TRIPS review debate getting to fundamentals

by Chakravarthi Raghavan

Geneva, 30 Sep 2000 - The fundamental issues of the WTO Agreement on Trade-Related Aspects of 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 run-up 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 how 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’ has 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 to ‘patenting of life’ but only grant of patent rights to promote inventions and rewarding the processes, and the ability for a 20-year 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 periods 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.

(Future issues of SUNS will analyze some of the papers—of India, the African group and Kenya, as well as those of the US and Australia)-SUNS4752

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

[c] 2000, SUNS - All rights reserved. May not be reproduced, reprinted or posted to any system or service without specific permission from SUNS. This limitation includes incorporation into a database, distribution via Usenet News, bulletin board systems, mailing lists, print media or broadcast. For information about reproduction or multi-user subscriptions please contact: