Chakravarthi Raghavan / SUNS (South-North Development Monitor) #4752 / 3 October 2000 / Third World Network, Geneva
Geneva, 30 Sep (Chakravarthi Raghavan) -- The fundamental issues of the WTO
Agreement Trade-Related Intellectual Property Rights (TRIPS), and whether
TRIPS as it is promotes the economic development of developing countries,
and enables countries to strike an appropriate balance between public
interest and private rights is now in the process of getting on to the
agenda of the World Trade Organisation.
The issues have been brought up at the informal and then formal meeting of
the TRIPS Council on 21 and 22 September -- where various papers were
introduced and some were discussed while others are to be taken up at the
next meeting.
The issues raised in a sense are now at the stage that the "implementation"
issues were when first raised in 1998 and 1999 (in the runup to Seattle) -
first met dismissively, then sought to be ignored and obfuscated, and now
being sought to be diverted in terms of 'technical assistance' or other such
diversionary tactics.
However, it is clear that these will not go away.
The fundamental issues that were either avoided or misleadingly presented
with some vaguely worded promises in the TRIPS, and which the DSU process
has made into nullity, are raised in three papers before the TRIPS Council
in the framework of discussions on the various reviews relating to TRIPS --
the review of the provisions of Article 27.3 (b) (dealing with protection of
plant varieties, sui generis system etc), the review of the TRIPS agreement
and the review of the implementation of TRIPS, as well as the way the
dispute settlement process (panels and appellate body) through an usurped
interpretation process are enhancing private corporate rights and reducing
public interest.
The papers are by Mauritius on behalf of the African Group, an oral
presentation by Kenya supporting the African position, but effectively
addressing the basic issues, and a third by India titled, "Clarifying TRIPS:
A Confidence-Building Measure".
An important argument in the Indian paper and the Kenya presentation focuses
on the TRIPS has been interpreted by dispute panels, completely shifting the
balance in favour of 'producers' of technology to the detriment of the
users, and has failed to achieve both the WTO objectives of increasing
welfare and the TRIPS objectives of balancing private and public interests
and promoting technology transfer and development.
Other, and contentious, issues that came up in the two day formal meetings
(21 and 22 September) included questions relating to geographical
indications of origin and extending its purview beyond wines and spirits,
the review of Art. 27.3 (b) relating to protection of plant varieties by a
sui generis system and the requirement of providing patents for
micro-organisms, review of provisions about non-violation disputes.
As one Third World participant in the meetings put it, "there has been no
breakthrough nor any outcome, but the issue of review and changes to TRIPS
to reflect a balance between private and public rights and interests, and
promotion of technology transfers and development, are now squarely on the
table."
In the discussions and presentation of views, developing countries and their
representatives may not have gone as far as critics outside, and even free
trade advocates (including some who were very ardent advocates of the
Uruguay Round and its single undertaking), who now forcefully argue that
TRIPS is a trade-restrictive and not trade-liberalising accord and
provision, and needs to be reviewed and revised, and the original balance
between public and interests restored or removed from the system.
But while in the past, the US, Europe and Japan used the TRIPS Council
meetings to promote the idea of 'review' for enhancing the standards of
protection, and need for more protection for property holders, and one or
two countries might make some indirect criticism, the situation of extreme
imbalance and need to remedy them is now being forcefully put forward and
argued by a number of developing countries, putting the other side on the
defensive.
A serious debate is yet to be joined and negotiations set in motion to
correct the imbalances in this area that are coming to the fore. But it is
apparent that the issues raised by Seattle, the ignoring of the enshrined
objectives of the WTO about of enhancing public welfare while promoting the
mercantalist interests of private owners as a result of the way the dispute
panels and the appellate body are guided and function, and the intrusive
nature of the WTO agreements and impact on the long-term health of the
multilateral trading system, are issues that will not go away, and need to
be addressed and tackled, India for example, told the Council in a paper,
"Clarifying TRIPS: A Confidence Building Measure."
Kenya in a briefer oral presentation, supplemented by a detailed text handed
in to the secretariat for circulation, focused attention to the issue of
whether TRIPS in is present form promotes economic development of developing
countries, some of the ethical considerations raised by questions about
patentability of life and life-forms, and the questions of correct balance
between rights holders and society, the conflict between provisions of TRIPS
and the Convention on Biodiversity, and whether TRIPS promotes or undermines
domestic goals such as food security, equity for local and farming communities.
Another paper before the Council, a communication from Mauritius as current
chair on behalf of the African group on the Art. 27.3(b) review, raises
questions about linking the review to development issues, the question of a
sui generis system for protection of plant varieties, as well as the ethical
and other issues posed by patentability of life forms -- in effect going by
the reference points around which the Chair of the TRIPS Council, Amb. Chak
Man See (after some considerable difficulty and informal consultations) has
tried to organise the Art.27.3 (b) review.
But Kenya has noted that debating which of the issues raised by it fell
under the Art.27.3 (b) review, would only lead to a collection of various
aspects under a limited number of issues, "probably confounding the
discussion, instead of keeping it under clear headings that facilitate
consideration of concrete proposals."
Kenya in its oral presentation has called for an amendment of the TRIPS to
prohibit or exclude from patentability, all biological and living organisms
including plants, animals, micro-organisms and parts (such as cells, cell
lines, genes and genomes) and any processes making use of such biological
and living organisms.
In a separate paper that came in too late for discussion at the meeting, the
United States conceded that the term 'micro-organisms' have not been defined
either in the Budapest Treaty of 1977 (for international recognition of
deposit of micro-organisms for patent protection), nor by a WIPO group of
experts that met between 1984 and 1988, but argued that the 'ordinary
meaning' of the term in the Concise Oxford Dictionary could be used in
disputes!
In effect this served notice that this is the path the US intends to pursue
-- block the review and interpretation processes of the TRIPS and the
General Council, and have recourse to dispute settlement panels, and
interpretation methods that are illegally being resorted to by panels
(guided by the secretariat), to enforce and assert rights of its
corporations over the public.
Several Third World trade diplomats, who did not want to be identified, said
that probably the WTO secretariat division dealing with TRIPS issues is the
most partisan and ideologically oriented to enhance rights of corporations
than any other part of the WTO.
And in a strange argument, the US paper also claimed that the grant of
patents for micro-organisms, genes etc, would not amount of 'patenting of
life' but only grant of patent rights to promote inventions and rewarding
the processes, and the ability for a 20-year of the right holder to prevent
others from doing certain specified things!
Till now developing countries were raising issues in an oblique and hesitant
way, even as the industrialized nations, and more so the United States, have
been promoting the idea that the TRIPS only provides for minimum standards,
and any reviews must necessarily result in more protection and monopoly
rights for producers of technology.
The US and others have been trying to block even contrary views being
forcefully raised and brought up, ensuring that no changes are made whether
through amendments or agreed interpretations. Rather, they have left little
doubt, they would rely on the dispute settlement processes (and the
secretariat influence on it at every stage) and the adoption of rulings by
negative consensus rule to enhance private rights against public interest.
The agenda for the session included items relating to grant of observer
status for international organizations, including the Convention on
Biological Diversity (which continues to be blocked by the US); review of
national implementing legislation and notifications from members whose
transitional period have expired on 1 January (all developing countries
except for the least developed); implementation of several provisions of the
TRIPS including Art. 66.2 asking industrialized nations to promote transfer
of technology by their private corporations to the least developed (another
area of unfulfilled pious hopes, and coyness of ICs to notify what they have
done); issues relating to geographical indications of origin, both in terms
of enhanced protection and covering wider variety of goods; and the issues
relating to review of Art.27.3(b) of TRIPS which raise issues about
patenting of life and life-forms, sui generis protection of plant varieties,
protection of indigenous knowledge and measures against bio-piracy; and the
wider issues about TRIPS and its place and role within the WTO, in terms of
what has been described by India as "confidence building measures".
The US more publicly, and the EC in an equally determined but suave way, has
been trying to evolve new obligations on developing countries by
interpretation so as to subserve corporate interests.
Issues relating to the WTO objectives of welfare, and the TRIPS provisions
stipulating the TRIPS agreement as aimed at technology transfer and
development, that alone could justify inclusion of TRIPS as a trade
agreement into the WTO, were either slurred over or misleadingly presented
and sold to participants during the Uruguay Round or left vague (enabling
dispute panels to evolve their own law to benefit corporations).
But with the obligations of TRIPS kicking in from 1 January 2000, for all
developing countries except the least developed, and with many still to
enact legislation and put in place administrative machinery to enforce the
rights of foreigners, an emerging coalition of civil society groups are
encouraging developing countries to raise fundamental issues.
The African paper has also raised the issues of conservation and sustainable
use of genetic material, and need for TRIPS to promote and not undermine
conservation, for provisions to ensure benefit sharing and authorization of
access to genetic material through contractual arrangements and an
enforcement mechanism at the WTO in this behalf.
Also raised in the African paper are issues relating to concepts of
traditional knowledge and farmers' rights and need to promote and protect
these rights.
The issue of enhanced protection for geographical indications of origin, and
negotiations for extending this protection to areas other than wines and
spirits, was brought up in a paper by Switzerland, cosponsored among others
by India, and supported strongly by Turkey, Sri Lanka, Slovenia, the Czech
Republic, Bulgaria, Bolivia, Pakistan, Jamaica, Venezuela and Cuba.
Argentina, Mexico and the US were however reported to have been quite
vehement in their opposition. Australia, also in this camp, however voiced
milder opposition. The EC itself was largely silent. As some trade diplomats
explained, the Swiss proposal for protection of cheese associated with
regions of Switzerland, has met with opposition of Denmark within the EC.
Denmark produces and exports "feta cheese", a kind of cheese originally from
Greece. If 'feta' cheese and other varieties associated with particular
geographical regions get more protection, Denmark may stand to lose million
of dollars. The opposition of countries like Chile, Argentina and New
Zealand etc are also similarly motivated.
The Chair is to hold further consultations on this.
The TRIPS Council also discussed an earlier Indian paper on protection of
biodiversity and traditional knowledge and the Indian experience (with US
grant of bad patent permits).
The Indian and the African papers got support from a number of countries -
among them Brazil, Uruguay, Kenya, Zambia, Venezuela, South Africa, the
Dominican Republic and Egypt. Brazil made a number of points in its oral
intervention calling for action against bio-piracy, insistence on benefit
sharing and prior informed consent, and establishing minimum standards for
traditional knowledge.
Interestingly, the US wanted these issues to be taken up in the WIPO
(countering some developing countries who flagged UNCTAD's role). But
Australia wanted the TRIPS Council not to abandon its role to other
international organizations. And if all the issues raised did not fall
within the rubric of Art. 27.3(b) review, it could fall within the "review"
of the entire TRIPS envisaged in Art 71.1.
Japan and Korea took the position that the Art.27.3(b) review itself
involved only the implementation of that article and not the substantive
issues that may lead to a modification of the provisions of that article.
In other discussions and non-decisions, the Council was again blocked by the
United States from giving observer status to the CBD secretariat. The issue
of observer status has reportedly also got entangled with the attempts of
Egypt and Pakistan to press for and get such a status for the Organization
of Islamic Countries.
With the US continuing to block observership for the CBD secretariat and
convention, India and Brazil spoke very critically of the US position and
said they would review their own positions and raise the issue of ad hoc
observer status provided to some other international organizations, who are
less relevant than the CBD.
The Suns South-North Development Monitor, edited by Chakravarthi Raghavan in Geneva, is published daily by Third World Network. All rights reserved, may not be reproduced, reprinted or posted to any system or service without specific permission from SUNS. Subscription information may be obtained by email: [email protected] or by fax (41-22) 740-1672.
