Bridges Trade BioRes • Volume 1 • Number 1 • 22nd November 2001

TRIPs Council To Examine GI Extension, TRIPs-CBD Relationship, Protection Of TK

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TRIPs Council To Examine GI Extension, TRIPs-CBD Relationship, Protection Of TK

In spite of the increasing number of developing country proposals on a range of issues concerning the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), negotiations in Doha focused mainly on just one: public health (see BRIDGES Daily Update No. 4, 13 November 2001). However, the Ministerial Declaration and the Decision on Implementation-Related Issues and Concerns each contain a section on TRIPs. These cover three areas: geographical indications, Article 27.3(b) and technology transfer to least-developed countries. In addition, the Ministerial Declaration contains some language on TRIPs in the context of trade and environment (see related story, this issue). While these provisions do not establish any new commitments in the sense of norm-creating, the decision to cover these controversial issues may ultimately result in a negotiations that go beyond the mere clarification of existing rules, a trade source said.

Little headway on geographical indications

Issues relating to the extension of the protection of geographical indications (GIs) to products other than wines and spirits, as provided for in Article 23 of the TRIPs Agreement, will be addressed in the Council for TRIPs. Discussions on this issue, however, have been going on in the Council for some time, and the Ministerial Declaration simply acknowledges that these are on-going without committing members to a resolution.

The inclusion of this issue is a response to demands made by some Members that additional protection should not be limited to wines and spirits, but should include products that are economically important for themselves. Countries that have been seeking such additional protection are mainly from Asia, Europe and Africa. They also include countries like Thailand and India that have complained about what they see as the misappropriation of high-value goods, namely jasmine and basmatic rices. For these countries, the issue is of particular important as that GIs can be used to promote the export of valuable products and prevent misappropriation. They furthermore consider it a matter of fairness that such additional protection not be limited to alcoholic beverages. Those who have tended to oppose additional protection are mainly from the Americas plus Australia and New Zealand, all of which are bulk exporters of agricultural products.

In addition, WTO members have agreed to negotiate to establish "a multilateral system of geographical indications for wines and spirits by the Fifth Session of the Ministerial Conference". This essentially repeats the commitment contained in Article 23.4 of the TRIPs Agreement, except that it establishes a deadline. This provision is of great interest to those European countries, such as France, that use GIs to market wines and spirits. Conversely, several countries in the Americas and the southern hemisphere have successfully traded such products without resort to GI protection, and have little to gain from the establishment of the multilateral system.

Article 27.3(b) discussions set to continue

In spite of being one of the most controversial articles of the TRIPs Agreement, discussions on Article 27.3(b) (patentability of life forms) were understandably overshadowed by the negotiations relating to TRIPs and public health. In the end, the TRIPs Council is merely instructed "to examine, inter alia, the relationship between TRIPs and the Convention on Biological Diversity, the protection of traditional knowledge and folklore, and other relevant new developments raised by members pursuant to Article 71.1". [Article 71.1 deals with reviews of the implementation of the Agreement, including with a possible view to modifying or amending it.] While reference to traditional knowledge and folklore was novel for a Ministerial Declaration, indicating how mainstream these topics now are, no explicit commitments were made by WTO members.

To date, discussions at the TRIPs Council on these issues have failed to make substantial progress, leading trade sources to speculate that the contentious issues will only ever be resolved within the context of a new trade round that explicitly re-opens negotiations on the text.

Technology transfer to least-developed countries

The Decision on Implementation-Related Issues and Concerns reaffirms the "mandatory" nature of the provisions of Article 66.2 of the TRIPs Agreement, which requires developed country members to provide incentives for the promotion and encouragement of technology transfer to least-developed countries. The TRIPs Council is mandated to oversee developed country compliance. To this end, the latter countries must before the end of 2002 submit reports on the practical functioning of these incentive measures that will be reviewed in the TRIPs Council.

The Ministerial Declaration also establishes a Working Group under the auspices of the General Council to examine "the relationship between trade and transfer of technology" and "possible recommendations on steps that might be taken within the mandate of the WTO to increase flows of technology to developing countries". The General Council is to report on the progress of this examination to the Fifth Session of the Ministerial Conference.

Some reactions

Reactions to the text on 27.3(b) and GIs varied within the NGO community. Some considered the provisions on TRIPs — and the outcome of the Ministerial Conference more generally — to represent a defeat for developing countries. Others, however, saw it as a draw, setting a victory on public health against the failure of the Conference to commit to a substantive review of Article 27.3(b) and thereby respond to the concerns of a certain number of developing countries about biopiracy and the patenting of life-forms. However, because of the focus on public health, reaction so far to these other TRIPs-related issues has been perfunctory.

ICTDS Internal Files.