Issues Of Interest To IP Community Abound At WTO Ministerial

Despite the low-key role of intellectual property rights issues at this week’s World Trade Organization ministerial, there is plenty to think about for the IP community.

The global centrepiece for IP and trade policy is the 1994 WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Among the topics under consideration in the 15-17 December WTO Eighth Ministerial in Geneva is extension of the deadline for least-developed countries to enforce TRIPS, and extension of a moratorium on non-violation complaints under TRIPS. Also possible is acknowledgement of the recent extension by the General Council of the deadline for a majority of WTO membership to adopt a TRIPS amendment on public health.

In addition, other items to consider are the annual report of the Council on TRIPS, the final report on the first 10 years of China’s accession to the WTO, the new agreement on Russian accession to take place next year, and a continuation of agreement not to use customs duties on electronic commerce. There are also potentially issues such as enforcement or technology transfer, as well as more tangential issues related to goods and services, including food security and environmental technologies.

The next WTO ministerial is expected in 2013. [corrected]

Official documents for the 8th ministerial are available here. The annual report of the TRIPS Council, from November, is document IP/C/59 [doc].

Non-Violation Complaints

The non-violation discussion arose in TRIPS Article 64.3, which called for the TRIPS Council to examine the scope and modalities of non-violation and situation claims after five years. The provision arose from the General Agreement on Tariffs and Trade (GATT) of 1994. It allows a country to complain about the “nullification or impairment” of the reasonable expectations of benefit due to the action of another country.

The WTO TRIPS Council recently recommended the extension of the moratorium (IPW, WTO/TRIPS, 17 November 2011). The TRIPS Council recommendation on the non-violation extension is document IP/C/59/Add.1 [doc].

WTO document IP/C/W/349/Rev.1 [pdf] from 24 November 2004 is the reference point for discussion on this issue. Developing countries have been wary of the potential use of the measure to interfere with sovereign actions.

At the end of the five-years called for under TRIPS Art. 64.3, a report, IP/C/W/124 [doc], was created, highlighting member experiences with the clause.

GATT 1994 Art. XXIII states:

“1. If any contracting party should consider that any benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired or that the attainment of any objective of the Agreement is being impeded as the result of:
(a) the failure of another contracting party to carry out its obligations under this Agreement, or
(b) the application by another contracting party of any measure, whether or not it conflicts with the provisions of this Agreement, or
(c) the existence of any other situation,
the contracting party may, with a view to the satisfactory adjustment of the matter, make written representations or proposals to the other contracting party or parties which it considers to be concerned. Any contracting party thus approached shall give sympathetic consideration to the representations or proposals made to it.”

Violation complaints make up the vast majority of dispute cases at WTO. Non-violation issues were raised in several cases in the 1990s, such as by the United States in a case against India claiming that the absence of patent protection for pharmaceutical and agricultural products. [Clarification: the US-India patent case was a violation case. Non-violation was only mentioned.]

Extension of TRIPS for LDCs; Public Health Amendment

At least two other issues for the ministerial relate to the TRIPS agreement. One is the extension of the deadline for least-developed countries to put TRIPS into force. LDCs were given until 2013 to enforce TRIPS, but continue to lag in identifying areas of need in order to get there. The TRIPS Council last month asked the ministerial to send a message to allow extension of the period for LDCs to finish preparations for TRIPS (IPW, WTO/TRIPS, 17 November 2011).

The reference document for the LDC extension is IP/C/59/Add.2 [doc].

[Note: according to WTO sources, the TRIPS amendment is not officially on the ministerial agenda.] The other item is the extension of the deadline for two-thirds of the WTO membership to ratify the 2005 amendment to TRIPS that enshrines a temporary public health waiver. The waiver was aimed to boost exports to countries lacking drug manufacturing capacity of affordable medicines produced under compulsory licence. The WTO General Council and TRIPS Council both recently approved this deadline extension to 31 December 2013 (IPW, WTO/TRIPS, 1 December 2011).

The TRIPS public health amendment was the negotiated solution to Paragraph 6 of the 2001 Doha Declaration on TRIPS and Public Health. It was agreed on a temporary basis on 30 August 2003 and agreed as a permanent amendment at the WTO ministerial in Hong Kong in December 2005. It has only been used once so far. The Doha Declaration was the object of discussion and celebration on its 10 year anniversary at the WTO recently (IPW, WTO/TRIPS, 24 November 2011).

The reference document for the health amendment issue is IP/C/61 [doc], which is the TRIPS Council annual review of the Paragraph 6 implementation.

China Review; Russian Accession

The final annual review of China’s compliance with the TRIPS agreement, as agreed under its accession terms in 2001, is mentioned in document IP/C/60 [doc]. The TRIPS Council chair was to make a report the General Council on the issue as well. Developed country members have been critical of aspects of China’s TRIPS enforcement after 10 years. For instance, the US Trade Representative’s report is available here.

And IPR issues abound in the Russian accession, as one of the key hurdles to its acceptance. Upon accession, expected in mid-2012, Russia will be expected to implement the TRIPS agreement (IPW, WTO/TRIPS, 10 November 2011).

On Russia, the document before the ministerial is the report of the Working Party on the Accession of the Russian Federation to the WTO, document WT/ACC/RUS/70 (pages 309-343 concern IP), along with the Protocol on Accession (which will incorporate certain commitments referred to in the working party report), according to sources.

E-Commerce Customs Duties

Ministers are expected to approve an extension of a moratorium on customs duties on e-commerce, with an eye toward reinvigorating the e-commerce activity of the WTO. Details are found in the November General Council meeting document WT/GC/W/645 [doc].

General IP-Related Issues of Concern

Intellectual property rights cut across many issues, and there are several looming that could come up during the ministerial. For instance, concerns about access to medicines frequently arise in the trade context, and there have been concerns in the past about customs seizures of legitimate generic medicines.

In addition, food security contains an IP element, like medicines as a possible restriction to easy access, including limited access to renewable seeds and higher prices. But WTO Director General Pascal Lamy today lashed out in a letter at the assertion by the UN Human Rights Council Special Rapporteur on the Right to Food that WTO negotiations are harming food security.

Similar concerns have been raised in relation to trade in environmental technologies.

And another longstanding negotiating topic of the WTO, geographical indications (products named after places or with special regional characteristics), may not be a primary issue this time, though members have been under mandate since the 2001 ministerial to agree on a register for GIs. The GI issue is actually the subject of discussion this week at the nearby World Intellectual Property Organization, where a new proposal has been put forward, possibly because of the lack of progress at the WTO.

It is possible that in a ministerial with little actual negotiating to do, ministers may have an opportunity to look at the bigger picture of trade and its relation to the main elements of society. And in doing so, they come across issues of IP.

Separately, there are a variety of side events and smaller government meetings taking place around the ministerial. For instance, the Council of the European Union was said to have approved the plurilateral Anti-Counterfeiting Trade Agreement (ACTA) today.

Also, a guide was released this week by an industry-EU partnership that is aimed at helping developing countries use GIs (IPW, Trademarks/Geographical Indications/Domains, 10 December 2011).

And on 16 December at the WTO building itself (note: the ministerial will be held at the nearby Geneva CICG conference center), Knowledge Ecology International will hold a meeting on “The TRIPS Agreement and Copyright.” The agenda is as follows:

“Hannu Wager, World Trade Organization: What does the 3-Step test for copyright mean, in the context of the WTO TRIPS Agreement, and how does it differ from the 3-Step tests for trademark or patent rights.

James Love, Knowledge Ecology International: Is there a need to redefine the TRIPS 3-Step test for copyright

TRIPS and remedies for copyright infringement – James Love, KEI: What is the flexibility in Article 44 of the TRIPS for implementing liability rules for access to copyright, outside of the 3-Step test?

TRIPS and the Appendix the Berne Convention – Viviana Munoz, South Centre: Are the copyright flexibilities under TRIPS referenced Appendix to the Berne Convention sufficient to address concerns about access and development in an era of enhanced enforcement of copyright?”