Panellists See High Impact Of Bilateral Trade Deals On Geneva Policymaking

By Kaitlin Mara and William New
A panel of government and non-governmental experts on intellectual property and biodiversity issues last week stressed the high impact that leading economies’ bilateral free trade negotiations are having on multilateral policymaking in Geneva.

Panellists spoke at a 23 January International Centre for Trade and Sustainable Development (ICTSD) side event to the 21-25 January meeting of the Access and Benefit-Sharing working group of the UN Convention on Biological Diversity.

“US free trade agreement provisions have a deep impact on biodiversity,” said Maria Julia Oliva, senior programme officer on environmental issues at ICTSD. She referred to the intellectual property chapters in the bilateral trade agreements and in US bilateral investment treaties.

“The problem is that FTAs [free trade agreements] set precedents for negotiations in Geneva, which is a blank sheet of paper,” said Guilherme Patriota, a senior Brazilian official in Geneva. “We are a little wary and would prefer to see this writing on the blank sheet of paper happen here in Geneva.”

Given the busy ongoing efforts by large developed countries like the United States and those in the European Union to negotiate bilateral trade pacts with smaller nations, he said, “for us it’s a little bit of a race against time.”

A key development in the United States last year was the rewriting of IP and public health provisions to put bilateral trade partners on the same terms as US domestic law for the protection of pharmaceutical patents. Partners such as Peru had agreed to less favourable terms than found in the United States on the exclusivity of test data used for marketing approval (IPW, US Policy, 5 November 2007). The rewriting occurred in order to get the trade deal approved after Democrats took control of Congress. But is unclear whether US negotiators in Geneva have brought this standard forward.

The concern of environmental and indigenous rights groups is that agreements struck between developing nations and more powerful developed nation partners often require more stringent IP protection measures than the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), to the disadvantage of the developing countries.

The TRIPS agreement has no substantive provision that would prevent misappropriation of biological resources or protect prior informed consent rights of traditional communities, said Dalindyebo Shabalala of the Center for International Environmental Law (CIEL). There is a mandate under the current Doha Round of negotiations at the WTO to consider the relationship of TRIPS and the CBD.

African, Caribbean and Pacific countries have been negotiating trade agreements with the European Union and have experienced “serious and significant confusion as to how to negotiate these issues,” he said. The negotiations are generally carried out by supra-national regional negotiating mechanisms that function outside policy channels.

The one agreement that appeared to be mostly finished by the EU target date of December 2007 was with the Caribbean nations, Shabalala said. That agreement, which could form the model for the remaining negotiations, appears to still strongly resemble the EU’s rather hardline starting-point position on IP issues, he said.

Monica Rosell of Peru’s Consejo Nacional de Medio Ambiente supported the growing developing-nation call for an amendment to TRIPS to provide greater protection for biological resources. She said TRIPS is an agreement to prevent piracy and that preventing biopiracy should fit well within its scope. Rosell also called for patents on genetic material to be granted for “real innovation.” She showed several examples where patents failed to protect biological resources, and described the case of a European Patent Office patent on a molecule extracted from an organism that did not show sufficient innovation as it is made no genetic modifications or improvements on the molecule as found in its natural state.[corrected]

“Human creation has to be put into the patent system, and promoting real innovation is very linked in our minds with protecting biodiversity,” Rosell said. She felt that enforcement of CBD conventions within the patent system would prevent non-productive and speculative patents. She also said that a proposed TRIPS amendment requiring the disclosure of origin of genetic material and associated traditional knowledge in patent applications may not be enough to provide protection.

Patriota said the push for the TRIPS amendment on disclosure, now backed by some 60 WTO members, is “not a political statement,” and that proponents are seeking a firm commitment.

“We want it to be part of TRIPS,” he said. “That’s our bottom line.” Developed countries, who tend to benefit more from the status quo of national level laws and private contracts, prefer to allow talks at the multilateral level to continue without “real commitments,” he said. Meanwhile, bilateral negotiations continue, which, in the absence of a TRIPS amendment, could lead to a “fragmentation of legal solutions.” The amendment proposal is still “pretty much alive in the round,” and is linked to a proposal on geographical indications sought mainly by European countries, he said.

Jorge Cabrera of the Costa Rican Instituto Nacional de Biodiversidad raised the possibility that Costa Rica might not be able to implement a disclosure of origin provision if agreed in TRIPS because the terms of the country’s bilateral agreement with the United States might forbid it. Costa Rica is a signatory to the US-Central American Free Trade Agreement (CAFTA). In addition, he called for more research on biodiversity and bioprospecting, and whether, for instance, it is compliant with trade laws.

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