E-Commerce Proposals in Focus at WTO’s TRIPS Council

9 March 2017

World Trade Organization (WTO) members met last week to discuss a series of communications involving the intellectual property (IP) aspects of electronic commerce, along with continuing their past discussions on a UN report regarding access to medicines and health technologies.

The discussions were held from 1-2 March under the WTO’s Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) at Geneva headquarters.

Preparing for Buenos Aires

Ambassador Alfredo Suescum of Panama, who is currently serving as the TRIPS Council’s interim chairperson, commented that meeting on the subject of electronic commerce represents an opportunity to “create a clearer, more inclusive factual picture of the current state of affairs as the foundation for informed dialogue between members," according to a WTO news item.

"The debate would constitute a sound basis to provide input for the General Council report to the next ministerial conference" to take place in Buenos Aires in December 2017, he added.

WTO members are currently working to see which issues could potentially yield agreed outcomes for the upcoming ministerial meet, which is the global trade body’s highest level gathering. E-commerce is one of the areas which has drawn significant interest to date, along with possible measures on disciplining fisheries subsidies, addressing domestic agricultural support, and services facilitation and domestic regulation.

At the last such ministerial meeting, held in Nairobi, Kenya, in December 2015, trade ministers committed members to continuing the work programme on electronic commerce based on the existing mandate, among various other decisions. Electronic commerce returned to the TRIPS Council agenda in June 2016 for the first time since 2003. (See Bridges Weekly, 16 June 2016)

Under the 2015 Nairobi decision on e-commerce, the WTO’s General Council was also instructed to review periodically the work in this area, based on reports from the relevant WTO bodies: the Council for Trade in Services, the Council for Trade in Goods, the TRIPS Council, and the Committee for Trade and Development. The next of these reviews is due for July, with the General Council instructed to then “report to the next session of the ministerial conference.”

Documents on the table

To facilitate discussions, Brazil produced a paper ahead of the meeting on electronic commerce and copyright, seeking “shared understandings” among member states on transparency in the remuneration of copyright, balancing the interests of rightholders and users of protected works, and territoriality of copyright, proposing to make national copyright laws applicable to trade that occurs across borders, as three areas from which “the development of national copyright systems in the digital environment would greatly benefit.”

Citing the value of transparency in the digital management of copyright, Brazil expressed concern that rightholders may not be able to benefit sufficiently from the royalties of their works.

Furthermore, Brazil referred to “a growing concern” that technological protection measures risk limiting legitimate copyright limitations and exceptions, damaging the interests of users and follow-on creators.

The third section on “territoriality of copyright” discusses the relationship between national copyright laws and the international nature of the digital space, including what this means for the business environment.

A revised version of the communication was circulated by Brazil and Argentina after the meeting.

Another document prepared by Argentina, Brazil, and Paraguay detailed the Mercosur experience with electronic signatures and authentication in order to advance discussions on this aspect of the work programme. Along with those three countries, Uruguay and Venezuela are also Mercosur members.

According to trade sources, Brazil highlighted that a mutually recognised electronic signature could serve to facilitate cross-border trade, particularly for trade in services.

A non-paper issued by the EU, Canada, Chile, Colombia, Côte d’Ivoire, Mexico, Montenegro, Paraguay, Singapore, South Korea, and Turkey, considers the role of the WTO in relation to other international organisations in the digital economy, including the International Telecommunications Union (IUT), the World Intellectual Property Organization (WIPO), the World Bank, and the UN Conference on Trade and Development (UNCTAD). Some members reportedly cautioned against the duplication of work.

It also looks at the trade-related elements they say are relevant for e-commerce, in terms of regulatory frameworks, measure to ensure open markets, initiatives facilitating the development of e-commerce, and enhanced information-exchange and transparency at the multilateral level. The document represented a revised version of an earlier paper presented in August 2016.

Singapore also introduced a non-paper underlining the opportunities presented by e-commerce to SMEs and examining the e-commerce issues relevant to developing countries.

UN report on access to medicines sparks interest, debate

The TRIPS Council also discussed the recommendations put forward in the UN High-Level Panel report last year on improving access to medicines and health technologies, an item which was put on the agenda by Brazil, China, India, and South Africa.

The report, issued by the high-level panel in September 2016, includes policy recommendations on TRIPS flexibilities; new innovation models for development of pharmaceuticals including criteria for granting patents; and inter-agency coherence. Discussions at the WTO regarding the report began at the November session of the TRIPS Council. (See Bridges Weekly, 18 November 2016 and 22 September 2016)
Many representatives were supportive of the recommendations and expressed interest in continuing discussions at the next Council meeting in June, including Bangladesh, Brazil, China, India, Indonesia, Nigeria, and South Africa. Several delegations reportedly indicated support for the recommendation to prevent bilateral pressure to commit countries into “TRIPS-plus” obligations under free trade agreements.

Egypt also reportedly referred to a recommendation regarding the capacity of the UN Conference on Trade and Development (UNCTAD) and other international organisations to furnish governments with technical advice on patentability criteria and training to patent examiners.
On the other hand, concerns were raised on the narrowness of the scope of the report, focusing too closely on policy incoherence and IP-related aspects of access to medicines, suggesting taking a more holistic approach. Australia, the EU, Japan, Switzerland, and the US were among those who reportedly took the floor to express those views, according to IP-Watch.  

Certain delegations, including Canada, indicated that more time was needed to consider the recommendations, as did South Korea.

Another related issue raised was on supporting the implementation of the amendment to the TRIPS Agreement, which entered into force on 31 January 2017 after two thirds of the WTO’s membership ratified the protocol domestically. (see Bridges Weekly, 26 January 2017)

The amendment aims to allow developing country members to have better, less expensive access for buying generic medicines produced by other trading partners. 

"It is now important to look into how to make this new procurement tool work effectively so that it delivers concrete results in practice," said former Council Chair, Ambassador Modest Jonathan Mero of Tanzania, following the amendment’s entry into force. Oman has since deposited its instrument of acceptance on 1 March, becoming the first member to accept the protocol since January.

ICTSD reporting; “TRIPS Council To Consider The Two Sides Of IP – Innovation Booster and Barrier,” INTELLECTUAL PROPERTY WATCH, 21 February 2017; “E-Commerce, Access To Medicines Catching On At WTO TRIPS Council,” INTELLECTUAL PROPERTY WATCH, 3 March 2017.

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