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Kathmandu Friday August 31, 2001 Bhadra 15, 2058.
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TRIPS agreement set for review
Post Report
KATHMANDU, Aug 30 - The TRIPS Council, Geneva is all set to
review the agreement on Trade Related Intellectual Property Rights (TRIPS), the most
controversial agreement ever drawn under the multilateral trading framework.
Thought the review was to begin last July when the TRIPS
Council met for the first time this year, the actual review is likely to take place only
in September, during the second round of meetings.
This is the first time that the agreement will be reviewed
after the WTO came into being in 1995. Article 71 of the TRIPS Agreement states that the
review of the agreement is to take place after the expiration of the transitional period
given to developing nation states, which, effectively, means that the review would take
place five years from the date of its entry into force.
The review was initially slated to take place from the
beginning of 2000, but could not take place due to the failure of the Seattle ministerial
round of talks in December 1999. The review is also being undertaken as per the
understanding reached during the talks held in Uruguay, where participating member
countries had failed to reach a consensus on the issue.
Furthermore, the review also comes by virtue of clause 27.3B
in the TRIPS agreement that allows the revision of provisions relating to the protection
of life forms and plant varieties through an effective patent regime or sui generis
system. The review of the article was initially fixed to take place in 1999 but was later
postponed.
Although the latest review of the TRIPS agreement comes as
sweet music to all developing and least developed countries (LDCs), who need not comply
with the provisions of the TRIPS agreement before January 1, 2006, debate is on between
the North and South over the mandate for review.
Nepal will, however, have no say in the overall review since
it is yet to acquire WTO membership. The interests of Nepal would be catered to from the
regional level. "Nepal should intervene during the review process either through
South Asian Association of Regional Cooperation (SAARC) or G-77," says Ratnakar
Adhikari, General Secretary of South Asia Watch on Trade, Economics and Environment
(SAWTEE).
Nepal should make the necessary interventions at these
organisations, which will, in turn, carry forward the position of Nepal into the WTO. G77
is a conglomerate of developing and underdeveloped countries.
While the developed countries are arguing that only the
implementation aspects are reviewed, the underdeveloped economies want some of the
controversial provisions changed or scrapped. Weaker economies had, from the very
beginning, opposed the TRIPS agreement that contains stringent provisions on patents.
Developing countries, as well as LDCs, have been arguing that the agreement is heavily in
favour of the Trans-National and Multi-National Companies (TNCs and MNCs).
On the subject of TRIPS, and specifically on the Article 27.3
(B), there is a broad consensus among the developing nations that it should be revised and
brought in line with the Convention on Biological Diversity (CBD).
The CBD, among others, contain provisions allowing sharing of
profits between companies holding patents and countries from where the patented life forms
or plant varieties were originally taken. TRIPS agreement confers exclusive rights to
multinational or trans-national companies.
Furthermore, LDCs and developing countries are lobbying for
strengthening provisions that allow compulsory licensing and parallel imports, especially
those of medicinal drugs, in addition to scrapping of the provisions related to protection
of life forms and plant varieties.
The developed countries are, however, pressing for a
superficial review of the agreement, arguing the changing its provisions would kill the
essence of the agreement. Weaker economies are demanding bringing more flexibility in the
agreement.
"The developed countries are, however, showing some
flexibility on the issue of the availability of life saving medicinal drugs, in addition
to their patenting," says Posh Raj Pandey, Country Programme Manager of Nepal’s
Accession to WTO.
Since the review of the agreement precedes the fourth round
of ministerial talks, scheduled to be held in Doha, Qatar in November this year, this
review is looked upon with great importance. Especially because the third ministerial
round at Seattle was a complete failure.
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