Bridges Weekly Trade News Digest • Volume 11 • Number 42 • 5th December 2007
Countries Step Up Demands On Gi Extension, Disclosure
Two groups of countries this week proposed text for clauses in a potential Doha Round framework deal that would aim to alter WTO intellectual property rules for patent applicants whose inventions involve biodiversity, and strengthen protections for foods linked to particular places.
Both of the proposals, presented on 3 December during informal consultations with WTO Deputy Director-General Rufus Yerxa, address so-called ‘implementation issues’ under the WTO Agreement for Trade-related Aspects of Intellectual Property Rights (TRIPS). However, WTO Members remain divided on both issues.
Geographical indication extension
The "friends of geographical indications," a group of countries led by the EU and Switzerland, want the modalities decision to say that "Members agree to the extension" of an extra level of TRIPS protection for geographical indications to all products, not just wines and spirits. These rules (Article 23) currently prevent the use of geographical indications such as Champagne for wines and spirits not from the region in question, even when the real origins of a product are clearly displayed for consumers, for example, through the use of expressions such as "type," "style," or "imitation." With GI extension, it would become forbidden to sell, say, a ‘Gruyère-style’ cheese.
The EU and Switzerland, along with developing countries such as India, Jamaica, Kenya, Pakistan, Thailand and Turkey, have long pushed for securing this additional protection for products such as Parma ham or Darjeeling tea. The EU and Switzerland have suggested that increased price premiums for GI-protected products could help compensate their farmers for subsidy and tariff cuts resulting from the Doha Round.
Other Members, however, including Australia, Canada, Argentina, the US, and South Africa, question the need for such additional protection, concerned about negative impacts on a range of products. These countries have called for additional technical discussions and consultations before moving forward with negotiations.
Disclosure group reiterates demands
The paragraph of text put forward by the "disclosure group," which counts among its members a large number of developing and least-developed countries, would have "Members agree to the inclusion in the TRIPS Agreement of a mandatory requirement for the disclosure of origin of biological resources and/or associated traditional knowledge in patent applications." Patent applicants would also have to provide proof of prior informed consent and benefit-sharing.
Countries including Brazil, India, China, Peru, Thailand, Uganda, and South Africa have proposed text for a TRIPS amendment, which was signed on to more recently by the African Group and the group of least-developed countries. These countries consider a disclosure requirement necessary to avoid the granting of ‘bad’ patents that use biological resources or traditional knowledge without proper recognition or recompense. Preventing ‘biopiracy’ of this sort is important for ensuring a mutually supportive relationship between the TRIPS Agreement and the Convention on Biological Diversity. The CBD, the most important international agreement on biodiversity, recognises the sovereign rights of states over their natural resources, and requires access to genetic resources to occur only on the basis of mutually agreed terms and equitable sharing of benefits.
The EU and Switzerland agree that disclosure is important, but have proposed alternatives that do not go as far as the disclosure group’s TRIPS amendment with the threat of patent revocation. Other countries, including Argentina, Costa Rica, Japan, Canada, and Australia, continue to oppose introducing disclosure requirements in the TRIPS Agreement.
Way forward on outstanding implementation issues
The two proposals, intended to be part of a future "horizontal modalities decision" - a broad framework deal on issues including agriculture and industrial goods trade that Members are now hoping to strike in early 2008 - provide for countries to agree in principle to each of the concepts. Negotiations in Special Sessions of the TRIPS Council would flesh out specific details about how GI extension and mandatory disclosure requirements would operate, the texts said.
Part of the problem is differing interpretations among members about the status of ‘outstanding implementation issues’ like GI extension and disclosure in the Doha round. Paragraph 12 of the Doha Declaration stated that "negotiations on outstanding implementation issues shall be an integral part" of the Doha work programme. Thus, some Members suggest that these issues are already part of the negotiations, while others say that a specific decision by all Members would be necessary for negotiations on them to start.
At the WTO’s Hong Kong summit in 2005, ministers asked WTO Director General Pascal Lamy to intensify a consultative process on these outstanding implementation issues and to report to Members for appropriate action. Despite the new proposals, the persistent divide on the two issues means that an acceptable way forward remains unclear.
ICTSD reporting.