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

Ambassador Alfredo Suescum (Panama)
262. Thank you for introducing this item requested by Brazil. I think you gave a very good historical background on the issue of the work programme, which is why we are asking for this agenda item. We have two co-sponsored documents: The first, on copyright, is co-sponsored by Argentina and the second is co-sponsored by Argentina, Paraguay and Brazil. The two topics have been identified under the dedicated discussion of the General Council as topics related to the issue of e-commerce, and both documents here are being submitted to the TRIPS Council in order to give the opportunity to Members to get acquainted with the message we want to convey and to give us the opportunity to clarify and to answer questions. We are going to present both documents, and will be more than happy to respond to questions or requests for clarifications. I will ask my colleague to introduce the document on copyright and I will myself introduce the second one afterwards. 263. Thank you for this opportunity to present our document on electronic commerce and copyright. It responds to the invitation of the work programme on electronic commerce to examine and debate trade-related issues of global e-commerce. We wish to launch a comprehensive discussion of copyright management in the digital environment and we invite delegations to express their views on this important subject. 264. Recent advances in technology have enabled the creation of business models based on the use of copyrighted works in digital platforms. Unlike the physical environment, access to such works is gained without transfer of ownership or possession of the work by the final user. Those innovative business models create new forms of rights management, generating opportunities and challenges for all participants in the creative process. The success of these new models was underlined in 2015, when the digital market surpassed sales of physical formats and became the primary source of revenue for recorded music. 265. Legitimate concerns are being raised at national and international level regarding the remuneration of copyrighted works. Digital platforms affirm that most of their revenue is being distributed as royalties, but authors and performers complain about lack of remuneration. Likewise, producers and the cultural industry highlight a "value gap" in the amount due for the rights. 266. The modern music business involves a huge number of micro-transactions, in which stakeholders receive fractions of the revenue generated. New technologies would normally be associated to more transparency, but actually we are seeing the opposite: opaque contractual frameworks create an obstacle for the due diligence of creators and artists when considering the commercialization of their work. 267. Brazil argues that a first possible decision on copyright management for fair payments could stress the importance of transparency in the remuneration of copyright and related works in the digital environment. This would allow creators and artists to properly understand the payments and accounts they receive. 268. Copyright laws recognize certain limitations on economic rights of protected works. Those limitations have the character of public interest, in that they strike a balance between the interest of rightholders and the users of such works. For this reason, they are present in the legislations of all Members. 269. In the business model of digital platforms, technological protection measures (TPMs) are widely used, offering an almost absolute control of digital intellectual goods. However, TPMs in the physical environment were already considered an obstacle to the exercise of some legitimate uses defined as limitations or exceptions to copyright by national legislations. This is magnified in the digital environment and may halt even the simplest operations, such as the interoperability and portability of digital goods. 270. There is a growing concern that obligations related to the inviolability of TPMs might exclude the possibility of enjoying exceptions and limitations in the digital environment. These technologies are essential for the normal exploitation of the work in e-trade and its circumvention could be understood as a breach of international obligations (step 2 of the three step test). Therefore, the second collective initiative suggested in our document to improve management of copyright in the digital environment is to clearly assert that exceptions and limitations available in physical formats should also be available in the digital environment. 271. Finally, the last aspect of the document relates to the territoriality of copyright. The digital environment is borderless by its nature while the copyright system is based on national laws. These different characteristics make more challenging the task of implementing the shared objective of protecting authors, performers and other copyright holders in the digital environment. Payments to digital platforms, for instance, can be made through international credit cards, bypassing the law in the country of access to the creative content. 272. It is thus suggested that Members reaffirm the territoriality of copyright as a principle of the international trading system, making their national copyright legislation applicable to trade relations where content is accessed from within their national borders. 273. The three areas highlighted should be considered building blocks of a sound business environment for the international trade of intellectual goods. They should continue to be explored in order to find common understanding among Members and to provide the General Council with the information necessary to consider the way forward on the matter. 274. Let me now turn to document JOB/IP/20, co-sponsored by Argentina, Paraguay and Brazil. It is based on the resolution adopted by MERCOSUR in 2006, which means that this text has been negotiated among developing countries. This is a proposal on how a technical issue can be handled from a trade-related perspective. Although technical, this issue is of great importance not only to e-commerce, but to the digital economy in general, because electronic signatures ensure the digital identity of whoever is using the Internet or doing electronic transactions. Needless to say, in order to have legally valid effects, the certainty of the recipient on the other side of the internet that this is the person it is claiming to be, is very important in the digital environment. The insurance of the digital identity of a person therefore has cross-cutting utility. 275. One common and very important application of this digital identity is in e-government solutions. For instance, if we take the communication from India suggesting a trade facilitation agreement for services, in one of the sections, Paragraph 10.3 of the proposal, there is the suggestion of electronic application of documents. If that submission of electronic documents is backed by a digital identity, via an advanced electronic certificate, this would increase certainty of the system and would make it more reliable, both to the government and to the users. I do not intend to go through to the paragraphs or the articles of the proposal, but I am more than happy to clarify any questions that Members might have in this regard.
The Council took note of the statements made.
69. The Chairman informed the Council that, to prepare the discussion under this item, Brazil had submitted a communication on Electronic Commerce and Copyright (document JOB/IP/19) which had been co-sponsored by Argentina. He suggested that Brazil introduce the agenda item and discuss the issues that it was proposing for consideration, and that the Council then turn to three other submissions related to the Work Programme on E-Commerce which the respective co-sponsors might wish to introduce.

70. He recalled the most recent mandate in the field of e-commerce and the state of play of the work. At MC10 in December 2015, Ministers had decided to "continue the work under the Work Programme based on the existing mandate and guidelines and on the basis of proposals submitted by Members in the relevant WTO bodies". They had also instructed the General Council to hold periodic reviews "based on the reports that may be submitted by the WTO bodies entrusted with the implementation of the Work Programme and report to the next session of the Ministerial Conference" (document WT/MIN(15)/42 – WT/L/977).

71. In June 2017, the TRIPS Council had resumed discussions on e-commerce. This discussion had been based on Canada's written submission circulated in document IP/C/W/613. Canada had shared its national experience to fight the selling of counterfeit products over the internet. At the Council's meeting in November 2016, Canada had called for a continuation of the sharing of national experiences and practices as this would support the Council to respond to the Ministerial mandate. In line with the addendum to its earlier communication (document IP/C/W/613/Add.1) Canada had also said that it wished to consult with other delegations on how to advance the Work Programme on E-Commerce in this Council. It had been joined by a number of other delegations.

72. The Chairman also referred to three other communications under this item: a communication on Electronic Signatures that had been co-sponsored by the delegations of Argentina, Brazil and Paraguay (document JOB/IP/20); a communication on Trade Policy, the WTO and the Digital Economy that had been circulated at the request of the delegations of Canada; Chile; Colombia; Côte d'Ivoire; the European Union; the Republic of Korea; Mexico; Montenegro; Paraguay; Singapore and Turkey (JOB/IP/21 of 13 January 2017); and a communication on Electronic Commerce and Development, recently circulated in document JOB/IP/22 at the request of the delegations of Brunei Darussalam; Colombia; Costa Rica; Hong Kong, China; Israel; Malaysia; Mexico; Nigeria; Pakistan; Panama; Qatar; Seychelles; Singapore and Turkey.

73. The representatives of Brazil, Argentina, Paraguay, Bangladesh on behalf of the LDC Group, Switzerland, the United States, Norway, the European Union, Singapore, Chinese Taipei, Canada, the Republic of Moldova, Mexico, Australia, Turkey, Colombia, the Russian Federation, Chile, the Republic of Korea, India and New Zealand took the floor.

74. The Chairman said that, in light of the discussions and the earlier exchange of views at the Council's meetings in June and November 2016, there seemed to be a continuing interest of delegations in discussing issues related to intellectual property and e-commerce. He therefore encouraged Members to consider how to carry forward issues related to e-commerce in the TRIPS Council. An in-depth debate would, indeed, constitute a sound basis for the Council to contribute to the periodic review that the General Council had been requested to hold, as well as to provide input for the General Council report to the next Ministerial Conference. Such a discussion would be an opportunity to create a clear and inclusive factual picture of the current state of affairs as the foundation for informed dialogue between Members.

75. The Council took note of the statements made.

IP/C/M/85, IP/C/M/85/Add.1