[A2k] IP-Watch: Book Review: How 'Dialogue Of The Deaf' Produced A Sound Tool For Policy-Making

Thiru Balasubramaniam thiru at keionline.org
Thu Oct 22 08:55:50 PDT 2015

Peter Ungphakorn reviews "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."



By Peter Ungphakorn

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)

CHF70.– in print
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Book Review: How ‘Dialogue Of The Deaf’ Produced A Sound Tool For

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).

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.”

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.

Gobbledygook, fudge and theology

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.)

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

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

1989 …

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.

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.

… and beyond

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.

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”.

Pride, lessons and regrets

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.

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 thatcontain 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.

Since retiring from the WTO Secretariat’s Information Division earlier this
year, Peter Ungphakorn has returned to journalism.

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