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

Ambassador Al-Otaibi (Kingdom of Saudi-Arabia) and Ambassador Alfredo Suescum (Panama)
World Trade Organization
7. Since 2009, in response to the request from the Chair of the General Council, the Council has considered how to improve the timeliness and completeness of notifications and other information flows. The Secretariat has progressively updated the Council on the work being done in this direction. There is one very important caveat, mentioned each time, that all this work takes place entirely within the guidelines of notifications already set within the TRIPS Agreement itself and the guidelines and procedures agreed by this Council. Accordingly, the focus has been on practical ways of improving how we work with this information and ensuring that it is more user-friendly and more transparent. This concerns particularly, but not exclusively, the laws and regulations notified under Article 63.2 of the TRIPS Agreement. This has been a particular focus because it constitutes the overwhelming bulk of notified materials. At a previous meeting, the Council requested that this update now be provided as a regular part of this agenda item concerning notifications, rather than as a distinct agenda item. 8. We are making the unusual step of making a presentation under this item1 because we have moved towards a modernized way of handling this information; ultimately we will be inviting delegates and Members to make use of a much more user-friendly online system as an optional means of submitting notifications. In the past, we have received notification material from Members in a wide range of formats, ranging from sheaves of paper, to a whole range of digital formats on discs, floppy and otherwise, on USB keys, and by email. The current efforts to modernize the system would not limit the existing options of Members to notify material in any way they choose. The idea is to provide an optional tool, which we hope will ease the work of delegates and Members in tracking and updating their notifications, and in submitting material in a way that will make it quicker and more efficient for the Secretariat to process it. 9. A further caveat - this presentation is in only one of the three working languages of the Organization, but I stress that the tools and the screens that we are describing and developing would of course be fully functional and operational in the three working languages of the Organization. 10. The focus has been especially on notifications of legal texts under Article 63.2. There are other extremely important areas of notification, but this one presents the greatest practical challenge in managing information. This transparency requirement is a fundamental obligation under the TRIPS Agreement and a fundamental role of the Secretariat to manage this material because of the essential principle of transparency. It is a unique record of legal and policy development and experiences in over 140 different jurisdictions at a time that has been most active ever in human history in terms of intellectual property law and policy development. It is a very large amount of material. There are 4,500 distinct document references to work with. These refer to over 3,000 distinct legal texts. That is a reminder that there is no direct correlation between a document reference and one distinct legal text; hence, much of the effort is in cross referencing this material, so that you can navigate it more easily. The coverage is slightly variable and Members have taken different approaches to updating their notifications. In some cases, the most recent notification was in 1996 or 1997; in other cases, it was received earlier this month. Thus, the time coverage, the timeliness and the completeness of the material is not uniform. This is one of the reasons to make it easier to track what has been notified and to provide a much more straightforward tool for updating notifications. 11. The pattern of notifications over the last 20 years shows variation over time: an initial surge, particularly from 1996 to1997, when developed country Members notified the bulk of their existing laws; a further surge in activity from 2000 to roughly 2004, representing the majority of developing country Members who notified their laws at that point; and then a third period of increased activity from 2008 and in particular, from 2011 to 2012, when several accessions took place and when Members responded to the call from the General Council to look at the timeliness and completeness of notifications. So we have seen a rise in the activity since then. That said, we know that there are some quite significant gaps in coverage and once again that is why we are hoping to provide a more user-friendly tool for Members. 12. The key difference between when the current system was set up, a very robust and functional system in 1995, and today, is that the principal means of capturing, working and distributing data at that time was the paper document. A great deal of information is contained in these documents and in the intial stage of the work of this Council, if you wanted to know what was notified by a Member in a particular area, you would go to typically the third secretary's office in the Mission and leaf through a large pile of paper to find it. Frankly, at this stage it seems that nobody is using the documents in that way any more. We do have a general expectation today that material will be available online in a reasonably accessible way. But that simply is not the case. If we look at the way you would access data/notification material today, the gateway is the documentation service. Because this is a pivotal point, I wanted to illustrate the challenges that we currently face in using this material, because it is central to achieving in practice transparency of the notification function under the TRIPS Agreement. To locate information, you would need to search documents through an online table. You would need to know the codes of the documents' symbols very well. Very few people do know the system well: it is not intuitive and even experienced users of this system need constant refreshment and need to understand what to look for. When you do identify one of these documents, the title is normally not very informative, so in a typical example we only find that it is a law notified under Article 63.2. We don't know its content, we don't know even whether it is about patents or plant varieties, or both. Finally, by following the links in the table, you get to a longer list of documents and you would need to click through each of them one by one to find out what is inside. Earlier documents are not text searchable at all, so, if you get past the gateway, you need to open up, in on typical example, one single document that is divided into nine parts, each of which needs to be opened up individually, and scrolled through page by page to find what it contained. For example, if in following the notification at today's session of the Council of Australia's copyright amendment, you wanted to go back to the original Australian notification on copyright law, you would find that it is in 19 separate parts divided from one document. There is no way of knowing in advance which part of this document contains the provision of interest to you. You might guess that the provision you are looking for is roughly in the middle. You would then have to download that part of the document and open it up. In this example, it turned out to be the wrong part of the document. I tried again, and finally got to the part of the document I was looking for; but I had to scroll through, page by page, because it is not text searchable, and again I had to guess as to which section of document contains the material I am looking for. Finally, I get to the provision I was interested in. Then, it is still an image. So if I need to use this text, for instance to cite or quote it, I will have to transcribe it manually and retype it if I am going to use the text in any way. So it is cumbersome. Because of quite significant reasons that were entirely applicable in the mid-nineties, it was an entirely suitable system for that time. But if you look at this example, which took nearly 25 minutes to get to this point, you can see why people don't use this day to day, given current expectations about the availability of data. 13. For this reason, we have moved towards a restructuring of the documents so that they are more informative and more useable. You will see this from the documents that have been circulated for this session of the Council. The earlier format simply provided a cover page for a legal text; you would have to leaf through that document again to find out anything significant about it. By contrast, the new format, which is now used for the documents in front of you for this session of the Council, sets out information about the notification in a much more systematic and informative way. 14. To capture this data, we have developed this prototype online submission gateway, which is still very much a prototype. It is not ready, frankly, to go online and to be used more widely. We are still working with it internally. But this would provide an easy gateway for Members to submit notifications and other reporting. I will quickly illustrate how it would work in this case. It is simply an online form. It is all quite obvious information: the notifying Member, the name of the legislative text that is being notified, as well as the status of the text. This is an important development because well over 25% or nearly 30% of laws that are being notified are now amendments to consolidations of earlier notifications. So to be worthwhile and useful, we need to have a link to the previous notifications. Accordingly, we are providing an easy way of making that linkage, as well as obvious things such as identifying which area of law it covers. This would be a conventional online form; we are working to making it easy to use. However, we will be inviting delegates early next year to volunteer as beta testers, to sit down with us and work through this in a practical way, because the final design will be entirely crafted according to your needs. It is there to serve you as delegates, and as capital-based officials. It is therefore going to be very important to make sure that it has all of your feedback and there will also be support and guidance materials to assist in the use of this. Our aim is to make this as user-friendly as possible. 15. In the interim, because we certainly don't want to impede the flow of new and updated notifications, we have prepared a simple PDF form. This is a form that once again is quite a conventional part of our paperwork today, a simple PDF form that can be filled in and submitted to us, which effectively in the interim does the task that the final online submission process would enable. And so, in short, very simply, if any Member is looking at its notifications and wishing to update them to provide us with notifications, we would strongly encourage you to come and speak to us or get in touch with us. We will work with you to greatly simplify your task and to help us also to prepare the materials so that it can be circulated to Members in a much more useable form than the rather awkward historic arrangement that I outlined earlier. 16. I have taken a little time and illustrated this because it is at a critical stage. We are working intensively on this within the Secretariat, very much as a prototype. It will most likely be early next year that we will be inviting delegates and Members to explore this, to give us feedback, and to give us direction before it is packaged up and put online as a resource for Members. Of course, we are available for more informal discussions and explanation of this project.
The Council took note of the statements made.
2.1. The Chairman said that, since its meeting in June 2015, the Council had received a number of updates to earlier notifications of laws and regulations notified under Article 63.2 of the Agreement:

• Mauritius had notified its Copyright Act 2014;

• Australia had notified its Copyright Amendment Act, the Intellectual Property Laws Amendment Act 2015, and the Intellectual Property Legislation Amendment Regulation 2015;

• Chinese Taipei had notified its Enforcement Rules of the Trademark Act and the Regulations Governing the Implementation of Filing Trademark Applications and Services by Electronic Means; and

• Saint Vincent and the Grenadines had notified its Copyright Act, Trademarks Act, Patents Act, Geographical Indications Act, Industrial Designs Act, Layout Designs Act, as well as the Civil Procedure Code and the Criminal Procedure Code.

2.2. These notifications of laws and regulations were available in the IP/N/1- series of documents, and the actual texts of laws in sub-series of documents in electronic form on the Documents Online database.

2.3. In addition, the laws that had been notified by Tajikistan would be introduced under the item on "Reviews of National Implementing Legislation".

2.4. No new or updated information had been submitted regarding contact points under Article 69 for the exchange of information and cooperation on trade in infringing goods since the Council's meeting in June 2015.

2.5. He encouraged delegations that had notified a new or revised legislative measure, or a new or updated response to the enforcement checklist to briefly inform the Council about the nature of the notified amendment or update. Several delegations had followed this practice at recent sessions of the Council and it had provided valuable insight into the notifications provided and had assisted in promoting awareness and transparency.

2.6. The representatives of Chinese Taipei and Australia briefly introduced their respective legislative measures.

2.7. The Chairman recalled that, at the Council's last meeting, the Secretariat had updated delegations on its work regarding the development of a reporting tool that would help transition to a full online system. He invited the Secretariat to provide a brief overview on the state of play for the Council.

2.8. The representative of the Secretariat updated the Council on its work to improve the notification system.

2.9. The Chairman urged those Members whose initial notifications of laws and regulations remained incomplete to submit the outstanding material without delay. Equally, he urged other Members to fulfil their obligation under the TRIPS Agreement to notify any subsequent amendments of their laws and regulations without delay after their entry into force. He especially encouraged Members to notify changes made to their laws and/or regulations to implement the Decision on TRIPS and public health. Such notifications would assist the Council in its review of the operation of the TRIPS Agreement. He endorsed the Secretariat's encouragement for Members to contact them for assistance in making use of the user-friendly notification tools that were under development in the context of the eTRIPS project.

2.10. The Council took note of the statements made.

IP/C/M/80, IP/C/M/80/Add.1

1 Available at: https://prezi.com/obkzp8yhnsen/trips-council/