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IP/C/M/301 June 2001

(01-2746)

Council for Trade-Related Aspectsof Intellectual Property Rights

MINUTES OF MEETING

Held in the Centre William Rappardfrom 2 to 5 April 2001

Chairperson: Ambassador Chak Mun See (Singapore)

Subjects discussed: Para. Nos.

A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT 1-7

(i) Notifications under Article 63.2 1-6

(ii) Notifications under Article 69 7

B. REVIEW OF LEGISLATION 8-32

(i) Outstanding initial questions from reviews initiated in November 2000 8-11

(ii) Follow-up to the reviews already undertaken 12-17

(iii) Review of the national implementing legislation of Bolivia, Cameroon, Congo, Grenada, Guyana, Jordan, Namibia, Papua New Guinea, Saint Lucia, Suriname and Venezuela 18-30

(iv) Arrangements for reviews in June and November 2001 31-32

C. IMPLEMENTATION OF ARTICLE 70.8 AND 70.9 33

D. IMPLEMENTATION OF ARTICLE 66.2 34-36

E. INFORMATION ON TECHNOLOGY CAPACITY-BUILDING 37

F. TECHNICAL COOPERATION 38-48

G. IMPLEMENTATION OF ARTICLE 23.4 49-85

H. IMPLEMENTATION OF ARTICLE 24.1 86-121

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Subjects discussed: Para. Nos.

I. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2 122-141

(1) General Comments 125-135

(2) Definitions and Criteria for Recognition 136-139

(3) Procedures for Recognition 140-141

J. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b) 142-187

K. REVIEW OF THE IMPLEMENTATION OF THE AGREEMENT UNDER ARTICLE 71.1 188-192

L. NON-VIOLATION COMPLAINTS 193-211

M. ELECTRONIC COMMERCE 212-218

N. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO 219-223

(i) Accessions 219-220

(ii) Dispute settlement 221-223

O. OBSERVER STATUS 224-228

P. OTHER BUSINESS 229-252

Q. ELECTION OF THE CHAIRPERSON OF THE COUNCIL FOR TRIPS 253-255

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A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT

(i) Notifications under Article 63.2

- Notifications from Members whose transitional periods under Article 65.2 or 65.3 expired on 1 January 2000 or who acceded to the WTO after that date

1. The Chairperson drew the Council's attention to the Secretariat's updated note reflecting the status of the notifications received from these Members and distributed prior to the present meeting (JOB(01)/28 of 7 March 2001). Since its distribution, additional notifications of laws and regulations had been received from Honduras, Namibia, Nicaragua, Oman, the Philippines, Saint Lucia and Suriname; and additional notifications of responses to the Checklist of Issues on Enforcement had been received from Costa Rica, Croatia, the Dominican Republic, Honduras, Namibia, the Philippines, St. Lucia and Venezuela. Although several more notifications had been received compared to when the Council had last met, still many Members whose legislation was scheduled to

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be reviewed this year had not yet submitted any notification concerning their implementing legislation. In this regard, he urged those Members to submit the outstanding material without delay. He recalled that Article 63.2 of the Agreement required these Members to notify the laws and regulations pertaining to the subject-matter of the Agreement applicable as of 1 January 2000. He urged the delegations in question, if not all the material to be notified was ready yet, to submit whatever could be notified at present and complement the notification as soon as other parts of the material to be notified would be ready for submission. He reminded delegations that, under the WTO/WIPO cooperation agreement and decisions taken by WIPO's Governing Bodies, the International Bureau of WIPO was in a position to assist delegations with the translation of their main dedicated intellectual property laws and regulations, as required.

2. The representative of Cameroon said that his delegation had not yet received the notifications relating to his country's domestic implementation of the TRIPS Agreement from the authorities in the capital, but wished to reassure Members that his country was much preoccupied by implementing the Uruguay Round instruments and, in particular, the TRIPS Agreement. However, the implementation of this Agreement and the adjustment of national legislation that it called for required considerable time and effort at the national level, including the creation of specific institutions and the training of human resources. His delegation was awaiting information from the authorities in the capital as to the state of progress in his country as regards the implementation of the TRIPS Agreement.

3. The Council took note of this statement.

- Notifications from other Members

4. The Chairperson said that, since the Council's previous meeting, amendments to legislation notified earlier had been received from Bulgaria, the Czech Republic, Estonia, Finland, the Kyrgyz Republic, the Netherlands, Panama and the Slovak Republic. These would be available in the IP/N/1/- series of documents as soon as possible.

5. The representative of Bulgaria said that the notification that his delegation had submitted concerned a new law laying down border measures for the enforcement of intellectual property rights and responses to the corresponding questions contained in the Checklist of Issues on Enforcement (document IP/C/5).

6. The Council took note of this statement.

(ii) Notifications under Article 69

7. The Chairperson said that, since the last meeting, notifications under Article 69 of the Agreement had been received from Slovenia and the Slovak Republic and Switzerland. Notifications on contact points were circulated in the IP/N/3/- series of documents.

B. REVIEW OF LEGISLATION

(i) Outstanding initial questions from reviews initiated in November 2000

8. The Chairperson said that responses to many initial questions posed to Kuwait in the review of its national implementing legislation had remained outstanding. Kuwait had provided responses to certain initial questions, and these had been circulated in document IP/C/W/232. However, it had not yet provided responses to the initial questions posed by Canada, nor to certain questions posed by the European Communities and their member States, Switzerland and the United States and circulated in documents IP/C/W/225, 219, 207 and 215/Add.1, respectively.

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9. The representative of Kuwait said that his delegation regretted the delay and would provide replies to these questions as soon as possible; his authorities in the capital had, for technical reasons, not been able to submit these responses in time for the meeting.

10. The Chairperson suggested that the Council take note of the statement made and revert to this sub-item at the next meeting.

11. The Council so agreed.

(ii) Follow-up to the reviews already undertaken

12. The Chairperson said that, while many responses to follow-up questions posed in the context of the reviews initiated at the last meeting had since been received, responses to some follow-up questions posed to Chile, Kuwait, Paraguay and Turkey remained outstanding, as did the questions from the European Communities and their member States posed to Indonesia (document IP/C/W/220).

13. The representative of Chile said that his delegation was making an effort to provide, in the course of the meeting, replies to the questions that had been posed to it.1

14. The representative of Turkey said that the Turkish Parliament had adopted, on 21 February 2001, a law consisting of 41 Articles amending the Intellectual and Artistic Works Law N° 5846. This amendment included sanctions against violations and up-dated the Intellectual and Artistic Works Law taking into account recent developments in information technology and the consequent needs of relevant sectors and right holders. As regards the outstanding questions, his delegation would provide responses by the end the meeting.2

15. The Chairperson reminded the Turkish delegation to notify the amendment of the Intellectual and Artistic Works Law in accordance with Article 63.2 of the Agreement and the procedures established by the Council (document IP/C/2).

16. Following the receipt, during the meeting, of the outstanding responses from Chile and Turkey, the Chairperson suggested that the reviews of the legislation of Chile, Colombia, Estonia, Guatemala, Peru and Turkey be deleted from the agenda, it being understood that any delegation should feel free to revert to any matter stemming from those reviews at any time. He urged those Members who had not yet supplied responses to certain follow-up questions to do so without delay and suggested that that the Council revert to this sub-item at the next meeting.

17. The Council so agreed, while taking note of the statements made.

(iii) Review of the national implementing legislation of Bolivia, Cameroon, Congo, Grenada, Guyana, Jordan, Namibia, Papua New Guinea, Saint Lucia, Suriname and Venezuela

18. The Chairperson said that six of the eleven Members under review had provided notifications of implementing legislation, namely Bolivia, Jordan, Namibia, Saint Lucia, Suriname and Venezuela. Responses to the Checklist of Issues on Enforcement (document IP/C/5) had been received from Jordan, Namibia and Saint Lucia prior to the meeting as well. Questions posed to the Members under review had been received from Canada, the European Communities and their member States, Japan, Switzerland and the United States and circulated in documents IP/C/W/245, 244, 238, 239 and 240

1 The answers thus provided will be circulated as part of the records of the review of Chile's implementing legislation in document IP/Q/CHL/1.

2 The answers thus provided will be circulated as part of the records of the review of Turkey's implementing legislation in document IP/Q/TUR/1.

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respectively. Some of the questions had been posed less than three weeks before the present meeting. Saint Lucia, Jordan and Namibia had provided responses to many questions prior to the meeting, which had been circulated in documents IP/C/W/237, 248, 250 and addenda to these documents.

19. In accordance with the procedures for the reviews of legislation, the delegations of Bolivia, Jordan, Namibia, Saint Lucia and Venezuela each provided a brief introductory overview of the structure of its legislation in the areas covered by the Agreement and of the changes, if any, that it had had to bring about in order to make the legislation compatible with the TRIPS Agreement.

20. The representative of Cameroon referred to his statement earlier at the meeting, under agenda item A, and said that, for the same reasons, his delegation was not in a position, at the present meeting, to either make an introductory statement or provide responses to any of the questions posed to his country.

21. The representative of Congo said that, for domestic political and administrative reasons, his country's authorities responsible for intellectual property legislation had been neither in a position to prepare the necessary documents within the deadline for the review of his country's legislation by the TRIPS Council, nor to come to Geneva for the present meeting. Consequently, he requested the Council, on behalf of his authorities, to postpone the review of Congo's intellectual property legislation to the next Council meeting. He thanked the Members who had shown an interest in his country's legislation by posing questions concerning the Congolese legislation, i.e. Canada, the European Communities, Japan, Switzerland and the United States, and wished to ensure the Council that all would be done necessary to initiate the review of his country's legislation at the next meeting.

22. The Chairperson noted that the delegations of Grenada, Guyana, Papua New Guinea and Suriname were not represented at the meeting, adding that the Secretariat had received an e-mail from Suriname saying that, due to unforeseen circumstances, the representative of Suriname had been unable to leave for Geneva and requesting postponement of the review of its legislation to the next meeting.

23. The Chairperson suggested that the Council take note of the statements made and revert, at the next meeting, to the reviews of Cameroon, Congo, Grenada, Guyana, Papua New Guinea and Suriname initiated at the present meeting.


25. The representative of the United States wished to underline that Bolivia, Jordan and Namibia, in their introductory statements, had each recognized the importance of strong intellectual property protection for attracting foreign investment. He also commended those developing country Members that had notified their laws and regulations in a timely fashion. However, he noted that, although the year 2000 had ended more than three months ago, many developing country Members still had not notified their laws and regulations as required by Article 63.2, and expressed the view that the fact that reviews of legislation had to be initiated without the applicable laws and regulations having been notified seriously reduced the efficiency of the exercise for all involved.

26. The representatives of the European Communities, Japan and Switzerland expressed support for the United States. The representative of Japan added that, for similar reasons, his delegation would also appreciate it if all Members under review could provide their responses in accordance with the agreed schedule.

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27. The representative of Barbados congratulated Saint Lucia for the extensive work it had carried out and wished to emphasize how notable an achievement this was for a small developing country like Saint Lucia which, like others in the region, was facing great capacity constraints in meeting the existing WTO commitments.

28. During the meeting, some Members posed follow-up questions. The Chairperson suggested the following arrangements for the subsequent follow-up to the reviews initiated at the present meeting:

- outstanding responses to initial questions be submitted to the country concerned and the Secretariat by 27 April 2001; and

- that the texts of any further follow-up questions be submitted to the country concerned and the Secretariat by 18 May 2001; and

- that a target date of 15 June 2001 be set for the submission by the countries under review of responses to follow-up questions which had already been posed not yet replied, fine-tuned versions of responses to questions to which they had given preliminary replies and, to the extent possible, responses to any further follow-up questions that would be made available before 18 May 2001.


30. The records of the introductory statements made in the reviews initiated at the present meeting as well as the questions put to the Members concerned and the responses given (including responses to follow-up questions) will be circulated in documents with the following symbols:

Bolivia IP/Q/BOL/1; IP/Q2/BOL/1; IP/Q3/BOL/1; IP/Q4/BOL/1;Cameroon IP/Q/CMR/1; IP/Q2/CMR/1; IP/Q3/CMR/1; IP/Q4/CMR/1;Congo IP/Q/COG/1; IP/Q2/COG/1; IP/Q3/COG/1; IP/Q4/COG/1;Grenada IP/Q/GRD/1; IP/Q2/GRD/1; IP/Q3/GRD/1; IP/Q4/GRD/1;Guyana IP/Q/GUY/1; IP/Q2/GUY/1; IP/Q3/GUY/1; IP/Q4/GUY/1;Jordan IP/Q/JOR/1; IP/Q2/JOR/1; IP/Q3/JOR/1; IP/Q4/JOR/1;Namibia IP/Q/NAM/1; IP/Q2/NAM/1; IP/Q3/NAM/1; IP/Q4/NAM/1;Papua New Guinea IP/Q/PNG/1; IP/Q2/PNG/1; IP/Q3/PNG/1; IP/Q4/PNG/1;Saint Lucia IP/Q/LCA/1; IP/Q2/LCA/1; IP/Q3/LCA/1; IP/Q4/LCA/1; Suriname IP/Q/SUR/1; IP/Q2/SUR/1; IP/Q3/SUR/1; IP/Q4/SUR/1;Venezuela IP/Q/VEN/1; IP/Q2/VEN/1; IP/Q3/VEN/1; IP/Q4/VEN/1.

(iv) Arrangements for reviews in June and November 2001

31. The Chairperson said that for the Council's next meeting, in the week of 18 June 2001, the reviews of the legislation of 24 Members were scheduled to be initiated and for the meeting in the week of 26 November 2001, those of 17 Members.3 According to the procedures applicable to these reviews, Members would be taken up in alphabetical order, while allowing for flexibility to take account of the special needs of particular delegations. Pursuant to the procedures followed in 2000, he drew lots to determine which of the Members concerned would be taken up first. Thus, he suggested that, in June, the review of the legislation of Dominica would be initiated first and, in November, that of the legislation of Saint Vincent and the Grenadines, followed by the other Members in alphabetical order. He recalled that, as regards the reviews scheduled for the meeting in the week of 18 June 2001, the Council had agreed, at the previous meeting, that questions to the Members concerned should be submitted by 9 April 2001 and the written responses of these Members

3 Lists of the Members concerned can be found in JOB(01)/28.

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by 21 May 2001. As regards the reviews in the week of 26 November 2001, he suggested that questions to the Members concerned should be submitted by 14 September 2001 and responses to questions posed within that deadline by 26 October 2001.


C. IMPLEMENTATION OF ARTICLE 70.8 AND 70.9

33. The Chairperson informed the Council that the notification from Jordan of legislation under Article 63.2 of the Agreement, which had been circulated in document IP/N/1/JOR/1, also contained a notification relating to Article 70.8 and 70.9. He refered to Annex III of that document. Otherwise, he had no new notifications to report to the Council under this agenda item.

D. IMPLEMENTATION OF ARTICLE 66.2

34. The Chairperson recalled that the implementation of Article 66.2 had been under discussion in the Council since December 1998 and that the Council had received information from 20 developed country Members on how that provision was being implemented in their territories. Since June 2000, the Council had also had before it a Secretariat note (IP/C/W/169), prepared on a request from the Council, setting out the types of incentive measures that had been notified, with cross references to where further details could be found; as well as a proposal from the delegation of Zambia relating to special and differential treatment in respect of technology transfer (IP/C/W/199). In relation to Article 66.2, the Special Session of the General Council on Implementation had agreed, at its meeting of 18 October 2000, to invite the TRIPS Council, with a view to facilitating full implementation of Article 66.2: to give consideration to drawing up an illustrative list of incentives of the sort envisaged by Article 66.2; to put on a regular and systematic basis its procedure for the notification and monitoring of measures in accordance with the provisions of Article 66.2 and, in doing so, to give consideration to avoiding unnecessary burdens in notification procedures. It had appeared, at the last meeting, that those delegations which had previously indicated their intention to submit proposals concerning an illustrative list of incentives and a systematic notification and monitoring procedure were not yet ready to do so. As a result, the Council had agreed to revert to this matter when such proposals would be before it.

35. The representative of Zimbabwe, speaking on behalf of Zambia, said that the submission concerning these proposals was still in preparation and requested that the item be discussed at a subsequent session of the Council.

36. The Council took note of this statement and agreed to revert to the matter at its next meeting.

E. INFORMATION ON TECHNOLOGY CAPACITY-BUILDING

37. The Chairperson said that the Council had agreed at its previous meeting to invite the CBD Secretariat, UNCTAD, UNIDO, WIPO and the World Bank to provide to the Council, prior to the present meeting, written information on their activities on technology capacity-building. Such information had been received from the CBD Secretariat, UNCTAD, UNIDO and WIPO and distributed in documents IP/C/W/243 and addenda.

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F. TECHNICAL COOPERATION

38. The Chairperson recalled that, at the previous meeting, the delegation of Hong Kong, China had presented a non-paper outlining a proposal for "Technical Assistance on TRIPS Notifications between WTO Members", which it had jointly submitted to the Council with a number of other Members. The discussion that had followed had shown that there was no objection in the Council to this proposal for assistance on a voluntary basis and that the sponsors should feel free to proceed. Since then, a formal submission on the matter had been received from the delegations of Australia; Bangladesh; the European Communities and their member States; Hong Kong, China; Norway; and Zambia. As outlined in this document (IP/C/W/241), Members who were interested in offering assistance under the scheme were invited to notify the TRIPS Council through the Secretariat as soon as possible with a designated contact point. To date, three such notifications had been received, namely from Hong Kong, China, Australia and the European Communities and their member States, and had been circulated under the IP/N/7- series of documents. A list of Members offering assistance under the scheme would be available in the IP/C/W/- series of documents shortly. Updates of the list would be issued whenever other donor Members joined the scheme.

39. The representative of Hong Kong, China said that the demand for technical cooperation was likely to increase in the next few years, in view of the fact that the current least-developed country Members would need to comply with their obligations under the Agreement as of 1 January 2006 and a number of other least-developed countries were negotiating their accession to the WTO. His delegation therefore wished to urge other developed country Members to participate in the scheme and to offer assistance as outlined in document IP/C/W/241.

40. The representative of Korea said that his delegation would communicate Korea's contact point to the Secretariat in the near future.

41. The representative of Singapore informed the Council that, among APEC countries, those countries which had already implemented the TRIPS Agreement assisted those which had not yet done so. In this connection, Singapore had made a presentation of its own experience with implementation and the review of its legislation. Similarly, the ASEAN countries also had an ongoing project amongst them relating to implementation of the TRIPS Agreement. Singapore was in charge of this project, which involved the organization of technical cooperation seminars and any other technical assistance activities required.

42. The representative of Australia said that Australia had experience with providing assistance in respect of notification requirements and procedures, including through expert missions it had sent in the context of APEC to Malaysia and Viet Nam. Referring to her statement at the previous meeting, as reflected in paragraph 35 of document IP/C/M/29, she wished to emphasize that the informal survey providing practical aid for the preparation of notifications, which Australia had distributed to all developing and least-developed country Members in Geneva in December 1999, was also available on the Internet, the address being http://www.dfat.gov.au/trips. She announced that her delegation was also preparing the distribution of a biotechnology training package which would focus on the commercialisation and management of intellectual property in this area.

43. The representative of the United States reiterated that the United States already provided a wide range of technical assistance activities but was ready to provide also assistance, as their resources permitted, specifically with respect to the notification and review of laws and regulations to any Member requesting such assistance.

44. The representative of European Communities said that the system outlined in document IP/C/W/241 was in principle aimed at requests from least-developed country Members, in the light of their obligation to apply the Agreement by 1 January 2006. However, developing country Members

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who still needed to meet their obligations which had entered into force in January 2000 were also able to benefit from the scheme.

45. The Chairperson recalled that, at the previous meeting, the Secretariat, responding to a query from the European Communities concerning the issue of technical assistance to least-developed country Members whose transitional periods would expire on 1 January 2006, had reported that it was discussing with the International Bureau of WIPO how to coordinate better and enhance cooperation specifically with the needs of least-developed countries in mind.

46. The representative of the Secretariat said that the discussions with the International Bureau of WIPO were ongoing. He recalled that the two Secretariats had already cooperated in this area on the basis of the cooperation agreement between the two Organizations of December 1995 and were looking at how to intensify this cooperation using the positive experience they had with the joint initiative the two organizations had launched in 1998 in view of the obligation for developing country Members to meet their commitments under the Agreement by 1 January 2000 and taking into account the needs of least-developed countries.

47. The representative of WIPO concurred with this statement.

48. The Council took note of the statements made.

G. IMPLEMENTATION OF ARTICLE 23.4

49. The Chairperson recalled that the Council's discussions on this matter were taking place on the basis of two proposals, one from the European Communities and their member States and the other from Canada, Chile, Japan and the United States; and that the Council had also received papers addressing specific aspects of these proposals, one from New Zealand, which had been presented in September 2000, and another from Hungary, which had been presented at the last meeting and in respect of which an additional paper had just been received from Hungary. At its previous meeting, the Council had had an extensive discussion of the matter and specific questions posed remained outstanding. He recalled that the delegation of Australia, for example, had posed a large number of questions to the European Communities and their member States with regard to their proposal for the establishment of a multilateral system of notification and registration of geographical indications.

50. The representative of Hungary introduced the paper which his delegation submitted at the beginning of the meeting (document IP/C/W/255). In this paper, his delegation maintained its position with respect to the main points expressed in its earlier paper (document IP/C/W/234), i.e. that there should be a multilateral possibility to challenge the registration of a notified geographical indication and that the results of a successful challenge, where appropriate, should apply on an erga omnes basis. His delegation was grateful for the many positive comments other delegations had made on Hungary's earlier paper at the previous meeting of the Council. It had noticed that most delegations had referred to the points raised in document IP/C/W/234 as elements supplementing the proposal from the European Communities and their member States (document IP/C/W/107/Rev.1). This was logical, since Hungary's paper was supportive of the EC proposal and sought to develop it further. His delegation had based its paper on the EC proposal, because it was the only proposal to date that adequately reflected the provisions of Article 23.4, by foreseeing the establishment of an effective registration mechanism, in addition to a system of notification. In light of the comments made at the previous meeting and for the sake of clarity, his delegation's new paper (document IP/C/W/255) presented the points raised in document IP/C/W/234 in the form of draft language for incorporation into the EC proposal. He said that the text chosen was deliberately neutral while reiterating his delegation's position that the register should be set up in such a way as to be able to accommodate also geographical indications for other products to which, his delegation hoped, its coverage would be extended.

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51. Turning to specific points addressed in document IP/C/W/255, he said that paragraph A of the Annex said that, if direct bilateral negotiations would not yield a mutually satisfactory solution to a challenge, the case should be settled through final and binding multilateral arbitration. According to paragraph H of the Annex, the registration mechanism was to have erga omnes effect. Subparagraphs 1 and 2 in essence said that a challenge should suspend the registration procedure. According to subparagraph 3, notified geographical indications which, on the basis of a challenge, were found not to satisfy the definition of Article 22.1 or the provisions of Article 22.4, should not be taken up in the register. The reason for this was that the register should, in accordance with Article 23.4, facilitate the protection of geographical indications, which it would not do if it contained geographical indications that did not satisfy the definition laid down in the Agreement or that were literally true but misleading. Thus, the register would have erga omnes effect. However, a challenge under subparagraph 4, i.e. based on one of the exceptions of Article 24, could, when successful, justify only the refusal of protection in respect of the Member or Members who had successfully challenged registration (see subparagraph 5, second sentence). Subparagraphs 6, 7 and 8 were identical with paragraphs 3, 5 and 6 of the EC proposal.

52. The representative of the European Communities welcomed Hungary's proposal, which Hungary had characterized as supplementing the EC proposal, and emphasized that Hungary's proposal offered the Council more substantive material allowing it to make progress with the establishment of a multilateral register and sought to establish a register with erga omnes effect.

53. The representative of the United States said that, at the previous meeting, some Members had suggested that there was a link between Articles 23.4 and 24.1 in the sense that, since Article 24.1 required Members to enter into negotiations aimed at increasing the protection of individual geographical indications under Article 23 and forbade them to refuse to enter into such negotiations when a Member had requested these, notifications of geographical indications for inclusion in the registration system to be set up under Article 23.4 would at the same time constitute requests for negotiations under Article 24.1. Thus, these Members were suggesting that, while participation in the system to be set up under Article 23.4 was voluntary in the sense that any Member was free to decide whether it wished to benefit from that system in respect of geographical indications originating in its territory, the linkage with Article 24.1 in effect made the effect of notifications under the Article 23.4 system mandatory for all Members, i.e. not merely for those participating in that system. His delegation wished all Members and observers to understand the dramatic nature of this linkage. Members stating that they would consider their notifications under Article 23.4 to be requests for negotiations under Article 24.1 were simply attempting to renegotiate the TRIPS Agreement. To avoid any misunderstanding, his delegation believed that a new Round would be required to make any of the purported changes and did not support new negotiations on this topic. Alterations made to earlier proposals tabled did not eliminate the concern his and other delegations had about the imposition of new obligations on all Members to protect particular geographical indications regardless of the changes that would be required in their national laws to do so. His delegation was especially troubled by some Members' willingness to impose new obligations in light of some Members' failure to uphold their existing obligations with respect to geographical indications. The sheer number of geographical indications that would likely be notified and the volume of materials that would be submitted to support each of them under paragraph B(3) of the proposal contained in document IP/C/W/107/Rev.1 represented an imposition on all Members of a tremendous burden to monitor each and every geographical indication to which they objected. In order to appreciate the volume of geographical indications that could be expected to be notified under such a system, Members might wish to review the various bilateral agreements that had been concluded with respect to geographical indications for wines and spirits. His delegation had found over 6,000 geographical indications notified under some of those agreements, just for wines and spirits. If the same terms would be notified under the system to be set up under Article 23.4, each Member would have to determine any objections that might exist against any of these and each Member would, if there were such objections, individually have to challenge each term in question. Under the proposed system

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contained in document IP/C/W/107/Rev.1, a challenge by one Member would not help other Members and every Member that would not challenge a certain term within a certain time-limit would automatically be required to protect the notified term, even though the term in question might be successfully challenged by other Members.

54. Turning to Hungary's proposed opposition/challenge procedure, his delegation wished to endorse the point made that any system to be set up under Article 23.4 had to provide for a level playing field, i.e. the applicable rules must ensure fairness. Members with little bilateral bargaining power had to enjoy precisely the same opportunities to represent their legitimate commercial interests as Members with superior bilateral bargaining power. His delegation also agreed with Hungary that any multilateral system to be set up under Article 23.4 had to be organized so as to prevent abuses and manipulation. He said that Hungary's proposal, by stating that "it should be up to a multilateral mechanism and not be left to individual Members to decide if a challenge is justified or not", thus called for a multilateral tribunal with international jurisdiction over geographical indication matters; imagined a dispute settlement body which would determine whether a Member's opposition was legitimate or not; and decisions that would have universal effect. In practical terms, this meant that a dispute settlement body would become involved in bilateral trade efforts and that its decisions would affect all Members. Hungary's proposal therefore appeared to confirm the involuntary nature of other Members' proposals, because under its proposal the decisions of the dispute settlement body would have a universal effect even for those Members which did not choose to participate in the system of notification and registration to be set up under Article 23.4.

55. Continuing, he said that eligibility for protection of geographical indications should be determined as was done in the case of other forms of intellectual property provided for in the TRIPS Agreement, i.e. under TRIPS-consistent national laws. Nothing in the Agreement, including Article 23.4, provided for the imposition of obligations to protect specific geographical indications that would otherwise be ineligible for protection under national laws. His delegation was concerned about the additional obligation Hungary's proposal would impose on Members. Those which did not participate in the system and take on the burden of review would not have a choice. If they had concerns about any of the notifications, they would have to enter into negotiations. If those failed, a dispute settlement body would determine their fate. Unfortunately, the burden of such an opposition system might, despite Hungary's good intentions, fall most heavily on developing country and least-developed country Members. If certain Members could identify over 6,300 separate terms for wines and spirits for which they would like geographical indication protection, what would be the limit? Which Member had the resources to research and possibly challenge over 6,300 separate terms? Which Member had the resources to defend each notification to which an objection were filed? All Members understood the need for a reliable body of information on what was, and what was not, recognized by Members as geographical indications for wines and spirits within their own territories. The collective proposal of Canada, Chile, Japan and the United States, as supported by other Members, addressed this need. A registration system based on notification would ensure that Members had a resource to enable them to determine whether particular indications were protected in their country of origin. The collective proposal would accomplish this without imposing additional obligations under the TRIPS Agreement that might require Members to adjust their laws and regulations to protect particular geographical indications. Negotiations on this item to date had not shown widespread support for resource-intensive burdens of monitoring, filing and defending against complaints.

56. The representative of Australia wished to confirm her delegation's support for the collective proposal (document IP/C/W/133/Rev.1) and comment on the paper presented by Hungary at the previous meeting in (document IP/C/W/234). Her delegation appreciated that Hungary had submitted a paper on an opposition/challenge procedure in the multilateral system to be set up under Article 23.4. Australia was committed to moving forward in the negotiations under Article 23.4 and the submission of substantive papers on possible elements of the multilateral register provided an

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excellent opportunity for Members to focus on the details of the type of system that Members might agree upon as a means of advancing the discussions. Article 23.4 was aimed at facilitating existing rights, not creating new rights. The system that it envisaged therefore did not require a formal dispute settlement system of the kind outlined by Hungary. Any proposal such as those advanced by the European Communities and Hungary for a multilateral register that would operate so as to override or pre-empt national geographical indication systems, and would require a dispute settlement mechanism to arbitrate on the legal effect of registration in domestic jurisdictions, was beyond the scope of Article 23.4. The Hungarian proposal, combined with the EC proposal, imposed substantive new obligations on Members. For example, it would require Members to submit to a formal opposition procedure and dispute settlement mechanism in relation to individual geographical indications, the outcome of which would have domestic effects. This was a considerably greater obligation than providing the legal means for interested parties to prevent this, as required under Article 23.1. Further, the formal nature of Hungary's proposal detracted from the flexibility that the TRIPS Agreement provided to Members to implement intellectual property protection in a manner that best suited their own legal, social and economic circumstances. In particular, Hungary's proposal removed jurisdiction from domestic courts or administrative bodies to make final determinations to determine the status of individual geographical indications in their own territory.

57. Offering specific comments on Hungary's proposal, she said that her delegation agreed with the statement in paragraph 4 that it was highly doubtful whether the WTO dispute settlement mechanism could resolve disputes concerning individual geographical indications. Even if the DSU could provide such a mechanism, her delegation was concerned, particularly in light of the potential volume of notifications under Article 23.4, about the increase in the number of cases under the WTO dispute settlement mechanism that this might bring and the cost and other implications that the submission of or defence in cases concerning individual geographical indications under the DSU would have for many countries, including Australia. Her delegation had noted Hungary's acknowledgement that the dispute settlement mechanism should accommodate the needs of smaller Members and those with less bilateral bargaining power, but was concerned that submitting to an additional formal international dispute resolution process would lead to excessive costs and might entail its own inherent lack of fairness for such countries. Such formal processes would inevitably require parties to provide oral and/or written submissions and might involve appearances before an arbitration panel in Geneva. Such a system would disadvantage those countries with less resources both in terms of the ability to defend decisions that they had taken to oppose automatic protection in their country and the capacity to take action against decisions of other countries. Australia was concerned that the possible costs that this might involve could act as a deterrent to many Members to participate in the system. Paragraph 4 of Hungary's paper stated that an opposition procedure was necessary to ensure that the register would not contain "misleading" geographical indications. Her delegation would be grateful if Hungary could clarify what was meant by "misleading" in this context. The exceptions to geographical indication protection that could be claimed in domestic jurisdictions were set out in the TRIPS Agreement, for example in respect of "generic terms" in Article 24.6. What was the intended scope of the issues on which the arbitral panel could make determinations? Would it extend to decisions that a particular geographical indication did not meet the definition or criteria for protection under the TRIPS Agreement, or fell within the exceptions provided under the TRIPS Agreement? Or would these decisions be outside the competence of the arbitral body? How would the issue of a "misleading" geographical indication fit within the protection provided under Article 23? Her delegation was concerned about the suggestion in paragraph 5 that a multilateral system was the appropriate mechanism to determine challenges involving individual geographical indications, rather than leaving it to individual Members. For example, regarding an exception claimed under Article 24.6, should it not be for an individual Member to determine whether a particular term was "customary in the common language" of that Member as the "common name for such goods and services"? If this was to be determined at the multilateral level, how would the multilateral system determine the signification of a term in an individual country? What evidence would a country need to adduce and which party would bear the burden of proof? Hungary's proposal provided limited

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details of the likely procedural rules, membership and funding for the envisaged arbitral body. Further details of such issues were important to determine the feasibility of the proposed mechanism. How would the arbitrators be selected? Would it be a standing body or one created on an ad hoc basis? How could the relevant expertise of arbitrators be guaranteed? How would the body be funded: from existing Secretariat resources, contributions from Members participating in the system, or otherwise?

58. The representative of New Zealand said that one reason for her delegation to associate itself with the collective proposal from Canada, Chile, Japan and the United States was its concern about the additional level of legal obligations that the proposal from the European Communities and their member States would create, without a mandate in the TRIPS Agreement for doing so. Offering preliminary comments regarding Hungary's proposal, her delegation's experience was that the kind of multilateral arbitration envisaged by this proposal was often very costly and not worth the expenditure. Since potentially thousands of geographical indications might be notified under the system to be set up under Article 23.4 and the register envisaged by the proposal would not be voluntary but would extend protection of the terms notified to all Members, the mind boggled at the resource implications. New Zealand, like many other Members, did not have the availability over such resources. She echoed Australia's request for clarification of how the proposed arbitration system would be organized in practice.

59. The representative of India reiterated his delegation's position concerning the mandate in Article 23.4 and its wish to have a register established and be extended to products other than wines and spirits.

60. The representative of Switzerland said that Hungary's proposal highlighted important elements which had to be taken into account to complete the proposal from the European Communities and their member States. In order to have a multilateral registration system that would be effective, there was a need, first, for procedures to settle disagreements on the registration of individual geographical indications and, second, for registrations to have legal effect. Switzerland, like many other delegations, was interested in the establishment of a system of notification and registration that would be effective and credible. Such a system had to constitute an adequate system of registration and not just a simple database which would be unable to achieve the goal of Article 23.4, which was to facilitate and improve the protection of geographical indications. The listing of a denomination in a database without an opposition procedure nor an erga omnes effect of this listing would leave it to national courts to decide whether or not the denomination in dispute was a protected geographical indication under Article 22.1 and would lack the legal security intended under Article 23.4.

61. The representative of Canada wished to confirm that her delegation was dedicated to fulfilling the obligation WTO Members had to create a multilateral register for geographical indications for wines and spirits. The collective proposal, which Canada had co-sponsored, was intended to offer a facilitative, simple, voluntary and low-cost approach. It was important to find a balance as to the resource implications of fulfilling their obligation and, in this regard, her delegation supported the interventions made by Australia and the United States.

62. The representative of Chile said that his delegation fully recognized the obligation that existed under the Agreement to establish a multilateral notification and registration system for geographical indications for wines. However, there was no obligation that this system would be mandatory, nor that it would have erga omnes effect. Neither did the Agreement require the establishment of a system of international arbitration to resolve conflicts between two countries as to who owned a particular geographical indication. Article 23.4 did not remove from national jurisdiction the right to determine which geographical indications would be recognized and enforced in that Member, nor did it require the establishment of a system of opposition in respect of geographical indications. There was no obligation in the Agreement to establish a superstructure for geographical indications that had

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no parallel in respect of any other intellectual property right. The only way in which the Council could advance on this matter was to stick to the true sense and scope of Article 23.4 and apply this provision strictly.

63. The representative of the European Communities asked whether the delegation of the United States could clarify its position as to what it was prepared to negotiate, in light of comments made by this delegation at previous meetings of the Council and statements made by high-level representatives of the United States with respect to a new Round. Given that the United States had endorsed the point made by Hungary that any system to be set up under Article 23.4 had to have a truly multilateral character, he wondered why the collective proposal, which the United States had co-sponsored, did not meet that condition but rather called for a mere database without legal effect and without a means of solving disputes about the registration of particular geographical indications. He had noted that Australia had expressed itself positively about Hungary's proposal only to the extent that it would provide for multilateral arbitration rather than dispute settlement, no doubt because Australia was not favourable to the establishment of a meaningful system of notification and registration at the multilateral level either. Any register must have a mechanism to resolve disputes. He shared the frustration expressed by the delegation of India regarding the dragging on of the negotiations for the establishment of the register and wished to make a modest suggestion in order to help these negotiations progress. Since there were now three proposals on the table, even though Hungary's proposal was only a partial one, he proposed that the Secretariat prepare a comparative table of these proposals. He said that he was not asking for a document which would entail an interpretation of the proposals or a major analysis of them, but for a helpful instrument that would enable all to better understand the different proposals made by listing their respective features in three columns following the order in which each of them had been presented.

64. The representatives of the Bulgaria, Cuba, the Czech Republic, Hungary, Morocco, Slovenia, Sri Lanka and Switzerland expressed support for this proposal from the European Communities.

65. The representative of the United States, responding to the requests for clarification by the European Communities, said that he was not sure to which high-level representatives of the United States the representative of the European Communities had referred. Nonetheless, clearly, his delegation was committed to the negotiations already mandated by Article 23.4. He was aware that, at the previous meeting of the Council, his delegation had stated that the United States would be willing to consider negotiations on geographical indications in the context of a new Round. Certain Members had understood this to mean that the United States was supportive of negotiations on geographical indications, which was incorrect. Turning to the substance of the collective proposal (document IP/C/W/133/Rev.1), his delegation considered the system proposed in that document certainly of a multilateral character and, in any event, it corresponded more to the language of Article 23.4 and was far less burdensome for Members than the other proposals that had been tabled while providing a practical and important means of ensuring that the protection provided for in Article 23 would be available. Other proposals for the multilateral register to be established went far beyond anything the TRIPS Agreement required, not only in respect of geographical indications but even in respect of other forms of intellectual property. He wished to underline that in no area of intellectual property an international tribunal of the nature proposed existed. His delegation did not understand why some Members, who had stressed repeatedly believed that the TRIPS Agreement constituted a tremendous burden for them, supported proposals in this area that would be more burdensome than anything the TRIPS Agreement required at present. Responding to the European Communities' proposal for the preparation of a comparative table, he said that his delegation was interested in anything that would add clarity to the discussion, but preferred to reflect on the proposal for a comparative table, including its possible structure, and come back to it at the next meeting.

66. The representative of Australia objected to the European Communities' comment about Australia's disposition in the discussions and said that her delegation, being constructively engaged in the

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negotiations had posed, at the previous meeting, a number of questions to the European Communities in order to advance the discussions. She reiterated her delegation's view that several aspects of the proposal from the European Communities mirrored aspects of the Lisbon Agreement, which was an instrument with a small and narrow range of adherents, and cautioned again against the premise that the notification and registration system to be established under Article 23.4 had to have the maximum legal effect. Australia's substantive comments on the proposals that had been tabled were designed to ensure that the system that would eventually be established would be truly effective. As regards the European Communities' proposal for the Secretariat to prepare a comparative table, she would consult her capital and hoped to present, at the next meeting, her delegation's views on how such a table might be structured.

67. The representative of Japan said that his delegation was still examining Hungary's proposal and would revert to it at the next meeting. Offering general comments, he said that the multilateral system to be established under Article 23.4 should not create new obligations beyond those in the TRIPS Agreement and that the real effect of a multilateral register should be determined by each Member's national law in accordance with the relevant provisions of the TRIPS Agreement. In fact, additional protection as required by the Agreement was already provided by those Members which had implemented the Agreement. As stipulated in Article 23.4, the multilateral system should be based on voluntary participation. The administrative burden and associated costs imposed by the multilateral system should be as small as possible. The incorporation of examination and opposition procedures would make the system much more costly and burdensome, in particular if the thousands of geographical indications that could be the subject to such procedures had to be dealt with within a period of 18 months as proposed by the European Communities. The same comment applied to the multilateral arbitration procedure proposed by Hungary. Discussions at this stage should concentrate on the products covered by Article 23.4, i.e. wines and possibly spirits. He was not in a position to respond formally to the European Communities' proposal for a comparative table, but said that such a table would be useful only if it were structured in a neutral manner and not give a misleading impression in respect of any of the proposals reflected in it.

68. The representative of New Zealand said that her delegation was open to ideas to move negotiations forward on this issue. It had only learnt of the European Communities' proposal for a comparative table at the present meeting and needed time to consider it. New Zealand might have suggestions for additions that would also be useful for the negotiations.

69. The representative of El Salvador associated his delegation with the interventions made by Chile and the United States. His delegation could not accept the creation of obligations beyond those laid down in the TRIPS Agreement. Under Article 23.4, rights derived from the register would be applicable only in those Members participating in the system to be established under that provision and an erga omnes effect as had been proposed was unacceptable to his delegation.

70. The representative of the Czech Republic supported Hungary's proposal which clarified the legal effects of a registration system and elaborated on important elements of the proposal from the European Communities. Her delegation supported further work on the clarification of the EC proposal, in particular as regards the possible extension of the register to geographical indications for products other than wines. The negotiations on the establishment of the register should cover this possibility.

71. The representative of the European Communities said that a large number of delegations had responded to his proposal for a comparative table, which would represent a modest step to help advance the discussions, and that some delegations had said that they would respond to this proposal, and possibly present their own suggestions, at the next meeting, in June 2001. However, if they presented their own ideas in June, other delegations might need further time to consider these and there might not be consensus to request the Secretariat to undertake this modest work until September.

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His delegation did not wish to wait that long and would therefore submit its own comparative table shortly.

72. Turning to the revised collective proposal (IP/C/W/133/Rev.1), he recalled that the term "wines and spirits" in the original proposal had been replaced by the term "covered products" in the revised proposal. The United States, in its introduction of this proposal, had said that discussions on the nature of the system should be kept separate from discussions on its scope. The European Communities agreed with this view and had adopted a similar approach in its own revised proposal (IP/C/W/107/Rev.1). However, given the continued unwillingness of the United States and several other delegations to even enter into a discussion on the protection of geographical indications in respect of other products, he would like the United States to clarify its position in this respect. He wondered why, as proposed in the collective proposal, notification of geographical indications every six months should lessen the burden for the WTO Secretariat. The collective proposal was also unclear as to the consequences of a withdrawal or disruption of participation in the system. Nor was it clear what steps should be taken to ensure a truly multilateral registration and not merely a compilation of national lists. What purpose would it serve to ask the Secretariat to compile national lists, for example by establishing a series of links to national websites, if no added value were created? Would so-called "WTO lists" be any different from domestic lists of geographical indications? It was also unclear whether the collective proposal required non-participating Members to grant protection under Article 23 and facilitate this protection in the sense of Article 23.4.

73. He then proceeded to responding to the questions that Australia had posed to his delegation, at the previous meeting, concerning its proposal contained in document IP/C/W/107/Rev.1. He said that the term "voluntary" in paragraph A.1 of his delegation's proposal, which stated that "All Members may participate in the multilateral system of notification and registration by making a voluntary declaration to the Secretariat", should be understood in terms of a declaration of intention to notify geographical indications in the multilateral system. A contrario, Members could decide not to notify certain terms, for example because they were not covered by the definition of Article 22.1 of the TRIPS Agreement or because no international trade interest was involved in them. His delegation agreed with Australia that geographical indications of non-participating Members should not be put at a disadvantage. Indeed, even without registration, those geographical indications remained protected under Article 23. In this connection, Australia had also referred to section C and paragraph D.4 of the EC proposal, under which the European Communities envisaged a multilateral system that would have effects even on non-participating Members, as they would have to file a challenge and enter into open-ended negotiations pursuant to paragraph C.2 of the EC proposal based on Article 24.1 if they did not wish to protect the geographical indications of participating Members. The voluntary declaration under section A.1 could take the form of a notification to the WTO Secretariat that would be circulated to the TRIPS Council. The consequences of a subsequent withdrawal would be governed by the legislation of the Member itself. It could decide not to facilitate the protection of future registered geographical indications, whilst remaining covered by the Agreement itself, as pointed out by Australia. As the TRIPS Agreement was in no way based on the principle of reciprocity, the protection of registered geographical indications of a Member who decided to withdraw from the multilateral registration system should remain to be facilitated by the other Members, unless they were required to do the contrary. In that respect, Members should notify amendments of their initial notifications to the Secretariat. Australia had sought clarification of subsequent operating rules with regard to paragraph A.2 of the EC proposal. Given the state of play in the negotiations on the register, his delegation had not yet spent much time on such rules, but would of course do so at the appropriate time, once the negotiations would have advanced sufficiently.

74. With regard to paragraph B.1 of his delegation's proposal, which provided that "A participating Member shall notify without delay to the Secretariat its declaration of participation in the system", Australia had asked about the reference date. His delegation believed that it should be either the date of entry into force of the agreement on the establishment of the registration system or any date agreed

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as the reference for commencement of its operation. This did not preclude participation in the future but was a way to raise awareness among Members who would participate in the system. As an aside, there was no need to provide for special and differential treatment for developing country and least-developed country Members. However, should negotiations lead to the inclusion of products other than wines and spirits, a further specific time-frame should be negotiated for their coverage. As regards paragraph B.2, which provided that "A participating Member shall notify all geographical indications which identify goods as originating in its territory corresponding to the definition in Article 22.1 of the TRIPS Agreement", he said that there was no obligation under the TRIPS Agreement to participate or to notify all geographical indications protected domestically. Paragraph B.2 did not foresee sanctions should a Member decide to notify only some of the geographical indications which it protected domestically. The register should be designed to cover any kinds of products and his delegation's revised proposal was indeed neutral in this respect, subject to conformity with the definition of Article 22.1 of the TRIPS Agreement. However, at present, the Council's mandate only covered wines and spirits. At the Council's meeting in April 1999, Australia had recommended that, in order to avoid confusion in the context of this discussion, issues concerning product coverage had best be dealt with separately from those concerning the notification and registration system itself. A number of delegations, including the European Communities, supported that view. As regards paragraph B.5, which provided that "National provisions implementing the multilateral system of notification and registration shall also be notified", he said that a decision on whether to implement the register domestically was an internal decision of each Member. This should not be considered an obligation imposed by the proposal. In connection with paragraph B.7, which provided that "The geographical indications notified by participating Members shall be published as soon as possible by the Secretariat of the WTO and notified to Members", a question had been asked as to whether a fee would be charged. The European Communities favoured a system that was free of charge and it would not lead to an excessive burden for the WTO Secretariat. He said that responses to some other questions posed by Australia required further work.

75. Section C of the EC proposal dealt with the multilateral examination of geographical indications published. It appeared from its questions that Australia had a good understanding of the EC proposal, but disagreed that the system to be established could apply erga omnes, i.e. also to non-participating Members. It was the view of the European Communities that non-participating Members' right to launch a challenge was based on Article 24.1. If a Member did not want to protect a geographical indication notified by another Member and did not want to participate in an open-ended negotiation on the individual geographical indication at stake, it still had the right to challenge the notification. Any other option would lead to a plurilateral system which the EC did not advocate. Australia had posed questions regarding the time-frame flagged in paragraphs C.1 and C.2 of the EC proposal. "Participation" was to be understood as referring to Members which had notified geographical indications under the system. Non-participating Members had the obligation to examine notifications and had the opportunity to lodge a challenge. In line with the TRIPS Agreement, there were no time-limits on the period of time during which Members had to negotiate on the individual geographical indications at stake. If one were to enter into this line of argument, then every element of every proposal would be TRIPS-plus. He recalled that Australia and the European Communities were bound by a bilateral agreement on trade in wine and he would therefore be surprised if an 18-month period would be insufficient for Australia to verify that it was in a position to protect geographical indications originating in the European Communities. Under paragraph C.2, Members would refuse to provide the legal means to interested parties to prevent use of a geographical indication on the basis of the exception in Article 24.6, for non-compatibility with the definition in Article 22.1, or because of the existence of a homonymous geographical indication with which a notified geographical indication conflicted under Article 22.4. It had to be noted, though, that Article 23 was already applicable and that the register was therefore only a tool to facilitate protection under that provision. Nevertheless, the register should be effective, i.e. have an effect. The grounds for challenges were laid down in paragraph D.4, but other grounds might be available at the national level. In his delegation's view, there was no clear concept as to what would constitute a successful or unsuccessful

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challenge. The effects of a challenge would be limited only to the Member initiating the challenge. This flew from the possibility for Members to rely on an existing exception under Article 24 to refuse granting protection in its jurisdiction in respect of a particular geographical indication. Registration in relation to a non-challenging Member would take effect even if an individual geographical indication were still the subject of a dispute following a challenge by another Member. With regard to paragraph C.3, there was no proposal for a dispute resolution mechanism as such. Paragraph C.3 only safeguarded the rights of Members under the DSU to contest the compatibility of national measures. Regarding registration, the comments that he had made in relation to paragraph C.2 were applicable. A challenge based on an exception applicable in one jurisdiction should not impede effects of registrations in other Members. This seemed to be in line with the principle of full determination at the national level that Australia wished to stick to.

76. Referring to Australia's questions concerning paragraph D.2, he said that the conditions for the use of homonymous geographical indications were already regulated in Articles 22.4 and 23.3. Regarding Section D.3, which provided that "Participating Members shall facilitate the protection of individual registered geographical indications by providing the legal means for interested parties to use the registration as a presumption of the eligibility for the protection of the geographical indication", he said that registration should be used as a reference by participating Members, i.e. a registered geographical indication should be considered prima facie as compatible with the definition in Article 22.1 and as protectable under Article 23. However, such a presumption would be rebuttable and, if a registration was challenged in a national jurisdiction, be decided on a case-by-case basis. The protection of foreign geographical indications would thus be facilitated in the sense that national jurisdictions would have quality information at their disposal. In addition, the register would also be used by other operators, such as trademark offices and private parties when preparing a trademark application. Regarding paragraph D.4, which provided that "Members who have not challenged within 18 months the registration of an individual geographical indication under provision C.2 shall not be refused protection on the basis of Articles 22.1, 22.4 and 24.6", he said that this presumption was limited to participating Members. Therefore, Members who did not wish to accept such additional facilitation for the protection of geographical indications would be free not to participate without any prejudice, as their geographical indications would still benefit from the protection under Article 23. It was common practice for intellectual property titles to be used as a presumption in legal proceedings. The authorities of the country of origin would also be well-placed to determine the validity of a geographical indication.

77. The representative of Canada hoped that the comparative table that the European Communities would circulate would accurately reflect that the proposal contained in document IP/C/W/133/Rev.1 was not a proposal from the United States alone, but a joint proposal from four Members, namely Canada, Chile, Japan and the United States. She regretted that the European Communities were unwilling to consider input from other delegations on the structure and presentation of their proposed table, so as to avoid the final product from possibly being unbalanced or biased.

78. The representative of the United States said that his delegation wished to pursue any suggestion that would add clarity to the discussion and was committed to any approach that might help further these negotiations. In fact, his delegation intended to sit down with other delegations that supported the collective proposal contained in document IP/C/W/133/Rev.1 to see whether they too could come up with a proposal that might add clarity to the situation an avoid delay. He would respond to the European Communities' requests for clarification after having consulted the other sponsors of the collective proposal.

79. The representative of Korea said that the Council needed to take into account the disparate circumstances among Members resulting from the different levels and scopes of protection as well as the different systems of protection applied. This reality was amply demonstrated in the Secretariat's summary of the responses to the Checklist of Questions that the Council had developed in the context

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of the Article 24.2 review. Under these circumstances, a binding and uniform system of notification and registration at the multilateral level would only discourage Members from participating in the system and weaken multilateral protection. It would be more effective and in line with Article 23.4 if Members widely shared the information available with regard to individual geographical indications that had been recognized and were protected in each Member, with the ultimate aim of facilitating voluntary participation in the system. As a preliminary reaction to the intention of the European Communities to circulate a comparative table, he said that such a document could be useful and constructive if it were set out in an objective and factual manner.

80. The representative of Bolivia said that a comparative table might indeed assist Members in better understanding the various proposals and their respective scope and limitations. He hoped that the document that the European Communities were planning to circulate would be available in advance of the next meeting so as to allow other delegations the opportunity to review it and comment on it at that meeting.

81. The representative of Hungary thanked delegations for their comments on his delegation's proposal. The main question his delegation had raised was the need for the Article 23.4 system to contain an opposition procedure. If the register were to be effective, it had to have an opposition procedure. Article 23.4 used the term "registration" which, in the context of intellectual property, by definition concerned an act that produced a legal effect. The term was used in this sense elsewhere in the TRIPS Agreement, notably in Part II, Section 2 on trademarks. Under Hungary's proposal, the legal effect of registration in the multilateral system for geographical indications under Article 23.4 would be a presumption of eligibility for protection in the Members who had chosen to participate in the system. This legal effect, which was inherent in the term "registration" and therefore intended by Article 23.4, necessitated an opportunity to challenge a notification for Members who were of the view that a notified term did not meet the requirements under Part II, Section 3 and registration would prejudice their legitimate interests. Without such a procedure, there would be no effective control over what would be registered, which would provide an undesirable opportunity for abuse. In the absence of an opposition procedure, the register would not be able to serve the objectives set out in Article 23.4, namely to facilitate the protection of covered geographical indications in Members, because the registration of misleading geographical indications could not be prevented. Consequently, an opposition procedure was an indispensable element of a multilateral registration system and intended by Article 23.4. He welcomed comments of the United States expressing agreement with Hungary on certain points, as this helped advance negotiations towards the establishment of a register that was acceptable to all. He believed it was an overstatement to say that an opposition procedure would be far more burdensome than anything else required by the TRIPS Agreement. Regarding the voluntary nature of the system, he referred to paragraph 5 of document IP/C/W/255, which read: "Participating Members shall increase protection for registered geographical indications." Moreover, paragraph 6 read: "Participating Members shall facilitate the protection of individual registered geographical indications by providing the legal means …". It was clear that there was no legal effect for Members that did not wish to participate in the system. His delegation would respond in detail at the next meeting to Australia's questions regarding the exceptions under Article 24 at the next meeting. In the meantime, he wished to emphasize that paragraphs 4 and 5 of IP/C/W/255 basically stated that geographical indications notified under the system could be successfully challenged by reference to the exceptions of Article 24.4, 24.5 or 24.6. Paragraph 5, second sentence, provided that a successful challenge made on one of these bases should justify the refusal of protection in respect of the Members who had successfully challenged protection. It was premature to discuss the procedures in detail before the Council had agreed on an outline for the register. Of course, procedures should be adequate, effective and the least burdensome for Members and the Secretariat. Regarding the resource-implications of the register envisaged by Hungary, he did not believe it was helpful to enter into a game of figures and numbers. Costs, expenses and administrative burdens were always relative. An adequate and effective system required a multilateral opposition procedure, which would entail costs. TRIPS implementation had costs

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attached, as would the results of the ongoing negotiations on agriculture and services for all Members, but this should not prevent Members from participating in those negotiations.

82. The representative of Bulgaria welcomed Hungary's proposal.

83. The representative of Australia thanked the European Communities for their comprehensive responses to the questions raised by Australia at the previous meeting. She associated her delegation with the comments of Canada and the United States with respect to the intention of the European Communities to submit its own comparative table. She thanked Hungary for the preliminary responses to questions her delegation had posed earlier in the meeting.

84. The representative of Cuba reiterated her delegation's position that the system should be conceived and structured to cover geographical indications for products other than wines and spirits. It did not seem consistent in the current order of international commerce that geographical indications in respect of a few categories of products, which were of interest only to a small group of countries, should be privileged. A system that allowed the reciprocal interests of all Members to be taken into account with respect to their exports, created conditions under which Members would welcome voluntary participation in the system to be established under Article 23.4. Of course, there should not be obligations for non-participating Members. Her delegation believed that Article 24.1 allowed the opening of negotiations in order to improve the protection of geographical indications of all Members and, hence, the extension of the system to other products. To proceed otherwise was discriminatory and did not satisfy the objectives and interests of all Members equally in the multilateral framework. This topic was of great interest to Cuba, given that it had geographical indications of repute and commercial prestige that were the subject of misappropriation and unfair use. Her delegation agreed with Hungary on the need for an opposition procedure that would allow determinations on geographical indications that would be the subject of additional protection.

85. The Council took note of the statements made and agreed to revert to the matter at its next meeting.

H. IMPLEMENTATION OF ARTICLE 24.1

86. The Chairperson recalled that, at its two previous meetings, the Council had had a discussion of this matter having received a paper outlining the views of a number of delegations on the implementation of Article 24.1, in particular in regard to the extension of additional protection for geographical indications to products other than wines and spirits, and making reference to paragraph 26 of the Council's annual report of 1996 (document IP/C/8). With regard to the issue of, specifically, the extension of additional protection for geographical indications to products other than wines and spirits, a proposal had been received recently from the delegations of Bulgaria, Cuba, the Czech Republic, Egypt, Iceland, India, Liechtenstein, Mauritius, Nigeria, Sri Lanka, Switzerland, Turkey and Venezuela (document IP/C/W/247).

87. Introducing document IP/C/W/247, the representative of Switzerland said that he expected there to be more co-sponsors of the proposal contained in it and requested the Secretariat to circulate, in due course, a revised version of the document reflecting this.4 The sponsors of the document believed that their proposal was in the interest of all Members, although they recognized that further discussions were necessary with some delegations. He emphasized that, while the paper aimed to demonstrate why it was necessary to extend the protection required under the Agreement in respect of geographical indications for wines and spirits to geographical indications for other products, the proposal did not call for a particular system of protection. It provided responses to questions raised by some delegations in the Council, such as why it was necessary to extend the level of protection of

4 Such a revised version was circulated as document IP/C/W/247/Rev.1.

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Article 23 to all geographical indications or, in any event, to other categories of products than wines and spirits; what the goal of the extension was; and what advantages it would bring to Members in practice. To some extent, it confirmed responses that had already been provided orally at previous meetings of the Council, but presented them in a more structured and thematic manner so as to assist a more constructive discussion in the Council. Article 23 enhanced the level of protection for wines and spirits beyond that provided by Article 22, under which protection was limited to cases where the public was misled as to the true geographical origin of a product or where use of the geographical indication constituted an act of unfair competition. Consequently, the TRIPS Agreement provided two levels of protection for the same intellectual property right. Document IP/C/W/247 drew the attention to the change of the role and importance of geographical indications as experienced over the past decade to the national and international economy. It presented arguments as to why the protection provided by Article 22 in respect of geographical indications for products other than wines and spirits was insufficient in practice. The "misleading test" was a burdensome requirement tailored to suit laws for the protection against unfair competition or the protection of consumers, but not the protection of intellectual property. Unlike Article 23, Article 22 did not prevent the use of geographical indications in translation or accompanied by expressions such as "style", "type", "kind", "imitation" or the like. It therefore enabled free-riding on renowned geographical indications by products not possessing the qualities which original products displayed due to their origin. Neither did it prevent free-riding on the efforts and hard work which had been employed to make a geographical indication renowned. All such use should be prohibited in order to avoid geographical indications risking to become generic terms. Document IP/C/W/247 illustrated this with the example of l'Etivaz, a cheese with a special flavour produced in a specific area of Switzerland. Labelling cheese not originating in the area of Etivaz with expressions such as "Etivaz-like" and "Etivaz-style" should not be allowed in order to avoid the risk that Etivaz would become a generic term for all cheese which might taste or look similar to Etivaz cheese but did not originate there and did not display the same high quality. In this context, he wished to emphasize that the proposal contained in document IP/C/W/247 did not aim at requiring terms and indications which were considered generic today to be re-appropriated. The exceptions provisions of Article 24.6 would continue to apply to such indications. The goal of the extension proposal was to prevent geographical indications such as Etivaz, which were not generic, from becoming generic.

88. The proposal contained in document IP/C/W/247 also concerned other disadvantages resulting from the insufficient protection provided by Article 22, such as the burden of proof required under that provision, unlike under Article 23, to defend a geographical indication against misuse. Moreover, it showed that the "misleading test" of Article 22 resulted in legal uncertainty as to the enforcement and protection of individual geographical indications at the international level. This was because it was up to the national courts and administrative authorities to decide whether or not the public was misled by the use of a particular geographical indication and to enforce their decision. Whether or not the public was being misled and how the legal and administrative authorities applied and interpreted the "misleading test" differed from one country to another. The result was inconsistency of decisions and legal uncertainty as regards the protection of geographical indications and their enforcement at the international level. The question had been raised whether there was a justification for such a difference in treatment according to products, i.e. discriminatory treatment between geographical indications for wines and spirits and those for other products. There was no such differentiation in other fields of the intellectual property system nor in the other Sections of the TRIPS Agreement. Some Members which were opposing improved protection of geographical indications for products other than wines and spirits seemed to take the view that geographical indications belonged to the public domain and should be freely usable by everyone who wished to do so. Such a view ignored that geographical indications were a self-reliant form of intellectual property which deserved effective protection as did other fields of intellectual property. Nor did such a view take into consideration the intrinsic qualities that could arise if products had a certain origin and neglected the essential role of human know-how and effort which were often necessary to achieve the distinctive quality of a

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product and for its geographical indication to become renowned, attractive and important for trade in it.

89. The document concluded that the two levels of protection currently provided in the TRIPS Agreement did not provide a transparent and coherent legal framework at the multilateral level for the protection of geographical indications. The diversity of protection systems and the differences in levels of protection created an unbalanced situation and contributed to legal uncertainty. The possible distortions that this could create at the multilateral level could be remedied by granting protection as under Article 23 not only to geographical indications for wines and spirits, but also to those for other products. The sponsors of the proposal contained in document IP/C/W/247 were of the view that such an extension of this level of protection for geographical indications at the multilateral level was necessary. Some delegations had asserted that the protection for geographical indications itself could result in barriers to trade and advocated that an extension of their protection would contribute to such a result. However, to the extent that a geographical indication was a genuine intellectual property right, and not a generic term, such presumptions were wrong. Geographical indications were not barriers to trade or, in any event, not more or less than any other intellectual property right. They were important tools in strategies of product differentiation and popular ones in today's globalized trade and economy. In this connection, he drew attention to a recent OECD study on the matter published in December 2000. For all these reasons, Bulgaria, Cuba, the Czech Republic, Egypt, Iceland, India, Liechtenstein, Mauritius, Nigeria, Sri Lanka, Switzerland, Turkey and Venezuela urged the Council to continue its mandated work for improved protection for geographical indications; to carry on the discussion on extension in a constructive manner; and, as a next step, to proceed without any further delay to work out the legal modalities necessary to eliminate the existing deficiencies in the TRIPS Agreement in the protection of geographical indications.

90. The representative of Jamaica said that her delegation concurred with the elements in the proposal contained in document IP/C/W/247 for the extension of the protection of geographical indications for wines and spirits to those for other products. The document was pertinent because it addressed the reality, i.e. the inherent imbalances in the level of protection for geographical indications in the TRIPS Agreement. Her delegation agreed that the protection stipulated in Article 22 was insufficient and saw no justification for the exclusion of other products from the higher level of protection under Article 23. This disparity in the level of protection was disadvantageous to a significant number of Members, including developing country Members. Granting protection at the level of Article 23 to products other than wines and spirits would establish a uniform level of protection for geographical indications at the multilateral level and would remedy the current legal uncertainty as emphasized in document IP/C/W/247. In other words, extending the coverage would provide a single benchmark for protection and a predictable and transparent legal framework for the protection of geographical indications under the TRIPS Agreement. It was important to remedy a situation which was prejudicial to the trade interests of countries, including Jamaica. Therefore, her delegation wished to co-sponsor the proposal.

91. The representative of India said that the proposal contained in document IP/C/W/247, of which his delegation was a sponsor, provided a legal justification for extension. Some delegations took the view that extension was a political demand which could only be discussed in a new Round of negotiations. He did not believe that what the United States had said in that regard at the present meeting changed this expressed view. The proposal in document IP/C/W/247 showed why it had been a historical accident in the negotiations during the Uruguay Round, that the higher level of protection applied only to wines and spirits while products of interest to other countries were protected insufficiently. He emphasized that this was not just a developing country issue and that the sponsors of the proposal represented a cross-section of countries. Moreover, there was a clear perception in India that this issue involved major trade interests. The WTO was primarily a trade organization and the trading partners who had not yet been convinced of the merit of extension should

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at least consider this proposal favourably to arrive at a mutually agreed solution. His delegation considered this an important issue on which it was prepared to negotiate.

92. The representative of Kenya associated his delegation with the proposal introduced by Switzerland regarding the extension of the higher level of protection to geographical indications for products other than wines and spirits. Kenya was associated with a number of agreements in this field, such as the OAU Model Law which provided protection for a wide range of products, including food products and handicrafts. The Kenyan Parliament had before it a bill on geographical indications that was intended to provide protection to products other than wines and spirits. Different levels of protection amounted to an unfair trade practice, or discrimination, i.e. something that the WTO should not be seen to support. His delegation saw much merit in the proposal and requested to be listed as a co-sponsor.

93. The representative of the United States, offering preliminary comments on the paper introduced by Switzerland, said that his delegation was surprised that the document stated that the "misleading" test was tailored to suit laws for the protection against unfair competition and the protection of consumers but not intellectual property protection; and suggested that this test led to legal uncertainty regarding the protection of geographical indications and their enforcement at the international level. A "misleading" test for geographical indications was no different, or no more burdensome than, the "likelihood of confusion" test used in connection with trademark infringement in the TRIPS Agreement. Whilst a defending party could argue that its use of a famous geographical indication was not misleading, it would be unlikely to succeed if the geographical indication were indeed famous. This was appropriate because geographical indications, like trademarks, provided private economic benefits, as acknowledged in the paper. Articles 22 and 23 made it clear that the burden of proof was borne by plaintiffs, both with respect to geographical indications for wines or spirits and those for other products. Whilst there were different elements in the two provisions, the basic obligation was for Members to provide "the legal means for interested parties to prevent use of geographical indications". This language tracked that in other sections of Part II, in particular Articles 16.1, 26, 28 and 39. Where the TRIPS Agreement intended the burden of proof to be borne by someone other than the right holder, it provided so expressly, as in Article 34.

94. Continuing, he said that the difference in the protection provided by Articles 22 and 23 did not result from an error, but from the willingness of certain Members during the Uruguay Round to "pay" for the additional protection reflected in Article 23. Whilst his delegation had not examined the regimes of all the Members who sponsored this paper, it had noted that at least one Member did not provide national treatment and most-favoured-nation treatment for the geographical indications of nationals of other Members regardless of the products involved. Before considering any changes to the protection afforded under the TRIPS Agreement for geographical indications, regardless of the products involved, his delegation recommended that all Members first fully implement their existing obligations. Neither Articles 23.4 nor 24.2 provided the legal authority to the TRIPS Council to negotiate with the aim to expand the coverage of Article 23 to include geographical indications for products other than wines or spirits. Under Article 24.1, Members agreed to enter into negotiations aimed at increasing the protection of individual geographical indications covered by Article 23 which, as the title of that provision indicated, was limited to geographical indications for wines and spirits. Article 24.1 did not charge the TRIPS Council or any other entity with conducting negotiations, unlike Article 23.4, but made clear that it was Members themselves that were to negotiate among themselves. He emphasized that the negotiations to be conducted under Article 24.1 were to be concerned with increasing protection for individual geographical indications under Article 23, not whole categories of geographical indications for products other than wines and spirits. The second and third sentences of Article 24.1 made it clear that these negotiations were to concern themselves those geographical indications for wines or spirits with regard to which Members were availing themselves of exceptions to protection under paragraphs 4 through 8 of Article 24. The increased protection that would be the subject of negotiation would be the elimination or reduction of the use of

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the relevant exception. He said that his delegation was aware that the additional protection for geographical indications for wines and spirits was not available on a national treatment basis in a number of Members and added that he did not exclude that there might be others. The same problems arose in national regimes for the protection of geographical indications for products other than wines and spirits as well. If Members were to concentrate their efforts first on ensuring that protection was provided as required under the Agreement, all might be in a better position to establish whether or not such protection would in fact be adequate to address their concerns.

95. The representative of the European Communities reiterated that his delegation, after careful consideration, could support the initiative taken by a number of delegations and, as indicated at the previous meeting, could agree to a large extent with the convincing arguments presented by India and Switzerland. He congratulated the 13 sponsors of the proposal contained in document IP/C/W/247, which apparently would garner support from some other Members as well. This proposal had convinced his delegation of the need to start real negotiations on the issue of the protection of geographical indications for products other than wines and spirits. He did not intend to enter into a debate on the mandate and hoped that other Members would refrain from this too. The issue at stake was a trade issue, involving demonstrated economic interests and there was now a full explanation of the legal arguments as well. Nothing stopped the Council from at last starting negotiations on this important issue. He hoped that the Chair would take this process further.

96. The representative of Sri Lanka said that her delegation, as a sponsor of the technical paper contained in document IP/C/W/247, obviously concurred with the analysis presented in it. It also associated itself with the statement made by Switzerland. The paper provided a legal analysis of three main questions raised by various delegations on the earlier submission on the matter which had been distributed as document IP/C/W/204/Rev.1, in particular as to why, first, the current level of protection was not sufficient; second, the difference in levels of protection was not justified; and third, extension was necessary in order to conform to the goals of the TRIPS Agreement and general WTO principles. In response to the first set of questions, the paper identified several deficiencies that had arisen due to the limited protection granted by Article 22 as compared to Article 23. The first deficiency was that Article 22 enabled free-riding on geographical indications. Article 22 was applicable if products were falsely presented to the public as originating in a particular territory or in a way that constituted an act of unfair competition. This test was widely used for the protection of trademarks and tailored to suit laws protecting against unfair competition and protection of consumers. Therefore, it did not provide sufficient intellectual property protection for the benefit of the producers entitled to use a geographical indication. It therefore enabled free-riding by other producers on the renown of a geographical indication, thereby allowing such producers to misuse the geographical indication along with an indication of the true origin of their products. By contrast, Article 23 did not allow such producers to use a particular geographical indication in the same manner and thereby prevented its misuse. The paper also amply highlighted other deficiencies, in particular that the "misleading test" of Article 22 resulted in legal uncertainty. The fact that different tests were used by national judicial systems to decide whether or not the public was being misled had brought about inconsistent decisions leading to legal uncertainties. Further, Article 22 put the burden of proof on the producer entitled to use a particular geographical indication. In order to defend a geographical indication for a product, the plaintiff had to prove that the public had been misled or that there had been an act of unfair competition. By contrast, under Article 23, there was no such burden of proof on the producer. In response to the second and third groups of questions, the paper analysed that in respect of different forms of intellectual property, such as trademarks, patents, copyright and geographical indications, it was generally accepted that the protection to be accorded under each form of intellectual property should not distinguish between levels of protection according to different categories of product. The situation under Articles 22 and 23 was a clear departure from the principle of identical protection and legal treatment for all products as set out in the Paris Convention, the Madrid Agreement and the Lisbon Agreement administered by WIPO. Further, the Preamble of the TRIPS Agreement referred to two main objectives, i.e. the reduction of distortions and impediments

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to international trade and the need to promote effective and adequate protection of intellectual property rights. This clearly demonstrated that the TRIPS Agreement did not make a distinction between categories of products. This unjustified distinction between two levels of protection for geographical indications resulted in trade distortions. Members considered that the objective of the TRIPS Agreement was to reduce trade distortions that had prevailed in the area of intellectual property before the WTO was established. Hence, there was no justification for differential treatment of geographical indications for wines and spirits vis-à-vis those for other products. There were no economic and objective reasons that applied currently for the treatment of geographical indications for certain products to be different from the treatment of geographical indications for other products as far as the level of protection was concerned. In conclusion, her delegation wished to highlight that the awareness of the need for extending the additional protection of Article 23 to products other than wines and spirits had increased throughout the world. Therefore, geographical indications were today recognized as an invaluable tool in trade for any product and extension of the additional protection under Article 23 to other products was in the interest of all Members, whether from the North or the South.

97. The representative of Slovenia said that, since the adoption of the TRIPS Agreement, Members' awareness of the need for sufficient protection of geographical indications for all products had continued to grow. Members, both developed and developing countries, had discovered that from a commercial point of view geographical origin had the same importance for all products and, as a consequence, they should be accorded an equal level of legal protection under the TRIPS Agreement. Different legal terms used to protect a geographical name, such as trademarks and appellations of origin, had not always facilitated the recognition and protection of such names in other countries. Equal protection for all geographical indications would be an invaluable marketing tool and an added value for experts, because it would increase the chances of market access for such goods. Moreover, it would prevent free-riding on renowned or even famous geographical indications by producers claiming that they did not mislead consumers. A further benefit would be the elimination of the risk that the names in question could become generic terms. This risk was currently present because Article 22 did not prevent the use of geographical indications in translation or accompanied by expressions such as "style", "kind", "type" or "imitation". A unified level of protection for all products would also solve the problem of the so-called "misleading test" and would lift the burden of proof from the owner of the geographical indication. The defender of the geographical indication for a product would no longer need to prove to the judicial or administrative authorities that the public had been misled or that there had been an act of unfair competition. Granting the level of protection of Article 23 to products other than wines and spirits would establish a uniform level of protection at the multilateral level and would remedy the legal uncertainties regarding the level of protection granted by Members to specific geographical indications. Her delegation wished to be listed as a sponsor of the proposal contained in document IP/C/W/247.

98. The representative of Mauritius, as a sponsor of the proposal contained in document IP/C/W/247, associated itself with the statement made by Switzerland. This proposal provided a useful basis for starting negotiations without delay on this important issue.

99. The representative of Venezuela said that her delegation did not only sponsor the proposal contained in document IP/C/W/247, but also wished the negotiations for the adoption of a multilateral system of notification and registration of geographical indications for wines and spirits to extend to other products. The protection of geographical indications could have a positive effect on the diversification of domestic handicraft industries, encourage the making of products with added value and promote indigenous products and production processes that were in danger of disappearing. Together with other systems, they could offer great opportunities for the protection of traditional knowledge and the knowledge of local communities. The proposal was most valuable for advancing the process of negotiation, in that it offered elements to permit understanding of the mandate that existed to deal with this subject and presented clearly and specifically, on one side, the problems that

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arose in relation to geographical indications and, on the other side, the solutions and courses of action which the Council should follow. She expressed support for the explanation given by Switzerland as to why the level of protection under Article 22 was insufficient. Geographical indications were not only important because they identified and distinguished products, but also because they represented human factors, in particular knowledge, as well as geographical and climatic aspects that played an important role in establishing the quality of a product. While this had been recognized for wines and spirits since long, there were also other products, such as the ones she had referred to earlier, that deserved protection, because they were equally vulnerable to imitation, counterfeiting and misappropriation. Her delegation did not understand why only a limited and specific group of products were the subject of the protection stipulated in Article 23 and other products were treated differently. There was no justification for this difference in treatment which, moreover, as explained by Sri Lanka, gave rise to distortions. While referring to the explanation she had given at the previous meeting, she emphasized that improper uses were being made of Venezuelan geographical indications resulting not only in the public being misled as to the origin and qualities of the products concerned, but also in acts of unfair competition. One goal of the WTO should be to establish a secure legal framework within which international trade could prosper thanks to a reduction of trade distortions and impediments to international trade. The Council should continue its negotiations and begin, without further delay, to work out the legal modalities necessary to eliminate the deficiencies in the Agreement in the field of the protection of geographical indications with a view to reaching a mutually agreeable solution.

100. The representative of Iceland said that the issue addressed in document IP/C/W/247, of which her delegation was a sponsor, was important to Iceland not only because of its interests in the negotiations on the protection of geographical indications, but also of the fundamental principles of a systemic nature raised in the proposal. Iceland believed that there should be no doubt as to the equality of treatment to be extended to all mandated negotiations. Articles 23.4 and 24.1 clearly indicated that negotiations relating to the protection of geographical indications were mandated within the WTO framework. The extension of the level of protection for geographical indications for wines and spirits to those for all other products was in the best interests and to the benefit of all Members. This was not a North-South issue. Her delegation wished to emphasize that there should be no doubt that there was an agreement to enter into negotiations to increase the protection of geographical indications. The negotiations on geographical indications had been identified as an integral part of the built-in agenda in the TRIPS Agreement. Furthermore, her delegation did not see how the issue could be of a special mandated character, based on the fact that Members already had mandated negotiations. Iceland would like to urge Members to continue these negotiations and start, without further delay, to work out the legal modalities necessary to eliminate the existing deficiencies in the TRIPS Agreement in the field of the protection of geographical indications.

101. The representative of Romania welcomed the proposal contained in document IP/C/W/247. Its detailed and convincing arguments would assist the conduct of this debate in a pragmatic and constructive manner on the extension of protection.

102. The representative of Bolivia said that the proposal contained in document IP/C/W/247 was opportune. This Council was the appropriate forum to debate and resolve the issue of the extension of the protection of geographical indications for wines and spirits to those for other products. The different levels of protection established in the Agreement had created an imbalance between the obligations and rights of Members, which was contrary to the letter and spirit of the Marrakesh Agreement Establishing the WTO. The importance of the protection of geographical indications stemmed from the fact that they reflected the value of traditional knowledge of local communities in which processes of production originated as well as climatic and geographical conditions under which certain goods were produced, i.e. natural and human factors. They also brought value added to the product which was not found in similar products from other regions and countries. His delegation agreed with Switzerland that geographical indications were not more or less a barrier to trade than any

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other intellectual property right. Their protection, whether for wines, spirits or any other products, should of course not be used so as to apply trade-distorting measures with respect to market access.

103. The representative of Morocco said that her delegation supported the proposal contained in document IP/C/W/247, which was of particular interest to her country. Its arguments were judicious and convincing, as reflected in the growing number of sponsors. This proposal would contribute to progress on this point and responded to the concerns of several Members. Morocco was considering sponsoring the proposal as well.

104. The representative of Mexico said that her delegation remained of the view that Article 24.1 did not establish a legal basis for negotiations concerning the extension of the additional protection provided for in Article 23 to products other than wines and spirits. Without prejudice to this position, her delegation had participated in the substantive debate by offering comments on the possible economic implications of the extension of additional protection to other products calling attention to the fact that the costs could exceed the supposed benefits of an extension. In the debate, it still had not been demonstrated, with concrete and non-hypothetical examples, why the protection to be granted under Article 22 was insufficient. Nor was it clear what would be the implications of the practical implementation in Members' national systems of the proposed extension. She reserved her right to comment later on the proposal introduced by Switzerland at the present meeting, but at first sight it did not seem to cast more light on the substance of the matter, nor on the practical implications that extension would have. Ignoring these two issues could create false expectations as to the supposed benefits of extension. In particular, it was not clear whether the demandeurs believed that an extension of the scope of Article 23 to other products, were it negotiated and agreed, would lead to a better protection for the geographical indications of particular products that those Members might have in mind. It was therefore necessary for the Members who were promoting this additional protection to analyse the individual terms for which they sought protection. Firstly, it had to be analysed whether the product in question met the criteria of eligibility for protection consistent with the definition of "geographical indication" stipulated in Article 22.1. As the Secretariat's summary paper in the context of the review under Article 24.2 showed, the criteria for determining geographical indications capable of protection were far from uniform. That is to say, Members still did not have a clear idea of the very concept of a geographical indication. In this regard, it had to be recognized that WIPO was working on this subject and her delegation considered it important for the Council to follow closely developments in that forum. In addition to issues relevant to the definition, a Member who sought protection for a product by means of a geographical indication would have to analyse the term that it wished to protect in the light of the various provisions of Part II, Section 3 of the Agreement, in particular the exceptions stipulated in Article 24. For example, it would have to analyse whether the term fell within the exception provided for generic terms in Article 24.6, or whether it had been in prior continuous use in the territory of other Members and, if so, whether it could prevent these other Members from continuing to use the term in accordance with Article 24.4. Such an analysis would have to be carried out with respect to each of the exceptions stipulated in Article 24. Further, the Member who sought protection for a specific geographical indication would have to be sure that this geographical indication was duly protected domestically, not just in terms of what Article 22 required, but also at the level of the additional protection provided for in Article 23.1. Given that the great majority of Members had not replied to the Checklist of Questions concerning the application of Section 3 of Part II of the Agreement (IP/C/13 and Add.1), it was not possible, at present, to have a clear and complete overview as to how even the protection provided for in Article 22 had been implemented, let alone the protection Article 23.1 would require if extended to other products. After such an exercise of elimination, probably the majority of Members would find that they could count on the fingers of one hand the products eligible for the additional protection provided for in Article 23.1. Nevertheless, in exchange for obtaining this protection for those few products, they would find themselves obliged to protect some hundreds or thousands of geographical indications of other Members. The list of Annex A to the Secretariat's summary paper prepared in the context of the Article 24.2 review was only a subset of all the geographical indications which

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Members would have to grant additional protection to in the event of a broadening of the scope of Article 23.1. Domestic application of additional protection in this way could be an onerous burden for Members, especially for those who did not currently have systems for the protection of geographical indications broad enough or suitable to satisfy the requirements of Article 23.1.

105. Continuing, she said that, in her delegation's view, these considerations should be taken into account in a serious manner by those proposing extension, above all to evaluate the costs and benefits that extension would entail. In contrast, the debate so far had been limited to arguments in the abstract, without any consideration of the practical implications that she had mentioned nor what the effects would be of the proposed extension in the very structure of Part II, Section 3. It would appear that what was being proposed would amount to the deletion of Article 22 without anymore, while the basic logic indicated that this main provision could not disappear with just a supplementary or additional provision remaining. Responding to the argument that the difference in levels of protection between various products was illogical and therefore unjustified (paragraph 15 of document IP/C/W/247), she said that one could not naively pretend that the results of negotiations in the WTO invariably responded to logic. They were the results of trade-offs and the very dynamic of negotiations. Otherwise, the question might be asked whether those who sought extension, following the same "logic", also considered that an end should be put to the different treatment for industrial and agricultural products in the WTO. The question might also be asked why some of the sponsors of this proposal advocating uniformity in this specific field, in contrast sought a certain differentiation in other areas of intellectual property, for example by considering that patents in particular areas of technology should meet additional criteria that did not exist for patents in other areas. Paragraph 8 of document IP/C/W/247 maintained that the negotiations that were currently underway in the areas of industrial and agricultural goods showed the growing importance of extending the level of protection for geographical indications to other products. Her delegation did not see the link between these aspects, unless the implication was that the liberalization of markets could in some way be compensated by a higher level of protection for geographical indications, which she did not believe was intended. In any case, as she had indicated at the last meeting, additional protection per se did not necessarily imply better market access, since it could even lead to market segmentation, given the exclusive rights which derived from it. This concern regarding the effects of intellectual property rights on competition had also been expressed by other delegations in relation to other fields of the TRIPS Agreement. Commenting on the risk of a geographical indication becoming a generic term, as addressed in paragraph 12 of document IP/C/W/247 and illustrated with the example of Etivaz cheese from Switzerland, she said that it surprised her delegation that this term did not appear in the list of geographical indications in Annex A of the Secretariat's summary paper prepared in the context of the Article 24.2 review. Given that Switzerland would have an interest in this term not becoming a generic term, she would have thought that it would already be under protection in that country. Perhaps, the example used in document IP/C/W/247 was not the most fortunate one. For all of these reasons, her delegation was of the view that there were still no cogent reasons as to why the protection provided for in Article 22 would not be sufficient or effective; and much less that there was any clear idea of the practical implications of an extension. Her delegation therefore continued to think that the best course of action was to continue with the review under Article 24.2, since this might cast more light on the subject which appeared to be of interest to many Members.

106. The representative of Australia expressed her delegation's appreciation to the sponsors of document IP/C/W/247 for providing a means of moving the discussions forward. Since her delegation had only recently received the paper, it had not had a full opportunity to review it and would provide more detailed comments at a later time. She said that the paper raised some underlying issues concerning geographical indication protection and the need for Members to have regard to the goals and objectives of the Agreement and geographical indication protection in these discussions. In her delegation's view, the proposal highlighted the real and urgent need for countries to approach the review under Article 24.2 in a logical and systematic way so as to examine crucial issues, such as the need to consider underlying interests at stake, the need to strike an appropriate balance and the need to

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fully understand the implications of geographical indication protection and any changes to existing provisions, before concluding that the current levels of protection were inadequate and required re-writing of existing treaty language. Australia recognized very well the importance of geographical indications to many Members, as its own paper (document IP/C/W/211) showed when reflecting the fact that many economies had a strong interest in maintaining and increasing the added value to their exports that could be obtained through the distinctive and appealing presentation of goods. These concerns were, however, more effectively dealt with in the comprehensive review under Article 24.2, so that Members could assess the practical effect of TRIPS treaty language and the practical benefits that the TRIPS Agreement provided as a clear basis for discussions of better geographical indication protection within the TRIPS Agreement. The debate should not be caught up in the issue of levels of protection for various categories of goods, but should centre on the ways to achieve the most effective level of protection. Australia agreed that the protection provided to geographical indications under the TRIPS Agreement had to be consistent with the goals and objectives of the Agreement, but disagreed with the suggestion in paragraph 2 of document IP/C/W/247 that the extension of geographical indication protection currently available for wines and spirits to a uniform level of protection for geographical indications was necessary for Part II, Section 3 of the Agreement to accord with the goals of the TRIPS Agreement and general WTO principles. The TRIPS Agreement included the objective that the protection and enforcement of intellectual property rights should contribute to the mutual advantage of producers and users of technological knowledge and in a manner that was conducive to social and economic welfare and to a balance of rights and obligations. Document IP/C/W/247 failed to discuss how an appropriate balance of interests would be guaranteed if extension of scope were agreed. The paper discussed in detail the purported benefits of increased protection, but failed to mention any of the costs and other downsides that would be likely to be associated with increased protection. She reiterated her delegation's interpretation of Article 24.1, that Members agreed to enter into bilateral or multilateral negotiations with a view to agreeing to strengthen the protection of individual geographical indications for a wine or a spirit under Article 23. Such strengthening could occur if a Member agreed to waive the application of an exception as contained in Article 24.4 through 24.8 with respect to one or more individual geographical indications. This interpretation was not only consistent with the wording of Article 24.1 itself, but also with the push made by the European Communities, as the prime demandeur for geographical indication protection during the Uruguay Round negotiations, for geographical indications for wines and spirits to be accorded a special status. Australia did not see how the reference to the word "individual" in Article 24.1 could possibly be read to mean "all non-wine and spirit" geographical indications. With regard to the words "individual" and "bilateral and multilateral agreements" in Article 24.1, the increased protection was intended to be achieved through agreements that were separate from the TRIPS Agreement. It was unlikely that the Uruguay Round negotiators had intended a specific list of individual geographical indications to be incorporated into the text of the TRIPS Agreement itself as a specific set of obligations. Australia had not been a demandeur of increased protection for geographical indications for wines and spirits during the Uruguay Round and acceptance of Article 23 had been a concession on its part, rather than a demand it had made to others. She questioned the assertion in paragraph 8 of document IP/C/W/247 that an extension of geographical indication protection had an overall positive effect on market access issues. The grant of exclusive rights to a particular term was in itself an exclusion of other Members' ability to enjoy those rights. Many developing countries were actively developing and diversifying competitive export industries in key sectors such as dairy, beer and horticultural products, making extensive use of the varied generic descriptive terms that were threatened by the proposal to extend Article 23 level protection to all products. She referred to the specific examples she had given at the previous meeting of the Council. Returning to Article 24.1's clear and unambiguous reference to "individual geographical indications", she wondered on what basis the supporters of an extension of the higher level of protection to other products than wines and spirits would identify these individual geographical indications and how they would actually be protected.

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107. The representative of New Zealand said that the mandate issue was too important to gloss over and reiterated her delegation's disagreement with the view that Article 24.1, which dealt with the concept of entering into negotiations aimed at increasing the protection of "individual" geographical indications for wines and spirits, would establish a basis for negotiations on an extension of the additional - and, as the paper introduced by Switzerland admitted, unjustified - protection currently afforded to wines and spirits. Offering preliminary comments on the proposal contained in this paper, she said that the extension that it envisaged could have most significant and costly impacts, which were not addressed in the proposal at all, and associated her delegation, in this regard, with the interventions by Australia and Mexico, which had elaborated on some of the difficulties involved. A key argument of the paper was that providing two different levels of protection for geographical indications in the TRIPS Agreement was not justified. As it had stated on previous occasions, her delegation agreed entirely with this. However, the overall approach of the paper was that the best way to correct the imbalance created by Article 23 was to load further imbalances into the Agreement, through an extension of the coverage of Article 23 to other products. As New Zealand saw it, two wrongs did not make a right and, instead of adding to this imbalance, the Council should explore the deletion of Article 23. This would provide the sort of legal certainty that the paper called for in its paragraph 13. She agreed with the assertion in paragraph 8 that geographical indications could be a valuable marketing tool. In fact, the existing TRIPS provisions on trademarks, unfair competition and copyright, along with Article 22 on geographical indications, combined to provide a powerful armoury of tools for producers to protect their intellectual property and market their products in all markets. These tools also protected those on the other side of the equation, i.e. consumers, from misleading marketing. These tools already existed and were already being used for all products. Her delegation yet had to be convinced that these existing levels of protection were inadequate. She agreed with Australia that the current discussion on extension put the cart before the horse vis-à-vis the Article 24.2 review, on which efforts should be focused. Paragraph 8 of the paper noted the market access opportunities afforded by the marketing value added by geographical indications. Her delegation thought that perhaps a more accurate description would be opportunities for market success for the beneficiaries of extended geographical indication protection. In terms of looking at market access opportunities across the Membership as a whole, extension could in fact diminish market access for a number of Members, in particular for products whose geographical origin was only a small part of the ability of a product to achieve market success within a broad product category. The paper seemed to be arguing that Article 22 led to legal uncertainty because of the fact that Members today retained different legal systems. To her delegation, this seemed to be heading towards undermining some of the key pillars on which the Agreement was founded, in recognition of differing legal traditions, differing levels of development among Members and the potentially high costs of harmonization "to the n-th degree". These pillars formed of course an agreement which provided certain minimum standards in order to provide certainty for those operating in the multilateral trading system and an agreement which recognized that legal protection of these standards could be provided through varying means. Her delegation would be most concerned if these fundamental pillars of the TRIPS Agreement would be chiselled away. It also had concerns about the commercial/operating uncertainty that would be created for a large number of commercial operators by the proposed extension, with regard to the current status of their labelling, marketing efforts and market access. She emphasized the importance, when considering a further heightening of the level of protection, of considering the costs involved, in particular with respect to the objectives of the WTO and the TRIPS Agreement in ensuring that barriers to legitimate trade were avoided. In the TRIPS context, unlike some other areas of trade negotiations, more was not necessarily always better in terms of enhancing global welfare and contributing to the goal of a more equitable distribution of the benefits of the multilateral trading system.

108. The representative of Hungary welcomed the proposal contained in document IP/C/W/247. The paper elaborated on why extension of scope was necessary and this was a useful supplement to document IP/C/W/204/Rev.1. Hungary also attached great importance to the improvement of the protection of geographical indications under the TRIPS Agreement. His delegation sympathized with

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many of the arguments raised in the new paper and in the discussion on the benefits of improving the scope of the additional protection under Article 23. In particular, it shared the points expressed, in paragraph 7, that products other than wines and spirits were vulnerable to imitation, counterfeiting and usurpation and, in paragraph 8, that geographical indications had a market access or market success angle an were priceless marketing tools that constituted added value for export. His delegation agreed with most of the conclusion of the paper: it agreed with paragraph 19 that the distinction introduced in the TRIPS Agreement regarding the level of protection for wines and spirits, on the one hand, and other products, on the other, was a negotiating compromise arrived at in the Uruguay Round. Regarding paragraph 20, his delegation had repeatedly stated that geographical indications had a considerable potential for commercial use and could be assets for all countries. His delegation agreed that extension of scope was not a North-South issue and that liberalization efforts in the area of agriculture should be accompanied by improvement of geographical indication protection. Regarding paragraph 21, like the European Communities and others, Hungary believed that the Membership should take a pragmatic approach and set aside the futile debate about the existence of a negotiating mandate. Rather, the Membership should respond to the views expressed by a large number of Members and engage in negotiations on the extension of Article 23 protection to products other than wines and spirits. He disagreed with the view expressed by Australia that there was a need to sequence the review under Article 24.2 and negotiations on the possible extension of scope. Nothing in Article 71 or elsewhere in the TRIPS Agreement indicated that changes in Part II, Section 3 could not be negotiated during the review under Article 24.2. Moreover, the Article 24.2 review was not a one-off exercise but was the first in a series of reviews, as it provided, in relevant part, that "The Council for TRIPS shall keep under review the application of the provisions of this Section; the first such review shall take place within two years …". The very number of interventions and the temperature of the debate in themselves indicated the importance which all Members seemed to attach to the issue of extension of scope. Views were different and could be reconciled only in a negotiating context. In document IP/C/W/247, Switzerland and its co-sponsors proposed exactly this. He urged other delegations to act on their call.

109. The representative of Turkey associated his delegation with the interventions made by its co-sponsors of document IP/C/W/247. His delegation saw a clear mandate both in Article 23.4 and Article 24.1. Some Members interpreted Article 24.1 too narrowly and refused to accept that there was a mandate for negotiations on the extension of additional protection to geographical indications for products other than wines and spirits. Their interpretation was that the mandate in Article 23.4 was clear enough whereas the mandate in Article 24.1 was ambiguous. Turkey could not accept this and wished to draw attention to the text of the two provisions. Article 23.4 was drafted in the future tense, whereas Article 24.1 was in the present tense. Did present tense not take precedence over future tense? Further, in Article 24.1, "individual geographical indications" were referred to unaccompanied by the word "the", which was an indication that the term was not meant to be limited as to the geographical indications it concerned. For these reasons, in his delegation's view, the mandates in both articles were equally clear and there was no sense in making a distinction between them.

110. The representative of Chile believed that the proposal introduced by Switzerland was well structured, although he did not share its views on substance. He referred to two issues raised in document IP/C/W/247: that of different levels of protection and that of historical antecedents. Whatever position any delegation had on the provisions of the TRIPS Agreement on the protection of geographical indications, Chile believed that the architecture of the protection of this category of intellectual property in the Agreement was clear. Section 3 of Part II of the Agreement, indeed, provided different levels of protection according to product-type. However, unlike the sponsors of the proposal contained in document IP/C/W/247, his delegation believed that the Agreement provided for three, not two, levels of protection. First, under Article 22, protection had to be made available in respect of geographical indications for all types of products. The second level applied to geographical indications for wines and spirits and was provided for in Articles 23.1, 23.2, 24.1 and 24.4. And the

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third level of protection applied only to wines, as stipulated in Article 23.3 and 23.4. Whatever might be the circumstances concerning and importance of geographical indications in international trade today, these could not change the historical circumstances which had led to the adoption of these provisions as a result of the TRIPS negotiations. The provisions of Section 3 of Part II had been drafted on the basis of proposals presented by delegations in the TRIPS Negotiating Group; first, at various stages, by the Chairperson of the Negotiating Group, following discussions on these proposals and drafts in the Negotiating Group and, eventually, as reflected in the Draft Final Act of 20 December 1991 (the so-called "Dunkel Draft"), following further negotiations in which a trade-off was achieved which remained set in the Agreement. As document IP/C/W/247 recognized, the text of the current provisions on the protection of geographical indications was the solution of a trade-off reflecting a balance among the positions of those countries which wanted and those that did not want protection for this category of intellectual property. Of course, as the document said, the current situation regarding the protection of geographical indications flowed from circumstances which existed prior to the TRIPS Agreement, but this was not only true for geographical indications. It applied to all categories of intellectual property covered by the Agreement. His delegation did not believe that there was a legal basis for the Council to revise the rules for any of these other categories of intellectual property, i.e. neither geographical indications nor any other title covered by the Agreement. At this stage, the majority of Members were still implementing the TRIPS Agreement in their domestic legislation and, at the present meeting, the Council had once again been shown the difficulties that this implementation brought for a large number of countries. It would appear to be premature to modify provisions which had not yet been fully implemented, much less evaluated in terms of their real sense and scope. If the Council had an adequate mandate in a broader negotiating context, his delegation would be more interested in discussing the alternative proposal just presented by New Zealand.

111. The representative of the Czech Republic said that the proposal contained in document IP/C/W/247, of which her delegation was a sponsor, elaborated on certain aspects which should be incorporated in the Council's discussion. Part II, Section 3 allowed Members to protect geographical indications on a discriminatory basis, favouring wines and spirits and leading to legal uncertainty for legitimate users of geographical indications, which did not facilitate market access. Irrespective of the historical background of the TRIPS Agreement, the question had to be asked whether there was a real economic interest for some Members not to protect all geographical indications at the level currently available only for wines and spirits. The substance inherent in geographical indications which made them protectable subject-matter did not vary according to the products which they identified. Their economic importance remained the same for wines, spirits and other products. Transparency in the protection and enforcement of geographical indications could be reached only by using the same legal framework for them all. Only non-discriminatory protection was justified and was to be used in respect of economic subjects of all Members. She urged the Council to continue its work on improving the protection for geographical indications in respect of products other than wines and spirits.

112. The representative of Pakistan said that his delegation supported the various points raised in the paper introduced by Switzerland. These points were crucial issues that needed to be deliberated upon extensively with the objective of removing the legal deficiencies and the existing differentiation regarding the protection of geographical indications provided under Article 23 for wines and spirits and that provided under Article 22. Pakistan attached great importance to the extension of the additional level of protection for geographical indications under Article 23 to all other products. The paper introduced by Switzerland elaborated with reasonable soundness a legal basis for removing the existing anomaly. The paper was well thought out and well argued. It was no surprise that its sponsors had realized an enormous trade potential which could be favourably exploited if the highlighted deficiencies were taken care of. Pakistan wished to associate itself with the proposal.

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113. The representative of Japan said that, although Japan took a cautious position regarding the proposed extension of additional protection for geographical indications under Article 23 to other products than wines and spirits, his delegation was willing to participate in the discussion. The extension of additional protection could have positive impacts, such as enhanced consumer protection or the promotion of production in certain sectors, but it could have a negative impact, such as legal instability associated with the unclear criteria of protectable subject-matter of geographical indications or the possible excessive burden imposed on normal business transactions in certain industrial sectors. Therefore, Japan wished to carefully examine this issue, weighing both the positive and negative impacts. In order to arrive at the best solution, various options needed to be analysed. Judging from the Secretariat's summary paper in the context of Article 24.2, different Members had different ways of protecting geographical indications. Therefore, no particular means of protection should be pre-empted. Japan would like to examine various policy options before determining which was the best approach. The paper introduced by Switzerland contained useful material for examining the rationale of a possible extension to other products. Japan would certainly examine the arguments that it contained but wished to point out, at the same time, the importance of examining how each Member was implementing the provisions of Part II, Section 3 of the TRIPS Agreement. Information on the various ways of implementation would provide a useful basis for a further exchange of views regarding a possible extension of the additional protection under Article 23 to products other than wines and spirits. Therefore, the ongoing information-gathering exercise based on the Checklist of Questions (IP/C/13 and Add.1) should be completed as soon as possible by contributions from those Members who had not yet provided their responses. Thus, a useful basis would be available for a cross-examination of the proposed extension of additional protection to other products.

114. The representative of Argentina expressed support for the intervention by Mexico. She said that Argentina's view on the scope of the mandate for negotiations was well-known. The new proposal, contained in document IP/C/W/247, which had been introduced at the present meeting, did not provide any new elements nor any elements of substance for the discussion. She had two preliminary comments on the paper. First, her delegation did not understand the persistent use of terms like "anomaly" and "illogical" in the context of international trade and economics, where they were not even employed in psychology since Freud. The other comment concerned paragraph 17 of the paper, which referred to the various means used by Members to implement Articles 22 and 23 with different levels of protection while reasoning that these different levels of protection created a situation of imbalance and contributed to legal uncertainty. In her delegation's view, such a reasoning was simplistic, particularly in view of Article 1.1 of the Agreement which provided that "[…] Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice". Whilst the Council could examine the proposal in greater detail, paragraph 17 raised many doubts for her delegation and went to the heart of the TRIPS Agreement and the flexibility and legal freedom which each Member had in its implementation. Regarding the call by the European Communities to be practical and not to adopt a legalistic approach, she wondered whether the European Communities would adopt a similar non-legalistic and practical approach with respect to the provisions of the TRIPS Agreement in the context of DSU proceedings to which it was currently party.

115. The representative of Guatemala agreed with the interpretation of Article 24.1 and 24.2 of Australia, Mexico, New Zealand and the United States. He also expressed support for the views advanced by Chile. The Council should not only take into account the benefits, but also the costs involved in the protection of geographical indications.

116. The representative of Bulgaria associated his delegation with the comments made by other sponsors of document IP/C/W/247 during the meeting.

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117. The representative of Australia, responding to Hungary, said that she would not have chosen the term "sequencing" which Hungary had used. In practical terms, it was premature to consider rewriting the language of the TRIPS Agreement before Members had a good collective understanding of what the current provisions provided; how Members had implemented them; and the merits of either extending or not extending the additional protection of Article 23 to other products. This was a precondition to even considering rewriting treaty language and Article 24.2 provided the vehicle for the Council gaining such an understanding. In legal terms, whilst the language of Article 24.2 might not prevent looking at other issues associated with geographical indications at the same time, it was, besides Article 23.4, the only mandate that the Council currently had. This was the other reason why Australia emphasized the need to engage constructively in the review under Article 24.2. Reacting to While agreeing with Hungary's point that the Article 24.2 review was not a once-off exercise, she wished to draw attention to the fact that the Council was still conducting its first such review after some years and to express her delegation's confidence in a fruitful outcome of this and further reviews under Article 24.2.

118. The representative of New Zealand associated her delegation with these comments from Australia.

119. The representative of Switzerland said that his delegation would reflect upon the comments made on the proposal contained in document IP/C/W/247 and sponsored by his delegation and many other Members. However, it appeared to him that some of these comments could actually be answered by a mere reference to the text of document IP/C/W/247. Providing a further explanation of the difference between the levels of protection in Articles 22 and 23, he referred to the example mentioned in the paper of "Carolina" rice, which term, under Article 22, could be used for rice produced in Australia with an additional qualification as to the style of the rice in order not to mislead the public, provided the consumers in Australia were not misled. Such use would however not be allowed under Article 23.

120. The representative of Hungary agreed with Australia that there was no legal basis for sequencing the Article 24.2 review and the start of negotiations on an extension of the scope of Article 23.

121. The Council took note of the statements made and agreed to revert to this item at the next meeting.

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

122. The Chairperson recalled that, at its meeting in September 2000, the Council had been informed that the Secretariat had circulated a preliminary version of the paper that the Council had requested it to prepare summarizing, on the basis of an agreed outline, the responses to the Checklist of Questions (IP/C/13 and Add.1), in order to facilitate an understanding of the more detailed information that had been provided in these responses (JOB(00)/5619). Given that the data provided by Members in response to the Checklist had been of varying degrees of comprehensiveness and detail, the note had been circulated in a preliminary form, in order to allow delegations with comments, corrections or additional information about their national practices that they would like to see reflected in the note to convey these to the Secretariat before a final version of the note was prepared. Delegations were asked to do so by mid-January 2001, so that the Secretariat could issue the final version before the present meeting. The Secretariat had received such reactions from the Czech Republic, the European Communities, Japan, Mexico, New Zealand, Romania, the Slovak Republic and Switzerland, while Peru had submitted a revision of its earlier responses to the Checklist. Moreover, two new Members had provided their responses to the Checklist, namely

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Hong Kong, China; and Korea. The final version of the Secretariat summary paper had been circulated as document IP/C/W/253.

123. Continuing, he said that, at its previous meeting, the Council had initiated a detailed review of the experience and practice with the application of the provisions in the TRIPS Agreement on geographical indications. Several delegations had indicated, however, at that time, that they were still studying the summary paper. He recalled his suggestion at the last meeting that the discussion take place on the basis of the main section headings of the Secretariat's summary of the responses to the Checklist. In this connection, Members might also wish to address questions concerning the provisions of Section 3 of Part II of the Agreement themselves, as suggested by Australia (in document IP/C/W/205) and New Zealand (in document IP/C/W/205). These delegations had suggested that the Council work through each of the provisions of Section 3 and review their operation and enforcement so that all Members could get a better sense of the various regimes that Members had developed for the protection of geographical indications; Australia had also indicated a number of specific questions that might be addressed in this connection.

124. Following the main section headings of the Secretariat's summary paper, the Council took up the following topics in turn: (1) general comments; (2) definitions and criteria for recognition; (3) procedures for recognition; (4) eligible/authorized users and monitoring; (5) protection against those not eligible/authorized to se or using improperly; (6) enforcement; (7) relationship to trademarks. On this occasion, interventions were made concerning topics (1), (2) and (3).

(1) General Comments

125. The representative of the European Communities, offering a preliminary comment on document IP/C/W/253, said that, at first glance, not all the comments of his delegation on the preliminary version of the summary paper (JOB(00)/5619) seemed to have been taken into account. He might therefore have to come back to this at the next meeting indicating that the comments in question concerned, in particular the way in which the summary paper had been drafted, including its terminology.

126. The representative of Sri Lanka said that the Secretariat's summary paper had attracted a substantial and in-depth discussion in the Council. Her delegation valued such comprehensive analysis as a valuable input to the discussion. With respect to terminology, she expressed doubts about, and would be grateful for an explanation of, certain terms used by the Secretariat, in particular "special protection" and "indication of geographical origin". These terms did not exist in the TRIPS Agreement; neither did they exist in the Paris Convention, the Madrid Agreement or the Lisbon Agreement administered by WIPO. The TRIPS Agreement referred to "geographical indications". The Paris Convention and Madrid Agreement both referred to "indications of source". The Lisbon Agreement referred to "appellations of origin".

127. Continuing, she referred to the question that the European Communities had raised at the previous meeting of the applicability of trademark law for the protection of geographical indications. The Secretariat's summary paper revealed that the protection of geographical indications had been implemented in different ways by Members ranging from commercial law to trademark law and sui generis legislation for the protection of geographical indications and appellations of origin. The representative of the European Communities had pointed out that some Members had used trademark law to implement their obligations in respect of geographical indications assuming that there was a formal parallelism between the two regimes. She believed that the European Communities had expressed a valid concern in this regard, because it was not clear how regimes to protect trademarks would implement the definition of Article 22.1, particularly in light of the respective definitions of "trademark" and "geographical indication". Trademarks all distinguished products and services and/or their producer, manufacturer or provider. Geographical indications were expressions which all

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distinguished the geographical origin of a certain product. Both trademarks and geographical indications could acquire a high reputation and commercial value and, for that reason, could be exposed to misappropriation and counterfeiting or misuse. Nevertheless, there were differences between trademarks and geographical indications. First, trademarks were personalized and identified products or services from a specific manufacturer, producer or service provider in order to differentiate those products or services from other manufacturers, producers or service providers. Geographical indications did not identify a producer or manufacturer of a product but the place of its origin. Second, behind the development of a trademark, human creativity was involved, which was capable of creating an original or novel sign or expression which permitted a certain good or service to be distinguished from those similar to it. On the other hand, a geographical indication was an expression that identified, geographically, the origin of a product. Geographical indications were therefore linked to topography, human work, climate or other factors which were independent of human creativity. Consequently, whereas trademarks put emphasis on the producer of a product, geographical indications underlined the geographical origin of a product and some derived characteristics. For the purpose of the TRIPS Agreement, "geographical indications" were defined in Article 22.1. They pointed to a country, region or locality. They could be any expression, not necessarily the name of the place where the product originated, that could serve the purpose of identifying a given geographical place and its quality. For the purpose of the TRIPS Agreement, "trademark" was defined in Article 15.1. The definition of a geographical indication was therefore broader than that of a trademark. Consequently, there was a serious potential for collision of opposing interests. If a country used trademark law to accord protection for geographical indications, she wondered how it addressed the following concerns, which had been raised by the European Communities. First, how would it control or ensure that the elements of the geographical indication had been respected? Second, how would it control or ensure that the conditions for protection were fulfilled?

128. The representative of Hungary said that his delegation had similar comments on the Secretariat's summary paper as the European Communities had expressed. Referring to the explanation in paragraph 6 of document IP/C/W/253 as to why the paper used the term "indications of geographical origin", he said that Article 22.1 of the Agreement used a specific term and doubted that the proper use of the terminology of the TRIPS Agreement would prejudice the rights of Members. His delegation was not in favour of creating new terminology which might add to, rather than limit, confusion. He did not argue with the Secretariat that a wide range of terms were used in national laws to define geographical indications, as reflected in paragraph 31 of the paper, but his delegation was not convinced that the creation of new terms would be desirable at this juncture. In his delegation's view, the term used in the TRIPS Agreement, i.e. "geographical indications", should be used throughout the paper. He also associated his delegation with the comments made by the European Communities regarding the structure of the paper and supported the suggestion that it be modified to refer specifically to geographical indication laws in addition to laws focusing on business practices and trademark laws. He feared that addressing laws on geographical indication protection and regulations on different issues, such as taxation, all under the category "special protection" could be misleading.

129. The representative of the Secretariat said that there had been two types of comments on the preliminary version of the summary paper (JOB(00)/5619). First, there had been corrections, additions or clarifications in regard to the way in which individual national systems had been reflected in the paper. Document IP/C/W/253 had been corrected or otherwise modified in accordance with these comments. The second type of comments concerned the way in which information had been presented and the terminology and categorization that had been used in the presentation of the information. Only the delegation of the European Communities had made written comments of this type, which it had also expressed orally at the previous meeting of the Council. Within the guidance given by the Council for the preparation of the paper, the Secretariat had to take its own responsibility in terms of deciding upon the best method of presenting the information in the fairest and least

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prejudicial way, taking into account the balance of views underlying this information. The Secretariat had felt that, in regard to the particular point raised concerning the term "indications of geographical origin" used in the paper, the presentation of the information provided by Members would be less prejudicial, or involve less appearance of being prejudicial, if it would not use terms that had precise legal meanings, such as the term "geographical indication". A wide diversity of terms used had been presented as well as a wide diversity of measures employed to protect terms which had a geographical significance and it was likely that many different views would exist among Members as to whether all these terms and systems amounted to the protection of geographical indications in the meaning of the TRIPS Agreement. Consequently, as explained in paragraph 6 of the introduction to document IP/C/W/253, the Secretariat had felt that it was better to use a more general term as a common denominator for all the terms and systems presented just for the purposes of this paper. Regarding the issue of "special protection" vis-à-vis "sui generis protection", some Members had provided information concerning special forms of protection, in particular in respect of wines or spirits, under legal instruments which were not sui generis geographical indication laws. The paper needed to recognize that type of situation. The Secretariat had tried to allay the concerns expressed with regard to the preliminary version of the paper (JOB(00)/5619) on both points, by inserting in the final version (document IP/C/W/253, paragraph 6) language clarifying that the term "indication of geographical origin (IGO)" was not being used for any purpose other than that indicated, i.e. for the purpose of the summary paper, and emphasizing, in the parts which dealt with special protection (in particular paragraph 14 and Tables I and II of document IP/C/W/253), the distinction between, on the one hand, forms of protection under sui generis laws specifically dedicated to the protection of geographical indications, whether or not they used the term "geographical indication", and, on the other hand, those regimes which used other types of legal instruments to provide special protection.

130. The representative of the European Communities thanked the Secretariat for its explanation and said that his delegation, after reflection on it, might revert to the matter at the next meeting.

131. The representative of Australia reiterated her delegation's view that the Article 24.2 review offered an opportunity to increase Members' collective understanding of the provisions of Section 3 of Part II through an analysis of the application of these provisions in domestic law by Members. If Members wished to constructively use the mandate provided in Article 24.2, the review should be carried out in a structured and systematic way, as articulated by Australia and New Zealand in their respective papers on the matter which sought to move the review forward in a structured way by outlining some of the underlying issues and interests that Members could consider in it. Her delegation welcomed the compilation of responses to the Checklist of Questions (IP/C/13 and Add.1) by the Secretariat in document IP/C/W/253. This summary paper was an excellent resource on the application of Section 3 of Part II by a number of Members. However, it did not yet include information from a large number of other Members. She hoped that those Members which had not supplied information as yet would do so as soon as possible, so that the review would be as comprehensive and inclusive as possible. Her delegation supported the suggestion to conduct the review on the basis of the paper in a logical and structured way.

132. The representative of the United States said that his delegation would prepare detailed comments for the next meeting. His delegation found the Secretariat summary paper a most useful basis for the continuation of the review. He looked forward to all Members providing information, so that the summary paper could be as comprehensive and useful as possible. He recalled that, at the previous meeting, he had suggested that WIPO might conduct some useful work on this issue by, for example, exploring issues such as quality, reputation or other characteristics that a product had to possess to qualify for protection as a geographical indication. Members often relied on WIPO's expertise for the analysis of intellectual property issues and in many areas benefitted from the discussion among its experts. His delegation had therefore hoped that this issue could have been taken up at the sixth session of the WIPO Standing Committee on Trademarks, Industrial Designs and Geographical Indications held in Geneva from 12 to 16 March 2001. Unfortunately, some Members

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had taken the view that technical discussions on geographical indications in that Committee would be inappropriate.

133. The representative of the European Communities said that his delegation would prepare comments on a structured basis for the next meeting. Regarding the question as to whether it would be useful to have technical level discussions in WIPO on this matter, he did not appreciate attempts by certain Members to call again for such discussions. The discussions at the present meeting of the Council for TRIPS themselves had a technical character and he did not see the need to call for technical work in another forum. While referring to the mandate contained in the TRIPS Agreement for negotiations, in the Council for TRIPS, on the establishment of a multilateral register, he said that his delegation did not welcome efforts by other Members to delay work which could adequately be conducted in this Council and for which the Secretariat summary paper provided an excellent basis. There was no valid reason why Members should focus their attention on work in another forum.

134. The representative of Australia recalled that her delegation had participated constructively on the issue of the review under Article 24.2 and had submitted a substantive paper to the Council on it. Her delegation had also been willing to engage in a substantive debate concerning the implications of increased geographical indication protection and the application of Section 3 of Part II in national jurisdictions in general as part of the Article 24.2 review, despite its view that extension of scope was not part of the Council's mandate. It had decided to do so with a view to ensuring that issues concerning geographical indications could be considered in a transparent and factual manner. Her delegation wished to have a dialogue that allowed arguments on the issues involved, both for and against, to be examined, including the effectiveness of the current system, the consequences of increased protection and the costs of implementation for Members, such as Australia, which did not already have TRIPS-plus regimes in place. The debate would also enable those advocating extension of scope to explain the benefits that might be derived from it as well as the deficiencies of existing protection. Her delegation had hoped that the recent meeting of the WIPO Standing Committee on Trademarks, Industrial Designs and Geographical Indications would have provided an opportunity for all Members to examine the matter from both sides in a technical, expert and systematic manner. Discussions in the Standing Committee should have facilitated and enabled all Members to have a greater understanding of the costs, benefits and actual experience of Members implementing geographical indication protection. Instead, her delegation had been disappointed with the way discussions on this issue had been effectively blocked.

135. The representative of Switzerland was surprised to see how eager some delegations were to discuss the issues concerning geographical indications in the WIPO Standing Committee, since the same delegations were not so eager to discuss them in the Council for TRIPS. This was probably due to the fact that the representatives of some countries in the WTO were not the same as those in WIPO. Nevertheless, he appreciated the efforts of the United States and others to have a constructive discussion on the subject of geographical indications. Switzerland and the European Communities preferred to discuss the issues involved in the Council for TRIPS in order to avoid duplication of work. Switzerland had been asking for discussions on the extension of scope for some time and there was also a mandate for negotiations on a register in the Council for TRIPS. Therefore, it was up to the Council for TRIPS to discuss these matters, without of course excluding the possibility of the Council posing some precise, technical questions to the WIPO Standing Committee on Trademarks, Industrial Designs and Geographical Indications.

(2) Definitions and Criteria for Recognition

136. The representative of Australia said that the paper made it clear that various countries were using various definitions of geographical indications in their domestic laws. She queried whether protection for a geographical indication could be denied where it was protected in the country of

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origin and satisfied the definition of Article 22.1 but did not comply with the requirements laid down in another country's domestic law for the eligibility for protection as a geographical indication.

137. She also referred to footnote 33 of the preliminary version of the Secretariat summary paper (JOB(00)/5619), which indicated that country names were only eligible for protection as geographical indications in the European Communities and certain other Members in "exceptional circumstances", while at the same time drawing attention to Annex A of the paper, which revealed that country names could be protected as geographical indications in many Members (for example, "Bulgarian yoghurt", "Canadian whisky" or "New Zealand"), and wondered whether Members who did not generally recognize country names as geographical indications were in a position under the TRIPS Agreement to deny protection to geographical indications of other Members on this ground.

138. As regards footnote 107 to paragraph 51(ii) of the preliminary version of the Secretariat summary paper (JOB(00)/5619), which indicated that, in the European Communities and Turkey, recognition of a foreign geographical indication by use of the normal domestic procedure was "conditional on the existence of equivalent recognition and inspection requirements in the country of origin", she wondered how this was established and determined.

139. She also referred to Table III of the paper, which listed information on membership of international agreements provided by Members, and noted that relatively few responding WTO Members participated in the Lisbon Agreement. Perhaps, Members could benefit from a consideration of the shortcomings of the system under that Agreement that had led to such limited acceptance.

(3) Procedures for Recognition

140. The representative of Australia referred to paragraph 71 of the preliminary version of the Secretariat summary paper (JOB(00)/5619), which listed references made to grounds for opposition and noted that the paper did not deal in detail with the application by Members of the exceptions to geographical indication protection contained in Article 24. In her delegation's view, some of the grounds for opposition referred to in paragraph 71 seemed to go beyond the scope of the exceptions in the TRIPS Agreement. For this reason, some consideration as to how the exceptions in the Agreement were being applied in practice, in terms of refusal to protect and grounds for opposition, could be useful for many Members. An understanding of the application of exceptions by other Members would greatly assist Members in understanding whether one of their geographical indications would in fact obtain protection elsewhere or what obstacles it might face in obtaining the protection that they would like. For example, it would be helpful to receive further information as to what were the criteria applied by countries in determining whether certain terms were generic? In particular, it would be interesting to know how the European Communities dealt with the issue of generic names as it was a union of countries in which a name considered generic in one country could be claimed as a geographical indication in another. She had noted that it was a ground for opposition to the protection of a geographical indication in the European Communities and Switzerland where "the proposed registration of a name would jeopardise the existence of an entirely or partly identical name or trademark or the existence of products which were legally on the market". What did this criterion mean? In particular, to what did "name" refer? In what circumstances would the registration of a geographical indication jeopardise the existence of products which were legally on the market? How were these criteria applied? A further ground listed in the paper was "injury to the legitimate interests of a third party". What did this mean? How was it applied?

141. The Council took note of the statements made and agreed to revert to this item at its next meeting.

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J. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)

142. The Chairperson recalled that, at its last meeting, the Council had received three new contributions, namely from Brazil, Japan and Singapore, in addition to the documents the Council already had had before it from India, Mauritius (on behalf of the African Group) and the United States. Members had continued their discussion on both a number of substantive issues and a number of procedural questions relating to how the Council should handle its further work on this matter. The latter issues included those of seeking additional information on how Article 27.3(b) was being implemented by Members, in particular since little information was as yet available from developing country Members in this regard; requesting various intergovernmental organizations, including WIPO, the FAO, the CBD Secretariat and UPOV to provide updated information; and considering ways of organizing the topics that had been raised in the discussions so far. Since the last meeting, new submissions had been received from the European Communities, Peru and the United States.5

143. The representative of the European Communities, introducing his delegation's submission, said that his delegation agreed that the concerns that had been expressed by developing country Members within the context of the review of Article 27.3(b) of the TRIPS Agreement should be properly addressed. The communication set forth the EC's first set of thoughts on the relationship between intellectual property and biodiversity. It did not represent a negotiating position on that issue. However, the EC was looking forward to concrete proposals from Members who had raised specific concerns in the TRIPS Council in the context of the present review. Regarding the legal relationship between the TRIPS Agreement and the CBD, the EC believed that, from a legal perspective, the CBD and the TRIPS Agreement did not conflict with each other. They had different objectives that did not deal with the same subject-matter and they were of a different legal nature. In the EC's view, there was nothing in the provisions of either instrument that would prevent a State from fulfilling its obligations under both. For example, the CBD did not prohibit patents on inventions using genetic material and the TRIPS Agreement did not prevent signatories to the CBD from exercising their right to regulate access to their genetic resources, to require prior informed consent or to share in the benefits arising from their use. However, despite their difference in coverage, there was considerable interaction between the rights referred to in the TRIPS Agreement and the subject-matter of the CBD. There was a range of issues upon which both instruments did have implications, such as biotechnology, plant varieties, environmental technology relating to conservation and sustainable use, information relating to conservation and sustainable use, traditional knowledge and benefit-sharing. From the point of view of their implementation, the TRIPS Agreement and the CBD should not undermine each others' objectives. Accordingly, they should be implemented in a mutually supportive way. The TRIPS Agreement should not in practice undermine the achievement of the objectives of the CBD, such as conservation, sustainable use, benefit-sharing and protection of traditional knowledge. In its implementation, the TRIPS Agreement could, in fact, be used to support the objectives of the CBD, such as the sharing of benefits. Regarding disclosure requirements, he noted that it had been argued by several Members within the context of the ongoing review that Article 27 of the TRIPS Agreement should incorporate CBD requirements concerning access to genetic resources, prior informed consent, benefit-sharing, protection of traditional knowledge and technology transfer. Members were also aware that this issue had been discussed at the WIPO General Assembly, which had agreed to establish a special intergovernmental committee to consider the relationship between intellectual property and genetic resources as well as traditional knowledge and folklore. The first meeting of that committee would take place from 30 April to 5 May 2001.

5 The submission from Peru was available in document IP/C/W/246. Those from the European Communities and the United States were circulated subsequent to the meeting in documents IP/C/W/254 and 257, respectively.

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144. Continuing, he said that the EC was prepared to engage in a positive manner in an attempt to agree in the appropriate fora on a multilateral system and/or other solutions for disclosing and sharing information about the geographical origin of biological material relied upon in patent applications. Such discussions could also address the issue of a self-standing obligation for patent applicants to disclose the geographical origin of biological material relied upon in patent applications. Once such a system or solution would be in place, attention could then be focused on how and to what extent it needed to be included in the TRIPS Agreement. It also needed to be stressed that such a system could never on its own be a satisfactory guarantee of the sharing of benefits arising from the use of genetic resources. From that perspective, the disclosure of origin should be considered as complementary to the main legal instrument in this respect, i.e. the enforcement of sound and effective national legislation in countries providing genetic resources, laying down the conditions for access and benefit-sharing and protection of traditional knowledge.

145. In relation to the protection of traditional knowledge, it was the EC's view that nothing in the TRIPS Agreement prevented WTO Members from setting up a protection regime either by applying their existing intellectual property regimes to indigenous knowledge or through the enactment of a specific model of protection. The EC supported the development of an international model for the legal protection of traditional knowledge. His delegation believed that such a model would improve confidence in the international intellectual property system. It was hoped that the new WIPO intergovernmental committee would bring a solution to that issue. Once a model would be in place, attention could then be focused on how and to what extent the protection of traditional knowledge could be included in the TRIPS Agreement. Meanwhile, it was necessary to examine how to make more information available on traditional knowledge to patent offices, for instance through databases or registration so as to allow patent examiners to take them into account as prior art and reduce the risk of abusive patents. He also wished to emphasize the complementary role that geographical indications could play in protecting traditional products under certain circumstances.

146. Finally, he highlighted the conclusions contained in his delegation's communication. First, the EC stood ready to consider any difficulties WTO Members might meet relating to the practical implementation of the two instruments, i.e. the TRIPS Agreement and the CBD. Secondly, the EC was of the opinion that the search for solutions to developing country concerns expressed within the context of the review of Article 27.3(b) could be found in the following ways: (1) by developing appropriate international instruments to achieve the objectives of the CBD and those objectives of the TRIPS Agreement which, in the view of developing countries, had not been promoted sufficiently by the industrialized countries, such as transfer of technology and know-how; (2) by providing technical assistance to developing countries for implementing the CBD; (3) through the possible negotiation of measures within the intellectual property system aimed at facilitating benefit-sharing and protecting sovereign access rights, such as the disclosure of origin or the protection of traditional knowledge. Therefore, while the EC remained prepared to participate constructively in the discussion on the relationship between the TRIPS Agreement and the CBD in the TRIPS Council, his delegation believed that the review of Article 27.3(b) might not be a vehicle capable of producing definitive solutions to all the issues raised in this particular context. Further progress could, however, be made on the basis of Article 71.1 of the TRIPS Agreement; in WIPO; in the CBD; in the FAO; or in the context of a new round of multilateral trade negotiations in the WTO.

147. The representative of Peru said that the purpose of Peru's submission (IP/C/W/246) was to contribute to the debate on the topic and to share Peru's experience in the protection of traditional knowledge, biological diversity and regulating access to genetic resources. This was a topic of general interest and was of particular importance for Peru, bearing in mind that it had a very wealthy ecosystem with a large number of species, genetic resources and local cultures with most valuable knowledge. Peru had the second largest forest area in Latin America, which was the fourth largest at the global level. Peru also had a high diversity of species and it was estimated that there were approximately 25,000 species of flora of which 30 were endemic. Peru was one of the most important

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world centers of germplasm. This placed Peru as one of the top 10 countries with the largest diversity on the planet. In addition to such natural wealth, there was also cultural diversity. Peru had 14 different linguistic families and at least 44 different ethnic groups. Those local groups had important knowledge regarding the use and properties of species, the diversity of genetic resources, cultural manifestations as well as techniques for the way to handle their ecosystems. However, those indigenous and local communities were threatened on a daily basis due to the colonisation of the Amazon forest and through the introduction of inappropriate technologies. Recent studies had shown that 11 indigenous ethnic groups had disappeared since 1950. Consequently, conservation of the natural habitat and cultural traditions were of utmost importance. In order to preserve the exceptional wealth, there needed to be a joint effort between the government, the industrial sectors and civil society as a whole in order to implement appropriate policies, which would raise the standard of living of our people and use, in a sustainable way, of natural and ecological resources. The process of introducing environmental variables and factors into the country's policies at a national, regional as well as international level had already commenced through the adoption of appropriate legislation and with the active participation of Peru's government in the competent international fora.

148. Continuing, she said that, recently, the Peruvian government had adopted a new approach for the protection and sustainable use of biodiversity, genetic resources and traditional knowledge. It had emphasized that a holistic approach be used in order to bring society into harmony with its nature through sustainable development, including social aspects and aspects of environmental protection in economic activities. An appropriate legal framework had been set up making it possible to achieve those objectives by means of the enactment of modern legislation and the development of a national strategy. Furthermore, Peru's 1993 Constitution contained specific constitutional mandates regarding the sustainable use of natural resources, the protection of the environment, the development of the Amazon region as well as the full development of groups originating from the Amazon region. Furthermore, provisions had been introduced concerning ecological crimes in the new Penal Code. Two new institutions had been set up to deal with environmental matters - INRENA (the National Institute for Natural Resources) and IMARPE - the Peruvian Institute of the Sea - both of which were sectoral institutions. There was also a public institution with national jurisdiction, whose function was to promote and preserve natural resources and sustainable development, namely the National Environmental Council known as CONAM. As for the relevant legal instruments, the Environmental and Natural Resources Code had been enacted on 7 September 1990 and had been the first comprehensive legal instrument on the environment. It set out the major objectives, policies, principles and provisions for the implementation for the action programmes essential for sustainable development in Peru. The Code stated that Peru's ecological and biological systems and its genetic diversity were to be considered part of the national heritage and that their protection and conservation were of social interest. Other important features of the Code were the provisions on scientific research, the use of clean technologies, the precautionary principle, the establishment of protected areas and nature reserves as well as a greater participation by civil society, NGOs and interest groups such as indigenous and local communities in the development of environmental policies. Since 1990, a number of amendments had been made to the Code so as to adapt the legislation to new situations and requirements. The latest update of the legislation had been made in January 1998.

149. Peru also had a national strategy with the following objectives: to conserve biological diversity; to promote fair and equitable sharing of the benefits arising out of the utilisation of biological diversity; to promote education, the building of human and institutional resource capacity, the exchange of information, scientific research and the transfer of technology; to promote Peru's economic development on the basis of sustainable use of biological diversity and the promotion of active participation by the private sector. The national strategy recognized that the conservation and sustainable use of biological diversity called for a comprehensive approach that included all sectors of civil society. In order to achieve these objectives, a number of measures had been adopted, for example the development of projects and action programmes, quantification of the national heritage, classification of the major ecosystems and principal ethnic groups, dissemination of information and

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training of technical staff. CONAM was the national institution that put the strategy into effect. The Law on Conservation and Sustainable Use of Biological Diversity enacted on 8 July 1997 in order to put into effect the principles and definitions contained in the CBD, in addition, recognized the value of knowledge, innovations and practices of farming and indigenous communities for the conservation and sustainable use of biological diversity. It, therefore, included the principle of fair and equitable sharing of the benefits resulting from traditional knowledge and the use of biological diversity as well as prior informed consent for their utilisation.

150. The Law on National Protected Areas enacted on 17 June 1997 aimed at providing a legal framework for the establishment and management of protected natural areas. Since 1961, a number of protected areas had already been established. This contributed to a great extent to the conservation of a number of species, millions of which were in danger of extinction or were almost extinct. In order to prepare and implement appropriate action programs, in 1999, a Master Plan for Protected Natural Areas had been approved and a National Strategy for Protected Natural Areas adopted. Thanks to their protection in these natural areas, for example, there were now 20,000 Andean lamas in Peru alone, while there had been only some 1,000 in the 1970s.

151. As regards the proposed protection regime addressed in paragraph II.D of her delegation's submission, she said that, in 1996, the Peruvian Government, in recognition of the importance of having an appropriate legal framework to protect the traditional knowledge of the indigenous peoples and the recognition of the importance of regulating access to genetic resources, had set up a Multilateral Committee to conduct studies and draw up draft legislation. The Committee had been composed of 15 national bodies, including officials dealing with a number of areas such as intellectual property, the environment, research and development, public health, trade and industry, agriculture and fisheries. A first draft had been completed in May 1998, after which a series of broad consultations had been held with the private sector, NGOs and sectors representing indigenous communities. This process had yielded a number of constructive suggestions and recommendations, which had proved their usefulness for the new text of the draft published in the official journal El Peruano of 21 October 1999. Subsequently, a new round of consultations had taken place and led to a revised version of the proposal, which had been published in the official journal El Peruano of 31 August 2000. Due to the fact that the farming and indigenous communities had requested some additional time for consultations, the proposed regime had not yet come into force. It would help to conserve and make sustainable use of the components of biodiversity and, in order to provide adequate protection for those possessing traditional knowledge, a sui generis system would be set up. It would recognize the indigenous people's ownership and associated rights over their traditional knowledge, in particular the right to decide on how it should be used. A requirement for access to knowledge that was not in the public domain would be prior informed consent by the community possessing that knowledge. An innovative and most important aspect of the regime would be the creation of a Fund for the Development of Indigenous Peoples, which would receive 0.5 per cent of the sales resulting from the marketing of products developed on the basis of traditional knowledge, even if that was in the public domain. The Regulation of Access to Genetic Resources would establish a series of requirements and also provided for the creation of a Fund for the Conservation and Development of Genetic Resources.

152. At a regional level, there were two legal instruments: the Andean Community Common System for Access to Genetic Resources (Decision 391) and the Amazon Cooperation Treaty (Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname and Venezuela). The Amazon Cooperation Treaty adopted in 1978 was the first regional initiative with the objective of protecting the environment and promoting sustainable use of the Amazon basin. In order to preserve the ecological balance and to conserve species through the rational use of the Amazon's flora and fauna, the member countries had agreed to promote scientific research and the exchange of information and technical experts in order to enhance knowledge of the flora and fauna in their respective Amazon territories. They had also agreed to establish an appropriate system for the exchange of information

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on environmental policies and measures in their respective territories. Peru had chaired the Pro-Tempore Secretariat of the Amazon Cooperation Treaty between 1994 and 1997. One of the major achievements during that period had been the establishment of the "Criteria and Indicators of Sustainability in the Amazon Forest", also known as the "Tarapoto Proposal". There were a series of consultations with public and private sectors and NGOs in Bolivia, Colombia, Peru, Ecuador, and Venezuela, which had shown that there was widespread support for the proposal. In 1996, the member States of the Andean Community had adopted the Andean Common System for Access to Genetic Resources, the main objectives of which were to create conditions for a just and equitable sharing of the benefits derived from access; to lay down the basis for recognition and utilisation of genetic resources, their by-products and their intangible components, especially in relation to indigenous, Afro-American or local communities; to promote the conservation of biodiversity and the sustainable use of genetic resources; to promote the strengthening and development of scientific, technological, and technical capacity at the local, national and sub-regional levels; and, finally, to reinforce the negotiating capacity of the member States. This Common System introduced a novel and interesting concept, namely "intangible components" defined as "knowledge, innovation or individual or collective practices, of actual or potential value, that are associated with genetic resources of their derivates or the biological resource containing them, whether or not protected by intellectual property regimes". As far as the traditional knowledge of indigenous, Afro-American and local communities was concerned, the Common System recognised their historical contribution to the conservation, development and sustainable use of biological diversity and genetic resources. She also stressed that the new industrial property law of the Andean Community (Decision 486), also included provisions regarding the biological heritage and contained a requirement to identify the country of origin when genetic resources were used in a patent or when traditional knowledge was used in a patent.

153. In conclusion, she said that Peru was a multifaceted country with special geographical and natural resources that provided it with a great wealth of genetic resources, biological diversity and hydrological resources. It also had considerable human resources and broad ethno-linguistic and cultural diversity. Peru had started to take practical measures to utilise that potential wealth. In recent years, substantial progress had been made in the legislative framework for the conservation of the environment, regulating access to genetic resources and the protection of traditional knowledge. This was reflected in the enactment of domestic legislation on the conservation of natural areas and also in the ratification of relevant international treaties. Nevertheless, this was a responsibility that should be shared between the public and private sectors at the national level. It should also be shared between countries that provided and those that used genetic resources and traditional knowledge at the international level. It was necessary to stress that the efforts being undertaken by many developing countries, including Peru, to put into effect the principles laid down in Agenda 21 of the United Nations and in the CBD should be accompanied by the development of an international regulatory framework and appropriate implementation measures in order to give effect to the intellectual property rights of local and indigenous communities and regulate access to genetic resources. Finally, international recognition of traditional knowledge would give those possessing that knowledge the legal possibility of asserting their rights outside their own countries and would result in economic benefits. It would also limit misappropriation and unauthorised exploitation of such knowledge and would provide alternatives that would take into account at the international level, inter alia, the aspects related to the protection of new plant varieties in the context of Article 27.3(b) of the TRIPS Agreement as well as the obligation to respect, preserve and maintain, the knowledge, innovations, and practices of indigenous and local communities provided in the CBD.

154. The representative of the United States, introducing his delegation's submission, said that the paper discussed four provisions of the CBD that had been referred to in general terms by certain Members asserting that there were inconsistencies between the provisions of the CBD and those of the TRIPS Agreement. Those provisions were Articles 8(j), 15, 16 and 19 of the CBD. The paper suggested ways in which the obligations contained in those provisions could, in fact, be implemented

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in an effective way and noted the synergies that would exist between such implementation and the implementation of TRIPS obligations, thus dispelling the notion that there was, in fact, any conflict between the two instruments. His delegation hoped that its suggestions would stimulate a serious discussion in the TRIPS Council during which those Members that were also contracting parties to the CBD could describe their practical experience with implementing obligations under both instruments. He also expressed the hope that Members who had questions about particular proposals for implementing their obligations under the CBD would raise those questions in the TRIPS Council, so that the Council could consider them and provide views for the Member in question to take into consideration in shaping its final implementation of both instruments.

155. The representative of Brazil said that Brazil was encouraged by the number of delegations that had expressed support, and the constructive comments that had been made concerning, document IP/C/W/228, in which Brazil had shared its views as regard the review of Article 27.3(b). In order to ensure coherence in the discussions within the WTO on the matter addressed, the document had also been circulated in the Committee of Trade and Environment, during its last session, under the agenda item "TRIPS and the Environment". On that occasion, a good number of developing countries had welcomed the Brazilian paper. He considered it particularly encouraging to hear some developed countries, such as Norway, making constructive remarks on the incorporation of the principles of benefit-sharing and prior informed consent into the TRIPS Agreement and the EC's flexible approach in relation to the need for further international action as regards genetic resources and traditional knowledge.

156. Referring to the non-paper circulated by Singapore (JOB(00)/7583) during the last TRIPS Council meeting, he said that this document contained an interesting perspective on some elements of the checklist of issues for the review of Article 27.3(b), in particular on the issues of patents on microorganisms, plants and animals. Singapore had argued in favour of an extension of patent protection for plants and animals and had referred to the fact that the current genetic engineering techniques were more easily applied to single cell organisms than to multicellular animals and plants. Taking into account the future progress that was likely to occur on genetic engineering of plants and animals, Singapore, therefore, "would argue for patent protection to be extended for plants and animals". In this regard, Brazil wished to point out that currently nothing prevented individual Members from extending patentability to plants and animals, since Article 27.3(b) of the TRIPS Agreement provided for such flexibility; consequently, Singapore was free to exercise its rights under the TRIPS Agreement to extend protection to plants and animals. However, he did not think that it was not realistic to argue in favour of an extension of patentability to all forms of life as a requirement for all WTO Members. In Brazil's view, the existing flexibility as regards patentability of plants and animals was a key element to preserve the balance of interests among Members in the TRIPS Agreement. Moreover, if all WTO Members would be required to provide for the patentability of all types of life forms, the issue of the relationship between the TRIPS Agreement and the CBD would be even farther from a solution. In fact, on the basis of such a hypothesis, it was possible to envisage a situation of direct conflict between the TRIPS Agreement and the CBD, as the former would explicitly provide for private exploitation of all types of genetic resources whereas the latter would establish sovereignty of its contracting parties over the same genetic resources. Maintaining the existing flexibility would appear to be a more prudent approach.

157. He noted that Singapore's non-paper, while recognizing the important contribution of genetic resources to the development of biotechnology, argued that "to use the TRIPS Agreement to enforce such benefit-sharing arrangements may not be the best way to proceed as it could mean negotiating a common arrangement to apply to all countries. This was because countries concerned would want to set up different benefit-sharing arrangements to respond different national priorities". In this regard, he wished to clarify that Brazil had not been suggesting the negotiation of a common arrangement applicable to all countries for setting up benefit-sharing schemes in the TRIPS Agreement. Brazil's view was that Article 27.3(b) should be amended so as to allow Members to require, whenever

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appropriate, the identification of (a) the source of the genetic material; (b) the related traditional knowledge used to obtain the material; (c) evidence of fair and equitable benefit-sharing; and (d) evidence of prior informed consent from the government or the traditional community for the exploitation of the subject-matter of the patent. Thus, Members would ensure that the patent system would not be used inconsistently with countries' own national priorities as regards sustainable exploitation of their genetic resources.

158. Finally, he said that Singapore had made an interesting case in favour of the promotion of biotechnology and stressed that there was no divergence between Brazil's position and the position of Singapore in that regard. Brazil was not against biotechnology. Rather, Brazil was against bio-piracy. As a country rich in genetic resources, it only made sense that Brazil was not only interested in fostering biotechnology, but also in benefitting from it. In that respect, the relevance of the notion of benefit-sharing was self-explanatory. Bearing in mind the objectives of the TRIPS Agreement as regards biotechnology, there seemed to be no doubt that the TRIPS Agreement should contribute to the promotion of biotechnological innovation and to the transfer and dissemination of biotechnology to the mutual advantage of producers and users of biotechnological knowledge and in a manner conducive to social and economic welfare and to a balance of rights and obligations. In the light of the specific implications of the review of Article 27.3(b) on biotechnology, there seemed to be little evidence that such provisions actually would fulfill the objectives of the TRIPS Agreement. An amendment of Article 27.3(b) would be helpful in that respect, allowing owners of genetic resources to benefit from the exploitation of these resources by patents. The biotechnology industry would benefit from a predictable environment as regards the use of the patent system. Precisely for that reason, many research laboratories were already taking the initiative to establish benefit-sharing and prior informed consent contracts with the owners of genetic resources. Therefore, Brazil's proposals would not go against such companies but, rather, against companies and individuals who operated directly against the objectives of the CBD, thereby performing bio-piracy.

159. In relation to Peru's paper, he wished to note that Peru had extensive experience in developing legal frameworks for the protection of traditional knowledge and for providing access to genetic resources. National experiences such as Peru had presented were extremely helpful and useful to ensure a down-to-the-ground discussion.

160. Offering preliminary comments on the paper from the European Communities, he welcomed the interest of the EC and their member States to present their views on the review of Article 27.3(b) and fully supported the proposal to grant observer status to the CBD Secretariat, since this would be most helpful for ensuring a coherent discussion on issues concerning both the WTO and the CBD.

161. The representative of Switzerland said that, over the past few months, several Members had submitted documents regarding the review of Article 27.3(b). Having studied these documents with great interest and care, his delegation wished to thank the delegations that had submitted them for their valuable work. As Switzerland had stated in earlier interventions, the review of Article 27.3(b) should focus, on the one hand, on the scope of the exclusions from patentability of "plants and animals other than microorganisms, and essentially biological processes for the production of plants and animals other than non-biological and microbiological processes" as set out in the first sentence of Article 27.3(b). On the other hand, the review should focus on the sui generis protection of plant varieties as set forth in the second sentence of Article 27.3(b). He would therefore concentrate on these two issues. Regarding the first issue, i.e. the scope of the exclusions from patentability, Article 27.1 required that patents be available for inventions in all fields of technology and Article 27.3(b) allowed Members to exclude from patentability plants and animals but not microorganisms. The two provisions had major implications on the scope of protection of biotechnological inventions. Whereas biotechnological inventions were in principle patentable, plants and animals, i.e. possible results of the application of biotechnology, might be excluded from patentability. If biotechnological inventions were not adequately protected, an important incentive for

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private companies' research and development would be missing. Therefore, Switzerland agreed with Singapore that biotechnological inventions deserved the same patent protection as was accorded to other areas of science and industry. His delegation also agreed with Singapore that the review of Article 27.3(b) should not lead to any lowering of intellectual property protection of biotechnological innovations. However, this did not mean that Switzerland was advocating the deletion of the current possibility for Members to exclude plants and animals from patentability. His delegation considered the first sentence of Article 27.3(b) as a well-balanced provision because, as Brazil had pointed out, it preserved Members' flexibility to decide whether or not to exclude the patentability of plants and animals in light of their specific national interests and needs.

162. In the context of biotechnology and the patenting of biotechnological inventions, ethical concerns were raised. Switzerland took these concerns very seriously. Swiss patent law, parallel to Article 27.2 of the TRIPS Agreement, allowed the exclusion from patentablity of inventions the prevention of the commercial exploitation of which was necessary to protect ordre public or morality. In his delegation's view, this allowed to adequately take into account ethical concerns as far as patent law was concerned. Apart from that, his delegation considered that, regarding the industrial application of patented invention, ethical issues had to be addressed and dealt with in other laws, such as laws on the protection of the environment, public health or animal welfare.

163. The first sentence of Article 27.3(b) required Members to patent microorganisms meeting the conditions of patentability, but did not define the term "microorganisms". His delegation agreed with the United States and Japan that the language of Article 27.3(b) was to be interpreted in accordance with Article 31 and 32 of the Vienna Convention on the Law of Treaties and that the definition in the Oxford Dictionary was sufficient to distinguish "plants and animals" from "microorganisms" for the purpose of the discussions in the TRIPS Council.

164. In the context of the patenting of living organisms, the distinction between inventions and discoveries was of major importance. In Switzerland, natural occurring subject-matter such as chemical substances found in nature were qualified as discoveries and therefore, in principle, not patentable. If, however, inventive efforts had been made, the results of those efforts might be patentable. In the context of the patenting of living organisms, concerns had been expressed regarding the issue of so-called "bio-piracy". Switzerland believed that, when the criteria of patentability as defined in Article 27.1 were properly applied, most if not all problems arising in this context could be avoided. In order to apply these criteria properly, especially the criterion of novelty, prior art had to be accessible by those who decided upon the novelty of an invention, i.e. patent authorities and courts. One measure that could be most helpful in this context was the establishment of an international database within the auspices of WIPO documenting prior art regarding plants, animals and microorganisms and the related knowledge. Switzerland had already proposed such a database in the TRIPS Council meeting of October 1999 and his delegation had noted with great satisfaction that this idea had been welcomed by other delegations. Switzerland intended to further pursue the idea, for example in WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.

165. Continuing, he said that, as a consequence of the patentability of biotechnological inventions, issues regarding access to genetic resources and the related traditional knowledge as well as the sharing of the benefits arising from their use might arise. These issues were presently being discussed in several international fora and Switzerland was actively participating in those discussions. For example, in the CBD, Switzerland had elaborated and presented "Draft Guidelines on Access and Benefit Sharing Regarding the Utilisation of Genetic Resources". While discussing these issues, his delegation considered it important that a mutual flow of information was guaranteed.

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166. Turning to the second issue on which, in his delegation's view the review of Article 27.3(b) should focus, i.e. a sui generis system of protection for plant varieties, he referred to the statement by Mauritius on behalf of the African Group that its objective was to ensure that the obligation to protect plant varieties by effective sui generis systems as set forth in Article 27.3(b) was consistent with the provisions of the CBD and the FAO International Undertaking on Plant Genetic Resources. As a contracting party of both these international instruments, Switzerland fully shared this objective. In his delegation's view, however, the provisions of these two international instruments and the second sentence of Article 27.3(b) of the TRIPS Agreement could, and should, be implemented in a mutually supportive way. Switzerland was also a contracting party of the 1978 Act of the UPOV Convention and agreed with Japan that the UPOV system of protection was "an effective sui generis system" as required by Article 27.3(b). His delegation also agreed with Singapore that the UPOV system was a useful reference for the basic level of protection for plant varieties in any sui generis system. Taking, furthermore, into account the negotiating history of Article 27.3(b) and the growing number of contracting parties of the UPOV Convention, currently 47 States, Switzerland viewed the UPOV system to be at the foreground as the effective sui generis system for protection of plant varieties. Nevertheless, he agreed with Brazil that, besides the UPOV system of protection, there might be other sui generis systems of protection for plant varieties that met the requirements of Article 27.3(b). He also agreed with India that the second sentence of Article 27.3(b) did not preclude Members from also implementing a sui generis system of protection for farmers' varieties or so-called landraces. Those generally had characteristics that differed from commercial plant varieties and might, therefore, require, their own system of protection. As Article 27.3(b) did not further specify which elements constituted an effective sui generis system, his delegation considered the elements listed on page 2 of the US communication to present helpful guidelines for any national legislator when drawing up a sui generis system of protection that differed from the UPOV system of protection. Several of the documents presented to the Council expressed concerns about the impacts of the UPOV system on farmers and plant breeders, especially in developing countries. Switzerland considered the UPOV Convention to be flexible enough to allow its contracting parties to adequately address those concerns. As examples, the farmer's privilege, as provided for in Article 5.1 of UPOV 1978 and Article 15.2 of UPOV 1991, and the breeder's exemption, as provided for in Article 5.3 of UPOV 1978 and Article 15.1 of UPOV 1991, could be mentioned. These were two legal measures that were central to the UPOV Convention. The farmer's privilege allowed farmers to replant, in the next season, propagating material of plant varieties protected by plant breeder's rights that they had harvested on their own holdings. Whether the farmer's privilege was connected to a fee was left to the national legislator. For example, in Switzerland, it was foreseen to introduce the farmer's privilege into the Swiss patent legislation free of charge. The breeder's exemption allowed breeders to freely use plant varieties protected by plant breeders rights in their breeding activities. His delegation considered the question raised in this context in paragraph 3.2 of the communication from Mauritius on behalf of the African Group to be adequately addressed by the breeder's exemption. This exemption could also be applied to farmers and his delegation, therefore, did not see the need to broaden the scope of the farmer's privilege. To further advance discussions on the sui generis system of protection for plant varieties as set forth in Article 27.3(b), Switzerland would be interested in hearing from those Members that chosen to implement a sui generis system of protection that differed from the plant breeder's rights system established by the UPOV Convention on their experiences. To his delegation, such information seemed to be a pre-requisite for a useful and systematic discussion on this core element of the review of Article 27.3(b).

167. The representative of Hong Kong, China said that Peru's paper was of interest to his delegation and referred to traditional Chinese medicines as forms of traditional knowledge. His delegation would be interested in hearing more national experiences in this regard. As regards the submissions from the European Communities and the United States, these raised a number of important policy questions and issues that needed to be looked at more carefully at the next meeting. Offering preliminary comments, he said that the EC paper, which was well-written and well-argued, contained an analysis of the relationship between the CBD and the TRIPS Agreement that was

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generally a sensible one and warranted further study. He welcomed the EC's support for an international model for the legal protection of traditional knowledge and had taken note of the information that had been provided concerning discussions that were taking place in other fora on this matter, such as the WIPO Intergovernmental Committee. His delegation shared the view expressed in the conclusion of the EC paper that some of the issues, such as protection of traditional knowledge, would need to be addressed through other vehicles than the review of Article 27.3(b). The suggestion of using the Article 71.1 review to address some of them was helpful.

168. The representative of India expressed support for Peru, in particular the conclusion contained in the Peruvian paper about international action and recognition with regard to traditional knowledge. He also expressed support for the paper that had been submitted by Brazil and the comments made by the representative of Brazil. As regards the document submitted by Singapore, in his delegation's view, reducing the existing flexibility in Article 27.3(b) would be cause for great concern, if not retrograde. He would appreciate clarification from Singapore in that regard as well as from the Swiss delegation, which had supported Singapore on this matter, but had argued at the same time for retention of the flexibility in Article 27.3(b). He reiterated his delegation's rejection of what was contained in paragraph 9 of the communication from Singapore, that the UPOV system should be the reference for the basic level of protection for plant varieties. Some had said that the Oxford Dictionary should be referred to with regard to the definition of microorganisms, but the same could be argued in relation to the term "sui generis". Scientists were not in agreement on the exact coverage of the term microorganisms. Therefore, reference to the Oxford Dictionary was not a very helpful approach in that regard. Neither could a simple reference to the UPOV system suffice. The request made by Switzerland for further information was a valid request and his delegation would try to come up with whatever information it could in that respect. He welcomed the acknowledgement by Switzerland that a sui generis system other than the UPOV system was possible under Article 27.3(b).

169. Referring to the paper from the European Communities, he expressed his delegation's satisfaction that the EC had agreed to look at the concerns voiced by developing countries. It was important during the review to treat the issues that had been raised by a number of countries seriously. He also welcomed that the document was a discussion paper and not necessarily a negotiating position cast in stone. That indicated that the EC was willing to look at the issues raised with an open mind and might be persuaded to change their minds. He would appreciate a clarification from the EC as to why the review of Article 27.3(b) would not be the proper vehicle for certain of these issues. This did not quite fit with the other points made in the paper. There was no direct link between the points made in the EC paper, especially the interaction between the CBD and the TRIPS Agreement, and its conclusion as to the applicability of the review of Article 27.3(b). India had never argued that, in respect of all the issues raised, it was up to the TRIPS Council to find the answers. India was open to the idea that some concerted international action might be required to tackle some of the points. However, his delegation believed that the TRIPS Council did have a responsibility with regard to, at least, two issues. The first of these issues concerned the use of intellectual property rights that some said led to misappropriation of genetic resources or traditional knowledge, consciously or unwittingly. In that respect, the TRIPS Council could not duck responsibility and he took issue with the statement in paragraph 4 of the EC paper, that the CBD and the TRIPS Agreement did not conflict with each other. That was too strong a statement in light of the comments and submissions made by delegations. India's position was that there was probably an incompatibility between the two agreements. The EC should at least have said that the CBD and the TRIPS Agreement did not always conflict with each other. To assert that they did not conflict at all was not consistent with comments made later in the paper, where it was said that there was an interaction between the two agreements. Further, the EC had conceded that the CBD did contain a provision that intellectual property rights should not be implemented in a way that ran counter to the objectives of the CBD. He agreed with the statement in paragraph 14 of the EC paper that the main area of interconnection between intellectual property rights and biodiversity related matters was found in Section 5 of the TRIPS Agreement on patents. If the CBD stated that there needed to be prior informed consent and that there needed to be

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benefit-sharing, and if a country considered that the way to implement those obligations was to ensure that intellectual property rights did not run counter to the objectives of the CBD, it was necessary to include something on this in the patent application form. However, other Members might argue that this would amount to a requirement for the grant of a patent additional to those stipulated in the TRIPS Agreement or a procedural requirement for the grant of a patent that was not reasonable. Looking at the two instruments in isolation, one could argue that their objectives were different. However, implementation of the CBD provisions involved areas touched upon by the TRIPS Agreement. He was grateful to the EC for indicating that they would look at the aspect of disclosure requirements positively. However, one step further was needed, namely a look at possible ways to concretise benefit-sharing and prior informed consent. The issue was whether the TRIPS Agreement provided, or the TRIPS Council could provide, some flexibility for Members to implement provisions in a way that did not run counter either to the TRIPS Agreement or the CBD. As Brazil had stated, both instruments had to be implemented harmoniously. Continuing, he agreed with the point made in paragraph 24 of the EC paper, that the focus should not be just on international action, but that national legislation was equally important. When his delegation had made the point with regard to genetic resources that national action alone was not enough, it had not meant to say that that obviated the need for national action. However, in addition to national action, there needed to be action at the international level.

170. Continuing, he said that, in relation to the protection of traditional knowledge, India had always felt that there were only two main issues. First, how could there be equitable benefit-sharing? Where it was possible to exploit traditional knowledge, from India's perspective, it should be exploited. India did not consider that traditional knowledge had to be preserved at all costs. It was fine to exploit that knowledge provided that it led to equitable benefit-sharing. Secondly, where traditional knowledge was already in the public domain, India was wary of countries granting patents or other intellectual property rights, since this would amount to misappropriation of knowledge. His delegation had already provided examples on earlier occasions and was of the view that, in this regard, it was not possible to argue that there was no conflict between the TRIPS Agreement and the CBD. Some delegations had expressed the view that Article 27.3(b) was not an appropriate vehicle for these issues and others that Article 71.1 might be an alternative. His delegation was agnostic as to whether these important issues were addressed in the review of Article 27.3(b) or under Article 71.1. It merely wanted the issues to be resolved. Provided that there was a willingness within the TRIPS Council to address the issues raised, the basis did not matter. There were, however, certain issues that clearly fell within the scope of the review of Article 27.3(b), such as the issue of the definition of "microorganisms"; the issue of exclusions from patentability; and the issue of sui generis systems. It was for other delegations to identify the issues that India and other developing countries had raised that were not considered to fit in the review of Article 27.3(b) but rather under Article 71.1.

171. The representative of Korea said that his delegation had recently completed the study on the preparation of which he had informed the Council at its previous meeting. It was now digesting the outcome of the study project - on the current situation of genetic resources available domestically and abroad and regulation systems related to the protection, use and access - and consulting with the various ministries concerned. Korea hoped to be able to submit a paper at the next meeting on the basis of the outcome of the study and inter-ministerial consultation. At present, he was only in a position to make general comments. First, Korea shared the view of Australia that, before rewriting patent rules, it was necessary to first look at their implementation in a collective manner and at the actual nature of intellectual property rights within Members at the national level. Such an exercise would help enhance mutual understanding of the various intellectual property regimes or related systems which constituted the practical and legal basis of the TRIPS Agreement. Referring to the paper from Japan (document IP/C/W/236), he said that Korea basically agreed with the Japanese view that the scope of review in Article 27.3(b) should be limited to the optional exclusions in Article 27.3(b) and exceptions to these exclusions from patentability. However, Korea was open and flexible about discussing any pertinent issues arising out of implementation of the TRIPS Agreement.

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Regarding the issue of benefit-sharing raised in Brazil's paper (document IP/C/W/228), in Korea's view, this matter was more effectively dealt with through contractual arrangements between parties concerned than the introduction of an international obligation to ensure fair and equitable contractual arrangements. However, international organisations such as the WTO and the CBD had to contribute, to a certain extent, to capacity building by governments or traditional communities for that purpose. In relation to the issue of the protection of traditional knowledge, Korea would participate with great interest in the first session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, which was to take place shortly.

172. The representative of Singapore, responding to points made in relation to his delegation's informal note, first turned to the issue of the patentability of all life forms, as addressed by Brazil and India. In this regard, he wished to draw attention to both Article 27.1 and 27.3(b). Article 27.3(b) laid down that "Members may exclude from patentability plants and animals, … etc." Consequently, the provision allowed for the patenting of plants and animals. It was not mandatory and provided the flexibility to countries to allow the patenting of plants and animals if they so desired. It was left up to Members. However, Singapore was suggesting that Members not use he option. Biotechnology had advanced much more since the days when the TRIPS Agreement came into being. No country should ignore that biotechnological developments had progressed further ahead and could add to economic benefit for the whole world, i.e. for both developed and developing countries. In particular, countries which were very much involved in biodiversity ought to think seriously about this suggestion. All over the world including, for example, India, scientists were doing experiments in biotechnology and with genetic resources. Biotechnology was said to be the next wave after the "dot.com" wave. Another point raised in this regard concerned the issue of benefit-sharing. Singapore agreed with Brazil that benefit-sharing should be respected in so far as it was part of the CBD. Singapore was a party to the CBD and would of course abide by the terms of the CBD, including on benefit-sharing. As regards bio-piracy, he agreed with Brazil. Referring to the point made by India regarding the use of UPOV as a reference point, Singapore's view remained that the TRIPS Agreement was flexible when it came to a sui generis system for the protection of plant varieties. It was possible to protect plants either through patents, a sui generis system or any other system. UPOV was an existing instrument that could be referred to. In addition, many countries were in the process of working out their own sui generis systems. Those could also be used as a reference point. As to India's statement that the TRIPS Agreement and the CBD had to be implemented in a harmonious way and the implied conflict between the two instruments, it was necessary to analyse where the problem areas lay. In international law, if the implementation of a treaty could cause stress for the implementation of another treaty, or if there were overlapping areas, good faith interpretation intended to achieve as harmonious an implementation of both as possible should be aimed at.

173. The representative of the United States emphasized that his delegation would respond to any observations about the CBD, benefit-sharing and the relationship of these issues to Article 27.3(b), but remained of the view that those issues were not central to the review under Article 27.3(b) that was yet to be concluded in the TRIPS Council. He would be interested to know when his delegation could expect that developing country Members would submit information to the Council on the manner in which they had implemented the provisions of Article 27.3(b), certainly now that several delegations had been critical of the information contained in the Secretariat's synoptic tables of May 1999 for the reason that they reflected primarily the laws and practices of developed countries. If developing country Members would not submit information on how they had implemented the provisions in question, the synoptic tables could do nothing other than reflect what developed country Members had done. While the United States had been happy to engage in a substantive discussion of issues of interest to other Members, Members had not yet engaged in a discussion that the United States and some other Members would like to engage in, namely how developing country Members who were now obligated to implement the provisions of Article 27.3(b) had in fact done so. While he hoped that there was, he did not know whether there was any support for that kind of analysis. He

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proposed that the Council set a deadline by which Members would be obligated to provide information so as to allow the Secretariat to amend its synoptic tables.

174. Continuing, he said that he was happy to hear observations such as Brazil had made in support of biotechnology as well as the patenting of biotechnological inventions and benefit-sharing through contractual relationships. Those were in fact issues worth exploring. However, with regard to Brazil's suggestion that the TRIPS Council consider clarifying the scope of the term "microorganism", his delegation considered it curious that it would be necessary to define a term that patent experts already understood, discussed and acted upon without difficulty, but that it would not be necessary to do so regarding "traditional knowledge", as suggested by Brazil. As far as he knew, this term was not only lacking a definition but there was no common understanding about it either.

175. With respect to the protection of plant varieties under a sui generis system, his delegation recognized that systems other than UPOV existed. However, it believed that the UPOV system was the most favourable for encouraging development of new plant varieties in all WTO Members' territories. He had noted with interest that Brazil, in its paper (document IP/CW/228), had pointed out that it had established, in 1997, a law on the protection of new varieties of plants and that the sui generis protection for plant varieties under it had already resulted in effective protection of new plant varieties that had been developed in Brazil. It was important to note that this represented a clear recognition that this form of protection was of value to developing country Members.

176. Referring to the section of the Brazilian paper on ethical issues relating to the patentability of life forms, he said that Brazil continued to overlook the fact that the rights that the TRIPS Agreement required to be established did not constitute property rights over life forms. As his delegation and others had repeatedly pointed out, the patent rights as stipulated in Article 28 conferred on their owners the right to prevent others from taking certain actions with respect to inventions as protected by patents. They did not confer on patent owners an affirmative right to take particular actions. As he had stated before, if Members wished to prevent certain activities, other should and could be employed to do so. There was no need to burden the patent law with such provisions. It was very unlikely that inventors would seek patent protection for inventions which could not be commercialized if other laws prohibited their commercialization. By the same token, it was of course unlikely that much research and development would be pursued by commercial entities in fields in which commercialization of the results of such research and development would be prohibited.

177. He then turned to the recommendation by Brazil and others that patent laws be amended to require applicants to identify the source of the genetic material and related traditional knowledge that they had been using in making their invention, as well as evidence of fair and equitable benefit-sharing and prior informed consent. It had been stated that this would be no more burdensome than any other requirement for obtaining a patent. However, the existing procedures were directly related to determining whether an invention itself met the standards of patentability and to disclosing the technology for which patent protection was being sought so that others could learn from it. In previous papers, the United States had highlighted the downsides of imposing such requirements on a patent system. In fact, in its most recent paper, the United States had suggested a far more practical means of ensuring that those who were granted access to genetic resources and/or traditional knowledge disclosed their source in any patent application for an invention developed using those resources or that knowledge. Contractual arrangements could also obligate those being given access to genetic resources to specify in any patent application anywhere based on inventions developed from those resources the source of the resources and an identification of the relevant contract.

178. The representative of Australia emphasised that Australia shared the overall policy objectives of many delegations on the issues that had been raised under the Article 27.3(b) review. Those objectives had already been set out and endorsed in the TRIPS Agreement itself and complementary instruments such as the CBD. In response to the question raised by India as to why her delegation

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regarded Article 71.1 to provide a better basis for the consideration of those issues, she pointed out that many of the issues that had been raised in the review under Article 27.3(b) raised questions that concerned other provisions of the TRIPS Agreement, for example Article 27.1 as regards the criteria of novelty, inventive step, industrial applicability in the biotechnology domain; Article 27.2 and 27.3(a) as regards other public policy exceptions to patentability such as for ethical, environmental or public health reasons; and Article 29 as regards the patentee's disclosure obligation. Further, the issue of traditional knowledge raised questions concerning geographical indications, collective marks and copyright. In Australia's view, to suggest that all of those interlocking issues should be dealt in the review under Article 27.3(b), which was a narrow provision relating to exceptions to patentability and sui generis plant variety protection, had the effect of artificially constraining the range of available policy responses to those that could be argued to relate somehow to the scope of patentable technology. With regard to India's request for clarification as to what issues delegations were willing to discuss under Article 27.3(b), Australia was of the view that it was necessary to first better understand the approach that had been taken in the various national systems on key definitional and policy issues that were related to Article 27.3(b). That was why Australia had been encouraging, along with some other Members, countries that had not yet submitted information on their implementation of Article 27.3(b) to come forward with that information. Thus, the Council would have the opportunity to come to a better overall and collective understanding of the provisions of Article 27.3(b), for example on issues such as the interpretation of terms used in the TRIPS Agreement such as "microorganism" and "effective sui generis system for plant variety protection". Australia welcomed the first meeting of the WIPO Intergovernmental Committee on Intellectual Property and Access to Genetic Resources, Traditional Knowledge and Folklore, which would be held at the end of April 2001. That body represented a useful forum where experts could address the technical interlinked issues. Australia's desire was that the process be used to make substantive progress on charting the parameters and salient points concerning the various issues.

179. The representative of Malaysia reiterated her delegation's view regarding the patenting of plants and animals, that the flexibility under Article 27.3(b) remained important. Nevertheless, such flexibility was not without conditions. Where countries allowed the patenting of plants and animals, the criteria of Article 27.1 should continue to be met to the fullest, i.e. inventions should be new, involve and inventive step and be capable of industrial application. Those countries that had chosen to exclude plants and animals from patenting should be justified to do so on the basis that they were discoveries rather than inventions. Hence, the flexibility afforded by Article 27.3(b) should continue to be subject to the relevant criteria of Article 27.1. Members could be further assisted by greater clarity as to the various terms used in relation to patenting in this area, such as "microorganisms", etc. Patents were important to further encourage research and development in biotechnology and in genetic resources. Malaysia was also happy with the clarification by Singapore in relation to UPOV. Singapore had the right to refer to the UPOV system given the flexibility provided by Article 27.3(b), which allowed Members to choose their own effective sui generis system. Evidently, other countries might have different criteria for protecting plant varieties. Malaysia agreed with Singapore that UPOV was merely one of the models which Members could draw upon wholly or partially based upon the flexibility already provided under Article 27.3(b). Peru's paper was useful in the Malaysian context given Malaysia's similar biodiversity and genetic resources.

180. The representative of the European Communities reiterated that the paper his delegation had presented earlier at the meeting concerned a first set of thoughts, which meant that it might have further thoughts that it might wish to share with Members as work continued on the issue. He asked Members to look carefully at what the communication contained, rather than what it did not contain. As indicated in the conclusions of the paper, his delegation stood ready to consider any difficulties that Members might meet with regard to the relationship between the TRIPS Agreement and the CBD and the language it had chosen to reflect this showed a large degree of flexibility for addressing the concerns that had been raised in the Council over the past two years by a number of delegations. He said that his delegation had refrained from going into the issue of what fell within or outside

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Article 27.3(b), because it did not think that a debate on that issue would be useful or constructive, even though he agreed with Switzerland's description of the original scope of the review of Article 27.3(b). Instead, the paper offered a number of options for discussing the matters that had been put on the table in the Council. He agreed with the United States that it would be helpful for all Members, if developing countries would respond to the questionnaire which developed countries had responded to two years ago.

181. The representative of Hong Kong, China said that his delegation was preparing its responses to the questionnaire and hoped to submit these shortly. He believed that it would be useful if other developing country Members would also share their experiences in implementing the provisions of Article 27.3(b) by responding to this questionnaire, but did not think it was necessary to set a deadline for the submission of such responses as suggested by the United States.

182. The representative of Colombia said that Colombia had made some progress concerning genetic resources and intellectual property and that the paper from Peru illustrated one of the ways in which the TRIPS Agreement and the CBD could be implemented in a compatible way. With respect to the paper from the European Communities, he welcomed the fact that it showed an open attitude and opened up prospects concerning the theme under discussion. Colombia particularly welcomed the idea of revealing the origin of resources, which would enable there to be adequate benefit-sharing. Colombia attached great importance to multilateral work in this area and, consequently, welcomed developments such as the creation of the WIPO Intergovernmental Committee. His delegation was flexible as to the vehicle through which the discussion on the issues raised in the review of Article 27.3(b) would be developed, whether through Article 27.3(b) or Article 71.1.

183. The representative of Brazil welcomed that Singapore considered that the flexibility established under Article 27.3(b) should be maintained. He wished to note in this regard that patentability of life forms was subject to this flexibility, which Members could make available if they did not wish to avail themselves of the exception in respect of plant and animals permitted by Article 27.3(b). The flexibility in the Agreement on this matter was determined by the permissible exception from patentability of plants and animals and not by the exclusion from this exception of microorganisms. As regards biotechnology, Brazil had a great interest in its development and was, in fact, one of the leading countries in terms of decoding the genomes of some microorganisms. Brazil was also a country rich in genetic resources and had a special interest in the prevention bio -piracy as well as the promotion of biotechnology. Therefore, it was interested in discussing the issue of exploitation of genetic resources. However, for countries with scarce genetic resources, such as Singapore, or desert-like countries, it was also important to address the issue of resources being unduly taken through patenting or, in particular, the transfer and dissemination of biotechnology. He welcomed Switzerland's intervention as to the idea of establishing a database of traditional knowledge, to assist in its protection and said that the WIPO Intergovernmental Committee might be the forum to develop some action in that regard. Responding to the United States, he said that no one had said that the UPOV system was a bad system. The main element of his delegation's paper on this issue was that the UPOV system was certainly not the only system. It was probably not a perfect system either, taking into account some of the elements of UPOV 1991. He did not think that his delegation was confusing ownership with the patent rights provided for in Article 28 of the TRIPS Agreement. The main point referred to by Brazil in its paper, in this regard, concerned the exploitation of genetic resources. Considering the exclusive rights provided for in Article 28, and referred to in other parts of the TRIPS Agreement, and considering the elements concerning the exploitation of genetic resources as addressed by the CBD, the conclusion was reached that both instruments were relevant to the exploitation of genetic resources. This was the main element that Brazil wanted to focus on in the review of Article 27.3(b). In particular in respect of microorganisms, Article 27.3(b) was relevant to the exploitation of genetic resources and concerned notions that also applied to the CBD. As regards the comments from the United States relating to the absence of a definition of "traditional knowledge", he said that the absence of a definition of "micoorganism" had

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not prevented Members from establishing multilateral disciplines on the patentability of microorganisms. Perhaps, the absence of a definition of "traditional knowledge" did not necessarily have to prevent the United States from agreeing to enter into negotiations on the establishment of a multilateral discipline to protect traditional knowledge either.

184. The representative of Ecuador said that the review of the provisions of Article 27.3(b) did not just concern the implementation of existing obligations, but required a detailed examination as to the appropriateness of any amendments to the provisions in question. Ecuador agreed with the concerns expressed by a large number of Members from developing countries in the framework of the debate that had occurred within the Council. In that context, Ecuador felt that it was particularly important to clarify what was and what was not patentable in the light of the provisions of Article 27.3(b). There were also other questions, the implications of which could change the conceptual framework, for instance the distinction between essentially biological processes and microbiological process. Ethical and moral aspects should be borne in mind in the debate given their growing impact on activities related to Article 27.3(b) as well as to other intellectual property aspects. In Ecuador, as in other developing countries, the traditional knowledge of local and indigenous people was protected in terms of intellectual property with full multilateral and effective backing. Thus, use could be made of the economic, cultural and commercial value of that knowledge. Most of this traditional knowledge involved innovations, creations and cultural benefits possessed by owners through the transmission across generations. Such knowledge was closely linked to the use of biological, genetic and natural resources as also with the conservation of the environment. The inclusion in a multilateral system of standards to support adequate and effective protection for the traditional knowledge of indigenous and local communities should be considered as being of fundamental importance. It was important to acknowledge the existence of national and regional laws which acknowledged the collective rights of indigenous and local communities over their traditional knowledge and folklore. However, this in itself was not sufficient because, without the existence of an international mechanism providing support for such rights and obligations, all the work done nationally or regionally could be undermined. It was essential to preserve the principles of sovereignty, prior informed consent, fair and equitable distribution of benefits, authorization by the host government and the transfer of technology in the review of Article 27.3(b) and other work under the TRIPS Agreement in connection with traditional knowledge and folklore. Patent applicants should have the duty to reveal the source of biological materials or related knowledge used for the purposes of an invention. In this regard, he referred to the standards under Decision 486 of the Andean Community. Ecuador attached great importance to harmonizing the TRIPS Agreement and the CBD. There was a need for a multilateral framework which would assist in sharing justly and equitably the results of activities pertaining to research and development concerning genetic resources as well as the benefits or gains flowing from the use of those genetic resources.

185. The representative of Zimbabwe, speaking on behalf of the African Group, said that the African Group would provide responses to comments made concerning its paper on the matter at the next session of the TRIPS Council.

186. The Chairman said that many Members, in particular developing country Members, had not responded to the illustrative list of questions that the Secretariat had circulated in December 1998 upon a request from the Council. He suggested that the Secretariat reissue this list of questions and that Members be invited to provide their responses, if they had not yet done.


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K. REVIEW OF THE IMPLEMENTATION OF THE AGREEMENT UNDER ARTICLE 71.1

188. The Chairperson said that, to date, the Council had received three papers on the matter, i.e. from Cuba, Honduras, Paraguay and Venezuela, jointly, as well as from Australia and India. He recalled that, at the last meeting, the Council had agreed on a target date prior to the Council's meeting in April 2001 for the submission of suggestions both on the approach that it should take to the review and the specific issues that delegations would wish to see taken up in the review, so as to allow the Council to work out, at the present meeting, a way of initiating the actual review. It was understood that the target date would not prevent subsequent submissions. Despite this call, to date no new submissions had been received.

189. The representative of India said that the Article 71 review was an overarching review of the TRIPS Agreement itself, so that no subject-matter should be excluded from the scope of this review. Any list that might be drawn up in terms of a checklist of issues should not be exhaustive and should be open-ended as should be the target date. A deadline was not favoured. India would also take into account any new and relevant developments. India did not have any problem with overlaps between the review under Article 27.3(b) and Article 71.1

190. The representative of Malaysia, speaking on behalf of the ASEAN countries Members of WTO, said that the provisions of Article 71.1 provided an opportunity for Members to review the implementation of the Agreement, while the 7 February 2000 General Council Meeting had further elaborated by stating that mandated reviews should address the impact of the agreements concerned on the trade and development prospects of developing countries. The ASEAN countries believed that the issues for review could also include: practices of Members in implementing the TRIPS obligations (which was ongoing); how the provisions of the TRIPS Agreement were consistent with and promoted the objectives and principles of the Agreement (the promotion of technological innovation, transfer and dissemination of technology, to the mutual interests 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, and measures relating to the promotion of public interests for socio-economic and technological development and the protection of public health and nutrition); promotion and transfer of technology (whether the TRIPS provisions were adequate to meet this objective and whether patent provisions hinder technology transfer or whether this was due to a lack of capacity); whether there was an appropriate balance between public interests and private rights in the various fields of intellectual property protection (how should issues of public health, patent length or affordable access to essential medicines be dealt with under the TRIPS Agreement); what were appropriate measures referred to in the context of Article 8 that could be used to prevent the abuse of intellectual property rights by right holders or the resort to practices that unreasonably restrained trade and/or adversely affected the transfer of technology. Discussion of these issues in the review would be helpful in determining whether the TRIPS Agreement had met the objectives it was intended for and whether there was, indeed, a balance of benefits.

191. The representative of Switzerland expressed his delegation's appreciation for the valuable work done by the delegations that had submitted documents regarding the review of the implementation of. the TRIPS Agreement as provided for in Article 71.1 and wished to outline a few of Switzerland's thoughts on what this review should focus on and on the relation of the work under the review to other institutionalized review work provided for in the TRIPS Agreement or elsewhere in the WTO system. Regarding the contents of the review, Switzerland shared the view of all those delegations that had pointed out that the work the Council had to fulfil under Article 71.1 of the TRIPS Agreement should focus on the implementation of the Agreement as such rather than on discussing new items. Regarding the issues to be discussed under Article 71.1, Switzerland shared the concern expressed by, for example, Korea and Singapore that the review was not meant to lead to a duplication of information with the notification provisions of Article 63.2, or with the trade policy review. Moreover, Switzerland supported the proposal of those delegations that wanted to

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concentrate, at least at the present stage, on the implementation options of existing TRIPS standards and practical experiences within the existing TRIPS framework. Switzerland was also willing to address difficulties in implementation as, for example, Pakistan had proposed.


L. NON-VIOLATION COMPLAINTS

193. The Chairman said that two new submissions concerning this matter had been received, namely a formal paper from Canada (IP/C/W/249) and a non-paper from Hungary (JOB(01)/43).

194. The representative of Canada, introducing her delegation's submission, said that, in February 1999, Canada had submitted a paper to the TRIPS Council raising three important issues of concern related to non-violation complaints. The first was with respect to the "trade in goods" history of non-violation complaints and the significant disagreement during the TRIPS negotiations regarding the inclusion of a provision on "non-violation" in the context of an intellectual property agreement. In addition, Canada had pointed to the uncertainty of the scope of the remedy. The fact that there existed varying interpretations on important aspects of Article 64 was not surprising, but the continuing lack of a common view on essential elements of the remedy made its application unpredictable. This was precisely what the negotiators had attempted to avoid by establishing a moratorium for the admissibility of non-violation complaints in the TRIPS area. The third issue concerned the undetermined regulatory authority of the obligations flowing from the non-violation disciplines. Due to the questions that remained open as to the application of non-violation disciplines in the context of intellectual property, Members had shown a legitimate concern that governments could find themselves genuinely and unduly constrained in the development of policies. It was vital that this uncertainty surrounding the remedy in the TRIPS context be taken away and governments would be fully cognizant of the obligations they had assumed. The possibility of unintended TRIPS obligations taking on a much wider scope than was ever intended had to be avoided. Canada appreciated the positive contributions made by Members since the Seattle Ministerial in 1999. In June 2000, Canada had joined the Czech Republic, Hungary, Turkey and the European Communities and their member States in submitting a paper to the TRIPS Council suggesting to continue the examination of the scope and modalities for non-violation complaints in the TRIPS context. That paper emphasized Members' commitment to pursuing the debate in the TRIPS Council and also stressed that the TRIPS Agreement was not a market access agreement as such, even though it facilitated market access of goods and services involving intellectual property rights. Market access commitments were encapsulated in the respective GATT and GATS schedules of WTO Members and had been negotiated in subsequent GATT/WTO rounds. Another reason stressed by the paper was that an examination of the scope and modalities of non-violation complaints in the TRIPS area would be to ensure that dispute settlement results based on non-violation complaints would not undermine the coherent existence of the present WTO agreements. In September 2000, Korea had submitted a document on non-violation complaints and, at the same time, Australia had submitted a discussion paper which provided an in-depth substantive analysis of various components and factors that would make up the scope and modalities for non-violation complaints in the TRIPS context. The Australian paper maintained that the TRIPS Council continued to have an "undischarged responsibility to prepare recommendations on the scope and modalities of non-violation TRIPS disputes and should still endeavour to address this issue". Australia had also pointed out that whether or not non-violation complaints should be available under the TRIPS Agreement was a matter that remained to be determined by the TRIPS Council and that the resolution of that issue by panels should be avoided. The paper in question explained that, although the TRIPS Council had not completed its examination within the specified time-frame, the TRIPS Agreement did not preclude it from continuing with that task and from eventually providing recommendations. To achieve this, the paper provided a most helpful substantive analysis of such key issues as what was meant by "scope and modalities", what was meant by the key concepts of "benefit

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accruing directly or indirectly under the agreement", "nullification or impairment" of such a benefit, "impediment to the attainment of any objective" of the TRIPS Agreement, and what bearing these concepts had on "scope and modalities". Australia had also looked at three approaches that the TRIPS Council could take in interpreting key issues, including an analysis of the terms in their direct context within the relevant WTO agreements (TRIPS, DSU and GATT 1994); a review of the WTO/GATT dispute settlement practice on "non-violation" disputes; and a review of the negotiating history of the TRIPS Agreement.

195. The discussion paper submitted by Canada for the current meeting of the TRIPS Council raised four issues on the subject of non-violation complaints and presented those issues so as to invite Members to reflect upon and examine possible directions that could be taken by the TRIPS Council. The four issues were: (a) the recognition of the exceptional character of "non-violation" complaints and the specific nature of the TRIPS Agreement; (b) definitions, including "measure", "benefits", "remedy" and "reasonable expectation"; (c) burden of proof; and (d) the possibility of adopting TRIPS "non-violation" decisions through "positive" rather than "negative" consensus. The potential application of "non-violation" complaints in the context of the TRIPS Agreement was distinct from how it applied in the context of trade in goods. The results of WTO market access negotiations were recorded in national schedules of concessions annexed to the Uruguay Round Protocol that formed an integral part of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations. By comparison, the TRIPS Agreement was not principally concerned with questions of market access and did not include a commitment to a certain level of market access. The TRIPS Agreement set out basic rules aimed at ensuring that all WTO Members would follow universal minimum standards for intellectual property protection. Although specific rights might be transferred through contractual licences, there was no actual trade in intellectual property rights as there was trade in goods. Instead, intellectual property rights were embedded in tradeable goods and services. Insufficient intellectual property protection could sometimes deter trade and investment. However, intellectual property rights represented a balance between creators and users, between the need to provide incentives to reward and spur innovation and the need to ensure that society benefitted from having maximum access to new creations. Just as too little protection of intellectual property could impede innovation and trade, so too could too much protection. As the Preamble of the TRIPS Agreement as well as its objectives and principles as stipulated in Articles 7 and 8 recognized, the TRIPS Agreement represented a carefully negotiated balance in this respect. This balance was not to be upset through the use of the "non-violation" remedy.

196. To bring a "non-violation" case, the complaining party had to show a causal link between the harm suffered and a "measure" of the responding party. "Measure" was not defined but GATT cases suggested that WTO panels might interpret this term broadly, extending it to all aspects of government action. Laws and regulations appeared to be covered and, in some cases, panels had found administrative guidelines to be measures as well, in particular if officials applied them as if they were mandatory. In this regard, Members should examine whether the "non-violation" remedy also applied to actions of courts or law enforcement authorities, since panels might be called upon to determine whether "measure" included court decisions and actions of law enforcement authorities and the TRIPS Agreement did establish obligations regarding the enforcement of intellectual property rights through civil, administrative and criminal procedures and remedies. In order to establish a case of "non-violation" under Article XXIII:1(b) of GATT 1994, a Member had to demonstrate that an expected "benefit" accrued to it at the time of the conclusion of the TRIPS Agreement had subsequently been nullified or impaired. Members had long asked how "benefit" should be defined in the TRIPS area. Existing decisions on the "non-violation" remedy in the GATT context provided a useful framework for the overall analysis, but were also of limited use in defining "benefit" in the context of the TRIPS Agreement. While intellectual property rights might facilitate trade and investment, the obligations under the TRIPS Agreement could not be characterized as market access concessions in the same way as obligations could be characterized under the GATT. The "benefit" conferred under the TRIPS Agreement was the ability to "acquire, maintain and enforce" intellectual

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property rights. This "benefit" did not automatically concern the exploitation of those rights. One of the key differences between "violation" complaints and "non-violation" complaints was the nature of the remedy. For "violation" complaints, the remedial action was generally the withdrawal of the measure in question. This was not the case for "non-violation" complaints. In "non-violation" complaints, as stated in the Japan-Film case "[t1he ultimate goal is not the withdrawal of the measure concerned, but rather achieving a mutually satisfactory adjustment, usually by means of compensation". In the context of the GATT, where allegations related to market access concessions, the quantification of compensation did not usually present a significant problem. In the TRIPS context, however, the quantification of the level of nullification and impairment would be more difficult. GATT practice indicated that a complaint had to be based on a measure that the complaining party could not have reasonably or legitimately expected or anticipated. The question of timing also appeared to be an issue worthy of discussion in the TRIPS Council.

197. GATT practice established different rules regarding burden of proof for "non-violation" cases. In "violation" cases, nullification or impairment was inferred from the breach of the obligation. By contrast, in a "non-violation" case, nullification or impairment could not be inferred. It was up to the complaining party to submit a "detailed justification" supporting its case. The case histories to date suggested that this justification had to go further than a simple description of the offending measure. A detailed substantiation had to be provided of the expectations of the negotiating parties as well as a clear causal link had to be demonstrated between the measure at issue and the nullification or impairment. Generally speaking, it appeared that panels had applied a standard of proof based on a balance of probabilities. Members should consider whether a higher standard should be applied in "non-violation" cases in the TRIPS context. Under the DSU, decisions of panels and the Appellate Body were adopted by "negative" consensus, i.e. unless all Members rejected a report, it was adopted. However, in the case of "situation" complaints under GATT Article XXIII:1(c), it was Article 26.2 of the DSU that developed the applicable rules. Thus, in particular, through reference to the 1989 GATT decision on "improvements to the GATT dispute settlement rules and procedures" (L/6489), the adoption of panel reports should continue to be done by "positive" consensus. With respect to Article XXIII:1(b) concerning "non-violation" complaints, in the absence of specific wording to the contrary in Article 26.1 of the DSU, it would appear that "non-violation" decisions would be adopted by "negative" consensus. However, as argued in Canada's paper, it was reasonable to ask whether, in the context of the TRIPS Agreement, "non-violation" complaints and "situation" complaints should not share the same process for adoption of decisions, namely "positive" consensus (i.e. all Members would need to agree to a report before it was adopted).

198. In conclusion, she said that Canada's discussion paper, as well as the other papers that had been tabled in TRIPS Council, raised valid issues that required substantive discussion and examination in the TRIPS Council relating to the scope and modalities for "non-violation" complaints as they pertained to the TRIPS Agreement and intellectual property rights. In Canada's view, the TRIPS Council should proceed with its work on the issue until Members had had the opportunity to analyse the serious and legitimate questions being explored by Members and make recommendations to the Ministerial Conference on scope and modalities. The discussion in the TRIPS Council on the issues identified in the papers submitted to date ought to advance, so that the Council could fulfill its responsibility under Article 64 of the TRIPS Agreement.

199. The representative of Hungary said that his delegation's non-paper reproduced the oral intervention made by Hungary at the meeting of the Council for TRIPS on 27 November 2000. By submitting the text, Hungary wished to contribute to the examination of the scope and modalities for non-violation and situation complaints.

200. The representative of Hong Kong, China said that, at the Council's meeting in November 2000, his delegation had expressed the view that the TRIPS Council should continue to explore the scope and modalities for non-violation complaints. Both the Canadian and Hungarian

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submissions made valuable points concerning the scope of non-violation and situation complaints. Both documents rightly pointed out that the TRIPS Agreement was not a market access agreement, but just a set of minimum standards of intellectual property protection. Therefore, the scope of the non-violation remedy should be carefully and narrowly defined. Hong Kong, China shared this a view. To bring a "non-violation" case, there had to be a "measure" which caused harm. Canada had asked, quite properly, whether measures could apply to "actions of courts or law enforcement authorities", in particular in the exercise of their discretionary authority. As phrased by Canada: "Would the non-violation remedy suddenly be available for non-action?". Allowing action on the basis of non-violation under the TRIPS Agreement to flow from the actions of courts seemed to be too far-reaching a consequence and posed considerable dangers. Canada also asked how "benefit" should be defined in the light of the requirement under Article XXIII(1)(b) of GATT that an aggrieved Member had to demonstrate that a "benefit" had been nullified. A number of good examples were cited on page 4 of the Canadian paper. Advancing another example, he wondered whether, if Hong Kong, China were to ban all advertising of cigarettes, including their trademarks, for health reasons, it would nullify benefits under the TRIPS Agreement, in the sense that trademarks were meant to be used. Since Article 15.4 of the TRIPS Agreement provided that "the nature of the goods or services to which a trademark is to be applied shall in no case form an obstacle to registration of the trademark", it might be argued that, even though someone might argue that, though Hong Kong, China might be strictly complying with Article 15.4 by allowing trademarks for cigarettes to be registered, its ban on cigarette advertising could be the subject of a "non-violation" complaint, because no use could be made of such trademarks. The Canadian paper also raised other interesting general questions on trade law that needed to be carefully examined. As an initial reaction to those issues, Hong Kong, China considered that the suggestion that non-violation decisions in the context of the TRIPS Agreement should be adopted through "positive" rather than "negative" consensus might be going a bit too far. This raised a fundamental systemic issue and would possibly require amendments to the DSU. Hong Kong, China would caution against going down such a route, at least for the time being. The Hungarian paper shared the Canadian query about the difficulty posed by defining benefits flowing from the TRIPS Agreement. The queries made by Hungary were sensible and reinforced the need for further discussions of non-violation and situation remedies in the TRIPS context.

201. The representative of Malaysia, speaking on behalf of the ASEAN countries Members of the WTO, said that Article 64.3 of the TRIPS Agreement provided for the examination of the scope and modalities for non-violation complaints and for recommendations to be submitted to the Ministerial Conference. Clearly, the provision for the examination of the scope and modalities of non-violation was meant to address uncertainties over non-violation complaints. Those uncertainties arose because the non-violation complaints in the area of intellectual property protection could be different compared with those in the goods area. The documents submitted by Australia, Canada, Korea, the United States and the joint paper from Canada, the Czech Republic, Hungary, Turkey and the European Communities and their member States as well as the comments made by Hong Kong, China raised issues that would need more discussion in the TRIPS Council. In particular, some of these documents had alluded to the treatment of measures taken in the context of Articles 7 and 8 of the TRIPS Agreement. In addition, some had also posed questions or attempted to provide a clarification of the terms used, such as "measures", "benefits" and "nullification and impairment", which were terms crucial to the issue of non-violation. In the view of the ASEAN countries, it would be useful for the TRIPS Council to have an examination of what constituted "measures", or "situations" and what was the meaning of the terms "benefits" and nullification" in the context of the TRIPS Agreement. The ASEAN countries were also interested to know what were the possible exceptions in considering non-violation in the TRIPS area. In addition, ASEAN would also continue to stress that the application of non-violation complaints should not: (i) undermine sovereign rights to regulate, i.e. limit Members' ability to legislate for valid legal, economic and development reasons consistent with the TRIPS Agreement; (ii) result in new unexpected obligations; or (iii) result in impediments towards the use of legitimate measures under the TRIPS Agreement. The TRIPS Council had at its

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disposal sufficient valid issues raised by Members that could be used as the basis for a more substantive discussion on non-violation, i.e. the Secretariat's paper together with the issues raised by Members.

202. The representative of the European Communities said that the documents presented by Canada and Hungary were valuable contributions to the debate, seeking consensus on the scope and modalities, which was one of the objectives that the European Communities and their member States had put forward in the past.

203. The representative of Peru concurred with other delegations on the difficulties involved in defining the scope and the possible cases in which non-violation would apply. The context of trade in goods in cases where relative advantages of market access were nullified or impaired as a result of the application of a "non-violating" measure taken by another Member was not comparable with that of the TRIPS Agreement, which established minimum standards of protection for intellectual property rights. The TRIPS Agreement was not a market access agreement. Therefore, Peru agreed with other delegations that non-violation remedies should not be invoked in dispute settlement cases until such time as the scope and modalities of non-violation in the TRIPS area had been clearly defined.

204. The representative of Mexico said the TRIPS Council still had to carry out its mandate to examine the scope and modalities of non-violation complaints under the TRIPS Agreement, with a view to submitting its recommendations for consideration by the Ministerial Conference. It was, therefore, necessary that Members engaged in a substantive discussion on this matter as soon as possible. Therefore, her delegation welcomed the communications that had been submitted by several delegations on the matter which contained a number of elements that could used as a reference for this task. According to Article 64.3, the definition of the scope and modalities of the non-violation remedy was a task for the Membership as a whole. It was in the interest of all Members to arrive at recommendations on the basis of consensus, in order not to prolong the legal limbo and uncertainty that Members were facing. The task should not be left in the hands of panels or the Appellate Body, which in accordance with the DSU would not be able to either increase or diminish the obligations of Members. In this regard, as had been pointed out by Australia in its paper, the observations by the Appellate Body in India – Patent Protection for Pharmaceutical and Agricultural Chemical Products were relevant, in the sense that the availability or non-availability of the non-violation remedy was an issue that should be determined by the TRIPS Council and not through interpretation by panels or the Appellate Body. The essential starting-point of the Council's examination was, as pointed out in almost all proposals, the recognition that the TRIPS Agreement was not a market access agreement, but an agreement laying down minimum standards for the protection of intellectual property rights. This had important implications for the concept of "benefits" and the notion of "nullification or impairment", both of which were key elements for determining the scope and modalities of the non-violation remedy. Mexico also agreed with the approach that emerged from most of the proposals that had been made that, because of the nature of the TRIPS Agreement, the scope of the non-violation remedy should be very carefully defined and limited, so as to prevent any possible abuse or undesired consequences. This also resulted from the exceptional character of this type of remedy. Mexico also shared the view that in establishing the scope and modalities of the remedy, special attention should be given to the issue that the non-violation remedy should not be applied inconsistently with the principles and objectives of the TRIPS Agreement or, indeed, with any other provisions of the Agreement. In addition, it also seemed logical to her delegation to exclude the possibility of putting forward non-violation complaints based on exceptions provided for in other provisions of the Agreement, as had been pointed out by Australia. The same observation applied to the exceptions established under other WTO agreements. As regards the concept of "measure", the observation made by Hungary was relevant that the text of Article XXIII.1(b) of GATT 1994 and Article 26.1 of the DSU referred to government measures; therefore, it was questionable that actions of private parties could be considered relevant under this concept, as suggested in the Korean contribution. In the view of her delegation, acts of private parties should not be considered when

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determining whether a "measure" existed. With regard to the concept of "measure", Canada had also drawn attention to a sensitive issue, namely the potential application of the non-violation remedy in relation to decisions of domestic courts and tribunals. Canada had done well in alerting Members as to the possible implications thereof. This could not only lead to use of the non-violation remedy as a means of appealing national judicial decisions, but might also have more complex legal implications in relation to matters such as sovereignty and the division of power and authority, which were issues that went beyond the purview of the TRIPS Council. Therefore, the recommendation to carefully delimit the scope and modalities of the remedy in question was all the more important. As regards the "benefits", given that the TRIPS Agreement did not establish market access commitments but minimum standards for the protection of intellectual property rights, it seemed logical to her delegation that the concept of "benefits" was linked to those stemming from the Agreement for Members, i.e. the possibility for their nationals to acquire, maintain and enforce intellectual property rights in the territories of other Members, and not to benefits directly stemming from the commercial exploitation of these rights. As to the concept of the competitive relationship between goods or services, as stemmed from GATT/WTO jurisprudence, Mexico also shared the doubts expressed as to its applicability in the context of the TRIPS Agreement. Mexico was equally interested to know how other delegations perceived this concept. As to other criteria that had been mentioned relating to the presentation of non-violation cases, Mexico was of the view that the principle should be retained that the burden of proof fell on the complaining party and that the complaining party had to submit a detailed justification substantiating the case, as stipulated in Article 26.1 of the DSU. In order to delimit the use of the remedy, there should be a requirement to demonstrate the causal relation between the measure in question and the nullification or impairment of the benefit. Finally, her delegation found it interesting that Canada had suggested to explore the possibility of laying down that decisions should be adopted on the basis of positive consensus in the case of non-violation, as was the case for situations complaints.

205. The representative of the United States said that the United States did not share the concerns and feelings of uncertainty that the concept of non-violation cases in relation to the TRIPS Agreement seemed to raise in other WTO Members. His delegation continued to believe that the provisions of Article 26 of the DSU and past panel decisions under the GATT as well as discussions in the WTO already provided sufficient guidance for panels and the Appellate Body in dealing with any such cases as might arise. Together, Article 26 and past decisions ensured that the scope of any non-violation complaint would have to be very narrowly drawn and clearly supported with detailed justification. Given the thorough way in which panels and the Appellate Body scrutinised violation cases, there was no doubt that even greater scrutiny would be applied in any non-violation case that involved the TRIPS Agreement or any of the other WTO Agreements. As had been stated in his delegation's paper, the TRIPS Agreement was indeed a market access agreement because it helped reduce market distortions that existed prior to its negotiation by establishing adequate standards and principles concerning the availability, scope and use of trade-related intellectual property rights and by ensuring that effective and appropriate means for the enforcement of those rights would be available without themselves becoming barriers to legitimate trade. With regard to the joint paper, its primary thrust seemed to be the importance of maintaining coherence among various WTO Agreements. The United States also wished to maintain coherence among these agreements, but did not believe that decisions of dispute settlement panels or the Appellate Body would lead to any incoherence. In this regard, he wished to note that a complaint lodged under the TRIPS Agreement could not possibly impair the consistent application of another WTO Agreement. As had been pointed out several times, Article 3.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes expressly provided that recommendations and rulings of the DSB could not add to or diminish the rights and obligations provided in the covered agreements. Article 3.5 of the DSU laid down that all solutions to matters formally raised under the consultation and dispute settlement provisions of the covered agreements, including arbitration awards, had to be consistent with those agreements and should not nullify or impair benefits accruing to any Member under those agreements nor impede the attainment of any objective of those agreements. Given that the Marrakesh Agreement was the result of a single

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undertaking, it was highly unlikely that even absent that express language in the DSU, a panel would ever determine that something a WTO Member had agreed to under one part of that single undertaking nullified and impaired benefits agreed to under another. The very reason for having the possibility of non-violation complaints was to cover that other eventualities, i.e. actions other Members might entertain and measures that they might take that could not be foreseen during the course of the negotiations and that could nullify or impair negotiated benefits. Were negotiators to attempt to cover every eventuality, action and measure explicitly, negotiations would be interminable and no agreement could ever be reached. Actions expressly required or permitted by one WTO agreement would obviously have been foreseen at the time of the Uruguay Round negotiations and could not therefore serve as a basis of a successful non-violation complaint with respect to the TRIPS Agreement. In this regard, it should be pointed out, in relation to the example raised by Hong Kong, China, that bans on cigarette advertising could easily have been anticipated at the time of those negotiations. Many countries either already had such bans in place or were actively discussing them. His delegation had already addressed other issues raised in the joint paper at previous meetings as well as in the paper that it had submitted and would not repeat those points. However, turning specifically to Hungary's non-paper, he wished to note that, while Hungary suggested that the TRIPS Council could collectively determine whether or not non-violation complaints should be available, the United States was only prepared to discuss the way non-violation complaints already applied to the TRIPS Agreement.

206. The representative of Australia said that her delegation retained a keen interest in progressing the work of the TRIPS Council towards a clearer, shared understanding of the scope and modalities of non-violation complaints. She concurred with Mexico that the uncertainty of the Council on that issue should not be prolonged. As set out in Australia's paper (IP/C/W/212), the TRIPS Council should ideally follow the sequence established under Article 64 of the TRIPS Agreement, i.e. there should be TRIPS Council recommendations on scope and modalities followed by a consensus Ministerial Conference decision. In its intervention, Canada had usefully highlighted some of the other key points made in Australia's paper. Rather than reiterating points contained in her delegation's paper, she referred to the paper urging delegations to consider the issues outlined in it. Australia would welcome substantive comments both on its paper and the other submissions which had been put on the table. Her delegation was encouraged by the fact that several delegations during the current meeting had expressed a similar desire to move forward on the issue.

207. The representative of Korea said that the papers from Canada and Hungary could serve as a good basis to facilitate a substantive discussion on non-violation. Responding to Hungary's question concerning the coverage of acts of private parties under the term "measure", as addressed in Korea's submission (JOB(00)/6166, paragraph 7), bearing in mind that the TRIPS Agreement was dealing with rights and obligations between private parties, he said that, while such acts could, as had been the case under the GATT, be covered, it was not Korea's intention to advocate that acts of private parties should be covered which did not at the same time involve some form of government action or intervention. As regards Hungary's question as to why the Korean submission did not mention situation complaints, he said that the reason why his delegation had not touched upon this subject was not that it considered it unimportant, but simply because there had not been any cases involving situation complaints, as pointed out in the Secretariat paper (IP/C/W/124).

208. The representative of Turkey said that his delegation was of the view that the substantive discussion and examination of the scope and modalities for non-violation complaints should continue, with a view to achieving concrete results. It agreed with the concrete proposals some Members had advanced in the discussion. Obviously, such contributions would help to make the discussions more fruitful and substantive.

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209. The representative of India said that India welcomed the continuing discussion of the subject in the TRIPS Council. He expressed support for Hungary's non-paper and recalled that the Appellate Body in India - Patents Protection for Pharmaceutical and Agricultural Chemical Products had indicated that "whether or not non-violation complaints should be available for disputes is a matter that remains to be determined by the Council for TRIPS pursuant to Article 64.3 of the TRIPS Agreement". Like Hungary, India acknowledged that the comment was made during the five-year moratorium contained in Article 64.2. Nevertheless, it should be taken into account that the Appellate Body consciously had not referred to Article 64.2 but, instead, to Members' obligations under Article 64.3. In his delegation's view, this meant that the Appellate Body saw the work of the TRIPS Council under Article 64.3 as an exercise to be carried out without prejudice as to whether or not non-violation applied to the TRIPS Agreement. Canada's paper raised some most important issues, for which there was no answer as yet. Canada had made a good case about how difficult it was to define either "benefits" that were accruing under the TRIPS Agreement and, as a corollary, how to define "remedies". If "benefits" could not be defined, obviously, "remedies" could not be defined either, since it would be impossible to tell what had been nullified or impaired. As regards "reasonable expectations", Hungary had made a good point concerning competitive relationships in the context of the TRIPS Agreement. As opposed to the GATT, it could be argued that the TRIPS Agreement was fundamentally anti-competitive. It was not one of the objectives of the TRIPS Agreement to promote competition, since it conferred exclusive marketing rights, etc. He questioned the argument put forward that jurisprudence under the GATT would necessarily apply mutandis mutandis to the TRIPS Agreement, because of the different nature of the competitive relationships involved. It was necessary to look at the issue a little more carefully. India's position was that it was not clear at all as to whether non-violation should or should not apply to the TRIPS Agreement.

210. The representative of Canada wished to note that it was clear from the discussion that there was a full range of issues yet to be explored and expressed her delegation's gratitude to the ASEAN countries Members of the WTO for their readiness to join the substantive discussion on non-violation complaints in the context of TRIPS disputes.


M. ELECTRONIC COMMERCE

212. The Chairperson recalled that, at the previous meeting, the Council had had before it two new communications on this matter, one from European Communities and their member States and another from Australia; and that, following that meeting, as agreed, a progress report prepared by the Chairperson had been sent to the General Council (document IP/C/20) on the further work done by the TRIPS Council concerning electronic commerce.

213. The representative of Korea expressed his delegation's appreciation concerning the Australian paper. The detailed proposal for further discussion in the TRIPS Council of the issue was more than relevant in the light of the digital environment that existed today. Further study was required of this new technological development since the negotiation of the TRIPS Agreement. He also shared the view that the Council needed to discuss issues such as the relationship between Article 16 of the TRIPS Agreement and WIPO's Joint Recommendation concerning Provisions on the Protection of Well-known Marks, ICANN's activities on domain names and the discussion concerning the Preliminary Draft Convention and Foreign Judgments in Civil and Commercial Matters prepared by the Hague Conference on Private International Law. Korea believed that it was premature to consider adopting the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty in the context of the TRIPS Agreement. These treaties had not even entered into force yet. It was more appropriate to review what other international bodies had done and how Members' laws applied in this area.

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214. The representative of Switzerland thanked the delegations of the European Communities and Australia for their written contributions and agreed that the TRIPS Council should discuss the issues surrounding electronic commerce and intellectual property. The creation of a new medium which allowed for quick and inexpensive reproduction and distribution of information should not diminish the protection of intellectual property. Adaptation of the TRIPS Agreement might prove to be necessary. Switzerland supported the first proposal in Australia's paper. The global reach of electronic markets, including the Internet, made it necessary to achieve adequate protection for individual right holders while, at the same time, an appropriate balance of interests between the various right holders in different countries had to be found so as to avoid that right holders of territorially limited rights, for example the holders of identical trademarks, would not paralyse each other in the global electronic market. As regards the classification of products in the digital environment, Switzerland considered it crucial to look for an abstract answer. Therefore, in addition to the second proposal in Australia's paper, he expressed support for the delegation of Japan, which had said, at the previous meeting, that the question of classification was a cross-sectoral or horizontal issue. He suggested that the Council take up this issue focusing on the different topics of intellectual property protection in turn, so as to take account of the different aspects of trademarks, copyright and patents. In regard to the important jurisdiction issues, another horizontal issue, he emphasized that these should be dealt in the widest context possible, together with other legal issues. Referring to what the Australian paper said about the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, Switzerland considered it important that the relevance of the WIPO in the on-line environment be recognized, even though the work of WIPO in the field of electronic commerce had probably not finished with the conclusion of these two treaties. Consequently, the discussion of copyright issues should not only focus on these two WIPO treaties. Finally, he agreed with the European Communities that it was important that the work of the TRIPS Council be coordinated with the activities of other organizations, which included the work of WIPO but also that of other international fora.

215. The representative of Australia thanked the delegations of Korea and Switzerland for their substantive comments on her delegation's paper and said that Australia would welcome comments by all Members.

216. The representative of Japan, responding to the papers submitted by Australia and the European Communities, said, first, that appropriate intellectual property protection was one of the key factors in order to ensure an appropriate and secure circulation of digital contents through electronic commerce, whether relating to tangible or intangible matter. Second, the language of the relevant provisions of the TRIPS Agreement was generally neutral with regard to technology. Therefore, rights and exceptions given under the existing TRIPS Agreement should continue to be applicable in a new digital or network environment. Third, the digital technology or networking technology would continue to develop further. Therefore, the intellectual property related issues which would arise in the context of electronic commerce should continue to be discussed while avoiding any hasty and pre-emptive rule-making activities. Japan was of the view that the intellectual property related issues that might arise in the context of electronic commerce should be discussed in two categories. The first category was of a cross-sectoral or horizontal nature. One example from this area concerned the question as to whether on-line transmitted computer software should be dealt with as a good, as a service or otherwise. Another example of a cross-sectoral issue concerned the question of international jurisdiction and choice of law, which would take place in the context of electronic commerce that had a global nature. These issues, which were under discussion in other fora, such as the Hague Conference on International Private Law, should also be tackled in an appropriate forum in the WTO, such as in an ad hoc task force as was under consideration in the General Council. The second category of intellectual property related issues in the context of electronic commerce was specific to intellectual property rights. An example from this category was the question of what kind of exploitation of subject-matter protected by intellectual property rights on the Internet constituted an

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infringement of these intellectual property rights. Such specific issues should be examined by the TRIPS Council.

217. In response to a question from the European Communities as to the procedure to be followed in respect of the proposals from Australia in document IP/C/W/233, the Chairperson said that, at the General Council meeting in May, Members would have a focused and substantive discussion on electronic commerce based on past reports received from the subsidiary bodies involved with electronic commerce issues, i.e. the Council for Trade in Goods, the Council for Trade in Services, the Council for TRIPS and the Committee on Trade and Development. However, the understanding in the General Council seemed to be that this should not prevent these subsidiary bodies from continuing work in their respective areas of competence where they considered that further work should be done.


N. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO

(i) Accessions

219. The Chairperson informed the Council that, on 8 December 2000, the Government of Lithuania had accepted, subject to ratification, the Protocol of Accession of Lithuania. Paragraph 2 of the Protocol of Accession of Lithuania (WT/ACC/LTU/54) incorporated the commitment given by Lithuania in relation to intellectual property as reproduced in paragraph 166 of the Report of the Working Party on the Accession of Lithuania (WT/ACC/LTU/52). According to this paragraph, the representative of Lithuania had stated that his Government would apply fully the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) by the date of its accession to the WTO, without recourse to a transitional period.

220. On 7 February 2001, the Government of Moldova had accepted, subject to ratification, the Protocol of Accession of Moldova. Paragraph 2 of the Protocol of Accession of Moldova incorporated the commitment given by Moldova in relation to intellectual property as reproduced in paragraph 216 of the Report of the Working Party on the Accession of Moldova (WT/ACC/MOL/37). According to this paragraph, the representative of Moldova had stated that his Government would apply fully to the provisions of the TRIPS Agreement by the date of its accession to the WTO, without recourse to a transitional period.

(ii) Dispute Settlement

221. The Chairperson informed the Council that, by means of a communication, dated 20 March 2001, the United States, Greece and the European Communities had jointly submitted a mutually agreed solution reached in the dispute settlement proceedings that the United States had initiated on 7 May 1998 on a matter concerning the obligations of the European Communities and Greece under the TRIPS Agreement in respect of the enforcement of intellectual property rights for motion pictures and television programs (IP/D/13 and IP/D/14). This mutually agreed solution had been circulated in documents IP/D/13/Add.1 and IP/D/14/Add.1.

222. On 1 February 2001, the Dispute Settlement Body had established a panel in the dispute concerning "Brazil – Measures Affecting Patent Protection" (IP/D/23), a case initiated by the United States. Third-party rights had been reserved in this case by Cuba, the Dominican Republic, Honduras, India and Japan.

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223. By means of a communication, dated 31 January 2001, Brazil had requested consultations with the United States regarding the US Patents Code (IP/D/24). By means of a communication, dated 16 February 2001, India had requested to join these consultations (WT/DS224/2).

O. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS

224. The Chairperson said that the Council had before it 15 outstanding requests from intergovernmental organizations for observer status. An up-to-date list of the pending requests was available in document IP/C/W/52/Rev.9. He recalled that the Council had been urged by the General Council in the context of its Special Session on Implementation to give positive consideration to granting observer status to the CBD Secretariat on an ad hoc basis pending the conclusion of the wider discussions on observer status for intergovernmental bodies in the General Council. He wondered whether the Council might also agree to other outstanding requests, in particular: those from multilateral Organizations which already had observer status elsewhere in the WTO, such as the International Plant Genetic Resources Institute (IPGRI) and the United Nations Environment Program (UNEP); and those from Organizations running regional industrial property offices, such as the African Regional Industrial Property Office (ARIPO) and the Cooperation Council for the Arab States of the Gulf (GCC). He wished to add that it would seem particularly important to respond to the requests from the latter two Organizations (ARIPO and the GCC), in the light of the fact that they were directly concerned with implementing the TRIPS Agreement.

225. The representative of the European Communities said that the European Communities and their member States were of the view that the conditions for granting observer status, at least on an ad hoc basis, were fulfilled by ARIPO, the CBD Secretariat, the IPGRI and the OIV (Office international de la vigne et du vin).

226. The representative of India reiterated his delegation view that the situation in respect of the issue of the requests for observer status was most regrettable. It appeared that some bodies in the WTO were much more relaxed and open about the issue of granting observer status than others, which seemed to show that, within the national governments of some Members, different agencies had different approaches on this issue or agencies had different approaches depending on the importance of a particular area to them. It did not make sense to his delegation why some organizations were not admitted to sit in as observers by certain bodies. He suggested that observer status should be granted to any intergovernmental organization that so desired. In the light of the complaints that were being expressed in trade circles that outsiders did not understand the WTO agreements, at least intergovernmental organizations should be given an opportunity to understand what was being said in WTO bodies and what happened in the TRIPS Council.

227. The representative of the United States stated that the United States, at this stage, was not in a position to consider additional requests for observer status to the TRIPS Council.


P. OTHER BUSINESS

229. The representative of Zimbabwe, speaking on behalf of the African Group, said that the African Group would like to bring into the TRIPS Council an issue that had aroused public interest and was being actively debated outside the WTO, but one which the Council could not afford to ignore especially given the need to clarify the role of intellectual property rights protection in dealing with pandemics such as the one caused by AIDS and other life-threatening diseases. However, he wished to preface his remarks by stating categorically that, through the proposal that the African Group was going to make, the African countries neither intended to be accusatory or deliberately

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provocative. The issues raised in this debate ranged from the recognition of the importance of providing incentives for research and development into new and effective pharmaceutical products to the question of affordable access to such products by people in need, especially those in developing countries. Within the context of this public debate, affordable access was linked to prices/pricing and patent protection was linked to exclusive and monopoly rights which at times led to uncompetitive practices which in turn had a bearing on prices. The narrative that preceded the African Group's proposal reflected the nature and content of this public interest debate. It was important to note that this public interest had been aroused by the extremely high prices of some medicines, including those needed to treat serious and life-threatening diseases. The most outstanding current example was the high cost of drug treatment for AIDS. It had been asserted that the cost being charged was many times above the cost of production, including investment into research and development. Although medicines for AIDS was the obvious example, there were also many other cases of the prices of patented medicines for other diseases being way beyond the reach of millions of people, especially in the developing countries.

230. Previous to the TRIPS Agreement, countries had been able to decide themselves whether or not to exclude pharmaceutical products from patentability and many countries had chosen to do so on the ground that medicines were essential products required by their people to save lives, treat diseases and promote health. Although the TRIPS Agreement allowed developing countries the flexibility to apply patents in ways that still enabled the protection of the health of their people, recent legal challenges by the pharmaceutical industry and some Members in national law and under the DSU had highlighted the lack of legal clarity on the interpretation and/or application of the relevant provisions of the TRIPS Agreement. Moreover, attempts had been made by some developed countries through bilateral and regional arrangements to get developing countries to apply "TRIPS-plus" measures, or to forgo their rights. All this had further aroused public interest and led to the conclusion, in some quarters, that patents had enabled drug companies to raise prices of their products far above the levels that could be afforded by a great number of people. Further, it had been argued that contrary to the principles and objectives of the TRIPS Agreement, the present model of intellectual property rights protection was too heavily titled in favour of right holders and against the public interest. In the same manner, patent protection was seen whether rightly or wrongly, as shielding drug firms from competition from other firms and other products. A human tragedy of mind-boggling dimensions and emergency proportions was currently at hand. In some African countries, more than a quarter of the adult population had HIV and life expectancy in these countries was projected to decline dramatically in the next ten years. Besides AIDS, the death toll was also unacceptably high, as annually 11 million people (most of them from developing countries) were dying from preventable and treatable infectious diseases.

231. As the recent upsurge of public feelings and even public outrage over AIDS medicines had shown, there was at the moment a crisis of public perception about the intellectual property system and about the role of the TRIPS Agreement, which was leading to a crisis of legitimacy for the TRIPS Agreement. Whilst this storm was raging outside the WTO, and legitimately so, Members inside the WTO could not shut their eyes and ears. Each Member, from developing and developed countries, had to respond, and had to respond adequately and appropriately. It was for this reason that the African Group was proposing the convening of a special session of the TRIPS Council to address the issues relating to TRIPS, patents and access to medicines. He had been heartened by the positive responses to this proposal during informal consultations on the matter as well as the willingness and urgency expressed by Members to engage in serious discussions on the matter. In this regard, the African Group proposed that, given the urgency of that matter, the special session be convened back to back with the meeting of the TRIPS Council scheduled for the week of 18 June 2001 or, indeed, during that meeting. Given the importance and urgency of the matter, the African Group had deliberately avoided to raise the issue under Article 71.1 and would insist that this be so, in order to ensure a speedy resolution of the crisis. The African Group anticipated that the outcome of this

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Special Session would feed into the preparatory process of the fourth Ministerial Conference. He looked forward to the support of Members in this noble endeavour.

232. Finally, the African Group wished to reiterate that this initiative was in no way meant to undermine or to discourage investment into R&D for new drugs. Given the highly mutative nature of the AIDS virus as well as the resistance to conventional drugs by some new strains of STDs and other diseases, the case for continued and intensified R&D into new pharmaceutical products could not be overstated. The challenge for Members was to address the question of affordable access to drugs in a manner that would be fair and equitable to all stakeholders; a way that would seek to avoid the abuse of patent protection through recourse to uncompetitive practices; a way that would seek to provide legal clarity in the interpretation and application of the relevant TRIPS provisions, which would allow the adoption of certain measures to enable the protection of health; indeed, a way that would seek to realise the objectives and principles of the TRIPS Agreement; and to restore confidence in a rules-based multilateral trading system.

233. Clearly, the question of affordable access to drugs went beyond the relationship between patents and prices and included other issues, for example the purchasing power of governments and/or individuals, the infrastructure to handle bulk purchases and efficient distribution, and many more, which were beyond the mandate of the TRIPS Council. However, it was important to emphasize the importance of international cooperation and coherence in dealing with this challenge. In this regard, the TRIPS Council had to play its part to the full.

234. The representatives of the Argentina, Australia, Brazil, Canada, Cuba, Egypt, the European Communities, India, Jamaica, Japan, Kenya, Malaysia speaking on behalf of the ASEAN countries Members of the WTO, Mauritius, Mexico, Morocco, Norway, Romania speaking also on behalf of Bulgaria, Croatia, the Czech Republic, Estonia, Hungary, Latvia, Poland, Romania, the Slovak Republic and Slovenia, South Africa, Sri Lanka , Switzerland, Turkey, the United States and Venezuela speaking on behalf of the member States of the Andean Community expressed support for a discussion of the matter in the TRIPS Council.

235. The representative of the United States agreed that the time had come for the TRIPS Council to address itself the issue raised by Zimbabwe on behalf of the African Group, given the raging debate that was occurring outside the Council about implications for health issues regarding the TRIPS Agreement. The HIV/AIDS crisis was a terrible tragedy for countries, families and individuals and the United States was committed to working with countries to develop programmes to prevent and treat this horrible disease. His country, for the year 2001, had the largest bilateral assistance programme on HIV/AIDS, amounting to approximately half a billion dollars in assistance. The United States also had a domestic and international research budget on HIV/AIDS in access of two billion dollars. His delegation wished to inform Members that, in December 1999, the President of the United States had announced a new policy on health and trade-related intellectual property issues and that the United States had taken measures to address a major health crisis like the HIV/AIDS crisis in sub-Saharan Africa. The United States would raise no objection if countries availed themselves of the flexibilities afforded by the TRIPS Agreement, provided that their steps complied with the provisions of the Agreement. His delegation was equally committed to a policy of promoting intellectual property protection, including for pharmaceutical patents, because of their critical role in the rapid innovation, development and commercialization of effective and save drug therapies. Financial incentives were needed to develop new medications. No one would benefit, if research on such products was discouraged. A comprehensive approach was needed to deal with the AIDS crisis, as Zimbabwe had pointed out. To deal with serious health problems, countries needed to strain education and prevention, the cost of drugs was one of many important issues that had to be addressed. Effective drug treatment necessitated urgent action to strengthen health management systems, especially with regard to the means and methods of drug distribution. Other needed measures included the development of appropriate drugs selection policies and standard treatment

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guidelines; the training of care providers at all levels; an increase of the availability of adequate laboratory support; diagnosis and monitoring of complex therapies and ensuring that the right drugs were used for the right purposes in the right amount. In conclusion, he said that all this could only be accomplished through a partnership among governments, donors, multilateral organizations, civil society, philanthropic organizations and industry. Such a partnership needed to be strengthened and expanded. Certain countries had done an excellent job addressing the AIDS crisis, especially given their limited means. Intellectual property could be an important factor in contributing to increase access, but drug therapies had to be part of a comprehensive approach and the United States was prepared to contribute constructively to solutions in ways that continued to encourage the development and production of effective treatments in the future for this and all other diseases. With respect to the proposal from the African Group, he said that the his delegation would certainly be willing to enter into discussions aimed at clarifying Members' views regarding the interpretation and application of the relevant TRIPS provisions and expressed support for such a discussion at the following meeting of the Council.

236. The representative of Brazil said that the AIDS pandemic in Africa and in other developing countries did not represent a new phenomenon. Other tropical diseases were known to cause a major health problem in developing countries since long. The interest of public opinion in the implications of patents over health policies was not new either, but recent events had flared up discussions in the international press and among active non-governmental organizations, such as Médecins Sans Frontières, the South Center, the Quakers and Oxfam. The TRIPS Council could not remain silent on these matters. The WTO was engaging sadly late to discuss the issue. Other international organizations, within their own mandates and in light of their own policy objectives, had given far more attention to the implications of the TRIPS Agreement on access to drugs than the WTO itself. The World Health Organization, for instance, had addressed the interface of intellectual property rights and health on several occasions. Recently, the WHO had published a most interesting document on "Globalization, TRIPS and Access to Pharmaceuticals", dated 3 March 2001, which was available to all interested delegations at the WHO website (www.who.int). Brazil wholeheartedly supported the initiative of the African Group to convene a special session of the TRIPS Council to discuss access to medicines. Brazil was very much aware of the fact that intellectual property rights were only part of the discussions in this area. Other elements could also play a considerable role in preventing access of pharmaceutical and ensuring effective health policies. Purchasing power, availability of material, such as syringes or other factors affecting the combat to epidemics, such as the one of AIDS. Brazil had a consistent AIDS prevention campaign, which included a comprehensive range of actions beginning with public campaigns, education in schools, provision of generic medicines, which his delegation believed underlined in a important way the role of governments in the prevention of major health diseases, including AIDS. Brazil was also much engaged in establishing technical cooperation with African countries, in particular Portuguese speaking countries and South Africa as regards health policies and availability of generic medicines. The role of the WTO was not to establish health policies. Members' mandate was to discuss trade-related intellectual property rights. Given that the exclusive rights provided by intellectual property rights did not exist in a vacuum and had to serve a social purpose, Members had to ensure that nothing in the TRIPS Agreement would prevent countries from implementing sound health policies. Discussions on access to medicines would demand both a systemic and a pragmatic approach, in order to consider all the possible solutions to eliminate obstacles imposed by the intellectual property system on access to pharmaceuticals. In the special session of the Council, Members should engage in an honest and responsible discussion on the existing flexibilities in the TRIPS Agreement. More importantly, Brazil was of the opinion that delegations should consider carefully the extent to which developing countries were able to use so-called flexibility in the Agreement. In his delegation's view, one of the most important questions that Members should ask themselves was whether Members could actually make use those flexibilities. Such discussions had to be results-oriented. Of course, Members should not provide false expectations to public opinion

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and that always set realistic goals, but on this occasion the WTO should send an unambiguous message that it was not part of the problem, but of the solution.

237. The representative of Venezuela, speaking on behalf of the member States of the Andean Community, said that the delegation of Zimbabwe had raised an important issue concerning the serious situation experienced by populations affected by endemic and highly contagious diseases and the need for the Council to hold a special session to deal with this public health topic and the relationship between intellectual property and drugs. Bolivia, Colombia, Ecuador, Peru and Venezuela agreed that the Council needed to come up with alternatives to alleviate the difficulties being confronted by disadvantaged populations in developing countries that could not have access to drugs. Consequently, they supported the initiative of convening a special session of the TRIPS Council as early as possible, bearing in mind the urgent need to deal with this important issue. Hopefully, the meeting would lead to specific results and clarify the consistency between public health policies and the protection of intellectual property rights. Currently, there was uncertainty in this respect, which in many cases inhibited governments from adopting the necessary decisions. The Andean countries hoped that, during the special session, this undeniable fact would be dealt with bearing in mind the adequate flexibility existing under the TRIPS Agreement.

238. The representative of South Africa emphasized that the purpose of the special session should be to address issues related to TRIPS, patents and access to medicines. During the informal meeting that had preceded the present formal session, there had been widespread support for such a discussion, for which he which to express his gratitude. Issues of access to affordable drugs and patents were not new to the WTO and had already formed part of proposals made in the preparations for the Seattle Ministerial Conference in 1999. At that time, many developing countries, including the African Group, had made a link to the list of essential drugs of the WHO. The African Group's proposal was based on an assessment of where the patent regimes that had been newly established under the TRIPS Agreement were likely to have a negative impact. Developments in the global economy, especially as they related to health, had confirmed that this assessment was correct and clarification was necessary to prevent such negative impacts. Moreover, the situation regarding health and access to drugs was worsening in many developing countries, especially in Africa. There were increasing efforts by governments, the private sector and intergovernmental organizations to address the problems involved and the international community was well disposed to address the issues decisively. Thus, the environment was now conducive and the time ripe. The WTO was uniquely placed to make a contribution in seeking solutions, all the more so in view of the up-coming Ministerial Conference in Doha. He hoped that Members' support could be generated for taking appropriate decisions in areas where the WTO's contribution was likely to be more meaningful.

239. The representative of India agreed that the TRIPS Council had to be seen as responding to the crisis to which Zimbabwe had referred. At a more substantive level, his delegation was of the view that the proposed discussion in the Council should take place against the backdrop of Article 8, which cited as one of the most fundamental principles the protection of public health and nutrition. The Council first had to try and lay out the problems and issues involved and then make a distinction between those issues which were within the realm of the TRIPS Council and those which were not, before looking at the relevant provisions of the TRIPS Agreement that could contribute to resolving the issues involved and those that might be impediments to solutions, in respect of which the Council might suggest specific solutions.

240. The representative of Cuba said that the Council, indeed, had to identify all possible solutions in the framework of the TRIPS Agreement for resolving problems of access to drugs and their high prices. Access to drugs on a non-prohibitive price basis had to be one of the prime objectives for any State. Discussing this matter during a special session at the following meeting of the TRIPS Council in order to clarify the supposed flexibilities of existing patent regimes under the Agreement might permit an analysis of the benefits of the legal framework under the Agreement as well as negative

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effect caused by that legal framework for the exercise of public interest objectives. The results achieved should be kept in mind also in the context of the review of the implementation of the Agreement under Article 71.1.

241. The representative of Norway agreed that the Council had to address the issues raised relating to TRIPS, patents and access to essential drugs urgently. In Norway's view, there was a link between patent protection and the price which could be charged for patented drugs. Relevant issues would be discussed at the WHO/WTO Workshop on Differential Pricing and Financing of Essential Drugs which would be hosted by Norway the week after the present meeting and was an initiative representing a step towards promoting a dialogue among experts in this complicated field. His delegation hoped that the outcome of the discussions would contribute to shed further light on this important issue.

242. The representative of Romania, speaking also on behalf Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Latvia, Poland, Romania, Slovak Republic and Slovenia, welcomed the initiative of the African Group and hoped that the meeting of the TRIPS Council in the week of 18 June 2001 would allow Members to have a fruitful and practical debate on ways to deal with this complex matter, which involved the need to maintain and even enhance the level of R&D and the need of ensuring affordable access to drugs and of clarifying the role of the intellectual property system and the TRIPS Agreement in this context.

243. The representative of the European Communities said that, at the Community level, since some two years consideration had already been given as to how move forward in this specific area. He wished to underline that the matter concerned more than only TRIPS issues and that many other factors played a role, as explained by the United States. He also expressed the view that the discussion in the TRIPS Council should be results-oriented.

244. The representative of Malaysia, speaking on behalf of the ASEAN countries Members of the WTO, said that health and affordable access to medicines were issues of keen public interest that would be well served by a special discussion in the context of the TRIPS Agreement. ASEAN understood that there were flexibilities afforded by the TRIPS Agreement that could fulfill public health objectives. A discussion could further clarify the issues at hand, in particular as to the nature and extent of the public health problem where it was linked to TRIPS; a clarification of the provisions afforded by the TRIPS Agreement that promoted public health objectives; the rights of Members under the TRIPS Agreement to meet public health objectives and the exercise of these rights; and whether there was a need for further flexibilities under the TRIPS Agreement. The ASEAN countries were looking forward to a positive outcome of these discussions.

245. The representative of Morocco said that holding a special meeting of the Council to deal with the matter raised by the African Group would be answering to the expectations of millions of people, i.e. not only those suffering from AIDS, and would improve the image of the WTO in the public opinion and amongst NGOs. The discussion would allow Members to make an inventory of all the necessary subjects to submitted to the Ministerial Conference in Doha. The text of the TRIPS Agreement would allow, with its characteristic flexibility, finding satisfying and realistic solutions.

246. The representative of Kenya said that, while his delegation believed that Members could freely exercise the options available to them under the TRIPS Agreement to protect and gain access to life saving and essential medicines, unfortunately, as witnessed in the international press recently, there had been pressure on some developing countries, including Kenya, not to use these options. The cost of patented medicines, especially for the treatment of AIDS, had been a matter of great concern to African countries because of the alarming statistics reflecting increasing incidence of AIDS in the region. It was for this reason that the Council needed to find a balance between the private rights of innovators against the broader interest of public health. In Kenya's view, protecting public health

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should not be sacrificed at the altar of profit motives. The African Group had, in the preparatory process leading to the Seattle Ministerial Conference in 1999, called for a review of the TRIPS Agreement to exclude from patentability essential and life-saving medicines so as to allow developing countries to have access to medicines at affordable prices. The reduction of prices by some patent holders, though a welcome move, was a temporary respite, that might not necessarily lead to a long-term resolution of the crisis. In any case, the reductions should not be seen al an alternative to compulsory licensing or parallel import policy measures had already provided for in the TRIPS Agreement. Against that background, Kenya wished to encourage all WTO Members to discuss the issues involved openly and honestly, with a view to preparing a decision that would go a long way in saving millions of people suffering from life threatening illnesses.

247. The representative of Sri Lanka suggested that international intergovernmental organizations observers to the TRIPS Council, such as the WHO, should be able to participate actively in the discussion proposed by the African Group.

248. The representative of Canada said that it was important that the Council discuss the matter proposed by the African Group, given that many other Organizations were discussing intellectual property matters and TRIPS issues as well as the role they might or might not have, the incentives they provided and the solutions or challenges they incorporated in respect of the health crisis facing African nations and others. Canada had proved in the successful defence of its patent legislation in a WTO dispute settlement case that the provisions of the TRIPS Agreement contained a balance of provisions between the rights of patent holders and those needing access.

249. The representative of Egypt wished to stress that the proposed special session would not be about the AIDS pandemic, but about the relationship between the relevant provisions of the TRIPS Agreement and access to essential drugs on affordable terms.

250. The representative of Ghana wished to thank, as a Member of the African Group, Members for appreciating the seriousness of the problem and for acknowledging the need to address the matter expeditiously.

251. Following further discussion, the Chairperson suggested that the Council devote a full day special discussion to issues relevant to intellectual property and access to medicines during the next meeting of the TRIPS Council, which would take place from 18 to 22 June 2001. Bearing in mind that two sub-items had been identified as topics on which Members would exchange their views, i.e. the interpretation and application of the relevant provisions of the TRIPS Agreement with a view to clarifying the flexibility to which Members were entitled under the Agreement and the relationship between the TRIPS Agreement and affordable access to medicines, he also suggested that the incoming Chairperson consult among delegations as to what further sub-items might be added on for this discussion.


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Q. ELECTION OF THE CHAIRPERSON OF THE COUNCIL FOR TRIPS

253. The Chairperson said that as Members were aware, the Chairperson of the General Council had carried out informal consultations on a slate of names for appointment as Chairpersons of various WTO bodies, in accordance with the establish guidelines for the election of officers. At its meeting of 8 and 9 February 2001, the General Council had taken note of the proposed nominations. On the basis of the understanding reached, he proposed that the Council for TRIPS elect H.E. Ambassador Boniface Chidyausiku of Zimbabwe as its Chairperson for the coming year by acclamation.


255. The Council expressed its appreciation and gratitude to H.E. Ambassador Chak Mun See for his important and efficient work in the past year.

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