Minutes - TRIPS Council - View details of the intervention/statement

Ambassador Alejandro Jara (Chile)
112. The representative of Australia, introducing document IP/C/W/310, said that the mandated review of Article 27.3(b) had included extensive discussions of important and broader related issues. Her delegation believed that it could be counterproductive to try to deal with these issues relating to intellectual property, genetic resources and traditional knowledge within the narrow scope of this review. For example, the intellectual property related issues arising in the implementation of the obligations of the CBD fell outside the scope of this review. One of these issues concerned the establishment of effective national régimes for regulating access to genetic resources. Australia had recently produced a draft legislative model in this area and provided an overview of this model in document IP/C/W/310. Consistent with her delegation's view that existing legal and administrative mechanisms could provide effective protection for traditional knowledge, the paper also detailed Australia's experience in this area. Going through the major headings of the paper, she said that the first section addressed the scope of the Article 27.3(b) review. As she had said before, her delegation believed that the coverage of this item was relatively narrow, dealing with the review of the effectiveness of the operation of an optional exclusion to patentability. That said, she acknowledged the importance of broader issues related to this provision. Those issues included access to and control of genetic resources and protection of traditional knowledge. Her delegation agreed that these had become matters of international concern. While there was also a role to be played by the international community in the debate on these matters, Australia believed that a lot more could be done at the level of national legislation. In this regard, she strongly supported the encouraging progress being made by WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. Her delegation hoped that the work being done in this committee would make a substantial contribution to a debate that had, at times, been characterized by misinformation and partial truths. She also reiterated that her delegation believed that, to the extent that the issues that she had just mentioned, might be relevant to TRIPS, they would be more appropriately approached under the Article 71.1 review, as they warranted the holistic perspective that a consideration under that agenda item could provide. 113. Turning to the issue of TRIPS and genetic resources, she said that calls had been made for amendments to be made to Article 27.3(b), as outlined in paragraph 6 of her delegation's paper. Australia had two reservations concerning these proposed amendments at this stage. The first was that her delegation believed that more analysis needed to be undertaken into the most effective way of ensuring that access to material that was subsequently the subject of a patent application was sourced in compliance with the provisions of the CBD. It was not clear that an amendment to the TRIPS Agreement was required to achieve this goal. Australia believed that more effort should be made to examine the potential for compatible implementation of both the TRIPS Agreement and the CBD at the level of national legislation and policy-making before taking the major step of amending one of these instruments. Her delegation's second reservation related to the proposal that such an amendment should be contained in Article 27 of the TRIPS Agreement. It might be more suitably located in Article 29. Within the context of an orderly and properly sequenced survey of the situation that currently existed, Australia would support the examination of options for disclosing information about the source of biological material into patent application processes. Following this process, consideration could be given to whether this necessitated an amendment to the TRIPS Agreement. However, again, Australia's fundamental position was that much more analysis was required to exhaustively examine the links between TRIPS and these broader issues before any consideration was given to the issue of possible amendments. 114. As regards the next section of the paper, concerning the implementation of obligations of the CBD, her delegation also believed that much could be done at the level of national and local initiatives to contribute to efforts to address the related problems of the protection of biodiversity and indigenous knowledge. This point had been made by a range of Members in the discussions to date on this item. It was an important initial step in examining whether international action was necessary. She believed that it was clear from the contributions by Members on these issues to date that there was great potential for national level initiatives in this area and it was worth noting in this regard that many of these initiatives fell outside the realm of intellectual property. One of the key areas was the action that could be taken by Members to improve régimes at the national level to control and regulate access to genetic resources. Australia, as one of the world's seventeen mega-biodiverse nations had a major interest in conserving its biological resources. Her delegation was therefore very sensitive to the urgency of ensuring that Australia's biological resources were effectively and sustainably managed, not only in Australia's national interest but for the preservation of global biodiversity. To this end, Australia was currently developing proposals for improving the management and stewardship of its biological resources. In September 2000, the Australian Minister for the Environment had released the findings of an enquiry into the regulation of access to biological resources on areas controlled by the Australian Federal Government. Document IP/C/W/310 referred to the web-site address where the report on this enquiry could be accessed. Subsequently, the details of a draft legislative scheme based on the enquiries' findings were released for public comment. As drafted, these regulations would provide for management of access to genetic and biochemical material found in native plants and animals in Federal Government areas, such as Commonwealth National Parks. They would require bio-prospectors to obtain a permit to ensure that the collection of biological material in such areas was ecologically sustainable. The proposed scheme also provided that a benefit-sharing agreement must be entered into by the access provider and the bio-prospector. The purpose of the benefit-sharing agreement was to ensure an equitable sharing of the benefits arising from the bio-prospecting. There was also a particular focus on ensuring that any commercial benefits arising from the use of indigenous knowledge about plants and animals was shared with the relevant indigenous communities. The Australian Environment Minister had said that the proposed regulations would minimize red tape and provide certainty for industry while safeguarding Australia's unique biodiversity. The draft regulations could also be accessed on a web-site, the address of which could be found in paragraph 17 of document IP/C/W/310. She noted that a guide to the scheme was attached as an annex to the document. 115. Referring to the next heading, concerning primary producers and the national intellectual property regime, she highlighted the fact that the Australian House of Representative's Standing Committee on Primary Industries and Regional Services had recently tabled a report entitled "Inquiry into Primary Producer Access to Gene Technology - Work in Progress: Proceed with Caution". From this report, it was clear that much could be done at the national level to ensure that intellectual property served an individual country's social and economic development goals. Also in this respect the paper provided a web-site address for further information. 116. She then turned to the issue of traditional knowledge saying that Australia strongly supported further work both in the WIPO process to which she had already referred and elsewhere to examine ways of improving protection, including the examination of the potential use of databases to assist with searches of prior art. Furthermore, there existed potential for these databases to be linked with others established for the documentation of biological diversity. However, such international initiatives must always be mindful of their workability in national regimes, and not underestimate the rôle of mechanisms at the national level to contribute to the eventual solution. The Australian Government was conscious of the need to examine effective protection of indigenous intellectual and cultural property within Australia. However, premature international initiatives must not work to restrict or hinder national processes of developing policy and legislative responses that met the needs of indigenous communities. The intellectual property concerns of Australia's Indigenous people had been explored and articulated in another report, which was entitled "Our Culture, Our Future: Report on Australian Indigenous Cultural and Intellectual Property" and contained a comprehensive range of proposals for advancing indigenous concerns relating to the legal protection of indigenous intellectual and cultural property. The paper mentioned the web-site where the report could be accessed. 117. As regards the use of the existing legal framework for the protection of traditional knowledge, the subject addressed under the next heading in her delegation's paper, Australia believed that its approach to finding solutions to protecting indigenous intellectual and cultural property was best described as pursuing two paths, i.e. an assessment of the existing legal framework and the application of practical measures that had been taken to accommodate indigenous concerns. The existing system had been criticised by some commentators as being inadequate and inappropriate for the protection of indigenous intellectual and cultural property, thus prompting proposals for wholesale reform and sui generis forms of protection. Australia believed, however, that dismissing the applicability of the current system ignored not only the potential benefits to be gained, and identifying legitimate "gaps" in protection, but could also create extra regulatory burdens and procedures and systems that would invariably stifle innovation and creation. The rights in the existing system were widely used by indigenous artists, and those rights were consistently enforced in the courts. Australia was pleased that it had been able to contribute its experience in the area of protection of traditional knowledge using the existing intellectual property system through being one of the three countries chosen by WIPO for a series of case studies, undertaken over 2000-2001. Eight specific case studies had been done in Australia involving a range of issues as reflected on page 6 of document IP/C/W/310. The findings of the study of these cases could be consulted on a web-site, the address of which was mentioned in the paper. Formulating a distinct new form of statutory protection for indigenous intellectual and cultural property would be a dramatic step. There was considerable research and analysis of this option being conducted and the Australian Government would watch with interest the continued discussion on this issue. 118. Turning to other practical measures for the protection of traditional knowledge, Australia believed that the application of practical measures could serve to accommodate indigenous concerns in the day to day management and administration of indigenous intellectual and cultural property and its views in this regard could be found under this last section of the paper.