Countries like India and Brazil are proposing an amendment in the WTO?s trade related aspects of intellectual property Rights (Trips) rules, to protect their biodiversity and traditional knowledge from being exploited by overseas private firms that do not share the benefits with local communities where the products originate. They want to make it compulsory for patent applicants worldwide to declare the source of origin of any data related to natural resources.?
At a recent CII summit, a panel of US IPR law and industry experts suggested that developing countries such as India should not hold on to homegrown knowledge. The US and EU are opposed to the amendment. But since much of India?s traditional biodiversity?neem, haldi, isabgol, angoor and so on?has already found itself in foreign patented hands, India is keen on it. The differences run deep, according to WTO director general Pascal Lamy. ?I have called for continued consultations between the groups of members concerned to resolve this, so as to try to avoid a big clash during the modalities exercise,? Lamy told a negotiating body.
A related issue is that of geographical indications (GI), which India wants extended to products beyond wines and spirits. This, as also the biodiversity issue (which arose from a mandate to consider the relationship of WTO IPR rules and the UN Convention on Biological Diversity), is under consultations.
A significant majority of WTO members support either the proposed Trips amendment, or the GI extension. But some countries stand opposed. The chair of the Trips Council special session, Manzoor Ahmad, has been conducting meetings with key players in the negotiations. This ?horizontal process? involves finding linkages within and between the two major debates on the table?agriculture and non-agricultural market access (Nama)?and the GIs and Trips issues.
Brie cheese and Darjeeling tea are examples of GIs. The Trips agreement requires member states to legally protect these place names so that they cannot be used to mislead or confuse customers into believing they have bought a regional product that originates elsewhere. Wines and spirits have an additional layer of protection under the Trips agreement. Members are required to provide legal means to prevent any use of a GI on a wine or spirit product not originating from the indicated region, even if its actual region of origin is clearly marked. For example, Champagne is a name reserved exclusively for sparkling wines made in this region in northern France. Wines from elsewhere may not carry the name.
To ensure a higher level of protection, Trips Article 22.4 calls for the Trips Council to negotiate the creation of a ?multilateral system of registration and notification? for GIs.
The European Commission has proposed that the register be mandatory for all members and that it be open to products other than wines and spirits. The Commission views agreements on both the register and the extension of GIs to cover other products as interconnected with current negotiations. Argentina, Australia, Chile, Japan, New Zealand and the US would like to see participation in the register as voluntary. These members have put forward a ?joint proposal? for the register.
Countries that value the biodiversity amendment and GI extension highly are working together now. The Commission has shown some signs of being willing to support the former in exchange for developing country support on increased GI protection, though it seems willing so far to discuss only disclosure of origin, and not the prior informed consent and access and benefit sharing clauses the biodiversity amendment group also want.
The author is trade professor at Icfai Business School, Chandigarh.
E-mail: vasu022@gmail.com
