WTO TRIPS Council To Meet Amid Broader Negotiation Backdrop

By Kaitlin Mara
The World Trade Organization intellectual property committee will meet next week in the midst of a tense round of trade talks where efforts to move closer to consensus are continuing and the inclusion of some IP-related issues remains under debate.

The WTO Council for Trade-Related Intellectual Property Rights (TRIPS), which administers the TRIPS agreement, will meet 17-18 June.

TRIPS issues have been among the hot discussion topics at the WTO of late, as a report from the director general laid out contrasting opinions on the possible extension of high-level protection for geographic indications – product names associated with particular characteristics or geographic locations – to products other than wines and spirits (called “GI extension”) and amendments to TRIPS that would bring the trade agreement in line with international commitments to protect biodiversity.

A second report also was issued on a mandated register for wines and spirits GIs, from Manzoor Ahmad, chair of the TRIPS special session on the topic.

The report from Director General Pascal Lamy also mentions arguments that have been circulating in the form of “non-papers” written by groups of member states over the merits of including intellectual property issues in the “horizontal” or cross-cutting set of issues included in the ongoing Doha Round of trade liberalisation negotiations.

But, despite the buzz on IP, delegates are not expecting decisions to come out of the Council meeting regarding IP and the wider Doha negotiations.

“Nothing should happen on implementation issues,” said one WTO member representative, referring to the biodiversity and GI issues. TRIPS Council is “not a negotiating group,” another representative said, and so is not related to the trade talks.

The Trade Negotiations Committee, lead negotiating body, and informal “Green Room” meetings are likely to be where such IP matters are hashed out, another delegate said. “I don’t think anything new will happen at the TRIPS Council itself” on these issues, the source added.

Council Agenda: TRIPS and Health

Other issues on the TRIPS agenda are evidence of more movement. Since the last Council meeting 13 – 14 March, three more countries have signed on to the 2005 TRIPS amendment that would make access to medication in least developed countries easier.

The amendment makes permanent a 2003 decision on patents and public health, lifting the restriction on export of drugs on compulsory licences to countries that do not have the manufacturing capacity to make needed medicines themselves. Mauritius and Egypt signed on to the amendment in April, and Mexico in May, bringing its total number of official supporters to sixteen member states plus the European community, which represents 27 members (IPW, WTO/TRIPS, 7 December 2007).

No Enforcement

Enforcement is again absent from the Council agenda. Not a standing agenda item, enforcement must be requested by a member to be discussed at the TRIPS Council meetings. However, it is a break from the pattern of last year (when it was raised by the United States, Switzerland and Japan, who followed the European Union) that it has not been requested at this meeting nor at the last Council in March. A developed country official in March predicted that the issue had only skipped a meeting and would “come back.” But the come back seems delayed, for reasons unclear as of press time.

One official speculated that supporters of enforcement were seeking new channels for the enforcement of IP, such as via the World Customs Organization or the proposed Anti-Counterfeiting Trade Agreement (ACTA), currently in closed-door discussions. Enforcement proponents did not answer requests for comment as of press time.

Also on the TRIPS Council agenda are several standing items, including non-violation and situation complaints, incentivising technology transfer as required under TRIPS Article 66.2, technical cooperation and capacity building, and observer status for international and intergovernmental organisations.

Broader Doha Context

Meanwhile, the broader trade negotiations are at a delicate point. Non-agricultural market access (NAMA) appears to be the biggest deadlock currently, though this can change as some issues are resolved and new ones arise. Agriculture is currently going “reasonably,” said an official, with the chair is saying he has enough information to revise text in some areas.

Sources say that informal meetings have been taking place with about a dozen or so member states in an attempt to make headway towards consensus, and there is indication that bargaining chips outside NAMA are being discussed, though the process is not yet truly horizontal.

The Trade Negotiations Committee (TNC), chaired by Lamy, answers to the WTO General Council, the organisation’s highest-level decision-making body, though the General Council has other duties and is unlikely to significantly change agreements reached by the TNC during the approval process, said an official.

Several specialised negotiating groups and sessions answer to the TNC, which supervises negotiations. Among the groups falling under TNC purview are the TRIPS special sessions discussing the creation of the register for GIs on wines and spirits, special sessions of the agriculture committee and negotiating groups on market access and trade facilitation.

The chair’s reports were submitted to the members, through the TNC or GC. It is up to the members to decide how to use the reports and their response remains to be seen. With two opposing views on what happens next on IP issues, it will be up to them to decide whether to include the issues in the horizontal process or address them through another WTO channel. The proponents might at some stage in an informal context raise the issues, according to the official.

Informal (and usually issue-specific) groups meet when resolution in formal meetings is not forthcoming. The smaller breakaway groups facilitate conversation – they usually involve the most active voices on a particular negotiation issue – but retain accountability to the full WTO membership. This is where much of the discussion on agriculture and NAMA is now, with periodic meetings of the full membership in the TNC.

Informal Green Room meetings, chaired and called by the director general, act as a chance for the chairs of all specialised negotiating groups to speak to and coordinate with the director general, said an official source. There will be a horizontal Green Room process as well, where a select group of delegates will engage in negotiations, with regular reporting to/consulting with the full assembly.

If NAMA and other issue-specific gaps can be narrowed sufficiently in the formal and informal sessions, then senior officials can get together in more informal discussions, chaired by the WTO Director General Pascal Lamy, to further resolve disagreements that cross issue lines.

The WTO’s highest-level negotiating group is a political one, the ministerial consultations. Ideally, ministers are called to solve a small number of very politically charged issues, and thus wait for other senior officials to resolve underlying complicated and technical disagreements to make a consultation worth ministerial attention.

If ministers do meet in the upcoming weeks, it will be a “mini-ministerial” made up of about 30 representatives of the whole body. There is no capacity for all 152 members to meet in Geneva [at ministerial level on short notice]; also, an official said, smaller sessions are most likely to yield results.

William New contributed to this report.

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