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

H.E. Ambassador Dr. Walter Werner
13   INTELLECTUAL PROPERTY AND THE PUBLIC INTEREST: PROMOTING PUBLIC HEALTH THROUGH COMPETITION LAW AND POLICY
550.   We would like to thank South Africa, Brazil and India for submitting this proposal. We share the same concern and would like to co-sponsor this proposal. 551.   During the second meeting of the TRIPS Council in June this year, Members have been actively involved in this issue. Although divergences still exist, we believe a full discussion will help Members to get a better understanding and promote deepening of this issue. 552.   First, we believe that intellectual property protection should not exclude the application of competition law. In the TRIPS Agreement, Articles 6, 8.1, 31(k) and 40 are closely related to competition. As part of the TRIPS Agreement, most of these provisions have been transformed into Members' domestic laws or regulations that must be abided by. In addition, judicial cases related to intellectual property and competition have been found worldwide. These all clearly indicate that intellectual property protection is not boundless, it should be constrained by the application of competition laws. 553.   Second, we believe that intellectual property protection and competition are not in conflict. They share the goal of improving economic efficiency, safeguarding consumer interests and protecting public interests while promoting competition and innovation. According to Article 7 of the TRIPS Agreement "[t]he protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare and to a balance of rights and obligations." It clearly indicates that the purpose of intellectual property protection is to achieve a balance between the creators and users of IPR, rather than to form a monopoly. The legislative purposes of each member's competition law are basically the same, that is, to protect fair competition, to stimulate innovation, and to safeguard the legitimate rights of operators and consumers. It is clear that there is a common goal between intellectual property protection and competition. In fact, China's AntiMonopoly Law and the regulation on the Prohibition of Conducting, Eliminating or Restricting Competition by Abusing Intellectual Property Rights have also followed the above principles. 554.   Third, we believe that the TRIPS Council is the appropriate forum to discuss intellectual property and competition issue. Currently intellectual property and competition issue have become an important subject in WIPO and FTAs. With clear competition provisions in the TRIPS Agreement, as an important forum for intellectual property, the TRIPS Council could not avoid this issue. 555.   China believes the discussion on intellectual property and public interest should be open and inclusive. Members are encouraged to exchange views and experiences on how to make better use of flexibility provisions of TRIPS Agreement, including the competition law and policy.
The representatives of South Africa, Brazil, India, China, Indonesia, the United States of America, Japan, the European Union and the WHO took the floor.
53.   The Chair said that the item "Intellectual Property and the Public Interest: Promoting Public Health Through Competition Law and Policy" had been added to the agenda at the request of the Delegation of South Africa. It had been co-sponsored by Brazil and India since the circulation of the revised draft agenda. The co-sponsors had also submitted a communication on this topic (circulated in document IP/C/W/649 and addenda), which included questions to guide the discussion.
54.   The representatives of South Africa, Brazil, India, China, Indonesia, the United States of America, Japan, the European Union and the WHO took the floor.
IP/C/M/90, IP/C/M/90/Add.1