WTO


Academics Criticise Handling Of Cultural Diversity, Traditional Knowledge At International Level
IP Watch, 7 March 2013

GENEVA, SWITZERLAND: At a recent conference jointly organised by the Graduate Institute of International and Development Studies (IHEID, Geneva) and the Museum of Art and History of Geneva, academics tackled the question of the preservation of culture – in its natural and cultural dimension – against the risks of globalisation. Panellists offered criticisms of the evolution of the international system for the protection of cultural diversity, with regard to traditional knowledge and rights of indigenous people. Many panellists addressed strong criticisms toward the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity. Riccardo Pavoni, a professor at the University of Sienna, Italy, described the Nagoya Protocol as a “masterpiece of erratic treaty drafting,” containing what he called “contradictory and inconsistent drafting”. Pavoni said Nagoya Protocol negotiators deliberately refrained from imposing a disclosure requirement for patentability. The requirement is therefore only optional for Parties to the Nagoya protocol, hence the continuing battle happening at the World Trade Organisation (WTO) and at the World Intellectual Property Organisation (WIPO) to introduce a mandatory disclosure requirement. Many other academics, while acknowledging that the Nagoya Protocol is not perfect, see in it a step forward as this text creates a system that links the user and supplier countries. On TK, Genevièvre Koubi, professor at the University of Paris VIII, denounced what she called the “commercial drift” of the concept of protection of diversity of cultures. She said that no UN organisations protect culture in itself, but rather the forms that culture takes. Koubi said that in every UN agency dealing with traditional knowledge – including WIPO – it is the economical aspect of culture that prevails and diversity is only understood in the market context. Culture is therefore only understood as a strategy for development. Read the article …

Chair: entrenched positions blocking intellectual property talks
WTO news release, 7 December 2012

GENEVA, SWITZERLAND: WTO negotiations to create a multilateral register of geographical indications for wines and spirits are deadlocked over what the talks should cover, the chairperson, Amb. Yonov Frederick Agah of Nigeria, reported to the Trade Negotiations Committee on 7 December 2012. He said he will try to hold discussions on technical issues in early 2013. This would broaden the factual basis for the negotiations in a way that could allow members to delay the difficult “strategic” decisions about the talks’ content and their links with other subjects. Ambassador Agah reported that the biggest stumbling block in the talks is differences of opinion over the mandate – including whether talks should only be about wines and spirits, as originally mandated, or whether other products could be added. The negotiating standoff also concerns whether these talks should be linked to two other topics, both handled separately in consultations under Director-General Lamy: a proposal to amend the rules so that the current higher level of protection given to geographical indications of wines and spirits are extended to other products (“GI extension”); and a call to amend the TRIPS Agreement so that patent applicants are required to disclose the country of origin of genetic resources and traditional knowledge used in the inventions. Read the release … Read an IP Watch article on the issue …

Indigenous Peoples’ Innovation: Intellectual Property Pathways to Development
Peter Drahos and Susy Frankel (eds), ANU E Press, August 2012 | ISBN: 9781921862779 (pbk.) 9781921862786 (ebook)

This book analyses the relationship between intellectual property and indigenous innovation. The contributors come from different disciplinary backgrounds including law, ethnobotany and science. Drawing on examples from Australia, New Zealand and the Pacific Islands, each chapter explores the possibilities and limits of intellectual property when it comes to supporting innovation by indigenous peoples. The preface is by Antony Taubman, Director of the WTO Intellectual Property Division. The book includes the following chapters, which were first presented at the conference “Intellectual Property, Trade and the Knowledge Assets of Indigenous Peoples: The Developmental Frontier” in December 2010:

  • Indigenous Peoples’ Innovation and Intellectual Property: The Issues
  • Ancient but New: Developing Locally Driven Enterprises
  • Based on Traditional Medicines in Kuuku I’yu Northern Kaanju Homelands, Cape York, Queensland, Australia
  • ‘It would be good to know where our food goes’: Information Equals Power?
  • Biopiracy and the Innovations of Indigenous Peoples and Local Communities
  • Indigenous Cultural Heritage and Fair Trade: Voluntary Certification Standards in the Light of WIPO and WTO Law and Policy-making
  • Traditional Innovation and the Ongoing Debate on the Protection of Geographical Indications
  • The Branding of Traditional Cultural Expressions: To Whose Benefit?
  • The Pacific Solution: The European Union’s Intellectual Property Rights Activism in Australia’s and New Zealand’s Sphere of Influence
  • Do You Want it Gift Wrapped?: Protecting Traditional Knowledge in the Pacific Island Countries.

Download the book or individual chapters …

Developing Countries Propose TRIPS Amendment to Fight Biopiracy
Third World Network Info Service on Intellectual Property Issues, 2 June 2011

BEIJING, CHINA: In this article, TWN’s Chee Yoke Ling reviews a recent proposal to amend the WTO TRIPS Agreement, submitted by a large group of developing countries on 15 April 2011 to the Trade Negotiations Committee as part of the ongoing Dohatalks. The communication (TN/C/W/59) is entitled “Draft decision to enhance mutual supportiveness between the TRIPS Agreement and the Convention on Biological Diversity” and proposes to add a new Article 29bis on “Disclosure of Origin of Genetic Resources and/or Associated Traditional Knowledge” in the TRIPS Agreement. The proposal appears to build on the momentum established by the adoption of the Nagoya Protocol on access and benefit-sharing, and is also of interest to the participants at the first meeting of the Intergovernmental Committee for the Nagoya Protocol, held in Montrealfrom 6-10 June 2011. Read the article …

Defusing Disclosure in Patent Applications: a positive strategy to strengthen legal certainty in the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation to the Convention on Biological Diversity and support WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore
Paul D. Oldham (ESRC Centre for Economic and Social Aspects of Genomics) and Geoff Burton (UNU-IAS), October 2010

This report provides analysis and factual data on ways forward for the successful introduction of a practical system for monitoring the utilization of genetic resources and traditional knowledge in patent applications. It suggests a resolution to a key issue blocking the creation of such a system. This resolution is based on 4 elements: acknowledging and analyzing the current impasse between the Convention on Biological Diversity (CBD), the World Trade Organisation (WTO) and the World Intellectual Property Organisation (WIPO) on the disclosure of certain biodiversity information in patent applications (Section 1); analyzing a useful precedent for a functional disclosure requirement using the Bayh-Dole provisions of the US Patent Act (Section 2); interrogating the patent system to see to what extent disclosure of countries of origin already takes place (Section 3); and interrogating the patent system to explore disclosure issues with respect to indigenous and local communities and traditional knowledge (Section 4). Read the paper …

Issues related to the extension of the protection of geographical indications provided for in Article 23 of the TRIPS Agreement to products other than wines and spirits and those related to the relationship between the TRIPS Agreement and the Convention on Biological Diversity
Report by the WTO Director-General (WT/GC/W/633, TN/C/W/61), 21 April 2011

GENEVA, SWITZERLAND: This report by WTO Director-General Pascal Lamy, presented to the WTO Trade Negotiations Committee and the General Council, summarizes the informal consultative process regarding the extension of the protection of geographical indications and issues related to the relationship between TRIPS and the CBD. On the latter issue, it is noted that discussions built on the common ground reported in 2008 – broad support for the general principles of prior informed consent and equitable sharing of benefits that are enshrined in the CBD; and agreement on the need to avoid erroneous patents, secure compliance with national benefit-sharing regimes, and ensure patent offices have available the information needed to make proper decisions on patent grants for inventions linked to genetic resources and traditional knowledge (TK).  Members voiced support for the CBD objectives, but remained divided as to the best means to fulfil them within the TRIPS framework. The structured discussions reviewed the practical implications and comparative merits of current proposals – a disclosure requirement, a database system, and national-based approaches to enforcing prior informed consent and equitable benefit sharing – considering how each of these options could effectively help achieve the agreed objectives, while not creating undue burdens. Members considered how databases and disclosure requirements would operate in practice to reduce the risk of patents being incorrectly granted over genetic resources and associated TK. The exchanges covered a number of general themes grouped into four clusters: cluster 1 on the legal character of misappropriation; cluster 2 on costs and benefits of measures, other than the disclosure requirement, to address misappropriation and benefit sharing; cluster 3 on the legal character and enforcement possibilities of national-based approaches, including a contract-based system, especially covering multiple jurisdictions; and cluster 4 on administrative costs and burdens, and the legal certainty and predictability, of a mandatory disclosure requirement within the patent system. Members have consistently voiced support for the principles and objectives of the CBD, and have agreed on the need to take steps to avoid erroneous patents, including through the use of databases, as appropriate, to avoid patents being granted on existing TK or genetic resources subject-matter. However, Members continue to differ on whether the formulation and application of a specific, tailored disclosure mechanism relating in particular to genetic resources and associated TK would be useful and effective in ensuring that the patent system promoted CBDobjectives, or whether other mechanisms should be preferred. Download the report [doc] … Read an IP Watch article on recent WTO discussions, 21 April 2011 …

WTO Establishes Dispute Settlement Panel on EU Seal Ban
ICTSD Bridges Trade BioRes, 4 April 2011

GENEVA, SWITZERLAND: After consultations failed to yield a resolution, on 25 March the WTO formally established the dispute settlement panel initiated by Canada, to determine whether an EU regulation banning imports of seal products complies with WTO rules. The EU ban on seal products is based on arguments that seal harvesting practices are “inherently cruel” and “inhumane.” The only exceptions to the ban concern seal products derived from hunts traditionally conducted by Inuit and other indigenous communities, which contribute to their subsistence; and those that are by-products of a hunt regulated by national law and with the sole purpose of sustainable management of marine resources. Canada argues that seal harvesting in Canada is done humanely and that its sealing practices are safe, sustainable and economically legitimate. Norway joined Canada, arguing that none of the seal species hunted were endangered or listed under CITES. Read the article …

EU herbal medicines law set for legal challenge
EurActiv.com, 1 April 2011

BRUSSELS, BELGIUM: An EU ban on unregistered herbal medicine will be difficult to implement fairly and is set to be challenged in the courts, campaigners have claimed in advance of an impending deadline for the sector. On 1 May the EU’s Traditional Herbal Medicinal Products Directive – first passed in 2004 – will come into full effect, compelling herbalists to conform to new standards. Under the directive, all herbal medicinal products are required to obtain an authorization to market within the EU. The intended use of a herbal medicine will only be authorized on the basis of its traditional history and/or the recognized pharmacological properties of the herbal ingredients. But campaigners for the industry are set to challenge the full introduction of the directive and claim that member states are adopting varying standards to its implementation. Read the article …

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