Push Continues For TRIPS Biodiversity Amendment, Geographical Indications Extension

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By Kaitlin Mara
The push to amend the World Trade Organization agreement on intellectual property rights has not receded, as made clear this week by proponents of wider protection for geographical indications and using the patent system to safeguard biodiversity and traditional knowledge. But opponents remain steadfast.

Meanwhile, the search is on for a new director of the intellectual property division at the WTO.

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Council, the TRIPS agreement’s governing body, met on 29 October, followed by a 30 October TRIPS special session, mandated to negotiate a register for geographical indications (GIs), products associated with a particular place and characteristics.

Technology transfer, technical cooperation and an annual review of China’s intellectual property system were key topics at the TRIPS Council. Talks at the special session turned into a lengthy discussion over whether the mandated register negotiations could progress without simultaneous movement on two other IP issues linked to the GI register by a majority of member states.

The two issues are: the possible extension of high-level protection currently enjoyed by GIs on wines and spirits (such as Bordeaux wine) to other products (such as Parma ham), and a possible amending of the TRIPS agreement to require disclosure of origin of genetic resources in patent applications. There is a mandate to negotiate a multilateral GI register. There is also a mandate within the Doha ministerial declaration for the TRIPS Council to “examine the relationship” between TRIPS and CBD, which is where the disclosure proposal arises.

Expectations were that the special session meeting would be short, primarily consisting of confirming Ambassador Trevor Clarke of Barbados as new chair.

But co-authors of a document released in July of this year used the opportunity to bring up parallelism between the register issue and the other two IP issues. The document in question [pdf], called “W/52,” lays out a set of substantive and procedural steps for movement towards text-based negotiations on the three intellectual property issues, and calls for those issues to be an inextricable part of wider ongoing negotiations at the WTO Doha round of trade liberalisation talks.

A strategic alliance of supporters of the CBD issue and the GI issues said at the mini-ministerial meeting in July that the IP issues had to be a part of any wider negotiating process. After the collapse of July’s negotiations, due to disagreements in agriculture, member states have been searching for ways to proceed towards a resolution in the Doha round. The statements by GI and CBD proponents this week indicate that they still consider the issues key to broader success with the Doha negotiations.

Clarke intends to focus the special sessions on its mandate, the GI register, and will be meeting at the bilateral, group, and multilateral levels to find a compromise position. Clarke told Intellectual Property Watch he has already begun bilateral consultations with key member states, and will continue to do so into next week. He will then consult with wider groups and finally with the full membership to ensure transparency, he added.

The member states called, Clarke explained, for intensification in the GI registry negotiations, and in particular on matters of participation (i.e., voluntary or mandatory) in the GI registry and its legal effects.

Discussion on other IP issues will have to be pursued elsewhere, said Clarke, as the mandate of the special sessions currently is only to handle the GI register.

CBD/GI Extension Talk at Special Session

But a European Union delegate said that the GI register is linked to the other two issues, which must be dealt with together. The EU, which values GI protection very strongly, has been “very flexible” in the 13 years since the GI register was first mandated, the official added. The proposal in W/52 represents a relaxing of some of the more strict protection measures the EU had originally been seeking with the GI register.

But these compromises are an inextricable part of a three-pillar plan, the EU official said, and the other two pillars – GI extension and TRIPS/CBD – must also be discussed.

The W/52 document is landmark, said the EU official, not only because it is supported by nearly three-quarters of the WTO membership, but also because it represents a key compromise of groups that were not originally in agreement. It is not, explained the official, a coalition of like-minded countries.

There were only eight nations that were supporting both the GI issues and the CBD issues before the parallelism, according to a separate member state. The document is the result of “difficult negotiations” in which everyone had to make compromises on their original positions, said the EU official. As such, the official added it represents “an emerging consensus” with a “critical mass” of support. Opponents “have to acknowledge that some sort of solution has to be found.”

Brazil also weighed in to defend the parallelism, according to a source.

Chile asked how the parallelism members reached agreement on draft modalities, as shortly before the W/52 document was released there were key disagreements between leading CBD proponents and leading GI proponents on each other’s issues, a source said. Argentina questioned the parallelism, and noted that there is not a mandate for extension and the CBD mandate. Argentina would prefer not to open TRIPS to amending.

The United States voiced the opinion that there was broad agreement on intensifying work in the special session, but was firm that the mandate of the group does not include issues beyond the register. The US said it is willing to intensify technical work on that issue in the special sessions, but if an attempt is made to condition progress on the register on the other issues, “that puts this process into hibernation,” an official said.

A source said that Switzerland, India, Mauritius, Canada, China, El Salvador, and Ecuador had also made interventions during the debate at special session.

CBD Group Gains Support, Added Purpose At TRIPS Council

Sri Lanka has become an official cosponsor of a document calling for a TRIPS amendment to better protect biodiversity and traditional knowledge. The 2006 document, available here [doc], calls for mandatory disclosure of origin on genetic resources or traditional knowledge (TK) in the subject matter of a patent application, and also calls for evidence that the prior informed consent of communities owning those resources was obtained, and that they received equitable benefits for sharing the resources.

Sri Lanka was already a cosponsor of W/52, which incorporates many of the ideas contained in the disclosure document, but this clarifies that they are also a part of the group most keen to see CBD elements in TRIPS.

Amendments are necessary, argued an intervention by India on 29 October, to remedy the “inadequacy in the TRIPS agreement to combat biopiracy and misappropriation of genetic resources and TK.” The country further expressed “disappointment at the lack of progress on this issue despite overwhelming support and technical work.” Over half of WTO member states – some 80 countries – support the CBD amendment. Many of these states are developing countries, which India says makes the issue particularly pertinent as Doha is the development round of negotiations.

India also referenced the W/52 document, which represents a “geographical spread and… socio-profile of co-sponsors” that are a “barometer of importance and urgency attached to the issues.”

Technology Transfer, Technical Cooperation Still Key

Also discussed at length during the TRIPS Council were measures taken by developed countries to incentivise technology transfer, as they are mandated to do by TRIPS Article 66.2. Several nations submitted reports (IP/C/W/519) documenting their technology transfer activities.

Lesotho said in an intervention on behalf of the Least Developed Countries group that though much has been achieved, the lack of a uniform reporting mechanism and no agreement on what transfer of technology (and incentives for such transfer) entails presents difficulties.

Implementation of 66.2, said Lesotho, is “critical for LDCs to effectively utilise the transition periods” for TRIPS. More, it is mandatory for developed countries, and should be aimed specifically at least developed countries (as opposed to developing countries in general). The intervention defines technology transfer as including: physical capital and goods, skills and know-how, and information and data. This must happen on “less than commercial terms” and with the same freedom to operate granted by a full licensee of patented technology, it said.

“Without such capacity,” said the Lesotho intervention, “it is impossible to build domestic capacity for commercial scale activities related to the technologies.” The intervention calls for clear, uniform reporting mechanisms to measure the successful implementation of 66.2, and to ensure that reporting does not conflate technology transfer to developing countries with that transferred specifically to LDCs.

China answered questions on the progress of its intellectual property system. As part of the “transitional review mechanism” for the country, an annual process that was part of its WTO membership agreement, upwards of 80 total questions were submitted by Japan (IP/C/W/518), the United States (IP/C/W/520), the European Communities (IP/C/W/521), Canada (IP/C/W/524). Major areas of questioning included trademarks, geographical indications, enforcement, and copyright, though other topics came up, such as online piracy and protection of confidential information (in particular, a proposed piece of legislation on security in information technology that might require the disclosure of core technical information, such as software source code).

A communication by China (IP/C/W/525 [doc]) provides details of its activities related to enforcement of intellectual property rights, including statistics on confiscated pirate or counterfeit goods and IP-related court cases and arrests. The country also provided several responses orally during the meeting, but declined to answer those it deemed too related to an ongoing dispute settlement case, according to sources.

Vietnam, which joined the WTO in 2007, continued to answer questions regarding its implementation of TRIPS obligations. A copy of the country’s intervention at the TRIPS Council obtained by Intellectual Property Watch includes, among other issues, mention of the provision that moral rights will “be protected for an indefinite term” under Vietnamese IP law and provisions on folklore and folk art, patents and national security or social urgent needs, business secrets, and criminal penalties. The full text of Vietnam’s responses is here: IP/C/W/514, with two addenda here and here.

On technical cooperation, Uganda and Sierra Leone – the first countries to submit priority needs assessments on TRIPS – continue to work on implementation of TRIPS (IPW, WTO/TRIPS, 19 June 2008). Sierra Leone submitted a project document outlining plans for implementing an IP system in its country to this TRIPS Council.

Search for New IP Division Head

The WTO is actively seeking the next director of the Intellectual Property Division. The vacancy notice [pdf] posted on 24 October to its website shows little change in the position from that held by former director Adrian Otten, who retired last summer after a career that predated the creation of the WTO and negotiation of the 1994 TRIPS Agreement. His departure created an opportunity to rethink the position, and the WTO secretariat reviewed it during its recent broader restructuring, but decided to keep it intact. The only changes made were to fuse the WTO Information & Media Relations Division and External Relations Division, and to diffuse the aspects of the Trade and Finance and Trade Facilitation Division, according to WTO sources.

The new director will be responsible for all matters relating to intellectual property at the WTO, as well as work on government procurement, and questions of trade and competition policy, according to the announcement. Responsibility will include oversight of technical cooperation and capacity-building activities, oversight of related dispute settlement panels, and liaison with international organisation, industry and non-governmental organisations. The person selected may come from within or outside the WTO. Hannu Wager of Finland currently is acting head of the division.

Planned dates (subject to change) of TRIPS Council meetings for 2009 are 3-4 March, 8-9 June, and 27-28 October.

William New contributed to this story.

Kaitlin Mara may be reached at kmara@ip-watch.ch

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