The intellectual property (IP) aspects of electronic commerce, access to medicines, and the role of IP in promoting the participation of small businesses in trade were discussed by WTO members at a meeting of the Council for Trade Related Aspects of Intellectual Property Rights (TRIPS) on 1 and 2 March.

Intellectual property and e-commerce

WTO members discussed a range of issues regarding the intellectual property aspects of electronic commerce.

“Such a discussion would be an opportunity to create a clearer, more inclusive factual picture of the current state of affairs as the foundation for informed dialogue between members,” said Ambassador Alfredo Suescum of Panama, who acted as interim chair for the Council.

“The debate would constitute a sound basis to provide input for the General Council report to the next Ministerial Conference,” he added, recalling that the WTO 2015 Nairobi Ministerial Conference asked WTO members to continue the work on electronic commerce “based on the existing mandate and guidelines and on the basis of proposals submitted by members in the relevant WTO bodies”.

Discussions centred on four proposals put forward by WTO members. Brazil introduced a paper on electronic commerce and copyright which was co-sponsored by Argentina. “Recent advancements in technology enable the ‘intellectual goods’ to be transferred in the digital environment,” Brazil said, suggesting that WTO members could stress the increased importance of transparency in the remuneration of copyright for authors and performers in the digital environment. The paper also proposes to maintain an appropriate balance between the interests of right holders and users of protected works in the digital environment, and to apply national copyright legislation in the territory where protected content is accessed across borders.

A paper put forward by Argentina, Brazil and Paraguay shares their experience of digital solutions for ensuring authenticity, integrity and privacy of online transactions within MERCOSUR, a Latin American regional trade bloc. Brazil said that a mutually recognized “electronic signature” could greatly facilitate trade across borders, especially for services trade.

The European Union highlighted how trade-policy issues have an impact on e-commerce. The EU paper, co-sponsored by Canada, Chile, Colombia, Cote d’Ivoire, Korea, Mexico, Montenegro, Paraguay, Singapore and Turkey, identifies four clusters of issues relevant for e-commerce: regulatory frameworks, policies to ensure open markets, government initiatives facilitating the development of e-commerce and information sharing on e-commerce policies at the WTO.

Singapore introduced a paper highlighting the potential of e-commerce to help small enterprises expand “beyond their own backyards” and the challenge of digital connectivity in many developing countries.

Many WTO members said they are encouraged by the energy in the discussions on electronic commerce. Some cautioned about the duplication of work between the WTO and other organizations, and stressed that WTO members should seek to find areas where WTO rules and guidelines can make a difference. Some members also stressed that the discussion on e-commerce should be bottom up, drawing on members’ experiences, and that the experience sharing should not be intended as trade negotiations.

Access to medicines

The Council continued its discussion of the UN Secretary-General’s High Level Panel Report on access to medicines, and on the issue more generally. Many WTO members said they were committed to ensuring access to medicines.

Some WTO members reiterated the Report’s recommendations, including the call for rigorous definitions of criteria for granting pharmaceutical patents, and the need to preserve the right of WTO members to use flexibilities allowed under the WTO’s intellectual property rules. While recognizing that this was not only an IP issue, some members showed support for continuing a constructive discussion of IP rights and access to medicine at the next TRIPS Council, covering issues such as patentability criteria, flexibilities, and exceptions and limitations to patent rights.

Some WTO members reiterated their concerns about the narrow scope of the Report focusing on “policy incoherence”. A few members said they need more time to consider the recommendations. In the meantime, they encouraged members to focus work on how to effectively implement the revised TRIPS Agreement to ease access to affordable medicines.

Amendment to the TRIPS Agreement

Oman became the latest WTO member to accept the Protocol Amending the TRIPS Agreement, the chair informed members. Oman deposited its instrument of acceptance with Director-General Roberto Azevêdo on 1 March, making it the first member to do so since the revised TRIPS Agreement entered into force on 23 January 2017.

At the Council’s meeting in January, the call by the previous chair of the Council, Ambassador Mero of Tanzania, for members “to look into how to make this new procurement tool work effectively so that it delivers concrete results in practice” was echoed by many delegations. As a first step, the Council heard a presentation by the WTO Secretariat on the notification process to be followed by members who are seeking to export generic medicines produced under the special compulsory licensing mechanism. More information can be found on a dedicated webpage.

Intellectual property, innovation and small enterprises

Members shared experiences on how intellectual property protection plays a critical role in boosting collaboration-based innovation and competitiveness in small businesses. The discussion stemmed from two papers, both jointly submitted by Australia, the EU, Japan, Switzerland, Chinese Taipei and the United States.

Members stressed that small enterprises made up a major share of their economies, and in their view, transparent and predictable rules on intellectual property were needed to foster partnerships between small businesses and other parties.

A wide range of members shared information on government initiatives to raise awareness of intellectual property rights and to foster collaboration between small enterprises and other companies, universities or government entities.

Some delegations cautioned that intellectual property rights protection, if poorly designed, could potentially impede innovation and learning. It was important to create the appropriate enabling environment to foster innovation.

“Triplets” issues

On the issues of biodiversity, traditional knowledge and patenting of life forms – known as the “triplets” issues – members repeated their longstanding positions. The chair noted that while constructive discussion took place, positions have evolved neither in terms of substance nor procedure. The substantive issues covered included whether patent applicants should be required to disclose the origin of genetic resources and any traditional knowledge used in inventions, and whether life forms should be patentable.

Members also continued to disagree over two procedural issues, on whether the Secretariat of the Convention on Biological Diversity should be invited to brief WTO members on developments regarding the convention, and whether the WTO Secretariat should update the three factual notes on the triplets.

Non-violation

As a follow-up to the instruction given by ministers at the Nairobi Ministerial Conference in 2015, the TRIPS Council continued its discussion of “non-violation and situation complaints”, on whether members can bring cases against each other if they feel that another government’s action or a specific situation has deprived it of an expected benefit, even if no obligation has been violated. The TRIPS Council has been requested to make recommendations to the next ministerial conference in December this year.

Opinions continued to differ among WTO members on whether such complaints should also apply to intellectual property. The United States and Switzerland argued such complaints be allowed. Other members reiterated their position as outlined in a May 2015 proposal that non-violation complaints should not be allowed under the TRIPS Agreement; some also referred to the proposal a number of members had made in 2015 for a ministerial decision that would exclude such disputes permanently as a suitable way forward.

Information sharing

To improve understanding of legislative developments, a number of members shared information about new or amended intellectual property rights legislation. The Council also concluded the review of Saint Kitts and Nevis implementing legislation, as well as that of the Republic of Seychelles, a newly acceded member.