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

Ambassador István Major (Hungary)
Korea, Republic of
121. The representative of Korea said that, while awaiting the Secretariat's factual background note, her delegation wished to express its initial views on the matter. The TRIPS Agreement provided for minimum standards of protection of intellectual property rights which were of a prohibitive, private and contractual nature and Members were free to determine appropriate methods for implementing the TRIPS Agreement's provisions within their respective legal system and practice. Given this, it might be difficult to determine whether such rights were being nullified or impaired by a government measure. As these rights were to be enforced under domestic legislation after incorporation of the enforcement provisions of the Agreement, the right holder could have recourse to domestic courts in respect of benefits derived from protection to be provided under the Agreement, if these were believed to be nullified or impaired by any government measure or if such measures were not consistent with the related domestic laws and regulations implementing the TRIPS Agreement. In addition, the Member government of which the right holder was a national could have recourse to the DSU for any lack of proper protection under domestic legislation in a violation case. In the view of her delegation, opening the window to non-violation complaints under the TRIPS Agreement might contradict or undermine the spirit of the TRIPS Agreement as a minimum standard Agreement, as stipulated in Article 1 of the Agreement. Therefore, it was the preliminary view of her delegation that it would not be necessary to provide for the non-violation route in the TRIPS area. Moreover, she recalled the view expressed at the informal meeting of the General Council the previous week that, during the moratorium period of Article 64.2, developing countries were still benefiting from a transitional period and that it was difficult for them to assess the possible advantages or disadvantages of the application of non-violation complaints by the end of the transitional period. As Members had only limited experience with regard to non-violation complaints with regard to intellectual property protection, it was unreasonable to simply let the moratorium expire at the end of the transitional period. Members should be extremely careful when committing themselves to a binding rule when they did not have a clear picture as to how such a rule would work.