TRIPS Council: Differing Views On IP Education; New Database Project Launched

Discussions on the worth of intellectual property for innovation and development have been a recurring agenda item during recent meetings of the World Trade Organization committee on intellectual property. This week, education and how it can raise awareness of IP was discussed with WTO members presenting their national experiences, and some developing countries warning against colluding IP and innovation.

The session of the WTO Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) was a short one, with the meeting adjourning on the first (1 March) of two scheduled days. The next meeting of the TRIPS Council is on 7-8 June.

Separately, the WTO is working on a “e-TRIPS Database,” project, which was presented to members in a dedicated meeting on 2 March, and is expected, when functional, to facilitate notifications of members about their IP laws, and allow searches.

IP Education

According to a WTO source, a number of countries offered their experiences on “Education and Diffusion,” a topic which had been proposed by Australia, the European Union, Switzerland, and the United States, sponsored by Japan, Peru, Russia and Singapore.

Apart from the countries submitting the agenda item and their sponsors, Hong Kong, China, Russia, Australia, Costa Rica, Canada, India, Bangladesh, South Korea, Nigeria, and Brazil describing their IP awareness-raising experiences, according to the WTO source.

Ideas raised included setting up innovation centres, organising a competition for journalists reporting on IP, and using social media to raise IP awareness, said the source. According to a developing country source, developed countries in general insisted on the role played by education on IP.

The WTO source said some countries questioned the idea that innovation can only be promoted through IP protection, and argued that open access would also spur innovation.

For example, in his statement, the Brazilian delegate said that the protection of IP is “only one element in a large mix of factors that lead to a favourable environment for innovation.” More important elements include the quality of education, the adequate infrastructure, collaborative research system “with dynamic flow of ideas and access to knowledge.”

An IP system granting broad rights can in fact “be an obstacle to the development of innovation,” the Brazilian delegate said, adding that low quality of patents can be harmful for innovators.

Non-Violation Complaints

Those complaints arise when a country challenges another country’s actions which it feels is detrimental to its economy, even though no actual WTO agreement has been violated.

Non-violation complaints currently cannot be brought under TRIPS, as a moratorium is in place which has been extended several times. At the last WTO Ministerial Conference in Nairobi in December 2015, the moratorium was once more extended until the next Ministerial Conference in 2017, in the hope that the TRIPS Council can come to agreement on whether the moratorium should be lifted or be made permanent.

Developing countries and most developed countries are in favour of making the moratorium permanent. The United States and Switzerland have been against that option.

The rationale of a group of developing countries is explained in a revised document [pdf] from 27 May 2015, first submitted [pdf] on 30 October 2002 by 14 countries, which were joined in the revision by China, Indonesia and Russia.

According to proponents of the paper on non-violation complaints, those complaints under TRIPS might limit the use of flexibilities inherent in the TRIPS Agreement. According to the WTO source, the US and Switzerland said that the rules only allow non-violation cases when a measure is unforeseen, whereas the use of TRIPS flexibilities was foreseen in TRIPS.

Brazil, one of the proponents of the paper, explained in its statement that non-violation complaints would require “one WTO member to compensate another for measures that adversely affect foreign holders of intellectual property rights, and that were not foreseen during the Uruguay Round.”

“Such an approach would arguably cover a range of domestic measures, may undermine the Agreement’s flexibilities, including in the area of public health, and could affect the enjoyment of WTO Members’ sovereign right to develop new laws to protect the public interest,” Brazil said.

Nay on Nagoya; Disclosure Sent to WIPO

The agenda also included regular discussions on the relationship between the TRIPS Agreement and the UN Convention on Biological Diversity (CBD), and the request by some developing countries that the CBD present its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization. According to sources, some developed countries continued to oppose the request.

Another issue was in relation to IP and genetic resources, traditional knowledge and folklore. Some developing countries have been requesting that the TRIPS Agreement be amended to make mandatory the disclosure of origin of genetic resources in patent applications. According to the WTO source, a few countries resisted, saying the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) was best suited for these discussions.

The IGC has been discussing the issue for well over 10 years with no agreed solution in sight. The last meeting of the IGC in February yielded no results, to the growing frustration of developing countries (IPW, WIPO, 22 February 2016).

e-TRIPS Database

According to WTO sources, the “e-TRIPS database” project has been developed with the aim of improving the notification process by members. WTO members are expected to notify changes and amendments in their IP law to the WTO, as noted is Article 63.2 of the TRIPS [pdf].

The currently named “e-TRIPS database” will provide an online submission gateway, but would maintain the possibility to make submissions under other forms. The database will also allow searches and in time will eventually be available to the public, according to WTO. The information gathered over the last 20 years will be uploaded into the database, the WTO source said.

The system is currently being tested and the actual date of entering into function of the system is uncertain at this time, according to WTO sources.

According to a WTO source, “a central principle of the TRIPS Agreement – as for the WTO more generally – is transparency.” In practice, transparency takes many forms under the TRIPS Agreement, “including the notification of many thousands of laws and regulations which give a unique vantage point from which to survey the evolution of IP law and policy in over 130 different jurisdictions,” the source told Intellectual Property Watch.

“However, as this material was initially collected and distributed in the form of paper documents, it has been increasingly difficult to track and consult the information provided,” he said. “Hence, a major effort has gone into transforming this rich vein of data into a more user friendly and accessible information service, ensuring that the principle of transparency is put into practice in a way that is much better adapted to the way people expect to consult and work with information today.”

 

Image Credits: Catherine Saez