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Only one of these subjects is officially part of the Doha round of negotiations and accepted as part of the
“single undertaking” in which all Doha round subjects form part of a single package, with
“nothing agreed until everything is agreed”:
- the negotiation to create a multilateral register for geographical indications for wines and spirits.
The other two subjects are officially
“implementation” issues. Members differ over whether these are subjects for negotiation or not:
- “GI extension”: a proposal to extend to other products the higher level of geographical indications protection now given to wines and spirits
- “disclosure”: requiring that patent applicants
disclose the origin of genetic material and traditional knowledge
used in their inventions, or alternative proposals. This comes under
the “relationship between the TRIPS Agreement and the UN Convention on Biological Diversity (CBD)”.
Although the three issues are not officially
linked, in July 2008 one group of over 100 WTO members called for a
“procedural decision” to negotiate them in parallel (see
document TN/C/W/52 of 19 July 2008).
Although positions remain largely unchanged,
this development has produced two results. On the one hand, opponents
argue that the three topics should not be linked and particularly that
the only mandate is to negotiate the multilateral register. At the
same time, reaching agreement among over 100 members required some
compromises and the original EU proposal on the multilateral register
has been modified to make it acceptable to the large number of
delegations in that group.
Geographical indications
Geographical indications are place names (in some countries also words associated with a place) used to identify products that come from these places and have specific characteristics (for example,
“Champagne”, “Tequila” or “Roquefort”).
Under the TRIPS Agreement, all geographical indications have to be protected at least to avoid misleading the public and to prevent unfair competition (Art.22). Wines and spirits are given a higher or enhanced level of protection (Art.23): subject to a number of exceptions (Art.24), they have to be protected even if misuse would not cause the public to be misled.
1. Negotiation: the multilateral register for wines and spirits
This negotiation takes place in dedicated
“special sessions” of the TRIPS Council. It is about creating a
multilateral system for notifying and registering geographical
indications for wines and spirits, which today benefit from a level of
protection that is higher than for other geographical indications. The
multilateral register is discussed separately from the question of
“extension” — extending the higher level of protection to other
products — although some countries consider the two to be related.
The work began in 1997 under
Article 23.4 of the TRIPS Agreement. In 2001 it was brought into the Doha Development Agenda (the Doha Declaration's paragraph 18). The different positions are summarized here. Papers submitted are here.
2. Implementation: geographical indications ‘extension’
The issue here is whether to expand the higher level of protection (Article 23) to other products. A number of countries want to negotiate extending this higher level of protection to other products (i.e., cheeses, ceramics, meat, tea, coffee, etc.). Some others oppose the move, and the debate has included the question of whether the Doha Declaration provides a mandate for negotiations. More information can be found here.
The subject is an “implementation” issue in
the Doha Development Agenda (the Doha Declaration’s paragraphs 12 and
18). The latest mandate is
paragraph 39 of the 2005 Hong Kong
Ministerial Declaration.
Director-General Pascal Lamy is mandated to
consult the parties on a course of action. For a time,
Deputy
Director-General Rufus Yerxa chaired those consultations on his
behalf, but more recently Mr Lamy has chaired the talks himself.
Patents, biodiversity and ‘disclosure’: implementation
This debate was originally wide-ranging. It now focuses on how the TRIPS Agreement relates to the Convention on Biological Diversity, and particularly whether the agreement should be amended to require
“disclosure”. The ideas put forward include:
Disclosure as a TRIPS obligation: A group represented by Brazil and India and including Bolivia, Colombia, Cuba, Dominican Republic, Ecuador, Peru, Thailand, and supported by the African group and some other developing countries, wants to amend the TRIPS Agreement so that patent applicants are required to disclose the country of origin of genetic resources and traditional knowledge used in the inventions, evidence that they received
“prior informed consent” (a term used in the Biological Diversity Convention), and evidence of
“fair and equitable” benefit sharing. Disclosure through the World Intellectual Property Organization (WIPO): Switzerland has proposed an amendment to the regulations of the WIPO's Patent Cooperation Treaty (and, by reference, WIPO's Patent Law Treaty) so that domestic laws may ask inventors to disclose the source of genetic resources and traditional knowledge when they apply for patents. Failure to meet the requirement could hold up a patent being granted or, when done with fraudulent intent, could entail a granted patent being invalidated.
Disclosure, but outside patent law: The EU's position includes a proposal to examine a requirement that all patent applicants disclose the source or origin of genetic material, with legal consequences of not meeting this requirement lying outside the scope of patent law.
Use of national legislation, including contracts rather than a disclosure obligation: The United States has argued that the Convention on Biological Diversity's objectives on access to genetic resources, and on benefit sharing, could best be achieved through national legislation and contractual arrangements based on the legislation, which could include commitments on disclosing of any commercial application of genetic resources or traditional knowledge.
Like “GI extension”, this is an
“implementation” issue in the Doha Development Agenda (the Doha
Declaration’s
paragraphs 12 and
18). Again, the latest mandate is
paragraph 39 of the 2005 Hong Kong Ministerial Declaration. For a
time,
Deputy Director-General Rufus Yerxa chaired those consultations on
behalf of
Director-General Pascal Lamy, but more recently Mr Lamy has
chaired the talks himself.
More information and documents submitted in the discussion can be found here and here.
Documents available to ministers and the trade negotiations committee
Two reports were issued on 9 June 2008 and can be found here.
One was by Ambassador Manzoor Ahmad,
chairperson of the negotiations on creating a system for registering
geographical indications for wines and spirits. The other is from
Director-General Pascal Lamy on his consultations — at that time
chaired by
Deputy Director-General Rufus Yerxa on his behalf — on whether to
extend enhanced protection for geographical indications beyond wines
and spirits, and on patents and biodiversity.
Both reports are factual accounts of the
latest state of the discussions. They do not propose how members might
compromise. They say members’ opinions differ on whether these three
subjects should be part of the “horizontal process” and whether they
should be linked. Discussions have continued since then, but positions
remain largely unchanged.
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