TWN Info Service on Trade, Intellectual Property, Climate Change and Sustainable
Development
29 April 2024
Third World Network
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Trade: Colombia seeks comprehensive review of WTO’s TRIPS Agreement
Published in SUNS #9995 dated 29 April 2024

Geneva, 26 Apr (D. Ravi Kanth) — Colombia has fired the proverbial first salvo against the World Trade Organization’s TRIPS Agreement by seeking a “comprehensive” review of the implementation of the agreement which is replete with numerous controversies since its entry into the WTO’s rule-book on 1 January 1996, following the conclusion of the Uruguay Round trade negotiations, said people familiar with the development.

As the WTO celebrates its 30th anniversary this year, Colombia showed clearly that the TRIPS Agreement’s “norms provide a significantly stricter framework than what existed under the WIPO (the World Intellectual Property Organization), despite its menu of options.”

It may be recalled that during the Uruguay Round negotiations, several developing countries insisted that rules/norms governing intellectual property should be left to WIPO, said a former trade envoy, who had participated in the negotiations.

But the United States along with several industrialized countries, which brought the agreement into the trade arena in order to promote the interests of “Big Pharma”, had vehemently opposed issues concerning intellectual property rights (IPRs) to be left or governed by WIPO, the envoy said.

The pressure exerted by the former US Trade Representative (USTR) Carla Hills on several major developing countries to accept the TRIPS Agreement provisions is well-recorded, the envoy noted.

Against this backdrop, Colombia has tabled a proposal (IP/C/W/712), titled “Review of the Implementation of the TRIPS Agreement: Article 71.1”, showing why the TRIPS Agreement must be reviewed without any further delay.

The proposal is expected to be discussed at the TRIPS Council meeting on 25-26 April.

Article 71 of the TRIPS Agreement states:

“1. The Council for TRIPS shall review the implementation of this Agreement after the expiration of the transitional period referred to in paragraph 2 of Article 65. The Council shall, having regard to the experience gained in its implementation, review it two years after that date, and at identical intervals thereafter. The Council may also undertake reviews in the light of any relevant new developments which might warrant modification or amendment of this Agreement.

2. Amendments merely serving the purpose of adjusting to higher levels of protection of intellectual property rights achieved, and in force, in other multilateral agreements and accepted under those agreements by all Members of the WTO may be referred to the Ministerial Conference for action in accordance with paragraph 6 of Article X of the WTO Agreement on the basis of a consensus proposal from the Council for TRIPS.”

More so, at a time when parts of the Uruguay Round Final Act are being reviewed/negotiated, including the ongoing reform of the dispute settlement system, it is also important to review the TRIPS Agreement that came under severe criticism during the recent COVID-19 pandemic when millions of people died allegedly due to IPR restrictions on COVID-19 vaccines and related medical products, said a person, who asked not to be quoted.

According to Colombia’s proposal, “a comprehensive review of the implementation of the Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS Agreement) is both an unfulfilled commitment and a necessity.”

More importantly, it said that “carrying out the review mandated in Article 71, along with the 30th anniversary of the TRIPS Agreement will provide an opportunity” on several grounds.

They include:

(i) to increase dialogue and transparency on the impact of international rules on Intellectual Property (IP) issues;

(ii) to start overcoming the existing impasse of the TRIPS discussions and negotiations at the TRIPS Council;

(iii) to support political and technical discussions that are taking place in other forums and settings; and

(iv) to identify/produce relevant metrics to inform better implementation in the future.

Colombia said that “after 30 years of the TRIPS Agreement implementation, a Member-driven policy discussion, supported by metrics and data, should provide the basis for a review on best practices, identification of obstacles, potential implementation improvements, among other elements.”

Also, it said such “discussions will provide added clarity and transparency, offer learning experiences for every Member to enhance their strategies within the general balance among the policy goals underlying the TRIPS Agreement.”

30 YEARS OF TRIPS AGREEMENT

In the context of “30 years of the TRIPS Agreement,” Colombia provided a brief history of developments after the TRIPS Agreement entered into force on 1 January 1996.

“Since then,” Colombia said, “it generated significant changes in domestic legal systems worldwide, especially but not limited to the developing world.”

It said that “the TRIPS Agreement is both a menu of options and a minimum standards treaty,” adding that “domestic legislations must choose among the alternatives provided for by the Agreement, as long as they conform with minimum provisions.”

Notwithstanding the menu of options, “the TRIPS Agreement provides a floor of norm-setting markedly stricter than previous multilateral Intellectual Property Agreements in force at WIPO (and than most domestic legislations at the time of entry into force),” Colombia argued.

After reviewing the developments in the implementation of the TRIPS Agreement, including in free trade agreements where several countries took on a higher level of commitments, Colombia showed with evidence how “the TRIPS Agreement norms provide a significantly stricter framework than what existed under the WIPO substantive agreements, despite its important menu of options.”

Unsurprisingly, it said the TRIPS provisions “entailed a change of paradigm: A different version of the balance of the triangle of policy goals associated with intellectual property protection was achieved: i.e., the promotion of innovation on one side; the broad access to technologies on another, and the promotion of national competitiveness-industrial policy on the third.”

Colombia said “the TRIPS Agreement’s balance is a set of normative choices that reflects the ideas, experiences, and conditions prevalent in the early 1990s.”

Yet, the TRIPS Agreement has not been subjected to any review despite 30 years of implementation.

Therefore, a formal start of the review of the implementation of the TRIPS Agreement is an urgent priority for WTO members, Colombia argued.

In its proposal, Colombia sought to address the discussions on the following implementation aspects:

a. To analyse both domestic and international concentration of production in knowledge intensive sectors over the years, based on relevant metrics.

b. A global stocktake on royalties paid in and out by country for the use of Intellectual Property Rights, as expressed in the Balance of Payments of countries.

c. A global stocktake on the use of Compulsory Licences since 1996, with a focus on the problem of export limitations faced by “sandwich” countries (not too small, not too large).

d. A global stocktake on the residency/nationality of innovators across Members, coupled with an examination of Patenting activity by Office of Subsequent Filing – OSF – (to better understand who is patenting internationally and domestically, and the incentive mechanisms that exist for innovators to go abroad).

e. A related discussion on the exploitation of “disclosures” after IPRs finish their terms of protection. As an implementation matter, are these innovations/creations publicly available? Are they used by Members (especially developing ones)? Are they available for training of artificial intelligence models? (optional trigger questions).

f. The utilization of Article 44(2) of TRIPS by WTO Members.

It remains to be seen how the countries that are blocking any change in the TRIPS provisions, particularly those where “Big Pharma” is headquartered, will respond to Colombia’s constructive proposal for a comprehensive review of the implementation of the TRIPS Agreement, said a developing country member, who asked not to be quoted. +