Jul 18, 1989


GENEVA, JULY 17 (BY CHAKRAVARTHI RAGHAVAN)— The discussions last week at the GATT, on standards and principles concerning availability, scope and use of trade-related intellectual property rights (TRIPS) has ended without any common ground emerging between industrial and third world nations on these issues, participants said Monday.

The TRIPS negotiating group chaired by Sweden’s Amb. Lars Anell, will meet again in the week of September 11, when it is expected to have discussions on the other negotiating issues.

The discussions last week centered around the papers presented by Australia, Switzerland and the Nordics and an Indian paper which in varying degrees elicited support from third world delegations that spoke.

The first three reflected the view (propagated aggressively by the U.S., Japan and the EEC) that negotiations should result in a GATT framework for minimum international standards on various intellectual property rights or international harmonisation of such standards, in either case at levels higher than in existing international conventions.

The Indian paper on the other hand provided the first fundamental challenge to these concepts, and enabled the third world to join issues in a debate in GATT dominated so far by the north's propagandist view that third world countries not having the same provisions as the industrial world now are guilty of "piracy" and other such criminal acts.

Discussions, both in the general debate on the issues and comments on the Indian paper clearly brought out once again a north-south divide on these issues, participants said.

If reasoning and arguments are to be the criteria, the third world probably gained all the points, but GATT agreements are not based on reason, logic or principles, but sheer use of "power", one third world participant said in summing up the outcome.

At the end, when it comes to negotiating "compromises" in the "green room" or even more restricted consultations, by the GATT director-general or his senior officials (as at the april meeting of the trade negotiations committee), negotiations would be based on unofficial drafts that would fully reflect the demands of the U.S. and other northern nations, and create a negotiating format where the power play would once again be seen, the participant said.

In addition, he noted, the U.S. is holding out over the of third world nations the Damocles sword of "special 301" actions, and despite repeated discussions and the isolation of the U.S. on this issue, the threat of contingent action still remains and will cloud and influence the positions of negotiators.

So long as the third world countries negotiate in the Uruguay round without these threats being removed de jure and de facto, and so long as they agree to negotiate in "green room consultation" process where the scales are loaded against them, the final outlook would remain murky, he added.

In the first two years of the TRIPS negotiations, while third world delegations had been opposing consideration of substantive issues, taking their stand on the Punta del Este mandate and touching on the fundamentals of IPR systems in this context, the Indian paper is the first one providing a comprehensive challenge to the basic concepts now evocated by the industrial world and which are aimed at attacking emerging third world competitivity and ensuring rentier incomes for their transnational corporations (TNCS)

A Brazilian paper, before the Montreal mid-term review in 1938, had raised the issue of restrictive practices of the TNCS, but it was not discussed in the group.

The Indian paper, supported in the essence by several others, took the view that the only standards and principles to be considered and rules framed was in relation to the overall rubric in the mandate, namely, that they should be "trade-related".

In this view, India insisted twat the only trade-related aspects to be considered are the "restrictive and anti-competitive practices" of owners of IPRS, which alone "distort or impede international trade".

The industrial nations, and particularly the U.S. and Japan, opposed the idea of dealing with the restrictive and anti-competitive monopoly practices of IPR holders and would not agree to the secretariat providing a factual noted based on available information, on these matters.

Even the secretariat suggestion that it should merely be authorised to begin work, find out any "pitfalls" and report back to the group was acceptable to the north.

In the result, chairman Anell reportedly ruled that there was no consensus and that consultations would continue. Given past experience, this would really result in either the suggestion being buried or emerging in a totally distorted way to further the interest of the north, another participant remarked.

During the discussions in the group last week, when the U.S. and others claimed that the entire range of IPR issues were now within the mandate of the group, India reportedly asked the protagonists and the chairman to define what were the "non-trade related" IPRS that would be outside the scope of the TRIPS group, even if they were unable to define "trade-related" IPRS.

There was reportedly no response.

The submissions by industrial nations, India said, all appeared to think in terms of "a super Paris convention", a reference to the fact that, currently the international regime on patents, trade marks and other IPRS are governed by the WIPO administered part s and Berne conventions.

Also, there was emphasis on rights of owners but nothing about obligations, whereas all existing conventions and even the national legislation of leading protagonists all dealt with obligations of IPR owners too.

The Indian delegate reportedly cited in this regard from the U.S., U.K. and Japanese laws which provided for obligations of IPR owners, and for compulsory licensing to prevent abuse of the monopoly rights.

One of the demands in the GATT negotiations by the U.S. and others is to do away, or restrict to national security grounds, the provision of compulsory licensing.

IPR standards, India said, could not be harmonised universally, since the problems of the "development world are totally different from those of the industrial world".

On the process vs. product patent issue, the Indian delegate cited example's of leading industrial nations who until very recently had denied product patents in areas of public policy interest like chemicals and pharmaceuticals.

Egypt on this issue reportedly asked the industrial nations to say how the situation of third world countries now was different from that of the industrial world just five or ten years ago.

India also rejected the argument that introduction of product patent for pharmaceuticals in industrial nations like Italy had resulted in increased R and D in these countries, pointing out that neither R and D nor other infrastructural conditions in advanced industrial countries with 10 to 20 times per capita incomes of third world countries could be compared.

The third world concerns over public policy objectives of technological and other development could be met only by giving full freedom to these countries to provide process or product patents or exclude sectors completely form patenting.

Even in the most advanced industrial countries there, were considerable and unsettled debates going on about the ethical, moral and ecological aspects of patenting biotechnology and life forms, while most of the papers of industrial countries in TRIPS wanted IPR protection for biotechnology and life-forms.

In a reference to the Nordic paper, the Indian delegate noted that at least they had excluded "human beings" from patentability, while if others had their way GATT would create a system of international trade in patented human beings".