[Pirateninfo] TRIPS COUNCIL: EU PROPOSAL ON IP ENFORCEMENT MEETS RESISTANCE

[pcl at jpberlin.de]

TRIPS COUNCIL: EU PROPOSAL ON IP ENFORCEMENT MEETS RESISTANCE

At a 14-15 June meeting of the WTO Council on Trade-related Aspects 
of Intellectual Property Rights (TRIPS), a new EU submission 
proposing that the Council monitor Members' compliance with the 
enforcement provisions of the TRIPS Agreement met with strong 
resistance from developing countries, which argued that the TRIPS 
Council had no competence for such monitoring. Disagreement also 
persisted over how to address the relationship between the TRIPS 
Agreement and the Convention on Biological Diversity (CBD), and over 
how to turn the transitional waiver on generic medicines into a 
permanent solution.

Similarly, discussions on the multilateral register for geographical 
indications (GI) were "not going anywhere," according to the Chair of 
the TRIPS Council Special Session, Ambassador Manzoor Ahmad of 
Pakistan. Informal consultations on GI extension also encountered a 
deadlock.

EU moves on enforcement

Introducing a new and controversial issue of discussion at the TRIPS 
Council, the EU noted that it "would like the TRIPS Council to 
carefully examine compliance of Members with the enforcement 
provisions of the TRIPS Agreement, pursuant to Article 68 of the 
TRIPS Agreement" (IP/C/W/448). Such examination would include 
assessing "the implementation of TRIPS provisions on enforcement in 
detail, and make recommendations on ways to improve the situation 
(for instance by laying down benchmarks to evaluate the progress made 
by national administrations towards a higher level of intellectual 
property enforcement, suggesting best practices, etc) to ensure a 
full implementation of TRIPS obligations in this field."

Even though all Members agreed that intellectual property (IP) 
counterfeiting and piracy constituted a serious problem, developing 
countries -- including Brazil, Argentina, Cuba, the Philippines, 
Malaysia, India, Bolivia, Venezuela and Peru -- strongly opposed the 
EU proposal, arguing that this would result in a de facto norm 
setting role of the Council, which would go beyond its field of 
competence. In addition, developing countries noted that a discussion 
on enforcement was premature, given that many developing countries 
are still struggling with the challenge of implementing the TRIPS 
obligations. Finally, countries raised the concern that the EU 
proposal might lead to a loss of TRIPS flexibilities in the area of 
enforcement. This item will be taken up again at the next meeting of 
the Council in September.

New proposals on TRIPS-CBD relationship

Also at the TRIPS Council session -- which was preceded by informal 
consultations on the topic -- Members continued discussions on the 
relationship between the TRIPS Agreement and the CBD and related 
issues under the review of Article 27.3(b) (patentability of life 
forms) and the protection of traditional knowledge (TK) and folklore 
(see BRIDGES Weekly, 16 March 2005). The debate focused on earlier 
proposals by a group of developing countries led by Brazil and India 
to require patent applicants to disclose the country of origin of 
genetic resources and/or TK used in an invention, and evidence of 
prior informed consent (PIC) and benefit-sharing.

The proponents would like to see the issue feature in the July "first 
approximations" of the Doha Round negotiating modalities, allowing it 
to be included in the Hong Kong Ministerial Conference package. They 
requested the Chair of the informal consultations, Tony Miller of 
Hong Kong, China, who is acting as the "friend of the Director-
General," to remain available to hold more consultations that would 
contribute to the July exercise. The US reiterated its view that 
disclosure requirements were not the best way of preventing "bad" 
patents or ensuring PIC and benefit sharing (IP/C/W/449). Australia 
and Japan concurred with the US position. While the EU generally 
supports a disclosure requirement in patent applications, they oppose 
an obligation on patent applicants to provide evidence of fair and 
equitable benefit sharing, due to concerns that patent offices would 
not have the expertise to determine what is "fair and equitable."

In a new submission Peru elaborated on ideas for how to prevent cases 
of poor-quality patents and "biopiracy" (IP/C/W/44/Rev.1). A new 
Swiss paper raised questions relating to proposals made by other 
Members (IP/C/W/446).

Public health debate remains divisive

Discussions on TRIPS and public health continued based on two 
interlinked submissions by the African Group put forward at the 
December 2004 and March 2005 TRIPS Council meetings. The proposals 
focus on how to turn the interim waiver of 30 August 2003 -- aimed at 
facilitating export of pharmaceutical products produced under 
compulsory license -- into a permanent solution (see BRIDGES Weekly, 
16 March 2005). Members largely reiterated views expressed in 
previous meetings of the Council.

Several developed countries, such as Canada, the EU, Switzerland and 
the US, opposed the African proposal on the grounds that it leaves 
out elements they see as an integral part of the 30 August compromise 
and they feel must be reflected in a permanent solution. Among other 
issues, the African proposal does not include the Statement of the 
Chair of the General Council that accompanied the adoption of the 30 
August waiver. Developed countries consider this statement, together 
with other elements of the interim waiver, as a safeguard against 
trade diversion of low-cost medicines into their domestic markets, 
while developing countries view these elements as procedural 
obstacles to a workable and fast system to access affordable 
medicines. The EU announced that it would soon submit a new proposal, 
suggesting a technical conversion of the 2003 waiver into an 
amendment of the TRIPS Agreement. African countries expressed hope 
that this issue could be dealt with by the summer break, after 
Members missed the latest deadline in March this year.

To date, no developing country has submitted a notification to the 
TRIPS Council to make use of the transitional waiver issued by the 
General Council in 2003 for the implementation of paragraph 6 of the 
Doha Declaration on TRIPS and Public Health (see BRIDGES Weekly, 4 
September 2003). Canada and India informed the TRIPS Council about 
recent changes in their domestic legislation implementing the waiver. 
Norway has already implemented the waiver, while the EU and 
Switzerland are in the process of amending their patent laws. Korea 
has completed revising its domestic law and the changes will take 
effect in December 2005.

Maldives first LDC to be granted extension for TRIPS implementation

The Council approved a proposal made by the Maldives on 15 April 2004 
(IP/C/W/425), in which they applied for an extension of the 
transition period under Article 66.1 of the TRIPS Agreement allowing 
least-developed country (LDCs) Members to request an extension of 
their transition period for implementing the agreement. The country 
will graduate from its current LDC status on 21 December 2007. As 
Article 66.1 only applies to LDCs, Maldives was granted an extension 
only until 20 December 2007. The Maldives is the first country to 
make use of Art 66.1 and may thus serve as a precedent for other 
LDCs.

Members remain in deadlock over GIs

WTO Members made no substantive headway in their discussions on 
extending the higher level of protection already accorded to 
geographical indications for wines and spirits to other products (GI 
extension) at a meeting on 17 June. This issue is being discussed in 
separate informal consultations dealing with outstanding 
"implementation" issues. The consultations are chaired by WTO Deputy 
Director-General Thompson-Flôres, who will report directly to the 
General Council and Trade Negotiations Committee. Similarly, limited 
progress was made on the establishment of a multilateral register for 
GIs for wines and spirits during the Special Session of the TRIPS 
Council from 16-17 June, leading the Chair to conclude that 
"differences appear to be as large as ever and not have narrowed 
since prior to Cancun" (see BRIDGES Weekly 29 September 2004).

The EU submitted its first detailed proposal covering both GI 
extension and the multilateral register (TN/IP/W/11). On extension, 
the proposal discusses possible amendments to Articles 23 and 24 of 
the TRIPS Agreement (dealing with the higher level protection and 
exceptions, respectively). Regarding the register, the submission 
proposes a new annex to the TRIPS Agreement, laying down the details 
of registration and legal effects. The EU's proposal on extension met 
with resistance from other Members opposing GI extension, such as 
Argentina, Australia, Brazil, Canada, Chile, New Zealand and the US. 
These countries felt the paper was "premature" given that there had 
been no agreement to actually negotiate on this issue. Other Members 
such as Bulgaria, India, Kenya, Romania, Switzerland and Turkey 
supported the EU proposal. Mirroring these divisions, the EU's 
proposal on the multilateral register was opposed by Australia, 
Argentina, Brazil, Canada, Chile, Chinese Taipei, Costa Rica, 
Guatemala, Japan, Mexico and the US, which argued that the paper 
exceeded the Council's mandate.

The next formal session of the TRIPS Council is currently scheduled 
for 25-26 October. The Special Sessions will be held on 16 September 
and 27-28 October. Further informal consultations on TRIPS-CBD and GI 
extension might be held in the lead-up to the July General Council 
meeting.

ICTSD reporting.

http://www.ictsd.org/weekly/05-06-22/story3.htm