Further Resolution Needed To Keep IP Issues In WTO Negotiations

By Kaitlin Mara
Intellectual property rights issues on the table in the newly invigorated World Trade Organization negotiations are at risk if remaining deep differences cannot be further narrowed in the coming weeks, WTO Director General Pascal Lamy said Thursday.

“I have called for continued consultations between the groups of members concerned to resolve this, so as to try to avoid a big clash during the modalities exercise,” Lamy told the negotiations coordinating body. Modalities are the basic parameters for the negotiations, and are expected to be discussed in the coming weeks.

Next to come are reports on intellectual property issues to the Trade Negotiations Committee (TNC – which oversees the full negotiations) from the responsible parties, including an update from the chair of the group negotiating a mandated register for geographical indications (GIs – product names deriving from certain geographical locations) for wines and spirits, Lamy told the TNC.

The IP issues include the GI register, the extension to other products of the higher level of GI protection wines and spirits enjoy, and a proposed amendment to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) that would strengthen the protection of genetic resources and traditional knowledge.

The register has been discussed in special sessions while the extension and the biodiversity issue (which arose from a mandate to consider the relationship of WTO IP rules and the UN Convention on Biological Diversity) are under consultations led by WTO Deputy Director General Rufus Yerxa on behalf of Lamy.

A significant majority of WTO members support either the proposed TRIPS amendment, or the GI extension, and the negotiations on each have been linked by proponents in the consultations. But a smaller number of members do not agree to negotiate on the CBD amendment or GI extension, though they do not exclude further discussion, according to Lamy.

What the chair will report on the GI register was discussed in an informal meeting on 11 April with the chair of the TRIPS Council special session, Manzoor Ahmad. He has been conducting meetings with key players in the negotiations and will prepare a factual report on his findings for upcoming horizontal negotiations, according to sources in Geneva. This “horizontal process” involves finding linkages within and between the two major debates on the table – agriculture and non-agricultural market access (NAMA) – as well as trying to advance other issues on the table, including talks on GIs and TRIPS.

GI Register, Extension Vital For Some

Geographical indications (GIs) identify a product as coming from a specific geographical region when fundamental characteristics of that good are associated with that locality; for example, brie cheese. The TRIPS agreement requires member states to legally protect these place names, so they cannot be used to mislead or confuse customers into believing they have bought a regional product that was, in fact, made elsewhere.

Wines and spirits have an additional layer of protection under the TRIPS agreement. Members are required to provide legal means to prevent any use of a GI on a wine or spirit product not originating from the indicated region, even if its actual region of origin is clearly marked. For example, champagne is a name reserved exclusively for sparkling wines made in the Champagne region in northern France; wines made elsewhere may not carry the name. In order to facilitate this higher level of protection, TRIPS Article 22.4 calls for the TRIPS Council to negotiate the creation of a “multilateral system of registration and notification” for GIs.

Where there is disagreement is in what form such a register should take.
The European Commission has proposed that the register be mandatory for all members and that it be open to products other than wines and spirits (IPW, Trademarks/Geographical Indications, 17 December 2007).

The Commission views agreements on both the register and the extension of GIs to cover other products as interconnected with current negotiations.

Europe “will not be able to agree on modalities for agriculture products unless modalities on GIs, register and extension, are also agreed,” said a Commission spokesperson in Geneva, adding that “the constituencies on both issues are basically the same [and thus] will have to be discussed in the framework of the horizontal process leading to the ministerial agreement.”

Other nations, including Argentina, Australia, Chile, Japan, New Zealand and the United States would like to see participation in the register as voluntary. These members have put forward a “joint proposal” for the register. One of the joint proposal’s cosponsors described the plan as “simple, information-based voluntary system,” in contrast to the European proposal which, the source said, “would result in all of Europe’s GIs being presumed GIs in all WTO members… [and] goes well beyond the facilitation mandate.”

These differences in opinion on the role of the register have led to some contention over the nature of the upcoming chair’s report. Ahmad told Intellectual Property Watch that the report is intended to be “factual” and to indicate “where the discussions on the different issues on GI register for wines and spirits are.”

The “factual” distinction is key, noted the joint proposal cosponsor, as the chair’s report is a technical one “on the state of play in the wines and spirits GIs register negotiations” and not a “legal text.” The source added that “ministers should not be making decisions on GIs,” as a part of the agriculture and non-agricultural market access (NAMA) negotiations, meaning that the details of any GI register should be worked out in advance of the ministerial meeting. Failing to do so would risk “overloading the agenda” for the ministers, the source explained.

The Commission spokesperson took a different tack, saying the report “should prepare the ground for a ministerial decision on the key parameters of the GI register,” including its “legal effects… and whether these will be applied to all WTO members.”

CBD Amendment and GI Extension

Many member states, said Lamy, insist “there can be no modalities” without a resolution on the topic of GI extension and the proposed biodiversity amendment. These members have called for GI extension and the CBD amendment to be a part of the horizontal process. The CBD amendment’s staunchest supporters, such as India and Peru (IPW, WTO/TRIPS, 14 March, 2008) would like TRIPS to require disclosure of origin on genetic resources and traditional knowledge, as well as require information ensuring prior informed consent of the original knowledge holders and equitable benefit sharing with the original knowledge holders.

But not all member states agree with the CBD amendment, and “a number… do not agree to a negotiation” either, said Lamy, though they have not closed off discussion entirely. Reports on the state of play in these areas are also being made, though Lamy did not expect they would “solve the fundamental divide which exists over these issues.”

The Doha Ministerial Declaration stipulates that “the other outstanding implementation issues shall be addressed as a matter of priority by the relevant WTO bodies, which shall report to the Trade Negotiations Committee” but leaves vague what specific issues are covered, how to address them, and if there is truly a mandate to settle the issues as part of the Doha Round.

Countries that value the CBD amendment very highly, mainly developing countries, and countries that value GI extension very highly, have linked their efforts. The Commission has shown some signs of being willing to support the CBD amendment in exchange for developing country support on increased GI protection, though it seems willing so far to discuss only disclosure of origin, and not the prior informed consent and access and benefit sharing clauses the CBD amendment group also want, said the official source.

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