Nov 3, 1989

TRIPS - NO TO NORM SETTING OR GATT ENFORCEABILITY.

GENEVA, NOVEMBER 1 (BY CHAKRAVARTHI RAGHAVAN)— Proposals of industrialised countries on "Trade-Related Intellectual Property Rights" (TRIPs) are ignoring some fundamental issues in the Punta del Este mandate and the mid-term accord, several third world delegations have reportedly complained at this week's meeting of the negotiating group.

The group discussed several new papers (from Canada, Korea, New Zealand and Peru) presented to it, with delegations seeking clarifications on the various points in these communications.

Later it began considering the issue of provision of adequate standards and principles on various trade-related IPRs (patents, trademarks, etc).

The proposals of industrialised countries on the table, several of the third world countries reportedly complained, ignored the concerns of third world participants relating to public policy objectives in their national systems for protection of IPRs, including developmental and technological objectives.

Also, the proposals mooted would bring the GATT TRIPs negotiations into conflict with the work of the relevant and competent. international organisations in this field like the World Intellectual Property Organisation (WIPO).

The Punta del Este mandates on TRIPs has specified that the TRIPs negotiations "shall be without prejudice to other complementary initiatives that may be taken in the WIPO and elsewhere to deal with these matters".

Reiterating this, the mid-term accord has said that "the negotiations shall be conducive to a mutually supportive relationship between GATT and WIPO as well as other relevant international organisations".

Norms setting or harmonisation of norms was the responsibility of WIPO and not of GATT, and the Uruguay Round negotiations could not be used for this.

In criticising the approach of the major industrial countries in the negotiations, a number of third world participants including Brazil, Chile, India, Mexico and Tanzania reportedly insisted that the work on many of these issues in WIPO could not be ignored.

Several of the proposals proceeded on the basis that any agreement would be in the GATT framework. But this was contrary to the mid-term accord where ministers agreed that the outcome of the negotiations were not to "prejudge" or "prejudice" views on the institutional aspects of the international implementation of the results which was to be decided by Ministers meeting on the occasion of a special session of the contracting parties, and "when the results of the MTNs in all areas have been established".

The idea in several of the proposals about the TRIPs agreement having provisions for enforcement and dispute settlement via GATT was thus contrary to the mid-term accord.

It was not possible to discuss or address in the negotiating group concepts based on turning the TRIPs agreement into a GATT obligation.

Chile expressed its opposition to GATT as the institutional instrument for implementation of any eventual TRIPs agreement.

In the mid-term mandate the Ministers had agreed that "in the negotiations consideration will be given to concerns raised by participants related to the underlying public policy objectives of their national systems for the protection of intellectual property, including developmental and technological objectives".

Brazil was "dismayed" that this had not been reflected in most of the papers. The public policy objectives, and particularly developmental and technological objectives were not being addressed at all.

Participants said that several of the third world countries have indicated that they would be formulating their own proposals and ideas over the next few weeks, perhaps by December.

On the issue of "enforcement" at the border, while some seemed willing to consider this in relation to "trade in counterfeit goods", where the "counterfeiting" would be apparent on the face of it, such as in misuse of trade-marks, others were chary even of this, particularly in the light of their own legal systems as also the potential of such a provision being abused for protectionist purposes.

Even those who seemed somewhat "flexible" on the issue of border enforcement on counterfeit trade, were opposed to any state intervention and border enforcement of IPRs like patents, etc.

The only responsibility of any state in such matters, they said, was to provide a judicial process for adjudication of claims of parties, whether it be disputes among nationals or between a national and a foreigner. The rights and remedies of foreigners in these matters could not be superior to those of citizens.

The state could not assume other obligations nor could the issue become a matter of dispute settlement internationally.

The "trade-related" aspect of such rights, in the Brazilian view, would involve relating grant of patent or other IPRs by a state with issues of transfer of technology.

A party seeking to acquire patent rights in a state could be obliged to sign a technology transfer agreement. The idea of working a patent in the territory of the state granting the patent right or a provision for compulsory licensing of the patent.

The proposals and papers of a number of industrial countries sought to provide for exceptions to the rule of patentability of all inventions.

In the view of Brazil and other third world participants this was "illogical", particularly since the list of exceptions did not seem to have any objective criteria. It was far more logical to provide that each country would have to decide on its own "exceptions" based on its public and development policy objectives.

It was not possible through the GATT TRIPs agreement to bring about "harmonisation" among countries.

The third world countries also insisted that it was not possible to have a TRIPs agreement relating to the obligations of states without corresponding provisions dealing with obligations of holders of rights, including against the restrictive practices of the IPR holders.

The industrial countries, who are trying to create "rights" for private parties who are their nationals or enterprises, however, argued that the GATT TRIPs agreement could not place "obligations" on private parties when the latter were not party to the agreement.

In the area of copyright and "neighbouring rights", third world participants argued that the standards set in the Berne Convention on copyright was adequate and any deficiencies or problems relating to it or about "neighbouring rights" would have to be dealt with in WIPO, and not in the GATT.

"Neighbouring rights" are rights neighbouring on copyright which applies to authors (including composers). Under neighbouring rights of performers, producers of phonograms and of broadcasting organisations that disseminate the works of authors are protected.

Third world countries said that any questions relating to protection of computer software programmes through copyright protection would also have to be examined and dealt with in WIPO, which was the competent and relevant organisation, and which in fact was due in the next week to hold a meeting relating to model law in this area.