Bridges Weekly Trade News Digest • Volume 10 • Number 36 • 1st November 2006
TRIPS Council Discussions Fall Apart Over Enforcement Issue
The WTO Council for Trade-related Aspects of Intellectual Property (TRIPS) met on 25-26 October for the first time since the collapse of the Doha Round without making substantive progress in the ongoing discussions. The special (negotiating) session of the TRIPS Council remains suspended. The issue of enforcement proved especially controversial. In particular developing countries opposed the EU’s initiative to introduce the topic in the Council, arguing that this was an issue subject to domestic jurisdictions alone.
Other issues discussed included progress on the acceptance and implementation of the 2005 TRIPS amendment on public health, and the relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD).
The Council also took up the transitional review of China’s implementation of its TRIPS obligations (see related story, this issue).
Clash on enforcement issues
Fundamental differences persisted among Members during debates on the enforcement of intellectual property rights (IPR). These discussions are being driven largely by the EU which has been pushing for the implementation of effective measures to enforce IPRs at the regional and international levels, for instance through the EU Directive on criminal measures aimed at ensuring the enforcement of IPRs and proposals in the TRIPS Council.
In a paper submitted jointly with the US, Switzerland and Japan, the EU highlighted the need for intervention from the TRIPS Council to assist efforts to curb the rapid increase in piracy and counterfeiting world wide. While the EU recognised that Members are allowed to implement suitable enforcement provisions domestically, it felt that such measures must ultimately help to achiev the objectives of the TRIPS Agreement. The EU has previously submitted a paper (IP/C/W/448) suggesting that the Council should assess Members’ compliance with the TRIPS Agreement’s enforcement provision (see BRIDGES Weekly, 22 June 2005).
During the Council meeting, several developing countries, including China, Chile, India, South Africa, Argentina and Brazil, strongly opposed the initiative and objected to a presentation by the EU on its experiences, which they felt would amount to implicitly accepting the EU’s proposal to share country experiences. The developing countries felt that enforcement was an issue outside the scope of the TRIPS Agreement. Referring specifically to Article 1.1 of the TRIPS Agreement, which stipulates that Members are free to determine the appropriate method to implement the TRIPS Agreement’s provisions, they argued that discussing enforcement in the TRIPS Council would mean restraining countries’ flexibility to draft domestic legislation on this issue.
Slow progress on ratifying and implementing of public health waiver
At the meeting, Switzerland and El Salvador announced that they had accepted (ratified) the public health amendment to the TRIPS Agreement. The amendment would make permanent the decision adopted in 2003 which waives certain TRIPS obligations to allow Members to export drugs produced under compulsory licence subject to various conditions (see BRIDGES Weekly, 7 December 2005). The two ratifications bring the number of countries who have accepted the waiver to three (in addition to the US). Kenya said it was in the process of ratifying the amendment. The decision will be formally built into the TRIPS Agreement once two thirds of the WTO membership has ratified the change. The TRIPS Council Chair Ambassador Trevor Clarke of Barbados urged Members to step up ratification of the amendment.
For the waiver to be operational (i.e. to allow a country to export or import), countries will need to incorporate the waiver into their national legislations. So far, Norway, India, the EU, Netherlands, Norway, Korea and Canada — all pharmaceutical exporters — have done so. Canada announced at the meeting that it was in the process of reviewing its ‘access to medicine’ legislation to examine how it could be improved. Among the importing countries, Kenya sought technical assistance to help incorporate the waiver into its national legislation.
Discussions on preventing misappropriation of genetic resources continue
Member states again picked up discussions on the potential conflict between the TRIPS Agreement and the CBD. Developing countries have proposed an amendment to the TRIPS Agreement to incorporate requirements for disclosure of the origin of genetic resources and associated traditional knowledge in patent applications along with evidence of prior informed consent and ensure benefit sharing (BRIDGES Weekly, 7 June 2006). Despite featuring as a permanent agenda item in the Council, discussions on this topic have not as yet resulted in any significant outcome.
At this meeting, Peru (IP/C/W/484) responded to questions by the US (IP/C/W/469) regarding its earlier paper that had highlighted several ‘biopiracy’ cases (IP/C/W/458). Peru indicated that the list of cases presented only reflected potential cases which could be used as a basis for further analysis. An effective assessment of actual cases of biopiracy would require incorporating a universal obligation to disclose the origin/source/legal provenance of biological resources in patent application. Such a requirement would facilitate the verification of the fulfilment of the patentability criteria of an invention that is based on genetic resources and/or TK as well as other obligations under the CBD (such as the existence of prior informed consent and benefit sharing arrangements). Peru’s paper was well received by many developing countries, such as Brazil, India, Ecuador, Venezuela, China, Sri Lanka and Malaysia, who yet again urged countries consider incorporating the disclosure requirements in the TRIPS Agreement.
Other (mainly developed) countries, including Australia, Canada, the EU, Japan, Korea, New Zealand, the US and Switzerland, reiterated their stance on the issue, noting that they did not see any conflict between the TRIPS Agreement and the CBD. Most of them supported the creation of traditional knowledge databases for use by patent examiners as a protection measure. TK databases have attracted opposition from some quarters, notably some indigenous groups, due to concerns that they might render the knowledge accessible to the public at large, thereby preventing knowledge holders from attaining the rights over the knowledge. Japan had previously submitted a proposal (IP/C/W/474) calling for the establishment of an international database on traditional knowledge.
ICTSD reporting.