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									WTO, TRIPS and the Development Agenda – access to medicines and knowledge Geneva, Wednesday 21 September, 2005
This panel explored what WTO Members, the TRIPS Council and WIPO should be doing to address issues of access to medicines and knowledge as we approach the Hong Kong Ministerial. James Love, Consumer Project on Technology Civil society should play a role not only in analysing the current status of trade negotiations in IP rights, but also in thinking proactively about what they want to see in the future. So, where do we want TRIPS to be both in 6 months and 6 years from now? While the others will look at short-term legacy issues, I will explore some new ways of looking at intellectual property issues. While TRIPS is considered as an important enforceable IP provision, we also know that it is being overtaken by IP provisions in bilateral trade negotiations that go beyond TRIPS (TRIPS+ provisions). So, what does it mean to have a TRIPS if its only one of hundreds of IP provisions, with different enforcement mechanisms? China has recently tabled a paper asking the WTO Committee on Technical Barriers to Trade (TBT) to address the issue that patents are a barrier to trade with regards to standards-setting. Many countries don’t have good mechanisms to handle disclosure, which makes it difficult to develop products that comply with standards. While the WTO encourages the adoption of international standards adopting, there is a lot of thinking at national level that IPR policies are a way to impose rents on foreigners - protectionist policies that go against the spirit of WTO. It’s an interesting and constructive development to think about the excessive level of IP, poor quality of patents and patent provisions as being barriers to trade. It is also worth remembering Article 40 of TRIPS which covers the control of anticompetitive practices, which impact consumers by reducing choice, driving up prices, and restricting technology transfers. With regards to parallel trade, there are some legitimate areas for market segmentation. Maybe TRIPS should be amended to allow parallel trade with countries of equal or higher income, but not with those of lower income. Pharmaceutical companies and other owners of patents would have common ground, as it protects legitimate market segmentation. With copyright, there are sometimes similar or higher prices for books, entertainment goods in developing countries as in developed countries, providing a legitimate interest in market segmentation. The A2K campaign looks at the broader issue of access to knowledge and related goods, such as textbooks, database software and academic journals. Another idea CPTech is proposing is a radical but simple solution to the problems surrounding access to medicines - an international agreement to set out norms for Research & Development (R&D) to cover both the public and private sectors. It would include incentives to invest and research into global public health problems - a more enlightened way of thinking about R&D, and not just higher prices.

But the idea of public goods is broader than just medicines - open source Software, for example, is an open platform that everyone can benefit from. The BBC could decide to make its archives publically available, or the French government could oblige academic research to be made available in open access journals, for instance, but there is a collective action problem – while everyone would benefit from openness, noone wants to be the only one to do it. We therefore need reciprocal public goods agreements – a trade framework to provide open source technologies to farmers, or more open source research for scientists. Unfortunately the public goods market doesn’t have the same resources as the private sector, so we need to find way of getting a strong social movement working together effectively. María Julia Oliva, Centre for International Environmental Law Two issues that should be coming up in Hong Kong are disclosure requirements and nonviolation, but it is also important to look at the broader context of the role of TRIPS in the next decade or more. Regarding disclosure requirements, Article 27 3b of TRIPS allows members to exclude (see CI 2-pager). This was controversial even in 1994, as it is not clear that the patenting of lifeforms should be allowed at all, with many concerns about the impact on access to essential products, food security, biodiversity. TRIPS conflicts with the Convention on Biodiversity (CBD), which states that countries have sovereign rights over their genetic resources. As a result of this controversy, there was an early review of TRIPS - Article 19 of the Doha Declaration required the examination of link btw TRIPS and CBD. It is important to consider, when discussion how WTO rules co-exist with other agreements, other considerations, such as balance and equity. Developing countries have been very active in trying to resolve this issue running up to Hong Kong - in March 2004 developing countries presented a checklist of issues concerning the relation between TRIPS and the CBD, saying that the most important was to safeguard provisions such as the disclosure of source, evidence of prior consent, and fair and equitable benefit. Brazil, China and India have noted the importance of these issues and there is pan-regional support. Even the US, which had previously refused to discuss the issue, has now been moved to present proposals, the content of which aside, at least shows that they have started to engage. But it is not clear whether there is enough support for this to get a solution at Hong Kong, or whether civil society groups, which have not been engaged enough, understand the need for mandatory disclosure. With regards to non-violations – the complaints that allow WTO Members to challenge members for rules that are consistent to WTO rules, but nullifying or impairing some benefits - this is a technical legal issue. They have been very controversial, even within the WTO. Only one country wanted this to apply to TRIPS, and opening up this to challenge would allow increased power for private interests and less for the public interest. There is also the concern that bilateral trade agreements are going far beyond TRIPS, including non-violation complaints that are applicable to IP. Such provisions are found in complaints procedure chapters, rather than IP chapters, so they are often not considered when thinking about IP in bilateral agreements. So it is crucial to look at it in the longterm perspective, as well as at TRIPS as it is revised and examined.

Sisule Musungu, South Centre (speaking in a personal capacity, rather than on behalf of South Centre member governments) There are fairly important political developments that allow us to think more long-term than we’ve previously been allowed to do. Within the wider UN, the Sachs Report dealing with MDG goals concluded that7 TRIPS provisions are not conducive to achieving these goals. And this June, the second South Summit signed a declaration at Doha with detailed provisions about IP and technology, IP and development, and about what WIPO should do. By introducing waivers, the Doha Declaration on TRIPS resolved the question of how countries without manufacturing capacity use compulsory licensing provisions. There are two camps in discussions on Paragraph 6 and the implementation of the Doha Declaration – one (including US and Japan) agrees that the amendment should be kept but a footnote inserted. African countries argue that the amendment would have to pass appropriate tests, preventing certain elements of the Doha Declaration from being included. The second dispute is about comfort language for the US contained within the adopting statement, but not included in decision. An asterix in the Declaration indicates that “this decision was adopted in light of the adopting statement”, but others argue that this asterix was put there only for information and should not be included in discussion of the decision. In 1967 there was a similar problem related to copyright and books at WIPO. The discussion ended with the Berne Appendix – a form of compulsory licensing allowing developing countries access to educational material. It is very similar to the solution and conditions used in TRIPS. So it is useful to look at how well Berne worked, and what lessons could be learned from the Berne experience? One factor that prevents the movement of discussions is the principle, in TRIPS, of minimum standards backed by trade retaliation - when you’re dealing with possible change governments get very worried about trade retaliation. There is also an incumbency problem - companies will do anything they can to maintain rules that they benefit from promote them, and they hold disproportionate power. But even fairly conservative papers like the Economist are starting to question how technology is being managed. Some people argue that developing countries are promoting the interests of some actors in the North, and others that it is an issue of self-interest. But it is because these less influential actors in the North are pursuing positions of public interest, that coincide both with the developing country interest and the developing country desire to promote fairer rules that are in the public interest. Finally, the WTO is an economic institution dealing with the economic governance of the world, but it is addressing IP issues without any economic evidence or analyisis. Why do we not see studies from the WTO like those from the World Bank or OECD that look into the impact of IP rules, and where is the evidence to show that TRIPS is promoting rather than impeding trade? Anna Fielder, Consumers International (chair) The speakers highlighted some clear messages. Crucially, the real problem is getting lifesaving medicines to people, and governments should remember this rather than getting bogged down in the negotiation of footnotes. It is important to further raise the issue of

TRIPS and the multilateral system being taken over by bilateral negotiations. The issues of patents on lifeforms and the Convention on Bio-Diversity, as well as the idea of considering excessive IPR regimes as barriers to trade, all merit further attention, and maybe there is a place in Geneva for a General Agreement on Trade in Public Goods. Discussion Nuno Carvalho, WIPO: What would developing countries be ready to pay, in terms of tariff concessions, to pursue the issues raised by the speakers? With regards to the poor quality of patents, resolving this issue is the main purpose of the Substantive Patent Law Treaty. Concerning parallel imports, WIPO’s proposed solution is that exhaustion is in principle national, but if there are abuses, anti-competitive or unfair pricing, unavailability of products, then there should exist the ability to use compulsory licensing. James Love: One of the problems of discussing IP issues in the WTO context is that everything is linked, and prices need to be paid. But it’s wrong to look at it as a northsouth issue, and the EU and US negotiators ignore the debate in their own backyard where IP rules do not do a good job of providing access and promoting innovation. At the moment, the privatisation and trade of knowledge goods is seen as a god thing that promotes wealth, and not to do so impedes economic growth. However, not privatising such goods makes knowledge openly available to more people, and we need to promote the broader interest and get away from the private interest paradigm. The SPLT should look at the problems, impacts, reasons of and solutions to patent quality problems. Patent offices are earning money by issuing patents, thereby reducing the inventive to challenge quality of patents. There is also a perverse asymmetry of patent system – it is easy to get a patent spread around the world, but not to take them back if they are found to be of poor quality. Once a patent is accepted in the US it is accepted all over the world, but if a multi-million dollar law suit in the US finds the patent invalid it is only removed in US, and individual lawsuits are required in each other country that accepted the initial US patent granting. Sisule Musungu: Why should developing countries pay to make technology goods more available to developed country citizens? We must move away from the notion that to change the IP system in the interest of the public everywhere developing countries must make concessions in a commodity sector, such as Agriculture. Peter Holmes, Sussex University: With regards to software patents, it was interesting that the EC assumed it could just go ahead and introduce them, but they actually stirred up a hornet’s nest. They will no longer so automatically go along with the view of rightsholders, and the EU becoming more sensitive provides a possible for the public interest advocate door to push at. María Julia Oliva: It is important to have a bigger picture and not just take a piecemeal approach, but we must also deal with the individual dossiers on the table, and have a balanced strategy. Steve Suppan, Institute for Agriculture and Trade Policy: One of the TRIPS+ innovations is that IP is now considered an investment, opening up the opportunity for companies to lodge complaints about the extent of countries’ IP provisions, and this is a lethal link. Sisule Musungu: Actors with influence are those who understand that WIPO and other multilateral and bilateral IP frameworks are part of one big whole system. Trying to fight

small battles is unsustainable as there are so many different areas being brought up. TACD and Consumers International’s efforts to look at these things is getting us closer to pushing governments to see this perspective of IP. James Love: It is interesting to think about constructing a process within the WTO where members would agree to submit all agreements on IP to a WTO Committee to see whether they fit certain criteria (eg access to medicines, knowledge, competition). It should be stated somewhere that excessive IP, and agreements that produce monopolistic systems, are anti-competitive and provide barriers to trade. It is one thing to discuss the brutality and one-sided nature of the bilateral trade agreements pursued by the US and EU, but we must propose an alternative mechanism to solve these problems.



ICTSD CPTech Consumer Information Network (CIN) Tanzania Bureau of Standards (TBS) Indonesian Consumers Organisation Indonesian Consumers Organisation Private Citizen & Independent Consultant Intellectual Property Watch Zambia Consumers Association (ZACA) Consumers Lebanon (CL) Consumidores Argentina Bristish Standards Institution -Cosnumers Affairs BSI-CPC University of Sussex Permanent Mission of Germany in Geneva Permanent Mission of France in Geneva Association of Polish Consumers (SKP) UNAIDS, GENEVA Institution for Agriculture & Trade Policy CI, (President emeritus) South Centre


WTO Permanent Mission of Bolivia in Geneva CIEL UNCTAD DNDI Permanent Mission of Taiwan in Geneva Permanent Mission of Netherlands in Geneva WIPO WIPO WIPO University of Michigan

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