World Trade Organization Director General Pascal Lamy on Wednesday kicked off informal talks on two key intellectual property issues that have been stalled by disagreements on the forum and mandate for their discussion.

A majority of WTO member states has been seeking a resolution on how to proceed on these two issues. Some 110 members signed a document submitted to the WTO in July that set forth a draft set of modalities (ways forward) towards negotiations on these and a third issue. But others say there is no mandate to negotiate, and that linking issues in this way is problematic.

Lamy met on 11 March with ambassadors of interested countries in an informal consultation on IP issues as part of the bigger process of moving trade-liberalising talks at the WTO. He plans to meet with them again on 9 April with a focus on answering questions.

The two issues discussed Wednesday are the possible extension of high-level protection on geographical indications, or product names association with a particular place and characteristics, currently enjoyed by wines and spirits to other products; and the possibility of amending the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement to include measures against misappropriation and biopiracy (also called the Convention on Biological Diversity (CBD) amendment, it includes a requirement to disclose origin of genetic resources used in patent applications).

The director general’s hosting of the talks demonstrates the seriousness of the IP issues, argued a proponent of discussing the issues, who added that it is significant that “we now have a process.”

While sources say that the discussions begun Wednesday are “without prejudice to a mandate,” it is the first time members have had a dedicated forum since the failed July ministerial meeting that covered them along with the third issue, under the chairmanship of Norwegian Foreign Minister Jonas Støre (IPW, WTO, 29 July 2008).

The 11 March meeting was ambassador level (plus one), and further talks will continue at the same level. Present at this meeting, according to several sources, were Brazil, China, Egypt, European Union, India, Mauritius, Peru and Tanzania from the group that favours modalities and Argentina, Australia, Canada, Chile, New Zealand, and the United States from the group that opposes them. Norway was also present, though they fall into neither group.

Background

Considered “outstanding implementation issues,” the two issues had no clear forum nor mandate to negotiate under the Doha Round of trade liberalisation talks. But they had been strategically linked to a third issue, that of creating an international register on GIs for wines and spirits, for which there was both mandate and a dedicated body. The linkage resulted in the July document, referred to as “W/52.”

Those opposed to the linkage are generally referred to as the ‘joint proposal group’ after an earlier proposal on just the GI register. The group is uniformly opposed to linking the three issues, but have varying opinions on each of the issues. In particular, some are supportive of the CBD amendment.

Lamy holds the chairmanship under the auspices of the 2005 Hong Kong ministerial declaration stating that the director general “without prejudice to the positions of members… intensify his consultative process” on all such issues, including the TRIPS issues. Work on this issue has in recent past been chaired by Lamy’s deputy or a “friend” of the director general.

Members: Clear On Biopiracy, Less So On GIs

The second half of the meeting consisted of substantive discussions on the problems that needed addressing, and the solutions put forth to address them, according to participants.

On the issue of misappropriation, there was no disagreement among members present that biopiracy is a problem, said a member of the joint proposal group. Where members disagree is in how to address it, including which institution is most appropriate.

“Biopiracy and misappropriation of traditional knowledge is a global problem that requires a global response,” said a member of the W/52 group. To solve it, “we need to amend TRIPS, and we need a mandate for disclosure.”

“This is in the interest of industry,” the source added, as many countries are in the process of implementing their national legislations on traditional knowledge and genetic resources, and each will implement them, according to their national standards.

“If the WTO sets minimum standards, you’ll create more predictability” in the market, the source said, “which is important for industry.”

But not all agree that TRIPS is the most appropriate place to solve the problem.

Those opposing the amendment of TRIPS feel the issue is “much broader than just genetic resources” and feel the TRIPS focus on just patents and genetic resources makes it an inappropriate forum.

Instead, they suggest the issue may be better resolved by the World Intellectual Property Organization Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, where there is a wider focus on access and benefit-sharing, traditional knowledge, and copyright law.

Some CBD amendment supporters would like to see the amendment include an access and benefit-sharing requirement. The document W/52 – which is a negotiated text and represents compromise – says that members will “define the nature and extent of a reference to prior informed consent and access and benefit-sharing,” which might be considered as weaker than a requirement.

On the extension of high-level geographical indications to other products, there were “sharp divisions over whether there is actually a problem,” said a joint proposal supporter. The source added a “solution [GI extension] has been proposed but the problem is not yet explained,” the source added.

But a W/52 supporter said the problem is the difficulty in proving a GI is being infringed under current rules.

TRIPS requires members to have laws which can prevent use of designations “in a manner which misleads the public” about a product’s actual origin, which the source argued can be hard to prove.

This means “you need to make a consumer opinion poll and this is very costly,” and it is “costly to go in front of a tribunal” where the perception of the judges can weigh on the case, the source said, as it is a subjective process, with “lots of insecurity.”

But extra protection for wines and spirits requires only proof that the questionable product did not come from the region indicated by the GI. The W/52 supporter says extending this higher level protection is more objective, and “easier for national authorities.”

Ultimate resolution of the issues is far from certain. One W/52 supporter said this process is necessary to “prepare the ground for an eventual ministerial” to conclude the Doha Round, which began in 2001. But a joint proposal supporter said that linking the IP issues “will make it difficult to have an outcome on any of them.”