<incom> Khor, Clash in TRIPS Council on IPR enforcement issue

[Soenke Zehle]

TWN Info Service on WTO and Trade Issues (Nov06/04)
<http://www.twnside.org.sg/title2/twninfo478.htm>

2 Nov 2006

Clash in TRIPS Council on IPR enforcement issue
By Martin Khor (TWN), Geneva, 28 Oct 2006

Many developing countries have opposed another attempt by the European 
Union and other developed countries to have the TRIPS Council of the WTO 
to deal with enforcement of intellectual property rights.

At a formal meeting of the TRIPS Council on 25-26 October, the 
developing countries (including Argentina, Brazil, India, China, 
Venezuela and Chile) strongly rejected a proposal by The European 
Communities, United States, Japan and Switzerland on "enforcement of 
intellectual property rights."

The developing countries also objected to a request by the EU to make a 
presentation on its experience with enforcing IPRs. They said that 
allowing such a presentation would be to legitimize one of the proposals 
(which they had rejected overall) i. e. that the TRIPS Council discuss 
and share experiences on how to implement enforcement of IPRs.

According to a trade official, the debate on how to proceed went on for 
quite a long time. The TRIPS Council chairperson, Ambassador Trevor 
Clarke of Barbados, had to suspend the meeting because of the 
differences on how to proceed. Eventually, a compromise was agreed, in 
which the EU could make a shorter presentation and only in oral form, 
with details to be sent later in writing.

The enforcement issue had been placed on the agenda by the EU, which was 
following up on its earlier attempts in previous TRIPS Council meetings 
to place enforcement issues on the agenda. The earlier attempts had also 
been opposed by several developing countries.

In the view of the developing countries, the TRIPS Council should not be 
a forum for discussing the enforcement of IPRs of WTO members.

The EU has however been attempting to put this topic on the TRIPS 
Council agenda. It has now been joined by the three other developed 
members. Jointly, the four members distributed an informal paper on 
enforcement of IPRs.

The paper said effective IPR enforcement is important, referring to 
rapid expansion of global counterfeiting and piracy activity which was 
partly due to availability of new technologies, and which harmed society 
as a whole.

The paper added that the TRIPS Council is an "appropriate forum to 
examine and assist Members in the implementation and enforcement 
provisions of the TRIPS Agreement". It acknowledged that Members are 
free to determine the method of implementing enforcement provisions but 
added that such implementation must ensure adequate achievement of the 
TRIPS objectives.

"The co-sponsors are convinced that the exchange of experiences and best 
practices in the TRIPS Council involving all Members would enable all 
Members to better understand where the problems are, how they can be 
addressed and what the TRIPS Council can do," said the paper.

The paper's co-sponsors made three proposals: (1) that Members discuss 
how to implement the enforcement provisions of TRIPS in a more effective 
manner; (2) that they discuss "accompanying measures" to enhance 
effectiveness of national implementing legislation and enforcement 
efforts (such as promoting inter-agency cooperation, fostering higher 
public awareness, reinforcing institutional frameworks); and (3) that 
the Secretariat prepare a synopsis of Members' contributions to the 
Checklist of Issues on Enforcement that would be the basis for the above 
discussion.

The co-sponsors added that they are ready to better focus the technical 
assistance they provide in favour of developing countries in order to 
facilitate the implementation of enforcement provisions.

In the discussion on the paper, several developing countries strongly 
opposed the proposal, as they had done when the EU had first brought up 
the enforcement issue at previous Council meetings.

According to a trade official, the developing countries put forward many 
arguments against the proposal. Among them were that:

* Implementation and enforcement of obligations on IPRs are issues that 
are the purview of national legislations, and should not be under the 
TRIPS Council.

* The issue of weak implementation of TRIPS provisions can be dealt with 
by other means, such as the national trade policy reviews and the 
dispute settlement system.

* The paper places the developing countries as the focus of "piracy" 
problems.

* The proposals imply that the Council's work and technical assistance 
should be focusing on enforcement provisions of the TRIPS agreement, 
when the Council's work should not stress only obligations but also 
cover the rights and flexibilities that Members enjoy.

This latest attempt by the EU, now joined by the US, Japan and 
Switzerland, to put enforcement of developing countries' IPR obligations 
at the front of the TRIPS Council's agenda is part of a comprehensive 
drive by the developed countries to make use of international 
organizations and bilateral agreements to get the developing countries 
to more strictly enforce IPR laws and standards.

The paper put before the TRIPS Council says the co-sponsors "take note 
of the Statement made by the G8 on 16 July 2006 on Combating IPR Piracy 
and Counterfeiting."

The developed countries have also tried to bring up the enforcement 
issue at meetings of the World Intellectual Property Organisation 
(WIPO), as well as to include it in provisions of bilateral and regional 
free trade agreements.

Although the developing countries have been beating back the attempts at 
the TRIPS Council, the developed countries can be expected to maintain 
their joint pressure at future meetings to get the Council to accept 
enforcement as one of the issues under its umbrella.

The Council meeting also discussed several other issues, including the 
relation between TRIPS and the Convention on Biological Diversity, the 
annual transitional review of China, annual review of TRIPS and public 
health, and implementation of TRIPS article 66.2 on technology transfer.

On the related issues of review of article 27.3b (on patenting of life 
forms) and the TRIPS/CBD relationship, Peru presented a paper (in 
Spanish) which gave more clarifications and details of a 
previously-submitted proposal to amend the TRIPS agreement so as to 
require disclosure of the source of origin in patent applications 
involving genetic resources and associated traditional knowledge.

Peru said examples provided previously related to potential cases of 
biopiracy. Disclosure of origin and/or source would help the government 
to identify new inventions using Peru's native resources, and properly 
verify if they were obtained legally.

Peru added that examples in the past show how difficult it is to follow 
all possible cases of biopiracy without a disclosure requirement. Such a 
requirement is needed to ensure the implementation of the CBD.

Peru's statement was supported by many developing countries, according 
to a trade official. These included Ecuador, Brazil, India, Venezuela, 
Malaysia, China, Sri Lanka, Thailand, Dominican Republic and Kenya.

Many developing countries called for discussions to proceed based on a 
text, using as a starting point a draft amendment presented by a group 
of countries in May (IP/C/W/474). Norway was the sole developed country 
that also spoke in favour of a disclosure solution.

Several developed countries however spoke against amending the TRIPS 
agreement. These included the US, EC, Japan, South Korea, Switzerland, 
Australia, New Zealand, and Canada.

While voicing appreciation for the clarifications by Peru, they were of 
the view that it is premature to go to negotiations on a text, according 
to a trade official. These countries also did not believe there is a 
conflict between provisions of the CBD and TRIPS. They said that the use 
of national legislation would be the best way to deal with biopiracy cases.

Many of them were also of the view that traditional knowledge databases 
could be developed for use by patent examiners.

The Chair of the Council concluded that although there is understanding 
on the objectives, there has been no movement on the positions of the 
various Members.

On the annual review of the TRIPS and Public Health issue, Switzerland 
and El Salvador announced that they had ratified the amendment of the 
TRIPS Agreement that had been agreed to by the WTO in December 2005.

The amendment introduces a waiver to a TRIPS provision that compulsory 
licenses would be allowed predominantly for domestic supply. The waiver 
would apply to allow for supply to countries with no or inadequate 
pharmaceutical drug production.

The TRIPS amendment would make permanent the waiver agreed to in August 
2003. It will come into force only after two thirds of WTO members 
ratify it.

To date, only three members have accepted the amendment. The Council 
chairperson, Ambassador Clarke, urged members to speed up their 
acceptance and the Council asked the Secretariat to prepare periodic 
notes on the status of acceptance.

On the agenda item of China's annual Transitional Review (which is 
undertaken in line with China's accession agreement), China provided 
information in writing, in response to written questions that had 
earlier been submitted by the US, EU and Japan.

China said it had formulated new regulations relating to its TRIPS 
Commitments, that it is strengthening law enforcement with more 
effective penalties; and that it had established service centres to 
receive complaints on IPR infringements.

It also circulated documents to the meeting, including a report on 
Intellectual Property Protection in 2005; China's Action Plan on IPR 
Protection for 2006; this year and a book on "Protect Your Intellectual 
Property Rights in China".

China also said that five years after it joined the WTO, its IPR system 
is fully consistent with the TRIPS agreement and that it has fully 
implemented its accession commitments.

According to a trade official, Japan, the US and EU thanked China for 
the answers and the Chinese recognition that protecting intellectual 
property rights is important.

However, they said that some questions remained unanswered, that TRIPS 
infringements in China remain at high levels and more efforts are needed 
to provide effective protection.

Some said their companies have difficulty pursuing cases and that 
infringement cases are not pursued adequately under criminal law. Some 
Members said they are engaging bilaterally with China.