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

H.E. Ambassador Xolelwa Mlumbi-Peter
European Union
373.   The EU and its members take note of the communication submitted by South Africa on operationalizing technology transfer in the context of Articles 7, 8, 40 and 66.2 of the TRIPS Agreement. 374.   The EU considers e-commerce as one of the important topics for future WTO work. This is the area where achieving progress could benefit the membership at-large and provide tangible results for our economies and citizens, both in developed country Members as well as in developing countries. 375.   The digital economy has developed remarkably in the past decades. Our practices have evolved accordingly to capture those developments, but only limited progress has been achieved in the WTO. 376.   The EU also supports the General Council Decision of December 2019 to reinvigorate the 1998 Work Programme on Electronic Commerce and is ready to continue and intensify work on the three areas that fall under the competence of the TRIPS Council. 377.   As to the issues raised in the communication by South Africa, the EU believes that voluntary technology transfer has the capacity to boost international economic relationships. Therefore, it is an important tool that helps foster innovation and development. It can create winwin situations in international business. 378.   A reliable and predictable system of protection and enforcement of IPRs is a necessary condition for technology transfer to occur on market-based and voluntary contractual terms and therefore a key driver of technology transfer. 379.   Licensing plays a crucial role in promoting the dissemination and further development of technologies by licensees, thereby facilitating the commercialization of innovative products. 380.   Enforcement of IPRs provides for transparent procedures that permit effective action against infringement of IPRs as well as the opportunity for review of final administrative decisions by a judicial authority. 381.   The patent system is a key driver of innovation and research also in the area of the digital economy. Patents are an important and up-to-date source of technological information, which often cannot be found elsewhere. 382.   The disclosure requirement set out in Article 29.1 of the TRIPS Agreement allows innovators and researchers, including in developing countries and LDCs, to access this information and to reach the same knowledge level, as well as to continue the momentum with further technological development of the patented technology. 383.   Besides disclosure, there are many ways to support technology transfer, notably collaboration and links between researchers and industry, transparency on licensing conditions or special support to SMEs. The EU's Research & Innovation Framework Programmes are good examples of initiatives promoting cross-border collaboration, including with non-EU countries in different sectors, also ecommerce. 384.   The EU and its members also contribute and implement numerous cooperation and capacity building projects to support the services trade and the development of regulatory frameworks under the Aid for Trade programmes, including with regard to digital solutions. 385.   The EU has presented this and other initiatives in more detail in the context of exploratory discussions on supporting the digital capability of businesses and consumers that are taking place in the Council for Trade in Services. 386.   It is also important to underline that in many cases access to technologies in the field of electronic commerce is dependent on issues outside the IP regime, such as lack of institutional capacity to absorb technologies, preferences of local suppliers, infrastructure deficiencies and restrictions on inward technology. 387.   Competition law and intellectual property systems are not contradictory, but complementary systems of law, which both strive to further welfare and growth. The TRIPS Agreement recognizes the possibility of the application of competition policy measures while setting clear limits, as such measures have to be consistent with the provisions of the TRIPS Agreement. 388.   Competition policy plays an important role in controlling and sanctioning anticompetitive market behaviour in any sector, including the area of electronic commerce. 389.   Abusive IPR-related conduct, as any other abusive practices, can violate competition law and can be considered an anti-competitive practice, but only in clearly defined circumstances, and provided that all rigorous legal requirements are met. 390.   At the same time, the number of competition cases that are related to the use of the intellectual property framework clearly underscore that it is not the IPR system as such that raises competition issues. In fact, competition issues which are related to the use of the IP framework originate from the unlawful conduct of companies, which go against the objectives of the IPR system. For example, contractual clauses that lead to allocating markets or customers or restricting the exploitation of the licensee's own technology. 391.   Finally, we would like to emphasise that existing international cooperation in the field of competition, for example the International Competition Network, facilitates the dissemination of expertise and best practices and has a large potential to strengthen the fair and appropriate enforcement of competition law and contribute to better functioning of the markets around the globe.
The Council took note of the statements made.
51.   The Chair said that the agenda item had been requested by South Africa. A communication had been circulated in document IP/C/W/665. She invited South Africa to introduce the item.
52.   The representative of South Africa took the floor to introduce the item.
53.   The representatives of India; the European Union; Zimbabwe; the United States of America; Canada; Chile; China; Australia; and, Switzerland took the floor. The representative of Nigeria requested that her statement be included in the record of the meeting.
54.   The Council took note of the statements made.
IP/C/M/95, IP/C/M/95/Add.1