India, Brazil, Peru Set To Propose TRIPS Amendment On Biodiversity

A group of countries led by Brazil, India and Peru has indicated that it intends to present a text relating to the discussions at the World Trade Organization (WTO) on biodiversity “in days, not weeks” suggesting an amendment to current trade law, sources say.

Brazil, India and Peru confirmed that they informed the WTO Trade Negotiations Committee on 1 May about their plans for the paper, which would amend the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

An Indian official said it was premature to discuss the content of the paper but said the group was “trying to take into account the questions and concerns of members as available in their papers and interventions on the issue in the TRIPS Council and in the dedicated consultations.” It is not yet clear who will cosponsor the paper, the official said.

The group had worked with the WTO overall trade talks 30 April deadline for establishing modalities in agriculture and non-agriculture market access in mind, but as this deadline had been missed, they had had more time to prepare the text, an official from the group said.

The text could potentially move the WTO consultations on biodiversity and traditional knowledge forward to “text-based” negotiations, which a number of countries, especially developed countries, have taken issue with, saying that the biodiversity discussions at the WTO are not supposed to be text-based.

This is linked to the argument of some member countries that this is not a negotiation issue or even part of the current WTO trade liberalisation talks (known as the Doha Development round), according to several sources. Some countries also argue that moving to a text would be premature, sources said.

After consultations in March, one Indian delegate told Intellectual Property Watch: “We need to start text-based discussions by April. If not, they need to come tell us why there is no negotiation” (IPW, WTO/TRIPS, 24 March, 2006).

A TRIPS amendment would only be the second time in history that the agreement has been changed. The first change to the 1994 TRIPS agreement was made in December 2005 when members made permanent a temporary waiver from 2003 that allowed countries to export generic medicines under compulsory license to countries without adequate manufacturing capacities (IPW, WTO/TRIPS, 6 December 2005).

Consultations on the relationship between the Convention on Biodiversity and the TRIPS agreement are being carried out by the WTO Deputy Director General Rufus Yerxa.

But judging from the lack of progress made at a 4 May consultation at which the parties did not appear to narrow their differences, agreement seems to be far off despite the rapidly approaching 31 July deadline. By this date, “the [TRIPS] council shall review progress and take any appropriate action,” according to the Hong Kong Ministerial Declaration paragraph 39 under “implementation.”

On 4 May, the consultations focused on two main questions, namely “preventing the granting of erroneous patents and ensuring compliance with access and benefit sharing agreements,” with several sub points, one developed country participant said. But there were no agreements reached, sources said.

Kenya referred to a recent report on biopiracy in Africa called “Out of Africa: Mysteries of Access and Benefit Sharing,” published by the US not-for-profit organisation called the Edmonds Institute, one source said.

Countries such as Brazil, India and Peru would like to see full disclosure in patent applications, including information about the origin of the genetic material, evidence of prior informed consent as well as benefit sharing regimes between the providers and user of the resources, a source said.

Another source said that the text would reflect these arguments.

Norway is the only developed country that has expressed openness toward discussing disclosure of origin, one source said.

The Yerxa consultations will resume “after the Brazil/India paper comes out in a few days,” the developed country source said.