DOHA WTO MINISTERIAL 2001:BRIEFING NOTES
implementation and TRIPS Council work
This briefing document focuses on the TRIPS issues raised in the lead-up to the Doha Ministerial Conference. It does not cover all the issues regularly handled in the TRIPS Council.
> Director-General’s letter to journalists
> Least-developed countries (LDCs)
> Sanitary and phytosanitary (SPS) measures
> Trade in services
> Implementation issues
> Intellectual property (TRIPS)
> Textiles and clothing
> Information technology (IT) products
> Trade and environment
> Trade and investment
> Trade and competition policy
> Transparency in government procurement
> Trade facilitation
> Trade and labour standards
> Electronic commerce
> Members and accession
> Regional trade agreements
> Some facts and figures
> Glossary of terms
In a nutshell
Intellectual property (or more accurately trade-related aspects of intellectual property rights or TRIPS) appears on the agenda for the Doha Ministerial Conference in a number of ways. These are the main points — more detailed explanations follow:
= 'trade-related aspects of intellectual property rights'
the TRIPS Agreement covers
> copyright and related rights
> trademarks, including service marks
> geographical indications
> industrial designs
> layout designs (topographies) of integrated circuits
> undisclosed information (trade secrets), including test data
agreement’s main principles
> minimum levels of protection for each of the above
> effective procedures and remedies for enforcing intellectual property rights
> non-discrimination (national and most-favoured-nation treatment)
> enforcement through WTO dispute settlement
Negotiations on geographical indications. Already under negotiation in the TRIPS Council, which oversees work in this area in the WTO, is a multilateral system for notifying and registering geographical indications. No deadline has been set for completing these talks, and one proposal is for ministers to set a deadline for concluding the negotiations.
In addition, a number of countries want to negotiate expanding to additional products the “higher” level of protection currently given under the TRIPS Agreement to geographical indications for wines and spirits.
A separate declaration on TRIPS and health. In the preparations, members have been negotiating a declaration clarifying the relationship between intellectual property protection and access to medicines or public health. This statement will probably be separate from the main ministerial declaration.
Work on clarifying the relationship between the WTO TRIPS Agreement and UN Convention on Biological Diversity and other issues such as the protection of traditional knowledge, and new technological developments.
Implementation issues, including current obligations on technology transfer under the TRIPS Agreement, and a technical issue known as “non-violation” cases.
The discussions have covered proposed timetables and deadlines. These include: the TRIPS Council completing a report by the end of 2002 leading to decisions or discussions in the next (i.e. the 5th) Ministerial Conference; completing negotiations within the overall timetable for negotiations set in the Doha Declaration; or combinations of these.
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Geographical indications are place names or names associated with a place used to identify the origin and quality, reputation or other characteristics of products (for example, “Champagne”, “Tequila” or “Roquefort”). Protection required under the TRIPS Agreement is defined in two articles.
All products are covered by Article 22. This says geographical indications have to be protected in order to avoid misleading the public and to prevent unfair competition.
Article 23 provides a higher or enhanced level of protection for geographical indications for wines and spirits (subject to a number of exceptions, they have to be protected even if misuse would not cause the public to be misled). A number of countries want to extend this level of protection to a wide range of other products, including food and handicrafts. The agreement allows exceptions, such as when a name has become a common (or “generic”) term.
Information that members have supplied during a fact-finding exercise shows that countries employ a wide variety of legal means to protect geographical indications: ranging from specific geographical indications laws to trademark law, consumer protection law, or common law. The TRIPS Agreement and current TRIPS work in the WTO takes account of that diversity.
The agreement calls for negotiations on two aspects of geographical indication protection, although it does not say when these should take place, nor when they should end:
the creation of a multilateral system for notifying and registering geographical indications for wines (the 1996 Singapore Ministerial Conference also called for preliminary work on “spirits”) (Article 23.4).
increasing protection for individual geographical indications under Article 23 (Article 24.1).
The multilateral register. Since 1998, a number of proposals for a system for notifying and registering geographical indications for wines (and spirits) have already been submitted to the TRIPS Council. In all cases, participation in the system would be voluntary. One group of proposals sees the system as a database: members would report the geographical indications that they protect, and other members would take the information into account when they provide their own protection. Another group includes obligations — subject to certain conditions — for WTO members to protect the names listed in the register.
Extending the higher level of protection. A number of countries have proposed extending the higher level of protection beyond wines and spirits to other products, including handicrafts, agricultural products and other beverages. In the preparations for the Doha Ministerial Declaration, the discussion has included the question of whether there should be negotiations on this subject at all, or whether further study is needed before any decision is reached on whether to negotiate. WTO members have also discussed whether any negotiations would be for all products, or only some — and whether those would have to be decided in advance.
Some members have linked this to the current negotiations on agriculture, saying that they would only agree on substantial progress in agriculture if there is similar progress on geographical indications. Some others have described it as a condition for negotiating further reductions in industrial tariffs. Some developing countries have raised this as an “implementation” issue.
One proposal has even been submitted to the agriculture negotiations themselves, describing protection for geographical indications as a market access issue for agricultural products. According to this argument, geographical indications improve product differentiation, which is an important feature of competition. Consumers would benefit because they are offered more choice with more information about product quality. Producers would also benefit because they can develop quality products and are free from unfair or misleading competition in markets that import their products, according to this argument.
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TRIPS and health
The fact that all members agree on the need for a ministerial statement on TRIPS and health, shows that everyone agrees that this issue is vitally important. All members also share the view that intellectual property protection is necessary for creating new medicines, and that the TRIPS Agreement must be respected.
The objective of a ministerial text on TRIPS and health is to clarify what governments can do under the TRIPS Agreement, and to reduce their uncertainties about using the flexibilities that are built into the agreement. A separate declaration on this subject seems to be favoured among most WTO members.
Among the flexibilities most commonly discussed are compulsory licensing and parallel imports. Compulsory licensing is when governments authorize other manufacturers to make a drug under licence without the patent owner’s approval. This is allowed under certain conditions in the TRIPS Agreement .
Parallel importing is where a product sold more cheaply in one country is imported into another without the patent holder’s permission. Countries’ laws differ on whether they allow parallel imports. The TRIPS Agreement simply states that governments cannot bring legal disputes to the WTO on this issue.
One issue member governments have discussed is the scope of the proposed ministerial declaration. Some favour emphasizing public health objectives as a whole. Others prefer to focus more specifically on ensuring poorer populations have access to medicines, particularly to deal with large-scale, life-threatening epidemics (or “pandemics”) such as HIV/AIDS, malaria, tuberculosis and other diseases.
Many developing countries have proposed that the declaration should state that nothing in the TRIPS Agreement prevents governments from undertaking public health policies, and that members should refrain from bringing legal disputes to the WTO on this subject.
Some developed countries want to ensure that clarifications do not weaken legal rights and obligations under the agreement. They want ministers to affirm strongly that intellectual property protection helps health policies by encouraging new drugs to be invented — a view that all members share, although with differing degrees of emphasis. And they are reluctant to accept restraints on their right to use the dispute settlement procedures.
One of the details being discussed is the difficult question of how countries with limited manufacturing capabilities can take advantage of compulsory licensing. At the centre of the discussion is a provision in the TRIPS Agreement which says that products made under a compulsory licence must be supplied predominantly for the domestic market.
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Article 27.3(b) and beyond: plant varieties, biodiversity, traditional knowledge, benefit-sharing
Article 27 of the TRIPS Agreement defines the types of inventions which have to be eligible for patent protection and those which can be exempt. These include both products and processes, and they cover all fields of technology.
In general, inventions eligible for patenting must be new, involve an inventive step (or be non-obvious) and be capable of industrial application (or be useful). Article 27 also lists inventions which governments do not have to make eligible for patent protection.
Part (b) of paragraph 3 (i.e. Article 27.3(b)) covers biotechnological inventions. It is currently under review in the TRIPS Council, as required by the TRIPS Agreement. Some countries have broadened the discussion to cover biodiversity and traditional knowledge. They are now seeking a ministerial statement on the subject.
Broadly speaking, Article 27.3(b) allows governments to exclude plants, animals and “essentially” biological processes (but micro-organisms, and non-biological and microbiological processes have to be eligible for patents). However, plant varieties have to be eligible either for patent protection or through a system created specifically for the purpose (“sui generis”), or a combination of the two. For example, countries could enact a plant varieties protection law based on a model of the International Union for the Protection of New Varieties of Plants (UPOV).
The review of Article 27.3(b) began in 1999 as required by the TRIPS Agreement. The topics raised in the TRIPS Council’s discussions include: the pros and cons of various types of protection for new plant varieties (patents, UPOV, etc); how to handle moral and ethical issues (e.g. whether invented life forms should be eligible for protection); how to deal with traditional knowledge and the rights of the communities where genetic material originates (including benefit sharing when inventors in one country have rights to creations based on material obtained from another country); and whether there is a conflict between the TRIPS Agreement and the UN Convention on Biological Diversity (CBD).
Countries have expressed a range of opinions on all these subjects. For example, one proposed idea would require patent applicants to disclose the origin of genetic material used, which advocates say would make benefit sharing easier to implement. An alternative view emphasizes benefit sharing through prior agreement between the researchers and the host country where the genetic material originates, instead of disclosure in patent applications.
Some are seeking clarification on issues such as the meaning of the term “micro-organism” and the difference between “biological” and “microbiological” processes. Some countries say life forms and living creatures should not be patented and that ethical questions should also be discussed.
Some developing countries want to make sure that the TRIPS Agreement takes account of more specific concerns such as allowing their farmers to continue to save and exchange seeds that they have harvested, and preventing anti-competitive practices which threaten developing countries’ “food sovereignty”. And so on.
Many of these points underlie the discussions on the draft ministerial declaration, although the text will not go into detail — it will establish a means of addressing these points.
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New technologies can cover anything from biotechnology to electronic commerce. Members differ on whether the Ministerial Declaration’s portion on TRIPS should refer to the TRIPS Agreement keeping abreast of new technologies as a whole. Some biotechnology issues are raised under Article 27.3(b), biodiversity and benefit sharing. The TRIPS Council’s discussions on e-commerce have raised a number of questions including Internet domain names and electronic trading in copyrighted material. The TRIPS Council is also following discussions outside the WTO, particularly in the World Intellectual Property Organization.
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Non-violation cases (Article 64.2)
In principle, disputes in the WTO involve allegations that a country has violated an agreement or broken a commitment.
Under the goods agreement (GATT) and the services (GATS) specific commitments, countries can complain to the Dispute Settlement Body if they can show that they have been deprived of an expected benefit because of some governmental action (for example a new production subsidy on an item on which a tariff concession has been made) — even if it does not violate one of these agreements. The purpose of allowing these “non-violation” cases is to preserve the balance of advantage (such as market-access opportunities) struck during multilateral negotiations.
The TRIPS Agreement (Article 64.2) temporarily banned non-violation disputes. It says non-violation complaints cannot be brought to the WTO dispute settlement procedure during the first five years of the WTO Agreement (i.e. 1995–99)
There are different views about whether this ban continues. However, the TRIPS Council has continued its discussion on whether non-violation complaints should be allowed in intellectual property, and if so, to what extent. At least one country says non-violation cases should be allowed in order to discourage members from engaging in “creative legislative activity” that would allow them to get around their TRIPS commitments. Some would like to see the ban continued, and have been calling for ministers to state this in their Doha declaration. Some have suggested additional safeguards.
Opinions also differ as to whether non-violation cases can now automatically be brought to the WTO dispute settlement procedure, or whether the TRIPS Agreement requires the “scope and modalities” of non-violation cases to be sorted out first.
Developing countries’ compliance
On 1 January 2000, developing countries had to comply with the TRIPS Agreement. (Least-developed countries have until 1 January 2006, with the possibility of a further delay.) The TRIPS Council has begun a two-year programme of reviewing the developing countries’ TRIPS-related laws. A number of developing countries say they have difficulty implementing the agreement and have asked for some deadlines to be postponed, particularly the 2006 deadline for least-developed countries, and more generally, developing countries’ obligations on pharmaceutical and biotechnological inventions. Some developed countries say it is too soon to consider postponing the 2006 deadline.
In the preparations for the Doha Ministerial Conference, technology transfer has been discussed as an “implementation” issue — i.e. among the problems developing countries say they face in implementing the current WTO agreements. Developing countries stress that technology transfer is a key part of the TRIPS Agreement since it appears in the objectives (Article 7), principles (Article 8), and a number of other articles. They propose action to promote more effective implementation of technology transfer provisions in general (Articles 7 and 8), and developed countries’ obligations to provide incentives for their enterprises and institutions to transfer technology to least-developed countries (Article 66.2)
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Review of the TRIPS Agreement
The TRIPS Council began reviewing the TRIPS Agreement in 2000, as required by Article 71.1. Some countries want the review to focus on an examination of how well the TRIPS Agreement has met its objectives and principles.
The objectives are spelt out in Article 7 which says “The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”
The principles (Article 8) allow countries to “adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of” the TRIPS Agreement; and to take action “to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.”
Some other members want the review to be based on actual experience with implementation.