Experts Debate IP Issues As Hong Kong WTO Ministerial Opens

Hong Kong — The sixth World Trade Organization ministerial officially opened in Hong Kong today and although intellectual property issues have not surfaced on the formal agenda so far, they were discussed in some of the many side events taking place at the conference site.

The Convention on Biological Diversity (CBD) and its relationship with the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was discussed in two meetings held in the non-governmental organisation (NGO) centre.

A number of IP issues are part of the Doha development agenda, the current round of trade negotiations launched in 2001 in Doha, Qatar and scheduled for completion by the end of 2006. These issues include a geographical indication (GIs) register for wines and spirits, the extension of GI protection beyond wines and spirits, and whether to extend a moratorium on non-violation complaints (IPW, WTO/TRIPS, 28 November). But sources say the CBD issue will be the hottest IP issue at the ministerial.

The CBD issue is part of a triad that includes discussion of TRIPS Article 27.3(b) on the patenting of life forms as well as the protection of traditional knowledge and folklore. But it is not part of the “front-line issues” at the conference, Peter Drahos, director of the centre for governance of knowledge and development at the Australian National University, said in an interview. Nevertheless, the issue could move, and India, one of the biggest proponents, is “alert to the possibility,” he said.

The first of the CBD events was a briefing with the Indian trade minister on the negotiations, focused on the CBD issue. The issue is particularly important to India and Brazil, who have sought to bring it up in Hong Kong.

The second was an event held by the Australian APEC (Asia-Pacific Economic Cooperation) Study Centre, that included discussion of a new report entitled, “Developing an Effective International Regime for Access and Benefit Sharing for Genetic Resources; Using Market-Based Instruments.” The chairman of the centre, Alan Oxley, said the study had been funded by the Pharmaceutical Research and Manufacturers of America (PhRMA). The theme of the meeting was “Biopiracy: The false charge against TRIPS.”

The event appeared aimed at undermining an effort by biodiverse nations such as Brazil and India to develop an international instrument for the protection of genetic resources and traditional knowledge. Such countries argue their resources are being stolen without proper disclosure of origin in patent filings.

Oxley told Intellectual Property Watch that TRIPS did not need to be amended and the link to the CBD was artificial. “What biopiracy?” he asked rhetorically, saying that he was surprised by this argument for getting more regulation.

Oxley said that in countries where disclosure of origin was heavily regulated, such as in Peru and the Philippines, companies had walked away, adding that what India and Brazil are seeking constituted a “new regime of control” and “unnecessary regulation.”

Echoing the United States’ position, he said that “just simple contract law” would be a much more effective way of protecting biological resources, arguing that there is a confusion between IP and ordinary property rights. He favoured the free market approach and control at the national level, he said.

Oxley referred to the University of Queensland in Australia which has such ordinary contract law agreements with the pharmaceutical company, AstraZeneca.

Oxley did not think the ministerial would see a deal on the CBD issue, adding that he and his team were at the conference “for other reasons” and just wanted to hold a meeting on the issue.

‘Propaganda’ Flies At Conference

Drahos took issue with the APEC Study Centre report, saying that Oxley was not an IP lawyer and the report did not mention the work of prominent IP academics in the CBD area.

This is “no serious work” and “just propaganda,” Drahos said. But he questioned on whose behalf this propaganda was promulgated, as the pharmaceutical industry was in fact “quite respectful of bio-issues,” having realised how sensitive this was. “No large [pharmaceutical] company wants to be caught up in a bio-dispute,” he said.

Because of concern for their reputation, companies such as Novartis pay others to do the bio-prospecting for them, bringing them interesting molecules that they can consider, he said. Drahos added that the disclosure issue is very symbolic to developing countries but that the financial gains are uncertain.

Felix Cohen, vice president of Consumers International, said that he did not believe the CBD issues would be discussed at the ministerial as the negotiators were “so occupied with agriculture and NAMA (Non-Agriculture Market Access).”

But he was “not so unhappy” about this, as the World Intellectual Property Organisation (WIPO) was current carrying out a study on the impact of IP on development and before this was ready he believed it would not be “so good to jump into negotiations.”

Cohen said, however, that some TRIPS issues could be discussed as part of a Doha Round development package.

The ministerial runs from 13 to 18 December. Further meetings on CBD are being scheduled for the rest of the week.

TRIPS and Public Health Deal Flagged

In the official ceremonies and press conferences on 13 December, expectations for, and definitions of, a successful outcome of the ministerial were watered down. But last week’s agreement on an amendment to TRIPS on public health has been flagged by various officials. WTO members agreed on 6 December to amend TRIPS to allow the import and export of pharmaceuticals made out of patent for public health reasons (IPW, WTO/TRIPS, 6 December).

The chairman of the ministerial conference, John Tsang of the government of Hong Kong, said the agreement was welcome, constituted a good start and was a “positive sign of progress.” Chairman of the WTO General Council, Amina Mohamed, said the agreement was a “large success.” She also applied this to last week’s agreement to extend least developed countries’ deadline for implementing the TRIPS agreement by seven and a half years (IPW, WTO/TRIPS, 29 November).

WTO Director General Pascal Lamy said that talks in services and agriculture had to be moved forward in order to make progress in the rest of the negotiations, adding that the WTO hoped to achieve 55-66 percent of the Doha round by the end of the Hong Kong meeting. He encouraged delegates to be “open-minded, bold and courageous,” and emphasised the development aspect of the Doha development agenda.

Teargas Used In Demonstrations

Lamy also noted that the WTO was “not the most popular international organisation around” and that it was famous despite being very small. Demonstrations took place in Hong Kong today in which teargas was used as some demonstrators used “non-peaceful means,” according to Tsang. This was the second of three demonstration marches planned for the ministerial, a local source said.

The ministerial is attended by some 6,000 delegates, 2,000 NGO representatives and close to 4,000 journalists, according to the WTO.