WORLD TRADE
ORGANIZATIONIP/C/W/195
12 July 2000
(00-2784)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
COMMUNICATION FROM INDIA
At the meeting of the Council for TRIPS that took place from 26 to 29 June 2000, the
delegation of India requested that the following communication, which had been circulated on
18 February 1999 in the context of the preparations for the 1999 Ministerial Conference (document
WT/GC/W/147), would be circulated as a TRIPS Council document.
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Proposals on Intellectual Property Rights Issues
1. The TRIPS Agreement has as its preambular objective a desire to ensure that measures and
procedures to enforce intellectual property rights do not themselves become barriers to legitimate
trade.  Further, one of its objectives is to contribute to the transfer and dissemination of technology.  It
has, amongst its principles, the promotion of public interest in sectors of vital importance to thesocioeconomic and technological development of its Members.  At the same time the Agreement
recognises intellectual property rights as private rights.  Finally, the Agreement encourages
adjustments aimed at higher levels of protection of intellectual property rights.  With these objectives,
principles and provisions in view, India would like to initiate a discussion on some of the issues that
have been of great concern to WTO Members, includ ing many developing countries.  These issues are
by no means exhaustive, nor do they represent the entirety of Members' concerns on intellectual
property rights.  They are intended to initiate discussions on issues related to IPRs so that theobjectives of the WTO Agreement such as raising standards of living, ensuring full employment
increasing trade and promoting sustainable development are achieved.
Proposal 1 - Transfer of technology
2. This proposal aims at a more effective implementation of the provisions relating to transfer of
technology.
Article 7 of the TRIPS Agreement states:
"The protection and enforcement of intellectual property rights should contribute to the
promotion of technological innovation and to the transfer and dissemination of technology tothe mutual advantage of producers and users of technological knowledge and in a manner
conducive to social and economic welfare, and to a balance of rights and obligations."
Article 8.2 states:
"Appropriate measures, provided they are consistent with the provisions of the Agreement,
may be needed to prevent the abuse of intellectual property rights by right holders or the
resort to practices which unreasonably restrain trade or adversely affect the international
transfer of technology."IP/C/W/195
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3. India believes that Articles 7 and 8.2 are overarching provisions that should qualify other
provisions of the Agreement that are meant to protect intellectual property rights.  Technology has
become one of the most important determinants for economic development.  Emerging patterns of
technology generation and transfer have been researched intensively.  A recent analysis of the mode
of technology transfers suggests a reversal of the growing popularity of arm's length licensing in the
1970s and mid-1980s to intra-firm transfers since the mid-1980s.  For example, 80 per cent oftransfers by US corporations and 95 per cent by German corporations in 1995 were made on internal
basis compared to 69 per cent and 92 per cent respectively in 1985.  This is only one example of the
changing pattern of technology transfers, provided here to highlight the need to address in the WTO
issues such as transfer, dissemination and innovation.
4. One of the important objectives of the WTO Agreement, as mentioned in its preamble, is the
need for positive efforts designed to ensure that de veloping countries secure a share in the growth in
international trade commensurate with the needs of their economic development.  However, the
TRIPS Agreement in its current form might tempt IP R holders to charge exorbitant and commercially
unviable prices for transfer or dissemination of tech nologies held through such IPRs.  It is important,
therefore, to build disciplines for effective transfer of technology at fair and reasonable costs to
developing countries so as to harmonise the objectives of the WTO Agreement and the TRIPS
Agreement.
5. Similarly, Article 40 recognises that licensing practices or conditions pertaining to IPRs could
restrain competition and have adverse effects on trade and may impede the transfer and dissemination
of technology.  It provides Members which certain rights to ensure that this does not happen.  Further,
of more importance to developing and least developed countries, Article 67 obliges developed country
Members to provide, on request and on mutually agreed terms and conditions, technical and financialcooperation in their favour.  Since developing countries are still availing transition periods under the
Agreement, awareness and capacity to seek such cooperation may be lacking.  Again, Article 66.2
obliges developed country Members to provide incentives to enterprises and institutions in their
territories for the purpose of promoting and encouraging technology transfer to least developed
countries.  There has been little effort to implement this provision, raising doubts about theeffectiveness of the Agreement to facilitate technology transfers.
6. One proposal on technology transfers has already been made in the Committee on Trade and
Environment.  In that Committee, India has proposed that owners of environmentally sound
technology and products should sell such technologies and products at fair and most favourable terms
and conditions upon demand to any interested party which has an obligation to adopt these under
national law of another country or under international law.  Similar concerns regarding the need for
the transfer of technology have been expressed with respect to electronics commerce also.  Concernshave also been raised on the need for transfer of technology in a commercially viable manner for
ensuring positive outcomes for developing countries through the increasing linkage between trade and
investment.
7. Transfer of technology at fair and most favourable terms has been highlighted in all
discussions and debates on sustainable development.   The Rio Declaration of 1992 as well as most of
the multilateral environmental agreements emphasize s the need for such technology transfers.  The
preamble of the WTO Agreement affirms the objective of sustainable development in a manner
consistent with the respective needs and concerns of Members at different levels of development.
Thus, an obligation is cast upon the WTO to bring about easy access to and wide dissemination of
technology relevant for sustainable development.
8. Facilitating the access to developing countries of technologies selected by them as appropriate
to their requirements constitutes one of the key elements in accelerating the pace of their economic
and social development.  Such access is generally the result of licences and technology transfer
agreements.  Prospective technology seekers in developing countries face serious difficulties in their
commercial dealings with technology holders in the developed countries.  These difficulties areIP/C/W/195
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basically of three kinds: those which arise from the imperfections of the market for technology; those
attributable to the relative lack of experience and skill of enterprises and institutions in developing
countries in concluding adequate legal arrangements for the acquisition of technology; and those
government practices, both legislative and administrative, in both developed and developing
countries, which influence the implementation of national policies and procedures designed to
encourage the flow of technology to, and its acquisition by, developing countries.  These difficultiesmay have to be addressed specifically in orde r to fully implement TRIPS provisions relating to
transfer and dissemination of technology, particularly in the light of Articles 7, 8, 40, 66.2 and 67.
Some of these difficulties may be overcome by suitable safeguards in the domestic IPR laws of
developing countries, particularly those arising out of the provisions of Articles 30, 31 and 40.  Since
developing countries have transition periods available under Article 65, these laws may still be in the
formulation stage.  In addition, the transfer and dissemination needs of the developing countries have
to be seen from the point of view of the capacity of those in need of accessing technologies,particularly where the cost of technology may be prohibitive due to economies of scale and other
reasons.  In such cases, in order to implement the related provisions of the TRIPS Agreement,
commercially viable mechanisms need to be found.  This could be studied in the WTO, particularly in
the light of the need for effective implementation of Articles 7, 8, 40, 66.2 and 67.
9. The high cost of technology makes it difficult for the smaller, poorer developing countries to
acquire appropriate technology on commercial terms.  Such countries may be able to acquire
appropriate technology critically needed for their development only through government to
government negotiations and with the financial assistance provided by government and other
institutions in developed countries or inter-governmental organisations.  For those enterprises and
institutions in developing countries, which will not have the benefit of external financing, theacquisition of appropriate technology on international commercial terms will impose a burden on the
local economy unless the price of the technology can be brought within manageable limits.
10. The denial of dual-use technologies, even on a commercial basis, to developing countries is
another aspect that leads to widening of th e technology gap between developed and developing
countries.  Under this guise a variety of technologies and products are being denied to developingcountries which could otherwise have helped to accel erate their growth process.  This issue needs to
be carefully examined and seriously dealt with as a trade distorting and restrictive measure.
11. It is therefore proposed that the TRIPS Agreement may be reviewed to consider ways and
means to operationalize the objective and principles in respect of transfer and dissemination of
technology to developing countries, particularly the least developed amongst them.
Proposal 2 - Biodiversity12. The scope of this proposal is limited to harmonisation of the approaches to the utilisation of
living resources found in the TRIPS Agreement on the one hand and the UN Convention on
Biological Diversity (CBD) on the other.  It does not address issues which are likely to come up in the
built-in agenda with regard to Article 27.3(b) or Article 71.  It does not address issues relating to
patenting of plants and animals or to the issue of benefit sharing in commercial exploitation of ex situ
materials.  The above issues are being and will be engaging the attention of the international
community in WTO and other fora and separate proposals would surely be presented there.
13. The preamble of the TRIPS Agreement recognizes  IPRs to be private rights.  Article 27.3
incorporates specific obligations on the issue of patenting life forms to the extent that it obliges
Members to provide product patents for microorganisms and for non-biological and microbiologicalprocesses.  In addition, Article 27.3(b) stipulates that all Members shall provide for the protection of
plant varieties, either by patents or by an effective sui generis system or by a combination thereof.IP/C/W/195
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14. CBD on the other hand, in its preamble, categorically reaffirms that nation states have
sovereign rights over their own biological resources, recognizes the desirability of sharing equitably
the benefits arising from the use of these resources as well as traditional knowledge, innovations and
practices relevant to the conservation of biological diversity and its sustainable use, and acknowledges
that special provisions are required to meet the needs of developing countries.
15. These two international agreements are intrinsically linked with one another.  It is important
to study the relationship between the provisions of the CBD and those of the TRIPS Agreement and
suggest reconciliation of any contradictions therein within the overall objective of conservation of
biological resources with sustainable development.  CBD unambiguously states that the authority to
determine access to genetic resources rests with national governments and is subject to national
legislation.  It also states that access, where granted, shall be on mutually agreed terms and shall be
subject to the prior informed consent of the resour ce provider.  It also enjoins the international
community to respect, preserve and maintain knowledge innovations and practices of indigenous andlocal communities and encourages the equitable sharing of benefits arising from their utilisation.  The
conference of parties of CBD have initiated a work programme to give effect to these provisions.
16. Sustainable development being an objective of the WTO also, it becomes incumbent upon us
to examine ways and means to harmonise the approaches to utilisation of living resources in the CBD
and in the TRIPS Agreement.  In implementing their obligations under the CBD, Members wouldexercise sovereign rights over their biological resources.  In order that this does not impede
innovation, intellectual property rights may have to be integrated into such an exercise.  At the same
time, the right of holders of traditional knowledge to share benefits arising out of such innovation
cannot be over emphasised.  This could be possible if commercial exploitation of such innovation is
encouraged only on the condition that the innovators share the benefits through material transferagreements/transfer of information agreements.  A material transfer agreement would be necessary
where the inventor wishes to use the biological material and a transfer of information agreement
would be necessary where the inventor bases hims elf on indigenous or traditional knowledge.  Such
an obligation could be incorporated through incl usion of provisions in Article 29 of the TRIPS
Agreement requiring a clear mention of the biological source material and the country of origin.Article 29 deals with conditions on patent applicants.  This part of the patent application should be
open to full public scrutiny on filing of the application.  This would permit countries with possible
opposition claims to examine the application and state their claims well in time.  At the same time
domestic laws on biodiversity could ensure that the prior informed consent of the country of origin
and the knowledge holder of the biological raw material meant for usage in a patentable invention
would enable the signing of material transfer agreements or transfer of information agreements, as the
case may be.  Such a provision in the domestic law should be considered compatible with the TRIPSAgreement.  The suggestion basically asks for further transparency in the form of additional
information in patent applications, and an approach which allows a harmonious construction of the
two international agreements.
Proposal 3 - Higher level of protection for geographical indications of goods17. Section 3 of Part II of the TRIPS Agreement deals with geographical indications.  Article 23
therein provides for additional protection for geographical indications for wines and spirits even
where the true origin of goods is indicated or the geographical indications is used in translation or
accompanied by expressions such as 'kind', 'type', 'imitation' or the like.  Such additional protection is
not available to goods other than wines and spirits.
18. It is an anomaly that the higher level of protection is available only for - wines and spirits.  It
is proposed that such higher level of protection should be available for goods other than wines and
spirits also.  This would be helpful for products of  export interest like basmati rice, Darjeeling tea,
alphonso mangoes, Kohlapuri slippers in the case of India.  It is India's belief that there are other
Members of the WTO who would be interested in higher level of protection to products of exportinterest to them like Bulgarian yoghurt, Czech Pilsen beer, many agricultural products of theIP/C/W/195
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European Union, Hungarian Szatmar plums and so on.  There is a need to expedite work already
initiated in the TRIPS Council in this regard, under Article 24, so that benefits arising out of the
TRIPS Agreement in this area are spread out wider.
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