TRIPS Issues Still Possible At WTO, If Overall Talks Unlock

By William New
Intellectual property issues are progressing slowly and quietly on the sidelines of the World Trade Organization ministerial as prospects for an agreement on broader issues remain tense and uncertain, according to sources. Ways to proceed on IP issues continue to be contemplated, with a key focus on the relationship between IP talks and the overall Doha Round of negotiations, sources said.

After Friday night’s preliminary agreement on aspects of agriculture and manufactured goods, IP talks were expected to intensify, but sides remained far apart on IP and then the broader talks stumbled again by Monday. But proponents have continued to demand the issues be given serious attention during this mini-ministerial, which began on 21 July.

Norwegian Foreign Minister Jonas Gahr Støre, designated by WTO Director General Pascal Lamy to represent him in consultations on IP issues, presented an update to WTO members on Monday morning, and met again with key officials from both sides of the IP issues on Monday afternoon.

The three IP issues under consideration are: 1) the establishment of an international register of wines and spirits geographical indications – product names associated with places and characteristics (“GI register”); 2) the possibility of extending higher level GI protection (TRIPS Article 23) to products other than wines and spirits (“GI extension”); and 3) 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 negotiating mandates in this round. All sides agree on negotiating the GI register, which was mandated in the 2001 Doha Declaration, but they have been far apart on details, especially legal matters.

Draft Plan for Recommendations

Støre told key members on IP in his meeting with them Monday afternoon that he had intended to share a paper with them on how to proceed, but decided not to after broader talks suddenly turned tense over an agricultural safeguard measure, according to officials.

He briefly told members about some details in the paper, some said. First, they would identify the objectives of the proposals, then establish a work programme. Next, there would be dedicated meetings on the subject starting in September, likely led by a “friend” of the director general, which seems less specific than a previous suggestion to name a chair of the past TRIPS special sessions to guide the process.

The first report of the dedicated group would be made by the end of October, putting the process on the same timeline with other aspects of the single undertaking, which also are expected to have October deadlines, sources said.

The report of the group would be submitted to the TNC and the General Council, the WTO’s top body. A political question of the procedure is whether or how to tie the GI extension and CBD amendment issues to the single undertaking. Procedurally, requiring the TNC to receive a report would keep it line with the broader negotiations, which are guided by the TNC (which reports to the General Council).

Another aspect of Støre’s plan would be that the report of the work programme has to be prepared before the end of the Doha Round, which remains scheduled for the end of 2008. The report would cover the conclusion of the discussions, and recommendations, which would be examined by a special session.

Proponent governments are watchful that any agreed procedure ensures all three TRIPS issues become part of the single undertaking. One source said there also may be debate over whether it would be possible to accomplish the objectives of proponents without an actual amendment to the TRIPS agreement.

On Friday, Støre floated draft elements of procedure (IPW, WTO/TRIPS, 25 July 2008).

Issue Still Critical for Some

Italian Agriculture Minister Luca Zaia on Tuesday restated the European position that an agreement on GIs is vital to the overall agreement, Reuters reported.

“For us, if the geographical indications are not maintained the agreement will not be closed,” Zaia told reporters while visiting farms in northern Italy.

India, in its statement to the 28 July informal TNC, again raised the importance of IP issues being included in the formal negotiations. “Minister Støre has worked hard to find a procedural solution,” India said. “We look forward to receiving his reports so that we can move to a clear mandate from the ministers to begin intensive negotiations under the single undertaking.”

European Union External Trade Commissioner Peter Mandelson restated the importance of the GI issue on his blog Sunday, calling it the “most important” of the issues running alongside the main topics.

According to WTO Spokesman Keith Rockwell, Støre told members in the 28 July informal Trade Negotiations Committee (TNC) that he is “continuing efforts to explore whether they might find a way forward which would not prejudice members’ positions on the most contentious issues,” especially the CBD amendment and GI extension. They are looking at the relationship of these issues to the “single undertaking” (the overall negotiations in which nothing is agreed until everything is agreed), and the “legal form of an outcome,” he said.

But, Rockwell told a press briefing, Støre “hopes that nevertheless he could find a solution that would give satisfaction to all members and enable work to move ahead positively.” Store’s impression, according to Rockwell, is that there is “increasing acceptance that this is the way forward, though they still have a considerable way to go to find agreement and encapsulate it in language.”

Draft modalities developed for the TRIPS issues have the public support of a large majority of members. Supporters are shown in the latest draft modalities text (from 17 July) reprinted below, along with recent additions Croatia and Georgia.

GI Producers Push for Negotiation

OriGIn, an international industry group representing “origin-based” producers, issued a statement Monday urging the inclusion of the GI extension in the single undertaking. The group cited concern with “the refusal of a few WTO delegations to negotiate the fundamental issue” of extending higher level GI protection.

The group said the draft modalities represent “an equilibrated compromise among different positions and interests.” “It would be difficult to justify any deal not containing meaningful reference to this key issue,” Massimo Vittori, OriGIn secretary general, said in a statement. OriGIn claims 80 members, especially in Europe.

“Current WTO rules on GIs are unbalanced and do not offer producers of GIs other than wines and spirits effective legal remedies to prevent and stop abuse,” Vittori said. “Free-riding has been increasing over the years and, as a result, producers are losing market share.” He said the current GI protection requiring proof that consumers were mislead and competition was unfair is insufficient.

“Millions of GI products from all over the world would not understand nor support any regime de facto consolidating first class and second class producers enjoying different standards of protection – which is the case today,” Vittori said, adding that most developing economies are not wine producers.

“Ensuring that all products benefit from the protection currently enjoyed by wines and spirits as well as setting up a meaningful register opened to all products,” Vittori said, “would contribute to establishing a more development-friendly global trading system.”

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

Text of TRIPS Proposals [Note: Croatia and Georgia have since signed on]:

WORLD TRADE ORGANIZATION
TN/C/W/52
19 July 2008
(08-3499)

Trade Negotiations Committee

Original: English

DRAFT MODALITIES FOR TRIPS RELATED ISSUES

Communication from Albania, Brazil, China, Colombia, Ecuador, the European Communities, Iceland, India, Indonesia, the Kyrgyz Republic, Liechtenstein, the Former Yugoslav Republic of Macedonia, Pakistan, Peru, Sri Lanka, Switzerland, Thailand, Turkey, the ACP Group and the African Group

The following communication, dated 18 July 2008, is being circulated at the request of the Delegations of Brazil, the European Communities, India and Switzerland.

_______________

Proponents of the TRIPS related issues under the Doha Work Programme (GI Register, TRIPS disclosure requirement and GI Extension) 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. The central objective of the proponents remains the adoption of a procedural decision that would open up the way for negotiations on the three issues.

We therefore submit draft modalities for consideration by Ministers for TRIPS related issues.

_______________

ANNEX

DRAFT MODALITIES FOR TRIPS RELATED ISSUES

17 July 2008

GI-Register: draft Modality text

1. Members agree to establish a register open to geographical indications for wines and spirits protected by any of the WTO Members as per TRIPS. Following receipt of a notification of a geographical indication, the WTO Secretariat shall register the notified geographical indication on the register. The elements of the notification will be agreed.

2. Each WTO Member shall provide that domestic authorities will consult the Register and take its information into account when making decisions regarding registration and protection of trademarks and geographical indications in accordance with its domestic procedures. In the framework of these procedures, and in the absence of proof to the contrary in the course of these, the Register shall be considered as a prima facie evidence that, in that Member, the registered geographical indication meets the definition of “geographical indication” laid down in TRIPS Article 22.1. In the framework of these procedures, domestic authorities shall consider assertions on the genericness exception laid down in TRIPS Article 24.6 only if these are substantiated.

3. Text based negotiations shall be intensified, in Special Sessions of the TRIPS Council and as an integral part of the Single Undertaking, to amend the TRIPS Agreement in order to establish the Register accordingly.

TRIPS/CBD disclosure: draft Modality text

4. Members agree to amend the TRIPS Agreement to include a mandatory requirement for the disclosure of the country providing/source of genetic resources, and/or associated traditional knowledge for which a definition will be agreed, in patent applications. Patent applications will not be processed without completion of the disclosure requirement.

5. Members agree to define the nature and extent of a reference to Prior Informed Consent and Access and Benefit Sharing.

6. Text based negotiations shall be undertaken, in Special Sessions of the TRIPS Council, and as an integral part of the Single Undertaking, to implement the above. Additional elements contained in members’ proposals, such as PIC and ABS as an integral part of the disclosure requirement and post grant sanctions, may also be raised and shall be considered in these negotiations.

GI-Extension: draft Modality text

7. Members agree to the extension of the protection of Article 23 of the TRIPS Agreement to geographical indications for all products, including the extension of the Register.

8. Text based negotiations shall be undertaken, in Special Sessions of the TRIPS Council and as an integral part of the Single Undertaking, to amend the TRIPS Agreement in order to extend the protection of Article 23 of the TRIPS Agreement to geographical indications for all products as well as to apply to these the exceptions provided in Article 24 of the TRIPS Agreement mutatis mutandis.

9. Special and Differential treatment shall be an integral part of negotiations in the three areas above, as well as special measures in favour of developing countries and in particular least-developed countries.

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