73. The representative of Australia believed that, given the short time-frame left for discussion on these matters, it would be useful to focus on some substantive issues, and that the Work Programme provided an opportunity for Members to consider a general common position on the operation of TRIPS provisions in the digital environment. It might also create avenues by which to pursue, if necessary, clarification or amendment of, or addition to, specific existing provisions in order to create certainty regarding their application. Welcoming the Secretariat's factual background paper on TRIPS-related electronic commerce issues, she felt that the note's comprehensive outline of the issues, and detailed account of relevant existing provisions and their possible limitations in the digital environment, provided an excellent basis for Members to assess where the current rules applied, and where the gaps and limits to those rules arose. Her comments were intended to indicate some areas where Australia believed there was potential for the Work Programme to lead to outcomes which contributed to clarification of how TRIPS provisions applied in the digital environment. In addition to suggestions on general principles, her comments intended to highlight specific points of substance on which Australia placed priority, and where further discussion would be useful. Such discussion could focus first on Members' views on the substantive issues involved, in the context of national experience to date, and second on the options available to deal with them.
74. She supported the Secretariat's statements regarding the applicability to electronic commerce of the traditional objectives of the intellectual property system, and the relevance of TRIPS provisions in the digital network environment. This was in line with the Work Programme's general premise that electronic commerce was simply another means of transacting commerce: it was not different in kind from other forms of international commerce. The corollary was that all WTO commitments relating to trade, including rights and obligations under the TRIPS Agreement, applied regardless of whether trade was conducted electronically or otherwise. In particular, her delegation emphasized the fundamental importance of the WTO principle of non-discrimination, and its role as a ready-made facilitator of electronic commerce. From the perspective of both intellectual property and other WTO disciplines, non-discrimination established the basic framework by which to ensure that borderless commercial exchanges were conducted fairly and freely. So too did the technology-neutral character of the rules. In addition to this general principle, it was also important to acknowledge that trade conducted electronically generally had a high intellectual property content. The high level of engagement of intellectual property rules by electronic commerce, and the increasing magnitude of this means of conducting trade, placed greater emphasis on ensuring the effective implementation and enforcement of the existing TRIPS provisions. Developing effective enforcement measures for the digital environment in turn created significant challenges. Some of these had been addressed in the 1996 WIPO treaties on Copyright (WCT) and Performances and Phonograms (WPPT). There was, however, an ongoing need for Members further to explore available options, in the context of practical experience. In this regard, she submitted that the terms of Article 69 of the Agreement, relating to international cooperation to eliminate international trade in goods infringing intellectual property rights, should be interpreted to include infringements occurring in the electronic environment. Australia believed there was much to be gained from the exchange of information on electronic trade in infringing goods, and invited other delegations to come forward with national experiences in this regard. The creation of an informal database of the practical problems experienced by Members would be a useful basis for ongoing discussions on how best to tackle the issues. As electronic commerce would grow in magnitude, and if countries were fully to take advantage of the potential benefits of trade conducted electronically, there would be an increasing need to gain the benefits of moving towards technology convergence. This kind of environment had the potential to create more dilemmas over jurisdiction-based arguments, such as exhaustion of rights.
75. As regards new technologies and access to technology, she said that electronic commerce technologies had vastly improved global access to technological information in patent documentation. The whole fee structure with regard to access to patent documentation had been revolutionized by its availability on the Internet. Researchers and other interested parties in any part of the world were now able to access patent documentation free, 24 hours a day. The TRIPS-style system of facilitating the flow of technological information had been vastly enhanced by electronic commerce. The changes brought by electronic commerce were particularly beneficial to, for example, SMEs and developing countries. Further, the fact that the patent system might, under the TRIPS Agreement, extend to new technologies, for example computer software, had led to increased accessibility to state-of-the-art technologies in rapidly advancing areas. This quality of the patent system represented a considerable improvement over the now quite outdated trade secrets framework. It had shifted the balance between the protection of rights and disclosure of information in favour of the user.
76. On copyright, she said that her country was well advanced in the development of legislation to implement the provisions of the 1996 WIPO Copyright Treaty (WCT). She noted that the support for the new WIPO treaties, as measured by signature and ratification/accession, was not confined to any one economic or geographic group, suggesting that there could in time be broad support. This, and the need under the Work Programme to avoid duplication of work that was being or had been done in other bodies, provided compelling reasons seriously to consider how the provisions of the two treaties related to the TRIPS Agreement and how they might be used further to enhance the relevance of the Agreement in the digital environment. As regards the right of reproduction, the Secretariat's paper included a reference to the agreed statement concerning Article 1(4) of the WCT, which clarified that storage of a protected work in digital form in an electronic medium constituted a reproduction within the meaning of Article 9 of the Berne Convention. She submitted that this was a useful clarification, of relevance to the interpretation of the TRIPS Agreement in the digital environment. She urged Members to consider options as to how the substance of this agreed statement might be extended to the Agreement. On collective management of copyright, she noted that electronic commerce technologies might provide more cost-effective means of organizing rights clearance. This was an area where Australia considered that further discussion could be particularly beneficial.
77. As regards trademarks, Australia considered that there was a need to clarify what constituted use of a trademark on the Internet. This was relevant in the context of both defining trademark infringement in the digital environment, and determining what would qualify as "use" for the purposes of the requirement that a trademark be used in order to preserve its rights. She also considered that there might be a trademark use issue related to the classification of goods and services in the digital environment, namely whether a trademark had been used (in the relevant sense) in respect of goods or services, or both. While the obligation to protect trademarks, especially well-known marks, applied in the digital environment, she submitted that the obligation should not be applied in a way that extended the effective scope of protection available in the conventional commercial sphere. An appropriate balance must be struck between the interests of the trademark owner and those of other traders. She noted the current WIPO international process on domain names. If the outcomes of this process, which had been both geographically inclusive and had canvassed the views of all interested parties, attracted widespread support, she would submit that this could serve as a useful basis for consideration of trademark/domain name issues by the Council.
