WTO TRIPS Council Discusses Education Proposal, Possible Next Steps for Non-Violation and Situation Complaints

10 March 2016

WTO members debated a series of intellectual property topics last week, ranging from the long-standing issue of “non-violation and situation” complaints to the relationship between global trade rules and UN biodiversity agreements, as well as how to foster intellectual property-related education that could lead to future innovation.

The discussions were held during the WTO’s Council for the Trade-Related Aspects of Intellectual Property Rights (TRIPS), which had its first regular meeting of the year on 1-2 March.

Non-violation and situation complaints

During last week’s meeting, WTO members continued their long standing debate on the extension of the moratorium for “non-violation and situation” complaints.

The moratorium in place means that WTO members may only file complaints about intellectual property issues if the TRIPS Agreement has allegedly been breached, rather than over damage arising from alleged violations of the spirit – though not the letter – of the organisation’s rules in this area. Such complaints are, however, possible under other areas, such as goods or services trade.

The TRIPS Agreement initially set the moratorium’s date through 2000. However, this has been extended regularly at WTO ministerial conferences – the organisation’s highest-level meeting – including at the latest one in Nairobi, Kenya, last December. (See Bridges Daily Update #1, 14 December 2015 and Bridges Weekly, 26 November 2015)

The 2015 Nairobi Ministerial Declaration directed the TRIPS Council “to continue its examination of the scope and modalities” for such complaints in order to make recommendations for the next ministerial in 2017 – which is the new expiration date.

Some WTO members, namely the US and Switzerland, have asked in the past to end the moratorium. Others have pushed for the moratorium to be made permanent.

Last year, 17 members presented a communication outlining the reasoning for not applying non-violation complaints under TRIPS. Brazil, which had been one of the backers of that communication, reportedly reiterated at last week’s meeting the concerns raised by that group.

These included, for example, the potential that WTO members would have to provide compensation to foreign rights holders suffering one of these “non-violation” situations that were not anticipated when the Uruguay Round was being negotiated – which could in turn have damaging effects for a country to use TRIPS flexibilities domestically in areas such as public health.

Such concerns were also raised by China and Cuba, among others, according to sources familiar with the meeting. Discussions on this subject are slated to continue at subsequent Council meetings in the lead-up to the 2017 ministerial.

TRIPS Agreement and the CBD

The relationship between the TRIPS Agreement and the United Nations Convention on Biodiversity (CBD), as well as the protection of traditional knowledge and folklore, also resurfaced last week.

According to media reports, members mainly discussed a Secretariat-prepared update of factual notes recapping delegations’ past positions, as well as a repeated request by many developing countries to invite the CBD Secretariat to the TRIPS Council for a report on the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, which entered into force in October 2014.

Many developed countries repeated their continued opposition to both this request and the call by Egypt and India, among others, for a TRIPS amendment making the disclosure of genetic resources in patent applications mandatory.

Canada reportedly said that such an amendment is unnecessary, given that TRIPS and the CBD are mutually supportive. Other members, such as Australia, Canada, Japan, the US, and Korea argued that the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) was the best venue to discuss these kinds of issues.

However, the latest IGC meeting in February showed little advancement across a host of areas, leading some developing countries to state at the TRIPS Council that the pace of progress there should not preclude any advances being made at the WTO level. (See Bridges Weekly, 25 February 2016)

Education and diffusion

How to improve education on intellectual property issues was also on the March meeting agenda, following a proposal made by Australia, the EU, Switzerland, and the US and sponsored by Japan, Peru, Russia, and Singapore.

In this context, Switzerland presented a 22 February communication on “Intellectual Property and Innovation: Education and Diffusion” with the aim of fostering a culture of innovation through education.

The proposal aims “to encourage members to share their experience concerning the role education plays in the use of intellectual property rights for the creation and commercialisation of innovative products and services, and more generally in the diffusion of knowledge concerning the role of the intellectual property system and how it functions.”

Switzerland thus encouraged the inclusion of intellectual property in education, proposing a focus on copyright and trademarks in primary school and “special optional programs which allow… a very practical hands-on approach to the topic of intellectual property and innovation” in secondary school.”

Besides the WTO members already backing this agenda item, several others also presented their national experiences under this topic, with some putting forward alternative ideas to formal education, ranging from youth-focused programmes to the use of social media for awareness purposes.

Japan, for instance, reportedly presented the activities conducted by its patent office to raise awareness of IP issues among the youth, such as “Children’s Visit Days” where school students are invited in to learn about topics such as inventions and how to distinguish between real and counterfeit toys.

While recognising education as a means to diffuse knowledge and encourage innovation, some members also emphasised that the promotion of innovation takes place not only through IP protection but actually by open access.

Brazil reportedly suggested that IP protection is just one factor in creating an innovation-friendly environment, according to comments reported by IP-WATCH – warning that innovation could potentially suffer if subjected to overly broad intellectual property protections.

New notifications database

A separate meeting parallel to that of the TRIPS Council was held on 2 March to present members with the e-TRIPS Database project, which aims to facilitate and improve notifications on IP laws, while also including a search function, thus contributing to transparency as called for under TRIPS Article 63.

Besides the new online submission option, the database will also accept submissions made under traditional methods. The system is currently being tested and a formal date for its launch has not been announced. The database will eventually be public.

ICTSD reporting; “IP And Innovation, Non-Violation Complaints On TRIPS Council Menu,” IP-WATCH, 26 February 2016; “TRIPS Council: Differing Views on IP Education; New Database Project Launched,” IP-WATCH, 4 March 2016.

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