|
Oral evidence Taken before the International Development Committee on Tuesday 15 July 2003 Members present: Mr John Battle In the absence of the Chairman, Mr Tony Colman was called to the Chair __________ Witnesses: DR CHARLES CLIFT, Head of the CIPR Unit, DFID, MR RAMIL BURDEN, Head of Unit, Trade Policy and Developing Countries, Department of Trade and Industry and MR JULYAN ELBRO, Senior Policy Adviser, Intellectual Property and Innovation Directorate, Patent Office, examined. Q1 Mr Colman: May I welcome our guests to the evidence session on the Commission of Intellectual Property Rights. Can you introduce yourselves for the record? Dr Clift: I am Charles Clift from Department of International Development. Mr Elbro: I am Julyan Elbro from the Patent Office. Mr Burden: I am Ramil Burden from the DTI. Q2 Hugh Bayley: My question is quite broad, what is the Government doing to resolve the impasse in the WTO on breaching agreement on TRIPS and public health? Mr Burden: Let me first say that ministers see this as a crucial element to having a successful meeting at Cancun. Ministers are talking to other ministers in developing countries and also with the US to try and convince the US that the deal is on the table and is something that the US should agree to. Q3 Hugh Bayley: It is one thing to state a position, it is another to reach agreement, the question is, what are they doing to resolve the impasse? They are having conversations, what proposals are being made? What do you think might resolve and broker an agreement, because an agreement must be reached? Mr Burden: There is a deal that is on the table which all the members of the WTO have agreed to, apart from the US. It is a question of talking to the US and seeing how we can address their concerns, which ministers are doing, talking to the USTR and also to departments in the US Government. In terms of trying to come up with a compromise deal the United Kingdom Government's position is that the simplest thing to do would be to convince the US that the deal on the table is not as bad as they fear and it would be easier for them to accept that deal rather than to try and broker some other deal, especially as the meeting is in Cancun in September. Q4 Hugh Bayley: The December 2002 tax talked about a permissive regime in situation of a national emergency. Is that right? Is that in itself too restrictive? People in developing countries are saying to us, "here we have a unique opportunity to provide flexibility of TRIPS in relation to public health, we do not know what disease burdens we will face in ten years' time". Ten years ago people did not know the impact of HIV, 20 years ago certainly they did not. There will not be an opportunity to re-negotiate this in ten or 20 years, should there be a presumption in favour of the use of low cost generics instead of the presumption being the other way round? Mr Burden: The important thing to remember is that 16 December text allows - Julian will correct me if I am wrong here - countries without manufacturing capacity to import medicines and it does not have any restrictions on diseases. That is right, is it not? For example in these under-developed countries they do not have to declare a national emergency. Mr Elbro: The national emergency provisions apply to a slightly different situation, which is whether or not you need to apply negotiation with the patent holder, which is not the whole scope of the importation question. Q5 Hugh Bayley: Can you explain that to me? Mr Elbro: The solution would go more broadly than the situation of a national emergency. In the situation of a national emergency there is additional flexibility to make it easier to use provisions in those situations. Q6 Hugh Bayley: Who determines if there is a national emergency? Mr Elbro: The country itself. Q7 Hugh Bayley: From my reading of what was happening at the time there appeared to be an argument between a permissive regime or one that limited the flexibility within TRIPS to a list of diseases. My understanding was that that really was the stumbling point in the negotiation, is that so? Mr Burden: I think the proposal that you are referring to is an idea that the US have floated since 16 December text and additional restrictions on 16 December text so that they could accept that. Q8 Hugh Bayley: Right. Would your Government, more importantly the EU, resist that approach? It has been pointed out to us that pneumonia, cardio-vascular diseases and diarrhoea are respectively the second, third and fifth most common cause of death in Africa and diseases for these conditions would not be covered by the American text? Mr Burden: To answer your specific question about the EU's position, what is more important is whether the developing countries themselves will accept restrictions on disease scope and our assessment is on disease scope this is something that countries will not accept. Q9 Hugh Bayley: Thank you. One final point, in the Government's response to the Commission Report it argued that the actual use of compulsory licensing should be sparing but later in the Report the Government states, "developing countries should make full use as appropriate of the flexibilities available under the TRIPS agreement to ensure that their intellectual system is tailored to their individual needs, such flexibilities would include the right to engage in compulsory licensing". Which is it, sparing use or full use that is going to be made of compulsory licensing? Mr Burden: It is full use. The word "sparing" I think is an indication that access to medicine is a complex area and the United Kingdom Government does not want to give the impression that the first port of call if you have an access issue is that they immediately issue a compulsory licence. Compulsory licences are part of a process and the start of that process is to look and try and negotiate issues such as funding, et cetera. If all that fails then a compulsory licence is useful and flexible and we do believe we should be using that to the full. The word "sparing" there is to imply that we do not think that is the first port of call. Q10 Hugh Bayley: One of the difficulties the least developed countries have in relation to trade agreements is whether they have a capacity, whether they have the officials, in other words civil servants to operate the terms of the agreement. I doubt if many ministries of health in developing countries have a team of people, or even one person, to negotiate licensing agreements on pharmaceuticals. Although it is good practice from middle income countries one would look at alternatives. Does the Government accept that for the least developed countries there may well be greater use of compulsory licensing, although a robust procedure is one which is relatively straightforward and which will not require them to engage in years of negotiation? Mr Burden: The Government does accept that there are capacity strengths, especially round these developed countries. The 16 December text recognises that as well and an illustration of that recognition is the fact that LBCs are automatically assumed not to have manufacturing capacity and they therefore do not have to go through the administrative procedure where they have to establish whether they have the manufacturing capacity before they use compulsory licences. Q11 Mr Colman: Can I ask you about the Public Private Partnerships you stated, "it is increasingly providing public funding to help create PPPs in order to stimulate research and development into health problems with relevance to developing countries". Can you give us any evidence to suggest that PPPs are doing just that, providing a sustainable alternative to generic competition in stimulating research and development? Dr Clift: I cannot provide absolute proof because most of these have started in relatively recent years and the number of Public Private Partnerships have expanded rapidly in an attempt to overcome this problem. The patent system does not stimulate sufficient research on diseases particularly relevant to developing countries. Q12 Mr Colman: Would you like to give us an example of some of these that have just started? Dr Clift: This is not in my expertise, but the International AIDS Vaccine Initiative is an area, there are various other ones mentioned in the report. Most of these would have started within the last five years. How effective they are probably needs to be evaluated. Q13 Mr Colman: Are you intending to evaluate them? Dr Clift: We do not have any plan in existence at the moment. Q14 Mr Colman: Are DFID or DTI as an alternative to generic competition? Mr Burden: We do not have any plans at the present time. Mr Colman: Can we go on to agriculture and genetic resources? Q15 Tony Worthington: Can I talk about this area which is extremely complicated, particularly about seeds. Farmers have had this power and ability for many, many years to control and collect and sell their seeds, that then runs into our world of patents and the TRIPS agreement. Can you bring us up to date on where that has got to? Mr Elbro: These are questions about whether or not farmers should be able to save, exchange or indeed sell on a small-scale or harvest to be planted in future years. There is a certain amount of flexibility in the TRIPS agreement as regards the patenting of plants and animals. There is a requirement to provide an effective form of protection for plant varieties. What the EU TRIPS Council made clear is that we would consider provisions which allow saving and exchanging seed to be perfectly acceptable within the national law of countries. TRIPS does not stop countries from putting in these in laws. Q16 Tony Worthington: Is this is a clash of opposites? Is it possible to have a TRIPS requirement of universal provision or bringing this under a global law, and the rights of farmers to control at a local level? Did they sign up to TRIPS in the past in mistaken optimism and they have to get out of it now? Mr Elbro: There is no global law for what the protection is for plants and animals. The one requirement is there is an effective protection on plant varieties and each country is free to determine its own formal system and it can design that itself. With exceptions for small farmers, especially subsistence farmers, it is perfectly acceptable within that. Q17 Tony Worthington: I assume that we are basically on the side of small farmers in developing countries, we do not want to take away any of their power but the fear is that what are described as multi-national seed companies, bio-prospectors and bio-pirates are going to march in and take away control and create dependency. Is that the essential fear? Mr Elbro: That is certainly where concerns are raised. Some points I would make about that are that additional variety which have existed for a long time would not be subject to valid rights because they are not new. Countries are perfectly able to provide exceptions in rights, they provide new varieties which enable small farmers to continue to re-use seed as they have done in the past. Q18 Tony Worthington: What is our position? What do we want the outcome of this to be? What are we pushing for, both ourselves and within the EU? Mr Elbro: In some sense those are questions as to what one needs to push for in terms of international agreements given that TRIPS does not put any constraints on developing countries which prevent them from incorporating these provisions into their own laws. The EU have made clear in the TRIPS Council these sort of provisions are not constrained by multilateral agreements. If developing countries decide that it is in their best interest then they should go ahead and use them. Q19 Tony Worthington: I am still ceased with this situation where TRIPS is there to bring order, it is about rules, but they can do what they like? Mr Elbro: It is a question of flexibilities in the agreement. TRIPS is an agreement to attempt to provide minimum standards of intellectual property rights to encourage verbal innovation and investment in other countries. At the same time you have to recognise that different countries have different needs, so TRIPS have built in flexibilities which enable countries to adapt their laws to fit their own specific needs. Q20 Tony Worthington: TRIPS goes through this, does it not, to get to where it is not worth the effort because it does not change things in any way, that is if they need to be changed? Mr Elbro: Sorry? Q21 Tony Worthington: Through the WTO we are generally trying to have a level playing field as far as the regulations for the sale and distribution of goods, including seeds, are concerned but at the same time we are recognising that if that exists that could be very, very bad news for the poor farmers who might lose the rights they traditionally had over what are very, very important intellectual property to them? Is this an area where we should stop trying because we cannot do it? Mr Elbro: I am not sure I quite understand the question from an intellectual property and TRIPS perspective, which is that there are currently the flexibilities in TRIPS to enable countries to make their own decisions about what is best for them. Q22 Tony Worthington: People are very angry about TRIPS, are they not? The NGOs who are writing to us say that this is about a sort of global piracy. Mr Elbro: I think there has been a variety of different concerns. The piracy question comes down to cases where it is alleged that genetic resources have been taken from the developing world and have been patented else where in the developed world without the benefits being effectively shared back to the developing world. As a signatory to the Convention on Biological Diversity the United Kingdom believes that access to genetic resources needs to be under EU terms and the benefits need to be shared back with the country of origin under whatever agreement is reached. The question of the role of intellectual property in there is then one as to whether or not it should be patented. Assuming it is an agreement in those terms we need to make sure how best it is to be shared and the intellectual property can be a mechanism for enabling them to be shared because by patenting it you can be sure that the people who made the agreement with the originators are sharing the benefits of the people who are generating the money to be effectively shared. There are questions of transparency, how can you tell when genetic resource has been taken from another country and involved in a patented convention? The EU has made it clear to the TRIPS Council it is willing to negotiate some form of multilateral system for disclosing origin in passing the application so that people can tell where the resources came from in the first place. Q23 Mr Khabra: There has been on-going debate about TRIPS and public health at the WTO. It is known that attempts have been made to extend formal IPRs to seeds and other biological and genetic resources which are controversial, primarily because they may undermine the rights' of farmers and the communities which are repositories for traditional knowledge and transferring the power and control to multi-national companies, bio-prospectors and bio-pirates. My question is, how do the new FAO International Treaty on Plant Genetic Resources for Food and Agriculture and the UN Convention on Biological Diversity relate to the TRIPS agreement? Mr Elbro: The position here is the agreements need to be implemented in a manner that is supported because in some sense they deal with different things. The Convention on Biological Diversity I referred to just now sets up a framework in which access to genetic resource needs to be on mutually agreed terms and then any benefits need to be shared back with the country of origin. As I was saying just now intellectual property may well be a mechanism for generating the benefits there and there needs to be a consideration as to how any intellectual property right will be applied for, who will own them and how they will be shared. These are all very important considerations. The Royal Intellectual Property Organisation has an inter-governmental committee which looks at issues like resource and knowledge and has been looking at the development of model clauses which would give an idea about what sort of agreements could be reached in order to ensure that benefits generated and protected by such properties right could be shared back effectively. We have agreement with the TRIPS Council of the possibility of some sort of specific disclosure requirement to try and increase transparency so you can see whether or not the provisions of the CBD are being respected. In terms of the International Treaty on Plant Genetic Resources for Food and Agriculture the Treaty makes clear that any material received from the International Seed Bank set up by the International Treaty cannot be subject to intellectual property rights in the form that it is received. This comes down to the fundamental idea this is not you, the idea being there should be free access to those resources that are administered under that Treaty in order to combat the shortage of food, and things like that.
Q24 Mr Khabra: Would you agree with me that by extending this to seeds in particular countries like India, in particular small farmers, the poor farmers are not going to benefit from it at all because the big companies are going to monopolise the seed distribution and that is causing a lot of discontentment amongst the farmers in India. I know about that personally. Mr Elbro: I think one thing that must be made clear is that there are international agreements which mean many countries have to decide for themselves where to strike the appropriate balance in intellectual property rights. There are certain roles of intellectual property rights encouraging the development of new products, that is true in biotechnology as much as it is true elsewhere. There are cases where we wish to develop a biotech industry. You may well be advised to provide more protection in that sort of area than you are obliged to. At the same time it is important to keep in mind the need for access and the need to respect the rights of small partners. It is very much open to countries under the current international structure to provide exceptions in their laws which can address these issues. Q25 Mr Khabra: What is the current position on the United Kingdom ratifying the FAO Treaty on plant genetic resources? Dr Clift: I asked this question of my colleague in Defra this morning and he said - and I do not know quite how this works - it is before Parliament, if 30 days elapses before Parliament rises then it will in effect be ratified by the United Kingdom. I think I have that right. Q26 Mr Colman: It sounded great fanfares in the Food Summit last June and it has vanished since then. Dr Clift: It is going on. Once we have ratified it the plan is we should wait for the rest of the EU to ratify it. Q27 Mr Colman: How many of the other 15 have ratified it? Dr Clift: I think he said about five or six. Q28 Mr Colman: Would you agree this would be a very good push to get ratification ahead of Cancun? Dr Clift: This is what we say in the Government response. He said 20 or 21 were ratified already, they need 40 before it comes into force. Q29 Mr Battle: Sometimes when I try and get my head round debates on the World Trade Organisation with all of the acronyms about TRIPS and the rest of it I feel like I am going backwards in my understanding, not forward, and I am feeling that at the moment in this conversation. I wonder if I can ask for a bigger overview really, the Commission was set up by the secretary of state. I do not think I am that clear about what the Commission is doing and what it hopes to achieve and what you think you are achieving, I would welcome a word on that. You then mention the World Intellectual Property Organisation, otherwise known as WIPO, what does it do? How does it connect to the WTO? I am just lost in this maras of acronyms and how we fit in. I am getting a clear idea of some of the detail but I have lost the jigsaw lid, I can see some of the pieces. Can you help me understand? You are immersed in this process, where do you see it going? Is there any hope out there at all for any of us? Dr Clift: The Commission was set up by a previous Secretary of State following a commitment made in the 2001 globalisation, this started work in May 2001 and produced its report in September last year, then the Commission is no more, the Commission is not doing anything. Then, as you know, the Government produced its response in May this year. It is really for the Government to pursue the recommendations in the response, as that is where the Government's position is. Mr Colman: Do you think it is going in the right direction? Q30 Mr Battle: Is there a gleam of light at the end of the tunnel? Dr Clift: "It" being what exactly? Where is it going? Where is what going? Q31 Mr Battle: In terms of there being a better deal, a larger deal put together so that at the end of the day there has been some progress for developing countries who have to engage with intellectual property rights. A lot of people see intellectual property rights as the enemy of NGOs. Mr Elbro: WIPO is an intellectual property organisation, it is a UN specialised agency which deals with all intellectual property matters, it discusses trademarks and patents, it has a number of treaties under supervision, such as the Paris Convention. It is there that technical expertise resides to deal with intellectual property. The vast majority of members and intergovernmental organisations are developing countries and it is very broad based. The TRIPS agreement is part of the overall package that is the World Trade Organisation and it is a specific treaty, subject to the dispute settlement of the WTO, that provides minimum standards of intellectual property that all members of the WTO are obliged to provide and it ensures that you have same intellectual property rights. In most respects it draws on the number of treaties that have been established over the years and are currently understood by WIPO. There can be specific negotiations on-going on the TRIPS agreement and what that looks like and at the same time general intellectual property matters can be considered by WIPO. I would say that developing countries are very engaged in these issues. When we discussed the Patent Law Treaty, which is an attempt to harmonise patent law across the world, developing countries are very active in putting forward suggestions for provision on disclosure of origin. Q32 Mr Battle: WIPO is responsible to the councils of the UN, that is where its accountability lies. Mr Elbro: WIPO has its own assemblies and is accountable to the Member States of WIPO. Q33 Mr Battle: There is quite strong developing country presence on the WIPO? Mr Elbro: They form a majority of the members and are certainly very activity involved in discussions there. They are actively involved in discussion in the TRIPS Council. Q34 Mr Battle: I share the question that Hugh Bayley asked about engaging the debate at the right level. There is deficit there, is there? Mr Elbro: We agreed there are always negotiating capacity issues. Q35 Mr Battle: Then the question of TRIPS itself. In a Parliamentary answer in November the Secretary of State for the DTI said, "The Government support the development of objective criteria to form the basis upon which TRIPS transition periods should be agreed". We support the introduction of a mechanism for extending periods. Does the Government agree policy deadlines and TRIPS compliance in all developing countries, particularly these developing countries, should be based on whether it measures milestones or is it going to be set arbitrarily? How will that be measured? Mr Elbro: We do not think there is any need for objective criteria. One thing we would want to be clear on is that in many ways developing countries themselves put forward what they see as their needs and where they see difficulties occurring in agreements and where they believe a certain circumstance gives rise for a need for a certain transition period. We will look positively at such requests. Q36 Hugh Bayley: Although I appreciate intellectual property specialists like yourself have been over this ground many times, in my heart I am still not convinced that life forms really ought to be patentable. Surely they are part of a global common resource. However, I understand that you have reached different conclusions. I just wanted to put this thought to you, though: that the one bit of intellectual property development which I understand personally has to do with copyright. I used to make films about developing countries, sometimes as co productions with TV companies in developing countries, and I can understand why TV Globo in Brazil wants to have some ownership of material in a film or music that it has made but copyright, of course, is time limited. I am not a lawyer but it is fifty years I think. Mr Elbro: Yes. Q37 Hugh Bayley: Would it not make sense to make all patents time limited so that a drug company - well, a drug company of course does get a patent for a fixed period of time but if a seed company develops a new seed, or even identifies a new seed, if it does get patent controls over that it only has a limited period of time to exploit the investment it has made in obtaining that? Mr Elbro: Yes. Patents are time limited, to twenty years. Q38 Mr Colman: And that would apply to seeds as well? Mr Elbro: Yes. Q39 Hugh Bayley: And it applies also to life forms which are discovered in the wild rather than created in the laboratory, when you do patent such life forms? Mr Elbro: If a particular invention or whatever is patentable, and different countries have different laws as to what is patentable, the length of patent protection will be time limited. Patents do not go on for ever. Q40 Hugh Bayley: In all countries? Mr Elbro: As far as I am aware. Generally speaking it is about twenty years. There are some variations in that. Q41 Hugh Bayley: Do you need further regulation that would stop that, or am I just talking out of ignorance? Mr Elbro: I cannot make a categorical statement but I am unaware of any regime where patents are not time limited. Q42 Mr Colman: I have two brief questions further about this whole area of WIPO and the WTO. Concern has been expressed to us that many developing countries are being pressed into TRIPS plus agreements. What do you believe the government should be doing in terms of ensuring that the European Union does not require its developing country partners to establish inappropriate IPR regimes? Mr Elbro: As we make clear in the government response, our position within the EU in terms of bearing on trade negotiations is that we do not support the imposition of higher levels of IPR protection. That is not to preclude the possibility that developing countries themselves may decide it is in their best interests to provide higher levels of intellectual property protection than are required by TRIPS in some circumstances. Q43 Mr Colman: But do you believe that European Union will be commenting on this as part of its negotiations at Cancun? Will it be seeking to persuade the Americans that they perhaps, or that other countries outside the European Union, are pushing LDCs to get into TRIPS compliant legislation well ahead of 2016? Are we take a proactive stance on this? Mr Elbro: I do not believe there is an issue at Cancun to do with requiring earlier compliance. Mr Burden: No, there is not an issue there. There might be an issue about accessions to the WTO. For example, Cambodia which is an LDC is hoping to accede to the WTO at Cancun and obviously it would have to accede also to the TRIPS agreement. I know there are concerns that certain members of the WTO are trying to limit flexibilities of TRIPS for LDCs. I have to say that the United Kingdom government's position is that LDCs should have the full flexibilities afforded to all other LDCs currently in the WTO as they accede. Q44 Alistair Burt: Given the near silence of property reduction strategy papers on trade as a whole, never mind the details of IPOs, what is the government doing to ensure that the good idea, including intellectual property issues in the integrated framework, is really translated into reality? Dr Clift: As you say, in a sense the first question is can we get trade issues accepted into PRSPs, which is not a matter for us but a matter for countries themselves to recognise the importance of trade and trade liberalisation and other matters for their development and for poverty reduction. I know in this document we said that it would also be appropriate to include intellectual property and we will try to see how we can address that, but I think the wider question is the trade question and then we will see if intellectual property can be integrated in that as part of it. Q45 Alistair Burt: And in terms of applying pressure, it is a good idea and it is something you care about, but in terms of driving that idea forward what are the next steps in doing so to make sure there is some inclusion? Dr Clift: We have quite a lot to do with my colleagues in the International Trade Department in DFID on the integrated framework, and we provide all the funding for the studies related to the integrated framework so we are in quite a good position to try and influence what happens, but there is a limit to the extent we should try and influence what developing countries want to put in their developing plans so we have to tread carefully. It is a dialogue: not an imposition. Q46 Alistair Burt: We discussed much in trade terms of the need for developing countries to have their own voices in these particular areas. One would imagine it is even more awkward in the area we are speaking about rather than trade and agriculture and things like that. Is that your sense and, if that is the case, what assistance can be given in developing capacity there so you can be sure that, as well as speaking with their own voice, it is a voice based on knowledge and understanding? Dr Clift: There are two aspects to that. Firstly, what we are doing already is we fund various projects - two actually - which help negotiators in Geneva and in capitals to get access to information and research and also we fund another NGO that helps developing country negotiators to understand issues, to discuss them, and therefore to negotiate more effectively; and, secondly, which is brought up in the government response, it is important that technical assistance in this field should be appropriately provided so the government has endorsed the idea that there might be room for improvement in the way technical assistance is provided by WIPO, by bilateral offices and by the European Patent Office, in particular to ensure that developing countries are given proper advice about all the flexibilities in TRIPS and how to put them in practice in their domestic legislation. Q47 Mr Colman: Can you give some examples of particular developing countries that have built trade or policies on IPR into their PRSP? Dr Clift: I suspect the answer is none but I can certainly check that and let you know. I think the answer is none. Q48 Mr Colman: Not yet? Dr Clift: I will check that. Q49 Mr Colman: That is somewhat stunning, I have to say, given the strength of views of the previous Secretary of State and the policy documents that have come from DFID over the last six years. Dr Clift: I see what you mean but in the end it is up to countries what they do. Q50 Mr Walter: The Commission on Intellectual Property Rights overturned some of the key assumptions that the TRIPS agreement was intrinsically built on and if my briefing is right Susan Prowse, who is head of DFID's International Trade Department stated earlier this year at a seminar on Special and Differential Treatment that these are: "One size fits all" (No it does not); "Extended timetables will suffice" (No they will not); Fudged terminology can create room for manoeuvre" (No it won't really); Re-negotiation is possible" (This is most unlikely)! So this might be down to the fact that relatively simple framework agreements which are sold to developing countries and are development-friendly can grow into time-consuming, resource-intensive, development-unfriendly monsters. What lessons do you think the government has learned about the nature of development-friendly agreements and the processes from its experience with TRIPS, and how are these lessons being used to inform both its policy and its stance on other issues in the WTO? Mr Burden: We have to look at Special and Differential Treatment as a key concern and it is one of the priorities to be addressed at the meeting of the WTO ministers in Cancun in September. Special and Differential Treatment has to be addressed and there is package of proposals on the table which the membership of the WTO will be discussing. Longer term I think your question is about how we ensure that the agreements and policies in the WTO take on board in a more coherent and systematic way the development angle, and that is thinking that we are doing now. The government, and you mentioned Susan Prowse who works in ITD in DFID, is working on some ideas about how we ensure that the WTO does reform itself and incorporates the development angles into agreements. I think we are talking about future agreements but I think the United Kingdom government firmly believes that any future agreements have to have a much more coherent development angle to them rather than something we just bolt on. Q51 Mr Walter: That, of course, was not the only criticism. Oxfam's reading of the CIPR report said that TRIPS is essentially bad for development, and if this is the case a logical response would seem to be fundamental reform to TRIPS. Does the government support the suggestions made by Oxfam and a number of other organisations that a fundamental review, particularly of the health and development implications of the TRIPS agreement, should be carried out by UNCTAD and other international bodies, and that it is on that basis that reforms should take place? Mr Elbro: If I translate what we very much took from the Commission for Intellectual Property Rights report it is important to say one size does not fit all and it is important that developing countries tailor their intellectual property systems to their individual development needs. However, this was do-able within the international architecture, including the TRIPS agreement. The issue of health is with the Ministerial Declaration at Doha under TRIPS and Public Health, which primarily made clear the existing flexibilities in the TRIPS agreement that could be used by developing countries in order to address issues of public health. Mr Colman: Finally, generally, what value did the Commission on Intellectual Property Rights add to government's policy making processes? Would it not have been more helpful if the Commission had been established somewhat earlier prior to the initial negotiation of the TRIPS agreement? Q52 Alistair Burt: "Yes". One word answers will do! Mr Elbro: In terms of seeing the impact of the TRIPS agreement in many ways the transition periods for developing countries have only just begun to expire on the TRIPS agreement and we have yet to reach a situation where we can see what the full impact of TRIPS will be. The Commission was able to get some insight to that by looking at it at this point in time. Q53 Mr Colman: Do you all agree with that? Mr Burden: Yes. Dr Clift: Yes. Q54 Mr Colman: More value possibly? Dr Clift: As the government response says, it raises a lot of valuable issues. The government agreed with all of them, if you read the government response carefully, but it did agree that these issues should be debated and that the Commission report was a very good analysis of these issues, and that it should be further debated in different fora such as the WTO and WIPO. Q55 Mr Colman: And the DTI? Mr Burden: Yes. Q56 Mr Colman: What about the idea of establishing a similar commission now, and we mean now, to examine what a development-friendly investment agreement would look like ahead of any potential negotiations at Cancun? You will know that we have suggested in our report we published yesterday that investment perhaps should be dealt with after this round and not within this round. Would it not be a very good initiative to have a similar commission to look at a development-friendly investment agreement for the world rather than, if you like, getting it wrong? Mr Burden: The report was published yesterday, and if my memory serves me right, ministers have not yet taken a view on that particular proposal. Q57 Mr Colman: Indeed, but from the point of view of the idea of whether it would be helpful to have a commission, we are not suggesting it is related to our report of yesterday but do you think it would be a useful idea to have a commission looking at a development-friendly investment agreement as a way forward? I am not trying to put words into your mouth that ministers would not agree to, but here we have a commission on intellectual property rights; it has come somewhat late to the party but it is useful on discussion; would it be useful to have, do you think, a commission on investment which could be there at the beginning so it could inform debate? Mr Burden: The reason I am slightly reluctant is that I am not an expert on the investment issue in the WTO - I have other colleagues in the DTI who deal with that - but what ministers have said is that the development aspect of any investment agreement has to be key. Q58 Mr Khabra: On the setting up of the Commission, was there any prior consultation with the staff of DFID because to me it appears that this is another institution which has been set up which may not add any value at all but which has already been done, and it may have cost more to the Department in terms of money which could have been spent more usefully on another proposition. Dr Clift: You mean the Commission on Intellectual Property Rights? Q59 Mr Khabra: Yes. Dr Clift: I would not agree with that point of view myself. It did not cost a great deal of money compared to many other expenditures we make; it was a tiny proportion of our annual budget. Q60 Mr Battle: We are massively in favour of you - we are not against you! Dr Clift: Absolutely. On investment this is not my subject either but I know that when our Secretary of State talked to you she did say this was not a high priority as compared with others. You recorded that in your report, if I remember rightly. Q61 Mr Colman: Are there any other items before we close this evidence session that you would like to raise with us? Mr Elbro: No, thank you. Mr Colman: Thank you for coming, gentlemen. |