WTO IP Committee Addresses Medicines Access, Plain-Packaged Tobacco, ACTA

The World Trade Organization committee responsible for intellectual property rights issues is meeting this week and will address several items of potential debate, including a nearly unused 2003 provision for compulsory-licensed medicines exports to poor countries, a WTO member’s attempt to discourage smoking through unlabelled tobacco packaging, and IP enforcement raised by a small but potent group of WTO members who negotiated the Anti-Counterfeiting Trade Agreement (ACTA).

Also on the agenda of the 24-25 October meeting of the Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is the annual review of China’s 2001 accession to the WTO, which takes place at this time of year. Other WTO members usually have a few observations or questions for China on IP-related issues.

The TRIPS Council typically meets three times annually, with the October meeting usually the most substantive as it includes annual reviews.

The last TRIPS Council meeting on 7 June was brief (perhaps reflecting the recognition that the Doha Round of negotiations had just collapsed again), but there was a flare-up around Australian legislation aimed at curbing tobacco use (IPW, WTO/TRIPS, 16 June 2011). The draft legislation would have outlawed use of brands and trademarks on tobacco packaging. Concern was raised at the June meeting by the tobacco producing Dominican Republic and was put on this week’s agenda by Ukraine. Tobacco industry lobbyists became heavily involved in Geneva.

On enforcement, ACTA was raised a year ago by developing countries concerned about its impact on WTO activities, though they argue that compliance with enforcement issues are a matter for the WTO Dispute Settlement Body, not TRIPS. This year, it appears to be on the agenda from the (mostly developed) countries that negotiated the treaty, some of whom held a signing ceremony on 1 October (IPW, Bilateral/Regional Negotiations, 4 October 2011). The countries requesting the agenda item are: Australia, Canada, European Union, Korea, Japan, New Zealand, Singapore, Switzerland and the United States. As the TRIPS Council gathers, many of these countries have been in Peru concluding the latest round of intensive trade negotiations for a Trans-Pacific Partnership Agreement.

The review of the public health waiver is slated for the second morning of the two-day TRIPS Council. The August 2003 waiver to TRIPS, approved as a permanent amendment to TRIPS in December 2005, is under review. Under paragraph 6 of the 2001 Doha Declaration on TRIPS and Public Health, it was agreed that members would solve an overlooked problem in the TRIPS Agreement. The problem was that compulsory licences – for production of cheaper generic versions of pharmaceuticals without the patent holder’s permission – were allowed under TRIPS only for predominately the domestic market of the generic producer. But many smaller WTO members lack the manufacturing capacity to do this. So a waiver was agreed allowing other countries to produce the cheaper drugs under compulsory licence for export to those countries lacking manufacturing capacity. But it has only been used once, by Canada and Rwanda. There is disagreement over whether this represents a failure of the provision. The waiver was subject of a review at the October 2010 TRIPS Council meeting (IPW, WTO/TRIPS, 29 October 2010).

Additional agenda items include ongoing issues related to geographical indications (GIs – product names with special characteristics derived from places), biological diversity, and technical cooperation and technology transfer.

On GIs, the mandate to establish a register for GIs on wines and spirits (which receive a higher level of protection than other products) was intensively discussed in the spring when the Doha Round was still going strong (IPW, 21 April 2011, WTO/TRIPS). This week, there will be a review under TRIPS Article 24.2 of the provision for higher level protection for wines and spirits.

On the CBD, there is an outstanding proposal to amend TRIPS to require the disclosure of origin of genetic resources in patent applications, as an attempt to curb perceived biopiracy in developing countries. The CBD proposal and a proposal to extend high level GI protection to other products beyond wines and spirits are handled in special consultations under WTO Director General Pascal Lamy. The issue of patentability of life forms has been contentious in recent past TRIPS Council meetings (IPW, WTO/TRIPS, 2 March 2011).

Development issues also are on the agenda, reflecting the fact that the WTO membership is mostly developing countries with little intellectual property. There is the annual review of TRIPS Article 66.2, under which developed countries are supposed to provide incentives for the transfer of their technologies to developing countries. There also is a discussion of technical cooperation and capacity-building for least-developed countries which is related to an extension of the deadline for them to implement the TRIPS agreement, and a reference in the agenda to objectives and principles that ensure fairness for developing countries and a development dimension in the TRIPS Council’s work.

A final item that has been sensitive in the past is a moratorium on the use of a non-violation clause sought by developed countries. The clause could be used if a member deems that another member’s actions caused an unexpected loss of benefits, even if there is no violation of a WTO agreement. Developing countries are wary of this provision and the moratorium on its use may be up for renewal at the December 2011 WTO ministerial.