H.E. Ambassador Dr Walter Werner

South Africa

4; 5; 6 REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B); RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON BIOLOGICAL DIVERSITY; PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE

70.   We recall Paragraph 19 of the Doha Ministerial Declaration pursuing a work programme including under the review of Article 27.3(b), the review of the implementation of the TRIPS Agreement under Article 71.1 and the work foreseen pursuant to paragraph 12 of the declaration, to examine, inter alia, the relationship between the TRIPS Agreement and the Convention on Biological Diversity, the protection of traditional knowledge and folklore. 71.   A large group of developing country Members proposed an amendment of the TRIPS Agreement to introduce a mandatory disclosure requirement in patent applications and have sought clear guidance on this matter as part of the modalities decision. The basis of this amendment is contained in TN/C/W/59 which requires access and benefit sharing, prior informed consent and disclosure of the source of material when a patent is applied for. South Africa is a Contracting Party to the Convention on Biological Diversity and ratified the Nagoya Protocol on Access to Generic Resources and Fair and Equitable Sharing of Benefits Arising from their Utilization in 2013 which came into force October 2014. 72.   Despite the extensive legal regime that applies in South Africa, we still experience significant instances of bio-piracy and misappropriation. National regimes are therefore necessary, but insufficient steps to protect traditional knowledge or the use of indigenous biological resources. A multilateral system within the context of the TRIPS Agreement that regulates disclosure and access remains the best guarantee against misappropriation of genetic resource and traditional knowledge. While related negotiations, such as the WIPO IGC process, can complement the negotiation of TRIPS issues in the WTO, they are not an effective substitute for achieving results in the WTO TRIPS context. Other international fora lack an effective dispute settlement mechanism to ensure compliance with the obligations, and there is no certainty that negotiations will be successful in the other fora. 73.   In respect of procedural issues, this delegation once again calls on the Secretariat to update the three factual notes contained in documents IP/C/W/368/Rev.1, IP/C/W/369/Rev.1 and IP/C/W/370/Rev.1. We believe that an update of these documents will stimulate a debate that is characterize by persistent restatement of long held positions. We further support a briefing by the CBD Secretariat on the Nagoya Protocol and subsequent developments.

16.   The Chair said that, as had already been noted during previous meetings, WTO Members had seen important developments in this area over the last decade. However, they had not shared information on those developments with the TRIPS Council. He believed that such information would enrich discussions. The Council had agreed on an Illustrative List of Questions (IP/C/W/122), which served as the basis for the review of on Article 27.3(b). However, only a minority of Members had provided responses; and there had been no response or updates since 2003. Similar gaps were also apparent with regard to Members' obligations under Article 63.2, as important legislative developments had not been notified to the TRIPS Council. He encouraged delegations to submit or update responses and to notify relevant laws and regulations to the TRIPS Council.
17.   The Chair noted that there were also two long-standing procedural issues which have been discussed for many years:
a. The suggestion made in November 2012 that the Secretariat update the three factual notes on the Council's previous discussions on the TRIPS and CBD and related items; these notes had been initially prepared in 2002 and last updated in 2006; and

b. The request that the CBD Secretariat be invited to brief the Council on the Nagoya Protocol to the CBD, initially proposed in October 2010.
18.   The Chair reported that there had been no developments on these procedural issues, during the informal consultation that had taken place the previous week. He invited delegations to share their suggestions on how to make progress.
19.   The representatives of India; Ecuador; South Africa; Brazil; Benin, on behalf of the LDC Group; the United States; Bangladesh; Japan; Switzerland; Australia; the Republic of Korea; Canada; China; and Indonesia took the floor.
20.   The Chair encouraged Members to have further discussions to resolve the outstanding procedural issues, and said that he stood ready to assist in the consultations.
21.   The Council took note of the statements made and agreed to revert to the matters at its next meeting.

IP/C/M/89, IP/C/M/89/Add.1