WTO Members Discuss LDC Technology Transfer,
Highlight Progress on Transparency Obligations
·
e-TRIPS Online
to Make Submissions by Members Activated
At the meeting of the Council for Trade-Related Aspects of Intellectual
Property Rights (TRIPS) on 6 February, WTO members continued last year’s detailed discussions on how best to implement the Agreement’s
obligations relating to technology transfer to least developed countries (LDCs).
Members also noted the positive impact of the new e-TRIPS platform in increasing
notification efforts and facilitating the fulfilment of transparency obligations.
A workshop on the implementation
of Article 66.2 of the TRIPS Agreement on incentives for technology
transfer to LDCs was held back-to-back with the TRIPS Council. Article 66.2 of the TRIPS
Agreement calls on developed countries to provide incentives to enterprises
and institutions in their territories for the purpose of promoting and encouraging
technology transfer to LDCs in order to enable them to create a sound and viable
technological base.
Twenty-one
capital-based experts from 15 LDCs, as well as Geneva-based delegates, participated
in the workshop where they presented current areas of priority for technology development,
projects that are relevant to these priority areas, and their experience with projects
reported in the Article 66.2 reports over the last five years. Experts from eight
developed countries presented and explained their 2019 reports.
All LDC
participants, many of which have direct and hands-on experience in coordinating
projects involving the transfer of technology in their countries, attended the TRIPS
Council and took part in the discussion on the implementation of Article 66.2 of
the TRIPS Agreement.
The WTO
Secretariat reported that so far 67 members (and five intergovernmental organizations
that are observers) have requested log-in credentials for the e-TRIPS system, and
virtually all the submissions of laws under Article 63.2 – and of contact points
under Article 69 – were made using the e-TRIPS Submission System. The
Secretariat said it remains ready and available to assist delegations to further
increase use of the system, also for the submission of reports on technical assistance
under Article 67 and on incentives for technology transfer under Article 66.2.
The Secretariat
also reported on the progress made under the e-TRIPS system, which is now entering
phase two. Apart from the submission system, the e-TRIPS Gateway, the online interface
with which members can search and analyse TRIPS submissions
and TRIPS-related information, will be improved and further integrated into the
WTO website. The Secretariat will be again reaching out to delegations for feedback
and suggestions in order to further refine the system.
Members
acknowledged that a transparent intellectual property (IP) regime through notifications
is essential for the growth of IP-intensive industries, including creative industries,
technology, agricultural products, healthcare and the life sciences.
Following
up on past items on IP and innovation regularly added to the TRIPS Council agenda
since 2012, the co-sponsors (Australia, Canada, Chile, Chinese Taipei, the European
Union, Hong Kong China, Japan, Singapore, South Korea, Switzerland and the United
States) expressed their intention to focus this year on the topic of "Making
MSMEs competitive through trademarks".
They
underlined that the management of IP assets is a key consideration for businesses,
and is particularly critical for micro, small and medium-sized enterprises (MSMEs),
which tend to be new entrants to the IP environment. IP-holding businesses, including
MSMEs, tend to be more active internationally (such as through stronger export performance)
than non-IP-holding firms. Therefore, a better understanding of the relationship
between IP rights and MSMEs, as well as the sharing of best practices by members
in this regard, could help identify pragmatic ways to make the IP system more accessible
to MSMEs and, in turn, enhance their competitiveness and trade performance.
At the
proposal of South Africa, the Council also continued its debate on the intersection
between IP and the public interest. South Africa invited members to address the
relationship between the TRIPS Agreement and copyright, as it relates to the so-called
three-step test on limitations and exceptions to copyright, with a view to clarifying
the flexibilities to which members are entitled
The three-step
test formulates three conditions with which any limitations and exceptions to a
copyright holder’s rights must comply. Originating in the Berne Convention for
the Protection of Literary and Artistic Works, it is also part of several
subsequent international IP conventions, including the TRIPS Agreement which states
in Article 13 that
"members shall confine limitations or exceptions to exclusive rights to certain
special cases which do not conflict with a normal exploitation of the work and do
not unreasonably prejudice the legitimate interests of the right holder".
South
Africa invited members to discuss whether the three-step test constitutes an indivisible
whole to the extent that each of the three steps are to be considered together in
a comprehensive overall assessment, and to share experiences regarding their approach
to reflect limitations and exceptions in their IP laws.
In response,
some delegations recognized the important obligation members have undertaken with
respect to copyright as provided in the TRIPS Agreement. They stressed that limitations
and exceptions to exclusive rights should be confined to certain special cases that
do not conflict with normal exploitation of the work and that do not unreasonably
prejudice the legitimate interests of the right-holder. They noted that this is
an ad-hoc agenda item and that it should be treated as such. One delegation said
that questions concerning the interpretation and application of the three-step test
were not the authority of the TRIPS Council but the prerogative of the Dispute Settlement
Body.
Following
the decision by the General Council on 10 December 2019 to extend the moratorium
related to the initiation of “non-violation” complaints under the TRIPS Agreement
until the 12th Ministerial Conference (MC12) in Nur-Sultan
in June, members reiterated their well-known positions on this issue and did not
show any indication of convergence.
This
issue concerns the longstanding discussion of whether members should have the right
to bring dispute cases to the WTO if they consider that another member's action
or a specific situation has deprived them of an expected benefit under the TRIPS
Agreement, even if no specific TRIPS obligation has been violated.
The chair
of the TRIPS Council, Ambassador Lundeg Purevsuren of Mongolia, informed delegations of two sets of
informal consultations held in January on this topic where he asked members to explore
ways to advance on this issue, but without success. "Let me highlight that
MC12 is only four months away. It is therefore important that discussions soon begin
to focus on concrete suggestions for the Council's recommendation for the Ministerial,"
said the chair.
Some
members voiced their opposition to a further extension of the moratorium on the
grounds that non-violation complaints are essential to maintaining the proper balance
of rights and obligations within the TRIPS Agreement while helping to ensure that
legitimate obligations are not circumvented or avoided.
Some
other delegations preferred a complete ban of non-violation complaints under the
TRIPS Agreement. These members believe there is no place for the application of
non-violation complaints in the area of intellectual property because of the legal
insecurity and curtailment of flexibilities that could ensue. They argued, however,
that in the absence of an agreement on this issue, they could join consensus in
support of a recommendation to further extend the moratorium.
Mexico
proposed to analyse the definition of "cross promotion"
- a marketing technique which involves the promotion of other product(s) targeted
to the customers of a related product – in relation to a draft Codex Alimentarius Commission standard which includes labelling provisions
for different types of infant formula. Mexico noted that if that standard were to
include a proposed prohibition on cross promotion among infant formula, follow-up
formula for older infants and formula for special medical purposes, it could affect
the use of protected trademarks.
Mexico
recommended that the WTO, as an intergovernmental organization with observer status
in Codex Alimentarius, take note of the concern that this
concept's lack of clarity could generate for its members. Some members welcomed
the initiative while others favoured waiting for further
discussion on a cross promotion definition in the appropriate fora before the Council
assesses whether it conflicts with other international obligations in terms of IP.
The chair
reported that, since the last TRIPS Council meeting in October 2019, Burundi had
deposited on 12 December 2019 its instrument of acceptance for the protocol amending
the TRIPS Agreement. To date, 129 members have accepted the TRIPS Amendment which
entered into force on 23 January 2017, securing for developing countries a legal
pathway to access affordable medicines under WTO rules. At the last General Council
meeting in December 2019, the period for acceptance of the protocol was extended
until 31 December 2021.