IP And The Public Interest Premieres At WTO TRIPS Council Next Week

It has become a tradition at the World Trade Organization committee on intellectual property to have an agenda item on intellectual property and innovation, and next week’s meeting is no exception. More noticeable on the agenda of the committee next week is an item on intellectual property and the public interest that addresses compulsory licensing.

The next meeting of the Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) is taking place from 13-14 June.

Australia, Canada, the European Union, Japan, Singapore, Switzerland, Taiwan, and the United States have proposed a discussion on Intellectual Property And Innovation: Inclusive Innovation And MSMEs [micro, small and medium enterprises] and Growth.

According to the document [pdf] submitted by the group, MSMEs are not making use of intellectual property, irrespective of the country, although when they do, they “have often higher revenue per employee.” IP can be considered a key component for smart and sustainable growth, according to the document.

The document further details strategies and support measures which can be applied by WTO members to encourage and help MSMEs in the use of the IP system. Those include IP awareness raising, and improving coordination of IP support, and research and innovation funding schemes.

The group calls for countries to share domestic experiences and examples of successful measures.

TRIPS Flexibilities, Compulsory Licences

Brazil, China, Fiji, India and South Africa proposed an item on IP and the public interest. The document [pdf] submitted for the TRIPS Council consideration details the elements of the TRIPS Agreement that are safeguarding the public interest, in particular the flexibilities included in the TRIPS.

These flexibilities, the document says, “can be used to pursue public health objectives. However, to implement these flexibilities, action is needed at the domestic level by incorporating them into national IP regimes keeping in mind each country’s individual needs and policy objectives.”

The document remarks that many governments have not used the flexibilities due to capacity constraints or political pressure from states and corporations, as mentioned in the 2016 report of the United Nations Secretary General’s High Level Panel on Access to Medicines. Also highlighted in the document is “a slew of regional trade agreements containing ‘TRIPS plus’ standards of IP protection and enforcement,” affecting countries’ policy space.

Examples of TRIPS-plus standards particularly affecting the pharmaceutical sector, as described in the document, are the definition of patentability criteria, patent term extensions, test data protection, and the linkage of regulatory approval with patents and enforcement of IP rights.

The document suggests a discussion on national experiences about compulsory licensing, which allows a generic company to produce a patented product without the consent of the patent owner.

ASEAN Working on E-Commerce Agreement

Singapore, on behalf of the ASEAN members (Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Viet Nam), submitted a document [pdf] reflecting the discussions of a panel held during a UN Conference on Trade and Development (UNCTAD) event on electronic commerce in April.

The panel focused on how e-commerce trade rules help developing country MSMEs.

According to the document, there is scope for further work in the WTO on e-commerce, including on clarifying new concepts, such as digital products, in the context of the WTO framework.

The document also lists challenges faced by developing country MSMEs such as the lack of infrastructure and knowledge, regulatory barriers, limited electronic payment options, and limited access to enabling services, such as postal, express delivery services, e-commerce platforms.

ASEAN set up a Coordinating Committee on Electronic Commerce in November 2016 to coordinate efforts to promote greater digital connectivity and expand opportunities for trade, including for MSMEs in the region, according to the document, which says that ASEAN is working towards an ASEAN Agreement on E-Commerce.

Regular Items

Also on the TRIPS Council agenda is a set of standing agenda items, such as the review of Article 27.3(b) relating to the patentability of plants, animals, and essentially biological processes, and the relationship between the TRIPS Agreement and the Convention on Biological Diversity.

Those two items have been discussed for years, without consensus on the outcome.

Another topic, which so far has not found agreement, is whether the non-violation complaints should apply to intellectual property. Non-violation complaints relate to disputes between members in cases where a member considers that another member’s actions have led to loss of expected benefits, despite not breaching a WTO agreement.

A moratorium has been extended from one ministerial conference to the next, without a resolution on whether it should be indefinitely extended or ended.

 

Image Credits: Catherine Saez