Prospects Dim For TRIPS Issues At WTO Ministerial; October Deadline Possible

By William New
The prospect for an agreement to negotiate on three intellectual property issues at the World Trade Organization has dimmed considerably, with no further meetings with delegations likely on Sunday, according to officials. A possible proposal is circulating to move the deadline on IP issues to October.

“There is no possibility of a substantial agreement,” said a dejected proponent. “It was kind of dropped this week.”

Some 110 WTO members demanded at the outset of the week that three IP issues be considered together in the WTO ministerial that started formally on 21 July. But a group of less than 20 members held firmly to the position that two of the issues have no mandate for negotiation – and they refused to give them one.

Norwegian Foreign Minister Jonas Gahr Støre, who according to press reports earlier this year was involved in the perhaps less intractable Israeli-Syrian peace talks, has not been able to bring the two sides on IP at the WTO closer together. He held consistent and intensive consultations on the IP issues all week, on behalf of WTO Director General Pascal Lamy, and told Intellectual Property Watch on Saturday evening that all sides have stuck to their positions.

Støre has not scheduled any further consultations, and is expected to report his findings to date directly to Lamy, or perhaps ministers, possibly Sunday. There is no informal Trade Negotiations Committee on Sunday, but may be a WTO Group of 7 meeting, possibly followed by a Green Room meeting (smaller high-level gathering in Lamy’s office) tonight, sources said.

The three IP issues being considered are: the establishment of an international register of wines and spirits geographical indications – product names associated with places and characteristics (“GI register”); the possibility of extending higher level GI protection to products other than wines and spirits (“GI extension”); 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 and possibly ensuring benefit-sharing with communities to deter biopiracy (“CBD amendment”).

The GI extension and TRIPS CBD amendment do not have clear mandates to be negotiated in this round. All sides agree on negotiating the register, but are far apart on details.

Proponents have suggested that safeguards might be negotiated for countries with economic concerns about the extension of GI protection or a disclosure of origin requirement. A precedent exists for amending the TRIPS agreement, in 2005, for public health objectives.

A meeting on technical aspects was scheduled for Saturday with the top WTO secretariat official on TRIPS, but this appeared to mainly focus on the GI register, so proponents of the three IP issues showed their unity and refused to allow separation, according to another proponent.

Governments that have shown formal support for GI extension include: the European Union, Guinea, India, Jamaica, Kenya, Kyrgyzstan, Macedonia, Madagascar, Morocco, Pakistan, Sri Lanka, Switzerland, Tanzania, Thailand and Turkey.

GI extension supporters have linked with supporters of the CBD amendment, which include whole regions like the Africa, Caribbean and Pacific Group, the Least-Developed Countries Group, Africa Group, and numerous individual nations such as India and Peru. Brazil supports both issues, but this week lightened its focus in lieu of ensuring satisfactory deals in agriculture and industrial goods, sources said.

The opponents of either GI extension or CBD amendment appeared to number between 15 to 20, including Argentina, Australia, Canada, Chile, Costa Rica, New Zealand, and the United States.

Støre said the focus has remained on how to move forward, and all are contemplating the question of, “Is there any way of envisaging a way forward,” he said. Delegations have “been generous with their time” on the issues, he said, adding that he believes delegations are “not insensitive” to the needs of the others, and will continue to look for a solution, focussed on procedure at this point. Støre floated several “elements” of a way forward on Friday (IPW, WTO/TRIPS, 25 July 2008), but these were rejected by proponents, particularly a point that would have moved the issue to the end of the entire Doha negotiating round with no guarantees.

European Union External Trade Commissioner Peter Mandelson on Saturday continued to insist that Europe and others will need some agreement on GIs in order to obtain final political approval at home for agriculture and industrial goods deals (IPW, WTO/TRIPS, 26 July 2008).

Støre said Saturday that movement on the central issues of agriculture, non-agricultural market access (NAMA), and services brings the IP issues “on the radar screen,” where it was somewhat “under” the screen before this week. But he stopped well short of suggesting that a successful outcome on the bigger issues depends on agreement on TRIPS.

He further told reporters that if any delegation would flatly state that “no mandate means no mandate,” his reaction is, “I’ll challenge them on that.”

But for now, a way forward may mean proposing to keep talking until sometime in October, officials said. The agriculture, manufactured goods and services deals all have next deadlines in October.

But proponents may not settle for an agreement just to keep consulting, however, especially that does not guarantee an outcome. Rather, they still seek an agreement that would lead to negotiations, one proponent said. “The objective is to have something such as not only intensifying consultations, but also negotiations,” the official said. “That’s the least we can do here in the WTO. That’s why we are paid, not only to discuss.”

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