WTO: Progress On IP At Last; Consensus Still Uncertain

By Kaitlin Mara
Delegates negotiating on intellectual property issues at the World Trade Organization were able to set aside procedural debates Friday and focus on substantive technical issues in the body tasked with creating a multilateral register for geographical indications on wines and spirits.

The European Union, in a marathon intervention, provided answers to over sixty questions on its GI register proposal. The questions were posed to it during the previous meeting on Thursday.

“For us,” an EU delegate told Intellectual Property Watch afterward, “all technical work has been done, and we are ready to take these issues to ministers next week.”

A proponent of an alternative, softer proposal for the GI register, called the joint proposal, was not as certain that all issues had been resolved, but agreed the meeting represented progress and declared the EU “ready to be engaged” on the issues.

The lingering doubt, explained the joint proposal proponent, stemmed from the fact that the EU had grouped its answers to the questions into three categories of issues, rather than answering them one by one. These categories are: consequences and legal effects of registration, as well as participation of member states (the most controversial areas); notification and registration of new GIs; and “other elements” depending on answers to the first two – such as how the registry will be funded and kept up-to-date. The three categories were set by a chair’s text published on 9 June which explained the technical disagreements on the GI register.

The June chair’s text is available here [pdf]. For details on Thursday’s discussions, and a more complete explanation of substantive issues on the GI register, see IPW, WTO/TRIPS, 5 December 2008.

The joint proposal group has requested a written version of the EU’s interventions, including details as to the correspondence between their responses and the joint proposal group’s questions so they can better evaluate which questions were answered and if further clarifications are needed, according to several sources.

Discussions of parallelism between the GI register and two other IP issues – the possibility of extending high-level GI protection to goods other than wines and spirits, and a proposal to amend the Trade-Related Aspects of Intellectual Property Rights Agreement to include provisions protecting biodiversity and genetic resources – were minimal and only occurred at the end of the meeting. By contrast, they had taken up much time at earlier negotiations.

There were, however, definitive statements Friday on the part of the parallelism proponents, including the EU, India, Switzerland and others, that all negotiations on the GI register are to be seen as part of a framework including all three IP issues.

One of the proponents of parallelism – also referred to as a W/52 cosponsor after the number of the document that calls for discussion of the three IP issues in tandem – told Intellectual Property Watch that the W/52 group still expects equal progress on outcomes of the three issues. But the official said they were able to focus on the GI register in this meeting because of a “clear understanding” with Lamy that there will be a process to discuss the three issues should a ministerial-level negotiating meeting be held.

The W/52 cosponsor further added that the last paragraph of the W/52 document, which emphasises special and differential treatment for developing countries, would be an integral part of negotiations on the three issues.

While a ministerial meeting is not certain, there is a chance WTO Director General Pascal Lamy could call a high-level decision-making gathering as soon as 13 – 15 December, according to sources. But this decision depends on the status of negotiations on the vital issues of agriculture and non-agricultural market access early next week.

Lamy has told W/52 cosponsors he will restart a negotiating process with Minister Jonas Støre of Norway acting on his behalf to seek consensus. Støre chaired debates between the sides on the three IP issues during the ministerial in July (IPW, WTO/TRIPS, 24 July 2008 and 25 July 2008).

Despite the high spirits at technical progress in the meeting, however, there are still definite divisions.

One delegate told Intellectual Property Watch that the United States had said during the meeting there was “no time now” to negotiate on any of the three IP issues, and had expressed hope instead to continue the discussions on the TRIPS matters next year, rather than resolve them before the possible ministerial, as the W/52 cosponsors want.

But a W/52 cosponsor told Intellectual Property Watch “there is no point” in making progress unless a stock-taking can be done by ministers to “at least agree on key parameters.”

Another W/52 cosponsor questioned the utility of raising such detailed questions so close to the possible ministerial, when really clarification is needed only on a handful of key issues – essentially participation requirements and potential legal effects of the register – and other questions either depend on that clarification or can be negotiated later.

“If you are really willing to enter into negotiations,” the source said, “you have all the elements.”

IP and Public Health

Meanwhile, also at the WTO this week a workshop was held on making use of existing flexibilities in the TRIPS agreement for 24 developing country officials. Part of the WTO technical cooperation and capacity-building programme, the workshop from 2 to 4 December intended to provide the officials with information on making best use of TRIPS flexibilities for public health purposes. In particular, an additional flexibility for developing countries was discussed that allows a country that produces a patented drug under compulsory licence to export it to a least-developed country that lacks the manufacturing capability and is in need. To date this flexibility has been used only once, by Rwanda importing drugs manufactured in Canada.

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