TRIPS COUNCIL REGULAR MEETING 5–7 MARCH 2002
Members start work on Doha agenda items

The WTO’s TRIPS (intellectual property) Council has started work on a list of issues that ministers assigned to it at the November 2001 Ministerial Conference in Doha. These include specific aspects of TRIPS and public health, geographical indications, protecting plant and animal inventions, biodiversity, traditional knowledge, the general review of the TRIPS Agreement, and technology transfer.

The TRIPS Council chairperson, Ambassador Boniface Chidyausiku of Zimbabwe, ended the meeting by handing over to his successor for the year, Amb. Eduardo Pérez Motta of Mexico.

Background and explanation
> Details of the Doha Development Agenda
> Doha mandate explained       > Doha implementation decision explained
> TRIPS       > TRIPS news
> 8 March 2002 TRIPS Council special session: Two-phase negotiating programme launched

THIS IS AN UNOFFICIAL SUMMARY OF WHAT HAPPENED IN THE MEETING, PREPARED BY THE WTO SECRETARIAT’S INFORMATION AND MEDIA RELATIONS DIVISION TO HELP PUBLIC UNDERSTANDING. THE ONLY OFFICIAL RECORD IS IN THE MINUTES OF THE MEETING.

SEE ALSO:
> press releases
> news archives
> Mike Moore’s speeches

> Doha Declaration on TRIPS and public health
> Technical terms and legal provisions explained: fact sheet

The European Union, United States, and a large group of developing countries have kicked off the TRIPS Council’s post-Doha discussion on TRIPS and public health with proposals for dealing with compulsory licensing when countries lack domestic production capacity.

The discussion, on 5 March (the first day of a three-day TRIPS Council meeting), comes under work that ministers assigned to the TRIPS Council in the Doha declaration on TRIPS and public health. There are two tasks.

First, the TRIPS Council has to find a solution to the problems countries may face in making use of compulsory licensing if they have too little or no pharmaceutical manufacturing capacity. This is related to Article 3 (f), which says production under compulsory licences must be predominantly for the domestic market.

The TRIPS Council has to report to the General Council on this by the end of 2002. The chairperson, Ambassador Boniface Chidyausiku of Zimbabwe urged member governments on Tuesday (5 March) to submit proposals by the next meeting, i.e. in June. Speakers stressed their commitment to find a solution by the end of the year.

Second, the Doha declaration also extends the deadline for least-developed countries to apply provisions on pharmaceutical patents until 1 January 2016. The TRIPS Council is working on a decision to formally implement this and will discuss it in June.

In the 5 March session, initial proposals or suggestions for dealing with the domestic production capacity question came from:

• the European Union — a paper circulated on 4 March
   > to download this, see below
• a large group of developing countries (African Group, Brazil, Cuba, Dominican Rep, Ecuador, Honduras, India, Indonesia, Jamaica, Malaysia, Sri Lanka and Thailand) — an oral presentation to be followed by a paper later this year. (There are 41 African members of the WTO.) A number of other developing country speakers supported this during the debate.
• the United States — a paper distributed at the meeting, to be officially circulated shortly afterwards
   > to download this, see below

A large number of other countries also spoke.

Several possible solutions were floated in this initial session, with further ideas possible in future meetings:

• Amend or delete Art.31(f) of the TRIPS Agreement. This would ease or remove the requirement that production under compulsory licenses has to be predominantly for the domestic market. The EU said amendment under strict conditions is one possible solution. Developing countries tended to favour deleting the provision, but several speakers noted that amending the agreement would be a lengthy process.
• Interpret Art.30 (exceptions to patent rights) so as to allow products made under compulsory licensing to be exported to countries facing public health problems but lacking domestic production capacity. The EU presented this as another possibility, supported by several others, including the group of developing countries.
• A moratorium on dispute cases when products made under one country’s compulsory licensing are exported to a country in need but lacking domestic production — subject to clear conditions. This was the US’s favoured solution, described as a solution under Art.31.
• Incentives for technology transfer so that countries can build up domestic production capacity. This was emphasized by the developing country group and supported by the group of least-developed countries.

During the discussion, points raised included:

• Whether the solution(s) should apply to all countries or only specifically defined categories. Developing countries preferred solutions applying to all. Developed countries preferred specifying eligibility, for example small developed countries should not be eligible.
• Whether to include conditions and criteria. Developed countries favoured this. Developing countries feared that if conditions are too strict and detailed the solution(s) might be difficult to implement.
• The specific conditions proposed included how to prevent drugs made under compulsory licensing being re-exported to other markets, and avoiding the use of proposed solutions to further industrial policy rather than public health policy.
• The US expressed interest in the developing countries’ emphasis on technology transfer. It added that some proposed solutions might help that, while other solutions might discourage technology transfer.
• Switzerland asked three questions: What is the meaning of insufficient or no manufacturing capacity? Which situations justify action? How can solutions be devised that genuinely help countries lacking production capacity rather than helping those with production capacity?
• China stressed the need for technical assistance and technology transfer.

The discussion will continue in June.

 
Geographical indications (extension of higher level protection to other products)       > back to top

> See earlier TRIPS news items
> e.g. TRIPS Council 1–2 December 1998

The TRIPS Council embarked on its post-Doha task of preparing to report to the Trade Negotiations Committee on this subject — the deadline is the end of this year (2002)

At issue is the question of whether the higher level of protection currently given to geographical indications of wines and spirits (Article 23) should be extended to other products. Some countries say a key point of the debate is migration, particularly to the “New World” (the Americas, Australia, New Zealand, etc) — immigrants brought with them the production of goods identified by geographical indications and they should be allowed to continue to use the names. Other countries question whether this argument is relevant. They say that by limiting the higher level of protection to wines and spirits, the TRIPS Agreement discriminates, creating an imbalance between WTO Members.

In the meeting (5 and 6 March), members generally fell into two camps, with a handful not particularly committed either way:

• For extension: Some of these countries called for the TRIPS Council to agree on “negotiating modalities” (how to negotiate) that would be submitted to the Trade Negotiations Committee.
• Against extension: These countries said the TRIPS Council should simply report to the Trade Negotiations Committee on its discussions, without proposing any modalities.

Both groups include a mix of developed and developing countries. Those for the extension included: Sri Lanka, Slovenia, Switzerland, Turkey, India, Pakistan, Kenya, Hungary, EU, Slovak Rep, Cuba, Morocco, Czech Rep, Egypt, Bulgaria, Thailand, Jamaica

Those against included: Australia, Canada, Paraguay, Colombia, Guatemala, New Zealand, United States, Uruguay

The less committed included: Rep of Korea, Ecuador, Japan, Singapore

Among the points raised in the discussion:

• Whether extension would help or hinder market access and economic development
• Whether extension would be burdensome and impose costs
• Whether the names currently used as generics would have to be changed to protected geographical indications or the exceptions in Article 24 (which includes generic terms) would apply
• What role public, social and cultural policies play in the debate
• How to stop additional geographical indications becoming generic terms

Countries for extension said it would benefit trade and development because geographical indications can be a means for countries — particularly developing countries — to market their products and secure higher prices because of the quality associated with the geographical indications. They denied that it would necessarily raise costs and stressed that terms currently used generically would not qualify for protection.

Countries against extension said geographical indications can be so complex that their protection can be used by producing countries to block imports, and that the administrative cost of protecting the indications are too high. Some, such as Australia, argued on cultural grounds that many names have travelled with migrants (such as European migrants going to Australia) who naturally want to continue to make the same products as they did before and to use the same terms to identify those products. The EU countered that it too has immigrants, from African and Asia, but that should not be a justification for Europeans to use geographical indications from the migrants’ countries of origin.

Part of the exchange focused on bilateral negotiations and agreements between Australia and the EU on “TRIPS-plus” geographical indications protection for wines and spirits. Australia cited this as an example of how complicated and disruptive the issue could be, including — Australia said — the EU’s refusal to accept countries’ names as geographical indications.

Bulgaria and Switzerland, both staunch supporters of extension, said Australia’s bilateral problems with the EU are not relevant to the multilateral discussions in the TRIPS Council on extension to other products, especially as those bilateral problems are about wines and spirits. The TRIPS Agreement’s definition of geographical indications clearly allows countries’ names to be protected, Bulgaria argued. Bulgaria also warned that failure to reach consensus in the TRIPS Council would have implications for other subjects under the Doha Development Agenda, in particular agriculture.

The discussion will continue in June.

 
Reviews of TRIPS provisions
(Article 27.3(b) on protecting plant and animal inventions, the whole TRIPS Agreement under article 71.1, taking into account biodiversity, traditional knowledge and development)       > back to top

The main decisions under these agenda items were about organizing work. On each of these issues, the Secretariat is to compile summaries of points raised in previous discussions, and intergovernmental organizations are to be invited to report on their work. Governments that have not replied to a questionnaire on how they implement Article 27.3(b) are being asked to do so. A number of countries (mainly developed) said work on traditional knowledge in the TRIPS Council should wait for the results of work in WIPO.

India referred to outstanding implementation issues in this area, including the proposals that:

• Patents inconsistent with Art.15 of the Convention on Biological Diversity should not be granted
• Art.27.3(b) should be implemented five years after the present review ends
• technology transfer should be provided on fair and mutually advantageous terms
• Art.27.3(b) should be amended “in the light of the CBD” and the present review should clarify that the following are not patentable: all living organisms (including whole or parts of plants and animals, and including gene sequences), biological and other natural processes for producing plants, animals and their parts.

Much of the rest of the discussion on substance repeated positions that delegations had made in previous meetings. It covered benefit sharing based on prior informed consent (a provision of the CBD and a counter to what some call “bio-piracy”) and whether there is any need to amend TRIPS to take this into account. The US circulated an example of the contracts its National Cancer Research Institute make with various governments and organizations, as a model of how benefit-sharing can be secured through contracts. Some countries such as Peru said this was interesting but pointed out that the US’s bilateral contacts are voluntary.

For the review of the TRIPS Agreement (Art.71.1) members agreed to aim to submit proposals by the June meeting.

 
Incentives for technology transfer to least-developed countries (Article 66.2)       > back to top

The Doha Implementation Decision says the TRIPS Council must set up a mechanism for ensuring the monitoring and full implementation of the obligations under this article — it requires developed countries to provide incentives for their businesses and organizations to transfer technology to least-developed countries.

The chairperson proposed members should submit ideas for the mechanism by the June meeting so that developed countries can report on their activities as required, by the end of the year. Several countries said they would try but were not sure if they could do so by June.

 
Other agenda items       > back to top

Also on the agenda were “non-violation and situation complaints” and electronic commerce (both with mandates from Doha), and technical cooperation. On the first two, the meeting agreed that the Secretariat would compile or update information for the next meeting. On technical cooperation, the EU, Brazil and Peru stressed the need to include policy issues such as public health and the use of TRIPS Agreement flexibilities in seminars, workshops etc, in addition to information on implementing the TRIPS Agreement.

The TRIPS Council chairperson, Ambassador Boniface Chidyausiku of Zimbabwe, ended the meeting by handing over to his successor for the year, Amb. Eduardo Pérez Motta of Mexico.

The TRIPS Council’s “special session” on the multilateral registration system for wines and spirits geographical indications was on Friday 8 March.      > more ...

Meetings tentatively scheduled for the rest of the year are:

• 25–27 June (followed by special session on 28 June)
• 17–19 September (followed by special session on 20 September)
• 25–27 November (followed by special session on 28 November)