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WORK IN THE WTO ON: The Relationship between TRIPS and CBD

Facilitating the Participation in the Intellectual Property and Traditional Knowledge Debate in WIPO's IGC, Chateau Bossy, 22 February 2008. WORK IN THE WTO ON: The Relationship between TRIPS and CBD The Protection of Traditional Knowledge and Folklore Jayashree Watal

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WORK IN THE WTO ON: The Relationship between TRIPS and CBD

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  1. Facilitating the Participation in the Intellectual Property andTraditional Knowledge Debate in WIPO's IGC,Chateau Bossy, 22 February 2008 WORK IN THE WTO ON: The Relationship between TRIPS and CBD The Protection of Traditional Knowledge and Folklore Jayashree Watal Counsellor, Intellectual Property Division, WTO

  2. GENERAL OVERVIEW OF THE PRESENTATION • BACKGROUND ON WTO TRIPS &CBD, TK DISCUSSIONS • DOHA WORK PROGRAMME • BIODIVERSITY • Background on TRIPS & CBD, TK discussions in the WTO, including Doha & Hong Kong Ministerial Declarations • Relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD) • Issues, positions, proposals • COORDINATION WITH OTHER ORGANIZATIONS • TRADITIONAL KNOWLEDGE • Protection of traditional knowledge and folklore • CONCLUDING REMARKS

  3. Background on TRIPS & CBD, TK discussions in the WTO • Rio summit 1992: Traditional knowledge (TK) or relationship with the CBD not raised in the Uruguay Round negotiations (WT/CTE/W/8). • Discussions on the relationship between the TRIPS Agreement and the CBD began in the WTO in the Committee on Trade and Environment in 1995 • Brought into the TRIPS Council through the built-in review of Article 27.3(b) in 1999

  4. BACKGROUND (contd.) • Picked up momentum in the run up to Seattle with proposals on amending TRIPS to include TK submitted by developing country groups. No result at Seattle but was seen as important by all. • Discussion continued through 2000-2001. GC Special Session on Implementation directed continued examination of the relationship between TRIPS and CBD - several papers submitted • Doha work programme.

  5. Doha Ministerial Declaration • Doha Ministerial Declaration(WT/MIN(01)/DEC/1, 14 Nov. 2001) • Para. 19: “We instruct the TRIPS Council, in pursuing its work programme including under the review of Article 27.3(b), the review of the implementation of the TRIPS Agreement under Article 71.1 and the work foreseen pursuant to paragraph 12 of this Declaration, to examine, inter alia, the relationship between the TRIPS Agreement and the Convention on Biological Diversity, the protection of traditional knowledge and folklore... ” • Para. 12: Outstanding implementation issues

  6. “Work programme Implementation-Related Issues and Concerns ... we agree that negotiations on outstanding implementation issues shall be an integral part of the Work Programme... and that agreements reached at an early stage in these negotiations shall be treated in accordance with the provisions of paragraph 47 below. In this regard, we shall proceed as follows: (a) where we provide a specific negotiating mandate in this Declaration, the relevant implementation issues shall be addressed under that mandate; (b) the other outstanding implementation issues shall be addressed as a matter of priority by the relevant WTO bodies, which shall report to the Trade Negotiations Committee, established under paragraph 46 below, by the end of 2002 for appropriate action.” Different views on whether or not part of Doha round of negotiations Extension: para. 12 of Doha Declaration

  7. Organization of work since Doha • Paragraph 19 - Regular meetings of the TRIPS Council. • Three separate items on the agenda of TRIPS Council since 2002 • Paragraph 12 also took place in TRIPS Council and was reported upon to the TNC at the end of 2002. • Since 2003 part of DG’s consultative process on outstanding implementation issues • Two issues: GI extension and CBD/TRIPS –strategic link

  8. After Doha.. • The General Council’s decision on 1 August 2004 • The General Council instructs the TNC, negotiating bodies and other WTO bodies to redouble their efforts to find an appropriate solution, as a priority, to outstanding implementation-related issues. • Hong Kong Ministerial Declaration on 18 December 2005 • Paragraph 39 • Reiterates the above-mentioned instruction • Request the DG to intensify his consultative process on all outstanding implementation-related issues, and to report to each regular meeting of the TNC and the General Council. The General Council shall take any appropriate action no later than 31 July 2006. • Paragraph 44 • The work shall continue on the basis of paragraph 19 of the Doha Declaration and the progress made in the TRIPS Council to date. The General Council shall report on its work in this regard to the next Session.

  9. Relationship between TRIPS and the CBD • Two issues: • Whether or not there is conflict between the two • Whether or not something needs to be done in the WTO on the TRIPS side to ensure mutual supportiveness • If yes, what? • Two widely shared aims: • Avoidance of erroneous patents • Securing prior informed consent and benefit sharing • Importance of not unduly burdening patent offices and users of the patent system generally recognized. • See Secretariat’s summary note - IP/C/W/368/Rev.1 and Corr.1

  10. Compatibility of TRIPS and CBD and action recommended (1) 4 positions: 1. No conflict • There is no legal conflict between TRIPS and CBD • Both have different and non-conflicting objectives • Nothing needs to be done on the TRIPS side to ensure that the two are implemented in a mutually supportive way at the national level • Willing to engage constructively on the basis of widely shared objectives • Ensuring authorized access and equitable benefit sharing • Avoiding erroneously granted patents 2. No conflict but undecided whether international action desirable • Further study is needed, including sharing of national experiences to examine pros and cons of different approaches

  11. Compatibility of TRIPS and CBD and action recommended (2) 3. No inherent conflict, but international action desirable • Both can and should be implemented in a mutually supportive way • A disclosure requirement on patent applicants is needed: • Amendment to TRIPS required • Amendment to PCT regulations but not TRIPS • Mandatory for all patent applications 4. Inherent conflict • Need to reconcile CBD and TRIPS as part of the review of Article 27.3(b) by amendment to TRIPS • Patents over genetic resources not compatible with sovereignty • A mandatory prohibition of patents on life forms, including on microorganisms as well as a disclosure requirement in TRIPS

  12. International action - Disclosure approach • An obligation upon patent applicants using genetic resources and associated traditional knowledge in inventions to disclose at least the source and/or country of origin of such resources or knowledge • Brazil et al (“Disclosure Group”), EC, Norway, Switzerland

  13. Comparative table of the disclosure proposals

  14. Comparative table of the disclosure proposals

  15. Current work in the WTO on CBD as an implementation issue • Recent important submissions: • Text of Article 29bis by Disclosure Group (IP/C/W/474 + Addenda) – now has support of 77 developing country Members • Norway (IP/C/W/473, 491) • Japan’s database proposal in WIPO (IP/C/W/472, 504) • to establish a database related to genetic resources and traditional knowledge, which is accessible by patent examiners in any country • Older important submissions referenced in IP/C/W/368/Rev.1

  16. Coordination with other organizations • TRIPS Council calls for information on the work of other organizations and are also informed of this through Members • Work in WIPO: IGC – WTO Secretariat participates as observer. • Work in the CBD: Working Group on Access and Benefit Sharing – WTO Secretariat participates as observer. • Work in the FAO reported upon from time to time in the TRIPS Council. • UNEP, UNCTAD: reports on seminars, symposia and expert meetings • Among relevant international IGOs, only FAO, WIPO, UN, UNCTAD and UPOV have observer status in the TRIPS Council. Application of CBD under consideration along with others.

  17. Protection of Traditional Knowledge and Folklore (1) • Little debate recently in the TRIPS Council • No specific provisions in TRIPS • Implications • Members can protect TK under covered IPRS, where appropriate • Can introduce sui generis law to protection TK • Can implement CBD, provided there is no conflict with TRIPS • Article 8(j) of CBD: to respect, preserve, maintain knowledge, innovations as practices of indigenous and local communities and encourage the equitable sharing of benefits

  18. Protection of Traditional Knowledge and Folklore (2) • The need for international action on the protection of traditional knowledge and folklore • The international forum most appropriate to pursue such work: WIPO vs. WTO • Defensive protection of traditional knowledge: • Definition of prior art • Databases • Opposition, re-examination, revocation • Disclosure requirement • Positive protection of traditional knowledge: • Use of the existing IPRs • Disclosure requirements to ensure benefit-sharing • Contracts • Sui generis system of protection • The Secretariat’s summary note IP/C/W/370/Rev.1

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