Norway Chairs As Europe Replies GIs A WTO ‘Must’; Others Gear Up Biodiversity Push

By Kaitlin Mara with William New
Key stakeholder nations on intellectual property issues at this week’s World Trade Organization ministerial in Geneva are holding consultations with the Norwegian foreign minister facilitating to iron out positions before meeting later tonight with WTO Director General Pascal Lamy, according to government sources. [Note: The meeting, which would have been with the Norwegian foreign affairs minister, did not take place Wednesday night.]

Meanwhile, the president of the European Union Council of Ministers Anne-Marie Idrac today reconfirmed to the press at the World Trade Organization that for the EU, success in the current WTO negotiating talks means the inclusion of geographical indications, or product names associated with places and characteristics.

This came at the heels of a statement Tuesday by US Trade Representative Susan Schwab, who said the Americans had no intention of negotiating on the geographical indication issue dear to the EU and Switzerland, namely the extension of high-level protection measures currently enjoyed by GIs on wines and spirits to other goods, mostly agricultural products.

High-level government ministers from about 40 members are in Geneva for a mini-ministerial scheduled from 21-27 July, in which the WTO is trying to resolve long outstanding issues in its Doha Round of trade-liberalisation talks launched in 2001.

“For the EU,” said Idrac, “Geographical indications are a must. We must have progress here.” The EU is, she stressed, demonstrating a willingness to give very generous offers this week. “Reciprocity must be found in our offensive interests: non-agricultural market access, geographical indications, and services,” she said. This “means we want GIs included.”

“I can be more specific,” she added, noting that the EU wants GIs “included at this stage, as of July, at this point in time of the negotiations in the Doha Round.”

The WTO is the “centre of non-discrimination” in trade, Swiss Ambassador to the WTO Luzius Wasescha on GI extension told Intellectual Property Watch Wednesday morning, “and here we have a discrimination” in protection measures based on whether the product is a wine or spirit or another agricultural good.”

He echoed Idrac in saying that GI issues, as well as biodiversity issues “have to be resolved,” as they are in the interest of a large number of members. Also Wednesday, India Minister for Commerce and Industry Kamal Nath declared biodiversity issues of continued high priority.

A participating delegate cautioned against “overestimating the [US] statement” on GI extension from yesterday, adding that “we expect the US, if participating in the process,” to engage with the GI and other IP issues. With 100-some countries in favour, the US “won’t be able to avoid it.”

“This is why they’re here in Geneva,” the delegate concluded.

There are three intellectual property topics at issue this week. First, the creation of a register for GIs on wines and spirits, which is mandated by the Doha Declaration and where disagreements remain only on its nature and scope. Second is GI extension, where there is strong disagreement between nations in strong support, primarily Switzerland and the EU, and nations in strong opposition, notably the United States but also Australia, Canada, Japan, and others.

Third is the proposal to amend the TRIPS agreement to bring it in line with obligations under the UN’s Convention on Biological Diversity to protect the rights of indigenous communities to control their genetic resources, often referred to as the CBD amendment. The most basic proposal here includes disclosure of origin of genetic resources, and stronger proposals also ask for evidence of prior informed consent of the communities from which genetic resources are derived, and also for programs to ensure benefit-sharing with those communities.

At press time, Norwegian Foreign Minister Jonas Store was preparing to meet with proponents of the GI and CBD issues in one consultation, and the “like-minded” opponents in another consultation, to be completed before a later evening meeting on the issues with Lamy.

IP Proponents Strive to Keep Solidarity

Some were interpreting Schwab’s statement yesterday as indication of a schism between the three IP issues: Lamy had according to sources suggested that GI extension would be the hardest of the three issues to negotiate, and that GI register/CBD amendment might have a better chance of going forward.

But proponents of IP issues are standing strong in together in the view that these three issues must be addressed in unison.

“People are not willing to accept separation” of the IP issues, said a Pakistani delegate. Opponents will “try to separate” them, the delegate noted, but to the proponents, the IP discussion this week is “all or nothing.”

Of course, the delegate added, as the emphasis is on all three issues the outcome will necessarily be diluted. It will be a political rather than a substantive agreement this week, the delegate continued, as one “cannot ask the maximum for everything” and must use the lowest common denominator to garner support. The CBD amendment language is soft in draft modalities released last week (IPW, WTO/TRIPS, 18 July 2008), full of “to be negotiated…” caveats, the delegate said. The GI register language of the draft modalities also is vague compared to earlier proposals.

Push For Biodiversity Amendment Remains Strongest IP Issue

But it is the need to align international IP trade rules with biodiversity and traditional knowledge protection that has received the greatest attention from members, mainly developing countries.

Such an amendment “we believe is a part of the mandate,” Nath told a press conference Wednesday. “We would like to ensure that it is locked in,” he added. “True, it is not a part of modalities, but it is certainly a part of the [Doha] Round. When there is a ministerial engagement, we must lock in crucial issues” such as the CBD amendment, he concluded. India also raised the issue in its statement to the informal Trade Negotiations Committee Tuesday.

The Africa Group reiterated its commitment to the agreement as well, calling it “still high on the agenda” and emphasising the need to “achieve concrete results on the issue, which is still of the utmost importance to the African continent” in a statement following the meeting of the African Union on 20 June.

An ambassador from Asia who supports the CBD amendment expressed concern over how the rich biological resources from that region of the world could be protected without an amendment.

“TRIPS is binding,” said the ambassador, “so we want to establish the link [with biodiversity]. Otherwise, there is no way of claiming benefits for use of genetic resources that has legal ramifications.” Non-governmental organisations have been educating people in rural areas within this source’s country, and now there is an understanding that those resources may be translated into wealth. Also traditional knowledge once “played a vital role” in people’s health. It is important to ensure the protection of indigenous information and local resources, he concluded.

Brazil, which has been outspoken in favour of negotiation of the IP issues, also continues to emphasise it this week, a top official said.“We are working together with the Europeans, Africans and others who have an interest [in the CBD amendment] to see if we can find a way out of the CBD-GI conundrum,” Brazilian Ambassador Roberto Azevedo told Intellectual Property Watch on Wednesday. Brazil will be active on the issue during the week, he added.

WTO Director General Pascal Lamy is expected to continue convening meetings on the TRIPS issues, he said. But, he added, “there are too many things to cook and the pan is too small.”

Another source said that where there is resistance to IP issues, it is more toward GI extension than to TRIPS/CBD.

But the state of play as of this afternoon looked grim, said a Peruvian delegate. Most discussion so far has been on the GI register, and not on GI extension or the CBD amendment, which are the more controversial issues. According to the source, Lamy – who is chairing talks on IP issues – felt that if no progress could be made in the GI register, trying to develop the two harder areas would be unwise.

NGOs Weigh in on Need for TRIPS Amendment

Martin Khor, Director of the Malaysia-headquartered NGO Third World Network, said that “the expansion of biopiracy is giving a bad name to the TRIPS agreement, and allowing the serious criticism that TRIPS and the WTO are facilitating an unjust process of misappropriation of knowledge and genetic resources through the use of IP laws.”

Further, the current CBD proposal is very limited. The original had proposals for prior informed consent and access and benefit-sharing, whereas now all that is on the table is disclosure, said Khor. And even this disclosure requirement only mandates that a patent applicant disclose origin to a national patent office. The patent office is not then obliged to tell the public, which would be far more useful. But this is a welcome first step, Khor added, and should be adopted “as a minimum, because it is really not asking much. There is really no justification for any objection.”

TRIPS was amended in 2005 for public health purposes.

Another NGO source said that without a disclosure requirement, the burden of challenging misapproriation is placed squarely on the heads of those who have had their resources misappropriated. This is expensive, said the source, adding that TRIPS has to be the venue since other processes – such as WIPOs Patent Coopration Treaty, which is procedural and non-binding, and the CBD itself, which is neither trade nor IP related – lack any legal bind.

Massimo Vittori of the GI lobby group oriGIn said his group is “concerned by the refusal of the USA to debate the topic of “extension”. Millions of GI products from all over the world would not understand nor support any regime de facto consolidating “first class” and “second class” producers enjoying different standards of protection. No socio-economic reasons justify such discrimination.” He added that “it runs against the Doha spirit.”

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