Minutes - TRIPS Council - View details of the intervention/statement

H.E. Ambassador Dr Pimchanok PITFIELD
12 INTELLECTUAL PROPERTY AND THE 1998 WORK PROGRAMME ON ELECTRONIC COMMERCE

329.  India would like to thank South Africa for their document IP/C/W/698 and their presentation. We commend their efforts to bring this useful and relevant topic on the agenda of this Council. 330.  Since the TRIPS Agreement came into force and twenty years since the landmark Doha Declaration was adopted science, technology, innovation, R&D, and the knowledge economy has evolved and come a long way. The first three objectives as mentioned in Article 7 of the TRIPS Agreement that is technological innovation, transfer and dissemination of technology, and the production and use of technological knowledge focus on technological development and the unfolding e-commerce revolution is one such development. IPRs have been designed to benefit society by providing incentives to introduce new inventions and creations. In introducing IPR protection, countries thus should frame the applicable rules so as to promote technological innovation and the transfer and dissemination of technology "in a manner conducive to social and economic welfare" as envisaged in Article 7. In addition, WTO Members are allowed to "adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development …", as laid down in the principles in Article 8 of the TRIPS Agreement. 331.  Furthermore, the Preamble to the TRIPS Agreement, its Articles 7 and 8 alongside the Doha Ministerial Declaration and the Declaration on TRIPS and Public Health provide the foundation for a new legal and policy perspective on international IP regulation that is fully supportive and inclusive of social as well as economic development in Members. In addition, the MC12 Decision on the TRIPS Agreement adopted on 17 June 2022 becomes a landmark Decision in not so much, on how it delivered on ground, but in laying to rest ideological differences on the necessity of or utilisation of policy space, as it reinforces the freedom of Members to fully utilise the policy room within the TRIPS Agreement and that is a good starting point. As stated in the submission, therefore, the emerging issues owing to the overlap between IPRs, and competition policy, and e-commerce would need policy responses aligned with the principles and objectives as laid down in Article 7 and 8 of the TRIPS Agreement. 332.  It is disappointing that technology transfer, at best, has been considered a subsidiary or an offshoot of the grant of intellectual property, which takes place, for instance, through the disclosure of patent information in the patent application process. It does not prescribe a general mandate for technology transfer for all countries at the international level. IP norm-setting through FTAs has further tipped the scales toward strengthening IP protection without reciprocal commitments on issues like technology transfer. While Free Trade Agreements (FTAs) and Bilateral Investment Treaties (BITs) have endorsed a TRIPS-plus framework for IP protection, the obligations relating to technology transfer as well as the new IP issues that are being brought to the fore by the evolving e-commerce ecosystem, have not exceeded Article 7 and Article 8 TRIPS' formulations. Given this structural mismatch in the current IP system, there is a need to re-conceptualize the relationship between IPRs and e-commerce including technology transfer from a developmental perspective, with technology development, diffusion, capacity-building and policy space as its fundamental elements. 333.  I hope this paper will stimulate a discussion in this Council as it raises some pertinent questions on relevant issues and we would be happy to answer those and to engage with WTO Members to take forward these discussions. In this regard, we support the call for making this a standing agenda item in TRIPS Council meetings.

The Council took note of the statements made.
64. The Chair said this item had been put on the agenda at the request of the delegation of South Africa who had also submitted a communication on this topic, circulated in document , in order to allow Members to prepare for this discussion.
65. The representatives of South Africa; China; Tanzania; Djibouti, on behalf of the LDC Group; Indonesia; Australia; India; the European Union; the United States of America; and Switzerland took the floor.
66. The Council took note of the statements made.
IP/C/M/108, IP/C/M/108/Add.1