Jul 14, 1989

TRIPS NEGOTIATIONS ON COLLISION COURSE, WARNS INDIA.

GENEVA, JULY 13 (BY CHAKRAVARTHI RAGHAVAN)-- India has warned the U.S. and other industrial countries that they would be on a collision course if the Uruguay round negotiations were sought to be used to undertake an omnibus revision of existing international conventions on intellectual property rights (IPRS).

The warning was reportedly given by the chief Indian negotiator for the Uruguay round, A. V. Ganesan, at the meeting of the negotiating group on "trade-related intellectual property rights" (TRIPS), in response to the general discussions in the group on the issue of standards and principles concerning the availability, scope and use of trade related IPRS.

Earlier, in introducing the comprehensive Indian paper, Ganesan is reported to have briefly referred to the actions initiated by the U.S. against India over IPR issues under "special 301" of the U.S. trade law and noted that India had already expressed its views on them at the July 3 meeting of the TRIPS group, as also at the GATT council and other Uruguay round bodies.

Ganesan said that while he did not want to repeat them, he had to make clear that India had serious reservations about the utility of the negotiations as long as bilateral threats were there. Subject to this position, India had submitted its substantive views and proposals in "good faith" as a contribution to the work of the group.

Brazil, another target of special 301, in its comments reportedly referred to its own similar interventions in the Uruguay round bodies and the GATT council. The Brazilian delegate, Tovar de Silva Nunes also made the point that his authorities were still preoccupied by the U.S. actions and had been unable to apply their minds fully to the work of the negotiating group.

The EEC for its part was reportedly critical of the U.S. actions and moves, viewing it as "deplorable" and regrettable.

The decision of the trade negotiations committee in April in TRIPS, the EEC pointed out, not only called for provision of effective dispute settlement mechanisms, but had also emphasised the importance of reducing tensions and avoiding disputes.

The negotiations would be viable only if all negotiating partners felt they were negotiating without coercion.

In the informal third world group meeting Tuesday night, when India explained its paper and views, several of the third world countries viewed the paper as a substantive and useful contribution reflecting third world concerns and perspectives, and said they would make more detailed comments after their capitals study it.

A number of them in general comments reportedly noted that so far in the Uruguay round third world countries had only been reacting and arguing on the grounds determined by the north. It was time the third world countries went on the offensive and presented comprehensive positions and papers of their own, including in other such areas like trade-related investment measures.

The chairman of the group, Amb. Rubens Ricupero of Brazil, reportedly said that without prejudging the positions that would be taken by governments, it was time third world countries took the initiative and presented their views in an articulate manner. It was not too late to move from discussions on conceptual arguments to concrete positions.

On Wednesday the TRIPS negotiating group, chaired by Sweden’s Lars Anell, also heard presentations from Australia, Norway (for Nordics) and Switzerland on their papers - all in the direction of incorporating rules to provide for substantive and enhanced intellectual property protection in the GATT.

While there are some differences among these three proposals, and from the stand in these matters of the U.S., Japan and EEC, all have a common point, namely, to provide through the Uruguay round a GATT agreement specifying minimum standards that each country would be obliged to have in these matters (including length of the period of patent, and both for process and product and including imports and domestic use or sale monopolies to patent holders, areas of activity to be protected).

In the general discussions, the viewpoints presented in the Indian proposal reportedly received either direct or indirect support from the third world countries who intervened in the TRIPS group.

Among these, Egypt reportedly noted that it was no secret that the Indian paper reflected the concerns of third world countries and Egypt supported it.

Mexico, while making no specific mention of the Indian paper addressed the substantive issues in standards and principles, using several of the same basic arguments and concepts on the scope of the possible agreements, and need to fully reflect the concerns and needs of the third world counties.

Singapore expressed its sympathy with the Indian paper and reportedly said it too shared several of the views in that paper which reflected third world perspectives.

Brazil said that the views in the Indian submission in several respects were similar to those of brazil, and referred in this connection to a Brazilian proposal on issues of access to technology and restrictive practices in intellectual property licensing agreements, and the need to deal with them.

Some of the industrial countries, like Canada, while sticking to their position for minimum standards or harmonisation of IPR protection regimes around the world recognised that the issues of socio-economic and technological development of third world countries raised in the paper could not be ignored and would have to be addressed by the group.

Others like the U.S., EEC and Switzerland said they would come up with their views on this at a later stage. All claimed, despite all experience to contrary so far, that transfer of technology and development, would be achieved through higher IPR protection.

While the third world countries are insisting that their concerns over issues of public policy and socio-economic and technological development should permeate the entire discussions, the northern countries are trying to relegate these to separate discussions, after reaching agreements on substantive issues, and in effect for longer transition periods on individual basis to third world countries.

The U.S. while reserving its comments would appear to have said the paper gave the impression that India was not ready to negotiate the substantive issues in the round. The EEC for its part felt that while the Indian paper contained some very substantive views that had to be examined, it seemed to go in the "other direction" than one seen by the EEC as the outcome of the April decision of the Uruguay round trade negotiations committee in its decisions on TRIPS.

In what some participants felt was a strong response, Indian delegate is reported to have repeatedly emphasised that India had very strong reservations, and would oppose, attempts to revise existing intellectual property conventions administered by the world intellectual property organisation and other specialised agencies, and by procedures totally alien to these international treaties.

In the Indian understanding of the agreement on TRIPS at the April meeting of the trade negotiations committee, the issues listed for negotiations had to be strictly "trade related".

If the industrialised countries felt that under this rubric the negotiations had to deal with every single aspect of the provisions of the Paris convention on patents or Berne copyright convention, what was their concept of the "non-trade related" IPRS?

Discussions in the group could not go on the basis of these concepts and provisions in the various papers of the industrialised countries dealing with matters already covered in the various conventions, while ignoring the mandate or the agreement in april or presentations like that of India.

All the interventions by industrialised countries spoke of the outcome resulting in a GATT agreement on intellectual property rights. This completely was contrary to the understanding in April that the institutional aspects of the international implementation of the results in this area would remain wide open.

When countries spoke of "a GATT agreement", they were prejudging the issue.

Discussions and negotiations could not also proceed on the basis of "harmonisation" of standards all over the world nor provide for uniform standards. The idea of uniform or harmonised standards was illogical and impractical. Nor could there be any concept of "minimum standards" applicable in all countries.

The standards suggested in the various papers of the industrialised countries were just not relevant to the third world viewed from the overriding principle of their public policy for socio-economic, industrial and technological development.

The Indian delegate reportedly disagreed with the view of Switzerland, given in response to a question from Thailand, that these problems of the third world could be accommodated through a longer transition period.

The socio-economic and technological development of the third world required their capacity to decide totally different standards, and according to each country's needs.

Whatever proposals were put forward in the group, and discussed and negotiated, would have to be consistent with existing conventions. A basic principle of the Paris convention was freedom of each country to follow its own substantive standards, Ganesan reportedly insisted.

The meetings of the group are continuing through Friday.