May 26, 1988

GATT SHOULDN'T UNDERCUT WIPO INITIATIVES, SAYS THIRD WORLD

GENEVA MAY 24 (IFDA/CHAKRAVARTHI RAGHAVAN)ó Third World countries are reported to have insisted week that the jurisdiction of the world intellectual Organisation (WIPO) should be fully respected and Uruguay Round negotiations should not deal with changes in existing norms or creating new ones in the area of intellectual property.

This insistence on strict adherence to the Punta del Este ministerial mandate, in contrast La the stand of the U.S. and other leading industrial countries, is reported to have been made at last week's meeting of the Uruguay Round GATT negotiating group on 'trade-related intellectual property rights' (TRIPS).

As a result, the group reportedly was unable to resolve the basic issue of whether it was 'appropriate' for the GATT negotiations to infringe on the jurisdiction of WIPO and establish new rules and disciplines to provide enhanced intellectual property right (IPRS) or create new rights.

There was also reportedly same criticism at the meeting of a report in the U.S. mission's daily bulletin, which on may 17 quoted the U.S. negotiator as saying that a number of Third World countries still remained opposed to an international agreement.

Some Third World delegates reportedly complained that such distorted views of their stands, published in the official media and attributed to the official negotiator, was hardly the way to promote a dialogue within the group as the chairman was seeking.

The negotiating group is chaired by Amb. Lars Anell of Sweden.

The group is due to meet next in week of July 5.

At this meeting the group had before it d document prepared by the international bureau of the WIPO, at the request of the negotiating group, on the "existence, scope and form of generally internationally accepted and applied standard/norms for protection of intellectual property".

The note also outlined various initiatives in progress in WIPO in this area.

Participants said that by common consent document began at an informal meeting in on dialogue. But to the surprise of several of them the informal discussions became formal when the chairman suggested that the records of the meeting would show as if the discussions had been at a formal meeting.

One participant later commented that, whether intended or not, the only result of this procedure was that the observer representatives from the UN conference on traje and development were prevented from attending this part of the deliberations.

In the discussions the U.S. reportedly urged strongly its view that the group should deal with the substantive elements relating to IPRS reflected in the WIPO document.

However, a number of Third World participants including Colombia Ghana, Mexico, Argentina, Uruguay, Brazil and India, reportedly pointed out that the document clearly showed that the WIPO had undertaken a number of initiatives on these issues and the work in the group should hence respect the competence and jurisdiction of WIPO in this area, as mandated by the Punta del Este declaration.

The declaration on the subject of 'TRIPS', in its third indent, says: "these negotiations shall be without prejudice to other complementary initiatives that may be taken in the WIPO and elsewhere to deal with these matters."

The U.S. is reported to have tried to get around this by arguing that the mandate only referred to "complimentary" initiatives and this meant that the "primary" initiative should be in the GATT negotiations.

Third World countries however rejected this, and said that if their ministers had really intended GATT to undertake the substantive issue of creating or enhancing 'norms', they could have said so in plain language.

The negotiating plan for the group has set the agenda for the initial phase, which has been rolled over into the subsequent phase and is still continuing, under three indents:

--Trade-related aspects of IPRS

--trade in counterfeit goods, and --consideration of relationship between negotiations in this area and initiatives in other fora.

The chairman of the group is also reported to have tried at last week's meeting to focus the discussions on the nature and scope of a multilateral agreement on trade in counterfeit goods as provided for under the second indent of the plan and mandate.

In the discussions a number of Third World countries including Argentina and Chile, as also Switzerland among the industrial countries, reportedly said that the multilateral agreement should not be in the form of a code, along the lines of the Tokyo round code.

Participants said that the U.S., Japan, New Zealand and some other industrial countries have been trying in the group to blur the distinction in the mandate between the first and second indents.

However, Third World countries like Argentina, Mexico, Columbia, Yugoslavia and South Korea repeatedly stressed the need to treat the two indents separately.

Several Third World participants are also reported to have raised the question of scope and coverage of 'counterfeit goods' that could be the subject of a multilateral framework.

These participants reportedly pointed out that the mandate could only be interpreted to mean infringement of IPRS embodied in goods and traded across international borders.

It could not be applied, for example, to industrial designs or industrial secrets as sought by the U.S. and others.

India, supported by Canada and the EEC, also reportedly argued that the basic premise of work in the negotiating group was that contracting parties were seeking to enhance international cooperation in order to suppress the trade in counterfeit goods.

The purpose of the negotiations should not be to call into question the national laws relating to intellectual property protection. The purpose of these laws, and of international agreements based on them, was not only to protect the rights of the holders of IPRS but also that of the public and society.

IPR laws in states sought to maintain a balance between the rights of the IPR holders and the wider public interest. This was also the basis of the WIPO conventions.

The 'trade' dimension should nut be used in GATT to change the balance in the structure of national IPR laws, particularly in the area of patents or its duration.

Several industrial countries reportedly agreed that in striving to enhance enforcement of IPRS, the negotiations must not enhance the role of the state or of state intervention on behalf of IPR holders.

Under national IPR laws, it is for the holder of such rights to move the appropriate authorities or courts to seek redress for infringement of their rights.

After last week's meeting, same Third World participants also expressed alarm at attempts being made by the united states to undermine the negotiating process by selective approaches within the group of industrial countries.

According to these participants, the U.S. negotiators last week informally approached a number of Third World participants and presented them with a draft code that supposedly emerged out of a seminar organised by the U.S. authorities in Washington in March.

Only industrial countries were invited to send representatives to this seminar.

The U.S. negotiators reportedly sought to present the outcome of the Washington seminar as successful. But other industrial country representatives have reportedly said that there were divergences of views at the seminar.

However Third World participants are disturbed by this trend which, they said, would undermine the negotiating process and facilitate the development of a 'counterfeit code' outside the negotiating group, and which could then be forced on other participants in the negotiations.

They recalled that during the Tokyo round negotiations, the U.S. adopted a similar approach. On major issues, negotiations were held in private and outside the GATT amongst the EEC, Japan and the U.S.

This was particularly so on the various agreements or arrangements called the Tokyo round codes. These private understandings were then presented to others on a "take-it-or-leave-it" basis.

Some Third World participants noted that the EEC is reported to be involved in the present U.S. exercise.

They wondered how for this would square with the EECís avowed purpose since the Punta del Este meeting, repeatedly stated by its negotiators in the Uruguay Round bodies, namely that the community "wants to take everyone on board".