368. We thank the delegation of South Africa for their timely intervention on crucial issues pertaining to intellectual property in connection with electronic commerce. The submission rightly notes that the 1998 Work Programme on Electronic Commerce mandates the TRIPS Council to examine and report on such issues. In fact, e-commerce regularly featured on the agenda of TRIPS Council meetings from 1998 to June 2003, and the Council had also produced three reports to the General Council on this issue. We, therefore, support the request by South Africa to inscribe this issue as a standing item on the TRIPS Council agenda.
369. The rapid deployment of digital technologies has increased substantially during the COVID-19 crisis, indicating that the ongoing digitalization possesses new means of tackling global development challenges. However, the pace of such digitalization is different in different trading economies. Therefore, it is imperative that the requisite technology is made available to the developing and least developed countries so as to create a level-playing field. Discussions on ecommerce will lack meaning if the gaping digital divide, partly arising out of lack of access to technologies and furthered by the pandemic, continues to exist.
370. The TRIPS Agreement, in consonance with Article 7 and Article 8, enumerates several flexibilities. These flexibilities are not limited to a particular sector or technology. It remains open for Member countries to utilize these flexibilities as per their socio-economic conditions. However, India has had very limited experiences in this regard. As of now, India has not invoked any such flexibilities in the case of e-commerce.
371. The advent of e-commerce has led to erosion of geographical boundaries, and has facilitated the entry of buyers and sellers in markets from around the world. The ongoing digitalization of the economy, however, is also throwing certain specific challenges in respect of competition policy. In this regard, the paper from South Africa rightly points out that Article 40.1 of the TRIPS Agreement recognizes that some licensing practices or conditions pertaining to intellectual property rights, which restrain competition, may have adverse effects on trade and may impede the transfer and dissemination of technology, and read with the provisions of Article 40.2, Members may address the adverse effects of anti-competitive practices through appropriate measures which may also be applied to digital platforms.
372. It is of utmost importance for developing countries to adopt e-commerce and IP policies that are mutually supportive and in line with their developmental goals and policy specificities. Therefore, we support the suggestion to maintain this issue as a standing item on the TRIPS Council agenda.