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

H.E. Ambassador Xolelwa Mlumbi-Peter
18.   Australia is not listed under this agenda item. We submitted a notification on 24 July, after the agenda was circulated, and I would like to take this opportunity to briefly outline the notification. 19.   In response to recommendations in the Productivity Commission's report on its review of the Australian IP system, certain amendments were made to Australia's crown use and compulsory licensing measures. These amendments came into effect on 27 February 2020. 20.   Neither of the amendments apply to compulsory licensing for export purposes. 21.   The crown use provisions were amended to improve and clarify their operation, specifically to: a. make it clear that crown use can be invoked for the provision of a service that any Commonwealth, State or Territory Government has the primary responsibility for providing or funding; and b. require that Governments first seek a negotiated outcome with the patentee, such as a licence to use the patent. 22.   The requirement to first attempt to negotiate does not apply in an emergency. a. if negotiation is unsuccessful, or access to a patented invention is required in an emergency, Ministerial approval for invoking Crown use must be sought. 23.   If approved, the patentee must be notified of the reasons for the decision. The reasons must be given to the patentee prior to exploitation under the Crown use provisions, or if an emergency, as soon as practicable. 24.   The compulsory licensing provisions were amended to replace the 'reasonable requirements of the public' test with a 'public interest' test when the Federal Court considers an application for a compulsory licence. a. The court is also required to consider the public interest when specifying the terms of the licence, including remuneration.
The Council took note of the notifications and the statements made.
4.   The Chair invited the Secretariat to report on notifications that the Council had received since its meeting in February 2020.
5.   A representative of the Secretariat said that the Council had received the following notifications under Article 63.2 of the TRIPS Agreement:
a. The European Union had notified regulations relating to the implementation of the Regulation on the European Union Trademark; and a Regulation and a Council Decision relating to the European Union's accession to the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications;
b. Japan had notified consolidated versions of its Design Act, its Patent Act, its Trademark Act and its Copyright Act;
c. Mexico had notified its declaration of protection of the denomination of origin "Pluma";
d. the Kyrgyz Republic had notified government decrees, regulations and rules relating to traditional knowledge, and to patenting rules for selection achievements, electronic computer programs and databases;
e. Chinese Taipei had notified its Trade Secrets Act;
f. Canada had notified its Bill-13, providing for certain measures in response to COVID-19;
g. Thailand had notified consolidated versions of its Trade Secrets Act, the Copyright Act and the Trademark Act;
h. The Kingdom of Saudi Arabia had notified its amended Copyright Law and related implementing regulations;
i. Hungary had notified a government decree on public health compulsory licences and transitional rules regarding epidemiological preparedness; and
j. Hong Kong, China had notified an amended trademark Ordinance and its National Anthem Ordinance of 2020.
6.   He added that, under Article 69, Belize, Qatar, the Kingdom of Saudi Arabia, and Tonga had provided information on contact points for the exchange of information and cooperation on trade in infringing goods, under Article 69 of the TRIPS Agreement.
7.   Chile had notified a contact point for technical and financial cooperation, under Article 67 of the TRIPS Agreement.
8.   He noted that some of the above-mentioned notifications were included in the list of IP-related COVID-19 measures. This non-exhaustive list of intellectual property measures was compiled and maintained by the WTO Secretariat from official sources and from Member's inputs. The most recent inputs were from Greece, Switzerland and the Russian Federation. The list was updated continuously, and the most recent version could always be accessed on the WTO website. It represented an informal situation report and an attempt to provide transparency with respect to measures related to intellectual property rights (IPRs) taken in the context of the COVID-19 crisis.
9.   He drew delegations' attention to two developments in the area of documentation procedures:
a. A new document series had been created for the circulation of Members' reports to the TRIPS Council. The IP/C/R/[MEMBER]/- series would comprise reports and reviews submitted by individual Members to the TRIPS Council, from 2020 onwards. This included reports and responses relating to geographical indications (TRIPS Article 24.2), biotech patenting and related issues (TRIPS Article 27.3(b)), incentives for technology transfer (TRIPS Article 66.2), and technical cooperation (TRIPS Article 67); and
b. The WTO Secretariat's Central Registry of Notifications (CRN) sends out annual reminders to Members identifying unfulfilled annual notification obligations across all WTO Agreements. In the context of TRIPS, the notification obligations under Article 63.2, 67, and 69 – namely to notify legislation, responses to the enforcement checklist and information on contact points – were on-going obligations, which required action whenever new legislation entered into force, or when the contact point details changed. In light of this, CRN reminders would now be sent to all Members covered by these obligations, indicating that these notification obligations applied "as appropriate". By sending such regular reminders, CRN invited Members covered by these provisions to regularly verify that they are up-to-date with their ongoing notification obligations under Article 63.2, Article 67 and Article 69.
10.   The Chair invited delegations that had notified new or revised legislative measures or submitted updates to their Enforcement Checklist to inform the Council about the key points of their notifications. This had become a well-established practice, followed by many delegations at recent sessions of the Council. It provided valuable insight into the notifications provided and promotes awareness and transparency.
11.   The representatives of Australia; Canada; the European Union; South Africa; Chinese Taipei; Thailand; Japan; the Kingdom of Saudi Arabia; and Mexico took the floor. The representative of Hong Kong, China requested that his statement be included in the record of the meeting.
12.   The Chair noted that, while the pace of notifications to the Council had increased in recent years, they were still not keeping up with the actual development of laws and regulations relating to TRIPS. She recalled that Article 63.2 was not a one-off requirement. It was a core element of the TRIPS transparency arrangements, and a central part of the Council's substantive work. It obliged Members to notify any new or amended laws in the area of TRIPS, including those recently adopted to address the COVID-19 pandemic. That requirement included the notification of legislative changes made to implement the special compulsory licensing system to export medicines covered by the new Article 31bis of the TRIPS Agreement. The notification of all relevant laws and regulations could assist Members in preparing for the potential use of the system. It would also help the Secretariat in its efforts to provide informed technical support to Members in this area. She urged Members to complete any outstanding initial notifications and to keep up to date with notifications on subsequent amendments. The same applied to the Checklist of Issues on Enforcement which had been established by the Council as an element of Members' notification obligations.
13.   Finally, the e-TRIPS Submission System was available for Members to notify their laws, and to make other required submissions to the TRIPS Council, through the click of a button. The e-TRIPS System not only facilitated the submission of information by Members, it also permitted digital access, consultation and analysis of this information through the e-TRIPS Gateway, an easy-to use interface to search and display information related to the TRIPS Council.
14.   The Council took note of the notifications and the statements made.
IP/C/M/95, IP/C/M/95/Add.1