by Martin Khor

Geneva, 2 Nov 99 -- Discussions at the informal Heads of Delegation level on a draft Ministerial Declaration for Seattle, which addressed the issues relating to TRIPS, showed some clear difference of views on how to deal with future work in this area.

The informal HOD discussed Monday alternative proposed language on TRIPS figuring in two different sections of the draft Text: paras 32 and 33 of the chairman's draft (on other subjects proposed for negotiation) and para 51, on other elements of a work programme.

Last week, TRIPS issues and proposals had also been discussed under the 'Implementation' paragraphs, including the proposals of some key developing countries on immediate actions, and under subjects to be acted upon in one year.

At the Monday HOD meeting, several countries complained that the treatment of TRIPS in the draft Ministerial Text was very confusing as so many proposals, and alternatives to these proposals, appear in so many parts of the draft Text.

Several developing countries, including the like-minded group (LMG), and the African Group, had submitted proposals on reviewing and amending various aspects of TRIPS.

Some of these proposals include the need to review Article 27.3b to clarify artificial distinctions between life forms and to clarify that all living organisms and their parts cannot be patented; the need to extend exemption from patenting for essential drugs under the WHO list; technology transfer obligations under Article 66.2 to be made mandatory, and extension of the implementation deadline for Article 27.3b) had been reflected in paras 21 and 22 under 'Implementation'.

However, these had been rejected during the discussions last week by the United States which said that it was against renegotiating the Uruguay Round agreements and thus could not accept the implementation proposals of developing countries.

On Monday at the informal HOD, the Czech Republic spoke in favour of the proposal (in para 33) on extending the protection now given to geographical indications for wines and spirits, to other product areas. This was supported by several countries, including India, Panama, Switzerland, Turkey, and Venezuela.

But several other countries spoke against extending the coverage. These included Hong Kong-China, Korea, Australia, Chile and Canada. Implicitly, the US and Japan were also opposed.

Some countries,including the Czech Republic, Hong Kong, and Korea, spoke in favour of extending the moratorium on non-violation complaints under TRIPS.

Non-violation complaints are complaints under Art.XXIII.1 (b) and (c) -- complaints of nullification and impairment caused by measures taken by a Member, which do not conflict with the provisions of the agreement or any other situation. In the GATT context of trade in goods these have been generally used in terms of the concept of 'expectations' of trading partners. But its invocation for TRIPS, which only creates normative obligations in domestic laws has not been clear.

The HOD meet also discussed two alternative texts (both in brackets) under the future work programme.

The first option has four points: that the TRIPS Council shall: (i) establish a system for notification and registration of wines and spirits eligible for protection and expanding the product coverage of Article 23; (ii) review Article 27.3b to clarify its provisions and consider action to have a supportive relation between TRIPS, biodiversity and CBD; (iii) examining scope for protection of traditional knowledge of indigenous and local communities; and (iv) in reviewing Article 71.1, enhance the TRIPS objectives in Articles 7 and 8.

The second option (which reflects the US view) contains only two points, that the TRIPS Council shall: (i) complete mandated reviews and negotiations under the TRIPS built-in agenda aimed at effective and timely implementation (including establishing a system to notify and register geographical indications, as well as the review of implementation of the Agreement); and (ii) consider in due course whether modifications to the Agreement are warranted, "it being understood that in any future negotiations no consideration will be given to lowering existing TRIPS standards."

The US argued for the second option of para 51 and asked for the deletion of para 51 (first option) as well as paras 32 and 33. It thus made clear it wanted a narrow agenda on TRIPS at Seattle, as even any modifications to TRIPS that are to be considered cannot lower existing TRIPS standards under its proposed second option in para 51.

In its presentation, Japan wanted to delete the point dealing with TRIPS and CBD in para 51, as it did not consider to mention the CBD in the context of TRIPS or a new round of negotiations or work programme.

The EU said geographical indications in para 32 were part of the built-in agenda and needed to be negotiated. It felt most of para 32 (except the first indent on geographical indications) was a good basis for discussion. On the para 51 options, the EU said it would like to see first how paras 32 and 33 are dealt with. Argentina agreed with para 32. As for para 51 options, this could be analyzed only when it was clear how the paras on TRIPS in the 'Implementation' section are handled. (SUNS4543)

Martin Khor is the Director of Third World Network.

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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