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.
and public health
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Declaration on TRIPS and public health
> Technical terms and legal provisions explained: fact
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.
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
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.
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.
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.
the 5 March session, initial proposals or suggestions for dealing with
the domestic production capacity question came from:
European Union — a paper circulated on
download this, see below
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.
United States — a paper distributed at the
meeting, to be officially circulated shortly afterwards
download this, see below
large number of other countries also spoke.
possible solutions were floated in this initial session, with further
ideas possible in future meetings:
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
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
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.
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
the discussion, points raised included:
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
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
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.
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
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
stressed the need for technical assistance and technology
discussion will continue in June.
of higher level protection to other products)
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> e.g. TRIPS Council
1–2 December 1998
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)
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
the meeting (5 and 6 March), members generally fell into two
camps, with a handful not particularly committed either way:
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
extension: These countries said the TRIPS Council
should simply report to the Trade Negotiations Committee on its
discussions, without proposing any modalities.
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
against included: Australia, Canada, Paraguay, Colombia, Guatemala,
New Zealand, United States, Uruguay
less committed included: Rep of Korea, Ecuador, Japan, Singapore
the points raised in the discussion:
extension would help or hinder market access and economic
extension would be burdensome and impose costs
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
role public, social and cultural policies play in the debate
to stop additional geographical indications becoming generic terms
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
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.
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.
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.
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)
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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.
referred to outstanding implementation issues in this area, including
the proposals that:
inconsistent with Art.15 of the Convention on Biological Diversity
should not be granted
should be implemented five years after the present review ends
transfer should be provided on fair and mutually advantageous
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.
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
the review of the TRIPS Agreement (Art.71.1) members agreed to aim to
submit proposals by the June meeting.
for technology transfer to least-developed countries (Article 66.2)
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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.
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.
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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.
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.
TRIPS Council’s “special session” on the multilateral
registration system for wines and spirits geographical indications was
on Friday 8 March. > more ...
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)
Documents Online for documents mentioned here
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and health: EU paper (searches
for document code IP/C/W/339) > search
and health: US paper (coming soon)