150. The representative of Australia expressed his delegation's appreciation for the many substantive contributions made, singling out the interventions made by the delegations of India and Brazil which his delegation found very thoughtful and thought-provoking and said that his delegation shared with many delegations the fundamental interests that had been described. Australia had concerns about the protection of traditional knowledge; it had a rich indigenous cultural heritage, which it would like to see appropriately preserved and protected. Similarly, because of its rich biodiversity, it had an interest in appropriate benefit-sharing of the use of genetic resources. Equally, at a policy-making level, there were, in Australia, concerns about the appropriate balance of interests in the protection of intellectual property in the field of biotechnology. These concerns were that biotechnology research should serve the broader interests of the community and how the intellectual property system could be more effectively used in a balanced way to achieve such objectives. Australia was also deeply attuned to the concerns of developing countries in this area. It was a priority in its technical cooperation activities to provide the necessary tools to build up the sort of capacity mentioned by India to make more effective use of the system in the area of biotechnology. Australia therefore welcomed the prospect of a wide-ranging discussion on the issues that had been advanced, mirroring the considerable debate and policy analysis that was being conducted on each of these issues in Australia and many other countries. It was Australia's belief that the Council for TRIPS had a valuable role to play in shedding light on these issues and in looking for practical and equitable responses to the concerns raised. The six clusters of issues identified by the Chairman in March 2000 were all highly topical and of keen interest to Australia and many other Members.
151. Australia supported the development of a comprehensive, inclusive debate about the interaction between the TRIPS Agreement and the vital topics raised. Rather than leave these issues, which touched on the TRIPS Agreement, to other international fora and international commentators to consider, Australia would suggest that the Council for TRIPS take a more active role in considering these interactions. However, to make this process more productive and inclusive, the Council might need to come to a clearer idea of how the review under Article 27.3(b) would interact with the broader review under Article 71.1. For the convenience of delegations and to save time, he would respond to the broader issues that had been raised under the present agenda item, even though his delegation held the view that the range and importance of these issues were too extensive to be productively managed under this agenda item alone; some more productive division of labour would need to be considered between the review of Article 27.3(b) and the broader review under Article 71.1. One possible approach would be to distinguish between the "technical" issues of Article 27.3(b), including the subject-matter already covered by the questionnaire (IP/C/W/122), and the broader issues that had been raised.
152. Continuing, he said that Article 27.3(b) concerned an optional exception to the scope of patentable subject-matter, an option exercised to various extents by Members, and an optional requirement, very generally expressed, for an effective sui generis form of plant variety protection. The issues and concerns raised under the present agenda item clearly went far beyond that limited scope and related to a wide range of TRIPS provisions, including those not relating to patents. For example, the debate about the interaction between biotechnology, genetic resources and intellectual property rights concerned the definition of an invention, including the distinction between an invention and a mere discovery and the application of the criteria of novelty, non-obviousness and industrial applicability in the biotechnology sector. In this connection, the degree of inventiveness called for in the extraction of genetic information was, for example, a matter that aroused concerns about misappropriation of material in the public domain; about the nature of the novelty criterion in the field of biotechnology; about the tendency to seek patents that were too broad in scope; and about the application of Article 27.1. The concerns expressed about ethical exceptions to patent protection or exceptions relating to environment and health raised questions related to the interpretation and application of Article 27.2. Other concerns expressed involved the rights conferred upon patent owners as stipulated in Article 28, in particular in the light of claims of ownership of genetic material; the obligation for adequate disclosure of inventions as required under Article 29; and the exceptions to patent protection foreseen under Article 30, in particular those research, education or prior use. These were all important aspects to be taken into account in balancing the interests in the area of biotechnology. Beyond the patent system, there were calls for a specific protection of traditional knowledge which, in Australia's experience, involved a wide range of elements of the TRIPS Agreement, such as the application of copyright and related rights, or the use of trademarks and certification marks, for example in relation to geographical indications. There were also calls going beyond what was currently contained in the TRIPS Agreement, such as those for the creation of an entirely new form of intellectual property right, to be enshrined in international law.
153. In connection with the application of Article 27.3(b), he emphasized the importance of Article 67. For Australia, this was a priority area in its technical cooperation programmes in the Asia Pacific region. A modular training package relating to intellectual property in the field of biotechnology would shortly be made available to Australia's partners in the Asia-Pacific region; other Members would be most welcome to make use of it, if it were of interest to them. With regard to the concerns that patents might be used to withhold access to important technologies, he referred to the possibility to adopt measures as addressed in Article 40 or under Article 31 of the TRIPS Agreement. Commenting on the concern raised about the time and costs involved in opposing a patent application, he referred to the obligation under Article 62.4, which laid down obligations in respect of these matters in administrative procedures, such as opposition procedures. Calls had also been made that the protection of intellectual property should serve the purposes set out in of Article 7 and that there was, within the TRIPS framework, scope for measures to protect public health and nutrition, in particular in Article 8.
154. On the linkage between the TRIPS Agreement and the CBD with regard to the issue of benefit sharing, he recalled that his delegation had submitted a paper on Article 71.1, in which it was suggesting that the Council for TRIPS might take a more active role in exploring a best practice model for implementation that took into account these concerns. National experiences might shed some light on these broader issues. He referred to a recent report, drawn up under the authority of the Australian Ministry of Environment, on a regime on access to biological resources. It made recommendations related to Article 71. As a key element, the report envisaged a plan that would regulate access to genetic material, plants and animals and would deliver substantial benefits to industry, to the environment and above all, to indigenous communities. In announcing the results of an enquiry, the Minister of Environment had made a special note concerning the important role played by indigenous communities. As regards the issue of biological resources, he noted that, if knowledge of biological resources was used by others for commercial benefit, then any future access regime would need to ensure that the benefits arising from the use of indigenous knowledge be shared with the relevant indigenous communities. The proposed scheme would set out an elaborate system concerning the way this might operate. Concerns about primary producer access to gene technology and appropriate use of biotechnology had been the subject of another Parliamentary report, which also contained detailed recommendations on how the various interests and concerns of the users and producers of technology could be balanced. This might help to shed light on how the implementation of the TRIPS Agreement could be carried out. Another point of possible interest to the Council for TRIPS was the active role taken by Australia in relation to the WIPO program on traditional knowledge: Australia was one of the three countries chosen as a subject of case studies, because of the number of its existing programs and activities as well as recent legal developments that could help to shed light on how traditional knowledge might be protected. The case study concerning Australia covered a wide range of issues, in particular the extension of copyright and related rights to traditional knowledge; the use of the tort of passing off in that area; forms of licensing; and recent developments of copyright law which allowed for punitive damages to apply in case of offensive misuse or culturally insensitive misuse of indigenous knowledge. Australia was not only taking into account economic factors but also potential cultural offences. Other elements of the case-study included the use of design law or the use of the trademark system. In this connection, he referred to the national label of indigenous authenticity registered as a certification mark by the national indigenous artist association of Australia for indigenous arts and other products. Australia wished to stress the urgency for Members to explore how these issues could be more effectively addressed at the national level and was of the view that it would be appropriate for the Council for TRIPS to do so as well but, given their wide ranging nature, under Article 71.1.
