Mar 13, 1990


GENEVA, MARCH 9 (BY CHAKRAVARTHI RAGHAVAN) -- Attempts to force the pace of negotiations for an Intellectual Property Agreement with its own enforcement and dispute settlement mechanisms centered in the GATT appear to have received a setback at this week's meetings of the Uruguay Round Negotiating Group on Trade-related Intellectual Property Rights (TRIPs).

Consultations in the TRIPs Group is reported to have failed to produce a consensus on a work programme for negotiations or on authorising the GATT secretariat to prepare a paper on the elements of a draft agreement for discussion.

In what is now becoming a pattern, most of the discussions this week was at informal meetings - which means that "observers" including those from WIPO, the UN Specialised Agency in these matters, and UNCTAD which deals with some aspects like Technology Transfer are kept out of the discussions.

Even more, it apparently came out at the final formal meeting of the group this week that the informal consultations and discussions were also not open to all Third World country participants.

Chile apparently objected to this and said that while any delegation, whether the U.S. or EEC for e.g., could hold informal meetings in its mission and could invite whomsoever it desired, no country interested could be excluded from the informal consultations and discussions convened by the Chairman.

The informal consultations this week reportedly were on the question of the institutional aspects of the implementation of any results in this area (the so-called "Gattability" of any final agreement for norms and standards and their enforcement and dispute settlement), discussions on the applicability of basic principles of the GATT and other international intellectual property agreements, the further work programme for the negotiations and the idea of the secretariat being asked to prepare a paper on the elements of an agreement on basic principles.

The institutional aspects of implementation of any agreement in this area are to be decided by Ministers at the conclusion of the Round, according to the mid-term accord.

However, most of the proposals and papers before the negotiating group from the ICs call for implementation as part of the GATT framework and use of GATT dispute settlement mechanisms.

It was in this context that the participants would appear to have had some informal discussions on the implementation.

India and other Third World participants reportedly stressed that the scope of the negotiations had to be "trade-related" and issues relating to the standards and norms and principles for intellectual property protection, and any agreements that might come out of it, had to be directly trade-related and deal with restrictions or distortions to trade.

Seen in this perspective, any TRIPs agreement, including on issue of settlement of disputes arising from it, could have no place in GATT and the obvious institution to deal with it would be the World Intellectual Property Organisation.

India referred in this connection to the on-going efforts in WIPO to evolve a dispute settlement mechanism.

Third World countries would also appear to have stressed the major objective in launching the round, namely to strengthen the GATT system. As it was, major areas had been taken out of GATT - Agriculture and trade in Textiles and Clothing - while in others GATT disciplines had been chipped away.

"The entire building is tottering, and if on top of it more responsibilities are thrust on it like Services, TRIPs and TRIMs, the whole thing would collapse", they argued.

The Industrial Countries would however appear to have insisted that the issue was "trade-related" and should be in GATT. The EEC reportedly said this was necessary to prevent unilateralism, while the U.S. reportedly said that it would have no interest if it were not in GATT. The U.S. could achieve its objectives bilaterally, but wanted to strengthen GATT and multilateralism by putting the issue in GATT.

The issue of applicability of basic principles like "national treatment", "most-favoured-nation" treatment, special and differential treatment to Third World countries, freedom of such countries to adapt and adjust the scope of protection to their development needs and public policy and public interest, as well as balance of rights and obligations of intellectual property holders were among the issues on the table for discussions.

Third World participants said that while the ICs wanted applicability of the GATT principles (related to "goods") to be extended to "persons", namely owners of the rights, the ICs did not enter into any dialogue on questions of development, public policy and public interest, transfer of technology, etc.

In the informal discussions, the Chairman of the group, Amb. Lars Anell of Sweden, reportedly sought to get consensus for a future work programme of negotiations, and for authorising the GATT secretariat to produce a paper on the draft elements of an agreement on basic principles of intellectual property protection.

However no consensus could be found.

At the formal meeting Friday, Anell expressed his deep disappointment with the results of the informal consultations and the failure to reach a consensus on the work programme for future meetings and the secretariat preparing a paper.

The work in the group in relation to the tasks ahead, which he identified as elaboration of a complex legal text of an agreement, was not satisfactory, Anell reportedly remarked.

Third World countries however questioned his view that there was a consensus in the group on the elaboration of a legal text.

Tanzania reportedly pointed out that even when the subject was included in the mandate there had been apprehensions. Discussions over the last three years had brought out the complications involved. The entire area of TRIPs was a new concept, and the problems had arisen when GATT concepts in traditional areas of trade in goods were sought to be imported and applied. In this situation no miracles could be expected and the group would do well to look for "modest and humble" results.

On the Chairman's view that the group needed a legal text to begin work, India, supported by Brazil and other Third World countries, reportedly questioned how the secretariat could prepare such a text when the various issues had not even been discussed.

The issues of development, public policy and public interest, and the balance of rights and obligations of intellectual property holders had not been discussed at all.

Though Third World participants had put forward some proposals and ideas, the Industrial Countries had been unwilling even to discuss them. When issues of concern to the Third World had not been discussed in any substantive way, agreements on procedure could not solve the problems.

The next meeting of the TRIPs group is scheduled for the week of April 2.