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TWN
Info Service on Intellectual Property Issues (May24/01) Geneva, 30 Apr (D. Ravi Kanth) — The United States on 26 April appears to have adopted a “diversionary” stance on Colombia’s proposal for a comprehensive review of the implementation of the World Trade Organization’s controversial TRIPS Agreement, saying that it is ready to accommodate the issues as a review of the domestic implementation of the Agreement, which is contrary to the mandate, said people familiar with the development. At the WTO’s TRIPS Council meeting that concluded on 26 April, the US position seemed like skirting the main issue of a comprehensive review of the implementation of the TRIPS Agreement, which is supported by many developing countries, said people familiar with the discussions. Article 71 of the TRIPS Agreement states: “1. The Council for TRIPS shall review the implementation of this Agreement after the expiration of the transitional period referred to in paragraph 2 of Article 65. The Council shall, having regard to the experience gained in its implementation, review it two years after that date, and at identical intervals thereafter. The Council may also undertake reviews in the light of any relevant new developments which might warrant modification or amendment of this Agreement. 2. Amendments merely serving the purpose of adjusting to higher levels of protection of intellectual property rights achieved, and in force, in other multilateral agreements and accepted under those agreements by all Members of the WTO may be referred to the Ministerial Conference for action in accordance with paragraph 6 of Article X of the WTO Agreement on the basis of a consensus proposal from the Council for TRIPS.” Yet, the US has attempted to direct attention away from the core issue raised by Colombia in that it is time for members to undertake a comprehensive review, as the WTO completes 30 years of its rather “uneven” existence, said a person, who asked not to be quoted. In its proposal (IP/C/W/712), Colombia said that it aims to engage in “collaborative discussions at the WTO to identify (or produce) relevant analytical metrics and data, which are currently non-existent, incomplete, or not appropriately used, to better assess the implementation of the TRIPS Agreement over the years, and better guide the discussions and domestic policymaking process of Members.” In the same breath, Colombia also proposed the following “implementation aspects” for sustained discussions: a. To analyze both domestic and international concentration of production in knowledge-intensive sectors over the years, based on relevant metrics. b. A global stocktake on royalties paid in and out by country for the use of Intellectual Property Rights, as expressed in the Balance of Payments of countries. c. A global stocktake on the use of Compulsory Licences since 1996, with a focus on the problem of export limitations faced by “sandwich” countries (not too small, not too large). d. A global stocktake on the residency/nationality of innovators across Members, coupled with an examination of Patenting activity by Office of Subsequent Filing – OSF – (to better understand who is patenting internationally and domestically, and the incentive mechanisms that exist for innovators to go abroad). e. A related discussion on the exploitation of “disclosures” after IPRs finish their terms of protection. As an implementation matter, are these innovations/creations publicly available? Are they used by Members (especially developing ones)? Are they available for training of artificial intelligence models? (optional trigger questions). f. The utilization of Article 44(2) of TRIPS by WTO Members. RESPONSES At the TRIPS Council meeting, in response to the Colombian proposal, there was “general acceptance of the importance of a review” among members, said a participant who asked not to be quoted. Some members asked questions on the scope, the expected outcomes, and the process to be adopted by the chair to address the questions raised by Colombia, the participant said. While there was broad approval for starting the consultations in July, Switzerland opposed the idea. Switzerland, which is known for its strident opposition to any review of the TRIPS Agreement, sought to dilute the issues and shift the discussions to November, said another participant, who asked not to be quoted. South Africa on behalf of the African Group, Brazil, Thailand, Bangladesh, India, Peru, El Salvador, Uruguay, and Argentina among others lent support to the roadmap proposed by Colombia. Australia also supported the Colombian proposal at the meeting. The US, the United Kingdom, and the European Union did not oppose the Colombian proposal, but adopted some rather ambiguous positions, the person said. However, Switzerland and Canada voiced the “harshest” comments over the Colombian proposal, the person said. TRIPS FOR DEVELOPMENT Meanwhile, Bangladesh, Colombia, India, and Egypt issued a joint proposal on “TRIPS for Development.” In their proposal (IP/C/W/708), the four countries highlighted five priority areas concerning the post-MC13 work on TRIPS-related issues: “1. We, keeping in mind the upcoming 30th anniversary of the TRIPS Agreement, call upon the Council for TRIPS to undertake and finalize its first review under Article 71 on the implementation of the TRIPS Agreement. 2. Pursuant to paragraph 19 of the Doha Ministerial Declaration, we request the Council for TRIPS to expedite ongoing work to examine the relationship between the TRIPS Agreement and the Convention on Biological Diversity, and the protection of traditional knowledge and folklore. 3. We also call upon the TRIPS Council to examine how the TRIPS Agreement could facilitate transfer and dissemination of technologies to developing countries including LDCs. 4. We further call upon the Council to examine the TRIPS Agreement, the Doha Declaration on the TRIPS Agreement and Public Health of 2001 and the Ministerial Decision on the TRIPS Agreement of 2022, to review and build on the lessons learned during COVID-19, with the aim to address the concerns of developing countries including LDCs in the context of health emergencies including pandemic. 5. In undertaking this work, the TRIPS Council shall be guided by the objectives and principles set out in Articles 7 and 8 of the TRIPS Agreement and shall take fully into account the development dimension and shall provide a report on the progress made, including any recommendations, to the Ministers at the 14th Ministerial Conference.” While many developing countries welcomed the proposal from the four countries, the major industrialized countries, including the US, seemed rather indifferent and non-committal, said people, who asked not to be quoted. HIGH-LEVEL DIALOGUE Meanwhile, in a separate side event on 25 April to mark 30 years of the TRIPS Agreement, the WTO Director-General, Ms Ngozi Okonjo-Iweala, said that the anniversary was an opportunity to engage in a forward-looking dialogue on how the WTO can best respond to current and future IP needs and interests of its members. Contrary to the growing international criticism against the TRIPS Agreement and how it has benefited the pharmaceutical producers, the DG said the TRIPS Agreement exists to promote the mutual interests of both producers and users of technological knowledge. “This idea resonates today as we consider the potential contribution of the IP system to the economic, environmental and social equity objectives set out in the Sustainable Development Goals (SDGs),” the DG added. According to her statement posted on the WTO’s website, the DG said the TRIPS Agreement played a significant role during the HIV/AIDS crisis in the late 1990s, “when access to antiretroviral treatments was literally the difference between life and death for millions of people, particularly in Sub-Saharan Africa.” While developing countries faced innumerable obstacles in the use of compulsory licenses, the DG said that “flexibilities were a core element of the TRIPS Agreement from the outset and confirmed that governments could legitimately use compulsory licensing and other policies within the TRIPS framework to improve access to medicines.” Touting the specific benefits of the TRIPS Agreement, she said that it has evolved into a practical tool for development. Ms Okonjo-Iweala said that developing economies have increasingly tailored TRIPS Agreement implementation to their domestic needs, leveraging IP rights for technology transfer and economic growth. However, she acknowledged that “controversy persists, such as debates over TRIPS’ role in addressing global inequities during the COVID-19 pandemic.” Though she did not comment on the Colombian proposal at the meeting, the DG “encouraged members to learn from past experiences to inform future collaboration and cooperation” while advocating “an inclusive conversation to explore diverse policy options within TRIPS, fostering clarity and understanding among WTO members particularly in times of international public health crises.” The DG urged members “to engage in a dialogue to shape a forward-looking agenda for the international IP system, one that strengthens its linkages with the innovation ecosystem, the creative industries, and the diffusion and uptake of technologies that will be critical for sustainable development.” In his remarks at the high-level dialogue, the Director-General of the World Intellectual Property Organization (WIPO), Mr Daren Tang, said that the establishment of international IP treaties, such as the Paris and Berne Conventions, laid the foundation for a global IP framework. “And of course, the TRIPS Agreement was groundbreaking because it was the first to directly connect the world of IP with that of trade and investment. This again ushered in a new chapter in the development of the global IP system,” he noted. He said “the global IP landscape has transformed significantly over the past three decades, with cross-border IP payments reaching nearly a trillion dollars.” Delivering the keynote speech, the WTO Deputy Director-General Johanna Hill outlined three key themes concerning the TRIPS Agreement and its future relevance. These themes include: (1) there has been a transition in perception, as the Agreement was initially viewed from the perspective of the North-South dichotomy and has transformed now into a balanced multilateral platform; (2) implementing the TRIPS Agreement has matured beyond mere legal compliance to a nuanced understanding that allows for tailored policy and legal development according to domestic needs; and (3) the evolution of IP and trade against a background of a technological revolution, notably with the emergence of the internet and the digital economy. +
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