TRIPS Council: Big Boost For Biodiversity Amendment; Enforcement Debated

By Tove Iren S. Gerhardsen
Broad new support emerged this week for a proposal to amend World Trade Organization rules on intellectual property to better protect countries’ biological resources, while efforts to increase discussions on intellectual property protection remain unresolved.

The issues led the agenda at the 5 June meeting of the WTO Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which ended its work one day early.

Dozens of countries voiced their new support for the biological diversity proposal (IP/C/W/474) introduced last summer by China, Brazil, India and other developing countries, a WTO official said (IPW, WTO/TRIPS, 7 June 2006). The previous support from 11 WTO members now has ballooned with the addition of the 41-nation African Group, Venezuela and possibly a number of others.

The proposal for a new five-paragraph Article 29bis to the WTO’s 1994 TRIPS agreement, aims at protecting biodiversity particularly found in developing countries by making it mandatory for patent applicants to reveal where they obtained the biological resources or traditional knowledge in question, and to ensure fair and equitable benefit-sharing of commercial uses, as well as legal requirements in the providing country for prior informed consent to access the resources. Norway has a similar proposal (IP/W/473) but which is weaker on sanctions (IPW, WTO/TRIPS, 15 June 2006).

At the 5 June meeting, the African Group and Venezuela announced they would cosponsor the proposal, and the 32 least-developed countries (LDCs) collectively expressed their support for it, the WTO official said. At the moment, Uganda is the chair of the African Group and Lesotho of the LDCs, a source said.

“[T]he African Group wishes to state from the outset that the above proposal underscores the very positive elements that would create a win-win situation for both providers of genetic materials and the patent holders,” the group chair said in a statement.

Officials from the countries advancing the proposal welcomed the support, with one saying that this gives “hope” to the prospect of an amendment. The issue of amending TRIPS to make it consistent with the United Nations Convention on Biological Diversity (CBD) has been on the agenda for quite some time in the TRIPS Council. But some developed countries argue that there is no discrepancy between the CBD and TRIPS and no need for an amendment.

An official from Peru told Intellectual Property Watch that these were very important groups with “a lot of countries.” Another official from the proponents said this secured the support of more than 50 countries, and was “a big step forward.”

An African Group official told Intellectual Property Watch that this support would make the proposal more of a developing country issue. It is part of the current global trade talks (an “outstanding implementation issue”), referred to as the Doha Development Round, which declared development to be primary to the talks.

Meanwhile, the positions of opposing countries such as the United States, Korea, Japan and New Zealand have not changed much, sources said, although some developing country sources welcomed the European Union’s clarification of its position. “The EU repeated its more limited proposal on disclosure that would include some sanctions for failure to disclose but not the revocation of the patent,” the WTO official said. One source said that this could be seen as a start of a dialogue. The EU was not available for comment.

A developed country official told Intellectual Property Watch that the World Intellectual Property Organization (WIPO) is “the appropriate forum for this discussion,” adding that a committee is addressing the issue there [the Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore, meeting next on 3-12 July]. Many developed countries argue that the biopiracy discussion should be fact-based, and that individual contracts are better than international regulations.

Brazil also raised in the meeting the issue of the CBD organisation getting observer status at the council. The chair will hold consultations on this despite the US continuing to block consensus, the official said. Other agencies have observer status.

Enforcement Push Continues, Japan Next?

There was a discussion in the beginning of the meeting of the Swiss proposal for an enforcement agenda item, with Argentina, China, Brazil, India and the Philippines among those saying there had never been any agreement or mandate that this should be a permanent item at the council, sources said. Major developed countries welcomed the Swiss move, the official said.

But Switzerland did not introduce the proposal (IP/C/W/492) under a claim that enforcement is now a permanent agenda item, a Swiss official told Intellectual Property Watch. But the official said Switzerland would not mind if WTO members would agree on it being permanent.

Questions were raised on the proposal, among others from Japan, but there seemed to be some confusion at the end as to whether this would lead to enforcement automatically being on the agenda next time. After the European Union, United States and Switzerland raised the issue in each of the past three TRIPS Council meetings, a Japanese official told Intellectual Property Watch that Japan did not rule out introducing this agenda item at future meetings as it would “like to contribute to the discussion in a constructive manner.”

A Swiss official said that with its proposal, Switzerland wanted to generate a discussion in the TRIPS Council on countries’ experiences related to enforcement, in order to “learn from other countries” and generate discussion. The official said that enforcement constitutes an important part of the TRIPS agreement, referring to Part III of TRIPS, of which border measures is dealt with in section four.

The proposal, which focuses on border measures, outlines Swiss information-sharing initiatives such as websites, databases (collaborating with WIPO and the World Health Organization), public awareness, and public and private enforcement efforts.

Separately, developing countries are planning a meeting on the CBD issue next week, and meetings of supporters of stronger measures on geographical indications (GIs) were planned for this week and at some point at the ambassador level for a group of countries, sources said.

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