Report on the WTO Ministerial Conference in Seattle. November 30 to December 3, by Dr. Martin J. LUTZ (Switzerland) Chairman Q 94 - GATT/WTO

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1 REPORTS Report on the WTO Ministerial Conference in Seattle November 30 to December 3, 1999 by Dr. Martin J. LUTZ (Switzerland) Chairman Q 94 - GATT/WTO A The Set-up WTO called for a Ministerial Conference to follow-up on and if possible to improve the various Agreements concluded in Marrakech on April 15, As the Member Countries had been unable to agree on an agenda beforehand, it was known in advance that the Meeting would be difficult. The 135 WTO Member States were represented by Trade Delegations, the size of which ranged from as few as three people (Togo) to 181 members (United States). In addition some 40 countries sent teams of Observes which in the case of Taipei for example was quite sizeable (46 Delegates). 50 Government Organisations, including WIPO, were present as well. Their Delegations were as a rule small and inconspicuous. As an innovation Non-Government Organisations were also admitted with Observer status. As it turned out admission was almost indiscriminately granted to mostly national and often even local NGOs. There was little transparency about the number and identity of NGOs actually represented. About 500 permanent press-representatives added additional colour to the Meeting. B The Environment The main Meetings took place in a modern and sizeable Washington State Convention Centre. The NGOs had their headquarter at the nearby Renaissance Madison Hotel. Delegates were housed in hotels throughout the town. Some were located as far out as the Airport. The Sheraton Hotel served as some sort of unofficial headquarter of major Government Delegations. The difficulties of communication foreseeable for a Meeting of this seize were seriously aggravated by serious public unrest that started with small demonstrations in Seattle on Monday, November 29, 1999 and culminated first in picketing and street barriers on November 30, and developed into outright riots on December 1, 1999.

2 A basically peaceful protest march of some 50'000 Trade Union Members on November 30, 1999 was soon overshadowed by a blockade not only of the Convention Centre but of most major hotels as well and was followed by violence and vandalism throughout the town. The Delegates were under siege trapped in their hotels for the better part of November 30, On December 1, 1999 the police converted the compound of the Convention Centre and the adjacent key hotels into a well-guarded fortress. No regular agenda could be followed on Monday (NGO day) and Tuesday. The confusion of postponement, unannounced cancellation and reshuffling kept everybody busy on the following days as well. Given these circumstances the WTO Management made a considerable effort to maintain its programme as best it could. (As all the theatres and most of the shops as well as many restaurants closed down because of the riots, Delegates were more easily persuaded to work late into the nights.) C Working Programme of the WTO Meeting The WTO Meetings were preceded by a "NGO-day" on November 29, Because of the delay in opening the Meeting forced upon WTO by the slightly unusual form of Seattle hospitality, the NGO-day came under heavy time constraints which cut short the well intended dialogue on which many NGOs had placed great hope. The work related to the official WTO Meetings which began on November 30, 1999 took actually place on five different levels: 1. The first level was the Plenary Session open to all Delegates including NGOs and covered continuously by internal cable television. 2. The Plenary Session took the better part of three days to receive and hear the opening statements of all 135 WTO Members, (plus some other Government Organisations). Some of these statements were highly interesting and would have merited closer study but the entire exercise was by necessity rather repetitive and of restricted attractivity in the long run. The first level contributed little to the forming of opinions as there was no dialogue. The second work level were the Meetings of the six WTO Committees formed. Apparently each Committee was limited to 20 Members. Meetings were held behind closed doors. There was no special TRIPS Committee. The main TRIPS related issues centred around biotechnology, biodiversity and

3 E-Commerce were evidently approached rather in the context of agriculture and in other Committees. There were regular WTO External Relations briefings. Information, even if sometimes not official, was relatively easy to obtain. The short-coming of this second level of activity was that it apparently excluded the majority of the Members from official active participation. 3. The third level of activities consisted in bi- or multilateral Conferences among country Delegations. From these by nature confidential talks NGOs were understandably not included. 4. The fourth level of activities were briefings and seminars organized by major NGOs. Some of these Meetings were of an enjoyably high level and were attended on occasion by Delegates of Government Organisations and WTO Member Countries. Others were pure and often crude propaganda Meetings. The scene of the NGO Meetings was dominated by NGOs critical to WTO, in particular Consumer Organisations, WWF, Médecins sans Frontière etc., always assisted by sometimes largely ignorant and occasionally rather aggressive national or even local Organisations. A few thoughts emanating from these Meetings and the documentation distributed by NGOs did evidently get through to the Member States. On occasion the education of NGO Members by these NGO Meetings may have been helpful. The more fundamentalist wing of the NGOs had close relation with the demonstrators. 5. The fifth source of influence came from the street. With their demonstration the Trade Unions pressed the point that WTO Rules should not entirely disregard the issue of labour conditions. In addition the issue of protection of environment was brought into play directly through the media and through the demonstrations. D The Substantive Work The TRIPS Agreement has a so called "built in" agenda of partial revision. The built-in agenda is limited, however, to geographical indications (Art. 23 (4) and 24 (2)), biotechnology (Art. 27 (3) b), the non-violation complaints moratorium (Art. 64 (2,3); and the review of the implementation (Art. 71).

4 It became evident already before the WTO Ministerial Conference that opinions are divided about the desirability to review TRIPS at this stage beyond the built-in agenda of revision. There was no strong urge to revise TRIPS as a whole. The key issues relating to TRIPS, namely biotechnology, and bio-availability were mainly considered in the context of agriculture and environment. "Médecins sans frontière" exercised strong pressure to improve the supply of essential drugs to developing countries. Geographic indications were not discussed systematically. E-Commerce was a favoured topic of discussion but under customs and tax aspects rather than in relation to IP. It is known in the meantime that the WTO Meeting was unable to agree on an Agenda for the Millennium Round at this stage. This may in the first place be seen as a defeat for the US policy. The US attitude towards the concerns of the rest of the world was considered as rigid by a great number of WTO members in particular by developing countries. The negative outcome of the WTO Meeting is likely to be of disadvantage. The developing countries had hoped for a respite in the implementation of the WTO Agreements. The least developed countries had aimed at special trade concessions and a waiver of debt. The environmentalists had been looking for stringent Rules on the protection of the environment as complement to free trade with the possibility of stopping the import of products manufactured in violence of ecological standards. The Trade Unions had proposed to include minimum labour standards into WTO Agreements to improve labour conditions and the "Medecins sans Frontière" had fought for favours in the supply of pharmaceutical products. E Experience and Conclusions The Conference offered opportunities to discuss IP issues with a great number of Delegates from Member States and NGOs. In summary it may be stated that regrettably AIPPI is not as well known as desirable beyond a circle of specialists. Its activities are more easily described as "promotion of intellectual property" rather than "promotion of industrial property", a word very little rooted in anglo-saxon terminology and not in harmony with the names of both TRIPS and WIPO. As a politically neutral NGO with a positive and constructive purpose and a world-wide network of highly qualified and highly reputed experts and specialists in the field AIPPI would be potentially well placed to actively assist WTO in the promotion of an effective intellectual property protection. Thanks to its comparative law studies AIPPI has profound knowledge about advantage and problems. Strengths and weaknesses of the present intellectual property protection system which may and should be put to use of improving the Rules governing a globalized economy.

5 After the experience of the Seattle Meeting AIPPI is confronted with two questions: i what influence can the Association reasonably expect to take on the development of TRIPS in future, and ii what measures should AIPPI consider in order to exercise its influence effectively. As it is AIPPI's vocation to promote the protection of intellectual property (Art. 2.1, lit. a of the Statutes) there is no doubt that both questions merit closer study. 1. Possibilities to take Influence a) The established good relations with WTO are of great importance in connection with the implementation of TRIPS but of lesser help in connection with its revision as the WTO administration has only limited influence on the substance of revisions. b) AIPPI has little influence through publicity as AIPPI is neither strong enough nor geared to any major publicity activity. AIPPI should, however, become more conspicuous in order to be better known. c) Support could best be given through the submission and oral presentation of appropriate short and clear but well-reasoned position papers to WTO Member Governments. About half a dozen NGOs have distributed in Seattle excellent printed documentation with valuable background material. Such documentation would probably be even more effective if individually addressed to WTO members beforehand. AIPPI would have little difficulty in collecting the material for a similar undertaking. It would need assistance in the fashioning of its presentation. d) For an NGO to take active influence on a broader scale at the Ministerial Meeting itself is more difficult. The presence of AIPPI served however, as a valuable counterbalance to opposing NGO influences. With more experience the effectiveness may be further improved. 2. Measures to be contemplated by AIPPI a) Programme update The representations of AIPPI are valuable because they reflect the majority's view or the unanimous opinion of the Members of the over 100 countries that form part of AIPPI. This strengths should be preserved. That means, however, that AIPPI has to take steps to assure that an opinion may be formed on a democratic basis and expressed on all major TRIPS issues on time.

6 b) Personal Contact WTO decisions are made by the Members States. Personal contacts between AIPPI National Groups and Independent Members of AIPPI on the one hand and the Governments of Member States of WTO are therefore the key to more effective influence in WTO matters. Unless Delegates of WTO Member States know AIPPI's standpoint, they cannot be guided by it. A list of the WTO Member State Delegations is available and may be distributed to each Group. The personal contacts appear to have worked reasonably well at least in the case of a few countries on a purely personal basis. c) Documentation AIPPI's Position Papers should be established well before any future Meeting of WTO in appropriate form and be distributed through AIPPI Groups and Independent Members of AIPPI to WTO Member State Delegations. (If possible followed by personal contact.) Some NGOs have distributed excellent issue related documentation of great value. Short, clearly structured, well argued and non-aggressive position papers appear to receive a positive echo on occasion. d) Publicity As stated above AIPPI must become more conspicuous and better known despite its limitations with respect to publicity. It would be most helpful if AIPPI: named a person (Speaker) who regularly informs the public by appropriate short press releases of AIPPI's standpoint and activities supplied the Governments (not only the Patent Offices) through its National and Regional Groups and the Independent Members of AIPPI with AIPPI key papers established systematic contact with Industry and Commerce Organizations beyond ICC, such as UNICE, the Association for Pharmaceutical Industry etc. e) Accept Challenges AIPPI can best persuade industry and Governments that it has something to say if it accepts the challenge of controversial discussions. It might for example render a FORUM on compulsory licensing more attractive if controversial views from Médecins sans Frontière, Consumer Organizations, Associations of the Pharmaceutical Industry and a few others are heared and it can be shown in a discussion that AIPPI has the better arguments.

7 People would come to such Meetings and the press too. f) Final Remark In WTO the protection of intellectual property is not a stand-alone issue. Biotechnology is interwoven with agriculture and environment issues. E-Commerce is linked to tariff and tax issues and to service industry issues. Even the protection of geographical indications is often discussed as an annex either to agriculture or cultural heritage. There is a danger that WTO might tend to sacrifice the concept of systematic IP protection carefully built up and perfected in over 100 years of efforts in favour of pragmatic negotiated trade Rules. WTO is of course a welcome instrument to improve implementation of intellectual property rights. It may on occasion give incentives for further harmonization. For the systematic, careful and well-balanced further improvements of intellectual property right protection, however, AIPPI will have to continue to turn to WIPO, where experience, and profound knowledge of scientific aspects are more likely to be dominant factors of law making rather than short term political aims. WIPO has stood in the shadow of WTO recently. It is hoped that after the welcome establishment of minimum protection and enforcement Rules by WTO WIPO will now resume its efforts to continue with the harmonization of substantive protection formalities and ultimately the Treaty network itself. The maintenance of close contact with WTO and its Members is of primary importance in order to improve the understanding of IP protection in political circles of WTO Members outside the narrow boundaries of IP specialists and to prevent inroads within WTO that may ultimately weaken the international protection that WIPO and AIPPI built up in the IP field during the last 100 years. Zurich, February 6, 2000 Dr. Martin J. Lutz [ Home ][ Contact ][ Top ]