X. TRIPS Implementation: notifications and reviews

1. Notifications

The TRIPS Agreement gives effect to a principle of transparency, founded on a system of notifications about how countries choose to implement TRIPS provisions. These notifications, built up since 1996, now amount to a useful collection of factual information about national IP systems, as well as specific details on key issues such as incentives for transfer of technology, and contact points within national systems. These notifications help the Council for TRIPS to monitor the operation of the Agreement and to promote understanding of Members' IP policies.

These transparency provisions oblige WTO Members to:

• Notify to the Council for TRIPS their intellectual property laws and regulations;

• establish and notify contact points in their administrations for the purposes of cooperation with each other aimed at the elimination of trade in infringing goods; and

• notify the Council in the event that they wish to avail themselves of certain possibilities provided for in the Agreement that relate to the substantive obligations. These concern, for example, modifications of the criteria of eligibility for protection, exceptions to the most-favoured-nation treatment, and protection of state emblems.

In order to implement these notification obligations, the Council has adopted procedures and guidelines relating thereto.

Developed country Members have also agreed to provide certain information and make notifications which are not specifically provided for in the Agreement: these include technical cooperation and transfer of technology. Members also often share information on their legislation and practices as part of the Council's work. This has been done in a structured way when the Council undertakes reviews of national implementing legislation, the review of the application of the provisions of the Section on geographical indications under Article 24.2, and the review of the provisions of Article 27.3(b).

• Timeliness and Completeness of Notifications and other Information Flows — Note by the Secretariat (IP/C/W/543)

You can find further information on the WTO Members' website on the Members' Transparency Toolkit.

2. Reviews

The Council for TRIPS examines and reviews each Member's national implementing legislation. The initial notification of implementing laws and regulations made by each Member pursuant to Article 63.2 at the end of its transition period forms the basis for the review of the implementing legislation of that Member carried out by the Council. 

There are certain reviews mandated in the Agreement: in particular, under Article 24.2, a review of the application of the provisions of the section on geographical indications, and a review under Article 27.3(b).

In the context of the review under Article 24.2,  the following documents are of relevance.

In response to the annexed checklist of questions in documents IP/C/13 and IP/C/13/Add.1), Members have provided their responses in documents IP/C/W/117 and addenda, supplements and revisions. These responses to the checklist are summarized in Secretariat document IP/C/W/273/Rev.1.

In addition, Article 27.3(b) provides for a review of the provisions thereof.  The 2001 Doha Declaration broadened the discussion to cover also TRIPS-CBD and traditional knowledge issues.

Members who were already under an obligation to apply Article 27.3(b) were requested to provide information on how the matters addressed in these provisions were presently treated in their national law.  The original request is contained in Secretariat document IP/C/W/122 dated 22 December 1998.  Document IP/C/W/125 and addenda contain relevant information from Members requested by the Council. Members' responses are summarized in document IP/C/W/273/Rev.1.

The Council for TRIPS conducts an annual review of submissions from developed country members on actions taken or planned in pursuance of their commitments under Article 66.2 at its end-of-year meeting. Article 66.2 requires that developed country Members provide incentives to enterprises and institutions in their territories for the purpose of encouraging technology transfer to least- developed country Members.  In 2003 the Council established a mechanism for ensuring the monitoring and full implementation of these obligations (Decision of the TRIPS Council of 19 February 2003 on the implementation of Article 66.2 of the TRIPS Agreement (document IP/C/28).

Article 67 of the TRIPS Agreement requires that developed country Members provide, on request and on mutually agreed terms and conditions, technical and financial cooperation in favour of developing and least-developed country Members.  Developed country Members have agreed to present descriptions of their relevant technical and financial cooperation programmes and to update these annually and these are reviewed annually by the Council.  In the course of such reviews, information is provided from developed country Members, intergovernmental organizations and the WTO Secretariat on technical cooperation activities undertaken in the area of TRIPS.

The 2003 Decision of the General Council on the implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health provides for a system for compulsory licensing.  Paragraph 8 of the Decision provides that the TRIPS Council annually review the functioning of the Paragraph 6 System with a view to ensuring its effective operation.