Ms Irene Young (Hong Kong, China)

Brazil

6 ANNUAL REVIEW OF THE SPECIAL COMPULSORY LICENSING SYSTEM (PARAGRAPH 7 OF THE ANNEX TO THE AMENDED TRIPS AGREEMENT AND PARAGRAPH 8 OF THE DECISION ON THE IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH)

86. The Protocol Amending the TRIPS Agreement entered into force last January. We see this as a landmark development for the multilateral trading system, showing that trade rules can and must contribute to addressing people's needs in poorer countries. It enhanced the legitimacy of the WTO and sent a strong message about the capacity of the international community to reach consensus decisions. We support that this Organization continues to work towards ensuring that the System becomes a practical option for the procurement of medicines in countries without industrial capacity. This is provided in paragraph 16 of document JOB/IP/27. During the session of the TRIPS Council held last January, we suggested some potential actions that could be taken by the WTO to assist Members, namely (i) legislative assistance to enable the incorporation of the Protocol into Members' national legislation; (ii) awareness-raising activities; and (iii) capacity building activities. 87. We are very happy to note that the WTO Secretariat has responded accordingly, and is taking concrete steps to assist Members in such an important issue. Brazil is very appreciative of this and will do its best to continue supporting those actions by the Organization. 88. The document prepared by the Secretariat also lists 47 countries that are yet to accept the Amendment. In spite of active efforts by the WTO Secretariat and WTO Members, it is not expected that all those countries complete their domestic procedures before the end of this year. It is thus advisable to ensure that appropriate time be granted to enable those Members to finalise the necessary legal actions for accepting the Protocol. While, in our view, ideally there should be no fixed deadline for the acceptance of the Protocol, we have heard some Members stating a preference for a two year extension. In order to advance the issue, Brazil is in the position of joining the consensus of two years for such an extension.

JOB/IP/27

The Council so agreed.

20. The Chairperson said that paragraph 7 of the Annex to the amended TRIPS Agreement and paragraph 8 of the 2003 Waiver Decision required the Council to review the functioning of the special compulsory licensing system (the "System") annually, with a view to ensuring its effective operation. The Council was also required to report annually on the System's operation to the General Council. In the case of the Waiver Decision, the review was also deemed to have fulfilled the requirements of Article IX:4 of the WTO Agreement.

21. She invited Members to exchange views on the functioning of the System. Two documents could serve as background for the discussion: (i) the TRIPS Council's report on its annual review in 2016 (IP/C/76); and (ii) the Secretariat's 2016 report on its technical cooperation in the TRIPS area (IP/C/W/618). Annex II of the latter document summarized the discussions on the practical use of the Paragraph 6 System.

22. Turning to the Council's report to the General Council, the Chairperson noted that a draft cover note, modelled on previous reports, had been prepared by the Secretariat (JOB/IP/27). It contained factual information on the implementation and use of the System. The draft would need to be updated to reflect the recent acceptance of the Protocol by the Russian Federation. The minutes of the discussion under this agenda would also have to be attached as Annex 1 and Appendix 1.

23. Additionally, the Council would need to decide on Annex 2, which referred to the Protocol Amending the TRIPS Agreement. She recalled that the Protocol was currently open for acceptance by Members until 31 December 2017. There were 46 Members that had not yet accepted the Protocol. As it was unlikely that all of them would do so before the end of 2017, the Council needed to consider the way forward. Previous consultations had indicated that most Members would like to see a further extension of the period for acceptance. A draft decision to that effect, for adoption by the General Council, had been included as Annex 2 to the draft report. The draft decision did not yet contain a deadline. At a recent informal meeting of the TRIPS Council, one delegation had raised the possibility of an indefinite extension. However, most delegations had preferred a fixed deadline, either a two year or a four year extension. She suggested focusing the discussion on these two options and that the Council decide on the one with greater support.

24. The representatives of India; the United States; Barbados; the European Union; Haiti on behalf of the LDC Group; Brazil; Canada; South Africa; Switzerland; Japan; Thailand; the Republic of Korea; the Russian Federation; Australia; China; Costa Rica; and Nigeria on behalf of the African Group took the floor.

25. The Council took note of the statements made.

26. The Chairperson proposed that the Council agree on forwarding to the General Council the proposal for a decision to extend the period for acceptance by Members of the Protocol Amending the TRIPS Agreement until 31 December 2019. The last paragraph of the draft decision by the General Council contained in Annex 2 to the draft report should be complemented by inserting this date. She also proposed that the Council agree on the cover note to the report contained in JOB/IP/27, with updates concerning an instrument of acceptance that had been deposited since the circulation of the draft cover note, and also that the Council minutes containing the record of the discussion be attached to it as Annex 1 and Appendix 1.

27. The Council so agreed.

IP/C/M/87, IP/C/M/87/Add.1