TRIPS review still hanging

TRIPS MEETING LEAVES REVIEW QUESTIONS UNANSWERED

At the year's first meeting of the WTO's Council for Trade-Related Aspects of Intellectual Property Rights (TRIPs) [on 21-22 March 2000], delegates addressed, among other topics, the review of article 27.3(b) (on intellectual property protection for plant varieties), the mandated review of the TRIPs Agreement itself, and the status of non-violation complaints.

With respect to Article 27.3(b), the session focused primarily on procedural issues. Members debated whether they should continue with wide-ranging discussions or organise more structured sessions that would focus on specific issues such as how to address traditional knowledge, community rights, biodiversity, and ethical questions of IP protection for life forms. Most speakers favoured a topic list, but a few delegates commented that some of the suggested issues might not fall under Art. 27.3(b). The US said it was willing to consider other Members' comments but questioned the need to continue the review of this article.

According to Article 71 of the TRIPs Agreement, Members are mandated to review the implementation of TRIPs starting in 2000. TRIPs chair Amb. Carlos Perez del Castillo of Uruguay invited written suggestions from Members and said he or his successor will consult informally on how to proceed and report back at the next meeting, scheduled for 26-30 June. The Council meeting was del Castillo's last as chair. Due to ongoing deliberations on the selection of the chair for the Committee on Agriculture, the TRIPs Council concluded without the nomination of a replacement chairperson.

Most speakers at the Council -- including the EU, Canada, Poland (on behalf of a large group of Central and Eastern European countries), S. Korea, Australia, Singapore, Japan, India and Pakistan -- took the position that a moratorium on non-violation complaints should remain in effect until new provisions on "scope and modalities" of these complaints are agreed upon. Non-violation complaints refer to the ability of a Member to bring a complaint to the WTO dispute settlement system based on the loss of an expected benefit as a result of another Member's actions even if no agreement or commitment has actually been violated.

Contrary to this approach, the US argued that the moratorium on non- violation complaints automatically expired on 1 January 2000. Nevertheless the US delegate pointed out that the US is not preparing non-violation dispute cases for the near future, indicating that for the moment the US would focus complaints regarding TRIPs based on violation only.

The United States has previously indicated that its position on transition periods expiring at the end of 1999 (such as those in TRIPs) "should be taken up on case-by-case, country-by-country basis, so as to ensure that the real concerns of Members - and the balance of rights and obligations - [is] preserved". Thus while the US has notified WTO Members that it will exercise restraint in bringing countries to heel over their TRIPs obligations, it reserves its rights to do so in the event that others fail to make credible attempts at meeting their TRIPs commitments.

According to the TRIPs Agreement, developing countries are obliged to ensure that patent protection mechanisms are in place as of January 2000, though at a 17 December 1999 meeting of the General Council, Members agreed to "exercise restraint" with respect to expiring deadlines (see BRIDGES Weekly Trade News Digest Vol. 4, Number 1, 10 January 2000,
http://www.ictsd.org/html/weekly/story1.10-01-00.htm
). While talks on deadlines are ongoing in both the Committee for Trade- Related Investment Measures (TRIMs) and in the Committee on Customs Valuation, the topic has yet to be tackled in the TRIPs Council.

In related news, representatives from a number of non-governmental organisations in Indonesia urged the government in Jakarta to delay the enforcement of IPRs in the country. At a workshop on the piracy of biological resources, or biopiracy, activists asserted that the interests of local communities, who some argue own these resources, had yet to be protected by law. The Indonesian government is currently in the process of drafting patent legislation.

Addressing the workshop, Tini Hadad, an executive board member of the Indonesian Consumers Foundation, said, "people aren't ready to use patents, and developed countries are abusing this for their own interests." Echoing Hadad's comments, State Minister of Environment Sonny Keraf described biopiracy as a new form of imperialism. Keraf noted that developed states benefit from developing countries' slow anticipation of patents. The minister said a patent is an acknowledgment of intellectual rights, but added it was not fair to patent biological diversity.

"NGO seminar urges campaign against 'unfair' biopiracy," POSTED BY biotani(at)rad.net.id ON WTO AGRICULTURE IMPACT LIST, 19 March 2000; ICTSD Internal Files.