12. The representative of Australia addressed first the question of the state of negotiations and his delegation's position in relation to the Chairman's Draft Text (JOB(03)/75). The aim of the Special Session was to negotiate a multilateral system of geographical indications for wines and spirits by the Cancún Ministerial Conference. It appeared, at this stage, that the deadline was an ambitious one. Some delegations continued to want a system that the majority of delegations considered: as beyond the mandate; as violating the principle of territoriality; as too bureaucratic; and as too costly. Given that a critical mass of delegations supported a mandated system that would not increase the rights and obligations currently found in the TRIPS Agreement and that would respect the principle of territoriality, involve minimal bureaucracy and be far less costly, his delegation regretted that this negotiation remained unresolved. This negotiation was not one aimed at increasing the level of protection afforded to geographical indications under the TRIPS Agreement. As already said a number of times, his delegation would not allow it to be turned into such a negotiation. He found it extraordinary that those Members who refused to offer protection to third countries' geographical indications unless they had equivalent systems of protection were the very same who wished to re cast the mandate in such a manner as to ensure that their own geographical indications were protected according to their wishes in all other WTO markets. He stressed that his delegation was committed to continue working towards completion of this negotiation: it was open minded on the need for and timing of future meetings.
13. With regard to the Chair's draft report to the TNC on these negotiations, he suggested that the following considerations be taken into account. Australia remained committed to the mandate for these negotiations, which had provided the Special Session with a solid set of principles on which to base discussion both now and in the future. The mandate called for a multilateral system of notification and registration. The Joint Proposal (TN/IP/W/5) laid out the elements of a system that fulfilled this mandate. Such elements had been highlighted in the Chairman's Draft Text and his delegation remained supportive of that text insofar as it reflected those elements. He recalled that his delegation had pointed out that notification and registration systems were not new to the WTO and had highlighted the usefulness of systems for notification and registration such as those instituted under the TBT Agreement. The mandate of the Special Session did not call for the creation of a register with the type of legal effects the demandeurs would like to see. The system proposed under the Joint Proposal would require those Members participating in the system to commit themselves to consult the system when making decisions about the recognition and protection of geographical indications. This element of the Joint Proposal was also clearly reflected in the Chairman's Draft Text. The Special Session's mandate was to facilitate the existing level of protection accorded to geographical indications by the TRIPS Agreement and to increase that level of protection. The Joint Proposal respected the existing balance of rights and obligations in the TRIPS Agreement. His delegation could not accept those elements of the Draft Text that strayed beyond the mandate. The mandate required a system that would be voluntary, i.e., that would allow Members to choose whether or not they would participate in the system. The Joint Proposal provided Members with that choice; it did not require all WTO Members to participate nor did it prevent non participants from accessing the information on the system. It was clear from the Chairman's Draft Text that there were proposals on the table that clearly took away from WTO Members the right to make such a choice. Referring to the part of the Chairman's opening statement made at the 6 June informal meeting recalling comments to the effect that the legal effect of a registration under the Joint Proposal might not be sufficient, he urged the Chair in further reporting to cast comments in more objective terms. It was the proposals made by other delegations seeking to re-write the way Members were implementing the TRIPS Agreement in order to increase the level of protection provided to geographical indications overall that were problematic. There was clearly no mandate to re write the TRIPS Agreement in such a manner. It was clear that the system had to be both multilateral and give Members the right to choose whether or not to participate in it. The Joint Proposal managed this balancing act in a manner that remained true to Ministers' mandate. Unlike some other proposals on the table, it did not render Members' choice a nullity by interpreting multilateral as the equivalent of "universal". For Australia, the political wishes of a few for an increased protection should not be used to trample on, and ignore, the principles that all Members had agreed to collectively.
14. With regard to the Chair's report to the TNC, the representative of Australia mentioned two elements to be included in that report. The first element was that no middle ground had emerged from the discussion, and that any solution must fall within the negotiating mandate. Apart from the Joint Proposal, no proposals reflected in the Chairman's Draft Text were so situated. Hong Kong, China proposal usefully articulated principles with which his delegation had indicated considerable sympathy. Nevertheless, it created presumptions in international law that would increase the protection currently afforded to geographical indications by the TRIPS Agreement. Protection for geographical indications could be increased in two ways: first, by strengthening Members' positive obligations to protect geographical indications; second, by weakening Members' rights to exempt certain geographical indications from protection. His delegation did not think that this was the time to add to the suggestions made by some Members to create a stronger obligation by creating a presumption, and to weaken Members' rights to except geographical indications from protection by subjecting the exercise of that right to multilateral challenge procedures. His delegation concurred with the Chair's statement made on previous occasions that this negotiation was not about increasing the level of protection. The second element of the report related to participation: the only principle that was driving these negotiations was the voluntary nature of the system. The more reasonable the system, the more likely Members would participate in it. It was not the purpose of these negotiations to remedy the defects of the Lisbon Agreement, which had 20 members because only 20 countries considered it in their interests to sign on. It would be unprecedented if, in the name of multilateralism, Members who had made the considered decision not to participate in WIPO Agreements were then forced to do so in the WTO.
