WTO IP Negotiations Lengthen As New Questions Put On TablePublished on 5 December 2008 @ 4:13 pm
Intellectual Property Watch
By Kaitlin Mara
The body at the World Trade Organization tasked with negotiating a multilateral register for geographically-named wines and spirits began what could be several days of meetings Thursday with a question and answer session meant to find common understanding, but instead revealed just how deep the divide remains between the two sides.
Sixty-one “initial questions” were submitted by a group of countries seeking clarification on a proposal for the register submitted in July, yet discussions stretching into Thursday evening only managed to get through six of them. A separate set of five questions submitted by Singapore were also not addressed. Another meeting is planned for Friday, with some rumours that further meetings may be held over the weekend, and accusations of delay tactics by opponents stirring.
With a high-level ministerial meeting at the WTO rumoured possible as soon as 13 – 15 December, proponents of three intellectual property issues who have formed a strategic alliance representing a majority of WTO members are insisting that the issues be addressed as a part of overall negotiations. Meanwhile, a smaller group of countries is equally determined to ensure IP is not a part of the ministerial, citing the lack of mandate to negotiate on two of the three issues.
It was the third, mandated negotiation that a meeting Thursday was meant to address: the creation of a multilateral register for geographical indications (GIs, or product names associated with a particular place and characteristics) on wines and spirits. These meetings, currently chaired by Ambassador Trevor Clarke of Barbados, are called the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Special Sessions, and are mandated only to discuss the GI register, and in particular its scope, participation, legal effects and notification procedure.
At bookends of the register debate are the European Union – which wants a register with legal affects and mandated participation of member states – and the “Joint Proposal Group,” which has proposed a register which acts as a database of information with no specific legal effects, in which participation is voluntary.
The EU has submitted or discussed several versions of its register proposal in an attempt to reach consensus, the latest of which was submitted in July as a part of a compromise document on all three IP issues. The other two IP issues are: the possibility of extending high-level protection on GIs for wines and spirits to other GIs, and a proposed amendment to TRIPS that would require disclosure of origin of genetic resources used in patent applications, and potentially also provisions ensuring prior informed consent and benefit-sharing with the resource owners.
The compromise document [pdf] is called “W/52” and has 110 cosponsors. The plans for the GI register contained in this document represent, in the view of the European Union, significant compromises to “accommodate the concerns of others,” according to copy of the EU’s remarks from 21 November obtained by Intellectual Property Watch.
In recent special sessions, parallelism between the three IP issues has been a recurring topic of discussion, as the group of 110 emphasise that flexibility shown on the three IP issues in W/52 is conditional on the issues being dealt with in tandem, but after a fruitless meeting on Tuesday (IPW, WTO/TRIPS, 2 December 2008), member states agreed to focus Thursday’s meeting on questions solely on the portion of W/52 dealing with the GI register. Joint proposal cosponsors were invited to submit questions on that section of the document for discussion.
GI Register Questions
Thursday was the first discussion of the substantive issues of the GI register proposal contained in W/52, a joint proposal cosponsor told Intellectual Property Watch.
According to several sources, the EU, along with Switzerland, were the primary speakers in answering questions on the GI register. Members seeking further clarifications included Argentina, Australia, Canada, Chile, Costa Rica, El Salvador, Mexico, New Zealand and Nicaragua, sources said. In addition, Guatemala, Honduras, Japan, Korea, South Africa, Taiwan, and the United States are listed as requesters of clarification the “initial questions” document from the joint proposal group. Singapore also submitted questions for clarification, in its capacity as a non-wine producing member state.
The EU showed willingness to engage, said the joint proposal source, who then expressed concern that other members of the W/52 cosponsor group objected to being asked about the register without including the other two IP issues also in the document. Sources said those who spoke on parallelism included: Brazil, India, Côte d’Ivoire on behalf of the African Group, China, Colombia, and Switzerland.
“We feel we’ve engaged,” the joint proposal source added, but if other members want to set conditions for discussion that are unacceptable to member states who want to focus solely on the special sessions mandate (which includes only the GI register), then that will “hamstring” talks.
But sources from the W/52 group had a different view. First, they expressed frustration that “days before a ministerial” they received such a long list of questions, and that they received them at the beginning of a meeting rather than in advance. Some of the members listed on the question document had never asked a question during the entire 14 years of negotiating, one source said, reporting that at least one member of the joint proposal group had suggested the questions might take as long as a month to answer.
Which would make a satisfactory answer on the GI register impossible before the ministerial tentatively happening in under two weeks, the W/52 cosponsor told Intellectual Property Watch.
Further, the source said, while some W/52 sponsors had spoken in favour of parallelism, their interventions were brief and acknowledged that the special sessions are not the forum for negotiations on GI extension and the disclosure amendment. This was nothing compared to the amount of time spent by joint proposal members restating positions, the source added, which cut into the amount of time available for addressing the substance of the questions and represented a frustrating “delay tactic.”
A separate member of the W/52 coalition again emphasised that the three IP issues “are a part of the same package,” and thus cannot be separated.
Members of the joint proposal group told Intellectual Property Watch there are still serious substantive issues on the GI register that have not been addressed in the W/52 document. For instance, there is no information on who will pay for the maintenance of the register, a joint proposal source said. Normally, the source said, applicants to be registered GI owners would pay, but this might present burdens and costs for developing countries, and is a matter of concern for developing country members of the joint proposal group.
The joint proposal group also remains concerned that the W/52 proposal contains legal effects of registration that are too broad and considers the proposal’s required participation of all WTO member states in the register to be problematic.
A member of the W/52 cosponsorship group acknowledged that some issues still needed to be negotiated, but said that many of the questions asked were inappropriately detail-oriented for the kind of high-level ministerial decisions being sought this week. For example, questions 15 and 16 of the joint proposal document ask how the GI register might be kept up-to-date regarding, for instance, current ownership of a GI, and what would happen in the case of a GI falling into disuse in its country of origin.
Further, the source added, the W/52 document represents a significant loosening of the legal effects of registration in the GI register. EU remarks from the 21 November meeting further assert that the legal affects which are there are “fully justified” based on the fact that they require evidence from the GI owners and allow for contrary evidence to contradict a claim and cancel out the effects.
As regards participation, the EU position is that voluntary GI protection is already available at other organisations, for instance through the Lisbon Agreement at the World Intellectual Property Organization. After 15 years of negotiating, the 21 November remarks say, there “no point in discussing a voluntary register.”
Kaitlin Mara may be reached at firstname.lastname@example.org