Moving forward from Cancún
The Global Governance of Trade, Environment and Sustainable Development
30 – 31 October 2003 Berlin Germany
Global Political Economy of TRIPs Negotiations
Anitha Ramanna, Indira Gandhi Institute of Development Research, India
Draft Only. Please do not quote or cite without permission from the author. Prepared for Moving forward from Cancún: A Conference on the Global Governance of Trade, Environment and Sustainable Development, Berlin, Germany, October 2003 Anitha Ramanna• International negotiations on Intellectual Property Rights (IPRs) are one of the most controversial areas within the WTO, and reflect diverse coalitions between countries. While a North-South divide on IPRs exists, contrasting approaches among various nations crossing this divide are also evident. It is also important to note that compromises on some aspects have taken place. This paper examines the distinct perspectives of countries on three areas of IPRs that currently form the main agenda for negotiations in the WTO: 1) TRIPs and access to medicines 2) Geographical Indications 3) TRIPs and Biodiversity/Traditional knowledge. In evaluating the political economy of the interests of various actors, the paper aims to analyse the scope for moving forward on these issues within the TRIPs negotiations. TRIPs and Public Health Negotiations on TRIPs and Public Health have seen greater progress than other aspects of IPRs recently. During the Doha Round, a Declaration on TRIPs and Public Health was negotiated. Just prior to Cancun a deal was reached between US, South Africa, India, Brazil, Kenya on August 30, 2003 enabling poor countries access to medicines. The agreement was aimed at relaxing patent regulations on some drugs, allowing low-cost producers to export generic versions of brand-name medicines to poor countries (Financial Express, August 29, 2003). The exact nature of the deal and its implementation are the topic of enormous scrutiny. It has been pointed out that in practice the deal itself may not be workable. However, it is important to note that on an issue of significant contention, actors have moved forward to work out some compromise positions and it is important to understand the nature of this process. TRIPs states that “… patents shall be available for any inventions, whether products or processes in all fields of technology provided that they are new, involve an inventive step and are capable of industrial application.” (Article 27.1) There was enormous opposition to providing product patents in pharmaceuticals in developing countries. India and other developing countries have provided for only process and not product patents in pharmaceuticals in order to enable them to produce cheaper drugs. Developing countries and NGOs asserted that TRIPs ignores health considerations by not allowing such exceptions in patent systems. NGOs grafted the patent issue within the campaign for access to medicines and formed an important coalition (Consumer Project on Technology, Health Action International and Medicines sans Frontiers, Oxfam) to promote the issue. (See Sell and Prakash, 2002). The Doha Declaration was the outcome of the push for linking TRIPs to Public Health. The declaration emphasized that TRIPs doesn’t prevent members from taking steps to protect public health and also emphasized that countries could use measures such as compulsory licensing (i.e., government granted licenses to enable third parties to use a patented invention for public policy purposes). It however left for further discussion the ability of countries with no manufacturing capacity to import drugs. This was known as Para 6 of the Doha Declaration and basically concerned the problems countries may face in making use of compulsory licensing if they have insufficient or no pharmaceutical manufacturing capacity. Through the deal reached just prior to Cancun, countries were able to move forward on this
Visiting Research Associate, Indira Gandhi Institute of Development Research, Mumbai, India. E-mail: email@example.com 2
issue. It was decided poorer countries with no manufacturing capacity can override patents and import generic drugs. Some countries opted out of the deal to ensure that it would not be used as a measure to divert drugs. Many concessions were made to protect the rights of pharmaceutical companies including: 1) the importing and exporting countries have to provide information to the TRIPs council and this can be challenged 2) packaging 3) payment of royalty to patentees. The African group supported by many developing countries have been the major players in pushing for linking TRIPs to public health due to the HIV/AIDs crisis. Many of these countries lack the manufacturing capacity to produce drugs necessary to combat this disease and their interests lie in enabling import of essential medicines. Developing countries with a large manufacturing base and ability to produce generic drugs such as India and Brazil are interested in securing exports to these countries. The United States and Switzerland with large pharmaceutical companies and interests in securing rights for patented medicines are attempting to limit the scope and coverage of the deal. Some Indian pharmaceutical companies, however, have expressed unhappiness with the nature of the deal. The reasons for this should be explored, as it appears that they may be the ones who could benefit from the deal. Canada is also one of the first countries to state that it is going to relax patent laws in order to enable export of generic drugs. Clearly, the issue of patents and health cannot simply be reduced to a North-South divide and the complexities of the shifting strategies of domestic actors in both developing and developed countries must be recognized. Geographical Indications Geographical Indications provide protection for goods originating from a specific region. As defined by the WTO TRIPs Agreement, geographical indications are identifications of the country or region where the quality, reputation or other characteristic of a product is essentially attributable to the geographic region. TRIPs provides a higher type of protection for wines and spirits under geographical indications (GIs). Geographical Indications strongly reflect the ‘negotiated settlement’ reached between the EU and US and it was mainly EC backed by strong wine and spirit lobby that promoted the protection of GIs for wines and spirits (Rangnekar, 2003). Developing countries have pushed the proposal that such higher protection of GIs should not only apply to wines and spirits but should be extended to other products. India and other countries envisage that such protection would enable them to gain rights over agriculture and other resources originating in their countries. America, Australia and New Zealand oppose such extensions (Doha Round Briefing Series, ICSTD, February 2003). The EU is promoting the issue of extending protection and has recently submitted a list of over 40 products which it feels there should be greater protection. Opposition to extending GIs to products other than wines and spirits comes from US and Australia. The issue reveals the varied interests of actors cutting across North-South divisions and also illustrates the means by which intellectual property is itself being redefined to suit the interests of actors. Traditional Knowledge The issue of IPRs and traditional knowledge has been the most controversial aspects of TRIPs. India and other developing countries have strongly promoted the need to link TRIPs with the Convention on Biological Diversity. The gene rich developing countries such as India and Brazil demand that traditional knowledge gain recognition. While the EU is willing to discuss ways to recognize and reward traditional knowledge, the US has been opposed to any proposals that may weaken IPRs. Recent negotiations on Article 27.3 (b) that deals with this issue has seen various proposals from countries. The Swiss submission proposes an amendment to the World Intellectual Property Organisation's (WIPO's) Patent Cooperation Treaty that would enable countries to require patent applicants to declare the source of the genetic resources and TK in patent applications (Bridges Weekly Trade Digest, June 2003). Switzerland does not see a conflict between TRIPs and the CBD. In contrast to the Swiss proposal, both the African Group's and the India-led submissions stress the need for a multilateral solution to these issues in the TRIPs Council, while also noting that any efforts in the WTO would not preclude work on these issues in other forums (Bridges, June 2003). They highlight the limited
progress that has so far been made in WIPO's Intergovernmental Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, and note the limitations of national laws and contracts to prevent biopiracy at the international level (Bridges, June 2003). The India-led proposal reiterates the countries' proposal for amending the TRIPs Agreement to require patent applicants to disclose the source of origin of the biological resource and associated TK, and evidence of prior informed consent and benefit sharing. The African submission, however, goes considerably further in its scope by calling for a prohibition on patents on life and demanding that traditional knowledge should be viewed as a form of intellectual property. The debate over traditional knowledge is clearly an area where developing countries have redefined their defensive strategies to a more pro-active one. Moving Forward There are several lessons we can gather from this evaluation of how negotiations have proceeded on TRIPs: ! TRIPs is no longer a purely North-South issue of contention. New and varied coalitions are emerging and could enable a move forward in the debate. ! Compromise positions are possible even on areas of contention. On the issue of TRIPs and Public Health, the negotiations were able to progress much faster than in other areas. One reason for this was because of the role of NGOs and their effective framing of issues incorporating patents with the urgent need to deal with the HIV/AIDs crisis. ! A range of actors in addition to governments are important in defining the debate. It is clear that non-state actors such as NGOs and business groups can play a significant role in promoting compromises on these issues. In addition to NGOs and industry, a range of international organizations are also involved in shaping the issue. Coordination in formulating national strategy is therefore required not only within the WTO but also across a number of organizations. ! Evaluating the political economy of negotiations on TRIPs in these areas, it is clear that power was not the only factor that led to policy changes. Though more powerful actors were able to promote their interests in some areas, relatively weaker actors have also been able to secure their positions in the negotiations. The ability of NGOs to effectively intertwine the issues of patents and access to medicines led to some changes in the hardline positions of states and firms. Developing countries have been able to put forward the issue of traditional knowledge within the TRIPs negotiations using similar arguments used in advanced nations for protecting high-technology innovations. Ideas and the framing of issues are therefore important in the negotiations.
! The TRIPs negotiations also reveal that the meaning and scope of IPRs itself is under a process of redefinition. Various actors are attempting to extend the definition of intellectual property to include resources which they have in abundance. It is important to note that this land grab situation may crucially affect the vital sharing of resources necessary for development. The process of negotiations on TRIPs requires deeper study from a political economy perspective. The future research agenda must clearly be on analysing the domestic policy of countries and linking this with their international stance on the issues. Only then can we begin to formulate means to move forward in international negotiations.