Sep 21, 1988
NO BUSINESS AS USUAL IN TRIPS, SAYS THIRD WORLD.GENEVA, SEPTEMBER 16 (IFDA/CHAKRAVARTHI RAGHAVAN) -- Third world countries reportedly expressed their disappointment and surprise that the industrial countries, as well as the chairman of the TRIPS negotiating group, have ignored their views on efforts to widen the negotiating mandate, and were trying to proceed on the basis of "business as usual". This viewpoint was reportedly expressed at this week’s meeting of the Uruguay round negotiating group on "Trade-Related aspects of Intellectual Property" (TRIPS), which is chaired by Amb. Lars Anell of Sweden. In other comments, Brazil reportedly referred to the U.S. actions, under S. 301 of its trade law, announcing its intention of unilaterally retaliate against Brazilian exports to the U.S. market. The U.S. actions, Brazil reportedly told the TRIPS group, was "a flagrant violation" of the standstill commitment at Punta del Este, and particularly the commitment by each participant "not to take any trade measures in such a manner as to improve its negotiating position". Through its actions, Brazil reportedly complained, the U.S. was trying to force Brazil to change its stands in the area of TRIPS. At the July meeting of the Group of Negotiations on Goods (GNG), which is the body mandated to carry out the Uruguay round GATT MTNS in the area of goods, India on behalf of developing countries had made a statement expressing concern at the efforts of industrialised countries to widen the mandate in the area of TRIPS, set new intellectual property norms and standards via GATT, and have them enforced through the GATT dispute settlement mechanisms. The statement to the GNG had pointed out that while third world participants had raised within the TRIPS group their concerns at such tendencies to widen the mandate, these had not been addressed and industrial countries continued to table proposals to create new norms and standards and discussions were being focussed on these. At this week’s meeting, the U.S. circulated informally a new paper outlining at some length the kind of enforcement that GATT Contracting Parties (CPS) should provide for enforcement of IPRS of enterprises and traders of other countries, and the kind and duration of norms and standards their laws should have for various types of IPRS. Japan presented what was described as a new submission clarifying its earlier proposals. Also before the TRIPS group was reportedly a letter addressed to each participant form the chairman with two annexes: one relating to enforcement and dispute settlement of IPRS, and the other outlining the chairman’s "understanding" of the discussions on the relevant GATT provisions in relation to TRIPS. The letter dated August 11 did not refer at all to the issues posed by third world participants at the GNG. A number of third world country delegates reportedly recalled the collective statement made on their behalf in the July meeting of the GNG, and expressed surprise that neither the major industrialised countries nor the chairman had referred to it or reacted to it, but were proceeding as if it was business as usual. Brazil, Chile, Colombia, Ghana, Egypt, and India were among the countries that reportedly spoke on this matter. These delegations reportedly said that they had raised the issue at the level of the GNG because of their disappointment with the trend among industrialised countries within the TRIPS to address issues involving the substantial areas of intellectual property rights that were outside the mandate. To ensure a meaningful and constructive dialogue within the group, it was necessary for the chairman and the industrial countries to address the concerns raised in the statement made before the GNG. Without a proper examination of the serious issues raised in the joint statement, it would not be possible to ensure a satisfactory outcome at Montreal, the third world delegates reportedly said. Given the limited time for the group before the Montreal meeting, it should address the more substantive issue whether patent protection and norms should be covered by GATT at all, rather than what areas of IPRS should be covered or the duration of such rights. Apart from these delegations, Thailand reportedly intervened for the first time in the group and said that its silence in the group so far should not be considered as indifference or acquiescence. Thailand was in general agreement with the views expressed on behalf of third world countries at the July meeting of the GNG, where it had been pointed out that GATT dealt with liberalisation of international trade in goods as they crossed national borders and hence the scope of negotiations in TRIPS should be confined to issues relating to enforcement of IPRS at the border only. While Thailand was interested in working with other CPS for a successful outcome of the round, it appeared from the perspective of the Thai delegation that the motives and objectives of some CPS in proposing wider coverage, including establishment of international norms and standards of IPRS based on their own national interests and standards clearly went beyond the intent and spirit of the Punta del Este Ministerial Declaration. If the group was to make substantial progress in negotiations, it should concentrate on devising appropriate enforcement mechanisms to ensure adequate protection of IPRS. But such enforcement procedures should lead to further liberalisation of trade "and not become barriers or harassment to legitimate trade or lead to excessive protection obstructing transfers of technology". While the procedures should reflect genuine intention and obligation of individual CPS to provide due process of law, this did not imply that any harmonisation of national laws were required. The procedures should afford maximum degree of transparency. Any disputes between CPS about non-compliance should be settled through existing or improved GATT dispute settlement mechanism and "any unilateral action by Contracting Parties should be prevented". In granting intellectual property rights, governments pursued two fundamental goals, the Thai delegate reportedly pointed out. The first was to stimulate or encourage intellectual creation, while the second was the proper and legitimate protection of public interest. "The former must not put undue burden on or adversely affect the latter. The role of nay governments is to find a proper balance between the two". New Zealand suggested that the substantive aspects of IPRS had been neither specifically included nor excluded by the Punta del Este mandate. Rather than the "archaeological" approach to the mandate adopted by some, New Zealand preferred and "architectural" approach. However, countries like India and Brazil rejected the "architectural approach", implying the mandate could be "built upon" and expanded. The negotiating mandate, these delegates reminded the group, had been "carefully crafted to exclude the substantive elements of IPR law". This was evident from statements made by several third world delegations following the adoption of the Punta del Este declaration. Before Punta del Este, there had been proposals from some to go into the issue of substantive norms for IPRS, but there had been non consensus at Punta del Este to deal with these issues. In other discussions, chairman Anell reportedly drew attention to the second annex to his letter, outlining what he understood to be the main points emerging from the group’s examination of relevant GATT articles. If there was no disagreement, it was his intention to annex the note to the record of discussions in the group, as the chairman’s understanding of the main points emerging from the discussions. It would no constitute a legal interpretation of the GATT provisions, but would indicate a common perception in the group of their significance. The EEC reportedly said it had no difficulties with the substance, but would have preferred to draft it differently, making clear that the explanations would not be a legal interpretation. The EEC’s view was reportedly supported by Switzerland and the Nordics. However a number of third world countries, including Malaysia, Chile, Colombia, Brazil, Egypt and Jamaica reportedly expressed their reservations over the content and intent of the annex. Malaysia reportedly pointed out that contrary to what was set out in the annex, GATT articles one and three did not deal with IPRS at all. The concept of "national treatment" in GATT was related only to products after they crossed the border. Chile insisted that only contracting Parties were competent to interpret the general agreement, and Chile’s interpretation could differ from that of others. It was not possible for the chairman to outline "a common understanding" about the provisions. Egypt and Brazil argued reportedly that the group had not completed its consideration of the "relevant GATT provisions", while Jamaica felt that it was "premature" to set out such an annex. Jamaica noted that the annex had not mentioned articles V and XI, which were relevant from Jamaica’s viewpoint. India said that "identification" of the relevant GATT articles should not be confused with any interpretation of the articles. It would be best merely to identify the articles and reproduce them in full in the annex. While some of the GATT articles referred, directly or indirectly, to intellectual property protection, the provisions of the general agreement did not create any specific rights or obligations for CPS in respect of IPRS. The U.S. was concerned at the views of several of the third world participants, and felt it was "obstructionist" to oppose adoption of the annex. However, the chairman reportedly said that the secretariat would take note of the various remarks and the document would be revised in the light of these comments. On the chairman’s annex about the checklist of questions about enforcement, the U.S. and EEC were reportedly unhappy that the working would suggest that it would be sufficient within the group to deal only with the issue of enforcement. The U.S. and EEC proposals included the substantive issues of IPRS and this must be considered along with the issue of enforcement. Third world delegates however criticised the annex for blurring the distinctions between the separate mandates to the group, one relating to IPRS and the other counterfeit goods. Several delegates noted that enforcement related to the point of importation of goods, to exportation of goods, and point of production. Enforcement at the point of production was an issue to be addressed in the context of substantive laws on intellectual property. National laws and regulations for IPRS always provided for such an enforcement at the point of production. South Korea supported the view of other third world delegations that enforcement of IPRS should only be at the border. Canada and Australia agreed that enforcement at the border was more directly trade-related than enforcement at the point of production. Third world countries questioned whether there could be any enforcement by customs or other agencies at the point of exportation. The chairman reportedly noted that discussion on this issue was inconclusive, he also noted that despite his view at the earlier meeting that discussion at the September meeting would focus on the issues about counterfeit goods, there had been no time for that. It was his intention at the next meeting in the week of October 17 to begin discussions on the counterfeit goods issues.