WTO Reports On IP Trends In G20 Countries 21/06/2016 by William New, Intellectual Property Watch Leave a Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)As part of a larger report on the G20 top global economies, the World Trade Organization has provided a discussion of policy developments in trade and intellectual property. This includes a look at international policy actions, recent agreements, and national legislation and trends. WTO news logo The WTO report is available here [pdf]. The WTO press release is available here. Overall, the WTO found that G20 trade restrictions have reached the highest monthly level since the crisis around 2008. On IP, among other data, the report below shows there were 143 bilateral and regional trade agreements with IP provisions in them as of 2015. Another point is that difficulties continue in collecting and measuring data on trade in IP “despite the economic significance and commercially disruptive effect of this trade,” WTO says. The full section (5) on IP and trade is provided below: 5 POLICY DEVELOPMENTS IN TRADE AND INTELLECTUAL PROPERTY 5.1. The two decades since the WTO TRIPS Agreement entered into force have seen significant developments in the interplay between patterns of trade and trade policy, on the one hand, and the intellectual property (IP) system on the other. The ways in which international trade and the protection and enforcement of IP interact have grown and diversified in recent years. The linkages between the IP system and the trading system are too complex and multifaceted to be categorized necessarily as facilitating or restricting trade; for instance, a balanced system for protection and enforcement of IP will facilitate legitimate trade while ensuring measures against illegitimate, infringing trade, particularly counterfeit trademark goods and pirated copyright goods. From a broader trade policy perspective, the G20 has recently considered the relationship between trade, productivity growth and the linkage between innovation and the IP system.83 This section looks to provide a broad account of trade-related developments in IP as well as an overview of the specific trends and areas of current interest to G20 Members in this area. IP Developments and Trade 5.2. Some IP-related developments can have direct bearing on opportunities for trade in particular sectors. A current example, significant for the TRIPS legal framework and important from a public health policy perspective, is the Article 31bis amendment to the TRIPS Agreement agreed by WTO Members: when it enters into force, this will consolidate a new legal pathway for exports of generic medicines in contexts specifically to meet the needs of those countries that are especially dependent on international trade to source their pharmaceutical needs. All G20 members have accepted this amendment, and the majority of them have introduced measures to enable exports under this system, bringing under the system the bulk of the globe’s production and export capacity in the pharmaceutical sector. 5.3. International treaty developments in other forums also potentially flow through to changes in Member’s IP systems, with a bearing on trade. A recent multilateral example is the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled (‘MVT’), concluded in 2013 under the auspices of the World Intellectual Property Organization. Among other things, the MVT facilitates international trade in published works and is designed to be accessible to the visually impaired, by requiring Contracting Parties to allow the import and export of accessible format copies under certain conditions. All G20 Members have signed the MVT, and a number have ratified and implemented its provisions, contributing to its expected entry into force and full operation in the near future. 5.4. Another system-wide development concerns the wide range of bilateral and regional trade agreements that include provisions on IP. As of 2015, the WTO RTA Database contains 143 RTAs that incorporate such provisions, with a number of G20 economies particularly active. Such RTAs provide, for instance, for IP enforcement measures covering the on-line environment or applied at the border; provisions with bearing on the examination and administration of industrial property rights; the scope of rights accorded to IP holders; and the substantive standards defining the eligibility for protection of certain forms of IP subject matter. Some also deal with the question of exhaustion of IP rights, thus defining the scope for parallel trade determined by specific, distinct areas of IP rights. 5.5. A key exogenous factor driving developments in the linkage between IP and the trading system has been technological change, especially evolution in and the global dissemination of information and communication technology. The widespread availability of new technologies has led to new forms of trade in IP-rich goods and services, and has created entirely new consumer markets for IP content that can function without any physical medium.84 Further, by enabling… [Footnotes] 83 OECD and IMF, Inclusive Global Value Chains, Report to the G20, September 2015. 84 For instance, at the time of the TRIPS negotiations, international trade in musical and audiovisual works, consumer software, and publications, was almost entirely conducted by means of tangible carrier media (such as discs and the printed page) that were transported physically across national borders, and could be counted and assessed for duty as imported goods. Today, a significant proportion of what could be termed “consumer trade in IP” – international transactions that entail an individual consumer paying for specific access [footnotes continued further below] …disaggregated product development and production chains, technological change has accentuated the significance of IP-related inputs as an element of global value chains (GVCs). As the trade and development significance of participation in GVCs is increasingly recognized, closer analytical work will enable a clearer understanding of the significance of IP transactions – such as licensing of technological and design inputs, and branding – as important early and intermediate links in GVCs. A recent G20 report has highlighted the significance of innovation and technology adoption in ensuring the trade and development benefits of participation in inclusive GVCs, including through developing and implementing rigorous intellectual property legislation.85 5.6. Traditionally, the measures that have been considered to have the most direct linkage between IP and trade are those that deal with trade in goods.86 Although imprecise, measurements of trade in certain categories of IP-intensive goods have been used as a proxy for assessing the growing significance of IP in international trade – for instance, the World Bank category of “high technology exports” with high R&D intensity, such as aerospace, computers, pharmaceuticals, scientific instruments and electrical machinery. The proportion of such exports in G20 export profiles varies considerably, with China, France and Korea, Rep. of, each reporting that these exports exceed a quarter of their trade in goods and the Russian Federation registering the greatest growth in this index from 2011-2014. The predominant share of exports of IP have traditionally been enjoyed by major developed economies, but there is a recent trend towards diversification of this trade, particularly among the BRICS economies.87 Work has been under way to improve the precision and coverage of recorded trade in IP, but difficulties remain in collecting data for intangible cross-border exchanges compared to statistics on IP embedded in physically traded goods such as books, other publications and recorded media. Hence, considerable gaps are apparent in the coverage of statistics on international transactions for IP despite the economic significance and commercially disruptive effect of this trade. Trends and Areas of Interest in IP – Trade Policy Reviews 5.7. This dynamic and diversifying growth in international transactions involving IP content, and the impact of technological change on the IP system, have had some impact on national and international policy and legislative processes. G20 Members have recently reported significant developments in this area to the TRIPS Council – for instance, Canada and the Russian Federation have notified and discussed current enhancements to their legal frameworks for the enforcement of IP rights, including in the on-line environment88, and Japan has notified and reported on a significant overhaul of its protection of trade secrets.89 The Republic of Korea reported amendments to its patent laws implemented to improve access to medicines, including trade in medicines under the system to promote access established in line with the Doha Declaration on the TRIPS Agreement and Public Health.90 5.8. Recent trade policy reviews have shown strong interest among WTO Members in a wide range of IP-related legal and policy measures implemented by G20 Members. The following attempts to provide a broad outline of the IP related issues which have been raised during some of the most recent TPRs. 5.9. Trade policy reviews have touched upon Members’ policies concerning exhaustion of IP rights and parallel importation. Sectors of particular interest have included parallel importation of pharmaceuticals and the application of parallel importation mechanisms for publications also to digital versions. Many exchanges in trade policy reviews concern enforcement mechanisms for IP rights. These have covered the scope, impact and extent of use of border control measures covering infringing goods, including counterfeit trademark goods and pirated copyright goods, and including goods in transit. Recent interest has also been shown in the nature and frequency of… [Footnotes cont.] to and use of a distinct copyright work – is now conducted on line in intangible form, effectively redefining what amounts to “trade” in these sectors. 85 http://www.g20.org/English/Documents/PastPresidency/201512/P020151228381283128243.pdf 86 In view of the fact that many traded goods embody various categories of IP rights, and traded goods may also constitute infringement of IP rights: the border measures stipulated in TRIPS refer in particular to two categories of goods, namely counterfeit trademark goods and pirated copyright goods. 87 WTO, Changing the Face of IP Trade and Policymaking: TRIPS Agreement, 2015 88 IP/C/M/79/Add.1, p 3; IP/C/M/77/Add.1, p 6. 89 IP/C/M/79/Add.1, pp 3-4. 90 IP/C/M/79/Add.1, pp 5-6 [end footnotes] …civil and criminal actions to protect trade secrets. Trade policy review discussions have also considered the role of the courts, programmes to improve the expeditious handling of civil and criminal IP matters, the scope for specialist IP courts and related statistics on aspects of enforcement. 5.10. The role of alternative dispute resolution (arbitration and mediation) for IP matters and the interaction between competition policy and enforcement of IP rights have also been prominent topics of discussion. Reflecting the significance for IP enforcement of the digital environment, WTO Members have considered the scope of on-line enforcement measures, particularly for copyright works, the application of technological protection measures for copyright works and the use of holograms and similar mechanisms to authenticate legitimate copyright works. Equally, they have discussed programmes for promoting consumer awareness to reduce demand for pirated and counterfeit products. The administration of IP rights has also received considerable attention in TPRs. Recent TRIPS notifications have included measures to streamline industrial property application procedures and to facilitate electronic filing, as well as new measures on time limits and for post-grant opposition. 5.11. Concerning substantive areas of IP law and policy, WTO Members have discussed patents, undisclosed information, trademarks, geographical indications, and copyright. Trade policy review discussions have covered the protection of traditional knowledge and genetic resources in domestic law, and the use of related patent disclosure mechanisms. Different approaches to the protection of clinical trial data, including terms of exclusivity, have also been discussed. 5.12. Finally, in the TRIPS Council, notifications have covered protection of non-traditional marks such as motion and sound marks. Members have explored different approaches to the protection of geographical indications, including in the context of bilateral agreements and specific forms such as appellations of origin. A number of bilateral agreements on the protection of geographical indications have been reported to the TRIPS Council in the context of its review of the implementation of geographical indication protection. The wide range of copyright matters raised in the TRIPS Council have included issues concerning on-line and digital environment, the recognition, role and competition aspects of copyright management organizations, levies on recording media, the use of optional registration systems and compulsory licensing arrangements for translations of copyright works for educational and similar purposes. They also discussed copyright administration within the context of regional integration agreements. 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