34. The Council has had on its agenda for some time the question of timeliness and completeness of notifications and other information flows. This was initially put on the agenda as a separate item following a request by the Chair of the General Council in 2009. Several updates were given since then and it was later agreed by the Council that this matter would continue to be addressed under the regular agenda item on notifications. The report in 2009 prepared by the Secretariat (document IP/C/W/543) was a summary of the state-of-play at that stage, an overview of the notification procedures and a summary of the notifications of that had been received by that date. As we are now approaching five years from that point and we are preparing for the implementation of a more modern IT-based means of working with this information, it is probably timely to review the state-of-play; we are indeed in the process of updating that document.
35. The basic approach established by this Council for notifications under TRIPS – agreed nearly 20 years ago, in 1995 (document IP/C/2) - was that Members would notify their laws and regulations without delay, normally 30 days after the entry into force of the relevant measure for that Member. Subsequent amendments of laws in the field of intellectual property, would be notified 30 days after the entry into force of amended laws, or after 60 days if a translation was needed. Also the guidelines provide that Members may choose to notify laws even in advance of the entry into force of the relevant parts of TRIPS on a best-endeavours basis. They also provide some provision for a brief description of relevant laws: indeed the kind of information that has just been provided to the Council by several Members. I would note that this is becoming increasingly useful as the pattern of notifications we are receiving generally no longer concerns the primary law, for example, a Member's patents act or the trademarks act as such, but rather amendments to or revisions of that law; it can be difficult, if one is not an expert, to grasp the importance of an amendment to a patents act without a brief description that helps us understand what has been amended.
36. To review the current state-of-play, 133 Members have made notifications of laws and regulations under TRIPS. Some 113 have provided answers to the Enforcement Checklist which the Council established in 1995 as part of the notification process. The Members notifying laws include a number of LDCs which are not obliged to notify at this stage, but are following that best endeavours guidance referred to earlier. In the most recent notifications, the practice varies very widely – we have received some updated notifications this year, but in some cases the most recent notification was in 1996 despite a wide range of activity since then. 19 Members have not made an update since 1999 and 89 have not made an update since 2009 when the last review took place. On average the most recent notification was received in 2005. The pattern of notifications received varies considerably, ranging between 1 and 25 separate notifications with an average of 5 per Member. Overall 56 Members have made one initial notification, and none since then.
37. We do see a very wide variation of experience in the process of notifying laws and regulations. As a Secretariat we have been turning our minds to how to make this a more straightforward exercise. The request from the General Council was to enhance the timeliness and the user-friendliness of the system. Given that the system was established in 1995, we all have developed more modern ways of working with this kind of data, and indeed we have updated the Council from time-to-time on the progress towards a more user-friendly tool, so that Members can notify with less paperwork, with less uncertainty about the exact procedure. This has led to a proposal for a voluntary reporting tool supplementing the existing WIPO-WTO Portal which is itself an optional reporting tool. This reporting tool would enable us to capture the data more clearly, and it would clarify what Members have to provide when they are notifying laws. This would reduce time for Members, in particular, in verifying and clarifying the notifications received, because this does still constitute a very active role for the Secretariat to ensure the correct handling of notifications. If we did have an established reporting format, that would certainly simplify that process for Members notifying their laws. In addition, it would streamline the handling of data, and enable us to have a more consistent format for reporting to the TRIPS Council. At the moment, there is considerable variation in the documents' structure, and the content of the documents that are circulated under this item, reflecting the great diversity of approaches that Members have taken. So this would make it easier to track, to understand the state-of-play, particularly as we enter a distinct phase in the implementation of TRIPS where it is decreasingly about the implementation of the initial portfolio of laws and increasingly about the kind of updates and amendments that we have just heard about from a number of Members. In particular, this would lead to facilitated access for the laws themselves, while, at the moment, it can be tricky to track down and access the notified laws, a number are in very lengthy pdf documents - in some cases still image pdf documents which are very difficult to use as legal texts. We are working to capture that backlog. We do hold paper records, paper files of these documents, but so far we have had literally no requests to make use of that resource, so clearly the preference is for a more user-friendly online arrangement. This would apply also to the questionnaires and the enforcement checklist which are agreed as part of the notification and review functions of the TRIPS Council: again we are working to develop more modern, identifiable online versions of those materials. I should stress that none of these developments affect in any way the content or the nature of the obligations or the procedures for notifications or the review process. It is simply to make sure that we can capture and work with the data in a way that is more suited to the way in which everyone works with data today, rather than the paper-based approach that was appropriate nearly 20 years ago.
38. So the plan is to develop a prototype over time, guided by feedback from Members at a practical level to make sure that it is a workable tool. At this stage we would be inviting interested Members to make use of the prototype which will be available shortly to update their notifications. We hope very much that this will assist in the progressive transition of this important area of our work to a more modern information management system for the wide and extensive amount of TRIPS-related data that we are working with. We hope that this will lead to a more accessible and more user-friendly resource for Members to make use of as the TRIPS Agreement approaches its 20th anniversary.
