Ambassador Alfredo Suescum (Panama)

Indonésie

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

71. The delegation of the Republic of Indonesia attaches importance to the negotiation of the relationship between the TRIPS Agreement and the CBD, as well as the protection of TK and folklore under these agenda items. Indonesia emphasises the need for cohesion, coherence and consistency of the TRIPS Agreement and the CBD. The TRIPS Agreement should be complementary and support the international instruments. Our delegation believes that TRIPS should be in line with the proposed objectives of the CBD and the Nagoya Protocol, in particular the provision of prior informed consent and access and benefit sharing. Our delegation is of the view that Article 27.3(b) of the TRIPS Agreement does not contain any legal obligation for its Members to take on necessary measures for fair and equitable sharing of benefits as required by the CBD and the Nagoya Protocol. Such legal inequality provides a room for misappropriation and misuse of genetic resources and traditional knowledge. The lack of such legal norms in TRIPS will defeat the proposed objectives of the CBD and the Nagoya Protocol. 72. The Government of the Republic of Indonesia reiterates the urgency of including a mandatory disclosure requirement, including on prior informed consent and access and benefit sharing, into Article 29 of the TRIPS Agreement. As stipulated in the IP/C/W/59 document, Indonesia is of the view that a mandatory disclosure requirement is important to prevent misappropriation of genetic resources and traditional knowledge. Our delegation believes that such a requirement can provide a greater transparency and efficacy in the patent system. The Government of the Republic of Indonesia is developing national laws on GRTKF, and several consultations have been conducted internally. 73. We urge this Council to provide guidance to the TRIPS Special Session on modalities on how to move forward the triplets' negotiations. The delegation of the Republic of Indonesia would like to request that the WTO norm-setting process be in line with the negotiation process in sustainable development goals and intergovernmental committee on GRTKF in WIPO. The WTO cannot be isolated in a vacuum, with its legal system separated from the multilateral processes both in SDGs and intergovernmental Committee on GRTKF in WIPO. We are open to discuss our efforts to revitalise the negotiation of GRTKF in the WTO.

The Council took note of the statements made and agreed to revert to the matters at its next meeting.

31. The Chairman recalled that, at the Council's meeting in November 2016, Members had exchanged views under these agenda items. The discussions had covered substantive issues, such as the suggested inclusion of a mandatory disclosure requirement in TRIPS, as well as the patentability of life forms. Discussions had also covered two pending procedural proposals – whether the CBD Secretariat should be invited to debrief the Council on the Nagoya Protocol, and whether the WTO Secretariat should update the three factual notes that had been prepared and last updated ten years ago.

32. Since Members had remained divided both on the substantive and procedural issues, no progress could, however, be made. There had also been no unanimous support for a proposal made by some delegations that the CBD Secretariat be asked to debrief the Council when it was meeting in informal mode.

33. He recalled that there had been no more responses or updates to the Illustrative List of Questions on Article 27.3(b), and no notifications or reports of domestic mechanisms to protect genetic resources and traditional knowledge. Despite the importance attached to the Article 27.3(b) review, which had been on the Council's agenda since 1998, the last response or update on the questions had been submitted in 2003, some 14 years ago, and material had been received from fewer than one in six Members. He therefore reminded delegations that the Article 27.3(b) review was an integral part of the TRIPS Agreement. The information provided to the Council clearly did not cover the important developments that many WTO Members had seen in this area over the last decade. Regarding the CBD Secretariat briefing and the updating of the Secretariat notes, there was no substantive signs of evolution towards an outcome.

34. The representatives of Brazil; the Plurinational State of Bolivia; Bangladesh on behalf of the LDC Group; India, Ecuador; Egypt; Indonesia; China; Nigeria on behalf of the African Group; Australia; the United States; Switzerland; the Republic of Korea; Japan; Canada and the European Union and the Chairman took the floor.

35. The Council took note of the statements made and agreed to revert to the matters at its next meeting.

IP/C/M/85, IP/C/M/85/Add.1