Access and Benefit Sharing Protocol adopted at Nagoya.
Readers may remember our post recently on the COP 10 of the Convention of Bio-Diversity that was held at Nagoya, Japan. 18 years of negotiation on the treaty finally concluded with the adoption of the Access and Benefit Sharing Protocol, (Nagoya Protocol) on the 30th of October, 2010. The protocol, as the name suggests, has the aim of preventing misappropriation of genetic resources of countries, as well as providing equitable benefit sharing by the countries from which genetic resources are taken. I haven’t yet gone over the details of the protocol itself, but going by the reports on it, (IP-Watch, The Guardian, CBD Press Release) it seems to be quite weak. While on one hand, it’s no small effort that the countries reached any sort of consensus at all, it seems that perhaps the developing countries have had to compromise more, yet again. Despite the urgency of the situation and the much proclaimed concern over it, there will be no injection of funds till 2012. Till then, they plan on strategising how to go about this based on 20 goals, referred to as ‘Aichi targets’. With regards to the main concern of Bio-Piracy being addressed – the Protocol will create an International Regime on Access and Benefit Sharing of Genetic Resources which aims to create ground rules for the trade of genetic resources. However, while saying that it would push governments to provide restitution or compensation for patents made on the basis of genetic resources/traditional knowledge taken, there is very little mention in the details about how the funding of this would take place, with more of promises of these details being taken care of at a later date.
As mentioned in the Guadian, ” “We were disappointed that most rich countries came to Nagoya with empty pockets — unable or unwilling to provide the resources that will make it possible for the developing world to implement their ambitioustargets.” said Jim Leape, director general of WWF International. “
While this may be a good start – certainly better than before – we can only hope that these are not empty promises yet again.
Review of the Para 6 System
The Paragraph 6 system refers to the amendment introduced by the Doha Declaration to allow exceptions to provide easier access to cheap generic medicines to developing countries with insufficient or no manufacturing capabilities in the pharmaceutical sector.
A substantive review of the under-used Paragraph 6 system of the WTO TRIPS Agreement took place on the 27th of October at the TRIPS Council. While there is a review of it every year, this is apparently the first time that a whole day had been set aside for it.
In the review process, India and Canada made much contribution, sharing their experiences with the system. India showed examples which pointed at the system being too onerous to take full advantage of, while Canada on the other hand, being the only member to have exported under this system (to Rwanda) provided a detailed explanation of how it went about it, coupled with its own Access to Medicine Regime (CAMR) was quick and easy. Rwanda however, did not contribute to this session. (Source: TWN article here). Ghana too, who has tried unsuccessfully to make use of the para 6 system, was not present at the session. On the whole, least developed countries, as potentially the most needy of the system, did not contribute much to the session. A request by developing countries to hold a multi stake holder workshop on Paragraph 6 was met with opposition from Australia, EU and US. This has now been pushed to the next TRIPS Council meeting on March 1st and 2nd.
India voices concerns with ACTA’s compatibility with TRIPS.
In the 26-27th October TRIPS council meeting, India made an intervention regarding the TRIPS plus nature of the ACTA, pointing to the now publicly available October 2nd draft of the ACTA. While reserving final judgment on the TRIPS compliancy of the Agreement till the final version is released, India reminded the Council of its concerns voiced in June this year (which we wrote about here) India pointed to several concerns in the current draft version.
India criticized the Agreement for being substantially broader than just trademarks and copyrights, to include patents as well. The issue of in-transit seizures came up once again, as being within the scope of the ACTA. India also referred to the overturning of the WTO Dispute Settlement in the US-China Enforcement case by re-interpreting “commercial scale” to be much broader than the WTO panel’s definition – pointing to this as an example of the belittling of WTO law by allowing such plurilateral Agreements outside the WTO legal framework. (source: KEI article here)
To quote from the statement: “In conclusion, let me reiterate India’s unwavering commitment to its TRIPS commitments, including, dealing with counterfeiting and piracy. But we should not miss the woods for the trees. To find an effective and enduring solution to the problem, we need to step back from a purely mercantilist approach. We also need to avoid exaggerating the issue of counterfeiting and piracy since there is lack of empirical data. Even the US Government Accountability Office (GAO) has recently raised serious questions concerning the data that has been relied on by proponents of the ACTA to support the effort”
