piracy and counterfeiting around the world. Most major developing countries, such as Argentina, Brazil, China, Cuba, India, and South Africa, oppose a requirement to discuss intellectual property rights at every meeting, arguing that giving the issue such prominence could ultimately impinge upon Members' freedom to determine the appropriate means of IP enforcement. They argue that other fora, such as WIPO and the World Customs Organization, deal adequately with enforcement.

Against this background, Switzerland tabled a submission describing its own enforcement system and border measures (IP/C/W/492). It highlights the importance of cooperation between national agencies, and points to the Swiss patent office's campaigns to promote public awareness that IP piracy and counterfeiting is more than a minor "peccadillo." Several developing countries emphasised that there was consensus among Members to make enforcement a permanent fixture on the Council's agenda.

GIs at a standstill

Like the TRIPS and biodiversity issues, Members remain deadlocked on whether to extend the higher level of geographical indication (GI) protection currently accorded to wines and spirits to other products (such as 'Parma ham'). Informal consultations on 6 June indicated no changes. Opponents of 'GI extension' such as Argentina, Canada, Chile, and the US have expressed concern about the costs of implementation - their farmers would lose the ability to use at least some names for their products, such as 'gruyère cheese.' The EU and India counter that increased protection would offer developing country producers opportunities to gain price premiums in export markets.

Switzerland and the EU believe that commercial opportunities arising from expanded GI protection could help compensate their agricultural producers for subsidy and tariff cuts under the Doha Round. GI extension is likely to become more prominent as WTO Members, particularly the G-4 of Brazil, the EU, India, and the US, try to reach an accord on farm trade.

ICTSD reporting.