by Chakravarthi Raghavan

Geneva, 21 Mar 2000 -- Informal consultations are expected to be held within the WTO's Council for TRIPS (Trade-Related Aspects of Intellectual Property Rights) on the issue of review of Art.27.3 (b) of the agreement relating to plant variety protection and proposals for expanding the protection of geographical indications of origin for wines and spirits to other products.

The TRIPS Council which met informally on Wednesday morning, and then formally, is to meet again in June.

But the entire process of taking up mandated reviews and negotiations in TRIPS is stymied by the continuing disputes over the chairmanship of the agriculture committee, and resulting in the TRIPS Council not having a new chairman.

Normally, the outgoing chair hands over to the new chair at the first meeting of the WTO body in the year. The naming of Finland's Pekka Huhtaniemi as TRIPS Council chair has however been blocked, because of the EU's vetoing of Brazilian ambassador, Celso Amorim to chair the agriculture committee and lead the mandated agriculture negotiations at the Special Sessions of the Committee.

There had been some talk Tuesday that the current chairs of both committees (Colombia in the Agriculture Committee and Uruguay in the TRIPS) should continue in their offices until the tangle over the chairmanships are sorted out.

But the concluding remarks of outgoing chairman of the TRIPS Council, Uruguayan Ambassador Carlos Perez del Castillo, reportedly made clear that this was his last meeting and function as TRIPS Council chair.

This left open the question whether the consultation role envisaged between now and the next meeting can be in place will be filled by the secretariat (without a specific decision), and whether this would result in a hijacking of the WTO programmes and agendas as happened before Seattle.

At the TRIPS Council, Poland speaking for the CEFTA members (Czech Republic, Hungary, Poland, Romania, Slovenia and the Slovak Republic), and Latvia and Estonia called for negotiations on geographical indications, and for expanding the higher level of protection currently given to wines and spirits to other products.

This was supported by Turkey, India, Switzerland, Pakistan, Mauritius, Sri Lanka, Egypt, Hungary and Cuba, and to some extent by the EU.

But the proposal was opposed by Argentina, New Zealand, US, Australia, Canada, Chile, Mexico and Brazil.

On the review of Art.27.3 provisions of the TRIPS (providing for patenting of micro-organisms, but enabling countries not to patent plant varieties but have a sui generis system), initially in the informal meeting the US reportedly took the position that this review process was over and nothing further was required.

However, at the formal meeting, according to a participant, the US reversed itself and said it was ready to discuss these questions.

Sub-paragraph (b) of Art 27.3, calls for the review of the provisions to be undertaken four years after the entry into force of the WTO, namely by 1999. Though it was technically taken up, it was not completed because of the way the Seattle Ministerial meeting collapsed.

On the issue of additional protection for geographical indications for wines and spirits, Art. 23.4 of TRIPS calls for negotiations to be undertaken by TRIPS Council for the establishment of a multilateral system of notifications and registration of geographical indications for wines eligible for protection in the WTO members participating in that system.

The EC has been pressing for negotiations for a multilateral system of notifications, while a number of other countries had been arguing that any such negotiations should also include the issue of expanding the coverage to other products. As part of the preparatory process for Seattle, a number of countries had made specific proposals for negotiations to expand the provisions for protection of geographical origins to cover also products other than wines and spirits.

At the TRIPS Council Tuesday, those pressing for expansion of the higher levels of protection for geographical indications of origin, said that if benchmarks, that is target dates for various stages of negotiations, were to be set in agriculture and services, there should be similar benchmarks set for the negotiations under Art. 23.4.

The EU, while supporting the negotiations for expanded coverage and protection, did not refer to the idea of setting benchmarks for these. The EU however promised that it would be submitting a new paper on the issue of multilateral notification and registration system for geographical indications.

The protagonists of the expanded coverage and protection complained that the mandate to negotiate this issue was provided in the TRIPS agreement, but after four years of implementing TRIPS, there had been no progress either on negotiating a multilateral system of notification and registration of geographical indications for wines and spirits (Art. 23.4) or on expanding the higher level of coverage to other products.

The US and some members of the Cairns group, but also Mexico, opposed this view and said the negotiations on geographical indications could not be put on the same level as the mandated negotiations on agriculture and services.

The TRIPS Council, they said, should not allow attention to be diverted away from the current negotiations on setting up a multilateral notification and registration system for geographical indications.

The review under Art.27.3 (b) of TRIPS, relating to patenting of life forms, covers a particularly controversial aspect of the Uruguay Round negotiations and the agreement became possible only in terms of the compromise language used -- for e.g. patent protection for micro-organisms (without defining them, and according to some scientists, an area that defies definition) and enabling countries not to have patents for plant varieties provided they have an 'effective sui generis' system in place. For most developing countries, on one reading this requirement, kicked in on 1 Jan 2000.

The review process became controversial too, since Art 27.3 (b) does not define parameters of a 'sui generis' system, nor what is 'effective'. There are also issues raised by the fact that genes and micro-biological processes do not qualify to be 'inventions' and hence not patentable in terms of the definition of patentable subject matter.

Other controversies relate to the issue of benefit sharing and 'bio-piracy' by transnational pharmaceutical firms, conflicts between TRIPS and Convention on Biological Diversity (in relation to access to biological resources of a country).

A number of non-governmental organizations, from the North and South, had also assailed the attempts to make the UPOV system as the sui generis system, and contended that UPOV (Union for Protection of new Varieties of Plants) deprived farmers of their traditional rights, and endangered food security, particularly in developing countries with their marginal and subsistence farmers.

While the review of the provisions started in 1999, with developing countries putting forward a number of concrete proposals, they did not conclude.

At the informal meetings of the TRIPS Council, the US suggested that the review was over and nothing further was required, but it changed its stance in the official meeting, and said it was willing to discuss this matter.

Perhaps the US position is related to the many other uncertainties from the way the Seattle meeting collapsed - with the conference 'adjourned', without any conference decision as such, but merely a final concluding statement by the chair of the conference, US Trade Representative Charlene Barshefsky.

Barshefsky also announced at Seattle that all the proposals on the table were 'frozen', but her view was challenged and repudiated by the EC Commissioner Pascal Lamy, and also by the Guayana Foreign Minister (then chair of the Group of 77) in an interview.

After Seattle, when the TRIPS Council met in December last, the Chairman (reflecting the decisions and understanding at the post-Seattle General Council meeting) said that consultations on the Seattle issues, including TRIPS, would continue in the New Year and that countries should exercise restraint.

One trade diplomat commented after Tuesday's meeting, things are in a mess, and whether stated or not, linkages, explicit (as stipulated by Cairns members between Agriculture and Services) and implicit (with implementation issues as had been made clear by India and others) are there and are not likely to go away.

Neither the major trading entities (the US and EC) pursuing the neo-mercantalists agendas of their corporations nor the WTO head seem to be able to come to grips with this situation. Calling for new rounds and comprehensive agendas etc is not going to solve these problems. (SUNS4632)

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

[c] 2000, SUNS - All rights reserved. May not be reproduced, reprinted or posted to any system or service without specific permission from SUNS. This limitation includes incorporation into a database, distribution via Usenet News, bulletin board systems, mailing lists, print media or broadcast. For information about reproduction or multi-user subscriptions please contact < >