WTO Activities

The World Trade Organization (WTO) describes its main function as 'to ensure that trade flows as smoothly, predictably and freely as possible'. As at 11 January 2007, the WTO has 150 members. Some international intergovernmental organisations are also granted observer status to WTO bodies. The impact of the WTO on intellectual property occurs chiefly through the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), concluded in 1994 and effective from 1 January 1995. The TRIPS Agreement is administered by the Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS Council). New Developments European Parliament adopts a resolution on the TRIPS Agreement and access to medicines On 12 July 2007, the European Parliament adopted a resolution which stresses the importance of the Doha Declaration on the TRIPS Agreement and Public Health. The Doha Declaration allows developing countries to manufacture genetic substitutes for patented medicines and was adopted in November 2001 by the Ministerial Conference of the World Trade Organization. The European Parliament asks the European Council to ‘meet its commitments to the Doha Declaration and to restrict the Commission’s mandate so as to prevent it from negotiating pharmaceutical-related TRIPS-plus provisions affecting public health and access to medicines’. In addition, the Council is called upon to encourage research, technology transfer, capacity strengthening and registration ‘in order to facilitate and increase the production of pharmaceutical products by the developing countries themselves’. To access the resolution, click here DFAT seeks comment regarding acceptance by Australia of Protocol Amending TRIPS Agreement The Department of Foreign Affairs and Trade (DFAT) is seeking views on acceptance by Australia of the Protocol Amending the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). The proposed amendment is to allow WTO Members with insufficient manufacturing capacity to import patented pharmaceuticals made under compulsory license in certain circumstances. The Protocol is open for acceptance by WTO Members until 1 December 2007 and will enter into force upon acceptance by two thirds of WTO Members. Acceptance of the Protocol by Australia would not require any change to Australia’s patent laws. Comments were due to DFAT by Friday 16 March 2007. For more information, click here Public forum to focus on WTO's role in the 21st century The WTO will host its sixth Public Forum on 25-26 September 2006 in Geneva, Switzerland, on the theme “What WTO for the 21st Century?”. It is inviting participants from civil society, business, academia, media, parliaments and WTO members. Registration closes 5 September 2006. For more information, click here Poorest countries given more time to apply intellectual property rules Least-developed countries have been given an extension until 1 July 2013 to provide protection for trademarks, copyright, patents and other intellectual property under the WTO’s agreement, following a decision reached by member governments on 29 November 2005. The decision does not affect the transition period for patents for pharmaceutical products, which was agreed in 2002; least-developed countries will not have to protect these patents until 2016. Click here for details. Members agree on amendment to make health flexibility permanent WTO members on 6 December 2005 approved changes to the intellectual property agreement making permanent a decision on patents and public health originally adopted in 2003. This General Council decision means that for the first time a core WTO agreement will be amended. The decision directly transforms the 30 August 2003 “waiver” into a permanent amendment of the WTO TRIPS Agreement. That waiver made it easier for poorer countries to obtain cheaper generic versions of patented medicines by setting aside a provision of the TRIPS Agreement that could hinder exports of pharmaceuticals manufactured under compulsory licences to countries that are unable to produce them. Click here for details.   TRIPS and Public Health 1. Doha Declaration on TRIPS and Public Health 2. Delayed patent protection for pharmaceuticals for least developed countries Geographical Indications 1. A multilateral registration system for wines and spirits 2. Extending the higher level of protection in article 23 to other goods Review of TRIPS Provisions 1. Review of the entire TRIPS Agreement, required by article 71.1 2. Review of article 27.3(b) IP and Technology Transfer Non-violation and Situation Complaints Biotechnology Patenting Dispute Settlement Understanding Back to top   TRIPS and Public Health 1. Doha Declaration on TRIPS and Public Health The Doha Declaration on TRIPS and Public Health was adopted by WTO Ministers on 14 November 2001. This Declaration was a response to concerns about the impact of TRIPS on access to medicines, particularly by developing and least-developed countries. The Declaration recognises the right of WTO members to use the flexibility contained within the TRIPS Agreement to protect public health. This flexibility includes the right of members to grant compulsory licences, and the right to declare a national emergency. The Declaration also extends the deadline by which least developed countries must comply with TRIPS to 1 January 2016. Update: The WTO’s 147 member governments approved shortly after midnight on 1 August 2004 a package of framework and other agreements, which Director-General Supachai Panitchpakdi said will greatly enhance members’ chances for successfully completing the important Doha negotiations. These commitments were negotiated intensively day and night for two weeks, culminating in a gruelling, non-stop session involving key ministers and ambassadors, that began at 5pm on Friday 30 July and lasted almost 24 hours. During the fortnight, there were several meetings of heads of delegations, intensive consultations and countless gatherings of various groups, with a number of trade ministers participating. During the General Council meeting many delegates commented that the deadlock of the Cancún Ministerial Conference (August 2003) has now been broken. The final compromises in the package were negotiated in the last 24 hours by a group of key delegations, including representatives of all the coalitions that have been active in the latest phase of the talks. General Council chairperson Oshima presided. During the consultations those representatives also consulted their coalitions. The resulting draft decision was then discussed and endorsed in an informal meeting of heads of delegations of all WTO members, which began at 10pm on 31 July. Once a consensus had been established, it was immediately confirmed in a formal meeting of the General Council During the heads of delegations and General Council meetings several members highlighted where they had reservations, where they had yielded in order to achieve consensus, or how they interpreted the way ahead under the package. The decision takes the form of an opening main section covering: agriculture; cotton; non-agricultural market access (or market access for industrial products); development (including general principles, special and differential treatment, technical assistance, implementation issues, other development issues and least-developed countries); services; other negotiating bodies (rules, trade and environment, intellectual property and dispute settlement); trade facilitation and the three other “Singapore issues” (investment, competition policy, transparency in government procurement); and other parts of the Doha work programme. For more information, click here.   Back to top 2. Delayed patent protection for pharmaceuticals for least developed countries The Council held its second formal session for 2002 from 25 to 27 June 2002. All members reiterated their commitment to finding an expeditious solution to the problem that developing countries with insufficient or no manufacturing capabilities in the pharmaceutical sector could face difficulties in making effective use of compulsory licensing under the TRIPS Agreement. The Council approved a decision to extend the transition period during which least-developed countries (LDCs) do not have to provide patent protection for pharmaceuticals until 2016 (see documents IP/C/25 and PRESS/301). The council also approved a waiver for LDCs on exclusive marketing rights for any new drugs in the period when they do not provide patent protection. Both decisions are part of WTO members' ongoing efforts to ensure that intellectual property protection supports and does not obstruct poorer countries' need to tackle serious public health problems. The TRIPS Council's decision formalizes part of paragraph 7 of the Declaration on the TRIPS Agreement and Public Health, which WTO ministers adopted on 14 November 2001 at their conference in Doha, Qatar. The TRIPS Agreement allows developing countries extra periods to delay providing patent protection for pharmaceuticals. But countries making use of the extra period still have to allow inventors to submit patent applications during the period (Article 70.8, sometimes called the "mailbox" provision). If a country's health authority then approves a new drug for sale, the patent applicant has to be given exclusive marketing rights for five years even though there is no patent (Art.70.9). The waiver exempts least developed countries from having to give these exclusive marketing rights.   Back to top   Geographical Indications 1. A multilateral registration system for wines and spirits Article 22 of the TRIPS Agreement provides that member states must prevent the misleading of the public as to the geographical origins of a good. Article 23 offers a higher level of protection for wines and spirits, providing that geographical indications of wines and spirits must be protected even if there is no risk of the public being misled. Article 23.4 provides further that WTO members will negotiate a multilateral registration system for the protection of wines. Spirits are included within article 23.4 owing to the 1996 Singapore Ministerial Declaration. At previous TRIPS Council meetings, two proposals for registrations systems were put forward. One proposal from the European Union provided that once a geographical indication is registered in one member state it is protected in all member states. The only exception would be if a member state could prove that the geographical indication was generic within their own territory (see documents IP/C/W/107 and IP/C/W/107/Rev 1). Another proposal from Canada, Chile, Japan and the United States envisaged the article 23.4 system as a database of geographical indications, so that each member state could better decide whether to protect a geographical indication in its territory (see document IP/C/W/133/Rev 1). At the Council's Special Session in September 2002, 17 members including Australia, Canada, the United States and New Zealand, co-sponsored a proposal for the register, the key elements of which were: ease of understanding; limited procedural requirements and administrative burdens; maintaining Members' rights to determine the appropriate method for national implementation; and facilitating the protection of GIs for wine and spirits. However, no comprehensive agreement was reached at the Session. The Secretariat released a note on 18 February 2003 outlining the discussions on the 'Establishment of a Multilateral System of Notification and Registration of Geographical Indications for Wines and Spirits: Compilation of Issues and Points' as requested by the TRIPS Council as its Third Special Session. The note addresses and consolidates discussion on four issues: The definition of the term "geographical indications" and eligibility of geographical indications for inclusion in the system; the purpose of the notification and registration system; what is meant by a "system of notification and registration"; and mandatory versus non-mandatory participation by member states. A list of all original submissions made by members on the subject, since 1997, is included in an Annex to the note. Another submission from a number of members, including Australia, focused on the definition of GIs and the system for notification and registration of GIs for wines and spirits. The members' proposals featured two main approaches: (i) a voluntary system of notification and registration for wines (and spirits) and (ii) a compulsory international system of notification and registration of wines (and spirits). The Council received a communication on 17 April 2003 from the Hong Kong Economic and Trade Office setting forth Hong Kong, China's proposals for an alternative model. The following outlines the features and legal effect of the proposed system: (i) the multilateral system involves only a formality examination of the GI subject to notification. Provided that basic information identifying the GI, its ownership and the basis on which it is claimed to be protected in the country of origin is submitted to the responsible authority, the indication will be entered on the register. (ii) the system does not deal with competing claims for GIs (these will continue to be dealt with under domestic laws). (iii) the operation costs are to be shared between participating Members on the basis of numbers of notifications. (iv) Registration should be accepted by participating Members' domestic courts, tribunals or administrative bodies as prima facie evidence of (a) ownership, (b) that the individual is within the definition of a "geographical indication" under art 22.1 of TRIPS and (c) that it is protected in the country of origin. (v) questions relating to the applicability of the grounds or exceptions under arts 22-24 should continue to be decided by domestic courts, tribunals or administrative bodies of Members. (vi) the system should be entirely voluntary at the outset. The Special Session of the Council held its Fifth meeting on 21 February 2003. The agenda items included negotiation of the establishment of a multilateral system of notification and registration of geographical indications for wines and spirits. A report by the Chairman of this meeting is available here. Following the February meeting, the Chairman held intensive informal consultations. On the basis of these discussions the written and oral proposals on the table, the Chairman put forward a "Draft Text of Multilateral System of Notification and Registration of Geographical Indications for Wines and Spirits" (JOB(03)/75). This was done on his own responsibility and without prejudice to the position of any delegation. While making it clear that no degree of acceptance was implied, the Draft Text proposed a single set of provisions on some matters such as procedures for notification, and options reflecting the different positions of delegations on other matters, such as international mechanisms for settling differences, the legal effects of the registration of a geographical indication and participation by Members in the system to be established. At the Sixth meeting of the Special Session, held from 29-30 April, 2003, the Draft Text was extensively discussed at the April formal meeting. The discussion has been reflected in TN/IP/M/6. Following the April meeting, the Chairman undertook further informal consultations in order to assess whether there was sufficient flexibility to warrant him circulating a new draft text prior to the next formal meeting in July. Based on those informal consultations, the Chairman informed participants that it was his appreciation that, in the light of the current state of the negotiations in the area and of the Doha Development Agenda as a whole, delegations did not as yet feel in a position to be sufficiently flexible in their positions, in particular with regard to the two key issues of legal effects and participation, to warrant him tabling a new draft text for the July meeting. On 23 May 2003, the Secretariat released a revised version of the note issued on 18 February (above), which takes into account comments and/or new points made in discussion at the fifth Special Session as well as certain written comments received from a delegation. It reflects the state of the discussion as of the end of that meeting. The Special Session of the Council for TRIPS held its seventh meeting on 2 and 3 July 2003. Negotiation of the establishment of a multilateral system of notification and registration of geographical indications for wines and spirits was the main item on the agenda. Following the eleventh special Session positions continue to be quite divided. Issues where differences are still profound are: the legal effect of registrations; international mechanisms for settling differences regarding geographical indications; and participation. Recalling the Doha mandate to complete the negotiation of the establishment of a multilateral system of notification and registration of geographical indications for wines and spirits by the Cancun Ministerial Conference, the Chairman expressed the view that, given the current status of the negotiations, it would be necessary to provide for the continuation of the negotiating process in the remaining period before Cancun. In this regard, he referred to the coming meetings of the Trade Negotiations Committee and the General Council in July, which would deal with the further work required in the run-up to Cancun. The Chair's report of the seventh meeting of the Special session for the Council for TRIPS can be obtained here.   Back to top 2. Extending the higher level of protection in article 23 to other goods Some WTO members want to apply the higher level of protection given to geographical indications of wines and spirits to other goods. In March 2002 the TRIPS Council began the task of preparing a report to the Trade Negotiations Committee on this subject, which it hoped to complete by December 2002 (see news item). The issue dominated the agenda at the Council's meeting in September 2002. Eleven Members, including Australia, Canada, New Zealand and the US, have co-sponsored a paper (IP/C/W/386) discussing the implications of extending Article 23 to other goods. The paper notes: the lack of evidence demonstrating that existing protection is inadequate; the costs of extension; the definition of geographical indications and existing exceptions which may filter out many possible geographical indications contemplated by developing countries; and the imbalance in the benefits of protection. The paper also proposed that the following issues should form part of the future discussions on extension of the higher level of protection: the definition of GIs; GIs and the principle of territoriality; trade marks and GIs; the cost differential between Arts 22 and 23 level protection; and the Art 24 exceptions. While there was no progress in the discussions, there were a number of concerns raised including possible conflicts between geographical indications, and conflicts between indications and trade marks which could follow if the extension was accepted. On 14 May 2003, Director-General Supachai Panitchpakdi, in his capacity as chairman of the Trade Negotiations Committee, held informal consultations with heads of delegations to suggest a way of moving forward on the issue of the extension of additional protection for geographical indications to products other than wines and spirits. Members remain deeply divided, with no conclusion in sight, although they are ready to continue discussing the issue. Those advocating the extension (including Bulgaria, China, the Czech Republic, the EU, Hungary, Liechtenstein, Kenya, Mauritius, Nigeria, Pakistan, the Slovak Republic, Slovenia, Sri Lanka, Switzerland, Thailand and Turkey) see the higher level of protection as a means of marketing their products, and they object to other countries “usurping” their terms. Those opposing extension argue that the existing (Article 22) level of protection is adequate, and that providing enhanced protection would be expensive. They also reject the “usurping” accusation particularly when migrants have taken the methods of making the products and the names with them to their new homes. For this reason, the debate has been described as one between “old world” and “new world” countries. But the description is not entirely accurate since the countries opposing extension include Japan, Chinese Taipei, and some Southeast Asian countries as well as the US, Canada, Australia, New Zealand, Argentina and a number of other Latin American countries. Back to top   Review of TRIPS Provisions 1. Review of the entire TRIPS Agreement, required by article 71.1 Article 71.1 of the TRIPS Agreement requires the TRIPS Council to undertake periodic review of the TRIPS Agreement. The November 2001 Doha Declaration reiterates the need for this review process, and specifically instructs the TRIPS Council to consider the relationship between the TRIPS Agreement and the UN Convention on Biological Diversity, the protection of traditional knowledge and folklore, and other issues raised by member states. The Declaration further states that review is to be guided by the objectives and principles of the TRIPS Agreement and must take into account 'the development dimension'. During its Regular Session in March 2002, the TRIPS Council began to develop a plan for the review process (see news item). The Secretariat was asked to summarise points raised about the above issues in previous TRIPS Council meetings, and member states were invited to submit proposals for review by the next Regular Session of the TRIPS Council. Regarding traditional knowledge, some member states expressed the opinion that the TRIPS Council should wait until work in this area was completed by the World Intellectual Property Organisation. Regarding the Convention on Biological Diversity, discussion covered the issue of benefit sharing based on prior informed consent and whether there is any need to amend TRIPS to protect against 'bio-piracy' in this regard. Discussion will continue at subsequent sessions the Council in 2003. Back to top   2. Article 27.3(b) review: patentability of plant and animal inventions and protection of plant varieties Article 27.3(b) of the TRIPS Agreement provides that member states may exclude from patentability plants and animals (other than micro-organisms), but must provide for the protection of plant varieties under a sui generis system. Article 27.3(b) also provides that the patentability of plants and animals should be reviewed four years following the date that the TRIPS Agreement enters into force.  As contemplated by the November 2001 Doha Declaration, review of article 27.3(b) will overlap to a degree with the general review of the TRIPS Agreement under article 71.1. During the Regular Session of the TRIPS Council in March 2002 (see news item), India raised a number of proposals to amend article 27.3(b) in light of the Convention on Biological Diversity, including: Patents inconsistent with article 15 of the Convention should not be granted Review should clarify that all living organisms are not patentable, including plants and animals and parts thereof, and including gene sequences On 8 August 2002, the Secretariat released a summary of the issues and points made by delegations in the TRIPS Council in regard to the review of the provisions of Article 27.3(b), in response to requests from the Council at its March 2002 meeting. The note summarises three areas of discussion: the patent provisions of Article 27.3(b) the sui generis protection of plant varieties the transfer of technology. A final section provides information on national legislation, practices and experiences with respect to this agenda item. The Council continued its discussion of Article 27.3(b) at its meetings in February and June 2003. For the February meeting, the Secretariat had prepared a note containing an updated synoptic table summarizing the information Members had provided in response to a questionnaire on the implementation of Article 27.3(b) (IP/C/W/273/Rev.1) At its June meeting, the Council had before it two new communications on article 27.3(b): one from Switzerland expressing its view on article 27.3(b) among other matters (IP/C/W/400/Rev.1); the other from Morocco on behalf of the African group suggesting ways of taking forward the review of Article 27.3(b) (IP/C/W/404). After the discussion, including on the respective roles of the Council and the Trade Negotiations Committee (TNC) in carrying forward work on this matter, the Chair concluded that he would brief the Chairman of the TNC on the discussion that had taken place in the Council and that Members would have an opportunity to discuss the subject again at the meeting of the TRIPS Council in November 2003. Back to top IP and Technology Transfer Article 66.2 of the TRIPS Agreement provides that developed countries should provide incentives to their institutions and enterprises to encourage the transfer of technology to least developed countries. This will enable least developed countries to build up their technological base. At the November 2001 Doha Ministerial Conference, ministers agreed that the TRIPS Council should 'put in place a mechanism for ensuring the monitoring and full implementation of the obligations in question' (see the Doha Implementation Decision). Developed countries must report to the TRIPS Council on what they are doing to implement article 66.2 by December 2002. The TRIPS Council will then be able to review the actions of developed countries, and developed countries will be required to submit updated reports annually. The Working Group on Trade and Transfer of Technology was also established in Doha, with a mandate to examine the relationship between trade and transfer of technology and any possible recommendations on steps that might be taken within the mandate of the WTO to increase flows of technology to developing countries. On 12 February 2003, the Permanent Delegation of the European Commission communicated a Reflection Paper on the Transfer of Technology to Developing and Least-Developed Countries to be circulated to the Council and the Fifth Session of the Working Group. The Paper is conceived as both a complement to the recent notification made by the EC on the implementation of TRIPS article 66.2 and a preliminary contribution to the discussion on its monitoring. It primarily aims at clarifying how technology transfer takes place and at identifying the problems faced by least-developed countries although it does not intend to draw any operational conclusions at this stage. On 19 February 2003, the Council reached a decision with a view to putting in place a mechanism for ensuring the monitoring and full implementation of the obligations in Art 66.2. It decided that developed country members shall submit annual reports on actions taken or planned in pursuance of their commitments under Art 66.2 and shall submit the reports prior to the last Council meeting of the year. The submissions shall provide members an opportunity to pose questions in relation to the information submitted and request additional information, discuss the effectiveness of the incentives provided in promoting and encouraging technology transfer to least developed country members and consider any points relating to the operation of the reporting procedure. The reports shall include the following information: an overview of the incentives regime put in place to fulfil the obligations of 66.2; identification of the type of incentive and government agency or other entity making it available; eligible enterprises and other institutions in the territory of the Member providing incentives; information on the function of other incentive practices such as mode of technology transfer. At the Sixth Session of the Working Group held on 13 and 26 May 2003, the delegations of Cuba, India, Indonesia, Jamaica, Kenya, Nigeria, Pakistan, Tanzania, Venezuela and Zimbabwe made a joint submission on “Possible recommendations on steps that might be taken within the mandate of the WTO to increase flows of technology to developing countries”. The paper highlighted a number of areas where the proponents felt that recommendations could be made by the Working Group on concrete and practical steps that might be taken to facilitate transfer of technology to developing countries in the context of the mandate contained in paragraph 37 of the Doha Ministerial Declaration. The recommendations made in that submission included an examination of The different provisions contained in various WTO Agreements relating to technology transfer The restrictive practices adopted by multinational enterprises in the area of transfer of technology The impact of tariff peaks and tariff escalation in developed countries on technology transfer The difficulties faced by developing countries in meeting the standards set by the WTO agreements due to the lack of required technology; and The need for and desirability of internationally agreed disciplines on transfer of technology. The Swiss delegation also made a submission titled “Creating Incentives for the Transfer of Technology of Environmentally Sound Technologies” at the sixth session. The submission examined the Swiss experience with transfer of technology to developing countries based on hands-on experience with centres working in the field of transfer of Environmentally Sound Technologies (EST). The submission noted the beneficial effects of a stable, transparent and enforceable enabling environment on the transfer of EST. The Working Group on Trade and Transfer of Technology reported to the General Council in a document dated 14 July 2003. The paper outlined the submissions by members and presentations of country experiences as well as presentations by intergovernmental organisations. The report also describes inputs of work in other WTO bodies on trade and transfer of technology and the background papers disseminated by the Secretariat. Finally, the paper summarises the broad themes discussed in the Working Groups sessions: Definition of transfer of technology Transfer of technology and enabling environment Transfer of technology and role of home and host countries Transfer of technology and IP rights Transfer of technology and foreign direct investment (FDI) Transfer of technology and WTO Agreements and Transfer of technology and technical assistance A work programme for 2003 is contained in the Annexes as well as a list of all working group documents.   Back to top Non-violation and Situation Complaints At the November 2001 Doha Ministerial Conference, ministers asked the TRIPS Council to consider the extent and means by which non-violation and situation complaints could be filed under the TRIPS Agreement (see the Doha Implementation Decision). Non-violation and situation complaints fall under subparagraphs 1(b) and 1(c) of article XXIII of the General Agreement on Tariffs and Trade 1994. These complaints arise from actions or situations that do not contravene the text of TRIPS itself, but still result in a member state losing a benefit they would expect under the TRIPS Agreement. A moratorium was imposed on non-violation and situation complaints under the TRIPS Agreement when it was first implemented. Under the Doha Implementation Decision the TRIPS Council is required to investigate this matter further and make recommendations to the Fifth Ministerial Conference in 2003. At the TRIPS Council meeting on 17-19 September 2002, a communication from Peru on behalf of a number of Latin American, Asian and African countries was circulated. The members expressed fundamental concerns with the application of non-violation and situation complaints to the TRIPS Agreement. They argued that the application of non-violation and situation complaints is unnecessary and raises many systemic concerns. In particular, the communication states that non-violation and situation complaints threatens to introduce incoherence among WTO agreements and upset the delicate balance of rights and obligations in the TRIPS Agreement by elevating private rights over the interests of the users of IP (both within and between countries), as well as undermining regulatory authority and infringing sovereign rights by exposing to challenge any measure that affects intellectual property and that could not have been foreseen at the time of the Uruguay Round. The Members welcomed any attempts to clarify and narrow the definition of measures that may give rise to non-violation complaints. The Council continued its discussion on non-violation and situation complaints at its meetings in February and June 2003, including on options for the recommendations it should make to the Cancun Ministerial Conference, as called for in paragraph 11.1 of the Decision on Implementation-Related Issues and Concerns. At the June meeting, the Chair concluded that it seemed that he would need to report to the General Council meeting of 24 July that the TRIPS Council was not in a position to make recommendations to the Fifth Ministerial Conference at that stage.   Back to top