E-Commerce, Access To Medicines Catching On At WTO TRIPS Council

The World Trade Organization committee on intellectual property rights met this week with some discussion items that departed from past agendas but are becoming more familiar. A discussion on electronic commerce revealed interest from members, despite a slow start on details. And discussions on the United Nations High-Level Panel on Access to Medicines prompted nourished interactions and a wish by some countries to pursue the subject in future sessions.

The WTO Council for the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) met from 1-2 March.

Work Programme on E-Commerce

One of the newer topics in the committee, electronic commerce, is a topic that was frequently discussed years ago and has come back across the WTO in the form of digital trade.

Discussing e-commerce could be “an opportunity to create a clearer, more inclusive factual picture of the current state of affairs as the foundation for informed dialogue between members,” Ambassador Alfredo Suescum of Panama, the acting interim TRIPS Council chair, said in the meeting, according to sources.

The TRIPS Council debate could be a basis for input to the WTO General Council report to the upcoming Ministerial Conference to be held in Buenos Aires. The 2015 WTO ministerial in Nairobi set out the request to members to advance work on e-commerce.

Brazil introduced a document [pdf] on electronic commerce and intellectual property, with a focus on copyright rules and the digital environment. The document called for a discussion on transparency, balance of rights and obligations, and the territoriality of copyright. Argentina joined Brazil as a cosponsor of the document, according to sources.

Separately, Argentina, Brazil and Paraguay tabled a document [pdf] on electronic commerce and electronic signatures.

Two previous documents on e-commerce were also re-circulated. One document [pdf] proposing a work programme on electronic commerce, (it was first circulated in August 2016), by Canada, Chile, Colombia, Côte d’Ivoire, and the European Union; and a non-paper [pdf] from Brunei Darussalam, Colombia, Costa Rica, Hong Kong, China, Israel, Malaysia, Mexico, Nigeria, Pakistan, Panama, Qatar, Seychelles, Singapore, and Turkey, on e-commerce and development.

Brazil told Intellectual Property Watch afterward that it was a little disappointed at the slow start to discussion of the e-commerce proposals, but others attending the meeting indicated that their expectation in a WTO context is that things move slowly and that this left the way open for further discussion.

According to a source, the discussion on e-commerce was welcomed by members taking the floor at the Council. Some remarked on ongoing work in other international organisations, such as the US, Switzerland and India, according to a WTO source. The indication was that there not be a duplication of work in this body.

UN High-Level on Access to Medicines

The TRIPS Council discussion on the September 2016 report of the UN Secretary General’s High-Level Panel on Access to Medicines began at the November session and was discussed again this week.

It looks like it could become a recurring agenda item.

The report of the High-Level Panel is supported mainly by developing countries who see some helpful recommendations worth discussing, and criticised by some developed countries who say the panel’s mandate, only focusing on intellectual-property related issues, was too narrow and flawed.

It was noted in the meeting that a report focused narrowly on IP issues fits well with the narrow IP focus of the TRIPS Council, which is not equipped to discuss broader issues of health infrastructure and the like.

Brazil, according to its statement, said the High-Level Panel encourages members to make full use of the policy space available in TRIPS [pdf] Article 27 (Patentable subject matter), by adopting and applying “rigorous definition of invention and patentability that curtail the evergreening [of patents], thereby ensuring that only genuine innovations be awarded with patent rights.”

The Brazilian delegate also underlined a recommendation of the report that governments and the private sector “must refrain from explicit or implicit threats, tactics or strategies that undermine the right of WTO members to use TRIPS flexibilities,” according to prepared remarks.

“Those types of strategies are against the spirit of the Doha Declaration and the TRIPS Agreement, in particular articles 7 and 8,” the delegate said. He added that explicit or implicit threats have been observed in the past, “when WTO members, including Brazil, initiated the procedures relevant for issuing a compulsory license in order to address urgent health needs.”

Respect for intellectual property and efforts to ensure quality public health and access to medicines for all are not mutually exclusive, Brazil said, supporting further discussion on the report at future Council sessions.

India gave a statement along the same lines, and underlined the panel recommendation that governments “should require manufacturers and distributors of health technologies to disclose to drug regulatory and procurement authorities information pertaining to: (1) the costs of R&D, production, marketing and distribution of health technology being procured or given marketing approval with each expense category separated; and (2) any public funding received in the development of the health technology, including tax credits, subsidies and grants,” according to its statement.

India suggested that at future sessions of the Council, India cosponsor, with like-minded members, sub-agenda items under the main agenda item “the United Nations Secretary-General’s High Level Panel Report on Access to Medicines.” Under those sub-agenda items, members could share their experiences including on specific recommendations of the panel, the Indian delegate said.

Bangladesh, Brazil, China, Egypt, India, Indonesia, Nigeria and South Africa supported the report, calling it a “significant and bold step,” according to the source.

Proponents walked through some of the report’s recommendations, such as clear definitions of invention and criteria for granting pharmaceutical patents, and political or commercial pressure that may undermine the right of WTO members to use flexibilities allowed under the WTO’s intellectual property rules, according to sources.

The proponents requested that the agenda item be placed on the Council’s next meeting, which is scheduled for June.

According to a source, the European Union referred to its statement delivered at the last session of the Council, while the US remarked on the narrow focus of the panel, and the recommendations not adequately addressing the issue of access to medicines. The US also noted that panellists were not able to find consensus. This assumption has been challenged several times in different fora by the co-Chair of the High-Level Panel, former Swiss President Ruth Dreifuss.

Japan also remarked on the “rather limited scope of the report,” and on others factors affecting access to medicines and said the 2013 joint publication by the World Health Organization, the World Intellectual Property Organization, and the WTO “Promoting Access to Medical Technologies and Innovation: Intersections between public health, intellectual property and trade,” was not reflected sufficiently in the report, said the source.

Canada said access to medicines is a key priority, and they are still reviewing the recommendations provided in the report. South Korea also said they are reviewing some elements of the report and suggested that at this stage, WTO members should concentrate on the implementation of the protocol amending TRIPS, which entered into force in January, allowing countries producing generic medicines under compulsory licence to export all of the medicines to least-developed countries that lack their own manufacturing capacity (IPW, WTO/TRIPS, 30 January 2017), according to the source.

Australia also commented on the narrow scope of the report, while Switzerland said the High-Level Panel was neither mandated by WTO members, nor commissioned by UN members, the source said.

[Update: the WTO secretariat presented to the Council on procedures for notifying the WTO when a nation ratifies the TRIPS public health amendment, referred to as the Paragraph 6 system.]

IP and Innovation

Australia, the EU, Japan, Switzerland, and the US proposed a discussion on intellectual property and innovation: inclusive innovation and micro, small and medium-sized enterprises (MSMEs).

According to several sources, a number of countries shared their national experiences on the subject.

India, in its statement, said the authors of the document “have argued that increasing patent monopolies would drive greater innovation. However, the evidence does not support this assertion. On the contrary, the view gaining ground is that increasing patent monopolies would actually stifle innovation.”

“Intellectual Property is only one element in a larger innovation ecosystem and IP laws alone do not promote technology development,” the Indian delegate said.

Non-Violation Complaints

The Council also discussed the current moratorium preventing TRIPS-related non-violation complaints. The moratorium has been extended from one WTO Ministerial meeting to the next. TRIPS members were expected to solve the question whether this moratorium should be extended indefinitely or if TRIPS-related non-violation complaints would be possible by December 2017.

Non-violation complaints arise when one government can show that it has been deprived of an expected benefit because of another government’s action, even if the first government has not violated any WTO agreement, according to the WTO.

Most WTO members are in favour of extending the moratorium indefinitely, while the US and Switzerland are in favour of lifting the moratorium.

India during the session said that “serious concerns remain on the debilitating impact non-violation complaints in TRIPS can have on the regulatory policy space of members, on TRIPS flexibilities as well as increasing the complexity in interpreting the TRIPS provisions.”

Brazil also said that non-violation complaints could “threaten the use of flexibilities by Members, in violation of Articles 1, 7 and 8 of the TRIPS Agreement. It would jeopardize the use of exceptions and limitations for the development of laws to protect public health, affecting the delicate balance of rights and obligations reached by the Agreement.”

Taiwan suggested that the WTO secretariat updates a background document from 2012 on the issue of non-violation complaints since several proposals have been tabled since by member states. This was not agreed by the Council, according to a source.

Relationship Between TRIPS and CBD

According to sources, the relationship between the TRIPS Agreement and the UN Convention on Biological Diversity (CBD) was discussed without progress. Some countries asked again that the secretariat of the CBD provide a presentation at the TRIPS Council of its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization.

This proposal was opposed by the US, according to sources.

William New contributed to this report.

 

Image Credits: William New