CONTINUING DIFFERENCES ON TRIPS IN URUGUAY ROUND.

May 18, 1989

CONTINUING DIFFERENCES ON TRIPS IN URUGUAY ROUND.

GENEVA, MAY 16 (BY CHAKRAVARTHI RAGHAVAN)— Differences between the leading third world countries and the Industrialised Countries (ICS) on the scope of negotiations on "Trade-Related Intellectual Property Rights" (TRIPS) in the Uruguay round have again surfaced at the meetings of the negotiating group here last week.

The differences are over what exactly has been agreed to in the compromises forged on this issue at the April meeting of the TNC.

The U.S., EEC and other ICS, who have a common front against the south in TRIPS are essentially trying to forge a new intellectual property agreement, with elaborate provisions prescribing new norms and standards and for the enforcement of such rights of foreigners and their enterprises, at the border and source of production.

In preliminary comments Brazil, India and other third world countries have questioned this, and have also flagged a number of issues, which they would be raising in the context of the enlarged scope of negotiations.

It remains to be seen whether this is just a preliminary view or something more substantial in view of the adverse reactions in some of these countries and their domestic industries to the April TNC agreement on TRIPS.

The TRIPS negotiating group chaired by Amb. Lars Anell of Sweden has agreed to discuss at its next meeting on July 3 and 4 the issue of provision of "effective and appropriate means for the enforcement of TRIPS, taking into account differences in national legal systems".

The group has also agreed to hold another meeting in July, from l2 to 14, when the issue of "provision of adequate standards and principles concerning the availability, scope and use of TRIPS" are to be discussed.

The European Communities have indicated that they would be formulating and putting forward for discussion at the next meeting their proposals about enforcement of Intellectual Property Rights (IPRS).

However both Brazil and India have reportedly stressed the limited scope for the negotiations in this area, pointing to the stipulation that negotiations in this regard had to take "into account differences in national legal systems".

Other differences that surfaced reportedly included the relationship between the Uruguay round negotiations and ongoing work in the world intellectual property organisation (WIPO), whether detailed norms would be negotiated or only principles, and how all these would be related to public policy objectives, including technological and development objectives of countries.

This was the first meeting of the negotiating group after the April meeting of the TNC and the compromises reached there on the TRIPS issue.

At that meeting the third world countries like brazil and India had yielded to the U.S. and other industrialised countries and had agreed to discuss and negotiate substantive issues which they had so far refused to do in view of the limited mandate provided at Punta del Este.

Some third world delegates said that both the chairman and the secretariat seemed to have come prepared with a programme of work that would enable a fast pace of negotiations and on issues favoured by the U.S., EEC and other industrialised nations.

Some participants later said that in agreeing to discuss enforcement and standards, ahead of questions about applicability of basic principles of GATT and of relevant international intellectual property agreements, the third world countries might have given further ground.

The ICS are trying to force the pace of negotiations and reach some conclusions before third world countries are able to evolve and present any common positions on these substantive issues.

WIPO, which administers the Paris Conventions on patents, trademarks and other industrial property rights and the Berne Convention on copyrights, is being asked to produce documentation on the basic principles of these agreements and conventions.

In seeking such a study from WIPO, India underscored the basic difference between the GATT principles of MFN and national treatment which applied to products and the principles of intellectual property conventions that applied to persons.

At the meeting some of the participants would also appear to have made some general statements about how they viewed and interpreted the compromises reached at the April TNC meeting.

Colombia and Tanzania were among those who repeated their positions, stated at the TNC meeting after its adoption of the compromise package, stressing the terms of the Punta del Este mandate, and thus distancing themselves from the TNC agreement.

The U.S. would appear to have stressed that in its view the negotiations had to encompass the "provision" of adequate standards and principles concerning availability, scope and use of TRIPS.

Brazil and India for their part underscored their view that the issues of public policy objectives including developmental and technology objectives should be integrated into the discussion of all the issues and not merely as "appropriate" (as the agenda formulated by the chairman suggested).

In assessing the outcome of the TNC and agreement there on TRIPS, both Brazil and India laid particular emphasis on the para of the agreement that the institutional aspects of the implementation of the results of the negotiations is not to be prejudged but decided upon only at the conclusion of the round.

Brazil said that it was hence out of place to talk about "GATT intellectual property agreement" as some participants had done.

India said the relationship of the outcome with GATT had to be kept open and hence it was not possible to talk in terms of a GATT agreement.

In Brazil's view the "normative" aspects relating to IPRS and any other issue which did not constitute "trade impediments and distortions", had to be dealt with in other fora.

India for its part said it was necessary to avoid duplication between the work in the Uruguay round and that in WIPO, and referred in this connection to work in WIPO on harmonising patent laws of countries as also the diplomatic conference now in progress in Washington on integrated circuits.

India would also appear to have noted in this connection that before the TNC meeting, it had been advised by "some participants" that only broad outlines or principles and not the details were to be discussed in the round.

In more general comments India said that standards and principles to be evolved had to ensure developmental needs and safeguard public interest adequately. The IPR systems served as instruments of national economic policy, and were used in conjunction with other policies such as incentives to national inventors and transfer of technology policies and foreign direct investment objectives.

Given the enormous differences in standards of living and industrial and technological bases of the industrialised and third world countries, it was not "reasonable" to lay down uniform standards and principles.

Any exclusive focus on IPR protection would have an adverse effect on the entire development process, and protection had to be tempered by developmental, technological and public interest needs, India reportedly said.

Any agreements in the round on this issue, should include provisions for working the patents in the countries granting such patents (as different from imports of the patented product), for a balance between rights of IPR owners and their duties and obligations, for technology being made available to countries under fair and reasonable terms and conditions, and for effective cures on abuses of IPR rights by owners as through restrictive practices.

Brazil underlined that the predominant consideration in granting IPRS was the furtherance of public interest and this implied that rights of IPR owners had to be counterbalanced by a set of obligations on their part.

These obligations, Brazil said, would include local working requirements, and greater scope for compulsory licensing in the absence of local working.

These two, in Brazil's view, would be very appropriate while discussing "the use of TRIPS".

In relation to applicability of basic principles of GATT, for GATT purposes a primary concern should be to avoid nullification or impairment of GATT rights through "non-use, misuse or abusive use of IPRS".

Also in examining the basic principles of other relevant international instruments, the group might well come to the conclusion that it would be sensible and productive to discuss and improve those agreements and their normative matters, reached after such enormous efforts, in the appropriate fora rather than in the round.

Matters of enforcement should be left to domestic laws, and the multilateral agreement should only evolve the agreement of each participant to analyse, and if necessary, improve existing domestic measures. The exhaustion of domestic judicial remedies concerning IPRS would be the first step to prevent and settle disputes.

Referring to the TNC decision that the Uruguay round negotiations should be conducive to a "mutually supportive" relationship between GATT and WIPO as well as other relevant international organisations, brazil said this should be clarified in practical terms.

The level and nature of participation of WIPO and other international organisations in the negotiations should also be settled.

A list of organisations dealing with such issues should be drawn up and they should be invited to participate in the meetings of the negotiating group the organizations should also be invited to prepare substantive contributions and studies.