Intellectual property: non-violation complaints

 “TRIPS” is “trade-related aspects of intellectual property rights”. One of the decisions ministers are expected to take at their 2009 conference in Geneva is to extend the present moratorium on “non-violation” cases in TRIPS.

So far, the moratorium has been extended from one Ministerial Conference to the next and once again it will be extended until the next conference, which ministers are expected to decide to hold in 2011.

What does it mean?

The moratorium means that members agree not to bring “non-violation” cases to the WTO dispute settlement process.

“Non-violation” is shorthand for the arcane question of whether there can be legal grounds for complaint under TRIPS even when the TRIPS Agreement has not been violated. The issue is explained in greater detail here.

Recent discussions

Some members had linked extending this moratorium to extending one on electronic commerce, which is discussed primarily in the General Council. Both are now expected to be extended.

The e-commerce moratorium means that members will not charge import duties on electronic transmissions. The text that is being sent to ministers also includes reviews and reports in July and December 2010 and July 2011, in response to some members' call for more work to be done on the subject. It was discussed in special meetings chaired by Deputy Director-General Harsha Vardhana Singh on behalf of General Council chairperson Mario Matus.

The draft decision

The TRIPS text prepared for ministers says:

“We take note of the work done by the Council for Trade-Related Aspects of Intellectual Property Rights pursuant to paragraph 11.1 of the Doha Decision on Implementation-Related Issues and Concerns and paragraph 45 of the Hong Kong Ministerial Declaration, and direct it to continue its examination of the scope and modalities for complaints of the types provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 and make recommendations to our next Session, which we have decided to hold in 2011. It is agreed that, in the meantime, Members will not initiate such complaints under the TRIPS Agreement.”

Find out more