TITLE: Reconciling TRIPS with CBD, development... AUTHOR: Chakravarthi Raghavan PUBLICATION: SUNS (South-North Development Monitor), #4482 DATE: 22 July 1999 SOURCE: Third World Network, Geneva URL: http://www.twnside.org.sg RECONCILING TRIPS WITH CBD, DEVELOPMENT... Geneva, 21 July (Chakravarthi Raghavan) -- Proposals to review and change some of the provisions of the Agreement on Trade- Related Intellectual Property Rights (TRIPS) are now before the World Trade Organization -- both in the context of the preparatory process at the General Council for the Seattle Ministerial Conference and the review exercise in the TRIPS Council itself. In terms of the Seattle ministerial, and the preparations, developing countries have been formulating and presenting a range of proposals under individual agreements in terms of 'implementation' problems and issues. As one of them put it: "At the moment, we are all presenting proposals and issues, and explaining them at the informal meetings. But so far we have only been talking past each other, and not having any genuine exchange of views, leave aside serious negotiations or pre-negotiations. We may return to these after September. But it is not so clear." In terms of the TRIPS Council, Art. 27.3 (b) provides for review of the provisions of that sub-paragraph. The TRIPS Agreement, in para 27.3 (b) enables Members to exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and micro-biological processes. However, Members who exercise this non-patentability option are nevertheless required to provide for protection of plant varieties either by patents or an effective sui generis system or by a combination thereof. "The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement." In terms of this provision, the review has been mandated to be taken up in 1999. But within the TRIPS Council, in two or three meetings this year, there has been some debate and discussions, with the US, EU and others taking the position that what is required is not "review of the provisions" but "review of the implementation of the provisions." Developing countries rejected this view -- with a range of them pointing out that where the WTO and TRIPS have called for "review of implementation" they have specifically said so (as in Art 71 of TRIPS), whereas 27.3 (b) calls for review of the provisions of that sub-paragraph. The industrialized countries also argued that the paramount consideration for TRIPS review should be the commercial motivation and this would be the deciding factor for countries to take a decision on patenting of life forms. But India and others argued that not all countries and civilizations would agree that commercial motivation was a deciding element in life patenting. Governments everywhere have also to look at other elements in taking their decisions. In the light of the discussions, the developed countries appear to have come around to the view that what is contemplated is the review of the provisions, and not implementation (which for developing countries kicks in only on 1 Jan 2000). At the July meeting of the TRIPS Council, India took the issue further and has tabled a document calling for specific review of the provisions of Art. 27.3 (b). The Indian proposal was supported by a number of developing countries including the Philippines, Malaysia, Indonesia, Pakistan, Singapore, Egypt, Kenya, Brazil, Costa Rica, the Dominican Republic, and Honduras. Among the industrialized countries, the European Union said the Indian proposal for review was new, but that they contained some 'interesting ideas' and the EU was looking forward to a discussion. Switzerland was willing to look at the issues. Canada and Japan said they needed more time to react. In addition, Canada said that there was internal discussion going on within Canada on the whole issue of patenting higher life forms, and Canada would not shy away from looking at the Indian proposals. Australia noted that Art.27.3.(b) was a negotiated compromise and its position on the review was flexible. The United States has said that it would need time to reflect on it. The next meeting of the TRIPS Council is tentatively set for October. Several of the key developing countries appear to be still in the process of formulating their stands and tabling proposals in this area -- banning patenting of life-forms. Some more recent positions of scientists, with expertise in molecular biology and genetics, have challenged the idea of patenting itself -- arguing that there is no invention, and at best a mere discovery. In parallel, in the General Council's Seattle preparatory process, India has formulated proposals focusing on the issues of transfer of technology on fair and equitable terms and for operationalising Articles 7 and 8 of the TRIPS. It has also called for reconciling the provisions of the Convention on Biological Diversity and TRIPS, and incorporating provisions in TRIPS so that patents inconsistent with Art. 15 of the CBD may not be granted by any Member. Another provision in the Indian proposal calls for modifying Art 64 paragraph 2 of TRIPS, so that non-violation complaints are excluded in the dispute settlement of TRIPS. In its latest communication in July 1999 to the General Council, where it has formulated the proposals in terms of paragraph 9(a)(i) of the Geneva Ministerial Declaration (on implementation issues), India has said that its proposals are aimed at making TRIPS more compatible with Multilateral Environmental Agreements such as the Convention on Biological Diversity and make TRIPS more balanced between the task of promoting intellectual property rights and promoting developmental objectives. TRIPS, India has pointed out in a communication, is not about harmonization of standards, but minimum standards of IPRs. And unlike GATT and GATS, TRIPS is not about regulating competitive relationships. At any rate, comparisons between GATT and TRIPS, especially in the non-violation context are not correct. The Indian position formulated on the non-violation complaints issue is shared by a large number of developed countries too, like Canada. In the communication of July for the Ministerial preparatory process, India has said that, in terms of Art 23 and 24 of TRIPS (protection for geographical indications of origin), additional protection for geographical indications should be extended for products other than wines and spirits. Article 22 of TRIPS requires countries to make provisions to provide legal means for interested parties to prevent the use of any means in the designation or presentation of a good that indicates its origin in a geographical area other than true place of origin, thus misleading the public, and prevent any use constituting an act of unfair competition. Article 23 goes on to provide for additional protection for geographical indications for wines and spirits, for negotiations within the TRIPS Council for a multilateral system of notification and registration of geographical indications for wines eligible for protection. While the EU has been pushing for strengthening of the geographical indications (appellations of origin) for wines and spirits, several developing countries have now called for similar protection for other products which are specific in terms of origin -- such as basmati varieties of rice (long-grained varieties with a fragrance), specific to some regions of India and Pakistan, tea and similar products. Some of the non-European countries (including the US, Australia and some Latin Americans), producing and marketing their own wines (from varieties taken from Europe, but called by their original geographical names) have been resisting enhanced protection. The Indian proposal also calls for incorporating a provision in TRIPS so that patents inconsistent with Art 15 of the CBD are not granted. In an earlier communication, India has said that the issues to be addressed -- apart from the built-in agenda of review of Art.27.3 (b) and Art.71 or issues about patenting of plants and animals or benefit-sharing in commercial exploitation of ex situ materials -- are for harmonisation of approaches to utilisation of living resources found in TRIPS on the one hand and CBD on the other. It has however noted that the preamble to TRIPS recognizes IPRs to be private rights. In this light, Art. 27.3 incorporates specific obligations on patenting of life forms, requiring members to provide product patents for micro-organisms and for non-biological and micro-biological processes, and for protection of plant varieties, either by patents or an effective sui generis system or combination. The CBD on the other hand, in its preamble, categorically reaffirms that nation states have sovereign rights over their own biological resources, recognizes the desirability of sharing equitably benefits arising from the use of these resources as well as traditional knowledge, innovations and practices relevant to the conservation of biological diversity and its sustainable use, and acknowledges that special provisions are required to meet needs of developing countries. The Indian communication also noted that the CBD has unambiguously stated that the authority to determine access to genetic resources rests with national governments and subject to national legislation. The CBD also specifies that access, where granted, shall be on mutually agreed terms and subject to prior informed consent of the resource provider. The international community is also enjoined to respect, preserve and maintain knowledge innovations and practices of indigenous and local communities and encourages equitable sharing of benefits arising from their utilisation. India's February communication called for an obligation to be incorporated via provisions in Art 29 of the TRIPS requiring a clear mention of biological source material and country of origin in patent applications, making this part of the patent application open to full public scrutiny on filing of the application to permit countries with possible opposition claims to examine the application and state their claims well in time. Domestic laws on biodiversity would be required to ensure prior informed consent of the country of origin and knowledge holder of the biological raw material meant for use in a patentable invention -- which would enable signing of material transfer agreements or transfer of information agreements. Such a provision in the domestic law should be considered compatible with TRIPS. In its latest (2 July) communication to the General Council process, India has also called for operationalizing Articles 7 and 8 of the TRIPS agreement by providing for transfer of technology on fair and mutually advantageous terms. SUNS #4482 - 22 July 1999