By Peter Ungphakorn
FIRST PUBLISHED BY IP-WATCH, OCTOBER 22, 2015 | REPRODUCED HERE AUGUST 26, 2016
International trade agreements are sometimes demonised as the Grand Plan imposed by major powers in cahoots with multinational corporations. Intellectual property rights is a particular target, as is the case currently with the Trans-Pacific Partnership (TPP), and previously with the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Watal, Jayashree and Taubman, Antony (eds), The Making of the TRIPS Agreement: Personal insights from the Uruguay Round negotiators, Geneva, World Trade Organization, 2015, pp 361 + appendixes.
Authors, and (for most) their affiliation at the time: Antony Taubman (current WTO Secretariat), Jayashree Watal (India), Adrian Otten (GATT Secretariat), Thomas Cottier (Switzerland), John Gero (Canada), Mogens Peter Carl (EU), Matthijs Geuze (GATT Secretariat), Catherine Field (US), Thu-Lang Tran Wasescha (Switzerland), Jörg Reinbothe (EU), AV Ganesan (India), Piragibe dos Santos Tarragô (Brazil), Antonio Gustavo Trombetta (Argentina), Umi KBA Majid (Malaysia), David Fitzpatrick (Hong Kong), Hannu Wager (Nordics), Jagdish Sagar (India), Adrian Macey (New Zealand), Lars Anell (Sweden, TRIPS negotiations chair)
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The Making of the TRIPS Agreement, the insightful, unofficial collected memoirs of 17 of the agreement’s key authors, plus one editor, challenges that view in two ways. This unique account of how a complex international negotiation can almost miraculously produce a deal should also bury a number of other myths. (Most notable is the idea that this was entirely about rich countries versus the poor — there were serious North-North differences and to a lesser extent South-South ones as well — or that negotiators were completely at the behest of industry lobbies.)
First, the conventional view is that WTO agreements are about balancing legal “rights” and “obligations”: they affirm a country’s rights, but oblige it to respect others’ rights as well. That balance comes from compromise, which is necessary for striking a deal. For the 1986–94 Uruguay Round talks, it meant reaching consensus among more than 120 countries. The round transformed the General Agreement on Tariffs and Trade (GATT) into the WTO, producing an expanded and updated set of agreements, one of which was TRIPS.
The TRIPS Agreement has now been in play for over 20 years, and the emphasis has changed. This is not so much about complying with a rights-and-obligations template, but about providing a good policy platform that includes options for dealing with a wide range of social and technological objectives:
“There is considerable opportunity for TRIPS implementation to include attaining public policy goals through sound policy-making, not simply passing legislation to achieve passive, formal compliance with the letter of the law,” writes co-editor Antony Taubman, the present director in charge of intellectual property at the WTO. That’s some distance from the starting point, which was a focus on tackling imported counterfeit goods.
Taubman has described himself as an interloper among the authors since he was negotiating disarmament at the time, perhaps not as different as it sounds. His overview chapter provides a good executive summary of the book.
Second, the book reveals how much the negotiators on all sides had to learn and then to compromise before this ground-breaking pact could be agreed. It highlights the critical role of flexibility both in the negotiations and also built into the resulting rules. So much for the Grand Plan.
A repeated theme is not only that many trade officials had to learn about copyrights, trademarks, patents, geographical indications and all the other flavours of intellectual property. Even more significantly they had to learn from each other. One of the results, 20 years later, is the clear respect they still have for each other.
It was in Negotiating Group 11 — the one on intellectual property — that Swiss negotiator Thomas Cottier learnt about other countries’ preoccupations, he recalls: “for example those with a strong generics industry, or the fear of abuse of rights, or the need to combine enhanced protection with enhanced transfer of technology and job creation. It was here that I learned about the importance of bringing about a proper balance while defending Switzerland’s core interests.”
Many trade officials had to learn all the flavours of intellectual property. Even more significantly they had to learn from each other
Indian negotiator Jayashree Watal (co-editor of the book) relates how she approached counterparts Mogens Peter Carl (EU) and John Gero (Canada) — both contributors to this volume — on compulsory licensing. The result was a compromise draft text that was largely accepted, India contributing to a solution instead of persisting with its hard line.
Without that understanding and respect, a TRIPS Agreement would not have been possible. The present deadlock in the WTO’s Doha Round negotiations can be blamed on the fact that in some key subjects, many delegations are still not really listening to each other — witness the interminable dialogues of the deaf in current WTO negotiating meetings, such as on geographical indications and biopiracy (among intellectual property topics), and some stalemated issues in agriculture.
“With the passage of time and in the light of the difficulties that the WTO has since had in making headway in its negotiating agenda, the scale of the TRIPS Agreement seems the more remarkable,” writes Adrian Otten, Taubman’s predecessor as director, and the key (GATT) Secretariat official in the TRIPS negotiations.
Otten’s chapter will resonate with anyone following current talks. It outlines the story of the negotiations, the key phases, the variety of meetings needed, the criss-crossing of alliances of shared interests in the different subjects, the role of the Secretariat and chair (Lars Anell from Sweden) — both of whose main concerns were to help a deal to be struck, not to push any other agenda — and ultimately what it took to reach agreement.
Other writers fill in the details on the different alliances, how and when countries contributed in groups or individually to each area of intellectual property, what was happening within their governments, and how they responded to compromise. For example, having yielded on listing exemptions for patenting, the US turned to proposals for disciplining them, writes US negotiator Catherine Field. (Her “axioms” for a successful negotiation should be pinned to the desktop of every negotiator’s laptop, tablet or smartphone, and be adopted as the mission-statement of the WTO’s Institute for Training and Technical Cooperation. The whole book should be required reading for the ITTC’s courses on negotiation.)
It’s easy to mock what happens in the GATT/WTO — after all, the tedium has to be broken somehow. So here goes
The resulting compromise sometimes produced “precise” but “inelegant” syntax, which “to an innocent bystander […] looks like gobbledygook,” acknowledges the EU’s Carl. Sometimes the compromise was quite simply a fudge, recall Matthijs Geuze of the GATT Secretariat, and negotiators Thu-Lang Tran Wasescha of Switzerland and David Fitzpatrick of Hong Kong. The technical term is “constructive ambiguity”, meaning (although they wouldn’t put it so bluntly): “we got what we wanted, we’ll interpret it our own way, and you can take us to court if you disagree.”
In the process, TRIPS negotiators forced each other to suffer too. “It was not unusual to have lengthy ‘theological’ discussions based on one’s own policies and laws,” writes Gero, “but such discussions could not yield negotiated solutions.” He particularly remembers the arguments on enforcement featuring the merits of civil law versus common law. Of course, neither prevailed.
It’s easy to mock what happens in the GATT/WTO — after all, the tedium has to be broken somehow. So here goes. A couple of survival tips for anyone trapped in one of these statement-ridden sessions: look around the room and (1) count how many delegates are NOT listening — a measure of futility — or (2) add up the salaries and calculate how many of the world’s poor could have been fed in each passing hour — a measure of waste.
But there’s the rub. Otten’s account and more recent experience show that a dialogue of the deaf is actually essential, so long as it’s limited to an early phase of a negotiation. It allows countries to declare their interests.
While negotiators can afford to be deaf for a while, those assisting the talks cannot. Breakthrough to the next step needed that bureaucratic monster, the dreaded “synoptic table” compiling the entire range of positions into a single document. Later came a “composite text”, now linear but still containing everyone’s positions in layers of square brackets. Both were produced by the Secretariat and chair. Otten says these compilations allowed negotiations-proper to kick off in 1989, once work in Geneva had rescued the mid-term review that had failed the previous December.
That year, 1989, turned out to be a turning point in a number of ways, several writers observe. In particular, it saw the fall of the Berlin Wall and the switch to market economies in those that had been planned centrally.
Times have changed. Ganesan now sees TRIPS as a ‘blessing in disguise’ for India
In 1989 the US also finally became a party to the Berne Convention on copyright. And in that year the US started to implement its “Special 301” legislation, allowing Washington to act against imports from countries it deemed to be violating intellectual property rights. Several developing countries decided it was better to negotiate multilateral rules that would take their concerns into account, than to face US unilateralism.
Malaysia was one, writes Umi KBA Majid. And it’s why India dropped its opposition to TRIPS, AV Ganesan recalls “candidly”: “Retaliatory action against Indian garment and other exports to the United States was looming large over India like a Damocles’ sword, especially in the last few years of the Uruguay Round.”
But ultimately India’s interests stretched beyond that: “India had a number of scientific and technical cooperation relationships with the United States at both the academic level (e.g. between universities) and the level of government science departments. The need for adequate protection of [intellectual property rights] in India was raised by the Americans as well, if those relationships were to be sustained,” Ganesan writes. Times have changed. He now sees TRIPS as a “blessing in disguise” for India.
Chairman Anell recalls that 1989 was also the year Tim Berners-Lee “implemented the first successful communication between a hypertext transfer protocol [aka http] client and a server.” The Internet was too young to have a major impact on the TRIPS negotiations, but several writers consider it to be important for the agreement’s future.
Trade negotiations are always a blend of developments inside and outside the talks, and the book provides accounts of both, from many angles. The EU, for example, was represented by the European Commission, which at that time was shielded from lobbying, unlike other delegations and even the EU’s own member governments.
It actually took only about two years of real negotiations to produce the bulk of what is now the TRIPS Agreement
The stories are also often personal and frank. Carl says he was in a minority of one on software protection, even within his own delegation. He admits that when the EU accused others of “usurping” its geographical indications (names identifying the origin and character of products) it was being “somewhat poetic”. (The EU still uses the term.)
It actually took only about two years of real negotiations to produce the bulk of what is now the TRIPS Agreement. This appeared as the intellectual property section of the draft Uruguay Round package produced in late 1991, known as the “Dunkel text”. Arthur Dunkel was GATT director-general at the time and chair of the overall negotiations, but much of the draft he circulated under his own responsibility was produced in the different subject groups — including the TRIPS text.
Two more years were still needed to arrive at a final package. Surprisingly, this book does not mention at all a couple of developments that were critical for lifting the round out of hiatus and towards a conclusion. Without them, there would be no TRIPS Agreement. These were the November 1992 US-EU deal on agriculture known as the Blair House accord, and the subsequent G–7 meetings in 1993.
So, as several authors observe, intellectual property ended up largely negotiated in its own bubble, except briefly when the Montreal ministerial meeting collapsed in 1988. Countries did see trade-offs with agriculture and textiles, but once the talks were underway, this was not overt. TRIPS never came up, for example, in “Green Room” meetings where key ambassadors would negotiate other trade-offs in the round.
The result is an agreement that has fared well for two decades, needing only one minor change (on compulsory licensing for exports of pharmaceuticals). Proposals are on the table for amendments on geographical indications and patents related to biological diversity, although both are far from being agreed. Previously critical activists now see the agreement as a reasonable benchmark to be defended against pressure to raise the bar further — “TRIPS-plus”.
History is only part of the story. No one can be this involved without having a large amount of pride mixed with some regrets or thoughts about the future. “The TRIPS Agreement is now firmly in place but it must not be overlooked that it addresses concerns of the past,” writes Ganesan. Swift technological change “in almost every field may soon render these concerns obsolete” and may require completely new approaches, he says.
The book ought to have a wider readership. I am not aware of anything else like it, at least on trade
Cottier, for example, calls for maximum standards to be added to existing minimum standards as a defence against “TRIPS-plus” pressure. Carl believes other “trade-related” issues should also be handled in the WTO, including labour standards and environmental issues. Several authors call for good competition policies for when intellectual property leads to monopoly (not always the case). Taubman says it’s time to look beyond trade in goods and services that contain intellectual property, to trade in intellectual property itself.
This fascinating book does have some flaws. The most serious is that it makes no concessions to non-specialist readers. We are expected to be familiar with the Uruguay Round, how GATT and the WTO work, the WIPO conventions, articles of GATT and TRIPS, and concepts such as Gattability, exhaustion and moral rights.
This is a pity because the book ought to have a wider readership. I am not aware of anything else like it, at least on trade. It should provide a valuable case study for anyone interested in how international negotiations can succeed but who may know little either about intellectual property or about the WTO or both. Even adding the odd phrase of explanation would help considerably, although the parts on specific types of intellectual property are bound to be technical. So while some parts are quite readable, others will be tough going for many. Also lacking is an index, which would make research so much easier.
That said, this is an enlightening collection, offering a range of perspectives on the talks, with anecdotes mixed in (apparently there was a 2 am bilateral session under the trees in the GATT car park) to show how personal relationships worked to produce the serious substance.
No doubt some periods of the negotiation were gripping, but a lot of it must have been tedious — much more fun to read about afterwards.
New book launched at WTO (IP-Watch)
Originally published by Intellectual Property Watch, October 22, 2015.
Photos by Catharine Saez, from this IP-Watch story on the book launch
Reproduced under Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence
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