Talks But No Breakthroughs Yet On IP Issues For Ministers At WTO

By William New and Kaitlin Mara
Intellectual property issues have been a topic of debate at the World Trade Organization ministerial negotiations since Friday and while there have been no changes in positions there has been some talk of looking for compromises, according to sources attending the event.

Ministers from some IP-proponent countries raised the issues as critical to the heads of delegation meeting on Monday, the first day of the mini-ministerial in Geneva, while opponents held a meeting of like-minded countries reinforcing their position against the inclusion of IP issues in the talks, sources said.

WTO Director General Pascal Lamy began on Friday to talk with officials about IP issues in an attempt to find a way to navigate the standstill on them, sources said. Lamy held meetings on Friday, Saturday and Sunday, they said. However, on Monday evening, the issue was not a primary topic of the Green Room meeting, the smaller, closed gathering held in Lamy’s office. The ministerial is scheduled to run from 21-27 July.

The focus in the next few days is expected to be squarely on the issues of agriculture and non-agricultural market access (NAMA) before IP issues become critical, if at all, according to several sources. But the outcome of the mini-ministerial (about 40 of the WTO’s 153 members) will be tied to addressing demands from the European Union, Switzerland, India, Brazil and others on issues related to intellectual property and trade.

The IP issues are: the creation of a mandated register on geographical indications – product names associated with a place and characteristics – for wines and spirits; extension to other products of the higher-level GI protections currently enjoyed by wines and spirits; and an amendment to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to require the disclosure of origin of traditional knowledge and genetic material in patent applications, intended to bring TRIPS in line with the UN Convention on Biological Diversity (CBD).

A draft modalities text has been prepared by proponents, claiming support from a majority – over 100 – of WTO members (IPW, WTO/TRIPS, 18 July 2008). The text, TN/C/W/52, is now posted as a document to the WTO website. The opponents’ longstanding position favouring a voluntary register and database for consultation, referred to as the joint proposal, has been submitted again and posted as document TN/IP/W/10/rev.1.

A possible split in the IP issues may have been suggested by Lamy, according to sources. It generally has been the view that the GI register and the CBD amendment might have more middle ground for negotiating, while the GI extension might be more two-dimensional, sources said.

But such a split would not be acceptable to IP proponents, an official from a proponent country said.

And the opponents’ meeting on Monday, which included countries such as Australia, Chile, Costa Rica, Mexico, New Zealand and the United States, reconfirmed the view that none of these issues should be discussed this week, according to a participant.

“There is no place to bring those issues here,” Costa Rican trade minister Marco Vinicio Ruiz told Intellectual Property Watch afterward. He called the TRIPS issues “too confused” for this high-level meeting.

Informal TNC

In the heads of delegation meeting on the first day – an informal meeting of the WTO Trade Negotiations Committee (TNC) – no opponents made public statements against the issues.

Some statements are being posted to this page of the WTO website.

In the informal TNC, the European Union insisted that GIs and Peru insisted that CBD issues are critical to being able to accept an outcome on the other issues.

“On the European side, as on others, there are some political ‘must-haves’,” Peter Mandelson, European Union trade commissioner, said in his statement. “In agriculture, NAMA, services and GIs. We are prepared to offer more than others in this round, but everyone must understand that we need something in return.” The EU has said that stronger protection of GIs would help sell cuts in agriculture back home.

Mandelson explained that the EU “will be the major net loser” in any deal on agriculture, that the region is bringing a “groundbreaking reform of agricultural support,” and that on NAMA Europe will “cut every tariff line, without flexibilities” for entry into “the most valuable market in the world.”

But Europe is only willing to do this if “others also step up to the plate.” This must, Mandelson said, “include moves on questions such as geographical indications.” He added: “They are a form of intellectual property, entitled to effective legal protection.”

Switzerland also spoke about the importance of the IP issues. “More than two-thirds of the WTO membership, including Switzerland, support a modalities decision in favour of the three TRIPS issues – GI-extension, GI-register and CBD-TRIPS,” Swiss Federal Councillor Doris Leuthard said in her statement. “This vast group of WTO members, developing and developed countries alike, requests ministers to mandate text-based negotiations to come up with a solution to these three issues as part of the single undertaking. This is a significant development, which we cannot ignore.” She added: “I expect rapid ministerial involvement on this issue.”

In addition, Kenya on behalf of the African Group also made a reference to IP issues in the informal TNC, a source said.

However, Brazilian Industry Minister Celso Amorim did not mention IP issues in his statement, despite his nation being one of the key proponents of the issues.

WTO Press Secretary Keith Rockwell said that at Monday morning’s informal trade negotiations committee meeting, 30 ministers took the floor to express “very strong support” for concluding negotiations on agriculture and industrial goods, along with other areas. These “in-between issues” included services, rules (anti-dumping, fisheries), and TRIPS-related topics. There were no apparent shifts in positions, he said.

“These are very difficult negotiations,” Rockwell said. “The director general has been having negotiations on these issues quite regularly,” some daily. He suggested “keeping a close watch in the days to come.”

An Indian delegate told Intellectual Property Watch that “the ball is in Lamy’s court” on the IP issues. A separate source explained that as informal meetings had failed to make progress towards convergence, it would be up to the DG to “come up with something” that could satisfy both sides. Lamy has in recent weeks indicated that unless sides could come closer together on IP issues, that they might trip up the ministers’ talks.

Bolivian President Evo Morales Ayma issued an in-depth statement harshly criticising the WTO and calling for substantive change. On IP issues, Morales said: “The intellectual property regime established by the WTO has most of all benefited transnational corporations that monopolise patents, thus making medicines and other vital products more expensive, promoting the privatisation and commercialisation of life itself, as evidenced by the various patents on plants, animals and even human genes.” He urged negotiators to: “Limit the monopolies of large corporations on intellectual property, foster the transfer of technology and prohibit the patenting of all forms of life.”

Peru at the informal TNC reiterated that the relationship between TRIPS and the Convention on Biological Diversity is of “great importance” and is closely “related to the development of our country.”

As a development issue, this relationship “cannot but be squarely addressed during this Development Round,” said Mercedes Araoz Fernández, Peruvian minister of trade and tourism.

“It is clear that a solution to this problem [of biopiracy] – which affects in an acute way developing countr[ies] – requires incorporating a universal obligation to disclose the origin of biological resources and traditional knowledge in patent applications.”

She also mentioned wide support for prior informed consent and access and benefit sharing. Peru, India and others have sought to ensure the prior informed consent of communities where genetic resources or traditional knowledge are found, and to ensure access and benefit sharing with the communities.

Araoz acknowledged that other TRIPS issues were key, and said Peru considered all TRIPS-related issues to be on “an equal footing,” and that “each of them must have clear guidance from us through a strong negotiating mandate to successfully conclude all these outstanding issues with the single undertaking.”

“In the past,” Araoz concluded, “We were able to be up to the task before us … no matter how daunting it may have appeared. I don’t see why we should shirk this time.”

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

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

Full statement on IP issues by Peru:

We reiterate the great importance Peru attaches to the relationship between the TRIPS Agreement and the Convention on Biological Diversity – CBD, an issue is closed related to the development of our countries. By bringing in line both sets of disciplines will allow our communities to obtain benefits that derive from the fair use of their genetic resources and associated traditional knowledge. Technological innovation and economic progress has historically been fostered by adequately protecting individual ingenuity. There is no question in our minds about the fundamental importance of the IPR`s system, and we are committed to protect and to strengthen it. What it has granted to human progress is by no means negligible. This is precisely why we are convinced that by incorporating the creativity and ingenuity of our communities into the IPR`s system, we will be unlocking a potential never thought of, which will allow our rural areas and indigenous people to be masters of their own progress.

• For Peru, this is clearly a development issue. Thus, it cannot but be squarely addressed during this Development Round.

•Peru has presented several bio-piracy actions, potential as well real cases, before the TRIPS Council. It is clear that a solution to this problem – which affects in an acute way developing country – requires incorporating a universal obligation to disclose the origin of biological resources and traditional knowledge in patent applications.

•We recognize the efforts made by our negotiators regarding this issue using all available means to find a balance among the different points of interest of Members. Even when there was no easy path to walk, some movement happened. Today, more than 100 countries support a proposal submitted by Peru together with other members of the Disclosure Group to include in the horizontal modalities a mandate to negotiate to amend the TRIPS Agreement, as to establish an obligation for Members to disclose the origin of biological resources and/or associated traditional knowledge in the patent applications, including Prior Informed Consent and Access and Benefit Sharing.

•We are also aware of the key importance that the other issues on TRIPS also have. We consider all TRIPS related issues on an equal footing, and believe that each of them must have clear guidance from us through a strong negotiating mandate to successfully conclude all these outstanding issues within the Single Undertaking. We know this is a significant challenge that we have before us. In the past we were able to be up the task before us in that time, no matter how daunting it may have appeared. I don’t see why we should shirk this time. We are fully committed to continue working in a proactive manner to achieve concrete results, while taking into account progress made in other areas of the negotiation.