6. World Trade Organisation (WTO)
Background
The World Trade Organisation (WTO) was established in 1995 and is the only global international organisation dealing with the rules of trade between States. The WTO is the successor to the General Agreement on Tariffs and Trade (GATT) which was first signed in 1947. The WTO's relationship to the United Nations is as a "related organisation".
At the centre of the WTO are the various agreements designed to help producers of goods and services, exporters, and importers conduct their business. Of particular relevance is the Trade Related Aspects of Intellectual Property Agreement ("TRIPS").
Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS)
The TRIPS Agreement sets minimum international standards for each of the different categories of intellectual property, including: copyright, trademarks, patents, location specific "naming rights" called geographical indications, industrial designs, and layout-designs of integrated circuits for electronics. Finalised in 1994, along with other WTO agreements on subjects such as agriculture, services and investment measures, its purpose is to set minimum standards of intellectual property protection among all countries that are members of the WTO and to ensure that intellectual property rules do not become barriers to trade.
All 146 WTO members must make sure that their domestic legislation meets the standards set in the TRIPS Agreement. Members are, however, free to determine the appropriate method of implementing the provisions of TRIPS within their own legal systems and practice. The standards in the TRIPS Agreement therefore, underpin the intellectual property legislation of the majority of countries in the world, including New Zealand and all the other developed countries.
The TRIPS Agreement is subject to ongoing review. The TRIPS Council, comprising all WTO members is responsible for monitoring the operation of the TRIPS Agreement, and, in particular, how members comply with their obligations under it. The TRIPS Council also looks to clarify, improve or strengthen various parts of the Agreement. The protection of traditional knowledge is one of the issues under discussion.
Consideration of Traditional Knowledge
The issue of protection of traditional knowledge was originally raised in the TRIPS Council in the context of discussions on the provisions in the TRIPS Agreement on patents (Article 27(3)(b) in particular). Some argue that TRIPS rules are not in the interests of traditional knowledge-holders because they allow governments to grant patents for inventions that could be based on genetic resources or traditional knowledge, without the knowledge or consent of the person or community that owns or controls that knowledge.
In addition, some countries have found that the criteria and rules around the granting of intellectual property rights set out in the TRIPS agreement do not always meet the needs of protecting their traditional knowledge. For example, the requirement that ideas must be new or the limited time period for the life of the intellectual property right.
In response to this, it was agreed at the last WTO Ministerial Meeting in Doha in November 2001, that the issues needed to be considered further. Ministers instructed the TRIPS Council to:
- Examine the relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD); and
- Examine the protection of traditional knowledge and folklore, and
- Continue to conduct a review of Article 27.3(b) of TRIPS, which sets out the exclusions from patentability.
The TRIPS Agreement and the Convention on Biological Diversity
Some WTO Members argue there is an inherent conflict between the TRIPS Agreement and the CBD, as TRIPS allows for private rights to be established over inventions based on genetic resources, while the CBD provides that countries have sovereign rights over their genetic resources (see fact sheet 7). They argue that the relevant provisions of TRIPS should be amended to reflect or support CBD principles, such as prior informed consent and fair and equitable benefit sharing. Others consider that no conflict exists and that the TRIPS agreement allows Members flexibility to meet their CBD commitments if they wish. Some States are of the view that the potential for conflict can exist depending on how the two agreements are implemented and that care needs to be taken to ensure that they are implemented in a supportive manner.
Protection of Traditional Knowledge
As mentioned above, some WTO members are concerned that the TRIPS Agreement is too focussed on conventional forms of intellectual property and needs to be amended to take the protection of traditional knowledge into account. There are also concerns that the TRIPS Agreement should be amended to prevent intellectual property rights being granted to persons using inventions or creations based on someone else's traditional knowledge, particularly in third world countries.
Article 27.3(b) of the TRIPS Agreement - Patentable Subject Matter
As a general principle the TRIPS Agreement provides in Article 27 that patent protection shall be available for any inventions subject to a limited list of exceptions.
Article 27.3(b) of the TRIPS Agreement describes these exceptions, it provides that:
Members may also exclude from patentability…plants or animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof…
Developing countries are concerned about allowing patenting over life forms, such as plants and animals, for a wide range of reasons; they are linked to concerns about the use of their genetic resources and traditional knowledge. There are development and food security concerns as patent protection of plants may prevent small farmers from being able to use certain seeds, and they also have environmental, cultural and moral issues about these sorts of patents. However, because these exceptions are voluntary, it has not been implemented in a number of developed countries where a large number of patents have been granted over life forms, including human genes.
For these reasons, developing countries would like to amend Article 27.3(b) to prohibit the patenting of all life forms and of inventions based upon traditional knowledge, or inventions which violate the provisions of the CBD (see also the section above on the relationship between the CBD and TRIPS). This is being resisted by a large number of developed countries who consider that patents are critical to economic development and that Article 27.3 is sufficient to modulate patents protection to the needs, interests and ethical standards of each country. If there are to be future negotiations over the wording of Article 27.3, these countries are likely to propose that patent protection be extended to all patentable inventions of plants and animals.
Overlap with Work Going on Elsewhere
One of the difficulties of dealing with these related issues is that they are relevant to a number of international fora and are already the focus of work in several different international organisations. There are three major areas where the TRIPS Council discussions overlap with discussions elsewhere.
Within the CBD work is underway on developing rules to ensure there are appropriate controls on access to genetic resources and that there is fair and equitable sharing of benefits from which those resources are derived with indigenous communities.
In addition the World Intellectual Property Organisation (WIPO) has established an Intergovernmental Committee (IGC) (see fact sheet 5) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. The IGC has already made considerable progress in identifying ways that conventional intellectual property rights may pose a threat to traditional knowledge, and measures that could be used to avoid intellectual property rights based upon traditional knowledge being granted to third parties. In future the IGC is likely to continue its work, including focussing on measures that would help traditional knowledge holders protect their knowledge.
The ongoing negotiations to conclude a Declaration on the Rights of Indigenous Peoples is also relevant, with Article 29 of the draft Declaration focussing specifically upon intellectual property (see fact sheet 3).
There are also related discussions going on within the Food and Agriculture Organisation (see fact sheet 8) and WIPO's deliberations on an international treaty to harmonise rules on patents.
Future Work
To date progress in the TRIPS Council on the issues discussed above has been slow. The complex linkages between the three issues and their relationship with work taking place in other fora has complicated discussion. Some developing countries (notably India and Brazil) would like negotiations to be launched immediately in regard to all of these issues. But so far, Member States have been unable to reach agreement on what the WTO's responsibility with respect to these issues is, let alone agree to a negotiation mandate.
New Zealand Position
To date, New Zealand's position in the TRIPS Council has been guided by the Royal Commission on Genetic Modification's recommendation that New Zealand be proactive in pursuing cultural and intellectual property rights for indigenous peoples internationally. Due to the lack of progress in the TRIPS Council, we have so far indicated our support for continued discussion of these issues but have not, as yet, moved beyond these generalities to develop a detailed national position.
For New Zealand, it is important to ensure that any international rules allow adequate flexibility to enable the development of domestic policy. This includes allowing flexibility for the government to respond to the flora and fauna claim (WAI 262) and to meet its Treaty of Waitangi obligations. New Zealand is, therefore, wary of negotiations being launched too soon - in case international debate moves ahead of domestic policy.
For more information on the WTO please visit their website at World Trade Organization .
The Ministry of Economic Development would like to acknowledge the Ministry of Foreign Affairs and Trade for assistance in preparing this fact sheet.
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