TRIPS Meeting: Boost To IP Issues As Part Of Resumed Trade Talks, US Submits Enforcement Proposal

By Tove Iren S. Gerhardsen
Members of a 13 February World Trade Organization (WTO) meeting on intellectual property rights, signalled that consultations on IP issues will be stepped up in the coming weeks as part of the overall revival in global trade talks, according to participants. Also at the meeting, the United States presented a paper on IP enforcement.

The meeting of the Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was scheduled for two days, but finished after one. Chairs of various key IP consultations said they wanted to meet with individual delegations or small groups over the next two weeks to decide how to move forward, sources said. This process was discussed at an informal meeting before the start of the TRIPS Council, sources said.

The topics of these consultations will be geographical indications (GIs) – which are product names reflecting geographical origins – and the relationship between the TRIPS agreement and the Convention on Biological Diversity (CBD), sources said. There are three chairs dealing with four combinations of the issues. Some of these issues have been discussed for years and countries not only disagree on the topics themselves, they also differ on whether some of them should be negotiated at all within the council.

Yonov Frederick Agah of Nigeria was named new chair of the TRIPS Council. Ambassador Trevor Clarke of Barbados, the outgoing chair, told Intellectual Property Watch that there had been a lot of “talking around the subject” of GIs and CBD until now, but there are now indications that some countries are “keen to make some progress.”

Some of these consultations are part of the current round of trade talks, launched at Doha, Qatar in 2001 and suspended in July 2006 (IPW, WTO/TRIPS, 24 July 2006). On 7 February, WTO Director General Pascal Lamy announced that the governments “have resumed negotiations fully across the board.” But many participants of the TRIPS Council afterwards did not believe there would be any real IP movement until there is progress in talks on agriculture. In particular, the GI issue appears to be tied to agriculture, a source said.

Enforcement on the Agenda

Separately, at the formal TRIPS Council meeting, the main issues were the CBD and enforcement, sources said.

The United States presented a communication (IP/C/W/488, dated 26 January) on “Enforcement of intellectual property rights (part III of the TRIPS agreement), Experiences of border enforcement.”

In the paper, the United States presents recent data on the growing scale of infringements of intellectual property rights found in the United States “as measured by seizures of infringing imported goods by US customs authorities,” and describes its efforts to combat this through “risk modelling methods” and “post-entry verification audits.” The paper was discussed under the agenda item, “enforcement of intellectual property rights.” The United States was not available for comment.

A Swiss official told Intellectual Property Watch that Switzerland requested more information about the US initiatives to see whether these could be used in Switzerland. The official said Switzerland expected the questions would be answered in another TRIPS Council, which would keep enforcement on the agenda.

In the TRIPS Council meeting in October 2006, the European Union also introduced a paper and had a Power Point presentation on its enforcement measures, but this met with opposition from some members. Many countries perceived this to be a way of getting enforcement measures into the council, where they said it does not belong (IPW, WTO/TRIPS, 27 October 2006).

This did not happen to the US paper. One developing country source told Intellectual Property Watch that in terms of procedure, the US document was much more acceptable. But developing countries’ position on the enforcement of intellectual property rights had not changed, and they still do not believe this belongs in the TRIPS Council. The source said that on border control and IP, the World Intellectual Property Organization as well as the World Customs Organization are active.

The source said that developing countries would not accept any imposed new obligations in this area that would affect the current balance of rights and obligations in TRIPS, and that they had signed the treaty as a whole, not only part three (on enforcement). China said that enforcement could not be a permanent agenda item in the council, and it was supported in this view by Argentina, Brazil, Cuba, India and South Africa, a WTO official said.

CBD Revisited

On the relationship between TRIPS and CBD, Brazil said the issue should be dealt with adequately and expeditiously, and noted that members should agree that the CBD secretariat is an observer to the TRIPS Council, a source said. Another source said that a number of countries had questions for Peru (IP/C/W/484) on a presentation it had at the previous TRIPS Council, but as Peru was not present, this would be postponed. Norway, which has a proposal on this (IP/W/473), also replied to questions raised by Switzerland previously, another source said, which would be available in writing later.

A group of developing countries repeated that they would like the TRIPS agreement amended to make it mandatory to disclose the origin of genetic material and traditional knowledge in patent applications, have prior informed consent and benefit sharing of possible economic gain, as they proposed in a text (IP/C/W/474) last summer (IPW, WTO/TRIPS, 7 June 2006). But most developed countries disagree and argue they are not ready to negotiate on a text on this, the informed source said. The Norwegian proposal says infringements should be dealt with outside the patent system, sources said.

The United States, Korea, Canada, Australia and New Zealand said they oppose an amendment TRIPS to fight biopiracy, the European Union argues the issue belongs in the World Intellectual Property Organization, and Canada and New Zealand said they are still discussing it domestically, a WTO official said.

The Consultations

In the morning informal session, Clarke was one of three chairs ready to meet with delegations. Clarke oversaw discussion on TRIPS Article 24.2, which deals with standard council review of the GI TRIPS section, an informed source said. Countries disagreed on whether this review should be based on the replies to a WTO secretariat questionnaire or on the individual TRIPS articles, the source said.

Ambassador Manzoor Ahmad of Pakistan said he would hold consultations on a multilateral GI register for wines and spirits, a topic that is officially part of the Doha negotiations [TRIPS Article 23.4, Doha Declaration paragraph 18], and which he chairs under special sessions of the TRIPS Council. While the European Union, Switzerland and Turkey are among countries wanting such a register and are ready for text-based negotiations, Australia, the United States, Canada and Chile are among those opposing this. Countries disagree on what legal status such a register should have and whether it should be voluntary or mandatory, the source said.

Australia said that a number of questions and concerns that had been raised regarding the EU’s earlier proposals on GIs, such as the commercial objectives underpinning the proposals, the relationship between extension and the register and the commercial impact of the proposals on exporters, had not been answered, and thus they could not agree to move to negotiations, a developed country official said.

The next chair is WTO Deputy Director General Rufus Yerxa (acting on behalf of the director general), who has also invited consultations on extending higher level protection for GIs beyond wines and spirits, which are currently protected. This is part of the “outstanding implementation issues” in paragraph 12(b) of the Doha Ministerial Declaration. Members continue to disagree on whether there is a mandate to discuss this, the informed source said. This also includes discussions on the relationship between TRIPS and CBD, also chaired by Yerxa.

The two issues of GIs and CBD were not linked at the meeting, but one developed country official said that the EU is “in the middle” when it comes to the CBD issues and sympathises with developing countries. A developing country official said that in terms of process the two issues are linked as Yerxa is chairing consultations on both.

Separately, Norway became the fifth WTO member to accept the TRIPS amendment on public health made in December 2005 (IPW, WTO/TRIPS, 6 December 2005), meaning that the amendment has taken effect and replaced a 2003 waiver in these countries. So far 3.33 percent of members have done so while 67 percent have to accept it by the end of 2007 for the amendment to formally change TRIPS, WTO said.

Tove Gerhardsen may be reached at tgerhardsen@ip-watch.ch.