Don't TRIP over at WTO

Shalini Bhutani, Oct 09, 2015, DHNS:

The developed countries should not be allowed to expand IPR in a 21st century agenda for the WTO.

The World Trade Organisation’s (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) insists on patents in every field of technology which includes seed technologies in agriculture and agrichemicals. This has a bearing on the crisis of farmers’ own seeds.

Agriculture will be very much on the table in the Tenth Ministerial Conference (MC10) in December in Nairobi, Kenya, with both Northern subsidies and food security issues resurfacing. But the IP concerns in agriculture will not get as much attention, unless they are reiterated by countries like India.

At the Doha MC in 2001, the need to address pending TRIPS’ implementation concerns raised by developing countries was recognised. The protection of traditional knowledge (TK) from ‘biopiracy’ has been high on the agenda of developing countries. The Doha Declaration broadened the frame of the TRIPS’ Article 27.3(b) discussions. It requires the TRIPS Council to look at the relationship between the TRIPS and the UN Convention on Biological Diversity (CBD) and the protection of TK.

For this purpose, India had initiated a ‘Biodiversity Amendment’ of the TRIPS text in 2008, proposing an Article (29bis) on Disclosure of Origin of Biological Resources and/or Associated Traditional Knowledge. This is also interest to African communities that continue to remain vulnerable to bioprospecting. In 2011 India, along with Kenya (on behalf of the African Group) and other country delegations, made a joint submission on this to the WTO’s Trade Negotiations Committee.

If the WTO abandons the DDA as per demands of the powerful countries, this critical issue will also get dropped.

TRIPS’ Article 27.3(b) requires a review of the Agreement four years after the date of entry into force of the WTO. Article 71.1 of the TRIPS Agreements expressly states that the Council for TRIPS shall review the implementation of this Agreement after the expiration of the transitional period and shall, having regard to the experience gained in its implementation, review it two years after that date.

Not once has this happened. The African Group had taken a strong position for the review that asks for prohibition of patents on all life forms and for a moratorium on implementing the TRIPS Agreement until the completion of the review.

There is two decades (1995-2015) of experience with the implementation of WTO-styled IP laws in the area of seed. The evidence gathered must form the basis for developing our negotiating position.

This is particularly relevant in the context of patents on genetically modified (GM) seeds and the grant of IP protection to plant varieties. That IP essentially serves the interests of big industry is becoming more apparent to small farmers, public scientists and domestic seed companies.

These two articles (Articles 7 & 8) of the TRIPS Agreement must be insisted upon. The Doha Declaration states that the TRIPS Council must be guided by the objectives in these articles in its work.

The IPR should be conducive to social and economic welfare, and to a balance of rights and obligations. As per the principles in Article 8, WTO members may adopt measures necessary to promote the public interest in sectors of vital importance to their socio-economic and technological development. Seed is one such sector.

Dispute settlement

Another IP-related issue, pertains to the so-called “non-violation” complaints in IP. According to the dispute settlement provisions of the WTO, disputes can be initiated whether or not a measure adopted by a member conflicts with the provisions of any of the WTO Agreements. If a member is complying with the provisions of any WTO Agreement, another member can initiate a dispute if it perceives that its interests are adversely affected.

The TRIPS did not allow this provision to be used for an initial period of five years and this has subsequently been extended. In the MC9 of WTO Indonesia – in the ‘Bali Package’– a decision was taken to consider recommendations on this issue in the MC10.

There is deepening bilateralism between both sides (India & USA), particularly on the issue of IP. This includes the joint Indo-US IP Working Group. A new National IPR Policy has been finalised by the DIPP in the backdrop of the relationship. The legitimate space for discussions on global IP standards is the TRIPS Council, and it is in this multilateral forum that issues on IP ought to be discussed.

Outside the WTO, talks for new FTAs are picking up pace. These go well beyond what TRIPS established as ‘minimum standards’ for IP protection. The Regional Comprehensive Economic Partnership (RCEP) is one such FTA that India is actively negotiating with 15 countries in the Asia and Pacific region. ‘Leaked’ IP drafts propose that all RCEP members comply with a dozen international IP-related agreements, including the International Convention for the Protection of New Varieties of Plants (UPOV), particularly its 1991 version, which India has kept away from to retain seed freedoms for its farmers.

We have to be cautious against maximalist tendencies on IP penetrating the WTO. The developed countries should not be allowed to expand IPR in a 21st century agenda for the WTO. This will be detrimental to farmers’ seeds in the ‘global South’.


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