Reports On WTO IP Negotiations Released

By Kaitlin Mara
The World Trade Organization on Monday released two reports on the state of play in negotiations on a register for geographical indications (GIs) – product names associated with places and characteristics – as well as the possible extension of the stricter protections for wines and spirits GIs to other goods, in tandem with a proposed amendment to intellectual property rules to strengthen biodiversity protection.

The reports outline the range of opinions on the intellectual property topics, but do not propose compromises between members or offer indications as to whether these topics will be included in immediately upcoming negotiations. They are both available for download here.

The report on the GI register was authored by Manzoor Ahmad, chair of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) special sessions, while the GI extension and biodiversity report is credited to WTO Director General Pascal Lamy.

An informal text was circulated at the WTO in late May linking the efforts of proponents of the three key intellectual property issues and urging that they be included in upcoming talks intended to encompass all currently on-the-table unresolved issues in the WTO trade negotiations. The text’s circulation was said to solidify well over 100 members in support of adding the IP issues to the broader negotiations.

The GI register is a multilateral system of registration and notification for GIs for wines and spirits, and was mandated by TRIPS article 23.4. Extension, which is discussed separately from the register, would provide the higher protection given to wine and spirits GIs to other GI products, such as Brie cheese. The possible amending of the WTO TRIPS agreement is aimed at bringing the agreement in line with the UN Convention on Biological Diversity by requiring the disclosure of origin of genetic material and traditional knowledge in patent applications.

The informal text came in the form of a joint “non-paper” on the IP issues, and was labelled a “draft text for inclusion” in the two reports issued Monday. While the exact wording did not make it into either report, Lamy’s document acknowledged that a large number of member states proposed the inclusion of IP issues in upcoming talks.

Ahmad’s document declined to discuss the CBD amendment or GI extension issues, calling them “beyond the mandate” of the special session he chairs, which is limited only to issues regarding the GI registry for wines and spirits.

Official Paper on TRIPS Amendment

Also in circulation last week was an official submission to the highest-level negotiating body, the Trade Negotiations Committee, which operates under the WTO General Council, in support of the CBD amendment. The text of submission was included in Lamy’s paper.

The two reports come at a time of cautious optimism in the Doha Round of trade liberalisation talks, in which the greatest attention has been paid to agreement on modalities – that is, the procedural way forward – being sought on agriculture and non-agricultural market access (NAMA).

Lamy told a 5 June assembly of the Organisation for Economic Co-operation and Development (OECD), the 30-member advanced-nations group, that the round was “getting to the moment of truth.”

But Lamy reminded the same meeting that within the WTO so-called “horizontal process,” in which all topics under negotiation are discussed in tandem, “nothing is agreed until everything is agreed.”

The Non-Paper Text

The 26 May “non-paper” draft text was intended to be included in the factual reports released Monday. The combination of countries seeking stronger GI protections and biodiversity protection mean that some 110 of the WTO’s 152 members back the non-paper, according to a proponent.

The Doha Round negotiations cannot be considered complete, a proponent said, until modalities for addressing IP issues that are of concern to a majority of members are resolved.

A separate source said that the “non-paper” had been submitted by the European Union and Switzerland, who are pushing for stronger GIs, and Brazil and India, who are seeking the TRIPS biodiversity amendment. While these two issues had been linked in discussions before, this was the first time proponents of both issues have submitted a jointly written text.

The text of the “non-paper” reads:

“Proponents of the TRIPS related issues under the Doha work programme (GI register, GI extension and TRIPS disclosure requirement) agree to include these issues as part of the horizontal process in order to have modality texts that reflect ministerial agreement on the key parameters for negotiating final draft legal texts with respect to each of these issues as part of the single undertaking.”

A note on the proposed paragraph makes explicit that the “proponents of TRIPS issues” asking for its inclusion in the chair reports are doing so “without prejudice to the outcome of consultations.”

There are some disagreements on the nature and scope of a GI registry, though the mandate for its creation has already been agreed upon. Several options have been proposed for an international register, with the key issues being whether participation is mandatory and what the legal effects would be.

TRIPS and Biodiversity

There are variegated levels of support for the so-called CBD amendment, but the strongest proponents – including India and Peru – would like to see a requirement within TRIPS that the origin of all genetic resources and traditional knowledge being traded internationally is disclosed. [Correction: disclosure refers to patent applications, not trading internationally] They also would like to ensure that prior informed consent of indigenous and local communities is obtained before such resources or knowledge is used.

The official document to the TNC, WT/GC/W/590 TN/C/W/49, was authored by fifteen developing nation supporters of the CBD amendment as well as the least developed country group and the Africa, Caribbean and Pacific group and is circulating at the behest of India. It, too, links the biodiversity amendment with the GI debates, and submits a paragraph for inclusion in the horizontal modalities decision.

The text of the CBD amendment submission reads:

“Members agree to the inclusion in the TRIPS Agreement of a mandatory requirement for the disclosure of origin of biological resources and/or associated traditional knowledge in patent applications. Text based negotiations shall be undertaken in Special Sessions of the TRIPS Council, and as an integral part of the single undertaking, on an amendment to the TRIPS Agreement establishing an obligation for members to require patent applicants to disclose the origin of biological resources and/or associated traditional knowledge, including prior informed consent and access and benefit sharing.”

The full text of this submission was included in Lamy’s report as coming from members who want “mandatory disclosure” of origin to be a requirement of patent applications, and who want to see guidance on a way towards achieving this be a part of the horizontal modalities talks.

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