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TWN
Info Service on Intellectual Property Issues (Oct21/12) Geneva, 19 Oct (D. Ravi Kanth) – The United States Trade Representative (USTR) Ambassador Katherine Tai has apparently suggested a “peace clause” for likely disputes that could arise from the implementation of IPR (intellectual property rights) provisions in the WTO’s response to the COVID-19 pandemic, said people familiar with the development. As trade ministers from the Group of Seven (G7) industrialized countries gather in Brussels on 19 October, one of the major issues is how to adopt a common position on the IPR component in the WTO’s response to the pandemic. The other major issue appears to be on how to salvage the floundering fisheries subsidies negotiations. The European Union is apparently moving “heaven and earth” to bring about convergence on the revised draft text issued by the chair of the Doha fisheries subsidies negotiations on 30 June. That text was severely criticized by more than 80 trade ministers at an informal ministerial meeting chaired by the World Trade Organization’s director-general Ms Ngozi Okonjo-Iweala on 15 July (see SUNS #9390 dated 19 July 2021). The G7 includes the United States, Japan, Germany, the United Kingdom, France, Italy, and Canada, with the European Union being a special member. The WTO DG is likely to attend the G7 meeting before she takes off for New Delhi, India on Wednesday, said people familiar with the meeting. “PEACE CLAUSE” FOR IPR DISPUTES During her two-day visit to Geneva on 13-14 October, the USTR, Ambassador Tai, held meetings with select trade envoys to discuss the issue of the “peace clause.” However, Ambassador Tai did not elaborate on what it would entail and whether it will be limited to the elements contained in the TRIPS waiver proposal, said people, who took part in the meetings. When trade envoys sought clarity on the elements of the “peace clause”, the USTR apparently said that they are still being considered, said people, who asked not to be quoted. At the meetings, the co-sponsors of the TRIPS waiver proposal are understood to have insisted that there has to be clarity on issues concerning scope, coverage of health products and technologies, as well as the legal underpinnings, said people, who asked not to be quoted. The revised temporary TRIPS waiver proposal (IP/C/W/669/Rev.1), which was circulated on 25 May this year, has focused on “health products and technologies”, as the prevention, treatment or containment of COVID-19 involves a range of health products and technologies, and intellectual property issues may arise with respect to these products and technologies, their materials or components, as well as their methods and means of manufacture. The 64 co-sponsors of the revised TRIPS waiver proposal also made it clear that “the proposed waiver is limited in scope to COVID-19 prevention, treatment and containment.” The co-sponsors argued that, given the complexities of the evolution of the COVID-19 variants and several uncertainties with respect to the SARS-CoV-2 virus, a minimum period of three years is needed for implementation of the waiver. In the small-group consultations on finding a pragmatic compromise on the temporary TRIPS waiver and the EU’s proposal relating to the use of compulsory licensing, the US spoke about the “peace clause” but did not offer any details, said people, who asked not to be quoted. When this writer contacted the US spokesperson in Geneva, there was no response to either confirm or elaborate on the US ideas on the “peace clause”. In sharp contrast to the US suggestion on the “peace clause” in IPR disputes, the EU initially said that the IPR component in the WTO’s response to the pandemic should be limited to its proposal on relaxing the compulsory license (CL) conditions, but later Brussels said it could go beyond the CL provisions, said a person, who preferred not to be quoted. Recent news reports reveal that EU is open to discuss a waiver however with content that would render it meaningless. The co-sponsors of the TRIPS waiver conveyed that they are ready to discuss pragmatic and amicable solutions concerning the waiver that seeks suspension of provisions in the TRIPS Agreement relating to copyrights, industrial designs, patents, and protection of undisclosed information for a minimum period of three years to ramp-up production of diagnostics, therapeutics, and vaccines to combat the COVID-19 pandemic. According to experts there is no clear legal basis for a peace clause and hence could create legal uncertainty and hesitancy with respect to its implementation. In contrast a waiver is rooted in Article IX of the Marrakesh Agreement. Unlike the peace clause there are also precedents for the adoption of waivers in the area of intellectual property. G7 TRADE MINISTERIAL MEETING As the trade ministers of the G7 meet on 19 October in Brussels, the European Union is expected to push hard for convergence on two issues – fisheries subsidies and a common stand on the IPR component in the WTO’s response to the pandemic, said people familiar with the development. The G7 ministerial meeting would try hard to find convergence on how to salvage an agreement on fisheries subsidies; finalize the IPR component in the WTO’s response to the pandemic; advance the plurilateral Joint Statement Initiatives; and conclude a work program on proposed WTO reforms, said people familiar with the development. FISHERIES SUBSIDIES TALKS REMAIN IN DIRE STRAITS Meanwhile, the chair of the Doha fisheries subsidies negotiations, Ambassador Santiago Wills from Colombia, has canceled this week’s negotiations (18-22 October), as he did in the previous week, on the plea that members need more time to discuss among themselves, said people, who asked not to be quoted. Effectively, the chair’s latest decision on delaying the line-by-line discussions by a fortnight will leave the negotiating time to only a month, as the WTO’s 12th ministerial conference (MC12) is scheduled to begin on 30 November. It appears that the real reason for the cancellation of the negotiations for two weeks is to see if the G7 members, particularly the EU, could bring about a material change to convince members to agree to the chair’s revised draft text (TN/RL/W/276/Rev.1) issued on 30 June, said a capital-based senior official. Ms Okonjo-Iweala is scheduled to visit India on Wednesday to explore whether New Delhi could accept the chair’s revised draft text on fisheries subsidies that it had earlier pronounced as “imbalanced”. She may also carry with her the understanding reached at Brussels and explore whether India could consider the draft text positively, said a person, who asked not to be quoted. Apparently, the EU was making efforts at the recent informal ministerial meetings in Paris and Sorrento, Italy to bring about a linkage between these two issues to convince the developing countries to accept the chair’s revised draft text. The EU, however, failed to convince the developing countries, which took part in these meetings, on grounds that the chair’s revised draft text remains “imbalanced” and preserves the status quo to allow the big subsidizers like the EU to continue with their industrial scale-fishing that has contributed to the depletion of global fish stocks, said several participants, who asked not to be quoted. However, several developing countries who attended these two meetings simply refused to buy into the EU’s arguments, said participants, who asked not to be quoted. Although the US repeatedly called for a “meaningful” agreement on fisheries subsidies, it has not elaborated on what would constitute a “meaningful” agreement and whether it must include the issue of “forced labor” in the final fisheries subsidies agreement, said people, who asked not to be quoted. In short, attempts seem to be underway on finalizing a “take-it-or-leave-it” text by the G7 countries that is going to be later foisted on the WTO members. A trade envoy told the SUNS that “the ACP (African, Caribbean, and Pacific) group, the African Group, and India will oppose any attempts to foist a take-it-or-leave-it text”.+
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