Push For TRIPS Changes Reaches Highest Level At WTO As Meetings Intensify

By Kaitlin Mara
Proponents of amending the World Trade Organization intellectual property agreement to increase protection for biodiversity and for geographically-specific products are insisting Director General Pascal Lamy himself lead the process for resolving the issues.

Meetings on intellectual property issues have been held periodically throughout the week, including Friday, and will continue next week, according to sources. A procedural decision on three IP issues is expected next week, one source said.

The IP issues “need to be addressed with seriousness, unlike in the past when consultations were carried out ‘on behalf’” of the director general, one of the proponents of the amendments told Intellectual Property Watch.

Meanwhile, questions on the immediate future of the Doha Round of trade liberalisation talks – which will dictate what movement is possible on IP issues – are still unresolved. A “green room” meeting (with a small number of invited countries) with Lamy will be held on Sunday, said a source. The meeting will discuss modalities, or ways forward, on the wider trade negotiations, which a group of twenty nations last week said should conclude by the end of the year.

The IP amendments relate to the WTO Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, and include a proposal to amend TRIPS to include mandatory disclosure of origin on genetic resources used in patent applications (and, possibly, a guarantee of prior informed consent of communities who own the resources) – referred to as the TRIPS/CBD amendment as it is inspired by provisions in the United Nations Convention on Biological Diversity (CBD). They also include a proposal to extend high-level protection of geographical indications – or products associated with a particular place and characteristics – on wines and spirits to other goods, an initiative referred to as “GI extension.”

Approximately 110 of the WTO’s 153 members have demanded that the biodiversity and GI extension issues be included in current trade negotiations, though not all proponents favour both issues.

The TRIPS/CBD and the GI extension issues are linked by the 110 to negotiations on the creation of a multilateral register for GIs, for which there is a negotiating mandate under the Doha Round and a series of “special sessions” set aside for those talks.

A proponent said that “usefully and fruitfully addressing” the GI register issue will require talking about the other two issues as well.

Meetings with Lamy, Clarke

A group representing the coalition of 110 proponents met with Lamy on Monday to stress the importance to them of the two issues, and to request a process involving dedicated consultations on the issues, sources told Intellectual Property Watch. A separate source said that China, Ecuador, the European Communities, India, Switzerland and Thailand were present at this meeting.

For several years, Lamy has been represented on the TRIPS issues by a deputy director general and another appointed representative (both from nations that are not proponents), and the issues have not advanced.

The request for Lamy’s direct involvement is based, the proponents say, on a declaration from the high-level ministerial meeting in Hong Kong in 2005. Article 39 of the Hong Kong declaration calls for the director general to “without prejudice to the positions of members… intensify his consultative process on all outstanding implementation issues” as listed in the declaration from the Doha ministerial in 2001, “if need be by appointing chairpersons of concerned WTO bodies as his friends and/or by holding dedicated consultations.” There does not appear to be an option for Lamy to designate his deputies to represent him.

Negotiations, said a proponent, should thus be run by the DG himself, or by the TRIPS special sessions chair – currently Trevor Clarke, ambassador of Barbados – acting as his ‘friend.’

This week began a series of meetings by Clarke with all sides, focussed on the GI register, which is the only issue for which the ambassador currently has responsibility under the special sessions, said a source. On Thursday, he met with 16 representatives of the proponents, on Friday with representatives of the proponents and the Joint Proposal, and on Tuesday, he plans to meet with all interested members.

The group of 16 member states, who represent the 110 and who had expressed concern over slow progress on these issues, is comprised of: Brazil, China, Croatia, Ecuador, European Union, India, Ivory Coast, Jamaica, Kenya, Mauritius, Nigeria, Pakistan, Peru, Switzerland, Thailand, and Turkey.

The CBD and extension changes to the TRIPS agreement being sought fall under “outstanding implementation issues” as there is no specific mandate to negotiate them elsewhere in the Doha declaration. The Doha declaration requires member states to take up such issues as a “matter of priority by the relevant WTO bodies.”

110 Members Still Seeking a Voice

The group of 110 represents a strategic alliance between those most eager to see movement on GI issues – primarily Europe and Switzerland – and those most eager to see movement on the CBD issues – such as Brazil, India, Peru and much of the Africa Group. They have released a set of substantive and procedural steps to move negotiations on the three issues to a text basis in a document called “W/52,” available here [pdf].

These issues are an essential element of the Doha Round of trade liberalisation talks, say proponents. In particular, one proponent source said, the CBD amendment is critical to the Doha Round.

“The disclosure requirement would redefine who would benefit from IPRs while also addressing the issues of biopiracy,” a proponent nation official said. “Therefore there is resistance from some developed countries. There is a fundamental flaw in TRIPS that it recognises individual property while ignoring community property rights.”

The European Union continued this week to say that successful agreements on agriculture and non-agricultural market access – the two biggest issues on the table for the Doha talks – will have to include an outcome on the three IP issues, according to several sources.

Another proponent added that the current “W/52” proposal to move to negotiations is not an ambitious opening gambit to negotiations, but an already negotiated, compromise proposal for a way forward. The number of countries opposed to negotiating on the CBD and GI extension matters appears to be rather small, under 20.

Clarke called a meeting on Friday with a group of about 20 members. About half of the group support the W/52 document to move to negotiations on GI extension and CBD amendment along with the GI register. The other half support a separate proposal to negotiate only on the GI register, referred to as the Joint Proposal (available here [doc]). Hong Kong, which previously proposed a compromise approach [doc] that did not gain much support, also attended the meeting.

In the Friday meeting, according to one participant, a discussion was held on the part of the W/52 that pertains to the register, but some proponents took the view that the register portion of that document is more flexible because it was negotiated in the context of the other two issues, and therefore should not be separated out. The Joint Proposal group again rejected the parallelism, seeking to keep the negotiations focussed on the register for wines and spirits as mandated. That puts them at an impasse, that might only be overcome in the context of wider Doha negotiations, according to the source.

Meetings this week were spurred by a declaration of the Group of Twenty finance ministers and central bank governors of industrialised and emerging economies which promises to “strive to reach agreement this year on modalities that leads to a successful conclusion to the WTO’s Doha Development Agenda with an ambitious and balanced outcome” and adds “our countries have the largest stake in the global trading system and therefore each must make the positive contributions necessary to achieve such an outcome.”

One member of the coalition of 110 expressed hope for clarity on the wider Doha Round negotiations by early next week, which would then inform discussions on TRIPS.

William New contributed to this story.

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