WTO news: what’s been happening in the WTO


28 November 1997

Council completes first review of intellectual property laws: almost 2 years work aimed at avoiding disputes

The WTO Council on Trade-Related Intellectual Property Rights has just completed its first review of member countries' TRIPS laws. The task took almost two years and involved about 20,000 pages of complex legislation. It should play a major role in avoiding trade conflict.

The review cleared up many misunderstandings both about individual countries' laws and what the WTO's rules require. In some cases countries realized that their laws or regulations might not conform, and will amend them.

With much public attention focusing on disputes in the WTO, the detailed day-to-day work of examining how countries comply with WTO rules tends to be overlooked. As with the TRIPS Council's review, a large number of cases that could have been brought to the WTO's dispute settlement proceedings are resolved before they turn into conflict. This helps to enforce smoothly the rules of the trading system.

A huge effort with important benefits

The TRIPS Council examined the legislation of about 30 members. These are mainly developed countries that had to ensure that their laws and practices complied with the TRIPS Agreement on 1 January 1996. (For most rules, developing countries and - under certain conditions - transition economies are given five years from 1 January 1995 when the agreement came into force; least developed countries have 11 years.)

Although these reviews involved a huge effort, both for member countries and the WTO Secretariat, they yielded important benefits:

      Documents containing records of review
TRIPS subject Date of council meeting No. of questions asked Series i.d. No. of pages
Copyright and related rights 22-26 Jul 96 502 IP/Q/Country/ 223
Trademarks, geographical indications and industrial designs 11-15 Nov 96 581 IP/Q2/Country/ 576
Patents, integrated circuits, trade secrets and anti-competitive practices 26-30 May 97 768 IP/Q3/Country/ 396
Enforcement 17-21 Nov 97 2,269 IP/Q4/Country/ approx 800
TOTAL   4,120   approx 2,000

Countries take greater care when drafting new legislation. The knowledge that a country's legislation will be the subject of such a detailed review tends to make legal drafters and policy-makers more careful in examining the changes that are necessary to make the country's legislation conform with the WTO's rules. WTO members believe that effective mechanisms for monitoring compliance and for resolving disputes are necessary if international rules are to be of value.

Misunderstandings are cleared up. Because intellectual property laws are complex, countries do not always fully understand other countries' legislation. For example, concern about a country apparently failing to conform with the rules is frequently dispelled by the explanation that the point is tackled by other provisions which the questioning country may have overlooked.

Deficiencies in existing laws are identified. In a significant number of instances, the country whose legislation was under review has been willing to accept that it still has further work to do in order to make its laws conform fully with the WTO's rules. Examples include: ensuring that nationals of all WTO members receive the treatment required by the TRIPS Agreement; extending the term of protection of performers' rights to 50 years; protecting trademarks even when used on dissimilar goods and services; protecting layout-designs of integrated circuits; ensuring that procedures for enforcing intellectual property rights against imports of goods that infringe these rights conform with the rules.

Differences in interpretation have been identified. Some of these differences will be discussed bilaterally. If they are not resolved in that way, they could eventually turn into formal disputes under the WTO dispute settlement proceedings. In some cases, where countries believe the TRIPS Agreement is unclear, the differences may be taken up when the agreement as a whole is reviewed after 2000. In other cases, differences may be considered commercially insignificant; they would be put aside, at least for the time being.

Countries drafting legislation learn from the reviews. Developing countries and some transition economies enjoy transition periods which generally last until 2000 (and 2006 for least developed countries). The reviews give these countries important insights into how their trading partners are understanding and implementing the provisions of the TRIPS Agreement, and which aspects appear to be more particularly sensitive. A number of developing members (Brazil, Hong Kong China, India, Korea and Singapore) asked questions, particularly in areas where it would be helpful for the preparation of their own implementing legislation.

How the TRIPS review works

The exercise began with countries notifying fellow-members, through the WTO, of their intellectual property laws which implement the TRIPS agreement. Some 20,000 pages of legislation were notified, and over 12,000 of these were circulated to all members.

The review takes the form of a "peer group" examination. The legislation is studied by the notifying country's trading partners who are entitled to ask questions through the TRIPS Council. Responses to these questions are provided on the floor of the TRIPS Council and in writing. An opportunity is given for follow-up questions. Given the magnitude of the task, the review was divided into four subject areas (see table), each requiring a week-long meeting.

The records of each review, the questions put and the responses given, are distributed in a separate document for each country reviewed and for each area.

These are gradually being made available to the public, after derestriction which normally takes about six months. See footnote 1

At subsequent meetings of the TRIPS Council, members can follow up on any points they feel need further clarification or discussion.

What happens next?

Countries are still free to raise follow-up issues at future meetings of the TRIPS Council. The Council has scheduled for May next year, the completion of the reviews of five members who joined the 1996/97 review exercise too late. In November next year three new WTO members' laws will also be reviewed.

Then, when their transition periods end, it will be the turn of the intellectual property laws of developing, transition and least developed countries. The numbers of countries involved will be even larger, and members are discussing whether they should start reviewing ahead of schedule those countries which are ready before the end of the transition periods and volunteer to be reviewed.

Footnote: 1 These records can be obtained through the documents on-line facility on the WTO website on the Internet, address: http://www.wto.org. They use the document series codes listed in the table