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

H.E. Ambassador Dr. Lansana GBERIE

64.   Around 80% of the world's population uses traditional medicines such as herbal medicines, yoga, acupuncture etc. Traditional medicine has been an integral resource for health for centuries in communities around the world and it is still a mainstay for some with inequities in access to conventional medicine. The sociocultural practice and biodiversity heritages of traditional medicine are invaluable resources to evolve inclusive, diverse sustainable development. Studies estimate the world herbal trade to stand around USD 120 billion and is expected to reach USD seven trillion by 2050. Over 40% of pharmaceutical formulations are based on natural products and originating from traditional medicine. The contribution of traditional medicine to health systems is yet to be completely realised. The establishment of WHO's Global Centre for Traditional Medicine in India in April 2022, with estimated USD 250 million committed by the government of India reflects the commitment and the vision to harness the latent potential of traditional medicine systems to be a catalyst in promoting global health along with sustainable development. These facts and developments attest to the importance of the linkage between TRIPS Agreement and Convention on Biodiversity (CBD). 65.   As an ancient civilisation India has preserved a rich body of traditional knowledge associated with biological resources. This traditional knowledge is both coded, as in the texts of Indian systems of medicine such as Ayurveda, Unani and Siddha; and non-coded, which exists in the oral undocumented traditions. The difficulties faced by countries like India, therefore, lies in the misappropriation of this knowledge. Thus, India reiterates the long-standing demand of an international enforceable regime to contain misappropriation. Patents should not be granted for existing traditional knowledge and associated genetic resources. Further where traditional knowledge and associated genetic resources form the basis of scientific development, it is important to have disclosure of source or origin of the resource/knowledge along with disclosure that the access was on mutually agreed terms. This will also strengthen and add to the Members' commitment to transparency, since transparency obligations cannot merely be limited to notification obligations. 66.   Article 16.5 of the Convention on Biological Diversity clearly recognizes "that patents and other intellectual property rights may have an influence on the implementation of this Convention". It mandates that the parties "shall cooperate in this regard, subject to national legislation and international law, in order to ensure that such rights are supportive of and do not run counter to its objectives". Furthermore, the Doha Ministerial Declaration in paragraph 19 has mandated that the TRIPS Council examine the relationship between TRIPS and the CBD, and the protection of traditional knowledge and folklore. However, the TRIPS Agreement continues to ignore numerous IPR-related obligations in the CBD which are of interest to the developing countries. 67. Despite several submissions like the disclosure proposal (document IP/C/W/474)submitted in 2006, document TN/C/W/52 submitted in June 2008 with the support of 109 Members followed by the last submission on this issue document TN/C/W/59 in April 2011, which is a draft decision to enhance mutual supportiveness between the TRIPS Agreement and the CBD proposed by a vast majority of WTO membership, it is regrettable that for the past many years we have not made any progress. Some Members have argued that TRIPS Council is not an appropriate forum for these discussions. Developing countries argued in the late eighties that TRIPS did not belong to GATT as WIPO existed as a functional organization to deal with IP issues, the developed countries refused to accept that argument at that time. Now, when we seek that the TRIPS Agreement be amended to address the concerns of biopiracy, we are being shown the door to WIPO, where the IGC process has not been able to make much headway since years. Given the enforceability of the TRIPS Agreement and the fact that much of the misappropriation is a consequence of trade, there is a need and mandate to build the linkage between the TRIPS Agreement and the CBD under the aegis of this Council.68.   Therefore, considering the mandate from the Doha Ministerial Declaration and the 2030 Sustainable Development Goals, targets 2.5 and 15.6 to which we are all committed, that specifically call for promoting access to and fair and equitable sharing of benefits arising from the utilization of genetic resources and associated traditional knowledge, it is our responsibility to take these discussions forward towards an outcome. India is of the view that a formal briefing by the CBD Secretariat on the latest developments of the Nagoya Protocol will be useful for Members. We also support updating the three factual briefs by the Secretariat on these issues. India remains committed to continue our efforts in building momentum on these important issues.

The Council took note of the statements made and agreed to revert to these matters at its next meeting.
20. The Chair proposed to address these three agenda items together. He recalled that one tool for the review under item 4 was the information provided by Members in response to lists of questions on Article 27.3(b). He said that the Annual Report on Notifications and other Information Flows that had been introduced by the Secretariat at the Council's last meeting illustrated that responses to that checklist had been rather sparse recently. So far, only 28 Members had responded to the lists of questions on Article 27.3(b), with Saudi Arabia being the most recent Member to submit responses. The Chair thus encouraged Members to submit responses to these checklists, and to update their previous submissions if they were out of date, noting that the e-TRIPS Submission System provided an easy and convenient online tool for drafting and submitting responses.
21. The Chair indicated two long-standing procedural issues which had been discussed extensively on the record, at every regular meeting of the Council for almost ten years. The first one was the suggestion for the Secretariat to update three factual notes on the Council's discussions on the TRIPS and CBD and related items; these notes were initially prepared in 2002 and last updated in 2006. The second was the request to invite the CBD Secretariat to brief the Council on the Nagoya Protocol to the CBD, initially proposed in October 2010.
22. The Chair noted that the delegations' positions on these issues were well-known and had already extensively recorded in the Council's minutes and therefore suggested that delegations focus their interventions on suggestions on how to resolve differences and make progress on substantive issues.
23. The representatives of India; Tanzania, on behalf of the African Group; Bangladesh; Brazil; South Africa; Indonesia; Sri Lanka; Egypt; Peru; the United States; Canada; China; Japan; and Chile took the floor.
24. The Council took note of the statements made and agreed to revert to these matters at its next meeting.
IP/C/M/105, IP/C/M/105/Add.1, IP/C/M/105/Corr.1