In this regard, the study shows that IP debates, often pictured as opposing those holding anti-IP views in the South to those supporting pro-IP maximalist views in the North, are in reality more complex and nuanced. IP professionals appear loosely organized in transnational networks where professional affiliation is more important in shaping views on IP than country of birth.

The study also emphasizes the important role of higher education and capacity building in the transmission of IP ideas and beliefs. It finds that university education in a developed country is more likely to result in stronger support for a more balanced approach to IP protection and it suggests that capacity building programs might be more effective if they are supported by empirical evidence.

This study by Antoine Dechezleprêtre, a Research Fellow at the Grantham Institute on Climate Change and the Environment at the London School of Economics (LSE), is the first empirical analysis of these programmes.  Fast-tracking procedures - which allow applications to be examined and granted at a faster pace than regular patent applications - enable applicants to start licensing their technologies sooner and reach the market more rapidly.

Green fast-tracking programmes can reduce the time from application to the grant of a patent by 42-75 percent, the study finds.  Climate change-related technologies - particularly renewable energy technologies - represent the vast majority of patents in these programmes.

The study also finds that there is a clear demand for these procedures, especially from small start-up companies in the green technology sector. Fast-tracked patents are also of significantly higher commercial value than other green patents not requesting accelerated examination. Finally, the study shows that - in the short run - fast-tracking programmes have accelerated the diffusion of knowledge regarding green technologies.

Genetic resources - defined by the document as genetic material of actual or potential value - are commonly used in patentable inventions, such as pharmaceutical products. Traditional knowledge is often linked to genetic resources as “associated traditional knowledge,” such as the healing properties of a plant, for example. Many biodiversity-rich countries and indigenous communities are concerned about the misappropriation of such resources and knowledge, which could be used to obtain a patent without their prior consent and without having adequate access and benefit-sharing mechanisms in place.

The Intergovernmental Committee on Genetic Resources, Traditional Knowledge, and Folklore (IGC) was created in 2000. Last year, WIPO’s General Assemblies renewed the committee’s mandate to work on text(s) for an international legal instrument(s) aimed at ensuring the effective protection of genetic resources, traditional knowledge, and traditional cultural expressions. The work would be divided into three thematic sessions to deal with the respective topics.

The last thematic session is scheduled for July, and will be extended in order to review and take stock of the draft text(s). Members will then make a recommendation to the September General Assembly, which will ultimately decide whether to convene a diplomatic conference. (See Bridges Weekly 15 October 2012)

This past week’s session focused solely on genetic resources, an area in the IGC’s work that has not witnessed the same progress as the two other areas. At the end of the session, IGC Chair Ambassador Wayne McCook of Jamaica compared the committee’s work to a relay race - a sport his fellow countrymen excel in - reminding delegates that the most significant part is the change of the baton.

“[In a relay], much can be lost after much has been gained,” he warned.

Countries still at odds over disclosure

Though the new consolidated document shows a cleaner text with agreement on some areas - such as certain definitions - this latest version remains riddled with brackets, due to members’ disagreements over some key elements.

The biggest point of contention is over a mandatory disclosure requirement in patent applications regarding the origin of genetic resources and associated traditional knowledge. Proponents say that such a measure would prevent erroneous patents from being granted and ensure that adequate access and benefit-sharing provisions are in place.

In a statement supported by several delegations, Brazil suggested that the discussion focus on mandatory disclosure requirements and their basic elements. This, Brazil explained, would ensure that the instrument under discussion be consistent with the Convention on Biological Diversity and its Nagoya Protocol, which regulates access to genetic resources and the fair and equitable sharing of the benefits that arise from their use.

“We were told when we were negotiating Nagoya that the place to discuss disclosure is the IGC, so it is unacceptable that our negotiating partners are not willing to discuss it here,” Namibia said.

The US, meanwhile, reiterated its view that it “do[es] not support the use of the patent system to ensure compliance with the disclosure of the source of genetic resources.”

“In order to incentivise innovation the requirements placed on the patent applicant must not be burdensome,” the US delegate added.

Joint recommendations stir up heated debate

Also during last week’s meeting, the US, Canada, Japan, Norway, and South Korea re-submitted a proposal for a joint recommendation without a mandatory disclosure requirement that sets non-binding general guidelines for the protection of genetic resources and associated traditional knowledge. The proposal was presented at last February’s IGC session, but had not been discussed in detail. (See Bridges Weekly 22 February 2012)

The US called the re-submitted joint recommendation a “confidence-building measure” to help the IGC move forward, saying that it captures key objectives and facilitates the establishment of mechanisms for protecting genetic resources and associated traditional knowledge.

However, the proposal was met with resistance by many developing countries. South Africa, for one, said they “welcomed the move towards confidence-building, but the content does not even meet the minimum requirements of the demandeurs,” namely disclosure and a legally binding treaty.

Many countries also pointed to the lack of clarity regarding how the joint recommendation would fit into the negotiating process for an international legal instrument. At this stage, Nigeria said, discussing the joint recommendation could be considered an “unnecessary diversion of resources.”

The same group of countries - with the exception of Norway - also presented a proposal for the terms of reference for a WIPO study on measures related to the avoidance of the erroneous granting of patents and ensuring compliance with existing access and benefit-sharing systems.

Another proposal by the same group called for a joint recommendation on the use of databases for the defensive protection of genetic resources and the associated traditional knowledge. Proponents say that databases would help patent examiners find relevant prior art and avoid the granting of erroneous patents. Many developing countries, however, see databases as only complementary to other measures, such as disclosure.

“How do the proponents of this measure see the databases populated if not through disclosure?,” Namibia asked in the plenary.

The proposals were not included in the consolidated document. For the European Union, however, these other documents “remain relevant and on the table.”

The next session of the IGC is scheduled for 22-26 April 2013 and will focus on traditional knowledge.

ICTSD reporting.

The case, which dates back to 2003, pitted one of the world’s smallest economies against the largest, and was seen by some as a test of the WTO dispute system’s ability to empower small countries to take effective trade sanctions against their more powerful trading partners.

WTO dispute panels and the Appellate Body have, in a series of decisions, agreed with Antigua’s complaint that the US’ internet blocking of overseas operators is in violation of Washington’s commitments to liberalise its “recreational services” sector under the WTO General Agreement on Trade in Services (GATS).Since the US failed to comply, Antigua was authorised to retaliate by US$21 million, which was deemed to be the amount that the Caribbean country lost through the US’ trade barrier. (See Bridges Weekly, 16 January 2008)

Multilateral trading rules provide for countries to ordinarily retaliate under the specific WTO agreement that has been violated - that is, sanctions against goods when merchandise trade is at issue, services for services, and so forth. However, if this is unlikely to be effective, they allow governments to “cross-retaliate” against other sectors, such as IP. This option has never been tested by any WTO member, raising questions regarding how to put it into practice, especially when a country targets intangible products with its retaliation.

A 2009 ICTSD study by Professor Frederick Abbot had found that, in general, valuing the suspension of concessions in IP was “not an obstacle to building a successful cross-retaliation programme,” noting also that businesses and investment analysts “value IP assets routinely and in fairly precise ways.” [Editor's note: ICTSD is the publisher of Bridges.]

Antigua and Barbuda did not clarify at Monday’s DSB meeting which specific retaliatory measures it intends to adopt. For one, Mark Mendel - one of Antigua’s representatives in the dispute - stated that a website allowing downloads at a minor price is an “intellectual possibility.” In that case, no royalties would be paid to the US industry, and downloads could be stopped when the threshold of US$21 million in income for Antigua is reached.

“We are in the process of assessing our options, analysing the legal issues and developing a scheme for imposing the suspension of concessions and other obligations approved by the DSB,” Antigua and Barbuda said at Monday’s meeting.

However, the island state left a door open to a possible settlement, specifying that they “stand ready and eager to find a fair solution to the dispute” and encouraged the US to act promptly to avoid the consequences of retaliation.

The US, in return, warned that if Antigua proceeds “with a plan for its government to authorise the theft of intellectual property, it would only serve to hurt Antigua’s own interests.”

“Government-authorised piracy would undermine chances for a settlement that would provide real benefits to Antigua,” the US concluded.

For its part, Antigua and Barbuda rebutted any accusation of “piracy,” explaining that it is “doing precisely what it has earned the right to do under international agreements.”

Should the Caribbean state decide to retaliate, Antigua and Barbuda will only have to notify the WTO secretariat of the details of the future sanctions before putting them into practise, without any further authorisation by the DSB.

Retaliation preferred over compensation?

From the outset of the dispute, Washington has maintained that it never meant to open its market to cross-border gambling when scheduling its commitments during the Uruguay Round, and thus should not be penalised. Hence, in 2007 the US controversially decided to invoke rarely-used procedures under the GATS to modify its multilateral liberalisation commitments and explicitly exclude internet gambling.

Following GATS rules, the US entered into bilateral negotiations to compensate trading partners negatively affected by the change of commitments - including large economies such as the EU, Japan, and Canada.

The US reached agreement with all interested members except Antigua and Barbuda, which requested arbitration in 2008 to determine the amount of compensation but refrained from moving ahead with the dispute by actually appointing the panellists.

Negotiations, however, continued. The small island state consistently argued that additional market access in other areas was unlikely to bring relief to its economy, given that the gambling industry was once responsible for five percent of the country’s employment. Instead it suggested a joint regulatory oversight structure for off-shore gambling as one option to address the US’ alleged moral difficulties as well as its own economic interests.

“Antigua insists that the United States must maintain its unintentional concession on gambling, and that the United States must change its domestic policies concerning public morals and public order so as to allow internet gambling,” the US said on Monday.

The US added on Monday that it has offered “real and substantial benefits that would make important contributions to the further development of the Antigua economy” in order to settle the dispute.

Antigua and Barbuda, in turn, argued that “a major economy cannot avoid the consequences of an adverse DSB ruling by withdrawing a commitment in a manner that ostensibly ‘balances’ global trade by accommodating other affected members but provides no benefit or compensation to the prevailing party in the dispute.”

“The possibility that at the end of the day the United States may avoid any liability to Antigua and Barbuda by simply re-writing its trade obligations after the fact, leaves us wondering if there is anything for small economies at the WTO,” Antigua and Barbuda concluded.

ICTSD reporting.

The resolution is based on a report by French member of the European Parliament (MEP) Catherine Grèze, which had previously been adopted by the parliamentary Committee on Development.

“There is a strong case for protecting traditional knowledge, particularly when it is associated with genetic resources of economic value to industry,” Parliament members explained, stressing the need for preventing the negative effects of the intellectual property (IP) system on indigenous peoples’ application of traditional knowledge, and their ability to use that knowledge in relation to genetic resources.

Most genetic resources’ providers and traditional knowledge holders are from developing countries, with 70 percent of the world’s poor depending directly on biodiversity for their subsistence.

“The report adopted today outlines the problem and sets out measures to protect the intellectual property rights for genetic resources and traditional knowledge in poorer countries and regions,” Grèze noted after the vote.

According to the resolution, the misappropriation of genetic resources is often caused by the lack of national regulations in biodiversity-rich countries and the absence of compliance mechanisms in countries that use genetic resources. A binding legal instrument would help mitigate that situation, Parliament members said.

The resolution also urges the EU and its member states to call for swift ratification of the Convention on Biological Diversity’s (CBD) Nagoya Protocol, which focuses on access to genetic resources and the fair and equitable sharing of the benefits that arise from their use.

Although non-binding, a resolution has political relevance for European institutions, given that it indicates the political orientation of MEPs regarding specific topics within and outside the EU.

LDC trade deals should avoid “far-reaching” IP standards

The resolution also calls on the EU to avoid from pushing developing countries, particularly least developed countries (LDCs), into accepting far-reaching IP standards in future bilateral and regional trade pacts particularly regarding seeds and medicines.

Notably, it says that such future agreements that aim “at harmonisation, and in particular those concerning the scope of exceptions and limitations to patent rights, will require careful scrutiny from a development perspective.”

At the multilateral level, a coherent international governance system on intellectual property rights (IPRs) and genetic resources is also important, the resolution says. Since 2001, the WTO’s Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) has been mandated to address the relationship between the organisation’s TRIPS Agreement and the CBD.

“International IP arrangements, notably the WTO’s TRIPS agreement, must be reformed to ensure they support the overarching goals of the CBD on genetic resources, rather working against them,” Grèze concluded.

In order to align TRIPS with the CBD and the Nagoya Protocol, developing countries have proposed that the WTO agreement be amended with an article requiring that patent applicants disclose the origin of genetic resources and associated traditional knowledge in their inventions, as well as provide evidence of prior informed consent and benefit sharing with communities.

The resolution calls upon the EU to support the amendment, while adding that such requirements could also be introduced via a new international legal instrument(s) - a topic that is currently under discussion at the World Intellectual Property Organization’s (WIPO) Intergovernmental Committee on Genetic Resources, Traditional Knowledge, and Folklore (IGC).

The IGC is next slated to meet from 4-8 February in Geneva and will focus on genetic resources.

ICTSD Reporting.

The resolution is based on a report by French member of the European Parliament (MEP) Catherine Grèze, which had previously been adopted by the parliamentary Committee on Development.

“There is a strong case for protecting traditional knowledge, particularly when it is associated with genetic resources of economic value to industry,” Parliament members explained, stressing the need for preventing the negative effects of the intellectual property (IP) system on indigenous peoples’ application of traditional knowledge, and their ability to use that knowledge in relation to genetic resources.

Most genetic resources’ providers and traditional knowledge holders are from developing countries, with 70 percent of the world’s poor depending directly on biodiversity for their subsistence.

“The report adopted today outlines the problem and sets out measures to protect the intellectual property rights for genetic resources and traditional knowledge in poorer countries and regions,” Grèze noted after the vote.

According to the resolution, the misappropriation of genetic resources is often caused by the lack of national regulations in biodiversity-rich countries and the absence of compliance mechanisms in countries that use genetic resources. A binding legal instrument would help mitigate that situation, Parliament members said.

The resolution also urges the EU and its member states to call for swift ratification of the Convention on Biological Diversity’s (CBD) Nagoya Protocol, which focuses on access to genetic resources and the fair and equitable sharing of the benefits that arise from their use.

Although non-binding, a resolution has political relevance for European institutions, given that it indicates the political orientation of MEPs regarding specific topics within and outside the EU.

LDC trade deals should avoid “far-reaching” IP standards; global governance system needed

The resolution also calls on the EU to avoid from pushing developing countries, particularly least developed countries (LDCs), into accepting far-reaching IP standards in future bilateral and regional trade pacts particularly regarding seeds and medicines.

Notably, it says that such future agreements that aim “at harmonisation, and in particular those concerning the scope of exceptions and limitations to patent rights, will require careful scrutiny from a development perspective.”

At the multilateral level, a coherent international governance system on intellectual property rights (IPRs) and genetic resources is also important, the resolution says. Since 2001, the WTO’s Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) has been mandated to address the relationship between the organisation’s TRIPS Agreement and the CBD.

“International IP arrangements, notably the WTO’s TRIPS agreement, must be reformed to ensure they support the overarching goals of the CBD on genetic resources, rather working against them,” Grèze concluded.

In order to align TRIPS with the CBD and the Nagoya Protocol, developing countries have proposed that the WTO agreement be amended with an article requiring that patent applicants disclose the origin of genetic resources and associated traditional knowledge in their inventions, as well as provide evidence of prior informed consent and benefit sharing with communities.

The resolution adopted last week calls upon the EU to support the amendment, while adding that such requirements could also be introduced via a new international legal instrument(s) - a topic that is currently under discussion at the World Intellectual Property Organization’s (WIPO) Intergovernmental Committee on Genetic Resources, Traditional Knowledge, and Folklore (IGC).

The IGC is next slated to meet from 4-8 February in Geneva and will focus on genetic resources.

ICTSD reporting.

The decision to convene the diplomatic conference - the highest level of negotiations at WIPO - was taken at the 17-18 December extraordinary session of the organisation’s General Assembly.

According to the World Blind Union (WBU), there are 285 million blind and partially sighted people worldwide - 90 percent of which live in developing countries and least developed countries (LDCs). However, they note, only one to seven percent of the world’s published books are ever available in formats that blind and partially sighted people can read.

The treaty would allow visually impaired readers access to works that would be normally unavailable to them under national copyright laws or cross-border regulations. It would also mark the first time WIPO members adopt a legal instrument on limitations and exceptions to copyright in recent years.

Morocco has offered to host the conference, which will be held in June 2013.

Consensus on diplomatic conference

The decision to finalise the treaty comes after four years of controversial negotiations at WIPO’s copyright body, the Standing Committee on Copyright and Related Rights (SCCR).  Member states at the SCCR had previously butted heads on whether such a legal instrument should be a legally binding treaty or if it would take the form of a softer option, such as a joint recommendation. (See Bridges Weekly 24 October 2012)

“It’s time for us to get down to action, to work constructively in order to produce a positive outcome,” Benin said on behalf of the LDCs. “In a wish to promote justice and equity and fairness, we must ensure that access to knowledge is shared by all and access to education is available to all.”

“After so many years, there is hardly any reason for any Member State to say no to June 2013,” Brazil added on behalf of the Development Agenda Group - a coalition of WIPO like-minded countries supporting a development-oriented perspective on IP issues.

The US - who had previously been lukewarm to launching negotiations for a treaty - also expressed in broad terms its support for the decision.

“We are pleased to join the consensus today in calling for a Diplomatic Conference in June 2013 to complete this work and produce a legally-binding agreement to establish international norms for copyright exceptions for persons with print disabilities,” the US stated.

On this point, the WBU commented that “though [we] would prefer to hear the word “treaty” [in the US' statement], we note that a treaty is a ‘legally binding agreement’ and trust that the USA will work to agree a treaty in 2013.”

Treaty negotiations: End stages of “marathon”

In their opening statements, some delegates raised their concerns on the draft text’s level of maturity, as the current document still contains bracketed text and alternatives on which WIPO members have yet to reach consensus.

The EU, for one, “considers that it is necessary to find an agreement on some remaining key issues before a successful diplomatic conference takes place.” The EU specifically highlighted the lack of consensus on provisions concerning technological protection measures and cross border exchange of accessible format copies as topics that should be resolved ahead of the June conference.

The US backed the EU’s position, supporting “a final review to ensure that in our assessment we are all in a position for a successful diplomatic conference next summer.”

On the other hand, many delegations - including developed countries such as Switzerland - argued that no conditions should be put on the convening of the conference, despite the outstanding nature of some issues.

“We are in the last ten minutes of a marathon here,” Morocco said, pressing members to move forward with a sense of urgency in the months ahead. “We can show that we can be flexible and that we’re not going to tie the convening of this conference to conditionalities.”

Rightsholder organisations groups similarly welcomed the decision to hold the June conference. “It is a very good decision that took surprisingly long time to elaborate,” Carlo Scollo Lavizzari of the International Association of Scientific, Technical & Medical Publishers (STM) said. “But [the slow process] reflects the fact that some work is needed to get this into shape and it will still be an intense period between now and June.”

The SCCR will meet in a five-day extraordinary session in February to clear up some of the areas of disagreement in the current draft text. The Assembly also agreed to set up a preparatory committee to settle the modalities of the diplomatic conference and establish whether more work is needed to ensure the conference’s success.

ICTSD reporting.