Chair: Compromise On TRIPS Issues Still Possible, If Broader WTO Talks Can Move

By Kaitlin Mara and William New
Compromise on intellectual property issues at this week’s World Trade Organization ministerial meeting has been hard to find, but the facilitator of the IP talks said Thursday night that the possibility remains if the broader talks can proceed.

Countries with a range of views met bilaterally with the chair throughout the day in an attempt to root out possible points of convergence. Meanwhile, EU members urged their commissioners not to buckle on geographical indications, but the United States restated its steadfast opposition to an expansion of GIs.

“This issue is closely linked to what goes on in the Green Room,” said Norwegian Foreign Minister Jonas Gahr Støre, who is acting on behalf of WTO Director General Pascal Lamy in continuing consultations on three IP issues. “This issue will probably be activated when you see the elements” of modalities for the main issues under negotiation at this week’s WTO ministerial: agriculture and non-agricultural market access. The Green Room refers to the small, highest-level meetings with Lamy taking place periodically through the week.

With a breakthrough on those main negotiating issues, Støre would expect to call a meeting of all sides, possibly with Lamy, he told Intellectual Property Watch. But he emphasised that he is not saying there is agreement, or even a clear way toward an agreement. He said he will carry on on the Lamy’s behalf to “try to see if there are areas of convergence.” He said he has found rather different views on each of the three IP issues in play, but would not discuss details of his meetings.

Støre met for one hour each with the groups of proponents and like-minded countries on Wednesday, then on Thursday in shorter bilaterals – referred to as “confessionals” by some – with about 11 leading WTO members on the issues. These included Argentina, Brazil, Bolivia, Canada, European Union, India, Israel, New Zealand, South Africa, Switzerland, United States, he said, adding that he also is in communication with Australia. He will give a procedurally focussed report to the informal Trade Negotiations Committee (supervising body of the negotiation) on Friday morning, and then decide how to proceed. He may continue to meet with some delegations, he said.

The hunt for the middle ground continues but the ground so far seems unyielding as the trade negotiations here in Geneva creep towards their originally scheduled end-date of 26 July. Trade ministers have been meeting since 21 July in negotiating sessions running later and later into the evening, trying to reach agreement on several trade issues, of which intellectual property is one.

The IP issues are: the creation of an international register on wines and spirits geographical indications, or product names associated with a place and characteristics; the possibility of extending higher level GI protection to products other than wines and spirits; and a proposed amendment to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) that would bring it in line with obligations under the UN Convention on Biological Diversity (CBD), adding a requirement for disclosure of origin in patent applications.

Strong statements from those who want to push discussion on these issues this week and those reluctant to engage in it have linked the success of IP issues to the overall success of this week’s negotiations (IPW, WTO/TRIPS, 23 July 2008; IPW WTO/TRIPS, 22 July 2008) and highlighted the importance of reaching an accord between the sides.

One source said the bilateral consultations with the chair involve trying to understand what flexibility members may have in their positions, something they would be less able to reveal in a group meeting.

A WTO secretariat official explained that the countries who consult with the facilitator are in part chosen by the facilitator, as they appear to be opinion leaders, but that delegations who want the facilitator to know something may request a meeting, which Støre indicated was the case with Bolivia and Israel. This explains why the number of consultations can vary.

US: Position Unchanged; EU Members Urge EU Commissioners to Stand Strong

Toward the end of the day Thursday, a US spokesperson said the government’s “position hasn’t changed” since US Trade Representative (USTR) Susan Schwab said Tuesday that the US “did not intend” to engage in negotiations on GI extension in particular.

And Nestor Stancanelli, an official from Argentina, said Thursday that the “link between GI and CBD is not welcome at all” and that “the only thing to do is split the three issues and see what is workable.” He said “the GI register is workable,” as there is already a mandate to create it under the Doha Declaration that is guiding this week’s talks. “On the CBD amendment, maybe we could set up an expert working group” in order to explore what is workable, he added. Another “like-minded” delegate acknowledged “we could probably talk about that,” referring to the biodiversity amendment. But, Stancanelli concluded, “the GI extension is a non-starter.”

Meanwhile, 13 ministers from the European Union, in a letter, urged EU Trade Commissioner Peter Mandelson and EU Agriculture Commissioner Marianne Fisher-Böel to keep the GI register and GI extension in the negotiations. The letter from ministers representing Bulgaria, Cyprus, France, Greece, Hungary, Ireland, Italy, Malta, Poland, Portugal, Romania, and Spain read in part:

“Thanks to your efforts GIs are now definitely an integral part of the negotiations on the [Doha round of trade liberalisation talks agenda] in the framework of the modalities currently being tackled. Over a hundred countries co-sponsored the proposal of July 16… we understand that a minority of members strongly challenge the prospect of an agreement on GIs, both the register and extension, based on said proposal. Particularly the recent, strong stance taken by the USTR justifies our deep concern… therefore we urge the Commission to react without delay in all relevant negotiating contexts, as well as in its contacts with the media and public opinion, in order to counter the USTR statement against a meaningful deal on GIs.

Few northern European governments signed the GI letter to commissioners. While the full EU has previously agreed that GIs are important to the overall EU economy and have authorised the Commission to negotiate on the issue, some governments are stronger supporters than others. One EU official and other sources said it cannot be suggested that the letter represents a rejection of the issue by those that did not sign.

CBD Amendment Still Sought

Interestingly, the EU letter did not mention anywhere the CBD amendment, though it is the reason the coalition currently numbers over 100 members. One of the proponents told Intellectual Property Watch that they would reconsider accord on the agreement if CBD fell off the table or was significantly weakened.

Supporters of the GI-CBD linkage expressed disappointment in the slowness of the negotiations. One noted the “time pressure” in the negotiations and emphasised that “we need, at this point, ministerial guidance. Vague discussion has not gotten us anywhere.”

The source added that prior informed consent and access and benefit-sharing are “essential” to the CBD amendment. There remains some disagreement, even among CBD proponents, as to what a CBD amendment need include. The ‘weakest’ proposals call for only disclosure of origin on genetic resources and traditional knowledge used in negotiations. The stronger proposals also call for the prior informed consent of communities from which resources are extracted, and for benefit-sharing afterwards.

“Without prior informed consent of the community, you are not satisfying the dictates of the CBD” the source continued. This refers to the CBD clause that seeks to prevent misappropriation of genetic resources and traditional knowledge. “And without access and benefit-sharing, what is the goal or desired outcome of disclosure?” the source said.

GI-CBD linkage proponents stressed that their side had already made great strides toward compromise. “Already, the joint proposed modalities are very different than what we had in 2006… we’ve covered a lot of ground,” said one, adding on the CBD amendment that “the Swiss and the European Union have similar concerns” to the main developed countries on the other side, and that if the current CBD proposal satisfied them, it should also satisfy the others. The link made between CBD and GI issues is based only on the wish for the issues to be put on the table for negotiation.

Another proponent seconded the movement within the CBD-GI joint proposal, saying that “for example, endurances and safeguards now are in the modalities, which was an initial criticism from the opponents… we’ve created something which is an important and relative basis for discussions,” and adding “we’ve taken clear steps towards the opposing delegates, but the opponents are not even looking at the movement within the latest draft modalities paper.”

Meanwhile, a letter sent by two Democratic US Senators Russell Feingold (Wisconsin) and Robert Byrd (West Virginia) has questioned whether the USTR had adequately consulted Congress before arriving in Geneva to negotiate as presidential trade-negotiating authority expired in 2007. “We are interested in understanding what USTR Schwab or other US trade officials are represnting to other countries’ officials regarding their capacity to make binding commitments at this ministerial on behalf of the US Congress,” said the letter. But a USTR spokesperson told Intellectual Property Watch that the office checked in with Congress before coming to negotiate and pointed to a letter in support of pursuing the negotiations from Senate Agriculture Committee Chairman Tom Harkin.

Nuances within Like-Minded Sides

WTO Spokesperson Keith Rockwell told reporters Thursday that even positions within the like-minded groups are not without nuance, though both are presenting united fronts within the negotiation. For example, Rockwell said, India is supporting both GI extension and the CBD amendment, whereas with Brazil talking about GIs seems a more strategic manoeuvre. On GI extension it seems too that there may be different opinions, with most countries talking of reserving GIs on agricultural products, but with Switzerland wanting GIs on watches, clocks, and pocket-knives, for example.

Another source said that within Europe the Mediterranean countries in the south are in general more concerned about the GI extension issue than the northern states, and it is these who have made it clear that getting movement on them is a condition for modalities.

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