AFRICA GROUP PROPOSALS ON TRIPS FOR WTO MINISTERIAL
The Africa Group has put forward a set of major proposals on the TRIPS Agreement for the WTO’s 4th Ministerial Conference. The proposal was submitted by Zimbabwe, the current coordinator of the Africa Group, to the Chairman of the WTO General Council, for inclusion in the next draft of the Ministerial Declaration. The paper was written in the language of the Declaration. It was circulated at an informal consulation on TRIPS at the WTO on Sunday 4 October 2001.
The submission of the paper is a major development as it sets out the views of such a large number of developing countries, and it puts forward a set of proposals for major reform of the TRIPS Agreement.
The proposal contains 6 categories of issues and proposals as follows:
(1) affirmation that the interpretation of each provision of TRIPS shall be guided by Articles 7 and 8 of the Agreement;
(2) immediate implementation of the mandatory obligations by developed countries under Article 66.2 of TRIPS to provide incentives for technology transfer to least-developed countries;
(3) completion of the review of Article 27.3(b) by 2002 which would clarify that patenting of life forms would be prohibited and affirming the right of each Member to determine the appropriate sui generis systems for protection of plant varieties;
(4) affirmation of the common understanding that the TRIPS Agreement does not prevent Members from taking measures to protect public health;
(5) non-application of non-violation complaints to the TRIPS Agreement; and
(6) direction to the TRIPS Council to undertake the review under Article 71.1, and to take account of new developments which necessitate amendment of the TRIPS Agreement.
Below are the following:
(1) Full text of the Africa Group proposal
(2) A brief commentary on some aspects of the proposal.
AFRICA GROUP PROPOSAL ON:TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS
(Proposals for alternative text to Draft Doha Declaration)
Articles 7 & 8
We affirm that each provision of the TRIPS Agreement shall be read and interpreted in light of its objectives, principles and purpose, as set out in Articles 7 & 8 of the TRIPS Agreement.
Article 66.2 [refers also to Implementation Decision, Annex I, tiret 90]
In light of the mandatory nature of obligations under Article 66.2 of the TRIPS Agreement, we agree that developed country Members shall put into immediate effect meaningful incentives for the purpose of promoting and encouraging technology transfer. We further instruct the TRIPS Council to implement, by January 2002, a process of notification by developed country Members of the incentives provided by them in their implementation of Article 66.2. We further instruct the TRIPS Council to conduct an assessment of the effectiveness of such incentives in fulfilling the objectives of Article 66.2, and to consider new and additional measures to ensure the transfer of technology from developed country Members to least-developed country Members.
Review of Article 27.3(b)
We note with concern the lack of progress in the review of Article 27.3(b). We instruct the TRIPS Council to complete the review process by 2002. In the review process, Article 27.3(b) shall be clarified to eliminate the artificial distinctions made between plants and animals, and micro-organisms; and between essentially biological processes, and microbiological processes. The review process shall therefore clarify that plants and animals, as well as micro-organisms and all other living organisms and their parts, cannot be patented, and that natural processes that produce plants, animals and other living organisms shall also not be patentable.
With regard to the protection of plant varieties, the TRIPS Council shall clarify that Members have the right to determine the appropriate sui generis system for the protection of plant varieties that is best suited to their interests. The implementation of this provision shall not prevent developing country Members from implementing sui generis sytems that accord due recognition to farmers and local communities for their traditional knowledge, ensure food security and safeguard farmers’ livelihoods. Such sui generis systems shall also not undermine traditional farming practices, including the right of farmers to save, use, exchange and sell seeds, as well as, to sell their harvest. We further agree that the transition period for the implementation of Article 27.3(b) shall be extended for a further five years from the date its review is satisfactorily completed.
We affirm our common understanding that nothing in the TRIPS Agreement prevents Members from taking measures to protect public health. In line with this common understanding, we endorse a clarification and interpretation of the TRIPS Agreement, as contained in the Ministerial Declaration on TRIPS and Public Health, that will allow and encourage Members, particularly developing country and least-developed country Members, to avail themselves to the widest range of policy options for the protection and promotion of public health.
Non-violation complaints [refers also to Implementation Decision, Annex II, tiret 89]
We agree that Article 64.2 shall be modified so as to make it clear that subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 shall not apply to the TRIPS Agreement.
Review under Article 71.1
In view of serious concerns expressed by Members and the general public regarding the imbalances of the TRIPS Agreement, we agree that, in the review of the TRIPS Agreement under Article 71.1, it shall be appropriate for the TRIPS Council to take into account new developments that warrant modification and amendment of the Agreement. In so doing, the TRIPS Council shall work out the necessary amendments that ensure the ability of developing country Members to fully meet the objectives and principles of the TRIPS Agreement, as contained in Articles 7 & 8. This includes amendments to enable developing country Members to balance public policy objectives with the interests of rights holders, as appropriate to their national needs and conditions, and to allow developing country Members maximum flexibility in their implementation of the TRIPS Agreement. Among others, the TRIPS Council shall examine the effects of the TRIPS Agreement on public health, with particular emphasis on access to medicines, and research and development on medicines for the prevention and treatment of diseases predominantly affecting people in developing and least developed countries, with a view to excluding such medicines from patentability in order to ensure their accessibility and affordability.
BRIEF COMMENT ON SOME ASPECTS OF THE AFRICA PROPOSAL
By Cecilia Oh, Third World Network
The following is a comment and background on three of the issues raised by the Africa Group proposal.
1. Review of Article 27.3(b)
Paragraph 16 of the draft Ministerial Declaration merely instructs the TRIPS Council to give ‘due attention’ to the issues of the TRIPS-CBD relationship, traditional knowledge, non-violation complaints and new technological and other developments. It does not make reference to the many and carefully-articulated demands of the Africa Group and other developing countries to review and clarify the provisions of Article 27.3(b) on patenting life forms and protection of plant varieties.
Prior to the Seattle Ministerial Conference, the Africa Group had in August 1999 submitted a comprehensive proposal on the TRIPS Agreement, and in particular for the revision of Article 27.3(b). This 1999 proposal had called for clarification that living organisms cannot be patented and also contained many suggestions on the sui generis option for plant variety protection. A brief summary of this proposal had been incorporated, in square brackets, in the draft text for the Seattle Ministerial Declaration (the October 19 text), but is conspicuously absent from the current draft Ministerial Declaration for Doha.
The present Africa Group proposal attempts to include the key points of its previous 1999 proposal and its other proposals in the 4th Ministerial Declaration. The present proposal would have the Ministers instruct the TRIPS Council to complete the review process of Article 27.3(b) by 2002, in which it would be clarified that living organisms and natural processes cannot be patented, and that each Member has the right to determine appropriate sui generis systems for the plant variety protection, as is best suited to their interests.
2. Technology transfer
Many other proposals made by developing countries in the pre-Seattle text and at the TRIPS Council and implementation process following Seattle are also absent from the draft declaration. There is no mention of the technology transfer objectives or obligations in the TRIPS Agreement. Although Article 66.2 of TRIPS is referred to in the draft Implementation Decision, this does not give adequate weight to the fact that little has been done by developed countries in terms of their implementation of the mandatory obligations under this provision.
The Africa Group has proposed more concrete measures (on implementation of Article 66.2 on technology transfer) to be incorporated into the Doha Ministerial Declaration. The proposal requires developed countries to put into “immediate effect meaningful incentives for the purpose of promoting and encouraging technology transfer”. The Group has also proposed that developed countries should notify the TRIPS Council of the incentives provided in compliance of their Article 66.2 obligations, much along the same lines as the notification process for implementation of the other TRIPS provisions, which all WTO Members have to undergo. The proposal also asks that the WTO consider new and additional measures (beyond the present provision of incentives) to ensure the transfer of technology from developed country Members to least-developed country Members.
3. TRIPS and public health.
There has been increased public concern and protests over the exorbitant prices of some essential medicines, and the role played by the TRIPS Agreement in facilitating or acceleration the process of monopoly by patent holders. Since March 2001, there have been many discussions (including in special sessions) on clarifying the flexibilty of WTO member countries to make use of measures such as compulsory licenses and parallel importation. The African countries, together with many other developing countries, are attempting to draw up a separate declaration on TRIPS and public health at the 4th Ministerial meeting; however there is a clash between some major countries and the developing countries over the interpretation of TRIPS. The proposed text is a summary of the position put forward by the Africa Group on this issue.
4. Review of Article 71.1
In the TRIPS Agreement, WTO Members are mandated to conduct a review of the Agreement. This review, under Article 71.1, is not mentioned at all in the draft Ministerial declaration. This is surprising as the review is mandated. The Africa Group has proposed language on the mandated review of TRIPS under Article 71.1. Article 71.1 provides for two types of reviews. The first type is a review of implementation of the Agreement 2 years after expiry of the transition period. The second type is a review where the TRIPS Council may take account of new developments that necessitate amendment of the TRIPS Agreement.
The Africa Group proposal involves Ministers directing the TRIPS Council, in the implementation review due in 2002, to also take account of such new developments (and problems) that warrant amendment of the Agreement. It further directs to TRIPS Council to identify necessary amendments to the Agreement, including those that allow developing country Members maximum flexibility in their implementation of the TRIPS Agreement, specifically mentioning the exclusion of certain medicines from patentability in order to ensure their accessibility and affordability (see Africa Group proposal, below).