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

H.E. Ambassador Xolelwa Mlumbi-Peter
World Trade Organization
39.   The Secretariat circulated the note entitled "Annual Report on Notifications and Other Information Flows" on 2 March 2021, under document IP/C/W/676. The report gives a factual overview of submission rates and trends for each of the primary TRIPS transparency mechanisms, including: notifications of laws and regulations; contact points; responses to the checklist on enforcement and checklists relating to the reviews under Articles 24.2 and 27.3(b). It also discusses developed country Members' annual reports under TRIPS Articles 66.2 and 67. 40.   The report is a continuation of the Secretariat's efforts to improve the factual information available to Members regarding the operation of the Council's transparency function. In the wake of the 2008 global financial crisis, the then-Chair of the General Council invited the TRIPS Council, among other WTO bodies, to consult on ways to improve the timeliness and completeness of notifications and other information flows. The Council, in turn, asked the Secretariat to improve the visibility and user-friendliness of the TRIPS notification system. In consultation with Members, who offered detailed feedback and guidance during its development, we launched the e-TRIPS information system in 2019. This optional online system makes it easier for Members to track and submit notifications, responses to checklists of questions, and reports. It also facilitates access to the massive amount of complex information that has been notified and reported to the Council over the past 25 years. 41.   The report on notifications and other information flows makes use of the greater accessibility of this information. It seeks to help Members identify broader trends from the publicly available eTRIPS data, and to extend to the TRIPS Council a service of annual reporting on transparency mechanisms that is customary in other comparable WTO bodies. The current report covers submissions circulated from 1995 through to the end of 2020. Resources permitting, we propose to update it annually, akin to the parallel practice of other WTO bodies. Subsequent reports would focus on submissions made during the preceding year. 42.   Following a brief introduction, the current report begins by informing Members of the rate at which they have taken up the e-TRIPS system. The data show that, since its 2019 launch, the eTRIPS Submission System has become the primary means by which Members and observers submit notifications, responses to checklists of questions, and reports. The e-TRIPS Gateway, in turn, has become a popular resource for Members, both delegates and capital-based officials, and other stakeholders who seek to access and analyse the documents and data contained in Members' submissions. 43.   The report then addresses each TRIPS transparency mechanism in turn. Each sub-section begins with a brief overview of the nature of the commitment (which stems either from the TRIPS Agreement itself, or subsequent decisions of this Council), before offering a summary of the submissions circulated from 1995 through to the end of 2020. We identify discernible trends and offer supporting charts, graphs, and tables for each mechanism. I will highlight a few key points, and display a few of the supporting charts and graphs from the report on the next slides. 44.   First, with respect to notifications under Article 63.2 of the TRIPS Agreement, it is evident that from 1995 through 2002 Members exerted significant efforts to submit initial notifications of their laws and regulations, and to respond to the checklist of questions on enforcement. However, given the ongoing nature of these obligations, and Members' continuously evolving IP systems, fewer notifications of subsequent and revised legislation, and fewer updates to the checklist on enforcement, have been received than would have been expected. 40% of Members subject to the Article 63.2 obligation have not notified a new or amended law or regulation in over 15 years. 45.   There is reason for optimism, however – 21 Members notified one or more new or amended laws or regulations during calendar year 2020, which is the highest rate of annual participation since 2005. The total number of notifications submitted in 2020 also grew as compared to 2019, due in no small part to the significant efforts of the United Kingdom to update the Council on its current and historical trademark and industrial design laws. The report provides additional statistics regarding notified laws and regulations, including breakdowns by development status, region, and subject matter, as well as a heat map identifying the Members who made notifications in 2020. 46.   With respect to contact points under Articles 69 and 67 of the TRIPS Agreement, the data shows that most Members under the obligation to notify these contact points have done so. However, some of the contact points may be in need of updating, as over 50% were submitted more than ten years ago, and a number date back over 20 years. 47.   The report also provides information regarding developed country Members' reports relating to incentives to enterprises and institutions for the purpose of promoting and encouraging technology transfer to least developed country Members under Article 66.2, and reports on technical cooperation under Article 67. The report on notifications and other information flows identifies the number of developed country Member reports received per year, as well as the frequency with which individual Members have submitted reports. 48.   Submissions pertaining to the Council's review under Article 24.2 of the application of the TRIPS Section on geographical indications, and the review under Article 27.3(b), relating to domestic frameworks for protecting biotechnology inventions and new plant varieties, are also featured in the report. The data show that in recent years, a handful of Members have submitted responses to checklists on these topics, breaking a decade of minimal to no activity. The potential remains for much more engagement, however. Fewer than one-third of Members have submitted responses to the checklist established by the Council under Article 24.2 on domestic systems for protection of geographical indications. Fewer than one-sixth of Members have submitted responses to the checklists established under the Council's review of Article 27.3(b) on domestic frameworks for protecting biotechnology inventions and new plant varieties. 49.   Much more information can be found in the report itself, including information relating to less frequently triggered ad hoc notifications, such as those under the Special Compulsory Licensing System for medicines. Detailed tables in the Annex to the report supplement the main text by offering data by submission type and individual Member. 50.   We trust that this document will assist Members in enhancing the benefits of the transparency mechanisms set up under the TRIPS Agreement and by decisions of this Council. We encourage Members to review the report closely and to contact us with any questions regarding the data or the procedures for making a notification or other submission.
1. The Chair invited the Secretariat to report on notifications that the Council had received since its meeting in October 2020.
2. A representative of the Secretariat said that the Council had received the following notifications under Article 63.2 of the TRIPS Agreement:
a. The Republic of Korea had notified a revised Copyright Act, a revised enforcement decree of the Copyright Act, and an amended Administrative Procedures Act;
b. Albania had notified amendments to the Copyright and related rights Act resulting from the Stabilization and Association Agreement (SAA) and other strategic partnership documents with the European Union; as well as a decision on fees for services by the Copyright Directorate;
c. Sweden had notified amendments and consolidated versions of the Copyright Act, the Patents Act, the Design Protection Act, the Act protecting Typographies for Semiconductor Products, the Plant Breeder's Rights Act and the Trademarks Act, enacting new levels of penalties for intentional serious infringements, and introducing new crime classifications;
d. Croatia had notified a revised Patent Act amending the grant procedure and introducing a new concept of utility model; a revised Trademarks Act, introducing changes to the graphical representation of marks, clarifying the relationship between trademarks and geographical indications, as well as collective and guarantee marks, and assuring appropriate legal protection in relation to counterfeit goods in transit through the territory European Union;
e. Italy had notified a legal framework concerning the prohibition of ambush marketing and misleading advertising on the occasion of sport events or trade fairs of national or international relevance;
f. Ukraine had notified a law introducing a two-tier system of state management of intellectual property, establishing the National Intellectual Property Authority (NIPA) under the Ministry for Development of Economy, Trade and Agriculture;
g. Japan had notified an amended Patent Act that upgraded the litigation system and entailed consequential amendments to the Design Act and the Trademark Act; and a revised Copyright Act that aimed at improving protection against inter alia pirated copies on the internet; and
h. The United Kingdom had notified over 100 pieces of legislation which included its "EU exit" legislation in a number of intellectual property areas, as well as primary and secondary intellectual property laws from different areas since the 1990s.
3. Furthermore, the United Kingdom had also notified its contact points for IP enforcement under Article 69 and for technical cooperation under Article 67. Macao, China had also updated its contact point under Article 67. The Plurinational State of Bolivia had made a notification under Article 31bis and paragraph 1(b) of the Annex to the TRIPS Agreement, indicating its intention to use the special compulsory licensing mechanism, also known as the "paragraph 6 system", as an importing Member.
4. He added that the "Annual Report on Notifications and Other Information Flows"(IP/C/W/676), which was also listed under agenda item 1, reflected the submission rates and trends in Members' notifications since 1996. He suggested that the Secretariat be given the floor to provide a more detailed introduction.
5. The representatives of the United Kingdom; Republic of Korea; Ukraine; and Japan took the floor.
6. The Chair thanked Members for the information provided on their respective notifications. She invited the Secretariat to present the "Annual Report on Notifications and other Information Flows".
7. A representative of the Secretariat took the floor.
8. The Chair recalled that, notifications to the Council were not keeping up with the actual development of laws and regulations relating to TRIPS. Article 63.2 was not a one-off requirement, as it obliges Members to notify any new or amended laws so that the Council can exercise its monitoring function. The "Annual Report on Notifications and Other Information Flows" provided a Member-by-Member overview of their most recent notifications. It illustrated that a number of Members had not notified any of their legislative changes for sometimes over ten years.
9. She urged Members to update their notifications by submitting any new or revised laws or regulations to the Council, as well as completing their initial notifications in case any material was still outstanding. This applied also to the Checklist of Issues on Enforcement which had been established by the Council as an element of Members' ongoing notification obligations. All of these notifications could be made through the e-TRIPS Submission System. The Secretariat was available to answer any question in that regard.
10. The Council took note of the notifications and the statements made.
IP/C/M/98, IP/C/M/98/Add.1