Intellectual Property Rights MINUTES OF MEETING...intellectual property rights protection. IP/C/M/94/Add.1 - 5 - The first notification IP/N/1/UKR/5 concerns the Law of Ukraine "On

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IP/C/M/94/Add.1

16 April 2020

(20-3061) Page: 1/47

Council for Trade-Related Aspects of

Intellectual Property Rights

MINUTES OF MEETING

HELD IN THE CENTRE WILLIAM RAPPARD ON 6 FEBRUARY 2020

Chair: H.E. Ambassador Lundeg Purevsuren (Mongolia)

Addendum

The present document contains the statements made during the Council for TRIPS meeting held on

6 February 2020.

_______________

Table of Contents

1 NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT ........................................ 4

2 REVIEW OF NATIONAL IMPLEMENTING LEGISLATION ................................................ 9

3 REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B) ..................................................... 9

4 RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON BIOLOGICAL DIVERSITY .................................................................................................. 9

5 PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE ..................................... 9

6 NON-VIOLATION AND SITUATION COMPLAINTS ....................................................... 14

7 REVIEW OF THE IMPLEMENTATION OF THE TRIPS AGREEMENT UNDER

ARTICLE 71.1 ................................................................................................................. 18

8 REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2 .................................................... 18

9 SEVENTEENTH ANNUAL REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE IMPLEMENTATION OF ARTICLE 66.2 OF THE TRIPS AGREEMENT ............................ 18

10 TECHNICAL COOPERATION AND CAPACITY-BUILDING ............................................ 26

11 DRAFT CODEX ALIMENTARIUS STANDARD - DEFINITION OF 'CROSS PROMOTION' 26

12 INTELLECTUAL PROPERTY AND INNOVATION: ........................................................ 27

13 INTELLECTUAL PROPERTY AND THE PUBLIC INTEREST: THE WTO TRIPS AGREEMENT AND THE COPYRIGHT THREE-STEP TEST ................................................... 41

14 INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO ............... 46

15 OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS ........................................................................................................... 46

16 OTHER BUSINESS .................................................................................................... 47

17 ELECTION OF THE CHAIRPERSON ............................................................................ 47

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INDEX OF THE STATEMENTS MADE AT THE MEETING OF COUNCIL FOR TRIPS 6 FEBRUARY 2020*

African Regional Intellectual Property Organization Article 66.2 ........................................ 24

Australia Article 66.2 ........................................ 25 IP and Innovation - Making MSMEs

competitive through trademarks ......... 31 Bangladesh

Article 66.2 ........................................ 20 Biotech, Biodiversity, TK ...................... 10 Non-violation and situation complaints ... 15 Observer Status .................................. 46 Other Business ................................... 47

Technical Cooperation .......................... 26 Bolivia, Plurinational State of

Biotech, Biodiversity, TK ...................... 14 Non-violation and situation complaints ... 18

Brazil Biotech, Biodiversity, TK ........................ 9 Codex Alimentarius Standard - definition of

cross-promotion ............................... 27 IP and Innovation - Making MSMEs

competitive through trademarks ......... 39

Notifications ......................................... 7 Canada

Article 66.2 ........................................ 23

Biotech, Biodiversity, TK ...................... 13 IP and Innovation - Making MSMEs

competitive through trademarks ......... 27 Non-violation and situation complaints ... 18 Notifications ......................................... 5

Chad Technical Cooperation .......................... 26

Chad on behalf of the LDC Group Article 66.2 ........................................ 19

Chile IP and Innovation - Making MSMEs

competitive through trademarks ......... 36

Non-violation and situation complaints ... 16 China

Biotech, Biodiversity, TK ...................... 11 IP and Innovation - Making MSMEs

competitive through trademarks ......... 38 IP and Public Interest - TRIPS Agreement

and the copyright three-step test ....... 44 Non-violation and situation complaints ... 16

Notifications ......................................... 6 Observer Status .................................. 47

Egypt Non-violation and situation complaints ... 15

European Union Article 66.2 ........................................ 23 Notifications ......................................... 4

Hong Kong, China Notifications ......................................... 7

India Biotech, Biodiversity, TK ................... 9, 11 Codex Alimentarius Standard - definition of

cross-promotion ............................... 27 IP and Innovation - Making MSMEs

competitive through trademarks ........ 39

IP and the Public Interest - TRIPS and the copyright three-step test ................... 43

Non-violation and situation complaints ... 16 Observer Status .................................. 46

Indonesia IP and the Public Interest - TRIPS and the

copyright three-step test ................... 43


Japan Article 66.2 ........................................ 24 Biotech, Biodiversity, TK ...................... 13 IP and Innovation - Making MSMEs

competitive through trademarks ........ 34

Non-violation and situation complaints ... 17 Other Business ................................... 47

Kenya

Biotech, Biodiversity, TK ...................... 11 Korea, Republic of

IP and Innovation - Making MSMEs

competitive through trademarks ........ 37 Non-violation and situation complaints ... 18 Notifications ......................................... 4

Mexico Draft Codex Alimentarius Standard -

definition of cross-promotion ............. 26 Nigeria

Biotech, Biodiversity, TK ...................... 10 Non-violation and situation complaints ... 15

Norway Article 66.2 ........................................ 24 Non-violation and situation complaints ... 18

Peru IP and Innovation - Making MSMEs

competitive through trademarks ........ 40 Russian Federation

Non-violation and situation complaints ... 17 Notifications ......................................... 6

Saudi Arabia, Kingdom of Notifications ......................................... 8

Singapore IP and Innovation - Making MSMEs

competitive through trademarks ........ 36 South Africa

Biotech, Biodiversity, TK ...................... 12 IP and the Public Interest - TRIPS and the

copyright three-step test .............. 41, 45

South Africa on behalf of the African Group Non-violation and situation complaints ... 14

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Switzerland Article 66.2 ........................................ 22 Biotech, Biodiversity, TK ...................... 12 IP and Innovation - Making MSMEs

competitive through trademarks ......... 32 IP and the Public Interest - TRIPS and the

copyright three-step test ................... 45 Non-violation and situation complaints ... 17

Chinese Taipei IP and Innovation - Making MSMEs

competitive through trademarks ......... 34 IP and Public Interest - TRIPS Agreement

and the copyright three-step test ....... 43 Non-violation and situation complaints ... 16

Notifications ......................................... 8 Turkey

Codex Alimentarium Standard- definition of cross-promotion ............................... 27

Ukraine

Biotech, Biodiversity, TK ...................... 12 Notifications ......................................... 4

United Kingdom Article 66.2 ........................................ 22

IP and Innovation - Making MSMEs competitive through trademarks ........ 38

Notifications ......................................... 8 United States of America

Article 66.2 ........................................ 23 Biotech, Biodiversity, TK ...................... 12

IP and Innovation - Making MSMEs competitive through trademarks ........ 29

IP and the Public Interest - TRIPS and the copyright three-step test .............. 44, 45


Vanuatu Article 66.2 ........................................ 25

Venezuela, Bolivarian Republic of Observer Status .................................. 47

WTO Secretariat Article 66.2 ................................... 18, 25 Information on developments in the WTO

...................................................... 46 Other Business ................................... 47

* A record of statements as delivered in the formal session of the Council. Some statements have been lightly

edited as appropriate to ensure the consistency of presentation.

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1 NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT

European Union

With regards to document IP/N/1/CZE/4, Act No. 286/2018 of 5 November 2018 on the amendments to certain laws concerning industrial property, referred to as the Implementing Act, was published and the new rules are applicable from 1 January 2019 in the Czech Republic.

The Implementing Act predominantly introduces new amendments to Act No. 441/2003 on

Trademarks and amended Act No. 6/2002 on Courts and Judges. The purpose of the Trademark Act Amendment is to transpose the Directive (EU) 2015/2436 of 16 December 2015, approximating the laws of the member States relating to trademarks, already introduced and notified in the past session of this Council.

The Trademark Act Amendment simplifies the administration and registration of trademarks and brings substantial changes to the trademark registration process. As the consequence of

the Amendment, trademark no longer needs to be represented graphically. The new definition of trademark opens up the possibility of registering unconventional types of trademarks which are expressed by the available technological means (five new types of marks have been supplemented - positional, pattern, motion, multimedia and hologram). The Amendment also revises the system of absolute and relative grounds for refusal. Furthermore, it newly introduces certification trademarks.

The Implementing Act also amends the Act No. 221/2006 on Enforcement of Industrial Property

Rights by introducing the possibility of seeking appropriate compensation for damages caused to the owners by unlawful acquisition, use or disclosure of their business information (trade secrets), bringing the Czech legislation into full compliance with the Directive (EU) 2016/943 of 8 June 2016 (Trade Secrets Directive). In reflection of the broader scope of the amended law, the Act was renamed, becoming Enforcement of Industrial Property Rights and Protection of Trade Secrets Act.

Korea, Republic of

Korea would like to briefly provide an overview of the elements we have informed the Council of,

as shown in documents IP/N/KOR/8 through IP/N/KOR/11, under Article 66.2 of the TRIPS Agreement.

The said notifications reflect major amendments to the Patent Act of Korea from 2013 to 2018. Documents IP/N/1/KOR/8 and IP/N/1/KOR/9 concern amendments made to the Patent Act before 2017. The amendments were made to ensure that the process is easier for applicants by permitting the filing of patents in foreign languages and extending the time allowed for the submission of a

Korean translation for international applications. In addition, the patent fee system was improved by allowing for a patent fee refund when a patent right is abandoned, or a ruling of rejection is revoked.

Amendments to the Trademark Act are shown in document IP/N/1/KOR/10 which reflects the changes in the official names of organizations in accordance with the restructuring of the Korean government in 2013.

Lastly, Document IP/N/1/KOR/11 reflects amendments made in 2013 to the Enforcement Decree

of the Patent Act. It includes a clear indication of the scope of inventions in which patent term extensions are allowed, such as those related to medicines and agricultural chemicals. Another establishes that a portion of administrative patent judge positions be open to the private sector, which is conducive to the recruitment of outstanding personnel.

Ukraine

Ukraine is pleased to present its three notifications on a number of recent intellectual property-related legislative developments that were enacted with an aim to achieve an efficient level of

intellectual property rights protection.

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The first notification IP/N/1/UKR/5 concerns the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine on Improving the Legal Protection of Geographical Indications (GIs)" No 123 that entered into force on 1January 2020.

The Law specifies conditions for granting and refusing legal GIs protection; reviews application requirements for GIs registration; improves the procedure for examination of applications; clarifies the scope of rights and obligations arising from the state registration etc. It is expected that adoption

of this Law will improve legal regulation in the area of GIs protection.

The second notification IP/N/1/UKR/6 presents the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine on Improving Protection of Rights to Topographies of Semiconductor Products" No 111, which came into effect on 26 September 2019.

It establishes new definitions of the terms "topographies of semiconductor products" and

"semiconductor product"; specifies the conditions for granting legal protection to such objects,

determines the requirements to applications for registration and improves the examination procedure; and defines the scope of the rights and obligations arising from the registration. This Law seeks to ensure improvement of legal regulation in the area of protection of topographies of the semiconductor products.

The third notification IP/N/1/UKR/7 informs on the Law of Ukraine "On Amendments to the Customs Code of Ukraine on the Protection of Intellectual Property Rights during the Movement of Goods through the Customs Border of Ukraine" No 202, which took effect on 14 November 2019.

This Law expands the scope of intellectual property rights (IPRs) objects that fall under the protection during the movement of goods across the customs border of Ukraine, establishes the definitions of such terms as "counterfeit goods", "pirated goods", "goods suspected of infringing IPRs". The Law introduces the principle of non-application of measures on IPRs protection for original goods, manufactured with the consent of the right holder or by a person duly authorized. On the

other hand, it expands legal means for the use of measures related to suspension of customs clearance of goods that may infringe IPRs, including on the initiative of the customs authority (ex

officio).

Implementation of provisions of this Law should increase the level of IPRs enforcement to prevent infringements and movement of counterfeit or pirated goods across the customs border of Ukraine. Ukraine considers intellectual property as being of great importance to the economy and one of the key priorities for the Ukrainian Government.

Canada

Further to Canada's submission of document IP/N/1/CAN/29, Canada would like to take this opportunity to notify the TRIPS Council of the introduction of Canada's new Patent Rules on 30 October 2019.

By way of background, in December 2014 under Bill C-43, Canada amended its Patent Act to make necessary changes in order to be able to accede to the Patent Law Treaty (PLT). These amendments were followed by a second set of administrative amendments to the Patent Act in June 2015 under Bill C-59, which amended the Patent Act to provide for extensions of time limits in

unforeseen circumstances and provided the authority to make regulations respecting the correction of obvious errors in patent applications.

These amendments to the Patent Act entered into force with the introduction of Canada's new Patent Rules on 30 October 2019. These new Patent Rules repeal and replace Canada's previous Patent Rules and modernize the administration of patent rights in Canada to align with modern business practices and increase clarity and legal certainty for users of the patent system. Some notable changes, in addition to those necessary to ensure compliance with the PLT, include time-

limited restrictions on correcting obvious errors in granted patents, a reduction of the deferred examination period from 5 years from the filing date to 4 years from the filing date, and a reduction

from 42 months to 30 months for as-of-right Canadian national entry for Patent Cooperation Treaty international applications.

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In implementing the PLT, these legislative amendments and Canada's new Patent Rules contribute to the Government of Canada's national IP Strategy, which seeks to ensure that Canada's IP regime is modern and robust, and that Canadian entrepreneurs better understand and protect their IP. This modernization of our regime reinforces patents as vital tools to protect and incentivize innovation at home and abroad.

China

China is pleased to inform the Council that last year we amended the Trademark Law and Anti-Unfair Competition Law. The revised laws have been notified to this Council through the e-TRIPS system in accordance with Article 63.2 of the TRIPS Agreement. We would like to briefly explain some major changes in the revision.

With regard to the Anti-Unfair Competition Law, which is notified in IP/N/1/CHN/10, the revision

was made in order to strengthen trade secret protection. The main changes include: (1)

the definition of trade secret is improved; (2) the scope of trade secret protection is expanded. We made it explicit that hacking into the electronic information system to obtain right holders' trade secrets is recognized as trade secret infringement. We also incorporate natural, legal and unincorporated organization other than business entities into the scope of the responsible parties for infringing trade secret; (3) we enhance legal liability for infringing trade secret; and (4) there is a transfer of burden of proof in civil procedures concerning trade secret infringement.

As for the Trademark Law, which is notified in document IP/N/1/CHN/11, the revision mainly

focuses on two aspects: firstly, we effectively regulate bad faith trademark registration and secondly, we strengthen trademark protection by increasing the amount of compensation for infringing trademarks.

China would like to thank the Secretariat for building up a user-friendly electronic submission and notification system. My delegation emphasizes the importance of transparency in Members' IP

system and will continuously fulfil its TRIPS notification obligation.

Russian Federation

The Federal Law of the Russian Federation of 26 July 2019 N 230-FZ amended Part Four of the Civil Code of the Russian Federation (CCRF). Under the Federal Law, Geographical Indications (GIs) were introduced into the CCRF as a separate object of IP rights. A GI is defined as a designation identifying goods originating from the geographical territory, where a certain quality, reputation or other characteristics of the goods are largely determined by their geographical origin. The Federal Law sets forth the requirements for GIs, the list of persons entitled to registration and acquisition of

exclusive right to GIs, as well as the rules for its registration and legal protection.

Geographical Indications will coexist with the appellations of origin of goods (AO) in Russian legislation.

For the registration of GIs, it is sufficient that the goods have a quality, reputation or other characteristics which lead the consumer to associate them with a certain territory of origin.

It is sufficient for GIs that one stage of production takes place in the territory of origin, while AO requires that for all stages of production significant for the acquisition of special qualities of

the goods take place in the territory of origin.

As noted by the World Intellectual Property Organization, GIs can be used in respect of agricultural products, foods, wines and spirits, handicrafts and industrial goods. GI can play an important role in sales and distributions, as GIs directly refer to the place where the goods acquired certain qualities that are significant for consumers. Therefore, GI can be used as an effective tool to promote regional brands of the Russian Federation, which is an important national initiative in the IP field, and to enhance competitiveness of goods both domestically and worldwide.

The Federal Law shall come into force on 27 July 2020. Some enforcement provisions will enter into force on 28 July 2025.

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Brazil

Right before the last TRIPS Council meeting, Brazil had notified two resolutions of our national patent office regarding our Patent Backlog Elimination Plan. Both are available in English. Since these notifications were not discussed in the last meeting, I would like to present them now.

By these resolutions, it is now possible to use search results held by patent offices in other countries and by international or regional organizations to expedite technical decision-making at

preliminary stages of patent examination. This strategy is one of the core elements of our Patent Backlog Elimination Plan, which aims to reduce 80% of pending requests by 2021. Our aim is also to reduce the average concession time to about two years from the examination request.

In that regard, I am happy to announce that the program is being very successful so far. Preliminary figures point to a 18.5% reduction in the backlog in just 5 months. If the pace continues,

the goal of reducing the stock of pending requests by 80% within two years will be met. In 2019,

we also experienced a 2.8% increase in patent applications compared to 2018, a reversal of the downward trend that had been in place since 2013.

These efforts reflect Brazil's vision of the fundamental role of intellectual property for economic development. Important steps are being taken to improve our legal framework and promote a predictable and stable environment for innovation.

Hong Kong, China

Hong Kong, China submitted two notifications on 16 January 2020, IP/N/1/HKG/33 and

IP/N/1/HKG/34, to notify the TRIPS Council of the commencement of amendments to our patent legislation, in compliance with Hong Kong, China's obligations under Article 63.2 of the TRIPS Agreement.

The amendments are made to the Patent Ordinance and its subsidiary legislation, the Patent General Rules, for three purposes:

• To set up a new system for enabling direct filing of applications for and grant of standard patents, known as "original grant" patents, in which both pre-grant formality and

substantive examinations are required;

• To refine the pre-existing short-term patent system by various measures, including the introduction of a post-grant substantive examination mechanism for short-term patents; and

• To prohibit the use of certain misleading or confusing titles and descriptions relating to provision of patent agency services as an interim measure pending the establishment of

a full-fledged regulatory regime for patent agency services.

The legislative amendments were effective from 19 December 2019.

Let me briefly introduce the main feature of the new original patent system. The new system enables applications for two types of patents in Hong Kong, China, namely, standard patents with a maximum protection term of 20 years; or short-term patents with a maximum protection term of 8 years.

With the new system, a standard patent application can be filed directly in Hong Kong, China

via the original grant patent without the pre-condition of filing an earlier application outside the territory. Such an application is subject to formality examination as well as substantive examination for determining the patentability of the underlying invention.

Alternatively, the applicant can request a re-registration based on an earlier application filed with the patent office in the Mainland China or the United Kingdom, or the European Patent Office.

The new system helps reduce the patenting costs and time for obtaining standard patents. Standard patent applicants may choose to use the original grant patent or the "re-registration" route

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according to their individual business needs. Hong Kong, China has a strong pool of professionals to offer patent applicants advice on their best patenting strategies. The reform of the patent system promotes innovation and attracts enterprises to set up R&D operations in Hong Kong, China, thereby facilitating the development of our innovation and technology sector.

Chinese Taipei

I am pleased to report that we duly notified to the TRIPS Council on the 26 November 2019 our

amendment to the Enforcement Rules of the Patent Act in documents IP/N/1/TPKM/25. The changes are as follows: Provisions about division applications upon approvals have been inserted into the Patent Act amended on 1 May 2019, so the corresponding rules in Article 29 of the Enforcement Rules of the Patent Act were deleted. Also, in conjunction with the Patent Act stipulating that patent files deemed worth preserving by the Specific Patent Agency shall be permanently kept, types of patent cases whose files worth preserving were added to Article 89-1 of the Enforcement Rules.

Article 90 of the Enforcement Rules specifies the date on which the amendments should enter into force.

The amendment entered into force on 1 November 2019.

United Kingdom

The United Kingdom has always been a strong supporter of the multilateral trading system and intends to use its role in the WTO in 2020 to support efforts to strengthen the multilateral rules-based trading system, and to modernise and build confidence in the WTO.

The United Kingdom is committed to a balanced and effective intellectual property regime, and so we have introduced a number of legislative changes since we last updated the Council on our IP laws and regulations, in accordance with Article 63.2 of the TRIPS Agreement. A transparent IP regime is essential for the growth of our IP intensive industries, including the creative industries,

technology, agricultural products, healthcare and the life sciences. Notifications to the WTO are an important part of this regime.

In consideration of the Chair's encouragement for Members to update any outstanding

notifications, and the importance the United Kingdom attaches to TRIPS transparency arrangements, we have begun preparations to update our notifications to the WTO Secretariat, using the e-TRIPS system. We will be making our first notifications shortly, which will be on legislation changes relating to trademarks and industrial designs, ahead of the next TRIPS Council in May.

Further information setting out some of the implications of the United Kingdom's departure from the European Union in the WTO can be found in our communication WT/GC/206 circulated to

the General Council on 1 February 2020.

The United Kingdom looks forward to engaging with all WTO Members in our collective effort towards defending and improving the multilateral trading system.

Saudi Arabia, Kingdom of

I would like to inform you that the Kingdom of Saudi Arabia has recently submitted two notifications to the TRIPS Council concerning replacement of Saudi laws that had been notified previously under Article 63.2 of the TRIPS Agreement.

Saudi Arabia's Council of Ministers amended the Saudi Copyright Law, introducing two changes:

1. First, replacing the Ministry of Culture and Information with Saudi Authority for Intellectual Property; and

2. Second, regarding the decision-making function under the Copyright Law, replacing the Minister with the Board of Directors of the Saudi Authority for Intellectual Property.

As a result, the Article currently reads: "Decisions of the Committee shall be made by majority vote, which shall be endorsed by the Board of Directors".

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Thus, the adoption of the decisions issued by the Committee must be approved by the Board of Directors of the Saudi Authorities for Intellectual Property, and no longer involve Ministerial approval. The Board is composed of a President and 15 members of both government and private sectors.

2 REVIEW OF NATIONAL IMPLEMENTING LEGISLATION

No statements were made under this agenda item.

3 REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B)

4 RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON BIOLOGICAL DIVERSITY

5 PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE

Brazil

Brazil's position in this matter remains unchanged. We remain convinced that the TRIPS Agreement should be amended to include a requirement for the disclosure of origin of genetic

resources in patent applications.

We believe that a multilateral provision on disclosure is the most effective means to protect genetic resources as determined by the Convention on Biological Diversity. This would increase the legal security of the system as a whole.

We also take this opportunity to invite Members to engage constructively in discussions on the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. As we all know, the IGC is mandated to undertake "text-based negotiations

with the objective of reaching agreement on a text(s) of an international legal instrument(s), which will ensure the effective protection of traditional knowledge (TK), traditional cultural expressions (TCEs) and genetic resources (GRs)". The WIPO Assemblies renewed this mandate in October 2019. We therefore urge delegations to exercise flexibility so that we can advance in this pressing issue. It is within our expectation that a diplomatic conference be convened to negotiate an instrument as soon as possible. This will enable the multilateral IP system to provide a concrete answer to the rights of countries hosting a rich biodiversity.

India

The issues under agenda items 3, 4 and 5 have been on the Council's agenda for a long time. In our previous statements, we have underlined in detail the need for an international enforceable regime to end the misappropriation of genetic resources and traditional knowledge, happening especially in biodiversity-rich countries. India is a country rich in traditional knowledge associated with biological resources. The TRIPS-CBD linkage is important for all countries as it seeks to address

biopiracy. We need to move forward on the long-standing issues of the TRIPS-CBD linkage, GI register and GI extension on the basis of the modalities contained in document TN/C/W/52.

The Doha Ministerial Declaration, in paragraph 19, had tasked the TRIPS Council to examine the relationship between the TRIPS Agreement and the CBD, as well as the protection of traditional knowledge and folklore. It also mandated that while doing so, the Council should be guided by the objectives and principles set out in the TRIPS Agreement and should fully take into account the development dimension. We need to fulfil this mandate. The credibility of the WTO as an institution

was being undermined by not implementing a Ministerial Decision for almost 19 years.

As regards the TRIPS Council being the appropriate forum to discuss these matters, when developing countries argued in the late eighties that TRIPS did not belong to GATT as WIPO existed as a functional organization to deal with IP issues, the developed countries refused to accept that argument. Now, when we seek that the TRIPS Agreement be amended to address the concerns of biopiracy, we are being shown the door to WIPO, where the IGC process has not been able to make

any headway since years. Given the enforceability of the TRIPS Agreement and the fact that much

of the misappropriation is a consequence of trade, there is a need and mandate to build the linkage between the TRIPS Agreement and the CBD under the aegis of this Council.

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India is also of the view that a briefing by the CBD Secretariat on the latest developments in the implementation of the Nagoya Protocol would be very useful for the Members of this Council and we support updating of three factual briefs by the Secretariat on these issues.

Bangladesh

On agenda items 3, 4, and 5, the position of Bangladesh has not changed. We reiterate our position for the sake of record.

On agenda item 3, the issue of the review of the provisions of Article 27.3 (b) of the TRIPS Agreement, Bangladesh does not support the patenting of life forms comprising plants and animals. We call for a review of this Article in order to protect interest of developing countries and LDCs from the negative effects of this provision on the key sectors that affect their livelihood such as agriculture, health, food, and climate change. This could help ensure, inter alia, food security and

preserve the integrity of rural and local communities. Patenting of life forms should be prohibited.

On the relationship between the TRIPS Agreement and the CBD, Bangladesh holds that States have the right and duty to protect their traditional knowledge and genetic resources. There is, therefore, a need to amend the TRIPS Agreement with a view to requiring applicants of patent relating to biological materials to provide information on the source and country of origin of biological resources and traditional knowledge used in the invention.

In addition, applicants must show evidence of prior informed consent from, and benefit sharing arrangements with, the authorities and/or persons under the relevant national regime.

This disclosure requirement, which is consistent with the transparency principle established in the multilateral trading system, will help reduce the number of erroneous patents and biopiracy.

Bangladesh believes that traditional knowledge should receive legal recognition because its protection could as well contribute significantly to the achievement of the sustainable development

goals.

Nigeria

Our intervention will be in respect of Agenda items 4 and 5. I would want to recall previous

statements made by Nigeria on these subject matters and we reiterate that the need for the mutual supportiveness of the TRIPS Agreement and the Convention on Biological Diversity cannot be over emphasized. Enhanced corporation of the TRIPS Agreement and other relevant international organizations and international instruments remain a basic principle of the TRIPS Agreement. We are in support of the harmonization of the TRIPS Agreement in order to be consistent with the CBD.

Traditional communities continue to be negatively impacted as a result of the illegal exploitation

of their biological resources or associated traditional knowledge. My delegation is of the view that in order to develop a sound and viable technological base in developing countries and LDCs, any

utilization of genetic resources from these regions must involve sustainable use in order to conserve biological diversity, and must show evidence of a fair and equitable sharing of benefits, as are the principles of the CBD.

As has been proposed in past African Group proposals, Article 29 of the TRIPS Agreement ought to be given more force to include traceability and a prior informed consent from the source, in

respect of any product manufactured from the utilization of genetic components or traditional knowledge and folklore. In other words, full disclosure of the origin and source of any genetic resource or associated traditional knowledge should be made in exchange for patent protection. We call upon our developed country partners to foster strategic collaborations with relevant countries towards developing a mechanism where the patent applicants in their respective countries will be mandated to disclose the actual source of any genetic material or TRFK utilized by them during the manufacturing of their products. This will go a long way in the administration of benefit sharing

with the original owners.

The full disclosure requirement will not only be beneficial to Nigeria in terms of access to benefit sharing, but it will also on the other hand, improve the quality of our substantive patent examination, which will in turn ensure the validity of patent grants in our country.

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Finally, we urge Members to consider collaborating with each other both regionally and internationally, in order to achieve this mutually beneficial goal.

China

China attaches great importance to the TRIPS-CBD linkage issue and participated in a lot of useful discussions in this Council. We call for Members' continuous involvement in this discussion.

Regarding the substance, China has two points: (1) we note that in previous meetings

the majority of Members, including China, supported amending the TRIPS Agreement so as to ensure the mutual supportiveness of the TRIPS Agreement, the CBD and its Nagoya Protocol. We believe that setting up a reasonable system for prior informed consent and benefit sharing could ensure better protection for genetic resources; (2) China puts special emphasis on the disclosure of genetic resources in the process of patent application. China has provided detailed suggestions on improving

the transparency on genetic resources utilization, preventing the misappropriation of genetic

resources and traditional knowledge, and preventing the grant of erroneous patents in two joint proposals contained in documents TN/C/W/52 and TN/C/W/59.

As regards the procedure, China has three points: (1) we believe that the discussion in the WIPO IGC could not hinder Members from finding a solution in the WTO; (2) we support inviting the CBD Secretariat to brief on the Nagoya Protocol; and (3) China hopes that the Secretariat could update the three factual notes.

Indonesia

We would like to reiterate our position that we support the negotiation which incorporates the key provision of the CBD related to the disclosure requirement, fair and equitable benefit sharing, and prior informed consent principle into the TRIPS Agreement. We consider that the inclusion of a mandatory disclosure requirement as a requirement in patent applications will contribute to prevent

the misappropriation of genetic resources and associated traditional knowledge as well as to improve transparency of the utilization of genetic resources and associated traditional knowledge. In addition, the presence of disclosure requirements on the TRIPS Agreement would encourage Members to

create databases to promote the principle of transparency and efficacy of the provisions related with genetic resources and associated traditional knowledge.

Indonesia underlines that genetic resources and associated traditional knowledge should be utilized in an appropriate manner that ensures the fair and equitable benefit sharing through mutually agreed terms in accordance with the objectives of the UN-CBD and Nagoya Protocol. In our view, fair and equitable benefit sharing can only be achieved through the inclusion of mandatory

disclosure requirement into the IP regime.

Kenya

This statement concerns agenda items 4 and 5. The protection of biological resources, traditional knowledge and folklore presents an important developmental issue for Kenya. In this regard, Kenya fully supports negotiations on the TRIPS Agreement and the Convention on Biological Diversity (CBD).

Kenya believes that the TRIPS Agreement and the CBD should be implemented in a mutually

supportive manner and considers that the TRIPS Agreement should be amended to include a provision making it mandatory for a patent applicant relating to biological resources and/or associated traditional knowledge and folklore to disclose the source and country of origin of the biological resources and associated traditional knowledge used in the invention. In addition, they should also provide evidence of prior consent and equitable benefit sharing under the relevant national law.

We believe that to develop a sound and viable technological base in developing countries and

LDCs, any utilization of local genetic resources must involve their sustainable use in order to

conserve biological diversity.

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Finally, Kenya continues to encourage the engagement of the Director General in this mandated consultative process on the relationship between the TRIPS Agreement and the CBD. We look forward to the outcome of this kind of consultations and request other Members to engage constructively in these negotiations, taking into consideration that this issue is one of high priority for developing countries since they are often victims of biopiracy. These dishonest practices must be combatted effectively to facilitate the sharing of the benefits gained from the exploitation of such

resources.

South Africa

South Africa would want to recall its previous statements on items 3, 4 and 5.

Ukraine

Regarding agenda item 4, Ukraine follows discussions on this issue in the TRIPS Council meetings and shares the opinions of the WTO Members concerning its importance. Ukraine has

started its respective ratification process regarding the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (CBD).

Ukraine supports suggestions of delegations concerning updating by the WTO Secretariat the factual notes on the TRIPS Council`s discussions with respect to the relationship between the TRIPS Agreement and the CBD and the request to invite the CBD Secretariat for briefing the TRIPS Council on the Nagoya Protocol.

United States of America

The position of the United States on these issues has not changed.

Regarding genetic resources, traditional knowledge and folklore, we continue to believe that WIPO serves as the best forum to address these issues. The WIPO IGC is looking at addressing unresolved issues and working on a common understanding of core issues, using an evidence-based approach and examples of national experiences. The United States will continue to engage in technical discussions at WIPO's IGC and looks forward to hearing more from the demandeurs

regarding data supporting their position on this issue.

With respect to the various requests made today, the United States is not in a position to support them, but remains open to discussions, including bilaterally with delegations in between and at the margins of the TRIPS Council meetings.

Switzerland

Switzerland supports the introduction of a non-burdensome requirement into the TRIPS

Agreement to disclose the source of genetic resources and traditional knowledge in patent applications for inventions directly based on such genetic resource or knowledge.

Switzerland is convinced that such a provision will promote the mutual supportiveness of the TRIPS Agreement and the CBD, and through enhanced transparency, also the better understanding and acceptance of the benefits of the patent system and the protection and innovation incentive mechanism it provides, in particular in relation to inventions in the field of biotechnology.

In 2008, a group of 109 WTO Members, the so-called W52 coalition, representing 2/3 of

the membership, submitted to the TNC a proposal for modalities for three outstanding implementation issues.

Next to the proposal for a disclosure requirement for genetic resources and traditional knowledge in patent applications, this proposal concerns the extension of the effective level of Art. 23 of the TRIPS Agreement on the protection for geographical indications to all products as well

as the multilateral register for geographical indications which the TRIPS Agreement mandates to be established.

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Should Members decide a WTO work programme at the forthcoming MC12 (in Nursultan), these long outstanding implementation issues will need to be taken into account in view of reaching mutually agreeable solutions for them.

Finally, Switzerland can lend its support to the two procedural proposals, one concerning the update of the factual notes of the Secretariat, summarizing the Council's discussion between 2000 and 2006, the other to invite the CBD Secretariat to brief the Council at one of its next regular

meetings about the Nagoya Protocol of the CBD.

Japan

We have discussed this agenda at length during a series of meetings of the TRIPS Council. This delegation, therefore, believes that our position is well-recognized among Members, so we would like to make our intervention brief, highlighting some major points.

The delegation of Japan would like to reiterate our position that the Convention on Biological

Diversity is by nature not relevant to the intellectual property system. In this regard, we need to seek appropriate ways to deal with the utilization of genetic resources. This means that we should bear in mind that any measures taken must not adversely affect the existing intellectual property system or hinder the creation of innovations utilizing genetic resources and associated traditional knowledge.

This delegation is firmly convinced that to include the disclosure requirement in the IP system would discourage industries from conducting research and development activities on biological

materials. This is the very consequence of the disclosure requirement that Japan has been concerned about. The same holds true for not only developed countries but also emerging and developing countries. Japan believes that the disclosure requirement is not an adequate means for dealing with the utilization of genetic resources.

In line with the above-mentioned position, we firmly believe that the protection of GRs, TK and Folklore should be designed in a manner that both supports creativity and innovation.

In addition, this delegation believes the WIPO IGC is the most appropriate forum for holding

technical discussions on genetic resources, traditional knowledge and folklore from IP aspects, and the IGC meetings will be held this year. This delegation has been actively contributing to the discussions at the IGC meetings, making various proposals, and remains willing to contribute to evidence-based discussions on these issues in a constructive and effective manner.

Canada

With respect to the relationship between the TRIPS Agreement and the CBD, Canada continues

to believe that the TRIPS Agreement and the CBD are complementary, and that there is therefore no need to amend the TRIPS Agreement in this regard.

On the protection of traditional knowledge and folklore, Canada welcomes the ongoing work of the WIPO IGC. In particular, the IGC has served, and continues to serve, as an important venue that brings together the necessary technical expertise and views, to identify evidence-based, balanced, and mutually beneficial approaches to these issues. Canada has been, and continues to be, an active and committed participant in the work of the IGC, and welcomes the concrete discussions and

exchanges of national experiences in that venue, which remain key to considering the issues at hand.

With respect to procedural matters at the TRIPS Council, as Canada has previously noted, and without prejudice to our position on substantive matters, Canada can continue to support a procedural briefing from the CBD Secretariat to the TRIPS Council, should there be sufficient interest from other Members on the matter. Similarly, without prejudice to Canada's national positions on these issues, Canada could also support the compilation of the three factual notes on

the TRIPS Agreement and the CBD by the WTO Secretariat. As it has been previously noted in this

committee, Canada remains of the understanding that this would be an information collating exercise.

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Bolivia, Plurinational State of

Bolivia contends that natural processes and environmental functions cannot be commercialized, as this would, inter alia, raise concerns for many peoples and cultures of the world.

We therefore reiterate our position against the patenting of all life forms in their natural state or one of the components thereof in insolation, including plants and animals and parts thereof, gene sequences and microorganisms.

Bolivia considers that Article 27(3)(b) of the TRIPS Agreement is closely related to the Convention on Biological Diversity and that the provisions of the Agreement must therefore be supplemented in order to fully protect genetic resources and traditional knowledge and a balance between the two instruments must be struck. Bolivia supports any initiative that would foster such a balance.

In the same vein, Bolivia notes that the absence of a balanced and effective framework to

protect traditional knowledge and folklore has enabled the proliferation of illicit practices such as misappropriation and biopiracy, leaving developing countries in particular without appropriate mechanisms to provide adequate protection. It is therefore necessary to update the TRIPS Agreement irrespective of whether any negotiations on the matter are taking place within the World Intellectual Property Organization.

6 NON-VIOLATION AND SITUATION COMPLAINTS

South Africa, On Behalf of the African Group

I deliver this statement on behalf of the African Group. At the outset, we thank you for your report back on the consultations that you have held on this important topic.

The African Group is of the opinion that non-violation and situation complaints are not applicable to the TRIPS Agreement. Introducing such a remedy in the context of the TRIPS Agreement would undermine the security and predictability provided by the multilateral trading system. Non-violation complaints could enable legal challenges to regulatory and public policy measures that may be consistent with the obligations under the TRIPS Agreement.

The African Group notes with interest that the Protocol on the Amendment of the TRIPS Agreement introduced Article 31bis, paragraph 4 reads as follows: "Members shall not challenge any measures taken in conformity with the provisions of this Article and the Annex to this Agreement under subparagraph 1(b) and 1(c) of Article XXIII of GATT 1994." This amendment constitutes a tacit recognition that non-violation and situation complaints may affect flexibilities under the TRIPS Agreement and explicitly makes this remedy inapplicable to the article which deals with compulsory

licences for countries with insufficient manufacturing capacity.

The lapse of the TRIPS NVC moratorium may have significant implications for the developing countries. In particular, it can significantly limit the ability of Members to use the TRIPS flexibilities to advance public health objectives. If non-violation and situation complaints were to apply to disputes under TRIPS, measures implemented in furtherance of national and regional policies on the use of TRIPS flexibilities can be challenged in a WTO dispute. This could adversely affect developing countries, especially in Africa who are overwhelmed by disease burdens and at the same time face

serious resource constraints, and their ability to ensure legal certainty and reliable public health and other policy interventions that would support sustainable human capital development. The rising spectre of unilateral measures and the impact of a dysfunctional Appellate Body further impacts the legal certainty of the use of TRIPS flexibilities should non-violation and situation complaints become applicable to the TRIPS Agreement.

The African Group also interprets Article 64.2 to mean that in case the moratorium on the application of non-violation and situation complaints is not extended in June 2020,

the complaints would not automatically apply to the TRIPS Agreement. We further understand that

these disputes cannot apply until such a time that Members agree to the scope and modalities of their application in respect to the TRIPS Agreement.

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The African Group sees no linkage between the moratorium on the application of electronic transmissions and the moratorium on the application of non-violation and situation complaints to the TRIPS Agreement. The respective moratoria should be judged on their own merits, there is no historic link since the TRIPS moratorium predates the e-commerce moratorium, even though Members have had a practice to link the two. This linkage is artificial and should not be maintained.

In closing, the Africa Group remains convinced that non-violation and situation complaints

should not apply to the TRIPS Agreements and would be inconsistent with the long-term best interests of the multilateral trading system and all its Members. We therefore propose that the Council for TRIPS recommend to the next Ministerial Conference that complaints of the type provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 shall not apply to the settlement of disputes under the TRIPS Agreement.

Bangladesh

The position of Bangladesh on the proposed lifting of the moratorium on non-violation and situation complaints is well-known. We are in favour of establishing a permanent moratorium.

Bangladesh invites the views and ideas of our friends who were proponents of the application of the non-violation and situation complaints on the scope and modalities of the proceedings as required by Article 64.3 of the TRIPS Agreement. The Council needs to be better informed, and only then it will be in a better position to examine and consider the proposal.

During the General Council meeting in December 2019, the Moratorium on TRIPS NVSC has

been extended temporarily till MC 12. The concept of NVSC appears to be still an unknown territory, and unless the scope and modalities are outlined first, we cannot go any further in this discussion. As we perceive it now, if non-violation and situation complaints are made applicable to TRIPS, any issue can be brought as 'cases' under this umbrella. Clear delimitations, therefore, need to be conceived, defined and thoroughly examined first.

Bangladesh reiterates its readiness to constructively engage with Members on this issue further.

Egypt

Egypt fully supports the statement made today by South Africa on behalf of the African Group.

We would like to highlight the following points: (1) Non-violation and situation complaints in our view should not be applicable to the TRIPS agreement. (2) The current moratorium is extremely important in enabling developing countries to use the TRIPS flexibilities, especially to advance their public health objectives. (3) The linkage between the electronic transmissions moratorium and the

TRIPS moratorium should not be maintained and each moratorium should be judged on its own merits.

Finally, Egypt supports the proposal that the Council for TRIPS recommend to the next ministerial meeting in Nur-Sultan to make the current TRIPS moratorium permanent or at least renewing it until MC13.

Indonesia

Indonesia's position on non-violation and situation complaints remains unchanged. As we have

conveyed in the previous meeting, we are still unconvinced with the urgency of the NVSC application in the TRIPS Agreement. We are concerned that the impact of NVSC application will disrupt the balance of rights and obligations under the TRIPS agreement. The absence of scope and modalities for NVSC would create uncertainty in the commitments and raise the standards for protection beyond what has been agreed upon initially.

Nigeria

We align ourselves with the statements made by the delegation of South Africa on behalf of

the African Group and will wish to add a brief comment regarding this agenda item.

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My delegation reiterates our position that non-violation and situation complaints under Article XXIII(b) and (c) of the GATT should not be allowed to apply under the TRIPS Agreement. As this may result in preventing our policy makers from effectively utilizing the flexibilities available in the TRIPS Agreement. Specifically, this may restrict our power to make regulations and policies for public health with the aim to enable access to medicines.

In terms of a possible way forward, we propose that the TRIPS Council recommend to

the upcoming Ministerial Conference that non-violations and situation complaints should not be allowed to apply under the TRIPS Agreement. We believe that it is time for all Members to suggest concrete direction on this issue as we have only a few months before the next Ministerial Conference. We thank the Chair for his continued work.

Chinese Taipei

We understand that there are concerns among Members over the applicability of non-violation

and situation complaints to the TRIPS Agreement.

We are looking forward to more in-depth substantive discussions among Members over the scope and modalities of the said non-violation and situation complaints applicable under the Agreement.

India

India's position on the issue of non-violation complaints under the TRIPS Agreement remains unchanged. Serious concerns remain on the debilitating impact that non-violation complaints in

TRIPS can have on the regulatory policy space of Members and on TRIPS flexibilities, thereby increasing the complexity in interpreting the TRIPS provisions. It can not only have a chilling effect on Member's exercise of their IP regimes but also severely restrain ability of Members to achieve public policy objectives.

The absence of non-violation complaints in the TRIPS context does not in any manner threaten or dilute the enforceability of TRIPS related rights and obligations. Introducing non-violation and situation complaints into the TRIPS Agreement is unnecessary and inconsistent with the interests of

the WTO Members. As such, any benefits arising from the Agreement can be adequately protected by applying the text of the Agreement in accordance with accepted principles of international law, without any need for introducing the legally uncertain notion of non-violation and situation complaints.

India looks forward to working with like-minded Members in making non-violation complaints inapplicable to TRIPS. We also wish to reiterate that until there is a consensus on the scope and

modalities of the applicability of NVCs to TRIPS, NVCs will not apply to the TRIPS Agreement.

China

We welcome the General Council decision adopted on 10 December 2019 to extend the moratorium to MC12, but we also note that this is an interim solution.

Like other Members, China believes that this longstanding issue needs a permanent solution and non-violation and situation complaints should not be applicable under the TRIPS context because of reasons stated clearly in IP/C/W/385/Rev.1. For example, the application of non-violation and

situation complaints will negatively impact the delivery of public health objectives.

Chile

Our delegation's position is well-known among Members. Moreover, we welcome the decision made at the last meeting of the General Council in December 2019 to extend the moratorium.

In our delegation's view, both formal and informal talks on this matter at the Council have

brought to light the need for more time to attempt to forge common understandings and consensus on the various aspects contained in the mandate of Article 64 of the TRIPS Agreement.

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For our delegation, this is an important matter, given its long history in Ministerial Conferences. We therefore consider it important to maintain the constructive dialogue between delegations and to give ourselves time to continue seeking common understandings on the matter.


The United States' position on this issue remains unchanged. We reiterate our support for allowing the current moratorium to expire so that Members may bring NVNI complaints in the future,

as appropriate.

As we have detailed in past interventions, NVNI claims have a long lineage in the WTO and in international trade law generally. The applicability of such claims to the WTO Agreements is the rule; their non-application is the exception. The TRIPS Agreement moratorium is the exception.

We continue to believe that WTO Members are being deprived of an important tool to enforce their rights under the TRIPS Agreement, which is why we support the expiration of the current

moratorium so that complaints of this type may be applicable to the TRIPS Agreement.

We remain of the view that the text of the WTO Agreements and dispute settlement rulings provide Members with sufficient guidance on the application of NVNI disputes to the TRIPS Agreement.

Russian Federation

Russian Federation as a co-sponsor of the document IP/C/W/385/Rev.1 maintains the position that provisions of paragraphs 1b and 1c of Article XXIII of GATT shall not apply to the settlement of

disputes under the TRIPS Agreement.

Switzerland

NVNI complaints (NVCs) are an exceptional remedy to ensure predictability and security to all Members under the WTO Agreements. Article 64 of the TRIPS Agreement confirms that NVCs are applicable to TRIPS after the expiry of the moratorium. The purpose of the moratorium is to provide Members the opportunity to examine the scope and modalities of NVCs in the TRIPS context, who feel that additional modalities to those provided in the DSU are needed for such complaints under

TRIPS.

My delegation repeatedly declared that it is open and ready to engage in discussing such proposals. However, over all these many years during the extended moratorium, we have not seen any delegation in this Council submit such a proposal.

Therefore, Switzerland sees no merit in making a recommendation to Ministers at MC12 to further extend the moratorium. Rather NVCs will also apply under TRIPS, when the moratorium

eventually will expire after MC12

Japan

This delegation would like to give recognition to the continuous efforts made by the Chair and Members in advancing discussion on this issue. Meanwhile, we also recognize that Members have not yet reached consensus on applicability or inapplicability of, or, if applicable, the scope and modality of, non-violation and situation complaints under the TRIPS Agreement.

Japan's view on this issue has not changed. Both clarity and predictability should be ensured

when applying non-violation and situation complaints to the TRIPS Agreement. From this point of view, making factual analyses on applicable specific and concrete circumstances of non-violation and situation complaints would facilitate examination in terms of the scope and modality of non-violation and situation complaints in the area of the TRIPS Agreement.

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Canada

Canada's longstanding position on this issue remains unchanged: the availability of NVNI claims under TRIPS would create legal uncertainty for Members. Canada recognizes that the current moratorium exists thanks to consensus, and we trust that Members can continue to discuss these issues in a collegial manner, especially in view of the high concentration of Members with concerns in this area. We wish to express our continued interest in participating in any consultations that take

place on this issue amongst other interested Members.

Norway

My delegation would like to reiterate that in Norway's view, NVSCs should not be applied to the TRIPS Agreement, and we support a continuation of the moratorium.

Korea, Republic of

I will associate myself with the comments from Canada, Norway and Japan.

Bolivia, Plurinational State of

Bolivia's position on this agenda item has not changed and was presented yesterday before the General Council. It is our view that non-violation complaints are outside the scope of the TRIPS Agreement.

Benefits under the TRIPS Agreement could be adequately protected by applying the text of the Agreement, in accordance with the principles of international law, and without introducing this legally uncertain notion; in no way does the absence of non-violation complaints jeopardize the

enforceability of the rights and obligations under the Agreement. On the contrary, their inclusion in

the Agreement could put the rights of intellectual property owners at odds with the ability of governments to legitimately implement their regulatory policies, even limiting their sovereign capacity to introduce new social, economic, health-related and environmental development measures.

Given the lack of consensus on the matter, it is our delegation's opinion that the moratorium should be extended until the following Ministerial Conference.

7 REVIEW OF THE IMPLEMENTATION OF THE TRIPS AGREEMENT UNDER ARTICLE 71.1


8 REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2


9 SEVENTEENTH ANNUAL REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON

THE IMPLEMENTATION OF ARTICLE 66.2 OF THE TRIPS AGREEMENT

WTO Secretariat

Thank you, Chair, for the opportunity to report on the Workshop on the implementation of Article 66.2. As you have mentioned, the workshop was held immediately prior to this session of the Council. You might recall that, at the request of the LDC Group, the Secretariat has, since 2008, organized a series of annual workshops back to back with the last TRIPS Council meeting of the year. The workshops aimed to enable informal dialogues between delegates from the reporting

developed country Members and LDC Members on the implementation of Article 66.2.

Given that we received strong positive feedback on the improved format of the workshop from both reporting country Members and LDC Members, we decided to continue this practice this year.

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This year, 21 capital-based experts from 15 LDCs as well as Geneva-based delegates, participated in the Workshop. Most of them have direct relevant responsibilities for the issues of technology transfer and IP protection back in capital. At the Workshop, LDC participants 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. Meanwhile, experts from eight reporting country Members presented and explained their 2019

reports. Building on last year's experience, we believe the Workshop helped to improve stakeholder participation, and to enhance the quality of the annual dialogue between reporting country delegations and the LDC delegations. It also helped LDC Members to make effective use of the transparency mechanism concerning technology transfer measures under Article 66.2.

This year, we further strengthened our partnership with other organizations, in view of the synergies to be gained from implementation of Article 66.2 in parallel with complementary

technology transfer programs and the benefits of cross-fertilisation from reports on practical

experiences. Our partners WIPO, the UN Technology Bank for LDCs, ARIPO, OAPI and the OECD reported on their activities in this area. For the first time, colleagues from other WTO divisions, especially Trade and Environment Division and Agriculture Division they reported on concrete technology transfer projects in specific priority sectors, undertaken within their programs.

The active participation of these partners was a valued feature of this year's programme. The practical insight and policy content of their presentations left a strong positive impression for the

participants. We are pleased to record our gratitude to them.

As ever, the core of the Workshop was an enriched informal and practical dialogue between the LDC Members and the reporting Members. We express our appreciation to them for their thoughtful presentations, active engagement, and practical support, as well as to the LDC Group, and its coordinator, HE Ambassador Makaila of Chad, and LDC coordinator on TRIPS issues for their continuing and invaluable guidance and support for this process. We also express our thanks to you, Mr Chair, for your support by delivering opening remarks at the Workshop.

As indicated at the last Council meeting, the Workshop comprises a two-day workshop segment and a one-day reporting and review segment within the formal meeting of the TRIPS Council. Therefore, as you have mentioned, Mr Chair, the workshop arrangements provided for the 21 capital-based LDC experts to attend today's TRIPS Council meeting with their national delegations. We hope that their participation will enrich Members' discussion under this agenda item. I conclude by thanking them for their indispensable role in advancing our work in this area.

Chad, on behalf of the LDC Group

I am making this statement on behalf of the Group of least developed countries (LDC Group). The Chair of the LDC Group wishes to thank the WTO Secretariat, the experts, our partners the developed countries who were present at that workshop that was held over the past couple of days. At this Workshop, all of these entities helped to shed light on the concept of incentives and the transfer of technology, and their contributions were very rich and interesting, and this helps LDCs

to move towards effective implementation of Article 66.2, and to boost the mechanisms for

transparency with regard to the transfer of technology. This workshop also enabled us to highlight the binding nature of Article 66.2 and enabled us to be very clear about the distinction that must exist between implementation of Article 66.2 as compared to Article 67 which deals with technical cooperation.

Now, in regard to the particular challenges that LDCs are faced with, throughout the technology sectors, during this Workshop the coordinator mentioned lags in the areas of agriculture and trade and services, in industry. Regarding all of these lags, LDCs made use of Article 66.2 and made it

one of their priorities in the work of the TRIPS Council, but also in other work here at the WTO. We believe that this Article enables LDCs for example to enhance their agricultural production, it also enables SMEs and LDCs to be competitive on the international market and especially enhance our improved integration in world trade.

For nearly two decades the LDC Group has been participating in this annual workshop on the presentation of reports submitted by developed country Members on implementation of

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Article 66.2. This is a very interesting and relevant exercise and the LDC Group hopes that we can continue this and expand on it.

The LDC Group has always shown that it has been proactive in this respect and it will continue to be proactive here in this Council but also in our bilateral meetings with each and every developed country Member. From our discussions during our workshops it has arisen that some developed country Members have shown willingness to find a common definition of incentive to enterprises and

institutions in their territories and the technology transfer. Others believe that Article 66.2 does not present an obligation to transfer technology to LDCs, but the aim is to help LDCs to have favourable conditions to benefit from technology transfers. Article 66.2 presents developed countries with an obligation, I insist on that, it asks developed country Members to provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer and then it is for the enterprises and institutions targeted by Article 66.2 to act.

We believe that during the TRIPS meeting of last February 2019 a proposal that we deemed rather relevant, was on establishing a focal point for developed country Members and another focal point for LDCs. We think that that would be quite useful indeed to help us to assess the implementation of Article 66.2 and therefore we hope that this provision can be established so that we can specifically assess the situation on the ground through that particular mechanism. This will also help highlight LDCs priorities as regards technology transfer. In addition, the WTO Secretariat also set up a e-TRIPS platform, we believe that it is quite interesting and perhaps this can be further

fine-tuned and improved by involving LDCs genuinely in order to look at implementation on the ground of this article through statistics but also we need to highlight LDC priorities in this platform.

The LDC Group wishes to thank all Members here who have presented their annual reports and who regularly report on their contributions under Article 66.2. We take note of the efforts made by certain developed country Members to promote and encourage technology transfer to LDCs. The LDC Group underscores that the contribution of experts and exchanges that have taken place in the workshops and the clarity provided, this will enable all of us, developed country Members and

LDCs to continue our dialogue but also to reach joint mutual understanding on these incentives to enterprises and institutions in their territories and of technology transfers in that context.

Lastly as recalled earlier in introductory remarks on this agenda item, the LDC Group made a proposal for a new template for annual reporting on technology transfer to LDCs, this is again under Article 66.2 of the TRIPS Agreement. The LDC Group believes that this proposed template will help streamline the reporting procedure to synchronise the current reporting variations and to

acknowledge the substance of contributions of developed country Members with precision on the basis of factual information. We believe that this proposal will enable us to make progress on this matter and help operationally implement Article 66.2 of the TRIPS Agreement. Our focal point of Bangladesh will perhaps provide more information on that.

Bangladesh

On this item, the delegation of Bangladesh echoes with the statement made by Chad on behalf

of the LDCs Group.

The delegation of Bangladesh welcomes the annual reports on the implementation of the provisions of TRIPS Article 66.2 submitted by the developed country Members. My delegation also thanks the Secretariat, particularly the great team of the IP Division, for organizing the two-day workshop on the implementation of TRIPS Article 66.2 on 4 and 5 February 2020. Like last year, this is a successful event attended by the capital-based and Geneva-based delegates from both the LDCs and the developed country Members. We are also grateful to the organizers for inviting the representatives of different Divisions of the WTO and WIPO, ARIPO, OPAI, OECD and the UN

Technology Bank for the LDCs and they have brought valuable perspectives based on their institutional experience and cutting-edge research. Many of the capital-based delegates from the LDCs and the developed countries are attending the TRIPS Council meeting today. We thank them for their contributions in the Workshop through sharing their cases by candid and thought-provoking discussions and suggestions.

The common priority sectors for technology transfer in the LDCs, as identified by most of the

participants, are agriculture and food, public health, ICT, energy, water management, sustainable

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environment, and infrastructures to mitigate the adverse impact of climate change. This priority list will help the needs-assessment for the future schemes by the developed country Members for technology transfer initiatives to the LDCs. The workshop participants have also requested the Secretariat to continue organizing this workshop regularly, in presence of the experts from the LDCs and the developed countries. The delegation of Bangladesh fully endorses their call.

Participants from the LDCs have deeply appreciated the assistance received from

the developed country Members. However, they have also identified that many reports do not clearly give information on incentives provided to enterprises and institutions in the territory of the developed Members. Instead, these reports contain a mixture of the technical assistance programmes under Article 67 and a few technology transfer initiatives under Article 66.2. Some reports have listed initiatives like building sea-walls for protection from land erosion, construction of weather forecasting systems, research-grants for governance problems in the health sector,

humanitarian assistance to refugees, communication training to forest rangers, skill development

for young entrepreneurs and so on as 'technology transfer'. The mixture is not useful for the purpose of reporting under Article 66.2 of the TRIPS Agreement.

Bangladesh acknowledges that, to create a sound technological base in the LDCs, the LDCs need support from the developed country Members. TRIPS Article 66.2 in the legal text states point-blank that, "Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed

country Members in order to enable them to create a sound and viable technological base". The use of the modal verb 'shall' denotes an obligatory requirement. Article 66.2 states that the developed country Members are required to provide incentives to enterprises and institutions in their territories. The responsibility to provide incentives clearly falls on the developed country Members and not on the private sector entities and enterprises. On the scope of implementation of this Article, it is evident that the LDCs are not in the scene in the first phase. LDCs will come in the canvas in the next step, when the enterprises and institutions in developed countries will take further steps towards their

contribution in transferring technology to the LDCs.

The LDCs request the Members in the Council to consider designating focal points from both the developed country and least developed country Members to monitor the implementation status of TRIPS Article 66.2. Previously the proposal was tabled on behalf of the LDCs and the Members candidly discussed the issue at a number of previous meetings of this Council. This has also been recommended in the WTO workshop on implementation of TRIPS Article 66.2 in February 2019 and

also in the same workshop yesterday (5 February 2020). We should think of an effective monitoring mechanism to acknowledge the genuine contributions that the developed country Members have provided to the LDCs.

Today the LDC Group has presented a room document (RD/IP/37) that has proposed a new template of annual reporting on technology transfer to LDCs as stipulated in Article 66.2 of the TRIPS Agreement. Although marked as new, the proposed template does not demand any new information. It has only rearranged the issues from the previously tabled three specific submissions to the Council

for TRIPS (document IP/C/W/561 dated 6 October 2011, IP/C/W/640 dated 16 February 2018, and

RD/IP/24 dated 14 June 2018) with a view to bringing harmony in the annual reporting. Following the guidelines stated in these documents, some developed country Members regularly report their contributions under Article 66.2 of the TRIPS Agreement. However, the LDC Group understands that various 'not-so-specific' templates have been utilized for this exercise by many developed country Members.

Considering the clear call of Article 66.2 of the TRIPS Agreement, and to supplement RD/IP/24,

the LDC Group has done further work and proposes today a specific template for annual reporting. The LDC Group believes that the proposed template will help simplify reporting process, synchronize the current reporting variations and acknowledge the substantive contributions of the developed country Members with evidence and precision.

Bangladesh stands ready to engage in constructive discussion to further improve the proposed reporting template.

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United Kingdom

The United Kingdom is committed to implementing Article 66.2 of the TRIPS Agreement to promote and encourage technology transfer to least developed country Members. We will provide an update on two projects undertaken by the United Kingdom in recent years.

The project Geo-Referenced Infrastructure and Demographic Data for Development (GRID3) aims to transform the ability of governments, the private sector, development organisations and

civil society to use geospatial and demographic data for effective planning and implementation of key services.

GRID3 is working in Nigeria, Zambia, Mozambique, South Sudan and Democratic Republic of Congo and has conducted scoping missions to Tanzania, Ethiopia, Cameroon, Sierra Leone, Ghana, Burkina Faso, Mali and Niger.

The lack of basic information such as population distribution, population structure, settlement

maps, road networks, water bodies or administrative boundaries means that decisions such as where to target relief efforts, position polling stations and health centres, how to allocate resources at the subnational level or where to expand energy and internet access are based on out of date and incomplete information.

GRID3 has helped create and use high-resolution demographic data to address identified data needs, providing better local estimates of population which can be used to plan and deliver services and to identify populations which may not otherwise be identified.

Another example is the United Kingdom's support to Product Development Research. This project aims to develop new human health technologies, such as diagnostics, drugs and vaccines, and to ensure that they are acceptable, affordable and available to those that need them in low income countries.

The United Kingdom Government provides support to a number of different organisations including product development public private product development partnerships (PDPs), which are not for profit organisations based in a number of different countries, working with partners across

the globe, depending on the disease and type of technology being developed.

PDP investments have resulted in critically important products, including a new paediatric fixed dose TB drug, with over one million treatments distributed in 93 countries since its launch in 2016, as well as the development of two new vaccines to treat rotavirus for use in India.

The United Kingdom is happy to discuss its projects in more detail with Members at a later date.

Switzerland

Switzerland was pleased to participate in this year's workshop on Article 66.2 of the TRIPS Agreement and to receive more information on the priority sectors for technology transfer of LDCs. We would like to thank the Secretariat for its organization and for leading the workshop in an efficient and thorough manner. The constructive discussions held throughout the workshop, will certainly contribute to the continued cooperation on technology transfer.

It was particularly useful to be presented with some concrete examples of technology transfer

that have worked well in practice. This serves as an orientation for developed countries when developing incentive measures and planning tailor made projects together with LDC partners.

Switzerland is of the view that the presentations made by LDCs during the workshop should not only contain examples of past or current projects. We very much welcome that, several LDCs presented comprehensive project outlines during the workshop.

We would like to mention that the presentation by Myanmar at the Workshop on Article 66.2 last year was very helpful for us to understand what is needed by specific LDCs. In turn, Switzerland

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was able to respond to Myanmar's request for a bilateral project on IPRs, for which the planning of practical, needs-based activities has been finalized, and implementation has just begun.

Switzerland would like to thank the LDC Group for its document RD/IP/37. We need time to consult with the various competent agencies in capital responsible for issues relating to technology transfer and respective incentive mechanisms.

Switzerland remains committed to engage in the TRIPS Council's discussion on Article 66.2 of

the TRIPS Agreement and to further develop the incentive measures for companies and institutions in Switzerland to promote and encourage technology transfer to LDCs.


We thank the Secretariat for its efforts in organizing the workshop. We also welcomed

the robust participation of capital-based officials from LDCs. The United States appreciated the opportunity to present and share details on our most recent Article 66.2 submission

IP/C/W/656/Add.2.

We gained insight into the perspective and needs of LDCs and hope that the LDC Members also left the workshop with a better understanding of our extensive programmes and activities.

The United States continues to support a robust dialogue between developed countries and LDC Members in order to target incentives in a way that is most responsive to the self-identified technology transfer interests and needs of LDC Members.

Due to the many programmes and tailored work with our partners, adopting a standardized

template for reporting that specifies the type of incentive for each technology project might overly constrict developed country Members' ability to report and describe the full scope of incentives and technology transfer initiatives.

Of course, we are always willing to meet with interested Members to discuss ways to ensure that our programs and reports are as helpful as possible.

Canada

Canada would like to thank the Secretariat for organizing the thematic discussions and panels

during this week's workshop on the implementation of TRIPS Article 66.2, as well as to thank all participating Members that shared their experiences and insights for their constructive engagement.

Canada places great importance on the implementation of Article 66.2, as well as on the workshop as an opportunity to keep ensuring that our implementation of the 66.2 commitment remains responsive to the evolving needs and priorities of LDC Members in enabling them to create a sound and viable technological base. We have taken good note of those needs and priorities that

were identified and communicated by the LDC participants during the workshop.

As always, Canada would welcome any individualized feedback regarding its 2019 report. Moreover, Canada would be pleased to provide further information on the technology transfer projects and programs contained in its report upon request. We are committed to ensuring that our annual reports adequately convey the information that is of interest to LDC Members and will review with attention the proposal for a new model to which Bangladesh referred.

European Union

The EU and its member States thank the WTO Secretariat for having organised the technology transfer workshop and for having given the opportunity for the EU to present its Article 66.2 report on technology transfer.

The EU also appreciated the constructive spirit of the capital-based experts of the LDC

Members at the workshop. We believe that the discussion was very fruitful, and it will help us to design our projects to the needs of the LDCs. Since the EU has already presented its report at the

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October TRIPS Council last year and yesterday at the LDC workshop, in the interest of time, we will not repeat it.

The EU remains open to receive suggestions from LDC Members on their needs and priorities for potential future projects. The permanent contact points to send suggestions are the EU delegations in the given LDCs, because they have the necessary knowledge on the country concerned to evaluate the needs and the priorities expressed and explained by the LDCs. All these needs and

priorities are going to be channelled in by the EU delegations to the European Commission for further evaluation by a quality review group.

We encourage LDC Members to keep in close cooperation with the EU delegations to be sure that all their needs and priorities are perfectly reflected in the future projects. The EU also requested clarification from the WTO Secretariat on its future plans concerning the e-TRIPS database and its potential adaption to the template tabled by the LDC Members.

Japan

This delegation would like to thank the Secretariat for organizing the workshop on the implementation of Article 66.2 of the TRIPS Agreement, that was held back-to-back to this Council. The workshop worked to advance cooperative activities and enhance mutual understanding between developed country Members and LDC Members.

Japan will continue to make its utmost efforts to improve the business environment and make it even more conducive to transfer technology. We look forward to working further with LDC Members

in this context.

Norway

Norway puts great emphasis on fulfilling the obligation that follows from Article 66.2. We

submitted our report last September regarding the incentives provided in 2018. In short, our incentives are mainly directed to promote sustainable private sector investments in LDCs that imply transfer of technology.

My delegation would like to thank the Secretariat for organising the workshop on this important

issue earlier this week. It was a very interesting and useful exchange of information, particularly since LDC delegates explained their most important priority areas for technological development and their experiences.

Norway supports a continued dialogue with LDC Members, facilitated by the Secretariat, to explore ways to enhance the exchange of information further, so that the implementation of Article 66.2 can become ever more effective and useful to LDCs.

African Regional Intellectual Property Organization

I intervene on behalf of the African Regional Intellectual Property Organization (ARIPO) on this agenda item. Firstly, ARIPO associates itself with the statement made by the delegation of Chad on behalf of the LDCs.

This delegation also attended the Workshop on the Implementation of Article 66.2 of the TRIPS Agreement: Incentives for Technology Transfer, that was held in the past two days and was pleased to see that, thanks to the new format that was introduced last year, capital-based delegations can

now narrate the projects that are being undertaken in their respective countries related to technology transfer.

During this workshop it was made clear that for technology transfer to benefit the LDCs and foster innovation it is imperative that it be streamlined with the long-term visions, plans, strategies and developmental programmes adopted by the national governments but also to coordinate efforts with other UN agencies, multilateral organizations, intergovernmental organizations, private sector

and civil society active in technology transfer. Therefore, the focus shall be for developed countries

to undertake initiatives that are not limited to technical assistance but to promote actions that will effectively enable the transfer of technology and know-how for the benefit of LDCs in Africa in order

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to develop their absorption and adaptation capabilities with the view to build a viable technological base for development. ARIPO will continue providing support to its member States in this important topic and remains available to partners to any entity that wishes to assist LDCs to benefit from technology transfer and to foster innovation in their respective countries.

Allow me to conclude by expressing ARIPO's appreciation to the Secretariat for organizing this workshop. It is our hope that resources will be made available so that this event can be held on

regular basis in the future.

Australia

Australia submitted its Article 66.2 report to the Secretariat on 19 September 2019. We take our Article 66.2 reporting seriously and were pleased to explain our latest report at the workshop this week. We very much appreciated the comments and questions from LDCs we received and will

take these into account in future planning. We will consider the proposal made by Bangladesh

regarding the format for reporting.

Vanuatu

Vanuatu has continued and would like to continue to benefit from the incentives from the countries' implementation of Article 66.2 of the TRIPS Agreement. These incentives and programmes are aligned with our Vanuatu Sustainable Development plan for 2016 through 2030. I would like to impress upon the seriousness of examples offered by the developed countries. I would like to continue to see the following sectors to be addressed: climate and the environment and water which

would include incentives for environment and climate change, the promotion and establishment of long-term risk and evaluation methods for storm tides and waves, and cyclones in small vulnerable states, and for Vanuatu water sanitation which, for example, has been funded recently by New Zealand, and UNICEF had given us some support. Other sectors include food and agriculture processing, energy, health, and education.

Vanuatu has embarked on a path of growth and development and we hope that our developed partners, who have spoken today, will continue to support Vanuatu in that regard.

WTO Secretariat

As described to this Council over the years of the development of the e-TRIPS platform, its function is to facilitate the work of delegations in using the established transparency processes. It therefore does not in itself prescribe or define any notification requirements or reporting requirements, as these are developed by Members in this Council. In establishing the e-TRIPS platform, we simply followed the existing practice of Members and the decisions of this body. That

said, one of the observations to emerge from the workshop yesterday was an interest on the part of participants – both reporting and receiving Members - to improve the flow of information and to do what we can to make use of this platform to facilitate the sharing of information, and the matching

of areas of need and priority on the part of LDCs and the capability of programmes in reporting countries to fulfil those needs.

At the same time, we mentioned earlier today that the e-TRIPS platform is undergoing its phase 2 development, which is exactly about improving the user interface for the benefit of Members

wishing to access and make use of this material. Therefore, these two lines of interest are related – first, stemming from the workshop, the interest in improving flow of information about Article 66.2 implementation, and, second, the overall effort to build a more useful, more user-friendly interface for the use of the material through the e-TRIPS platform generally. It seems these two aspects converge and therefore we take it that we have a responsibility as a Secretariat to consult actively with interested Members to look at the functionality and the operation of the system both generally - the development of the e-TRIPS platform as a means of consulting all TRIPS-related information –

and specifically following up the workshop in the area of Article 66.2. In the period from the present day, leading up to the final meeting of the Council this year, we would propose, in both cases, open-ended consultations with Members - on the development of the e-TRIPS platform overall and,

specifically, on the 66.2 element which was a particular focus of yesterday's workshop.

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To conclude, in developing the platform, we certainly have no role in defining or determining the reporting practices or requirements of Members that the function of the Council as such. We have simply followed existing practice and the directions of this Council and obviously that will continue to be the case. The consultations I have mentioned do not venture into that domain, but rather work on ways of creating a digital platform that is more responsive in a practical sense to the needs of delegations. I hope that makes sense. We do find it very valuable to sit down with Members

in a practical spirit, and to map out the system's evolution in that manner. We will certainly be reaching out to Members with that distinction in mind in coming months.

10 TECHNICAL COOPERATION AND CAPACITY-BUILDING

Bangladesh

The delegation of Bangladesh welcomes the reports from developed country Members, IGOs

and the WTO Secretariat under Article 67 of the TRIPS Agreement on technical cooperation and

capacity building in support of developing countries and LDCs. These reports provide information on a wide range of programmes and activities customized for the beneficiary Members. These programmes are critically important for the LDCs.

Bangladesh sincerely thanks the developed country Members and the international organizations for their help and would like to encourage them to continue their valuable support for the developing countries and particularly the LDCs and the graduating LDCs.

Chad

We would like to thank the Members who have produced reports on this item. Technical cooperation and capacity building is very important, especially for LDCs that face particular difficulties. Capacity building strengthens our institutional capacities and technology transfer helps us to take ownership of these and implement them; technical cooperation and capacity building is

very important in our opinion and we encourage developed countries to continue providing support in this regard. As regards Article 66.2 of the TRIPS Agreement on technology transfer: if you have technologies but you do not know how to use them, then you will not be able to benefit from them.

It is this capacity building that helps us implement and use the technology, so we encourage developed countries to continue providing support, and on behalf of the LDC Group, we would like to thank them.

11 DRAFT CODEX ALIMENTARIUS STANDARD - DEFINITION OF 'CROSS PROMOTION'

Mexico

On 19 November 2019, in communication IP/C/W/660, we shared Mexico's recommendations

regarding the prohibition of "cross promotion" between categories of follow-up formula for infants envisaged in a draft international Codex Alimentarius standard.

The concern was that, in Mexico's view, the standard did not provide clarifications on the scope of the prohibition and that this could affect intellectual property rights, such as trademarks.

Subsequently, at the 41st Session of the Codex Committee on Nutrition and Foods for Special Dietary Uses held in Germany from 24 to 29 November 2019, the Committee agreed to redraft the provision, clarifying that the intent of this paragraph was to avoid consumer confusion through a

clear differentiation in labelling. As a result, the prohibition of cross promotion between product categories was not included in the rewording of paragraph 9.6.4. of the proposed draft.

As this rewording is subject to endorsement by the Codex Committee on Food Labelling, Mexico is currently examining the outcome of the November 2019 session and will follow up on the discussions taking place this year.

Lastly, it should be noted that while Mexico recognizes the importance of avoiding consumer

confusion through the differentiation of products, it also considers that any measures to avoid such

confusion should not unjustifiably encumber the use of trademarks.

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Brazil

Brazil took note of the communication, dated 5 November 2019, circulated by the delegation of Mexico. We believe that discussing the definition of cross promotion in itself exceeds the competence of the TRIPS Council.

It would be advisable to wait for a proposal on cross-promotion definition to be advanced in appropriate fora before this Council could assess whether this concrete definition would collide with

any international obligations in terms of intellectual property.

India

We thank the delegation of Mexico for introducing this proposal. India supports the need for more clarity on the scope of "cross promotion". Since the FAO is already seized of the issue and the

Codex Alimentarius Commission has referred the matter back to the Codex Committee on Nutrition and Foods for Special Dietary Uses (CCNFSDU) to enable them to discuss the scope of the term and

whether it would be WTO inconsistent, it would be appropriate that the discussion is held in that Committee of the FAO.

Turkey

Turkey would like to thank the delegation of Mexico for having brought this item to the Council's current agenda. My delegation is of the view that the scope and impact of the prohibition of "cross promotion" between product categories in product labelling in draft Codex standards for follow-up formula may create uncertainty in the intellectual property area.

We welcome the suggestion on this paper and share the concern that this concept's lack of clarity could generate uncertainty for WTO Members related their obligations arising from TRIPS Agreement and other related intellectual property agreements."

12 INTELLECTUAL PROPERTY AND INNOVATION:

SUMMARY OF THE 2019 THEME OF PUBLIC-PRIVATE COLLABORATIONS IN INNOVATION

2020 THEME OF MAKING MSMES COMPETITIVE: FEBRUARY 2020 SUBTHEME - MAKING MSMES COMPETITIVE THROUGH TRADEMARKS

Canada

Canada is pleased to introduce the first paper, titled "Making MSMEs Competitive Through Trademarks", under the group of Friends of IP and Innovation's theme for 2020, "Making MSMEs Competitive". The group of Friends of IP and Innovation is indeed returning to a theme focused on MSMEs, after having explored MSMEs and related IP issues in 2017. And we believe that there is a

lot more to discuss, challenges to identify, and ideas to share.

The critical role and importance of MSMEs in the global economy cannot be overstated, but some numbers bear mentioning, or repeating, for context. According to figures quoted by the International Trade Centre, small and medium-sized enterprises account for over 95% of firms and 65% of employment worldwide, while figures quoted by the World Bank place the number of formal and informal MSMEs in the developing world between 365 million and 445 million.

In other words, by more than one token, MSMEs make up most of our audience here at the WTO. As drivers of employment, growth and trade, it is fitting and indeed always timely that we

should be talking about the realities and needs of MSMEs, including with regard to the IP system, hence our focus on trademarks for this first paper.

Trademarks are the most widespread form of registered IP rights, and have a close relationship with MSMEs, including in the developing world. Trademark ownership among MSMEs is associated

with firm growth – by some measures, even more than patent ownership is. Awareness of, access to and use of trademarks can provide MSMEs with a gateway into the IP system, and into more

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innovation and broader IP portfolios. But more importantly, here at the WTO, trademark ownership, like IP ownership generally, also correlates positively with trade and export performance.

Despite some outstanding work by scholars and by WIPO here in Geneva, trademarks are not nearly as closely and comprehensively studied as patents. Canada and the other Friends of IP and Innovation hope that this paper, and the discussion it fosters, make a modest contribution to a better understanding of the relationship between trademarks, MSMEs, growth and trade.

Moving on to the topic for today's discussion, we would take this opportunity to present an overview of recent initiatives intended to improve MSMEs' access to and leveraging of trademarks in Canada. As part of its National IP Strategy, which launched in 2018, Canada has focused on three building blocks towards achieving this objective: (1) increased awareness, (2) facilitated registration, and (3) effective use of trademark rights.

By way of context, small businesses make up 98% of all Canadian businesses and employ

8 million Canadians, making today's conversation particularly relevant to our general economic landscape. According to Statistics Canada data, 9% of Canadian MSMEs held registered trademarks in 2017 – by far the highest proportion across the forms of formal IP that were included in the survey. The correlation between IP ownership and growth/trading potential drawn in the paper is evident in Canada: in 2017, 23% of SMEs that exported held a registered trademark (compared to only 7% of SMEs that did not export), and 15% of high-growth SMEs held a registered trademark (compared to only 6.5% of no-growth SMEs).

Turning first to awareness, it is worth noting that trademarks were the formal IP right of which Canadian MSMEs were most "aware" in 2017 (with 65.3% of MSMES slightly, moderately or very familiar with registered trademarks). In an attempt to build general knowledge of trademarks even further, the Canadian IP Office (CIPO) recently launched an IP Awareness and Education Program, which includes services and products that make it easier for businesses to access specific trademarks resources, tools and advice. The CIPO IP Toolbox now includes short factsheets ("Trademarks" and

"Protect your brand") and a full trademarks guide. Moreover, our IP advisors lead IP seminars and

other training events to act as a source of information for MSMEs, as well as to provide information and guidance to innovators as they develop their IP strategy.

Resources available under CIPO's IP Toolbox also extend to trademarks registration, with the making available of a user-friendly roadmap to trademark registration and a Canadian Trademarks Database tutorial for searching existing marks. Moreover, with the aim of facilitating the trademarks registration process for all businesses, including MSMEs, Canada has recently

modernized its IP legal framework and office practices to fully implement the Madrid Protocol, Singapore Treaty and Nice Agreement. We consider that participation in the Madrid System, which allows applicants to apply for trademark protection in up to 120 countries with a single application, in one language and with fees paid in one currency, offers important benefits for users that are critical to encouraging trademarks registration by MSMEs.

Lastly, making an IP system more accessible is one thing, but ensuring viable and quality

rights for that system's users is another one and may weigh heavily in those users' ability to

successfully leverage their rights. In this spirit, and with a view to preventing the cluttering and misuse of its trademark registration system (what is sometimes referred to as "trademark squatting"), Canada has recently introduced new bad faith trademark opposition and invalidation grounds under its Trademarks Act. Canada has also reinforced the importance of "use" in its trademark regime by introducing a new requirement to demonstrate use within the first three years after registration to enforce the resulting registration in the event of infringement.

To conclude, Canada would be pleased to discuss these and other initiatives with any interested

Member on the margins of this meeting. In the meantime, we would like to thank in advance those Members that will share their insights and experiences under this agenda item and look forward to further views on making MSMEs competitive going forward.

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The United States is pleased to co-sponsor this agenda item and contribute to the discussion of "Making MSMEs Competitive Through Trademarks.". I would like to thank the co-sponsors for this item.

Before providing the United States' experience with promoting the competitiveness of MSMEs in the area of trademark protection, I would like to take a step back and summarize what we

discussed last year under the theme – "Public Private Collaborations in Innovation", as noted in the submission IP/C/W/661.

First, under the sub-theme– "Public-Private Collaborations in Innovations: R&D Collaboration Frameworks" – several WTO Members highlighted examples of public-private collaborations specific to research and development, noting how both the public and private sectors possess different

resources and expertise, which, when combined, complement each other and create market-oriented

IP. Members shared national experiences and examples of their efforts and policies to foster R&D collaborative frameworks. These types of partnerships have led to cutting-edge innovations in agricultural, medical and solar technologies, internet services, and navigation communications.

Second, under the sub-theme-- "Innovative Approaches to Assisting in Branding and Promotion and the Creative Industries"—Members discussed industry sectors and policies to boost firms' brand awareness, as well as cultural and creative products, both nationally and abroad. It was noted that, many industries, especially SMEs, may not have the expertise to build their own brands

and promote their products. The public sector can help the private sector to build and promote industries' brands and reputation in various ways, e.g. through consultancy services, local support and promotion programs, and assistance in promoting local industries' brands and reputation internationally. For the creative industries, including the performing arts, fine arts, literary arts, design, media & entertainment industries, member states noted that budding artists and SMEs may not be familiar with their IP rights, and how they can use their IP to grow their businesses.

Discussions centered on efforts where the public sector can support them in growing their businesses

through protecting and using IP.

Lastly, under the subtopic– IP Commercialization"—Members shared experiences on national legislation and government funding that facilitate transfers and/or licensing between public and private partners, and the resulting commercialization of technologies. The discussion highlighted that an essential enabling component for the commercialization of R&D and creations alike is sound IP protection. Licensing agreements can be negotiated much more easily where intangible assets

and know-how can be traced back to their original inventor or creator, and parties have written proof of exclusive IP rights. This gives IP rights holders an advantage in negotiations with potential partners when trying to commercialize their IP. IP licenses and other assignment agreements, spin-offs, as well as contracts that contain terms on the use and exploitation of IP, can be the launch pad for public-private collaborations with the aim of commercializing IP.

Moving to this year's theme, the United States welcomes this opportunity to share its views

and experiences on the important issue of MSMEs, Innovation, and Intellectual Property. Today, I

will focus on how trademarks can improve the competitiveness of MSMEs.

As is the case in many countries, MSMEs are critical to the economy of the United States. They create jobs, spur innovation, and foster entrepreneurial spirit.

The economy of the United States is fundamentally grounded in market economic principles. Within this market system, the legal framework for intellectual property promotes the growth and competitiveness of MSMEs. Intellectual property protections ensure that MSMEs can protect and benefit from their innovation.

In the United States, all types of IP protection are important for small business – patents, trademarks, copyright, designs and trade secrets.

Like all types of IP protection, brands can be used to generate tangible economic benefits to their owner.

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A U.S. Department of Commerce report found that IP-intensive industries continue to be a major, integral and growing part of the U.S. economy. Trademark-intensive industries are larger in number and contribute the most employment with 23.7 million jobs in 2014 (up from 22.6 million in 2010).

Government can play an appropriate and important role in helping MSMEs understand their rights and protect their trademarks. The United States government, including the U.S. Patent and

Trademark Office (USPTO), has a variety of programs and initiatives that seek to do so.

o The USPTO's Inventor and Entrepreneur Resources webpage offers information for start-ups, individual inventors and entrepreneurs on the patent and trademark processes and offers a number of guides and other resources to assist inventors and entrepreneurs in protecting their IP rights.

• One such resource is the USPTO's Trademark Assistance Center (TAC), which provides

trademark information and services to the public by phone or in person across the United States.

• The TAC serves as the primary touchpoint for entrepreneurs and small businesses to obtain information and assistance regarding the trademark application and registration maintenance process. The TAC serves as an educational resource for those who desire to seek brand protection.

• Trademark experts that work at the TAC can answer general questions regarding

trademark examination policy, provide general information concerning trademark examination procedures, and concerning current fees, as well as forms and other formalities.

• However, like other intellectual property offices, they cannot provide a legal opinion or

legal advice, or do a trademark search.

o The mission of the USPTO also includes outreach and education about intellectual property. As part of that mission, the USPTO offers a number of educational resources and conducts

a number of educational programs for small businesses.

• For example, on the USPTO website, we offer a web-based video tutorial series on Trademark Basics; step by step guides and videos on TM processes, and many other resources. These videos, at our Trademark Information Network (TMIN), are very well received, not only by pro se applicants, but also by attorneys and the public.

The USPTO also addresses trademark prosecution and enforcement in its trademark

presentations to SMEs and MSMES. We find that small business often has not conducted a proper trademark clearance search, subjecting the business to administrative and court challenges. We also

find that small business often does not understand the intersection between trademarks and domain names and the dispute resolution mechanisms for handling infringement. Being aware of these pitfalls can mean the difference between business growth or business closure.

In particular, addressing trademark enforcement and counterfeiting issues of MSMEs is the other side of the coin to trademark protection, and plays an important role in MSME growth, job

creation and safety.

The USPTO Trademark Manual of Examining Procedure (TMEP) also is available on the USPTO site. As a reference work on the practices and procedures relative to prosecution of applications to register marks in the USPTO, it aids applicants, including the pro se applicant, as well as attorneys.

• We also regularly conduct webinars on trademark-related issues, as well as training programs in the field on both U.S. and international trademark protection and enforcement.

• We offer six e-modules on intellectual property protection and enforcement in five languages, including on domestic and international trademark law and policy, through

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our Global Intellectual Property Academy (GIPA). GIPA provides IP educational and training programming both to improve IP laws and their administration around the world, and to enhance IP awareness and technical capacity. GIPA provides trademark support to MSMEs by providing in-person and live-online programs on the importance of trademark protection and enforcement at home and abroad.

o Another valuable resource is the Patent and Trademark Resource Centers (PTRCs), which

are part of a nationwide network of public, state, and academic libraries designated by the USPTO to support the public with trademark-- and patent--assistance.

• There are currently over 80 PTRCs whose USPTO-trained librarians aid MSMEs in (1) identifying relevant USPTO trademark resources; (2) using USPTO's trademark search tools and related resources; (3) referring them to relevant offices at USPTO for additional trademark assistance; and (4) referring them to relevant community and

area resources.

• The USPTO maintains a map of locations on the USPTO site.

The USPTO also has regional offices that serve the local communities in which they are located, in partnership with each other and with USPTO Headquarters.

The USPTO also trains business counsellors within the government, who work directly with small business including, the Small Business Development Centers (SBDCs) of the U.S. Small Business Administration (SBA) and the U.S. Export Assistance Centers (USEACs) of the U.S.

Commercial Service.

These are just some of the examples of programs that provide micro and small businesses with the resources needed to protect trademarks, grow their businesses, create jobs and build a more competitive economy.

In sum, an open, market-based economy, based upon a strong legal framework for trademarks, helps support the economic success of MSMEs. We appreciate the opportunity here to share our experience with you.

Australia

Australia would like to thank Canada for leading this discussion on making Micro, Small & Medium Enterprises (MSMEs) competitive through trademarks.

The Australian Government is committed to supporting MSMEs to increase their competitiveness both domestically and internationally through effective protection of their intellectual property (IP), including trademarks.

The Australian Government recognises that IP is critically important to MSMEs in today's modern and increasingly globalised economy. As the Australia 2030: Prosperity through Innovation plan recognises, we have "moved from a once-in-a-century mining boom to a global innovation race, where IP is at least as valuable a resource as iron ore."

Today we would like to share information on initiatives and best practices that the Australian Government is promoting to better support MSMEs to protect their trademarks and maximise their commercial potential in the global marketplace.

Statistics from the latest Australian IP Report reveals that trademark applications to IP Australia, the agency responsible for administering IP rights, continue to grow.

1

In 2018, trademark applications grew by around 4%. Trademark applications can be filed either directly with IP Australia or through WIPO's Madrid system. Applications from Australian residents accounted for about 58% of all trademark applications in 2018. What we know is that

1 IP Australia, 'Australian Intellectual Property Report 2019' 15-19

https://www.ipaustralia.gov.au/sites/default/files/ip_report_2019.pdf.

https://www.ipaustralia.gov.au/sites/default/files/ip_report_2019.pdf

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historically, the vast majority, around 90%, of resident applications come from MSMEs and individuals. 42% of applications were from non-residents, with the applicants from outside Australia mainly originating from the United States, China, United Kingdom and Germany.

To encourage such growth of trademark applications, IP Australia actively works towards increasing awareness of IP rights among MSMEs, and towards developing tools to assist MSMEs to protect their trademarks through obtaining a robust registration right.

Trade Mark Assist

For example, IP Australia provides Trade Mark Assist, an interactive tool designed to educate and assist unrepresented trade mark applicants, in particular MSMEs, to understand how they can protect their brand and obtain trade mark rights to it.

Trade Mark Assist helps MSMEs 'learn, search, apply' by exploring their proposed trade mark, identify the classes of goods or services they wish to protect, search existing trademarks and begin

the trade mark application process.

TM Headstart

TM Headstart also assists MSMEs obtaining protection for their trademark. This service gives an MSME an assessment of their potential trademark and will help them identify any problems it may contain before they publicly file for a trademark.

TM Headstart can save MSMEs money in the long run, as trademark applications that contain errors when formally filed are often rebuffed and applicants pay for those mistakes by having to

refile. Using TM Headstart is a good way to apply for a trademark if applicants are unsure of the process.

Educational resources and materials

IP Australia also offers a range of educational resources and materials to support MSMEs to better understand IP protection options and taking their IP global, including:

• publishing detailed fact sheets on applying for a trademark in overseas jurisdictions

• on demand webinars on understanding trademarks and what businesses need to know

about protecting IP abroad and domestically.

Through best practice initiatives such as HM Head start and Trademark Assist, we are able to better support and educate MSMEs about the value of IP to their business's success.

We look forward to hearing about best practices from other Member States and we are happy

to continue this discussion.

Switzerland

My delegation wishes to thank Canada and the US delegation for introducing the submissions IP/C/W/661 and IP/C/W/662 to the TRIPS Council today. Switzerland is pleased to co-sponsor both the agenda item and the written submissions.

MSMEs have a crucial role for a national economy. In Switzerland, 99% of all companies are micro, small or medium enterprises (MSMEs). According to a survey by the Swiss IPO2, 93% of these Swiss MSMEs consider innovation, creativity and to be 'special' as essential to the survival and competitiveness of their businesses. Trademarks (TM) are the intellectual property right most

frequently used by MSMEs. The main benefits that a TM offers to MSMEs are product distinction, protection against unfair competition, marketing and branding.

2 https://www.ige.ch/fileadmin/user_upload/dienstleistungen/publikationen_institut/Economic-Focus-

Study_2009.pdf

https://www.ige.ch/fileadmin/user_upload/dienstleistungen/publikationen_institut/Economic-Focus-Study_2009.pdf


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Effective branding helps a company and its products and services to build consumer trust and loyalty. Building consumer trust in trademark takes time and often considerable effort. Once gained, the TM can be an incentive for companies to continue producing new goods and services under their TM. Besides the protection against free riders, from a consumer's perspective, trademarks contribute essentially to the recognition and differentiation between the enormous selection of goods and services. In turn, this requires business owners to invest also in sound trademark management in

order to maintain the value of the IP. Trademark management means more than just registering a TM.

Particularly small companies sometimes lose sight of this and do not pay sufficient attention to TM and quality management. As the following example shows, this can have serious consequences for a business, whether big or small. A kebab store in Zurich had quick success with customers selling kebabs using high quality and local ingredients. Marketed under the registered trademark

"New Point", the business became known as "the best kebab in town". This success enabled a quick

expansion of the business, with the establishment of a chain of franchise stores around Zurich. However, the expansion of the business did not adopt a sound TM strategy and lacked product quality maintenance.

Through this franchise business, the value of the brand was damaged due to significant deviations from the original store's standards and quality by the franchisees. Checks on the quality of the products were insufficient to ensure the products' high-quality standard which damaged the

reputation of the trademark. Loyal customers and recommendations of "the best kebab in town" were almost as quickly lost as they were initially gained, particularly today, where customers share their views and experience with followers on the internet. In consequence, the chain's profits declined and most of the franchisees had to close their stores in due time. While four "New Point" chains alongside the original store remain, this example serves as a lesson on how multifaceted the right use of trademarks and IP strategies can be for MSMEs. "New Point" has since re-established itself on the market and rebranded itself and its trademark, even created a new logo, and set strict

conditions regarding quality in its franchise agreements. The lesson to be learned here is that

registration of trademarks alone is not a promise of success. A solid IP strategy and its maintenance to accompany and evolve with the company are additionally required and indispensable.

When asked about their use of Intellectual Property Rights (IPRs), some Swiss MSMEs replied in the survey of the Swiss IPO mentioned earlier, that they did not apply for a trademark because they thought that filing procedures would be too complicated or costly. They added, that they had

limited knowledge of the system or that they had no "innovation" that would warrant protection3 . Certainly, the last point hints at a lack of knowledge about what a TM actually is and what it can do for an MSME. To address this information gap and to raise awareness, the Swiss IP-Office inter alia, established an online portal for MSMEs4 10 years ago. This portal serves as an entry point for all IP-related topics. MSMEs can learn about the different IP strategies, seek guidance on how to manage their intellectual property portfolio or read about other MSMEs' experiences. Online informative brochures and short explanatory videos on how to register a trademark are available. Next to the

application via e-mail or post, the IP-Office offers an electronic application system5 , which guides applicants step-by-step through the application process. Additionally, a free and easy-to-use online

database is made available for preliminary searches on existing Swiss trademarks from the comfort of one's home – or the administrative office of an MSME.

Providing access to more easily understandable information and application tools reduces costs for filing and allows to manage TMs more efficiently. Without discharging MSMEs from developing their own sound IP and TM strategy, the Swiss IPO continuously works on improving these

mechanisms in order to enhance the value of an overall well-functioning, more accessible trademark system.

3 https://www.ige.ch/fileadmin/user_upload/dienstleistungen/publikationen_institut/Economic-Focus-

Study_2009.pdf (p.40) 4 https://www.ige.ch/de/geistiges-eigentum/kmu-portal.html 5 https://e-

trademark.ige.ch/etrademark/welcome.jsf;jsessionid=jJq7nCjfqZGqwoDMtfXV7XLLxXZpWb2l6SVPuuXq.ipipesw010?lang=de



https://www.ige.ch/de/geistiges-eigentum/kmu-portal.html

https://e-trademark.ige.ch/etrademark/welcome.jsf;jsessionid=jJq7nCjfqZGqwoDMtfXV7XLLxXZpWb2l6SVPuuXq.ipipesw010?lang=de



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Chinese Taipei

Micro, small and medium enterprises (MSMEs) account for almost 98% of our businesses. They are the backbone of our economy and have played a critical role in fostering our economic development. However, MSMEs usually struggle to draw up good IPR strategies or comprehensive trademark portfolios due to lack of resources and support from IPR professionals. We will briefly introduce the relevant measures we take and a few of our experiences.

Our trademark authority TIPO not only devotes to improving IP regulations and the quality and efficiency of trademark examination, but also actively assists MSMEs in learning more about trademark issues. For instance, in 2015, TIPO set up a platform which systematically leads MSMEs to explore the fundamentals of IP, establish their own brands, register trademarks, and even deal with litigation if necessary. The platform aims at reducing the MSMEs' costs of acquiring information. Also, at its field offices, TIPO holds free courses and provides consultation services on trademark

application and other popular topics to MSMEs. Each year, customized information events are also held for particular audiences.

Through a long-term project called "Branding Taiwan", our government offers the resources MSMEs need for brand building or transformation. Other than assisting MSMEs in analysing their weaknesses in IP protection and rights management, we also help them review their patenting momentum, evaluate the potential obstacles on their paths, and design their patent portfolios strategies, in the hope of helping them develop high-value and highly differentiated products, whilst

strengthening their global competitiveness.

In 2019, through the project, the government continued to provide support to the MSMEs which could not hire IP professionals on their own due to limited funding and business scale and helped them reinforce their understanding of IPR and expand their global trademark portfolios. In 2019, a total of 56 local businesses received reviews, assistance, and consulting services and a total of 222 branding managers were trained. It was expected that the companies receiving such

assistance would garner NT$1.64 billion investment, more than NT$4.19 billion revenues around

the world, and 6,361 new dealers, agents or channels. The program has effectively increased MSMEs' awareness of IPR protection and companies are beginning to actively monitor counterfeiting and proactively adopt measures to protect their IP rights. In addition, since MSMEs have their trademarks registered overseas, more overseas distributors are willing to sell their products, which leads to MSMEs expanding businesses in the global market.

IP and innovation are the integral driving forces of economic growth. However, how

the government may make MSMEs competitive through trademarks remains an important issue. We encourage Members to share their measures and experiences.

Japan

First of all, we would like to express our gratitude to the Delegation of Canada for introducing

the background for this year's theme. Japan would like to contribute to this year's discussion as a co-sponsor and Japan also would like to express our gratitude to the Delegation from the United States for summarizing our discussion of last year. This delegation believes that WTO Members

promoted better understanding regarding the role of IP in innovation through fruitful discussions in 2019.

Today, this delegation would like to share our experience and national policies with respect to making MSMEs competitive through trademarks.

In order for MSMEs to expand their business activities and collaborate with large companies, it is essential for them to differentiate their products and services and establish their own brands by utilizing their intellectual property. In that sense, trademark rights are very valuable rights that can

help rights holders enhance their reliability with customers and to establish their own brands.

Furthermore, acquiring trademark rights is expected to be advantageous for companies in

terms of obtaining financing and promoting business transactions. Accordingly, the acquisition of trademark rights would be significant for MSMEs.

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Meanwhile, according to the results of interviews that the Japan Patent Office (JPO) conducted with SMEs, some companies mentioned that they cannot afford to manage trademarks and that they have limited interest in trademarks. Therefore, how to encourage MSMEs to utilize trademark rights is one of the major issues that we have to work on. Under these circumstances, Japan has been implementing various initiatives to support MSMEs to acquire trademark rights and expand their business activities smoothly.

Firstly, last year, the JPO published its guide focusing on utilizing trademarks, which is entitled, "Guide for Utilizing Trademark Learning from Case Examples". This guide is not designed for trademark experts but aims to highlight the advantages of obtaining and using trademark rights for persons and entities who intend to utilize trademarks in their business activities through mainly presenting actual cases in which trademark rights were used by SMEs. For example, it presents what was being considered when the best possible trademarks were determined, motivations for obtaining

trademark rights, and actual effects arising from the acquisition of trademark rights.

Moreover, this delegation would like to provide some examples with respect to actual effects of obtaining trademark rights presented in the guide. Some companies were able to increase sales approximately 30 times after changing their product name to a name more easily understood from the consumers' perspective. At another company, inquiries to licensing negotiations increased after its product brand became famous. Also, thanks to the acquisition of trademark rights, some companies were able to gain greater confidence and evaluation from their clients or contribute to

boosting employee morale and sharing their brand concept with employees.

MSMEs are quickly gaining more useful knowledge from these successful cases of SMEs, who are facing common issues under similar business circumstances. The guide also includes an outline of the trademark system and answers to frequently asked questions. Thanks to these features, the guide has been widely used by individuals and other entities involved in businesses as a valuable reference for business strategies based on the effective use of trademark rights.

Secondly, this delegation would like to introduce the JPO's initiative on IP Business Valuation

Reports. In general, there is a need of MSMEs who hope to obtain financing support from local financial institutions based on the business value of their IP. Meanwhile, most local financial institutions lack human resources who can evaluate how MSMEs' IP rights contribute to the growth of their business. As a result, it is difficult for financial institutions to provide financial support based on IP.

Under these circumstances, in order to promote financing for MSMEs, the JPO provides "IP

business valuation reports" to local financial institutions at no cost. The valuation reports are developed by research companies specialized in evaluating IP so as to visualize their value. Thanks to these valuation reports, local financial institutions are able to understand how MSMEs' intellectual property contributes to developing their business activities and making greater profits. In other words, financial institutions can use the valuation reports as reference materials for providing IP-backed financing.

In fact, the Guide, which I have mentioned before, presents successful cases in which financing

based on SMEs' IP was provided by making use of the IP business valuation reports. From the viewpoint of financial institutions, the bank, which provided IP-backed finance, also highly praised the valuation report effectiveness as a helpful reference for evaluating business possibilities because the report quantified the value of the SME's trademark rights.

Lastly, we would like to talk about the JPO's initiative on Comprehensive IP Support Service Counters. The Service Counters are set up in all 47 prefectures in Japan to provide one-stop consultation services for MSMEs. The services include consultation for their management issues and

advice for IP issues at every stage of development, to include from the conceptual stage, through commercial production. Additionally, at the Service Counters, we have assigned not only patent attorneys and lawyers but also specialists in many fields, such as designers, brand specialists, global IP producers, and they provide MSMEs with advice regarding filing applications and acquiring IP rights, developing business and IP strategies and they propose solutions to IP activities based on

these strategies in order to help MSMEs strengthen their competitive advantages.

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One of the benefits from providing such one-stop support services might be to enable companies visiting the service counters to notice points that should be improved. Also, in the guide that I previously mentioned, an actual case is presented in which advice for avoiding risks of trademark rights infringement was given to an SME who visited for consultation on technical software issues.

In summary, it is a fact indicated in various actual cases that acquiring trademark rights can

contribute to expanding businesses of MSMEs. This has been accomplished not only by establishing brands of their products and services but also by providing benefits in terms of obtaining financial support and conducting business transactions. In this regard, with respect to raising awareness of trademark among MSMEs, we believe that providing information of successful MSME's case is invaluable, because they are facing common issues under similar business circumstances.

Furthermore, to encourage the effective use of trademarks, our experience has seen that

supporting the decision process of financial institutions which intend to provide financing for MSMEs based on MSME's intellectual property rights is also effective. Moreover, when MSMEs are expanding their business activities, it is essential for them to consider the importance of inclusive IP protection, including trademarks, patents and designs. Therefore, when it comes to solving various IP issues that MSMEs confront, providing one-stop support service for MSMEs has proven to be an important and effective policy to be implemented by a government that helps strengthen MSMEs' competitiveness.

Chile

First of all, we would like to thank the proponents of this agenda item for the opportunity to address this important topic in the Council for TRIPS. Trademarks can be one of MSMEs' main assets and, as such, a key element for the success of such enterprises. In light of this, it is crucial that WTO Members have in place streamlined, transparent and effective systems for processing trademark applications, as well as an effective system for enforcing these rights.

The National Industrial Property Institute (INAPI) is committed to MSMEs and has therefore

set up a comprehensive online platform so that trademark applications can be filed remotely. Owners of a registered trademark can also use the platform to apply to renew their trademark rights. In addition to the platform, INAPI users can find clear information on each stage of trademark processing, as well as information on the various options available to trademark right holders for commercially exploiting their trademarks.

Furthermore, INAPI has been continuously working to raise awareness of the importance of

registering trademarks and therefore offers the INAPI Classroom programme. This is a comprehensive e learning programme developed by INAPI, with financial support from the European Union, seeking to improve industrial property knowledge and practices. Moreover, INAPI regularly organizes talks and training activities at its offices, as well as other off-site activities specifically designed for those who require them.

In this vein, the Seal of Origin programme, created to preserve and stimulate our country's special forms of manufacturing, traditional trades and unique products, also uses collective and

certification marks as an essential tool for promoting partnerships between individual local producers.

Finally, we would like to reiterate our gratitude to the proponents and hope to hear other Members share their experiences under this agenda item.

Singapore

I would like to thank the US for drafting the paper to wrap up and summarise the fruitful discussions that the Membership had in 2019 on the role that "Public Private Collaborations in

Innovation" play in promoting innovations in research and development (R&D), assisting in brand promotion and the creative industries, and aiding in IP commercialisation. Various Members' national

policies, initiatives and platforms were showcased, which provided food for thought for us on how governments, business, academia and other key stakeholders can come together to synergise and identify the best ways to ensure IP can benefit our citizens and the whole world at large. Singapore

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was happy to have contributed to these discussions in a substantive manner, and we are heartened to note that engagement on this topic was high throughout the year.

We would also like to thank Canada for submitting this discussion paper on "Making MSMEs Competitive Through Trademarks", which is the first in a series of discussion topics on how countries and government can support MSMEs via IP rights to make them competitive both in the domestic market and around the world. Canada's paper is useful in stimulating discussions on understanding

the important role of trademarks for MSMEs in international trade, and how various Members have worked to socialise this among their domestic businesses and citizenry.

Allow me to share three key points underpinning Singapore's efforts to support and facilitate the efforts of MSMEs to make use of trademarks in a holistic and comprehensive manner.

First, the Singapore government takes proactive steps to help the private sector and

entrepreneurs understand how to make use of IP rights in general, and trademarks in particular.

One example is the Mark Your Trade programme. This was a pilot programme started in 2016 to reach out to budding local creators and entrepreneurs who had established a strong social media presence but had yet to protect their trademarks. To unlock the value of their brands, the Intellectual Property Office of Singapore (IPOS) offered assistance on trademark registration, IP clinics and marketing opportunities to participating creators with the aim to heighten the importance of IP and branding for such small businesses. In recognition of their work, these creators and entrepreneurs were presented with trademark certificates on World IP Day on 26 April 2017 by our then-Senior

Minister of State for Finance and Law, Ms Indranee Rajah, and efforts are continuing to ensure that as many small business and entrepreneurs benefit from this programme.

Second, the government is working continuously to take advantage of developing technologies to make conditions easier for MSMEs to register and make use of trademarks. As a case in point, companies looking to register their trademarks in Singapore can now file them directly with IPOS through the world's first trademark registration mobile application called IPOS Go. Speeding up the

application process tremendously, it will take less than 10 minutes to apply for a trademark, down

from the 45-minute to an hour-long average in Singapore. Notably, the application is an additional option for businesses to file trademarks, on top of other platforms available, such as IPOS' existing e-services website. Applicants can also track their registration status, be notified of updates or file for trademark renewals through the application. Applicants pay $240 as the filing fee to register a single trademark in any class in Singapore, and a registered trademark is valid indefinitely as long as companies renew their registrations every 10 years at a fee of $380 per class. I would like to

highlight that the application also uses artificial intelligence (AI) to search for similar trademarks on the IPOS register and will stop applicants from filing for trademarks that are too similar to existing ones. This application has enhanced not only convenience and efficiency, but also utility and effectiveness for many small companies in making use of trademarks in their business.

Third, given that new business risks will emerge as more enterprises use innovation and digitalisation to grow and enter the volatile and unpredictable global markets, we provide a cushion to help ease the process. Through the Intellectual Property Insurance Initiative for Innovators

(IPIII), which was rolled out in June 2019, innovative enterprises will be able to obtain insurance coverage for legal expenses that may be incurred in IP infringement proceedings worldwide. Under the IPIII, enterprises and innovators with a Singapore patent, trademark or registered design can take up an insurance policy with substantial cost savings that pays the legal costs of enforcing IP rights or defending against allegations of IP infringement, which can often be expensive and detrimental to business cash flows. The policy is underwritten by Antares Underwriting Asia, on behalf of Syndicate 1274 at Lloyd's of London. Insuring IP is still nascent to a market that has

witnessed multi-million-dollar patent litigation and trade disputes over IP theft. The IPIII insurance initiative is timely in a global economy increasingly powered by the new currency of intangible assets.

This is an important issue which bears more focused discussions to share best practices, and we look forward to hearing from other Members on their national experiences.

Korea, Republic of

Korea is very pleased to share its national experiences as a co-sponsor of this agenda item.

Korea attaches great importance to assisting MSMEs in strengthening competitiveness through the

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development of trademarks. In this regard, KIPO (the Korean Intellectual Property Office) has designed and implemented targeted programmes to help such MSMEs to develop and promote trademarks. First of all, given that MSMEs lack IP capacity in general, KIPO has been providing "IP Assisting Services to MSMEs through the Regional Intellectual Property Centers. As part of these services, MSMEs are provided with the necessary assistance from consultants and experts in the area of how to develop brands, designs, and patents. KIPO implemented such services in 231 cases in

the year 2019, which is believed to have been of great value in terms of narrowing the gaps in IP capacity between large firms and MSMEs.

Secondly, as more and more MSMEs expand into global markets there is a growing need for a range of measures to protect the trademarks of MSMEs in overseas markets. Indeed, a number of MSMEs who are seeking to go global, export their products first without taking necessary measures to register their trademarks/brands with the authorities of the countries that they want to export to

or invest in. Such cases happen frequently because those MSMEs lack the necessary knowledge

about the legal system. As part of efforts to prevent IP rights, including trademarks, from being infringed by foreign brokers, KIPO operates a total of 15 IP Help Desks in eight countries. The main functions of the IP Desks are to help MSMEs to protect their trademarks under the legal system of the foreign countries which the MSMEs are operating in or exporting to. In cases in which the IP rights have been violated in those countries, they provide legal consulting services to the MSMEs concerned on how to resolve such IP-related disputes. In addition, IP Help Desks hold

seminars/workshops to raise awareness of the importance of the protection of trademarks, as well as how to cope with possible infringements.

United Kingdom

The United Kingdom would like to thank the co-sponsors for tabling this paper and would like to express our support. We would also like to thank delegations for making interesting presentations on this issue. It has been very helpful to hear accounts of each Members' national experiences on this topic.

The United Kingdom is committed to balanced and effective intellectual property systems and believes in supporting businesses, in particular small businesses and entrepreneurs, through encouraging their use of IP, and minimising barriers to utilising IP rights, to aid their competitiveness and improve their ability to protect the innovative aspects of their products and brands.

Therefore, the United Kingdom looks forward to further discussion in this area, and to working directly with the Friends of IP and Innovation more closely in developing this story.

China

China thanks the co-sponsors for summarizing the item of public-private collaborations in innovation in 2019 and thanks Canada for presenting a new proposal of making MSMEs competitive through trademarks.

As for the new proposal, China would like to highlight the importance of MSMEs to our economy. By the end of 2018, the number of MSMEs in China had exceeded 30 million, and the number of individually-owned business entities exceeded 70 million, contributing to more than

50% of our country's tax revenue, more than 60% of GDP, more than 70% of technological innovation, and more than 80% of the employment. MSMEs have played a crucial role in promoting China's economic growth, innovation, creating employment opportunities and improving people's livelihood. So in the new era, China will continue to take measures to make MSMEs competitive, especially to enhance their innovation abilities. Some of our major measures are as follows.

First, China has built a legal system to improve the general business environment in which MSMEs operate. In 2002, China adopted the "Small and Medium Enterprises Promotion Law", which

requires government at all levels to create a favourable environment for the development of MSMEs, especially in terms of capital, technology, and human resources. In 2017, China revised the "Small and Medium Enterprises Promotion Law". The revision aims to support MSMEs to expand sources of

financing and protect their legal rights in a sounder way. For example, Article 9 of the SME Promotion Law encourages financial institutions to provide loans to MSMEs using IP as their collaterals or guaranties. In 2019, the State Council issued the Guiding Opinion on Promoting the Healthy

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Development of SMEs. The Guiding Opinion clearly requires the government to improve the innovation and establishment environment for MSMEs, better protect the intellectual property rights of MSMEs and guide specialized development of MSMEs. Again, the Guiding Opinion emphasizes the role that IP can play in increasing SME's credibility of borrowing money from financial institutions. Beijing and other provinces also enacted local implementation plans.

Second, China promotes the IP awareness of MSMEs through establishment of intellectual

property training centres for MSMEs in eastern and southern part of the country, where a large number of SMEs are located. The training centres provide intellectual property courses, workshops and other IP-related capacity building activities to MSMEs, and support MSMEs to enhance their IP creation, utilization, protection and management abilities. The Nanhai training centre in Guangdong Province in southern part of China produced a publication entitled "Patent Management Practices for MSMEs" to provide further guidance. Some other provinces designed trademark courses for MSMEs

based on practical needs of local MSMEs.

Thirdly, China enhances IP enforcement for MSMEs and facilitates alternative dispute resolution mechanisms for MSMEs. China launches initiatives targeting MSMEs and encourages MSMEs to report IP infringement to authorities and claim their legitimate rights. In addition, we established some IP infringement mediation centres to resolve IP disputes encountered by MSMEs in a faster and less costly way. For example, we set up specialized mediation centres for furniture, electric lights, pens and other small commodities that MSMEs in China tend to manufacture.

Thank you all for listening to my sharing of national experience. China hopes to hear more about Members' measures.

Brazil

We would like to thank the proponents for submitting this document and promoting this invaluable discussion. Trademarks are usually the gateway for most MSMEs to the world of IP. There

is still a lot of room to explore on how to make IP rights more accessible to small and medium enterprises, especially in developing economies. Targeted programs to MSMEs, with an emphasis on

training and raising awareness on the availability and possible uses of IP rights, is a way forward in this discussion.

Brazil is currently investing in mainstreaming the access to and use of IP rights. Small and medium-sized companies, for their importance in economic growth and employment, are a natural focus of this type of policy. Brazil's national IP office (INPI) is engaged in several initiatives with a focus on MSMEs.

One such example is the entrepreneurship stimulus program called "Catalisa", which is promoted by Brazil's Micro and Small Business Support Service (Sebrae). INPI, in cooperation with Sebrae, provided small innovative companies of the Catalisa project with mentorship on IP matters.

Also last year, INPI began a pilot project on an IP Marketplace, in partnership with the Danish Patent and Trademark Office (DKPTO). The IP Marketplace is an international platform for the purchase, sale and licensing of industrial property rights.

Participation in the platform is free and open to companies, universities and individuals,

including those interested in identifying partners for the development of innovations. To facilitate contact with potential buyers, sellers, licensors, partners and investors, the IP Marketplace provides contract models and tools to support the assessment of IP rights.

India

We thank the proponents for their submission on making MSMEs competitive. Micro, Small and Medium Enterprises (MSMEs) throughout the world have a vast employment potential and contribute significantly to the trading environment of a country. MSMEs play a major role in most economies,

particularly in developing countries. If we go by statistics, MSMEs seem to be the lifeline of economic

development in developing counties. They represent about 90% of businesses and more than 50% of employment worldwide. India is essentially a knowledge-based, entrepreneurship driven economy. In India the MSME sector, through more than 8,000 products, ranging from traditional to

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high tech precision items, contributes about 45% to the total manufacturing output and 40% to the exports. The MSME sector has the potential to spread industrial growth across the country and can be a major partner in the process of inclusive growth.

However, several factors impede the growth of innovation in the MSME sector. Their market penetration is restricted due to the size of their organizations. Further securing and enforcing IP is challenging due to the costs involved. Hence, there is a need to enhance awareness about

Intellectual Property Rights (IPRs) to enable MSMEs to take measures for protecting their ideas and business strategies. Effective utilization of IPR tools by MSMEs would also assist them in technology upgrading and enhancing competitiveness. In this regard, the contribution of WIPO's Technology Innovation Support Centres in India has been quite beneficial in spreading awareness on IPR. Both MSMEs as well as Universities provide the ideal platforms for setting up such centres.

A number of efforts are being undertaken by India to promote innovation at the level of MSMEs.

India declared the decade of 2011-2020 as the Decade of Innovation. Further, to enhance awareness of MSMEs about Intellectual Property Rights (IPRs), India has launched a scheme titled "Building Awareness on Intellectual Property Rights (IPR)" for the MSMEs.

In addition, a scheme for facilitating Start Ups Intellectual Property Protection (SIPP) was launched by India to facilitate IP creation among Start-Ups by providing several incentives such as reduced official fees, filing and prosecution assistance etc. Various roadshows are also being organized on 'IPR and National IP Policy' to appraise people about the benefits to MSMEs towards

promoting IP filings. The Government of India has introduced 50% fee reduction for IP applications of MSMEs.

India strongly believes that intellectual property is only one element in a larger innovation ecosystem and IP laws alone do not promote technological development. Innovation must be backed by means to make it affordable and ensure adoption.

Peru

We thank the proponents of the document under debate that brings this important issue to

the attention of the WTO delegations.

Peru is aware of the importance of an optimal management of Intellectual Property, in which MSMEs actively participate, with the clear objective of improving their competitiveness and commercial performance, to achieve their sustained growth.

However, we must bear in mind that 98% of the Peruvian business network is made up of microentrepreneurs, so we still have a long way to go internally before considering the

internationalization of SMEs. In fact, the main Peruvian productive activities are mining, tourism, gastronomy, textile industry and agribusiness and in most of these industries, MSMEs are only dedicated to simple assembly processes, to commercialize, to export raw materials and to provide

basic services, without an own brand.

Within this context, Peru is constantly promoting the Intellectual Property system for MSMEs to make effective use of it, in the search for having them gain more competitiveness and, with it, to evolve from an extraction economy to an economics of commercialization of products with added

value. To this end, with a priority focus on MSMEs becoming aware of the benefits of Intellectual Property, The National Institute for the Defense of Free Competition and the Protection of Intellectual Property (INDECOPI) has implemented various tools, such as:

• Trademark Platform, in person and online: it is available for users in the link >>https://www.indecopi.gob.pe/es/web/plataforma-marcas<< through which users (non-agents, but micro, small and medium entrepreneurs) are guided and assisted virtually, throughout the entire phase prior to the presentation of the Brand Application.

• Search your brand: A digital search engine that is available online for all users, free of charge. It is a powerful tool, without limitations and with several specific search filters,

which also uses the same algorithms used by the Trademark Office itself when conducting the Trademark Registration Exam.

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• Electronic Gazette of Industrial Property: currently, trademark and patent publications are made electronically and free of charge, without any fees.

• National Program of Collective Marks: it has an eminently social objective and is primarily focused on identifying and locating potential owners of collective brands among peasants, farmers, indigenous communities and small entrepreneurs. Just to expand on this, as other colleagues have mentioned, since our intellectual property authority has been in place, we

have only registered 200 collective marks. Nevertheless, since this programme was implemented over the past two years, we have more than 4000 collective marks set up and registered.

• Lastly, we should note the incorporation of the needs of the MSMEs, especially in regards of innovation and the use of marks at the step of designs. Peru has been working on this

together with the WIPO.

In short, Peru supports MSMEs use of the system of Intellectual Property first, at the national level, in the most efficient way possible, and then enter a second phase of internationalization, in which products are marketed and services with added value are provided in foreign markets.

13 INTELLECTUAL PROPERTY AND THE PUBLIC INTEREST: THE WTO TRIPS AGREEMENT AND THE COPYRIGHT THREE-STEP TEST

South Africa

The delegation of South Africa has introduced this item under the heading Intellectual Property and Public Interest. As delegates would recall we have had a long discussion and engagement on the issues on intellectual property and public interest as they pertained to access to health and health technologies and medicine. We thought that it was time to perhaps look at the public interest dimension more broadly than one would find it in the TRIPS Agreement and so from this perspective

we would want to indicate that the focus of this and future communications will look at areas outside of access to health technologies and medicines, but that debate certainly does inform the kind of

discussions that we have had essentially almost for these last two years.

The main purpose of this submission is to address the relationship between the WTO's TRIPS Agreement and copyright, as it relates to the three-step test on limitations and exceptions to copyright, with a view to clarifying the flexibilities to which Members are entitled, in particular, in fulfilling the principles and objectives of the TRIPS Agreement as set out in Articles 7 and 8 of the Agreement.

A balanced interpretation of the copyright three-step test, contained in Article 13 of the TRIPS Agreement, and predicated upon Article 9.2 of the Berne Convention for the Protection of Literary and Artistic Works, would ensure that WTO rules do not undermine Members' policies to promote access to knowledge, culture and development, protect human rights and otherwise promote the public interest, including through appropriate limitations and exceptions to copyright and related

rights.

We note the contours of the three-step test as articulated in Article 13 of the TRIPS Agreement,

which states 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." Certainly, in that formulation we find a litany of technical references which has to be analysed and understood in this context.

Also, the objectives of the TRIPS Agreement as contained in Article 7 indicate that "protection should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in

a manner conducive to social and economic welfare and to a balance of rights and obligations."

Similarly, Article 8 of the TRIPS Agreement provides Members with safeguards in formulating or amending their laws and regulations to "promote the public interest in sectors of vital importance

to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement" and affording Members the right to adopt appropriate measures, provided that they are consistent with the provisions of this Agreement, "to prevent

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the abuse of intellectual property rights by right-holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology."

Similarly, we have had a long debate on Article 40 of the TRIPS Agreement which deals with anti-competitive practices.

Access to information and knowledge is fundamental to achieve many objectives including education and scientific progress. While recognizing the need to protect legitimate interests of

authors and other right-holders, we note that the TRIPS Agreement has "room to manoeuvre" with respect to the implementation of its obligations, including in the area of promoting access to knowledge, culture, education, development as well as other overarching policy objectives.

The centre piece of this paper is really the relationship between TRIPS and the three-step-test for limitations and exceptions to copyright. This, as Members will note, has not been the subject to

in-depth scrutiny at the WTO, except for the Panel established to consider the United States –

Section 110(5) of the Copyright Act case contained in DS160, which does provide some interpretation of Article 13 of the TRIPS Agreement in relation to Articles 11bis(1)(iii) and 11(1)(ii) of the Berne Convention (1971). The panel found that the three-step test requests three separate, independent and cumulative tests for copyright limitations and exceptions. There is disagreement with this interpretation among academic scholars and as it relates to state-practice. It would be useful to discuss the relationship between the TRIPS Agreement and the three-step test for limitations and exceptions to copyright in order to further clarify the flexibilities afforded to Members

to fulfil their obligations in implementing the objectives and principles of the TRIPS Agreement.

The limitations that Members may provide pursuant to the provisions of the Berne Convention that have been incorporated into the TRIPS Agreement consist of so called 'free use' that is to say, the use of protected work that is without an obligation to request authorization or the payment of remuneration, and 'non-exclusive licences', (use without authorization but with the obligation to pay equitable compensation). Outside these specific free uses, for example common law jurisdictions

also recognize the notion of 'fair use' or 'fair dealing', which covers various free uses under

international law. The use of privileges at a national level are generally based on the international copyright acquis. There are many examples of national exceptions and limitations resting on the international three-step test as can be found in the copyright laws of parties to the Berne Convention, including for example reproduction for research or teaching purposes, privileges of libraries, archives or exemptions of reproduction required for administrative, parliamentary or judicial proceedings. It should be emphasized that fair use and fair dealing exceptions are not per se in conflict with the

international three-step test including under the more specific approach that the TRIPS Agreement takes to the three-step test under Article 13.

Samuelson and Hachimoto observe the following: "…there is growing recognition that in an era of rapid technological change, flexible open-ended limitations and exceptions such as fair use, can play a useful role in balancing the legitimate interests of right-holders, subsequent creators and the public, and these could include fan fiction authors, making back-up copies of music and the like, in regulating various uses of copyrighted works that do not have market destructive effects. These

days, legislatures simply cannot anticipate new uses of works in digital form and decide which ones should be permitted through crafting of specific exceptions. Applying fair use or a similar flexible doctrine can enable courts to weigh various factors in order to reach our principle decisions.

The above-mentioned paragraph also provides an important context for our on-going discussion on the 1998 Work Programme on Electronic Commerce. In 1996 the three-step test was incorporated into the WIPO Copyright Treaty (WCT) and the WIPO Performance and Phonographs Treaty WPPT), both are collectively known or referred to as the WIPO Internet Treaties. The

Diplomatic Conference that adopted these two texts, adopted the following agreed statement in respect of Article 10 of the WIPO Copyright Treaty which applies mutatis mutandis to Article 16 of the WPPT and it states:

It is understood that the provisions of Article 10 permits Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions

in their national laws which have been considered acceptable under the Berne

Convention. Similarly, these provisions should be understood to permit Contracting

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Parties to devise new exceptions and limitations that are appropriate in the digital network environment.

South Africa invites Members to contribute to this discussion and to share their national approaches and experiences. We also include some questions for discussion as referenced in the document:

1. Does the three-step test constitute an indivisible whole to the extent that each of

the three steps are to be considered together and as a whole in a comprehensive overall assessment?; and

2. What approaches have Members taken to reflect limitations and exceptions in their IP laws?

India

We thank the delegation of South Africa for introducing this proposal. The submission seeks

to initiate discussions on the relationship between the TRIPS Agreement and the three-step test for application of exceptions and limitations to copyright, as contained in Article 13 of the TRIPS Agreement. The 3-step test originally applied under the Berne Convention, allowed the national laws to carve out exceptions to the exclusive right of reproduction of a copyright- protected work by the copyright owner.

We agree with the approach of the submission that access to information is critical to achieving many fundamental objectives, including education, scientific progress, research, formats of work for

the reading and print disabled, etc. While recognizing the need to protect the legitimate interests of authors and other right holders, the paper rightly notes that the TRIPS Agreement has "room to manoeuvre" with respect to the implementation of its obligations, including in the area of promoting access to knowledge, culture, education and development as well as other overarching public policy

objectives. The Agreement gives enough leeway for the signatory countries to enact the copyright law in their municipal jurisdictions concerning use of copyrighted works for purposes of dissemination of knowledge. Thus, there is considerable flexibility in how a Member may apply the principles in

their domestic laws.

Lastly, we want to mention that Members need time to respond to the questions raised in the submission. Therefore, the issue should be kept open for inputs/experiences to be shared by Members in subsequent meetings of the TRIPS Council.

Chinese Taipei

As regards the three-step test, does it involve individual, independent, and accumulative

assessment of the requirements where each of which has to be fulfilled? Or are the requirements considered collectively and assessed as a whole? In practice, we generally assess each requirement

individually and every requirement has to be fulfilled. That said, we will continue to pay close attention to the development of interpretations globally.

Besides, copyright limitations are prescribed in Articles 44 through 65 of our Copyright Act. For instance, the "case-specific limitations/exceptions" may apply only when the stipulated requirements are fulfilled. In addition, Article 65 provides "general copyright limitations/exceptions"

which addresses circumstances of fair use not prescribed in Articles 44 through 64 and it allows for assessment of individual cases by taking into account all the possible factors/scenarios. We had taken into account the principle of the three-step test at the time of legislation, and by so doing we have fulfilled the TRIPS requirement.

Indonesia

Indonesia welcomes this opportunity, and views positively the inclusion of IP and the Public Interest in the agenda of the TRIPS Council Meeting. We also would like to thank South Africa for

circulating document IP/C/W/663. The debate on the WTO TRIPS Agreement and the copyright three-step test is certainly of interest to our delegation.

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As everyone presumably knows, in the area of exception and limitation in intellectual property, the three-step test is embodied in the Berne Convention and the TRIPS Agreement. There are some debates on interpretation of three-step test for implementation in national level. The Delegation of Indonesia supports the discussion for the WTO TRIPS Agreement and the copyright three-step test on the agenda and we see South Africa's proposal as a good first step to reach for common understanding about the interpretation of the three-step test.

China

China would like to thank South Africa for developing this proposal and I will address the second question in the proposal.

China has always supported a right balance between IP protection and public interests. We believe IP system should protect right holders' legitimate rights and at the same time benefit social

welfare. Limitations and exceptions to the copyright system helps achieve the balance between

authors' exclusive rights and the availability of works to the general public, which is conducive to the dissemination of knowledge and creation of works.

Specifically, in China's Copyright legal system, we have based our domestic rules of copyright limitations and exceptions on relevant provisions in international agreements, namely the Berne Convention, TRIPS Agreement and the WIPO Copyright Treaty. In China's Copyright Law, Article 22 stipulates 12 situations which allow free use of copyrights. Our law does not explicitly use the term "free use". I am just using the term "free use" for the sake of convenience to refer to the scenario

in which a work may be exploited without the permission from the author, and without payment of remuneration to the author, provided the name of the author and the title of the work are mentioned and that other rights enjoyed by the author are respected.

The 12 situations include, for example: (1) for personal study, research and appreciation, (2) appropriate quotation from a published work in one's own work for the demonstration of a point,

(3) reproduction of a work in its collections by a library; (4) translation of a work published by a Chinese citizen which is created in the Han language (Mandarin Chinese), into a minority group

language for publication and distribution within China. Article 23 of our Copyright Law stipulates one situation under which non-exclusive license can apply. Again we do not use the term "non-exclusive license" in the legal text and I am just using "non-exclusive license" for the sake of convenience to refer to the situation where a work can be used without an author's permission, but remuneration has to be paid, the name of the author has to be mentioned, and other rights enjoyed by the author have to be respected. The non-exclusive license is used for compiling or publishing textbooks for the

purpose of implementing the nine-year compulsory education in China.

Furthermore, China's Regulation on Implementing the Copyright Law and Regulation on the Protection of the Right to Communicate Works on Information Networks enacted by the State Council embedded more detailed rules on limitations and exceptions to copyright. The Regulation on the Protection of the Right to Communicate Works on Information Networks specifies exceptions to copyright in the digital environment. To alleviate poverty, a published work of a Chinese citizen on

such topics as planting and breeding, disease prevention and elimination, disaster prevention and

reduction can be made available free of charge to people in the rural area over the internet. No prior permission from the author is needed but the author is entitled to collect remuneration paid by the internet service provider.

In summary, China is of the view that limitations and exceptions to copyright is an important aspect to balance IP rights with public interests and is consistent with the objective of the TRIPS Agreement. We welcome other Members' interventions under this proposal.


The United States recognizes the important obligations that Members have undertaken with respect to copyright as provided in the TRIPS Agreement. It also recognizes that Article 13 sets forth that limitations or exceptions to exclusive rights shall 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.

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This is an ad hoc item and should be treated as such, under the rules of procedure.

Switzerland

Switzerland would like to thank South Africa for its communication IP/C/663 concerning the copyright three-step test for exceptions and limitations.

The so-called "three-step test" is a key concept in copyright law and is found, in slight variation, in a number of international agreements. The main question that South Africa raises for

discussion in its submission in relation to the three-step test is a question of interpretation of Article 13 of the TRIPS Agreement.

However, in the WTO system, the legal interpretation of treaty provisions, including Article 13 of the TRIPS Agreement, is the role of the WTO Dispute Settlement Body, to be applied in a specific

case of dispute resolution.

Questions concerning the interpretation and application of the three-step test in Article 13 of

the TRIPS Agreement are thus not within the competence of the TRIPS Council but are solely the authority of the Dispute Settlement Body.

South Africa

Since we did introduce this item, we would like to thank all delegations that took the floor. This communication is generally worded, and we think that there is definitely some more space to discuss the approach to Article 13 and specifically how it relates to the three-step test. We note the intervention from the honourable delegate from Switzerland, we agree that matters of legal

interpretations should be left to the Dispute Settlement Body but nothing in respect of the subject matter of intellectual property excludes us from having an inclusive debate and so we had hoped that the introduction of this paper would firstly stimulate sharing of views in respect of the operation

and application of the TRIPS Agreement.

I would also like to thank some of the other delegations including India and specifically China who shared to large extent how they have incorporated the limitations and exceptions to Copyright into their laws. Also, we believe that no discussion will be complete if we leave out what Members

have done subsequent to the case and interpretation by the DSB. We note that in many instances countries have introduced and incorporated the three-step test into national legislation and we also note that there has been a further evolution of several approaches under free trade agreements and so from this perspective we think it warrants at least a discussion of what we see within the realm of state practice and what this has meant for individual interpretations of the three-step test under national judicial pronouncements.

Once again we would like to thank all Members who took the floor and I certainly hope that my delegation would be able to continue this discussion by focusing more specifically on some of

the issues that we raised in our paper. As the honourable delegate from the United States clearly points out that when we referred to the context of the TRIPS Agreement Article 13 we need to take note that Members shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with normal exploitation of the work, and do not unreasonably prejudice legitimate interests of right-holders.

As I indicated in the initial intervention there are a whole lot of technical references. Perhaps during the next session of the TRIPS Council we may come back to have a more wholesome discussion on the relevant parts of the three-step test as articulated here, and to further break down the possible implications in respect of some of the meanings and interpretations that have already been given in the context of some of the dispute settlement cases. This would also include what impact this determination would have on a more general flexible interpretation of rights and obligations as they are embedded in the TRIPS Agreement.


We think it should be an ad hoc item and that if it were to be raised in the future, another paper request would be provided.

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14 INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO

TRIPS Amendment


IPR-Related Issues in Trade Policy Reviews and the Director-General's Monitoring Reports

14.2.1 WTO Secretariat

As on previous occasions, the Secretariat will provide a brief update of the issues related to intellectual property policy that have come up in the most recent Trade Policy Reviews.

Since the last TRIPS Council meeting in October last year, the 5th Trade Policy Review of Peru and the 1st Trade Policy Review of Lao PDR have taken place. These reviews covered a very wide range of intellectual property and related trade policy issues. During these reviews, developed and developing-country Members have continued to actively register their interest in TRIPS-related

issues, by addressing specific follow-up questions, including:

• National Intellectual Property Policy and its incorporation into the development strategy;

• Copyright exceptions;

• Protection of computer programmes, databases and domain names;

• Registration of holograms, colour marks, sound marks and position marks;

• Geographical indications and considerations of cultural characteristics;

• Exceptions to patent rights;

• Trade secrets;

• Regime for the collective knowledge of indigenous peoples relating to biological resources;

conduct of bioprospecting and harmonization of commercial interest vs. protection of

indigenous rights;

• Enforcement, online and at the border;

• Judicial remedies;

• Anticompetitive practices; and

• Accession and Ratification of WIPO instruments.

The chart on the screen shows the frequency and type of TRIPS related follow-up questions raised by Members during the trade policy reviews that took place over the last two years.6

15 OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS

India

India supports granting permanent observer status to three intergovernmental organizations

– the South Centre, the CBD Secretariat and the International Vaccine Institute. All the three organizations fulfil the requisite criteria laid down by the General Council with regard to observer status.

Bangladesh

Bangladesh reiterates its position stated in the earlier meetings. Bangladesh would like to support the South Centre to be granted observer status to this Council.

6 The PowerPoint slide is available in Room Document RD/IP/38.

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Indonesia

Indonesia would like to keep our position that we had expressed at previous meetings and reiterates its support for the participation of the two organizations, the South Centre and the Secretariat of the Convention on Biological Diversity (CBD) as permanent observers in this Council.

Venezuela, Bolivarian Republic of

My delegation wishes to reiterate what was expressed in previous meetings regarding granting observer status to the South Center. Likewise, we also want to express the same support for the Secretariat of the Convention on Biological Diversity.

China

China would like to reiterate its support that the CBD Secretariat and South Centre be granted observer status, at least on an ad hoc basis.


The United States cannot join the Members seeking to include any of the prior mentioned entities as an observer, either on a permanent or ad hoc basis.

16 OTHER BUSINESS

Japan

The delegation of Japan hereby expresses its regret over the fact that, at the last TRIPS Council

meeting, a request of consultation on a particular case was introduced under the agenda item 14

"Information on relevant developments elsewhere in the WTO", despite the fact that no request was made from either of the parties.

This practice of introducing ongoing dispute settlement cases is unique to TRIPS Council which, we believe, is not necessarily appropriate in comparison with the practices in the other WTO forums.

Work Programme on Electronic Commerce


Dates of the Next Meeting

16.2.1 WTO Secretariat

The next formal meeting of the TRIPS Council is scheduled for 14-15 May 2020. As regards the autumn meeting of the Council, there has been a slight change in dates due to a shift in schedule of the General Council's meeting. The autumn meeting of the TRIPS Council is now scheduled for 15-16 October 2020.

16.2.2 Bangladesh

The delegation of Bangladesh would like to thank the Secretariat for the annotated agenda (document JOB/IP/36) of this meeting. The annotation has been extremely helpful as a good guide with links to the corresponding documents to follow up the previous discussions. We would like to encourage the Secretariat to continue this practice of preparing annotated agenda in advance for all meetings of the Council in future.

17 ELECTION OF THE CHAIRPERSON


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