Technology transfer to LDCs

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.

Notifications and transparency

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.

IP and innovation; IP and the public interest

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.

Non-violation and situation complaints

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.

Cross promotion

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. 

TRIPS amendment

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.

Next meeting

The next meeting of the TRIPS Council will be on 14-15 May. The Council will formally elect its new chair at the beginning of that meeting, after the next General Council (3-4 March) agrees on the slate of new chairpersons for WTO bodies.