The coming months could spell changes in the long-running World Trade Organization talks on creating a register for wines and spirits geographical indications and amending WTO rules to better protect biodiversity rights. Developed countries that have been blocking progress on the issues for years may be pushed at a political level, according to some sources.

“Opponents are finding more and more difficulty with regards to saying their questions are not answered,” Luc Devigne of the European Commission told Intellectual Property Watch, though he said that the depth of detail explored in past sessions had been useful.

Devigne was specifically referring to a mandate for WTO members to create a register of intellectual property rights-protected wines and spirits. Recent meetings on the issue have focussed on questions about details of proposals for the register. How the effort will progress remains unclear as delegates argued procedure at a Wednesday special session while the chair looked for ways to identify remaining differences and possible flexibilities, according to a WTO official.

Also this week, certain wealthy countries continued a drive to move discussions on 2006 developing country proposal for an amendment to WTO intellectual property rules to better protect biodiversity to another forum outside the WTO. In addition, discussion was held this week on a push by the United States and others to end a moratorium on allowing punishment of WTO members even when they have not violated any WTO rules.

The WTO Council on Trade-Related Aspects of Intellectual Property Rights met on 8 June, and the TRIPS Council special session on the GI register met on 10 June.

At the special session meeting, delegates debated whether future sessions should discuss modalities – or ways forward – and whether proponents of a strong register should draft a legal text.

“What we’re seeing is more strategic negotiations than getting to the bottom of technical issues with a view to seeing what compromises should be made,” said session Chair Ambassador Trevor Clarke of Barbados.

The TRIPS Special Session is mandated to negotiate a multilateral register for geographical indications, product names associated with certain places and characteristics.

The key proponents of a strong register with mandatory participation and legal effects were asked to come up with a legal document describing in detail what their proposed register would look like, but balked at this request as an unnecessary diversion from what is really at issue: key aspects of the register, including who should or must participate and what the consequences of that participation are.

“If you don’t agree with the parameters in one page, you won’t agree in 10 pages with more detail,” said Devigne of the EU, a lead supporter of a strong GI register. “We’ve seen legal texts” before, he added, but with these there was “not an inch of progress in 10 years.” If they write one, “for each line, there will be two questions,” he added, implying it would just add more time to negotiations.

The other two proposals for a register on the table, the so-called “joint proposal” [doc] and the Hong Kong proposal [doc] are in the form of legal texts.

Special sessions had been focussed on questions about the EU plan, which is supported by a strategic coalition of 110 countries, a majority of WTO members. The plan is contained in a one-page document laying out modalities – or ways forward to negotiate – on the GI register as well as on two other TRIPS-related issues, including the amendment on biodiversity. The document is referred to as ‘W/52” [pdf].

“Some don’t want this [movement in the special sessions] to be too fast because they want the three issues to move together,” said Clarke.

Supporters of a voluntary proposal without legal effects speculated that it would be difficult to come up with a legal text on the register portion of the W/52, as W/52 was a negotiated compromise text. Getting consensus on further details might be difficult.

The way forward for these issues is still unclear, as the meeting left off after a debate over whether or not there should be a chair’s text to help move negotiations, according to a WTO official. Clarke may not want to be caught without a text if one is needed as states work to close negotiations in the Doha Round of trade liberalisation talks, according to the official.

Exporting the Development Round?

At Monday’s TRIPS Council meeting, Australia, Canada and New Zealand raised the possibility of moving the discussion on the relationship between the WTO TRIPS agreement and the United Nations Convention on Biological Diversity to other locations, according to several sources. The TRIPS Council is mandated to examine this relationship within the Doha Declaration, which set out a work programme for the organisation intended to address the needs of developing countries as a part of the Doha Round of trade liberalisation talks.

The three countries have raised the issue before, as have others at different times, such as Japan and Korea. They suggest it might be better placed in the World Intellectual Property Organization, where there is a committee that ostensibly discusses genetic resources issues. But genetic resources play a minor role in the committee, which has not achieved an normative outcome in many years.

We “should not outsource the Doha Development Round,” said Cristiano Berbert, who covers IP for the Brazilian mission.

We “should not outsource the Doha Development Round.”
- Cristiano Berbert, Brazilian mission to the WTO

To move discussions to WIPO is objected to by most developing countries, on the grounds that there is a critical need to stop the misappropriation of genetic resources. An amendment within TRIPS would have a legally binding affect, giving it more strength than an agreement that might emerge from WIPO.

Developing countries have been calling for an amendment to TRIPS to disclose the origin of genetic resources and/or traditional knowledge used in patent applications since 2006, when a proposal was submitted by Brazil, China, Colombia, Cuba, India, Pakistan, Peru, Thailand and Tanzania and was eventually supported by some 80 nations in total. In 2008, the coalition grew to 110 when the strategic alliance was made with the European Union and Switzerland, tying the biodiversity amendment to geographical indications.

Canada, in the minutes of the last TRIPS Council meeting in March, said WIPO, among other organisations, had “established expertise and capacity in this area.” However, a key element of that expertise, Tony Taubman, a former WIPO secretariat official in charge of the relevant WIPO committee, moved to the WTO last month, strengthening its capacity.

Australian officials declined to comment. Meanwhile, the Australian Broadcasting Corporation this week reported that an as-yet unpublished government study demonstrates the country is losing biodiversity at an alarming rate, in particular with regards to animal species.

New Zealand’s concern with the TRIPS amendment proposal is the narrowness of the perspective, as it looks only at traditional knowledge associated with biological resources. This is “just a very small part” of the problem and traditional knowledge is much broader.

In particular, traditional cultural expressions such as tattoo or Haka, an indigenous dance, are critically important to New Zealand. “Our strong preference is to have all these issues discussed in a better, broader and more holistic forum,” a New Zealand delegate explained to Intellectual Property Watch.

Non-Violation Discussion Upcoming

Meanwhile, an informal discussion on non-violation complaints resulted in the issue being pushed on to the agenda of the next TRIPS Council in October, preceding the next WTO ministerial planned for November. However, an informal meeting is expected between gatherings of the Council.

Non-violation complaints are issued by countries feeling they are not getting an expected benefit, even though the offending country is not violating any explicit WTO rules. Such complaints can be taken to the formal dispute settlement body, a WTO official said.

There is a moratorium on non-violation complaints for IP issues, set at the end of the Uruguay Round in the mid 1990s and meant to expire in 1999. However, the moratorium has been extended several times.

At the last WTO ministerial, in Hong Kong in 2005, the Council was instructed to examine the scope and modalities of non-violation complaints and make recommendations at the next ministerial meeting, but that “in the meantime” members could not make such complaints.

The recent announcement that this will be 30 November to 2 December 2009 has given the Council a concrete deadline.

The United States and Switzerland would like to see the moratorium expire. The US thinks its use would be limited, but its existence would help to remind countries that “finding creative ways to legislate around the TRIPS agreement” should be prevented, a US delegate told Intellectual Property Watch.

A Swiss delegate told Intellectual Property Watch that “in principle,” non-violation complaints should be applicable to TRIPS, which “should not be undermined” by non-violating measures. A conclusive argument for why the non-violation complaints should be “disapplied” from TRIPS had not yet been made, the Swiss delegate added.

Most countries would like to see the moratorium continued or made permanent, according to the WTO.

Developing countries in particular, said a WTO official, are concerned that lifting the moratorium might lead to a challenge of their ability to use TRIPS flexibilities that give sovereign rights not to apply certain TRIPS rules. For example, the ability to issue compulsory licences on pharmaceutical patents for public health purposes, which has sparked retaliation by the United States on its annual unilateral watchlist (IPW, Enforcement, 2 May 2009).