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

H.E. Ambassador Xolelwa Mlumbi-Peter (South Africa)

1523.   We support inscribing this agenda item as a standing item, which will be consistent with the ministerial mandate and to increase the opportunity for delegations to discuss the importance of the work programme on e-commerce, as well as the impact of the Council decision that extends the moratorium with regard to the application of customs duties to electronic transmissions. South Africa, in its last submission to the TRIPS Council contained in document IP/C/W/666, has argued for TRIPS flexibilities beyond the normal access to medicines and medical technology, which still remain under-utilized. 1524.   We argued that the COVID-19 pandemic requires a more integrated approach to TRIPS flexibilities that include various other types of intellectual property (IP) rights, including copyright, industrial designs and trade secrets. The use of TRIPS flexibilities in other areas of intellectual property, beyond patents, is less understood at the national level. In fact, in other fields of IP, national IP laws may not even provide for sufficient flexibilities to address issues of access. A variety of IP rights are relevant in the fight against COVID-19. We referred to various examples where more discussion would be needed, including regarding 'big data' outside the health system. The number of recognized IP rights have remained constant, however as the digital economy evolves, there may be a need to assess to what extent the existing system is capable of dealing with new demands of the digital economy. We also raised the use, and the impact of the use, of new technology such as 3D printing technology. 1525.   Through these examples, South Africa demonstrated how the interface between IP and new technologies such as 3D printing may require a better understand of how a balance may be achieved between the interests of rights holders and third parties. More particularly, we pointed to the growing importance that trade secrets play in IP protection. We demonstrated a clear need to examine what role trade secrets play during global pandemics. We suggested that now is the time to re-examine trade secrecy and its impact on our collective health. 1526.   The digital economy requires a broader sharing of information to increase global welfare as opposed to only benefitting a narrow band of beneficiaries and owners of IP rights. The current global regime of intellectual property rights is inadequate for serving the purpose of economic development and welfare. In a digital environment the discrepancies that exist in the real world are magnified. It is time to think how IP regimes should be retrofitted to ensure that public welfare remains at the core of the system, recognizing that knowledge is a public good. There may be other ways of protecting intellectual property rights which do not involve traditional tools such as patents or copyrights – we should explore such options. To what extent could centralized open systems based on block chain technology promote the open sharing of information and competition without undermining the value of innovation and rewarding innovators in a fair and transparent manner. 1527.   Maintaining this item as a standing item on the agenda of the TRIPS Council will be compatible with the high importance that our Ministers have accorded to the 1998 Work Programme and will also reflect practices that we see in other councils where the 1998 Work programme is a standing item. We hope to introduce various contributions that will advance our discussion and understanding of the impact of IP in the context of the digital economy. The importance of building an inclusive and development-friendly IP system remains very high on the agenda of the TRIPS Council specifically, and – more generally – the WTO.

101. The Chair recalled that the Work Programme on Electronic Commerce mandated the TRIPS Council to examine and report on the intellectual property issues arising in connection with electronic commerce, including protection and enforcement of copyright and related rights, protection and enforcement of trademarks, and new technologies and access to technology. In the General Council Decision of 10 December 2019, Members had agreed to reinvigorate the work under the Work Programme on Electronic Commerce, based on the existing mandate. The decision foresaw structured discussions "based on all traderelated topics of interest brought forward by Members, including LDCs".
102. The other bodies that were directly mandated by the Work Programme – the Council for Trade in Services, the Council for Trade in Goods, and the Committee on Trade and Development – had retained this item on their regular agenda. In the TRIPS Council, the item had been taken up repeatedly since 1999, with some significant gaps, but Members had not agreed to treat this as a regular agenda item. More recently, there had been intermittent reference to, and discussion of, the item based on ad hoc agenda items in 2017 and 2018 and, most recently, at the last Council meeting on 30 July 2020.
103. During the consultations held in September 2020, several delegations had signalled their interest in re-engagement on this matter, including on discussing national digital policy efforts and the issue of access to digital technology. Some Members had encouraged delegations to provide proposals and submissions in advance of the meetings, echoing the General Council Decision's reference to "topics of interest brought forward by Members". Considering this feedback, she had proposed the item of electronic commerce, again, for the agenda of the present meeting in order to provide an opportunity to discuss how the Council should discharge its mandate under the Work Programme in the future.
104. She was under the impression that Members had brought forward a number of topics, both during the September 2020 consultations and at Council's meeting on 30 July 2020, on which the Council could have structured discussions, as mandated by the Work Programme, if Members were interested to pursue them. If this was the case, the TRIPS Council might wish to keep this item on the regular agenda, as was the case in the other regular bodies mandated by the Work Programme and establish a structure for its discussions, in order to respond to the Ministerial mandate in this regard. She invited Members to share any thoughts on the substance of the discussions on electronic commerce and on how to treat the item on the Council's agenda in the future.
105. The representatives of Chad, on behalf of the LDC Group; China; Bangladesh; South Africa; Tanzania, on behalf of the African Group; the United States of America; the European Union; Indonesia; Australia; and India took the floor.
106. The Council took note of the statements made.
IP/C/M/96, IP/C/M/96/Add.1