WTO TRIPS Council Stumbles Over Inclusion Of Enforcement

By Tove Iren S. Gerhardsen
A meeting of the World Trade Organization committee responsible for intellectual property rights this week erupted in disagreement over how to address enforcement of those rights in the committee.

The debate in the 25-26 October meeting of the WTO Council for the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was ignited when the European Union sought to make a Power Point presentation on enforcement in the meeting, according to participants.

For over a year, Europe has led the effort to introduce enforcement into the TRIPS Council, and has indicated that its effort would bring additional accountability to the TRIPS agreement. This week, it garnered the formal support of Japan, Switzerland and the United States for bringing enforcement into the council through a joint communication presented as a distinct agenda item in the meeting (IPW, WTO/TRIPS, 25 October 2006).

The 25-nation European Union requested the placement of enforcement on the TRIPS Council agenda. The European Union said the presentation was just an example of what it is doing on the enforcement front within its own region, according to sources.

The communication was rejected by a majority of the WTO members in the 26 October session, one participant said. Developing countries have qualms about the inclusion of enforcement in the council at all, but many objected specifically to the way in which it was introduced by the European Union.

In the meeting, several developing countries protested to the presentation and what they perceived as a way to bring enforcement and “finger-pointing” into the council, one developing country official told Intellectual Property Watch. This was especially the case as the presentation was linked to a much-debated draft EU directive on enforcement (IPW, European Policy, 11 July 2006).

The developing country official said that while the developing countries were “opening the door” to discussing this issue, the developed countries pushing the issue were “kicking it open” with their approach.

The joint communication refers to a 1995 WTO checklist of enforcement measures countries should take at the national level, but a participant said it would be “terrible” if this should be discussed in the TRIPS Council because it would be possible to “point at particular countries” using criteria that are “not totally clear.”

In the meeting, when the lights were shut off and the EU presentation was to begin, Argentina made an intervention, the participant said. An Argentinian official told Intellectual Property Watch afterward that the EU’s presentation did not belong under a separate agenda on enforecement (as they would ostensibly elevate the topic) but suggested it should be discussed under an earlier agenda item on reviews of national implementation legislation.” The chair offered to re-open this item, which had been discussed on 25 October, one participant said.

Argentina disagreed with “addressing” the enforcement issue as well as the “approach,” the official said. Argentina was supported by a number of developing countries including Brazil, Chile, China, India, Venezuela and South Africa, sources said.

Costa Rica suggested the presentation be made under the agenda item “other issues,” according to a source. But these suggestions were rejected as a matter of principle, another participant said, and thus the formal meeting broke into a smaller, informal group which met until the meeting resumed in the afternoon.

The informal group consisted of the main countries behind the joint communication as well as the developing countries that had expressed concern with the presentation, sources said.

When the formal council meeting resumed, the EU did make a statement on its point, but without the Power Point presentation, sources said. The Argentinian official said that this compromise did make a “difference” as it was only a statement.

The introduction of enforcement has particular relevance for larger developing countries that now have implemented TRIPS, some of whom continue to grapple with piracy and counterfeiting issues. Far from seeking tougher measures to ensure their compliance with TRIPS, a number of developing countries have expressed concerns in recent years that the terms of TRIPS have been harmful to their economies and societies. In late December 2005, the first amendment to TRIPS was made with the intent of ensuring that developing countries can take the built-in steps to boost their domestic public health. A second amendment on biodiversity is now being sought.

Tense Atmosphere as Issue Unresolved

The atmosphere leading up to the informal meeting as well as the discussion afterwards was quite tense, officials said.

The developing country official said that the way the European Union behaved and its attitude “suggested bad faith.”

Referring to the afternoon discussion of the enforcement issue, an official from an EU country told Intellectual Property Watch that “it is very bitter,” and pointed fingers at developing countries for causing the acrimony.

An official from one of the co-sponsors of the joint communication told Intellectual Property Watch that he was “stunned” at the whole debate because if member states are allowed to add issues to the agenda, they should also “be free to speak.”

The official said the 26 October debate on the joint communication would “quite likely” remain on the agenda, but “not as a standing item,” meaning that the EU will have to request the agenda item again next time as well.

Australia and Canada were among the countries that “see some value in the [enforcement] discussion,” one developed country official said.

William New contributed to this story.
Tove Iren S. Gerhardsen may be reached at tgerhardsen@ip-watch.ch.