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

H.E. Ambassador Dr Lansana GBERIE
World Trade Organization

73.   The significant work of delegations going into the submission of notifications is monitored and recognized in the Annual Report on Notifications and other Information Flows that the Secretariat prepares annually. This is the third year that we are preparing this overview and I hand over to my colleague Natalie Carlson who is primarily responsible for an introduction of this year's report. 74.   The Secretariat circulated a note entitled "Annual Report on Notifications and Other Information Flows" on 2 March 2023, carrying document symbol IP/C/W/696. This report updates the first two such reports, which were warmly received by Members in 2021 and 2022. Like those reports, this year's report offers a factual overview of submission rates and trends for each of the primary TRIPS transparency mechanisms: 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 Members' annual reports under Articles 66.2 and 67. 75.   The reports in this series are a continuation of the Secretariat's efforts to improve the factual information available to Members regarding the operation of the Council's transparency function. They seek to help Members make use of the publicly available e-TRIPS data, and to offer the Council for TRIPS a service of annual reporting on transparency mechanisms that is customary in other comparable WTO bodies. The current report covers submissions circulated from 1995 to the end of 2022, with a particular emphasis on 2022 submissions. 76.   Following a brief introduction, the Report begins by updating Members on the rate at which they have taken up the e-TRIPS system. Since its 2019 launch, Members have increasingly opted to use the e-TRIPS Submission System to efficiently make transparency-related submissions to the Council online. In 2022, 86% of submitting Members used the system to submit 95% of all submissions. 77.   The companion e-TRIPS Gateway, in turn, also continued to grow as a popular resource for Members who seek to access and analyse the data contained in Members' submissions. The number of daily page views for the Gateway nearly doubled from 2021 to 2022. 78.   Having updated Members on e-TRIPS usage, the report then addresses each TRIPS transparency mechanism in turn in section 3. 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), and then summarizes the submissions circulated since 1995, with an emphasis on those circulated in the last year. We identify discernible trends and offer supporting charts, graphs, and tables. I will highlight a few key points related to each transparency mechanism on the next few slides. 79.   First, with respect to notifications under Article 63.2 of the Agreement, it is evident that from 1995 through 2002 Members exerted significant efforts to submit initial notifications of their laws and regulations. However, given the ongoing nature of these obligations, and Members' continuously evolving IP systems, fewer notifications of subsequent and revised legislation have been received than would be expected. 36% of Members subject to the Article 63.2 obligation have not notified a new or amended law or regulation in over 15 years. 80.   Although the total number of submitted laws and regulations declined in 2022 after the United Kingdom completed its considerable two- year effort to update its legislation, 2022 saw a record level of Member engagement. More Members – 30, or 18% of the membership – notified a law or regulation in 2022 than in any year since 2004. The notifying Members come from diverse regions around the globe and are at different stages of development. Significantly one-third of those who notified a law or regulation in 2022 did so for the first time in 10 or more years – recognizing that it is never too late to reengage and reinvigorate the monitoring function of the Council for TRIPS. 81.   We also observed more activity in 2022 with respect to the companion checklist of issues on enforcement. The blue trend line on this slide, showing the cumulative number of Members who have submitted responses, is fairly flat from 2002, indicating that most Members submitted their initial responses over 20 years ago. The yellow trend line, showing the cumulative number of updates received, ticked upward in 2022 after two Members, Switzerland and El Salvador, updated their earlier responses – the first such submissions since 2019. 82.   The data also show that some contact point submissions may be in need of updating. Most Members under the obligation to notify contact points under Articles 69 and 67 of the Agreement have done so, but over 50% were submitted more than 10 years ago – and some date back over 20 years. Ten members submitted new or updated Article 69 contact points for cooperation on IP enforcement in 2022, 3 times more than in 2021. But only one Member, Austria, updated its contact point for technical cooperation under Article 67. 83.   In addition to notifications, the report also provides information regarding developed Members' annual reports and information submitted pursuant to built-in reviews. Developed Members are to submit annual reports on actions taken or planned in pursuit of their commitment under Article 66.2 to provide incentives to enterprises and institutions for the purpose of promoting and encouraging technology transfer to LDCs. Developed Members have also agreed to annually report on programmes and projects undertaken to provide technical and financial cooperation in favour of developing and LDC Members under Article 67. The report identifies the number of these reports that were received each year, as well as the frequency with which individual Members have submitted reports. During the 2022 reporting cycle, 16 developed Members reported programmes under Article 66.2, one more than the prior year, and 15 developed Members reported programmes under Article 67, two more than the prior year. 84.   The final transparency mechanisms addressed in the report relate 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. The data show only sporadic submissions since Members first agreed to provide information in support of these reviews over twenty years ago. In 2022, Switzerland submitted updated responses to the checklist of questions in the context of the review under Article 24.2. No responses were received to the checklist of questions in the context of the review under Article 27.3(b). There is potential for more engagement in both of these reviews – fewer than one-third of Members have submitted responses to the checklist established by the Council under Article 24.2, and fewer than one-sixth of Members have submitted responses to the checklists established under the Council's review of Article 27.3(b). 85.   Much more information on each of the transparency mechanisms introduced during this brief presentation, as well as information on less frequent ad hoc notifications, can be found in the report itself. Detailed tables in the Annex to the report supplement the main text by offering data by submission type and by individual Member. 86.   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.

12. The Council took note of the notifications and the statements made.
1. The Chair invited the Secretariat to update delegations on the notifications under various provisions of the TRIPS Agreement that had been submitted since the meeting in October 2022 and said he would then offer the floor to delegations wishing to introduce their notifications.
2. A representative of the Secretariat said that the Council had received the following notifications, under Article 63.2 of the TRIPS Agreement:
a. A number of the member States of the European Union had notified a significant number of primary and secondary domestic laws relating to the substance and the administration of their respective IP systems. These EU member States were Bulgaria, Latvia, Austria, Lithuania, Denmark, Italy, Portugal, and Ireland.
b. Canada had notified an amended set of patent rules.
c. Ukraine had notified two laws relating to geographical indications and a cabinet resolution addressing issues of the National Intellectual Property Authority.
d. Costa Rica had notified a significant number of laws and regulations relating to the entirety of its substantive IP system.
e. Japan had notified consolidated versions of the Trademark Act and the Designs Act.
f. Hong Kong, China had notified Rules and an Ordinance related to Registered Designs.
g. Chinese Taipei had notified its Copyright Act, its Patent Act, as well as Enforcement Rules of the Patent Act.
h. Saudi Arabia had notified the Law and implementing regulations relating to Arbitration. It had also notified Executive Regulations relating to the Copyright Law and the Patent Law.
i. Australia had notified amended Copyright Regulations which extend protection for secondary uses of foreign sound recordings to additional countries that provide equivalent protection to Australian sound recordings.
j. The United Kingdom had notified regulations related to the market organization and protection of agricultural products, food and drink after its withdrawal from the European Union.
k. The Gambia had notified its 2021 Intellectual Property Bill and related 2022 Regulations.
l. Korea had notified its Agricultural and Fishery Products Quality Control Act.
3. Ireland, El Salvador, the European Union and The Gambia had notified a contact point for IP enforcement under Article 69.
4. Austria, El Salvador, Botswana and The Gambia had also submitted new or updated responses to the Checklist on Issues of Enforcement.
5. The Chair invited delegations that had provided new or revised notifications to the Council to introduce those notifications. The representatives of Canada; the United Kingdom; Australia; Ukraine; Hong Kong, China; Korea, Republic of; Chinese Taipei; the European Union; Japan; Costa Rica; The Gambia; and the Russian Federation took the floor.
6. The Chair invited the Secretariat to introduce the "Annual Report on Notifications and other information flows" (document ).
7. A representative of the Secretariat took the floor.
8. The Chair thanked delegations for the information provided on their notifications and welcomed the information provided by the Secretariat. He noted that notifications to the Council were not keeping up with the actual development of laws and regulations relating to TRIPS and emphasized that Article 63.2 of the TRIPS Agreement 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. He 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 was established by the Council as an element of Members' notification obligations. He pointed out that the e-TRIPS platform made fulfilling these transparency obligations much easier.
9. The requirement included the notification of legislative changes made to implement the special compulsory licensing system to export medicines covered by Article 31bis of the TRIPS Agreement. More than 50 WTO Members, including most of the world's major exporters of medicines, had adopted implementing legislation that allowed them to use the System as exporters and/or importers. But only 21 Members, including the European Union, had formally notified such measures to the TRIPS Council. The notification of all relevant laws and regulations could assist Members in preparing for the potential use of the System, which was a matter of immediate practical concern. It would also help the Secretariat in its efforts to provide informed technical support to Members in this area.
10. A more comprehensive picture of how the special compulsory licensing system had been implemented in Members' domestic law could also help Members' on-going discussions about how this particular TRIPS flexibility worked in practice, and about the causes of any potential delays or hindrances in using the system.
11. The Chair recalled that all these notifications could be made through the e-TRIPS Submission System. E-TRIPS 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. The Secretariat was available to respond to any question in that regard.
12. The Council took note of the notifications and the statements made.
IP/C/M/107, IP/C/M/107/Add.1