RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/M/25
22 December 1999
(99-5547)
Council for Trade-Related Aspects
of Intellectual Property Rights
MINUTES OF MEETING
Held in the Centre William Rappard
on 20-21 October 1999
Chairperson:  Ambassador Carlos Pérez del Castillo (Uruguay)
Subjects discussed:
A. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS
B. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT
C. REVIEW OF LEGISLATION :
(i) Review of the legislation of the Kyrgyz Republic and Latvia
(ii) Arrangements for reviews after 1 January 2000
D. SECTION 211 OF THE UNITED STATES OMNIBUS CONSOLIDATED AND EMERGENCY
SUPPLEMENTAL APPROPRIATIONS ACT OF 1998
E. IMPLEMENTATION OF ARTICLE 70.8 AND 70.9
F. IMPLEMENTATION OF ARTICLE 66.2
G. TECHNICAL COOPERATION
H. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL
INDICATIONS UNDER ARTICLE 24.2
I. IMPLEMENTATION OF ARTICLE 23.4
J. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
K. ARTICLE 64.3
L. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
M. DRAFT ANNUAL REPORT
N. OTHER BUSINESS
(i) Statement by Malaysia concerning optical disk piracy
(ii) Dates of meetings of the Council in 2000
(iii) Review of the implementation of the Agreement under Article 71.1IP/C/M/25
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A. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS
1. The Chairperson said that the Council had before it 15 outstanding requests from
intergovernmental organizations for observer status.  The organizations in question were listed in
document IP/C/W/52/Rev.7.  Among these pending requests were three which had been submitted
since the previous meeting.  These were from the Conférence des Ministres de l'Agriculture de
l'Afrique de l'Ouest et du Centre , the Islamic Development Bank  and the World Health Organization .
2. The Chairperson said that informal consultations on the issue of the pending requests for
observer status had not revealed any new developmen ts.  Consequently, he suggested that the Council
revert to the matter at its next meeting.
3. The Council so agreed.
B. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT
(i) Notifications under Article 63.2
4. The Chairperson informed the Council that new notifications of legislation had been received
from Australia, Denmark, Hungary, Latvia and the United Kingdom.  All these notifications would be
available in the IP/N/1/- document series as soon as possible.
5. The representative of the European Communities reverted to the question that he had raised,
at the meeting of the Council of 21and 22 April 1999, concerning a notification by Slovenia of a
decree concerning Lippizaner horses.1  Since that time, his delegation had examined the decree and
reached the conclusion that there were serious concerns regarding its compatibility with the TRIPS
Agreement, and intended to continue to hold bilateral discussions with Slovenia on this issue.
6. The representative of Slovenia said that, first, his government firmly believed that the decree
in question was in full compliance with the TRIPS Ag reement notwithstanding the fact that it related
to horses which were live animals, possibly constituting the first case ever of such a geographical
indication.  Second, Slovenia welcomed the statement by the European Communities that the whole
issue, and not just its intellectual property aspects, should first be discussed on a bilateral level.  The
Slovenian Minister for Agriculture had sent a letter to his Austrian counterpart proposing a meeting to
deal with the Lippizaner horses issue.  His delegation also welcomed the statement made the previousday in Vienna at a European Union-Slovenia Subcommittee on Agriculture meeting, where the
representatives of the European Commission had indicated that they would attend the forthcoming
bilateral discussions with Slovenia, whenever they should take place.  Slovenia was pleased by these
developments and believed that all existing differences could be resolved in a process of amicable
bilateral consultations so that the issue could eventually be dropped from the Council's agenda.
7. The Council took note of the statements made.
(ii) Notifications under Articles 1.3 and 3.1
8. The Chairperson informed the Council that a notification under Article 3.1 of the Agreement
in conjunction with Article 6 of the Berne Convention had been received from Jamaica and circulated
in document IP/N/2/JAM/1.
                                                     
1 The decree in question has been circulated in document IP/N/1/SVN/G/1.IP/C/M/25
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(iii) Notifications under Article 69
9. The Chairperson informed the Council that, sin ce its last meeting, the Kyrgyz Republic had
notified its contact points under Article 69.  This brought the number of Members that had notified
contact points under this provision to 94.
C. REVIEW OF LEGISLATION
(i) Review of the legislation of the Kyrgyz Republic and Latvia
10. The Chairperson said that, prior to the meeting, the Secretariat had received copies of
questions posed, to the two Members to be reviewed, by Japan, the United States and the European
Communities and their member States (documents IP/C/W/150, 151, 152 and 158), as well as
responses from the Kyrgyz Republic to the questions posed to it by the United States and Japan
(documents IP/C/W/153 and 160) and from Latvia to the questions posed to it by the United States
and Japan (document IP/C/W/159).
11. The respective representatives of the Kyrgyz Republic and Latvia  each provided a brief
introductory overview of the structure of their country's legislation in the areas covered by the
Agreement and of the changes that they had had to bring about in order to make the legislation
compatible with the TRIPS Agreement.  They both noted that they had only received questions from
the European Communities on 12 October 1999 so that they had had insufficient time to prepareresponses.
12. The representative of Japan expressed his appreciation for the efforts of the Kyrgyz Republic
and Latvia in preparing the written responses to the questions asked by Japan as well as their oral
explanations.  The responses provided were sufficiently clear so that Japan had no further questions
for the two delegations at present.
13. The representative of the United States indicated that his delegation might pose some
additional questions at a later date.
14. The Chairperson recalled that, according to the procedures for these reviews, the Kyrgyz
Republic and Latvia were to provide written resp onses to the outstanding questions within eight
weeks of this meeting, and the Council would keep  this issue on the agenda of its next meeting.
15. The records of the introductory statements by the Kyrgyz Republic and Latvia and the
responses to all questions posed will be circulated in due course under the following symbols:
The Kyrgyz Republic IP/Q/KGZ/1
IP/Q2/KGZ/1
IP/Q3/KGZ/1
IP/Q4/KGZ/1Latvia IP/Q/LVA/1
IP/Q2/LVA/1
IP/Q3/LVA/1
IP/Q4/LVA/1
16. The Council took note of the statements made.
(ii) Arrangements for reviews after 1 January 2000
17. The Chairperson, reporting on his informal consul tations on the matter, said that, in the first
half of the year 2000, implementing legislation of 13 Members would be reviewed2 and another 143
reviews would be held in the second semester of the year 2000.4  The Chair would submit, prior to the
                                                     
2 The review meeting is scheduled for the week of 26-30 June 2000.
3 This number includes Estonia (see under Agenda Item L below).
4 The review meeting is scheduled for the week of 27 November to 1 December 2000.IP/C/M/25
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next meeting, a proposal for the reviews of implementing legislation in the year 2001, in particular
which Members would be reviewed when.  As to the procedures for these reviews of implementing
legislation, questions should be sent in some ten weeks before the meeting and three to four weeks
before the meeting the countries concerned should su bmit their answers, in writing, to those questions.
He recalled that funds were available under decisions of relevant WIPO bodies and pursuant to theAgreement Between WIPO and the WTO for the benefit of Members who had to translate laws and
regulations to be notified.
18. The Council so agreed.
19. In response to a question from the representative of Singapore, the Chairperson  said that the
procedures for the notification and review of legislation in 2000 and 2001 would be made available in
writing.5  As for submission of responses to the Checklist of Issues on Enforcement (document
IP/C/5), he suggested that responses to the Checkli st be submitted as soon as possible,  but in any
event in good time before the review of the Member  concerned, so that other Members would be in a
position to obtain a good knowledge of the relevant enforcement procedures before the review
meeting.
20. The Council so agreed.
D. SECTION 211 OF THE UNITED STATES OMNIBUS CONSOLIDATED AND EMERGENCY
SUPPLEMENTAL APPROPRIATIONS ACT
21. The representative of Cuba recalled, in December 1998, the delegation of Cuba had presented
to the Council, under Article 63.3 of the TRIPS Agreement, a  request for information from the
United States government on the amendments that it had made to the Omnibus Consolidated and
Emergency Supplemental Appropriations Act for the fiscal year 1999, in particular to Article 211, subparagraphs a), b), c) and d),  as well as its compatibility and relevance to the TRIPS Agreement.  To
date, his delegation had not received any satisfactory response to the request.  It had only received a
list of legal texts which dealt with the matter, but which were easily accessible through other means
and which did not actually afford any extra clarity on the grounds for the action of the United States
legislative body which had enacted Section 211.  It could, therefore, not be considered to be incompliance with Article 63.3, which stipulated that Members were bound to be informed, in sufficient
detail, of the matter raised.  Cuba considered that the basic objective of the provision was to illustrate
and show good faith in compliance with the TRIPS Agreement and the WTO Agreement by Members
in their relations with other Members, and this had not been complied with.  Cuba was following
closely and with interest the consultations which were taking place within the framework of the DSU
between the European Communities and the United States and they were awaiting the outcome of the
process.  In this connection his delegation reserv ed the right to take other action within the WTO
framework, should the results of the consultations not respect the legitimate rights that Cuba had in
this regard.  Lastly, he thanked all those delegations which had, in the course of the last three
meetings of the Council, afforded their support to Cuba and he reiterated his trust in the strict and
unconditional observance of the principles of the multilateral trading system, the rules of which had to
be implemented without discrimination, fairly and transparently.
22. The representative of the United States restated his delegation's view, that the material that
had already been provided fully and completely met the obligations of the United States under
Article 63.3 of the TRIPS Agreement.  He requested that, since it was a subject of dispute settlement
and would be dealt with under the procedures established by the DSU, the issue be removed from the
agenda of the Council.
                                                     
5 Subsequently circulated in informal document JOB(99)/6928 of 18 November 1999.IP/C/M/25
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23. The representative of Cuba opposed removing the item from the agenda of the Council.  His
delegation would be writing to the United States indicating that it required pertinent information
under Article 63.3 which, to date, it had not received.
24. The representative of Venezuela said that his delegation thought that the response of the
United States to the questions put to it by Cuba on United States legislation, case law and
jurisprudence was insufficient and wondered whethe r, in the review of legislation next year, a
Member could respond to questions by simply sendi ng in a copy of the relevant legislation.  He
believed that the obligations under the TRIPS Agreement went much further and that it was
reasonable to expect a full explanation.  This case would set an important precedent.
25. The representative of the United States recalled that the WTO system provided for the dispute
settlement procedures to be used when one Member believed that another Member had taken an
action inconsistent with its obligations.  Contin uing discussions in the Council would merely use
valuable time which could be better used to de al with the Council's built-in agenda, which included
regular reports on dispute settlement proceedings and developments thereunder.
26. The representative of the European Communitie s informed the Council that consultations had
taken place between his delegation and the United States and that further consultations were under
consideration in order to receive additional information.
27. The representative of Japan recorded his delegation's concern that the particular provision of
United States law at issue could be inconsistent wi th the TRIPS Agreement, especially its Articles 3
and 4.
28. The Chairperson, referring to the request of the United States that the item not be on the
agenda of the next meeting of the Council, said that the normal procedure was that, when a Member
proposed an item for the agenda, that item was included in the draft agenda, which Members could
adopt or modify at the start of the meeting.  Addi tionally, he noted that the consultations between the
United States and European Communities and their member States concerned those two delegations'
respective interpretations, which were not necessarily the same as Cuba's
29. The Council took note of the statements made.
E. IMPLEMENTATION OF ARTICLE 70.8 AND 70.9
30. The representative of the European Communities said that his delegation had carefully
studied the additional information that had been prov ided prior to the last meeting, and believed that
those Members that had responded had not clarified their positions sufficiently.  His delegation
intended to pursue the matter bilaterally.
31. The Council took note of the statement made.
F. IMPLEMENTATION OF ARTICLE 66.2
32. The Chairperson recalled that, at the Council's meeting of 1 and 2 December 1998, the
delegation of Haiti had requested information from developed country Members on how Article 66.2
of the TRIPS Agreement was being implemented.  The Council had agreed that this question be
circulated in an informal document of the TRIPS Council to all Members and that developed country
Members be invited to supply information in res ponse to this question.  Following the Council's
meeting in July 1999, the Secretariat had received information on the implementation of Article 66.2
from the European Communities, which included also information from Austria, Denmark, Finland,
France, Germany, the Netherlands, Spain, Sweden and the United Kingdom.  All this information had
been circulated in document IP/C/W/132/Add.4.  Ad ditional information, received from Ireland andIP/C/M/25
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Germany, was being circulated as a supplement to this document.  Apart from this information from
the European Communities, to date, information had also been provided in writing by New Zealand,
the United States, Japan and Australia.  This information was available in documents IP/C/W/132 and
addenda 1 to 3, respectively.
33. The representative of the European Communities referred to the supplementary submission
made by his delegation, and foreshadowed a further submission that it would make in relation to
another of its member States.
34. The Chairperson proposed that the Council urge the developed country Members that had not
yet done so to supply the required information rapidly, and that it revert to the matter at its next
meeting.
35. The Council so agreed.
G. TECHNICAL COOPERATION
36. The Chairperson recalled that the Council had agreed, at its meeting of 7 and 8 July 1999, to
focus on technical cooperation at the present meeting.  In preparation for that discussion, it had been
agreed that developed country Members would update information on their technical and financial
cooperation activities relevant to the implementation of the TRIPS Agreement in time for the present
meeting.  In addition, intergovernmental organizations observers to the Council had also been invitedto do the same.  The resulting documentation concerning the technical cooperation activities of
developed country Members could be found in  documents IP/C/W/154 and addenda, and of
intergovernmental organizations in documents IP/C/W/155 and addenda.  Updated information on the
WTO Secretariat's technical cooperation activities in the TRIPS area could be found in document
IP/C/W/156.  The updated information from the European Communities and their member States andfrom Australia, the United States, the FAO and UPOV would be circulated as addenda to documents
IP/C/W/154 and IP/C/W/155 respectively.
37. The Chairperson said that some of the information had been received only very recently, and
most of it was, thus far, available only in its original language.  Therefore, the Council might revert to
the matter at its next meeting, to allow Member s to make further comments on the information
submitted that they might not yet have been able to study, and any further information provided
before that meeting.
38. Continuing, the Chairperson recalled that the WIPO and WTO Secretariats had launched in
July 1998 a Joint Initiative on Technical Cooperation to assist developing countries to meet their
commitments under the TRIPS Agreement by the year 2000, and that the Council had agreed, at its
meeting in December 1998, to request the Secretariat to report on a regular basis on this matter.  The
above-mentioned submissions by the WIPO and WTO Secretariats, circulated, respectively, indocuments IP/C/W/155/Add.4 and IP/C/W/155, contained information, inter alia , on the status of the
implementation of the Joint Initiative.  Since those two documents had been circulated there had been
one additional request for assistance under the Joint Initiative.
39. The representative of WIPO said that the WIPO Secretariat had submitted a full report to the
WIPO General Assembly on the issue of technical cooperation, which included information on the
Joint Initiative.  The document had been unanimously accepted by the Member States of WIPO and
the same document had been submitted to the TRIPS Council in English, Spanish and French.  For
interested delegations, the document was also available in other UN languages, namely, Arabic,
Chinese and Russian.  The document would be updated regularly.  Most of the Members in the
present meeting had also been present in the WIPO General Assembly and the Director of the WTOSecretariat's Intellectual Property Division had responded, in detail, to the questions posed byIP/C/M/25
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delegations in the assembly the Assembly.  She expressed her readiness to respond to questions as
well.
40. The representative of Venezuela highlighted the report from Australia, which provided
information in a most transparent way, by means of a table listing all the expenses and countries
involved.  He thought this type of notification was very useful and suggested that others followAustralia's example.  In addition, he suggested that developing countries might channel requests for
bilateral technical cooperation through their missions in Geneva to developed country Members on
the basis of those provisions of the TRIPS Agreement that required technical cooperation to be given
to developing and least developed country WTO Members.
41. The representative of Australia said that her delegation hoped to submit, by the end of the
month, a new formal study on the notification and review process under the TRIPS Agreement.  This
was intended to ease the considerable burden on national administrations which this processrepresented.  Given that many developing coun try Members were on the point of commencing this
process, she hoped that the study would help such  Members to make the best use of the existing
wealth of experience.
42. The representative of Japan, while referring to Japan's technical cooperation activities as
outlined in document IP/C/W/154/Add.1, said that in the area of human resource development, Japan
had undertaken the 1000 Trainees Programme.  The target of this program was to invite a total of
1000 people from governments and the private sector, mainly from the Asia-Pacific region, to Japan
to participate in training courses.  From 1996 to the end of 1998, a total of 739 participants had been
accepted from 34 countries and one economy.  His government had been providing several countries
with necessary personnel and computer equipment in order to build up computerised operationsystems in industrial property offices.  Finally, he stressed that Japan had been and would be willing
to provide necessary cooperation to developing countries to the extent it could with a view to having
self-sustained development in these countries.
43. The Chairperson suggested that the Council urge those developed country Members that had
not yet provided updated information to do so soon.
44. The Council so agreed, while taking note  of the statements made.
H. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL
INDICATIONS UNDER ARTICLE 24.2
45. The Chairperson said that, at the previous meeting, the Council had requested the Secretariat
to prepare a summary paper of the responses provided by Members to the Checklist of Questions
contained in documents IP/C/13 and Add.1, on the basis of the outline contained in informal
document No. 2104 of 13 April 1999.
46. The representative of the Secretariat reported that work had started on the summary paper
analysing the considerable amount of information that had been received.  It was a complicated paper
with a rather detailed outline and there was a diversity of approaches that had been reflected in
information received.  The Secretariat would have the paper ready by the next meeting of the Council.
47. The Council took note of this statement.
I. IMPLEMENTATION OF ARTICLE 23.4
48. The Chairperson recalled that, at the previous meeting, the Council had continued its
discussion of the proposals tabled, one from the European Communities and their member States and
the other from Japan and the United States jointly.  Since then, as foreshadowed at the previousIP/C/M/25
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meeting, a revised version of the latter proposal had been circulated.  It was sponsored by Canada,
Chile, Japan and the United States.
49. The representative of the European Communities reiterated that his delegation's position had
not changed from that in its submissions and interventions to date on the future multilateral register.
His delegation looked forward to the establishment of such a register and expected the discussions tostart with new momentum at the beginning of 2000.
50. The representative of India agreed with the European Communities that there would be new
momentum next year and believed that the scope of the work might also be different on the basis of
proposals made in the context of the General Council for the preparation of the Seattle Ministerial.
51. The representative of Peru said that, in accordance with Article 23.4, the Council had started
the negotiating process to establish a multilateral system for notification and registration with the aim
of facilitating protection of geographical indications for wines and spirits.  Whilst Article 23.4referred exclusively to wines, the Ministers in Singapore had agreed that matters relevant to spirits
should form part of the preliminary work.  Consequently, the Council's work should also include
spirits, as had been requested by a large number of Members.  In Peru's understanding, the voluntary
nature of the multilateral system of notification and registration stemmed from the fact that it was not
necessary for Members to include their geographical indications in such a register in order for otherMembers to be bound to protect them.  The obligation to protect them derived directly from the
substantive provisions of the TRIPS Agreement them selves.  In this context, the inclusion of a
geographical indication in the register would play an important role in facilitating its protection.  In
order to play that role, the registration could not be a simple notification procedure or a database
which did not contribute to respecting the obligations under the TRIPS Agreement.  A register of thattype would not be a truly multilateral system and would not fulfil the commitment to reinforce
effective protection for geographical indications.  The term "facilitate" had to be understood as a grant
of means to identify what were the geographical indications that Members were obliged to protect.  It
was essential that the register be made up of geographical indications that satisfied the criteria
established by the TRIPS Agreement.  Consequently, logically the multilateral system of notificationand registration had to have an appropriate procedure that guaranteed that the inclusion of a
geographical indication was done in conformity with these criteria and facilitated the understanding of
Members in cases of disagreement.  The system had to take into account the various modalities of
protection that existed under national legislation of various Members.  The system also had to
guarantee the freedom of Members to request inclusion of their geographical indications on the
register so as to benefit from it.  The indications th at had been included in conformity with the criteria
established in the Agreement had to be protected by other Members.  This did not mean that theinclusion of a geographical indication in the register was obligatory but rather that the protection of a
geographical indication included in the register was obligatory because these indications had to be
protected under the relevant provisions of the TRIPS Agreement.  This system also had to provide the
possibility for Members to express their reservations, at an appropriate time, when they did not agree
to protect a particular geographical indication either because they did not believe it conformed to thecriteria laid down in the Agreement or because of disagreement about its origin.  The establishment of
a register would necessarily imply certain costs due to its nature.  Nonetheless, the real cost of the
multilateral system of notification and registration could only be evaluated in light of the benefits
obtained by Members.  These benefits or this added value would be of an essentially procedural
nature, which was why it could not be maintained th at they involved additional obligations.  One had
to remember that Article 23 of the TRIPS Agreement provided additional protection for wines and
spirits and from that point of view the establishment of a multilateral registration and notification
system that did not contribute to improving protection for geographical indications would mean
substantially short of the levels of protection that had been envisaged.
52. The representative of the United States endorsed the need to begin work with new vigour in
the new year on this issue.  He reminded delegations that, should there be a decision to expand theIP/C/M/25
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scope of the discussions to other products, his delegation's proposal remained as valid for other
products as it was for wines and spirits.
53. The representative of Korea said that his delegation favoured, in principle, the proposal
initially put forward by the United States and Japan which was simple procedurally and did not
impose excessive costs and additional burdens on Members or the Secretariat.  Korea's interpretationof Article 23.4 clearly pointed to the voluntary nature of the system as was stipulated in the end of the
Article, "…for protection in those Members participating in the system…".  With regard to the
product coverage, his delegation felt, as did a lot of Members, that the products to be protected by
geographical indications had yet to be identified, so that it was premature to embark on a discussion
of the extension of the product coverage beyond wine s.  It was also beyond the present mandate of the
Council to discuss any such extension.
54. The representative of Hungary said that his delegation had, for a long time, been supporting
the establishment of a multilateral system of notification and registration of geographical indications,
and on various occasions had indicated why it felt more attracted to the proposal from the European
Communities and their member States.  His delegation strongly believed that the legal effects of the
registration system must not vary amongst Members depending on their national legislation.  In
addition, he stressed the willingness of his delegation to go along with the proposals made by severaldelegations that the additional protection for geographical indications for wines and spirits be
extended to products other than wines and spirits.  The extension of the product coverage was not
dependent on the issue or type of the multilateral system and therefore should not unduly delay the
establishment of the system.  Finally, he believed that the multilateral system was a voluntary one,
which meant that it was up to Members to decide whether they wanted to join the system but oncethey participated it would be obligatory to accept the legal consequences of multilateral registration of
geographical indications.
55. The representative of Mexico said that, based on Article 23.4 and also the Singapore
Ministerial Declaration, there was a clear mandate to initiate work in the Council for the
establishment of a multilateral system for notification and registration of geographical indications forwines and spirits.  Her delegation was interested in complying with the mandate as soon as possible,
as it pertained to the built-in agenda.  She welcomed the statements by other delegations expressing
the hope to begin the negotiations with new impetus early next year.  As regards coverage, Mexico's
clear position was that, as the Agreement was currently drafted, there was no obligation to extend the
additional protection for wines and spirits to other products.  Any modification of the obligation
would necessarily have to be done through other fora of the WTO.  Her delegation did not share the
idea that work on the nature of the notification and registration system could be done independently ofwhat would be the coverage of the register.  It did not seem feasible to design a system that could
encompass all types of products and therefore it was necessary to have a clear idea of the products
being referred to.  Furthermore, experience had shown that existing multilateral registers of this type
varied according to the type of products they were established to protect.  Mexico agreed with many
of the comments made by the representative of Peru, in particular those referring to the nature of thesystem, in the sense that a geographical indication did not have to appear in this register to enjoy
protection because such protection was already gran ted under the relevant provisions of the TRIPS
Agreement.  Furthermore, she agreed that the fundamental value of this register was to identify, or
facilitate the identification of, those geographical indications which complied with the definition of
geographical indications in the TRIPS Agreement.  As to whether the system had to be voluntary ornot, there were possibilities for a mechanism for those cases in which Members did not agree on the
need for protection of specific geographical indi cations.  It would be relevant to have such a
mechanism to solve such cases.  At present her delegation had no problem with the coverage, which
was clearly defined, but what the Council had to deal with as soon as possible was fulfilling its
mandate to discuss the nature of the register that it had to establish.IP/C/M/25
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56. The representative of Australia supported the revised proposal from the United States, Japan,
Canada and Chile.  She expressed concern that the multilateral register should serve its proper
function as a voluntary practical aid for the implementation of existing commitments and not create
new burdens for Members, be they new obligations or new administrative burdens.  In addition, in
Australia's view, there was no mandate in any existing provisions of the TRIPS Agreement forextending the scope of the additional protection stip ulated in Article 23 for geographical indications
for wines and spirits to those for other products.
57. The representative of Singapore looked forward to a fuller discussion of the issue at the next
meeting of the TRIPS Council.  In accordance with the terms of Article 23.4, the system had to be a
voluntary one;  one that did not pose an y undue burden and was simple in nature.
58. The representative of India was of the view that there was a mandate to negotiate additional
protection for geographical indications for products other than wines and spirits.  India was in favour
of extension of the scope to products other than wines and spirits and would like to consider this
concomitantly with the negotiations on the register after obtaining any mandate from the Seattle
Ministerial Conference.
59. The representative of Uruguay supported the establishment of a multilateral system for
notification and registration of geographical indications for wines and spirits, based on Article 23.4
and the Singapore Ministerial Declaration.  As to the scope being extended to other products, it was
necessary to await the upcoming deliberations in the context of the Seattle Ministerial Conference as
well as observe the implementation of the system for wines and spirits.
60. The representative of Bolivia supported the statement made by India.
61. The representative of New Zealand supported the delegations who had noted the fact that
Article 23.4 had not been amended as yet, so that its product coverage concerned only wines and,
given the Singapore Ministerial Declaration, spirits.  He recognised and acknowledged that some
delegations had made proposals in the General Council, which was, thus, the appropriate forum for
discussing the possibility of an extension of the coverage to other products.  In the meantime, it was
best to limit the discussion to Article 23.4.  In the new year, Members would have a better pictureabout the issue of coverage and could discuss the matter with renewed vigour.
62. The representative of Canada said that the current mandate extended only to wines and spirits
and the Council would require a new and separate mandate to discuss extension to other products.
The question of extension of the mandate to other products should be separated from the question of
the multilateral registry so that work could move ahead on the registry to be established.  The system
proposed by the United States, Japan, Chile and Cana da lent itself to what other WTO Members had
indicated should be a system that was voluntary, facilitative, simple and low-cost and which achievedthe objectives set out in the TRIPS Agreement.
63. The representative of Venezuela shared many of the concerns expressed by Peru and
reiterated the position it had expressed in their joint submission to the General Council. It was
important to have a system for notification and registration which would be binding erga omnes  and
multilateral.  In the Andean Community, there was a system for the protection of geographicalindications which applied to natural, agricultural, artisanal and industrial products.  This system,
which was successful and operated in the five countries concerned, could be used as a basis, or at least
a reference, for further discussions.
64. The representative of Switzerland supported the statement made by the representative of
Venezuela.  Switzerland considered the proposal from the European Communities to be best suited to
addressing the concerns expressed through the provisions of the Agreement on geographical
indications, which included issues concerning, for example, homonymous geographical indications orIP/C/M/25
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relating to generics.  Her delegation was ready to discuss a system that would be the least expensive.
She recalled the statement made by Hungary on one of the possible means of not increasing the
administrative cost of such a system.  She expected that there would be further suggestions of this
kind next year.  As to the issue of extension of the system, she supported the statement by Venezuela
and favoured extending the system to products other than wines and spirits.
65. The representative of Chile reiterated his delegation's position contained in the proposal that it
had submitted jointly with the United States, Japan and Canada.  He recalled that the Council's current
mandate under Article 23.4 only concerned wines and spirits.
66. The representative of Cuba reiterated her  delegation's view that the proposal submitted by the
European Communities seemed the most satisfactory to  address the issue.  She also reiterated Cuba's
opinion that the multilateral system for notification and registration should be extended to other
categories of products with a view to ensuring that the interests of all Members would be fully served.
67. The Chairperson proposed that the Council take note of the statements made and agree to
revert to the issue at its next meeting in the light of the outcome of the Seattle Ministerial Conference.
68. The Council so agreed.
J. REVIEW OF THE PROVISIONS OF ARTICLE 27.3( B)
69. The Chairperson said that, at the previous meeting, the Council had had a substantive
discussion on this matter, both on issues relating to the implementation of the provisions of
Article 27.3(b) and on the scope of the review mandated by Article 27.3(b).  It had been agreed to
continue this discussion at the present meeting, both in informal and formal sessions, and delegations
had been asked to make substantive contributions in writing in advance.  To date, two such written
contributions had been received, namely from India and the United States.  Several papers addressingthe issues concerned had also been submitted to the General Council in the context of the preparatory
process for the Seattle Ministerial Conference.
70. The representative of India introduced his delegation's paper (document IP/C/W/161).  He
said that the language of Article 27.3(b) indicated that the review should be a substantive one of the
provisions themselves.  In the view of India, th e review should cover three distinct but overlapping
issues:  (i) whether and what form of exclusion from patentability should apply to plants and animals
per se ;  (ii) the effect of protection granted to micro-organisms and non-biological and
microbiological processes; and (iii) the sui generis  system and its effectiveness.  The information
submitted to the Council to date was incomplete as it mainly related to developed country Members
who had had to implement the Agreement already; it did not reflect the practice of all Members.  On
the patentability of life forms, there was the ethical issue of the extent to which private ownership
could extend to life forms.  More importantly, there was the appropriateness of the concept ofintellectual property, as it was understood in the industrialized world, in the face of the wider
dimension of rights to knowledge, their ownership, use, transfer and dissemination.  His delegation's
paper focussed on the oral traditions of India and he cited the example of the revocation of a patent
granted for turmeric as an antiseptic.  In that case revocation was possible because some of the
knowledge had been written down but much other knowledge was not.  India recommended thatpatents should be excluded for all life forms or, if that were not possible, at least for those based on
traditional or indigenous knowledge and essentially derived products and processes, and insisted on
disclosure of the country of origin of source knowledge or genetic resources and the obtaining of prior
informed consent of that country, so as to ensure equitable benefit-sharing.  On the issue of micro-
organisms, there was a difference between inventions, which could be patented, and discoveries,which could not.  His delegation's paper cited an ex ample of a United States patent that had been
granted for what India did not consider to be an invention, and therefore an improper subject for a
patent.  His delegation did not question that a man-made micro-organism, that is to say, a genetically-IP/C/M/25
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engineered bacterium, met the requirement of patentability, but it questioned whether patents could
extend to cell-lines, enzymes, plasmids, cosmids and genes.  The negotiators of the TRIPS Agreement
had not investigated these issues, and it contained terms on which even scientists could not agree.
This should not be left open to future interpretation by panels.  In any case, some inventions, even
though micro-organisms, could be excluded from patentability for the reasons set out in Article 27.2.On the issue of sui generis  protection, Article 27.3(b) clearly allowed other options for the protection
of plant varieties, namely patents or a combination of patents and sui generis  protection.  This gave
Members great latitude to develop an effective means of protection.  In devising such a system, a
country might be expected to take into account its own public policy objectives, including
developmental and technological objectives, clearly recognized in the TRIPS Agreement, and also
obligations that the country might have undertaken in the context of other international agreements.
UPOV was like any other system:  one could not assume that it was an effective system and that onlyother systems had to be judged on a case-by-case basis.  Developing country Members were still
developing their own systems of protection, which could differ from the UPOV models which many
developed country Members had chosen when they implemented the TRIPS Agreement.  The Council
still had to wait and see what types of systems the developing countries would introduce.  The
International Undertaking on Plant Genetic Resources for Food and Agriculture was beingrenegotiated in FAO, and this could provide another model as well.  The TRIPS Agreement did not
specify criteria by which to judge whether a sui generis  system was effective.  India believed that
effectiveness depended on the enforceability of a right within a national legal system.  He emphasized
that India's paper was a discussion paper and that the substantive review had only just begun.  The
Council could not assess implementation yet as most Members had not implemented the Agreement,due to the transitional periods.  He would provide comments on the United States' paper later in the
meeting.
71. The representative of the United States introduced his delegation's paper (document
IP/C/W/162).  Responding to concerns that Articl e 27.3(b) would allow the patenting of naturally-
occurring lifeforms in countries that did not avail themselves of the exception, he said that thesewould not satisfy the criteria for patentability in the TRIPS Agreement because they would not be
new nor involve an inventive step, and as an example he quoted section 101 of the US Patent Law
which, although it did not except plants and animals specifically, excluded naturally-occurring
substances.  Some Members had referred to unspecified moral and ethical consequences of the
patenting of lifeforms, but patents only gave their owners rights to prevent others from taking certain
actions in relation to the patented invention, so  that it was difficult to divine what harmful
consequences were envisaged.  In most countries, a patent for a pharmaceutical product or process didnot give the patentee the right to produce and market the pharmaceutical, or the pharmaceutical
product using the process.  A separate process was used to determine the safety and efficacy of the
pharmaceutical in question so that it could not be manufactured, marketed or used until the product
had been approved.  He recalled the intervention by the representative of Australia at the previous
meeting, that countries did not address arms control by discussing the patenting of weapons, but bycontrolling arms themselves.  Likewise, the moral and ethical consequences of inventions of lifeforms
were better dealt with directly.  Concerning plant varieties, the most appropriate level of protection
was the 1991 Act of UPOV, but he did not suggest that it was the only means of protection.  However,
the work of the Council had borne out that there was a commonality of view that UPOV was an
effective means of providing plant variety protection.  The 1991 Act ensured that newly-developedvarieties not covered by the 1978 Act could be protected. Delegations which had criticized UPOV on
the basis that it would not allow farmers to replant seed had failed to note that UPOV allowed
member countries to allow farmers to save seeds from their harvest for replanting on their own
holdings.  The synoptic tables of information provided by Members in the review that had been
prepared by the Secretariat (informal document J ob No. 2689) showed that the majority of Members
who had provided information granted protection for plant varieties primarily through a system that
complied with the 1991 Act of UPOV.  In addition, some Members, including the United States, also
provided protection through their patent systems.  This was useful for Members still in the process of
implementing the Agreement.  Concerning access to genetic resources and traditional knowledge,IP/C/M/25
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some delegations had suggested that patent applicants should identify in their applications the source
of any genetic resources used in the development of their claimed invention as a means of ensuring
benefit-sharing.  Such a system would be impractical  and not ensure that the contributors would share
in the benefits that would flow from the commerci alization of the invention.  The most effective way
to exercise those rights would be to require that parties seeking access to those resources enter into acontract with the entity granting access.  Those contracts would spell out in detail the terms of access
and of any benefit-sharing.  This option had not r eceived adequate attention, but would clarify rights
and obligations at the outset, and help avoid mi sunderstanding and confusion.  The United States
believed that it was sound public policy to grant patents in all fields of technology, including
biotechnology.  It had encouraged the birth and evolution of an entirely new industry, which had
brought about extraordinary developments in agricu lture and public health, and this experience was
transferable to all WTO Members.
72. The representative of the European Communities said that economic growth, social welfare
and public health in the world benefitted from innovations.  Access to knowledge and effective
protection of intellectual property rights were key ingredients to stimulate research and development
leading to economic expansion.  The use of genetic resources, such as plants, animals and micro-
organisms played an important role in this process, because they constituted the raw material forfuture innovative developments in a wide range of industrial sectors.  While the agricultural sector
appeared to rely exclusively on the use of genetic resources, large industries, such as the
pharmaceutical sector, also depended quite considerably on genetic resources.  The process of
reviewing Article 27.3(b) of the TRIPS Agreement should be seen in this context.  The discussions at
the last Council meeting showed that beyond issues covered by the scope of Article 27.3(b) of TRIPS,several other issues had been addressed.  He wished to comment on these matters, while emphasising
that many of the issues raised by WTO Members in this discussion fell outside the scope of the
review.  Several Members had raised the issue of the link between environmental concerns and patent
protection, in particular by referring to a possible conflict between the provisions of the Convention of
Biological Diversity ("CBD") a nd the TRIPS Agreement.  The CBD aimed to enhance biological
diversity and the sustainable use of its components, and provided a multilateral legal framework
relating to the sovereign right of states to regulate the access to and transfer of their genetic resources.
His delegation was of the opinion that the CBD and the TRIPS Agreement were mutually supportive
and that neither of them ran counter to the objectives of the other.  Having said so, he also wished to
state that his delegation was of the view that this ma tter did not fall within the scope of the review of
Article 27.3(b).  An important objective of the TRIPS Agreement was to promote effective and
adequate protection of intellectual property rights, including by providing incentives to inventorsthrough the provision of exclusive rights on a temporary basis.  Intellectual property rights were
instruments to ensure an adequate level of transparency and openness regarding all kinds of
inventions, including those using genetic material.  Without transparency, economic operators,
research and development institutions and inventors could not benefit from the knowledge which
could be derived from the use of genetic material in the innovative processes and activities.Innovative creations would be kept secret and non-available to the public because there would be no
economic incentive to disclose them.  This might lead to increased business secrecy and thereby
develop an anti-competitive contractual environment.  Furthermore, intellectual property rights were
instruments, but not the only ones, used by providers of genetic material to obtain a commercial return
from commercial operators depending on genetic material to develop new products.  Some countriesregulated the contractual relationship between providers and users of genetic material (access and
benefit-sharing agreements).  Patents could be used as an instrument between the parties to these
agreements to secure remuneration to the provider country for the use of genetic resources on a long
term basis.  With the advent of modern technology the commercial use of genetic resources had
become a fact of life.  However, it had to be taken into account that genetic resources used in theseproducts came from many sources: synthetic production, existing collections and natural origins from
both developed and developing countries.  In fact, the majority of genetic resources used to develop
new innovations did not come directly from a "natural source provider", e.g. a developing country.
There appeared to be no common understanding of the amount of genetic resources which wereIP/C/M/25
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provided directly from nature and used by commercial operators.  The same applied for the
commercial value of these resources.  If a country provided for easy access to its genetic resources
and a high level of intellectual property rights for new inventions, it might attract foreign investors
preferring to use natural genetic material instead of synthetic production.  Intellectual property rights
did not aim to regulate the production and distribution of, or access to, genetic resources.  Neither didthey regulate the terms and conditions for bioprospecting.  These were matters for regulation by
national legislation.  The illegal use of genetic resources (biopiracy) could best be tackled through
effective national legislation such as criminal and civil laws and enforcement systems.  The
establishment of easily accessible and transparent application systems for access to genetic resources
were equally important to control the transfer of genetic material, and thus to counter illegal
exploitation.  Many Members at different levels of development had already established or were in the
process of elaborating transfer and access legislation.  He highlighted the importance of co-operationon mutually agreed terms between providers of genetic material and the research-based industry.  This
would enable both parties, through monetary compensation and other means (knowledge sharing,
education programmes, etc.) to benefit from the sustainable exploitation of a country's resources.
Many companies from the industrialised world were already engaged in such co-operation and had
committed themselves, on a long-term basis, to provide training, know-how and common sharing ofbenefits, in return for access to resources.
73. Continuing, he said that biodiversity in the process of creating new inventions did not raise
only commercial aspects.  Ethical and moral concerns might also be addressed and considered
carefully, and different societal values might be taken into account.  A fair balance should be reached
between these concerns and the need to provide for a sound protection of intellectual property rights.Intellectual property rights helped to promote new innovations which contributed to combat diseases,
hunger and other miseries.  To find a fair balance, Article 27.2 of the TRIPS Agreement provided for
exclusions from patentability.  In addition, Article 27.3(b) gave Members the right to decide, on a
national level, whether or not plants, animals and essentially biological processes should be excluded
from patentability.  However, Article 27.3(b) only dealt with specific exclusions from patentability.General exclusions were covered by Article 27.2.  The synoptic tables prepared by the Secretariat
(informal document Job No. 2689) showed the balance reached by the majority of Members providing
information in the review.  They had provided for patent protection of plants and animals as well as
for plant variety protection schemes under the UPOV provisions, with limited exceptions.  While the
European Communities and their member States, following very extensive debates, had established
the scope for the legal protection for biological inventions in Europe, it was up to other WTO
Members to implement the provision as they saw fit.  They should find a balance between legalprotection and their ethical, moral and other societal values.  Several WTO Members had asked the
question whether or not the existing intellectual property rights regime was effective to protect
traditional knowledge.  His delegation considered that there was a need to refine and develop a
common understanding of the concept of traditional k nowledge and its link to the existing intellectual
property rights regime, for instance by clarifying the definition of protectable subject matter,ownership relations and rights conferred.  In respect of these issues, the WTO should benefit from the
work that was already underway in WIPO.  However, he stressed that this was not an issue which
should be dealt with in relation to Article 27.3(b).
74. Continuing, he said that Article 27.3(b) obliged WTO Members to provide for a sui generis
protection system and/or patent protection for plant va rieties.  His delegation was of the view that the
1991 Act of UPOV created the most effective and complete protection scheme for new plant variety
innovations.  Not only big international companies, but also traditional breeders could, for a relatively
small sum, register their new creations and thus ensure the economic benefits derived therefrom.  The
1991 Act of UPOV also made it utterly clear that farmers had a privilege to freely use propagated
seed the following season on their own holdings wi thout having to pay licence fees.  The information-
gathering exercise carried out by the Council had shown that implementation of a sui generis
protection system similar to the UPOV system wa s preferred by those Members responding to the
review.  His delegation considered such UPOV-like systems "effective" in accordance with ArticleIP/C/M/25
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27.3(b) and would urge Members wh o did not already adhere to this Convention to do so.  Some
WTO Members had raised concerns regarding the deadline for implementation for setting up sui
generis  protection for plant varieties.  This should be done before 1 January 2000.  His delegation
recognised the difficulties in creating sui generis  protection systems and the administrative system for
handling these rights, and considered that the most efficient and rapid way to implementArticle 27.3(b) would be to rely on existing harmonised plant variety systems with possible
adaptations to ensure special national needs.  In his delegation's view, regarding the issues which were
directly covered by the review of Article 27.3(b),  the following conclusions could be drawn.  First,
there appeared to be a large degree of similarity among developed country Members on the way they
implemented the provisions of Article 27.3(b) in their patent laws;  he recalled that the European
Communities provided for the exclusion of plant varieties and animal varieties and a number of
exceptions to patentability related to life forms, but provided for the patent protection of plants andanimals if they fulfilled the normal requirements for patentability.  Second, Members responding to
the information-gathering exercise seemed to agree to a large extent that the UPOV system for the
protection of plant varieties established an effective sui generis  protection for plant varieties as
required by Article 27.3(b);  protection for plant varieties could also be provided by patents.  Third,
his delegation drew the conclusion that Article 27.3(b), as it stood, provided the necessary flexibilityfor Members in implementation;  the review of Article 27.3(b) could be closed.  Fourth, with regard to
the specific protection of plant varieties, in his de legation's view, in the future it could be considered
appropriate to clarify the phrase "effective sui generis  system" by including a reference to the UPOV
Convention.  With regard to the implementation of Article 27.3(b) by developing countries, his
delegation looked forward to receiving and examining the relevant legislation as of the beginning of2000 at the latest.
75. The representative of Kenya, speaking on behalf of the African Group, said that the Members
on whose behalf he spoke had been following the discus sions on this item very closely.  He referred to
their submission to the General Council (document WT/GC/W/302), which he requested be
considered a formal submission to the TRIPS Council as well.6  He lent his full support to the
submission made by India.  He then highlighted some of the salient features of the African Group's
own submission.  On the scope and nature  of the review, the mandated review was one of the
substance of the subparagraph itself.  This was clear from the wording of the last sentence of Article
27.3(b).  On the substance of the provisions , the review should seek first to clarify the criteria or
rationale for deciding what could and could not be  excluded from patentability under Article 27.3(b).
This related to the implicit distinction made between plants and animals (which might be excluded
from patentability) on the one hand, and micro-organisms (which might not be excluded) on the other.Another distinction was made between "essentially biological processes" (which might be excluded
from patentability) and "microbiological processes" (which might not be excluded).  Second, the
review should confirm that the concept of "effective protection" as it related to the protection of plant
varieties, either by patents, an effective sui generis  system or a combination thereof, left the discretion
to Members to decide the effectiveness of their implementing legislation in achieving their broadeconomic objectives in a manner consistent with the TRIPS Agreement.  The achievement of such
economic objectives required an optimal combination of instruments including those contained, for
instance, in the CBD and other available international instruments.  These objectives included
preservation of biological diversity, farmer's rights , the environment, as well as ensuring food and
health security.  It was in this light that the Af rican Group viewed the need for harmony between the
CBD and the TRIPS Agreement.  On the architecture  of the Agreement, his delegation was concerned
that deliberations on this subject might not be fruitful and comprehensive until developing countries
had had time to gain sufficient experience with the implementation of the provisions, both of the
Agreement as a whole and of the provisions of Article 27.3(b) in particular.
76. The representative of Norway said that his delegation was of the opinion that the TRIPS
Agreement and the Convention on Biological Diversity as well as other multilateral agreements,
                                                     
6 Distributed subsequently as document IP/C/W/163.IP/C/M/25
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specifically in the environmental field, should be  mutually supportive.  All these international
instruments should support the sustainable use and exploitation of resources.  Thus, all Members
should be aware of the principles under the CBD, when establishing their own regimes for the
protection of intellectual property.  In this rega rd, he noted the wording of Article 16.5 of the CBD.
The obligation to ensure compatibility, among various international instruments also had to be kept inmind, i.e. when parties to the CBD reviewed th eir own national regimes for intellectual property
rights and those of other Members.  One important issue in this respect was whether the TRIPS
Agreement provided for the necessary flexibil ity for Members to enact measures for the
implementation of CBD obligations, e.g. measures to safeguard the traditional knowledge of
indigenous and local communities, and the equitable sharing of benefits arising from such knowledge.
On the question of patents and biotechnological inventions, Norway's experience, stemming back to
the adoption of the Paris Convention for the Protection of Industrial Property, showed that a well-functioning patent system was of vital importance to innovation, economic growth and social welfare
for citizens.  At the same time, the patent system ha d demonstrated a great ability to adapt to the ever-
shifting needs for the protection of technology in new areas.  Norway strongly believed that the
fulfilment of the TRIPS Agreement would foster the same experiences globally.  At the present time,
biotechnology was one of the most promising and increasingly important areas of research for thedevelopment of new products.  In fact, technological progress was so rapid, that fundamental ethical,
social and environmental values were sometimes neglected. Other complex issues, such as what
constituted an inventive step and equity considerations, also confronted Members.  These difficult
issues would have to be considered both in relation to how far Members could go in accepting patents
on lifeforms and in relation to the principle of benefit sharing.  With regard to the former, Norwaymaintained a restrictive attitude, not only in relation to the patenting of plants and animals, but also of
cells which could develop into plants and animals.  His delegation had noted the proposals made in
the review, including the proposal of Kenya, on behalf of the African group, which related to the issue
of patentability of micro-organisms as well as to the patentability of microbiological processes for the
production of plants and animals.  Underlying the Kenyan proposal his delegation sensed afundamental concern as regards the ethical aspects of the extent to which intellectual property rights
should be granted as a result of man's ability to create or duplicate life forms.  These aspects should
form an integral part of the Council's discussion.  They were difficult issues.  During the forthcoming
Round, Members were under an obligation to review the provisions of Article 27.3(b).  During the
review process it would be preferable not to alter the delicately balanced wording on the question of
patentability in Article 27.3(b).  In this context, the fact that developing countries had not yet been
under an obligation to implement the TRIPS Agreement also had to be taken into consideration.  As tothe question of benefit sharing, both the interests of the providers of genetic resources and the users of
such material had to be taken into consideration. In this context, Members had to ensure compatibility
between the CBD and the TRIPS Agreement.  In this regard, he noted that India had proposed to
incorporate a provision, which required the disclosure of the origin of the genetic resources and
associated knowledge.  He thought that this shou ld be seriously considered.  As to international
companies which made use of indigenous genetic resources, they should, through appropriate
agreements, ensure that the people of those societies, from where substances and life forms originated,
benefited from bio-patents.  The current wording in Article 27.3(b) gave Members the option to
establish an "effective sui generis system" for the protection of plant varieties, as an alternative to
patents.  If this option was the preferred one, it was the responsibility of each and every Member tocreate a system which gave sufficient protection for the parties involved.  As long as this was done,
Norway could associate itself with Members who had expressed the need for flexibility in this regard.
He therefore saw no need for a more formal or explicit reference to international agreements on plant
breeders' rights in order to clarify what was meant by an effective system.
77. The representative of Australia, commenting on procedural issues, said that it was an open
question whether the Council should have a mandate to continue its work on this issue in future
meetings and, if so, what the scope of that mandate should be, for example whether it should simply
review national mechanisms, or seek to formulate recommendations concerning implementation and
interpretation of the language in the Agreement.  There were broad unsubstantiated claims, forIP/C/M/25
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example, on a supposed conflict between the TRIPS Agreement and the CBD or on a lack of clarity as
to the boundary between micro-organisms and other organisms, but there had been no discussion of
the extensive material tabled in the Council in the review process on national provisions
implementing this Article.  Many developing country Members were still in the process of
implementation and there might be many lessons to learn from their laws once they had been notified.Australia considered it appropriate for the review of the provisions of Article 27.3(b) to be extended
to all Members obliged to implement by January 2000; otherwise, any conclusions that could be
drawn might be weighed in favour of the Members who had implemented and provided information
earlier.  This review should proceed in conjunction with the Article 71.1 review of overall
implementation, which was the process already established to consider how the TRIPS Agreement
functioned and, if necessary, to provide the conceptual basis for any future discussions as to how the
Agreement might develop further.  Without that conceptual basis, it was difficult to see how furthersubstantive work could be justified, particularly if it meant overriding the existing processes mandated
by the Agreement.
78. The representative of Thailand said that, on the issue of scope, Article 27.3 called for a review
of the provisions of its subparagraph (b).  This required more than an information-gathering exercise
on how each Member applied or implemented its prov isions, but rather an examination and discussion
of the basis and content of the exception that it contained, ultimately leading to its modification, if
necessary.  As things currently stood, the Council was not at liberty to exclude such a discussion for at
least two reasons.  Firstly, this was one of the most high-profile and controversial issues handled by
the WTO, which entailed serious ethical, economic and developmental consequences.  It was
therefore appropriate that in the built-in agenda Members be required to continue discussing the scopeof the exception, and it would be surprising if they were not.  Secondly, the text of the provision did
not call for a review of the application or implemen tation of subparagraph (b), but for a review of the
provision itself.  Other Articles in the TRIPS Agreement, such as Articles 24.2 and 71.1, referred to
reviews of the application or implementation of all or parts of the Agreement but Article 27.3(b)  did
not:  it went further, and Members had to give full faith and credit to its text.  Turning to the substanceof this review, his delegation supported the view ex pressed by the representatives of India and others
and could not accept any narrowing of the exception to patentability contained in Article 27.3(b), or
that any lifeforms had to be patentable, beyond what was already required.  Where Members chose
not to take advantage of this exception and allowed patents to be granted in respect of plants and
animals, certain consequences had to flow where these patented inventions were developed using
genetic resources from another Member's jurisdiction.  Article 27.3(b) should expressly recognize the
right of Members to control access to and use of ge netic resources from within their jurisdiction, and
to receive compensation for revenue derived from inventions using those resources.  Turning to plant
varieties, he said that so long as Article 27.3(b) required Members to provide protection for plant
varieties, the choice of system for that protection that was currently available under Article 27.3(b)
had to remain open, so that each Member could choose a patent system, an effective sui generis
system or a combination of both, and develop it in furtherance of the objectives and principles of theAgreement contained in Articles 7 and 8, in a manner consistent with the Agreement.  The meaning of
the word "effective" in the phrase "effective sui generis  system of protection" would be greatly
improved by clarification.  Although the Agreemen t already allowed general exceptions to exclusive
rights, his delegation saw merit in adding express provisions permitting specific exceptions to plant
variety rights.  These exceptions should, as a minimum, cover farmers' rights, in particular to sow andshare harvested seed of a protected variety; communities' rights; and compulsory licensing where
plant varieties were not available on reasonable commercial terms, in times of national emergency and
in cases of public non-commercial use.  The provision should also put it beyond doubt that Members
were under no obligation to protect all varieties in the plant kingdom.  These provisions would clarify
that the many Members who applied these exceptions and limitations nevertheless complied with therequirement of an effective  sui generis  system of protection.  Finally, Article 27.3(b) did not refer to
UPOV, much less to any particular Act of that Convention, and his delegation would not accept any
attempt to add such a reference.  Members were free to choose a model other than UPOV and should
remain free to do so.  He referred to the United States' paper on Article 27.3(b), which stated thatIP/C/M/25
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systems other than UPOV would have to be judged on their merits, case by case.7  Naturally, UPOV
also had to be judged on its merits and there was no authoritative interpretation which guaranteed that
UPOV satisfied the requirements of Article 27.3(b).
79. The representative of South Africa said that hi s delegation supported the submissions by India
and by Kenya, made on behalf of the African group, which reflected a convergence of views.  First, in
the view of his delegation, this review was one of the substance of the provisions of Article 27.3(b).
The review should clarify the criteria and rationale for what could and could not be excluded from
patentability.  The review should also clarify the discretion for Members to decide what constituted
effective protection for plant varieties.  Members were seeking to find a suitable balance between
patents and other rights.  He had listened with interest to the example of turmeric.  Many developing
country Members were concerned that their products and processes might not be capable of industrial
application, as required by Article 27.1, because they were based on traditional knowledge.  Theytherefore needed to find alternative forms of protection.  South Africa was a member of UPOV and
had a highly developed agricultural sector.  It therefore sought to use some of the options provided by
UPOV, but did not exclude the possibility of using ot her instruments, such as the CBD.  In response
to suggestions by other Members, his delegation objected to any attempt to incorporate UPOV in
Article 27.3(b).
80. The representative of Singapore said that, concerning the scope of the review, the Council
should not a priori  exclude anything from the review.  If problems had arisen in practice, these should
be discussed.  This might lead to clarification and satisfactory resolution.  India's paper had raised
interesting questions which the Council should try to answer.  For example:  was there an
internationally accepted view as to what constituted a micro-organism?  If not, the Council shouldexamine what could be generally accepted.  India's paper had also raised the question of the
patentability of biological material, namely cell-lines, enzymes, plasmids, cosmids and genes.  He
acknowledged difficulty in understanding these terms and suggested that the United States or
European Communities' delegations could assist in explaining them.  India's paper suggested that the
patenting of micro-organisms could be left to national policy.  He suggested that the Council attemptto reach an understanding on issues that fell within  the scope of the TRIPS Agreement in an effort to
harmonize approaches.  This was important because many countries were involved in biotechnology,
both agricultural and pharmaceutical, and they could not be disregarded.  It would be better to have
international rules than differing national rules.  The United States paper had referred to micro-
organisms, such as unicellular organisms, bacteria and yeast.  He suggested that the United States
delegation clarify the question raised by India in this regard.  The language of Article 27.3(b) offered
flexibility as to the choice of a system to protect plan t varieties.  He agreed with the United States that
Members' respective systems had to be examined case-by-case and was hesitant about requiring a
particular Act of UPOV as the model for implementation.  The number of speakers on this agenda
item indicated the importance of this issue.  He would provide more detailed comments at a later
stage.
81. The representative of Switzerland said that her delegation had not kept silent on this issue
because of lack of interest.  It had done so for two reasons.  Firstly, the issue was still at an early stage
of discussion:  even industrialized Members first had to analyze the situation, from an objective and
factual perspective.  Even for these Members,  absorbing the subject-matter and its complexity
required time.  The Council had spent more than tw o years reviewing legislation and was only at the
beginning of a fact-finding exercise.  Second ly, the TRIPS Agreement was a minimum standards
agreement which allowed for transitional periods because the negotiators were aware of the problems
of structural adjustment in developing country Members.  Those for whom the transitional period
expired on 1 January 2000 had first to implement the minimum standards, and then their legislation
had to be reviewed, which would require time.  As the developed country Members had needed time
to digest the material, this applied a fortiori  to the developing country Members.  She agreed with the
                                                     
7 Document IP/C/W/162, page 4.IP/C/M/25
Page 19
Indian delegation that a fact-finding exercise would not give a complete picture because it only
concerned developed country Members, but she found this logical as the developing country Members
had not yet implemented the Agreement.  In order to obtain a complete picture, developing country
Members had to be included once their legislation had been reviewed.  Her delegation supported the
views expressed by the United States and the European Communities and by Australia at the previousmeeting.  The explanations given had been objective and were useful.  The issue of traditional
knowledge was not new;  those who had participated in the discussions in the context of the CBD and
FAO knew that it was a complex subject with ramifications affecting the structural, administrative and
cultural organization of a country, for example, its system of land ownership and the notion of
collective rights.  For Switzerland, this involved an important socio-economic right:  whether it
involved an intellectual property right was the question raised in these international fora and her
delegation had welcomed the explanations from those countries which had created a new, operativeand effective category of intellectual property right.  The work in these fora had to be taken into
account, as did the work of WIPO which was examining traditional knowledge.  Switzerland attached
great importance to the concerns raised by developing country Members and was trying to find
operational solutions in the framework of the CBD and the FAO.  In the CBD, Switzerland had
proposed draft voluntary guidelines on the subject of access to genetic resources and benefit-sharing,with the support of economic operators and research institutes and on the basis of voluntary
agreements.  Wherever responses could not be  found in the framework of the CBD or FAO,
imaginative solutions should be looked for.  For example, the Indian delegation had cited examples of
problems that had arisen with regard to traditional knowledge, such as in relation to turmeric and
neem, in particular the important problem of the cost involved in patent revocation procedures.  Onepossible solution was the creation of a database managed by WIPO in cooperation with organizations
which collected traditional knowledge of communities, in order to facilitate the examination of the
novelty of claimed inventions.  Rather than the creation of a new intellectual property right, she would
propose, instead, to use existing intellectual property rights, such as trade secrets, trademarks (these
could, for example, be used for turmeric, and medicines such as St. John's wort), patents (wherever alocal community could add an inventive step), pl ant variety rights and geographical indications.
Ignoring these possibilities denied holders of traditional knowledge access to instruments proven to be
effective for generators of intellectual property in industrialized countries and several developing
countries.  There was a whole range of solutions available on this subject.
82. Continuing, she referred to the representative of the United States, who had given an
exhaustive statement on the issue of sui generis  protection, to which she wished to add just one
comment.  Apart from literal reading of the Agreemen t, it should be noted that the drafters had not
incorporated a reference to UPOV because of the limited geographic coverage of that Convention at
the time of the negotiations.  It had already been diff icult for some parties to accept a reference to the
Paris Convention.  However, her delegation was ready to review any effective sui generis  system
developed by a Member and the review of the Agreement in the year 2000 would be a suitable time to
do this.  The objective of the TRIPS Agreement was not to deal with the protection of intellectualproperty  in each and every detail.  It would be dangerous to consider it an exhaustive document.
There were specialists in other fora examining the issues involv ed not only from an intellectual
property perspective.  Lastly, she referred to a specific case in which a company had withdrawn a
patent application made in respect of terminator gene technology.  In her view, this represented a
defeat for the opponents of the patent system, b ecause the technology could now be used by anyone
without surveillance.  The usefulness of the patent system lay, among others, in the transparency it
provided: technology claimed to be new could be tracked and if necessary challenged.
83. The representative of Malaysia said that his delegation shared many of the views expressed
by the representatives of Thailand and Singapore.  Firstly, he emphasized that the scope of the review
covered the provisions themselves and not just their implementation.  Secondly, UPOV was not theonly acceptable means for the implementation of the provisions on plant variety protection.  The
Secretariat's background note (WT/CTE/W/125) had show n that some Members, such as the Members
of the Andean Community and Costa Rica, had different models.  Thirdly, there was a need toIP/C/M/25
Page 20
examine the compatibility of the TRIPS Agreement with the CBD.  Although the United States and
the European Communities had expressed a different view, Malaysia and other Members, as well as
civil society, believed that there were incompatibilities between the two.  The traditional knowledge
of people in developing countries had been cast aside in favour of multinational corporations.  Finally,
he agreed with the point in the United States' paper that patents gave owners the right to restrainothers from taking certain actions, but did not give the owners the right to exploit the claimed
inventions themselves.  However, he recalled that the United States had never made such a statement
in the discussion on non-violation complaints, although many Members were concerned that the non-
violation remedy could be used to prevent them from implementing public policies which restricted or
prohibited the exploitation of intellectual property rights.  He invited the United States to reassure
Members by clarifying that it held this view with respect to non-violation complaints as well as the
patenting of biotechnology.
84. The representative of Paraguay offered preliminary comments to the Indian and United States'
papers and drew attention to a joint proposal ma de by Cuba, Honduras, Paraguay and Venezuela to
the General Council (document WT/GC/W/329 of 20 September 1999) on the protection of
intellectual property rights in traditional knowledge.8  His delegation, in view of text of the
Agreement, believed that the treatment and analysis of the establishment of a sui generis  system or
register of traditional knowledge should be handled under Article 71 and not under Article 27.  It
would not be opportune to continue to discuss traditional knowledge under this agenda item.
Responding to the intervention by the representative of Switzerland, his delegation believed that,
more than taking account of the work carried out in other fora, such as UNESCO and WIPO, the
TRIPS Council and the WTO should take note of the economic implications of the commercializationof goods which contained ample traditional knowledg e, and broaden the application of the Agreement
and its protection, as had, for example, also been proposed for electronic commerce and other
subjects.  His delegation reserved the right to make more detailed comments on this issue, given the
limited time that there had been to analyze the various proposals.
85. The representative of Peru said that Bolivia, Colombia, Ecuador, Nicaragua and Peru had
made a joint proposal on the protection of traditional knowledge of local and indigenous communities
for the Third Ministerial Conference (document WT/GC/W/362 of 12 October 1999) and requested
that it be distributed to the Council for TRIPS.9
86. The representative of Venezuela, like the representative of Paraguay, referred to the joint
proposal on traditional knowledge made by Cuba, Honduras, Paraguay and Venezuela to the General
Council (document WT/GC/W/329 of 20 September 1999).  This proposal was completely compatible
with the joint proposal made by Bolivia, Colombia, Ecuador, Nicaragua and Peru and his delegationcould share all the concepts that it contained.  He wished to avoid confusion between access to genetic
resources and the protection of traditional knowledge.  Access to genetic resources was more linked to
biodiversity, the CBD, and the preservation of the environment.  The legal or illegal acquisition of
genetic resources was also an important issue, for which perhaps the method of identifying the source
material for patents was especially useful.  This was also related to databases of genetic materialwhich had been studied in the FAO.  However, the issue of traditional knowledge was fundamentally
different because it concerned added value, which could be recognized as an intellectual property
right, as had been in some countries, although not in the majority of countries.  It had added value
with particular characteristics, which could affect novelty, whether something was in the public
domain, and whether something was considered an invention or a mere discovery.  Secondly, therecould be inventions with a handicraft application, but not a true industrial application, and this was
important for many developing countries.  His delegation believed that a sui generis system was
necessary for various reasons:  first, traditional knowledge had certain characteristics that were
peculiar to it.  The holders were typically collectives, not individuals, whilst existing intellectual
                                                     
8 Subsequently also distributed as document IP/C/W/166.
9 Subsequently also distributed as document IP/C/W/165.IP/C/M/25
Page 21
property regimes were basically directed toward natural or legal persons.  Moreover, these groups
usually had no legal personality, although they acted collectively.  The subject-matter was very broad,
and could involve medicinal practices, construction techniques, folklore, literature, music, dance,
design, etc. Many countries had begun to protect this subject-matter by first compiling inventories for
registers reflecting this knowledge and its diversity , trying to specify and determine them.  Another
reason why current intellectual property systems, su ch as the patent system, were inapplicable, was
that traditional communities often did not have scientific methods, but rather tradition and trial and
error over time.  He quoted the joint proposal made by Bolivia and others:  "Over time, the scope of
intellectual property has been expanded by recognizing new subject matter of protection.  This
broadening has taken place by the inclusion of special ( sui generis ) systems of protection or through
the widening of the traditional categories of protection so as to cover new subjects.  In recent decades,
the laws of WTO Members as well as international instruments have recognized as new subject matterof protection, for instance, plant varieties (1950s and 1960s), biological material, plants and animals
(1970s and 1980s), layout-designs (topographies) of  integrated circuits (1980s), software (1980s and
1990s) and databases and compilations of data (1980s and 1990s)."
10  The creation of a new system
was therefore nothing extraordinary.  It was necessary to protect the traditional knowledge of local
and indigenous communities.  Many countries, including Venezuela, were currently havingconstitutional problems, but they had cultural diversity which should be respected, conserved and
maintained.  The intellectual property system could deliver results which, although they might not be
magic or marvellous, would be useful and appropriate to this need.
87. The representative of Ecuador noted that many delegations had made submissions on the
scope of the review of Article 27.3(b).  This subject gave rise to many concerns for all Members but
especially developing country Members.  In the view of Ecuador, the review was not simply a
question of this provision's application, but rather one of its substance, involving a detailed
examination which could eventually lead to a substantive modification of the provision.  His
delegation agreed with the criteria presented by many other delegations for a framework for this
review, as reflected in some respects in the papers of Kenya, on behalf of the African Group, and ofIndia.  In this context, it seemed particularly relevant to clarify the criteria as to what could or could
not be patentable subject-matter in the light of Article 27.3(b) and other points with implications from
a conceptual perspective, for example the distinction between essentially biological processes and
microbiological processes.  Ethical and moral aspects also had to be given careful consideration,
given their growing impact on activities related to Article 27.3(b) and with intellectual property rights
in general.  Ecuador was a co-sponsor of the proposal on the protection of traditional knowledge of
local and indigenous communities to which the representative of Peru had referred, which required acomprehensive and effective multilateral framework that permitted them to safeguard their economic,
commercial and cultural value.  The majority of this traditional knowledge consisted of innovations,
creations and cultural expressions generated or preserved through communication from one
generation to another over time, a fortune of inheritance which was closely linked to the application of
genetic, biological and natural resources and equally with the question of the preservation of theenvironment.  In this framework, he underlined  that Ecuador attached great importance to the
harmonization of the TRIPS Agreement with the CBD, given that this would contribute decisively to
the completion of a multilateral legal framework which would assist in a just and equitable sharing of
the results of investigation and development as well as the benefits of their commercial use and of
other kinds of genetic resources.  He took note of the suggestion of the representative of Switzerlandon the creation of a database that could be administered by WIPO, on which he would reflect and
comment at the next meeting.
88. The representative of Pakistan welcomed the substantive debate that had begun.  He
suggested that future discussions focus on specific issues which had been raised, according to a list
which the Secretariat would prepare, cross-referenced to the written submissions that had beenreceived.  These issues should include, first, the definition of micro-organisms and the criteria or
                                                     
10 See document WT/GC/W/362, paragraph 2.IP/C/M/25
Page 22
rationale for deciding what could or could not be excluded from patentability, as identified in the
Kenyan paper in paragraph 1.2.1, in particular the distinction between essentially biological processes
and non-biological processes.  Second, the review should examine what constituted "effective" sui
generis  protection, and whether systems other than the 1991 Act of UPOV were acceptable.  Third, on
the issue of access to genetic resources and traditional knowledge, the United States' paper suggestedthat the most effective means to address this issue was by contracts between those granting and
obtaining access to resources, whilst other delegations suggested that the source of material should be
disclosed in patent applications.  These suggestions were not mutually exclusive and there might be
others.  He sought clarification from the United St ates of its suggestion, and stated that his delegation
did not believe it would be ineffective to require disclosure of the origin of genetic resources in patent
applications, since the national authorities in places of origin could be notified in order to verify that
consent had been obtained.  The United States' suggestion assumed that those national authoritieswere duly contacted prior to obtaining access of genetic resources, which was not always the case.
Fourth, ethical concerns needed to be fleshed out further.
89. The representative of India noted that the substantive review of the provisions of
Article 27.3(b) had begun.  Commenting on the United States' paper (document IP/C/W/162), he
recognised the benefits of biotechnology outlined, but pointed out that it brought with it the risk oflesser use, and hence possible extinction, of landraces (i.e. plant varieties) and thereby affected
biological resource availability.  Paragraph 8 of  the paper listed biotechnological developments
mentioned, but many were in fact based on traditional knowledge.  As regards paragraph 9, which
mentioned a significant portion of the research which was conducted by universities and federal
laboratories, he wondered what was the public funding component of this research.  He recalled thatthe representative of Switzerland had referred to Mo nsanto's withdrawal of its patent application, but
other harmful technologies, such as those known as "GURTs", were also being patented, and his
delegation was concerned that firms were making greater efforts to obtain technological protection
than legal protection.  In relation to paragraph 10, he wondered how many patent disclosures were
actually sufficient to enable the invention to be replicated and how many were actually replicated tojudge novelty or inventiveness before grant in patent offices.  He said that 90% of the world's
biological diversity resources were in developing countries and 97% of patents were granted to
companies from developed countries.  At least 50% of the pharmaceuticals that were developed would
have to be based on these biological diversity resources, and this was the situation that Members had
to face.  He disagreed with the view that the CBD and the TRIPS Agreement were compatible:  one
talked of conservation of biological resources, the other talked of purely commercial exploitation
without respect for community rights.  These objectives were fundamentally different.  One talked ofsovereign and communal rights, the other talked of monopoly rights.  He referred Members to India's
submission to the Committee on Trade and Environment (document WT/CTE/W/65, dated 28
September 1997).  Turning to the United States' suggestion of a material transfer agreement entered
into by an inventor who used indigenous knowledg e, he knew of such an agreement in Kerala in
India.  Whilst it was all very well to acknowledge that countries had sovereign control over their own
natural resources, the problem was that it could not be enforced at national borders because genetic
resources could be removed from a country so easily, by simply carrying germplasm or seed in a
pocket. Therefore, prior informed consent was essential.  Enforcement had to occur at the
international level, due to the nature of biological resources.  Where was the guarantee that a person
removing genetic resources had obtained prior informed consent?  An international arrangementrequiring disclosure of origin was needed.  Lastly, he commended the Norwegian submission which
he had found the most balanced of all.
90. The representative of Mexico hoped to offer detailed comments on the written submissions in
the future.  Without commenting on the nature and scope of the review of Article 27.3(b), she said
that Mexico had implemented its obligations under that Article which would enter into force fordeveloping country Members on 1 January 2000.  The Mexican patent legislation did not allow
patenting of plants or animals, nor of plant varieties.  Mexico had enacted a specific law for the
protection of plant varieties which incorporated the substantive obligations of UPOV and had enteredIP/C/M/25
Page 23
into force on 26 October 1996.  In 1997, Mexico had acceded to the 1978 Act of UPOV.  Mexico
believed that this legislation provided effective protection for plant variety rights in the terms of
Article 27.3(b) and that it fulfilled the obligations as they currently stood.  Her delegation wished to
maintain the flexibility that the provision currently allowed, both preserving the possibility of
excluding from patentability plants and animals and essentially biological processes, and the option of
protecting plant varieties through an effective sui generis  system according to national legislation and
practice.
91. The representative of Canada underlined the importance of the work being undertaken in
WIPO on traditional knowledge, which identified the issues of this new concept.  Much traditional
knowledge was not written down and presented unique challenges as to how to deal with it.  The
WIPO process should be the main focus of Members' actions in this area, as WIPO had the necessary
expertise and a process that involved people from outside governments, which was important in thisarea.  This issue did not involve simply trade and, consequently, it was appropriate to handle it in a
body that did not have a trade focus.  Not only internationally, but also domestically, in national
administrations, the concept of traditional k nowledge was still being explored.  Turning to
biotechnology, he said that an increasing number of agricultural and industrial products developed
through biotechnology were being commercialized and traded.  Countries at all levels of developmentwere participating in this biotechnology trade.  A number of WTO Agreements were relevant and,
although a number of Members felt that the existing provisions were adequate to deal with
biotechnology, others felt that clarification and elaboration were required.  Canada had therefore
proposed the establishment of a working party on biotechnology which would have as its focus a fact-
finding exercise within a limited timeframe, wh ich would identify all elements under the WTO
Agreement that impacted upon biotechnology, in addition to the work of the Council for TRIPS.
92. The representative of Egypt referred to his delegation's submission to the General Council
(document WT/GC/W/136) and supported the submissions made by Kenya and India.  This review
should consider the provisions of Article 27.3(b), and their possible amendment, and not just their
application.  He stressed the need for flexibility in the means of implementation, and the importanceof leaving Members discretion in establishing an effective system consistent with their broad
economic objectives.  His delegation rejected any attempt to remove this flexibility  Time was
required to allow developing country Members to gain experience with the implementation of this
Article.
93. The representative of Japan said that his delegation's interpretation of the relevant provisions
was somewhat different from that expressed by India in its paper.  The differences had nothing to do
with the obligation to implement the TRIPS Agr eement which all Members, including Japan and
India, had to fulfil.  In implementing the Agreem ent, Members should follow established practice in
international intellectual property circles.  There was already great similarity in the relevant practices
among Members, even though Members had legislated based on their own interpretation of the TRIPS
Agreement.  Japan had already ratified the CBD and therefore accepted its underlying objectives.
However, the CBD and the TRIPS Agreement had different perspectives which were complementaryand mutually compatible, so that they should be implemented and deliberated upon in separate
frameworks.  The CBD was aimed mainly at conserving biological diversity and the sustainable use
of its components, whilst the TRIPS Agreemen t aimed to reduce distortions and obstacles to
international trade.  Moreover, the CBD was currently under elaboration.  His delegation was
therefore of the view that it was premature to address related issues in depth within the framework ofthe TRIPS Agreement.  Thirdly, the concept of traditional knowledge of local and indigenous
communities was not yet clearly defined and had no clear relationship to intellectual property.  The
possible inclusion of its  protection in the TRIPS Agreement had therefore not reached a suitable stage
for discussion in the TRIPS context.  Finally, he noted that India was participating in the UPOV
community, and that other developing countries, including Kenya, were already Contracting Parties toUPOV.IP/C/M/25
Page 24
94. The representative of Brazil wished to highlight, without prejudice to the discussions
undertaken at the General Council on the issues related to the review of Article 27.3(b) of the TRIPS
Agreement, some of the useful contributions recently put forward at the WTO and other fora related
to this issue.  The documents circulated by the Kenyan, Indian and United States delegations
presented many interesting considerations on the issues of the patentability of lifeforms, the
relationship between the CBD and the TRIPS Agreement, and the protection of plant varieties, among
other issues.  On the issue of the patentability of lifeforms, the Brazilian Law on Industrial Property,
along the same lines as the TRIPS Agreement, excluded from patentability the whole or parts of
lifeforms other than transgenic micro-organisms that complied with the three requirements of
patentability (novelty, inventive step and industrial applicability) and that were not mere discoveries.
In this sense, Brazil considered that both the proposal of excluding patentability for all lifeforms, as
proposed by India, and the proposal of extending patentability to all lifeforms, as proposed by theUnited States, would not be satisfactory for Brazil.  The optimal outcome for Brazil on this particular
issue would be to maintain the status quo of Article 27.3(b) as it was.  On the relationship between the
TRIPS Agreement and the CBD, Brazil was employing its best efforts to implement and enforce the
TRIPS Agreement.  At the same time, Brazil had the greatest biodiversity on the planet and was the
first signatory of the CBD.  As a Member with vested interests in both Agreements, Brazil consideredthat the TRIPS Agreement could be an important instrument to provide effectiveness to Article 8(j) of
the CBD, thus ensuring that both agreements were mutually supportive.  Furthermore, Brazil was of
the view that the incorporation of some noti ons of the CBD in the TRIPS Agreement should not
necessarily entail a reduction of the existing standards for protection of intellectual property rights.  In
fact, Brazil considered that a broader scope of protection that included elements of particular interestto developing countries would be highly beneficial for the strengthening of the intellectual property
system under the WTO.  As regards the issue of traditional knowledge, the United States' paper
referred to the possibility of establishing contracts with the sovereign entity that granted access.  In
fact, Brazil was undertaking discussions at the national level on draft laws regarding this issue.
However important such mechanisms might be, Brazil understood that they were not sufficient toprovide a fair and equitable partition of the benefits between the users and owners of traditional
knowledge.  Consequently, developing countries we re seeking stronger multilateral protection for
such knowledge under the TRIPS Agreement.  Several countries had mentioned the issue of the
protection of plant varieties by an effective sui generis system.  Brazil had established a Law on the
Protection of New Varieties of Plants in 1997 and had recently adhered to the Convention on the
Protection of New Varieties of Plants (UPOV).  The sui generis protection in Brazil resulted in an
effective protection of new plant varieties that had been developed in Brazil.  Although Brazilconsidered that the UPOV system should always be considered as an important reference under the
review of Article 27.3(b), the national experiences of other countries in developing other sui generis
systems should not be excluded as important contri butions to the discussions.  In this connection,
Brazil called the attention of Members to the background note on “ The Relationship between the
Convention on Biological Diversity (CBD) and the TR IPS Agreement, with a focus on Article 27.3(b) ”
(document WT/CTE/W/125), prepared by the Secretariat on a request from the Committee on Trade
and Environment.  This document provided an overvi ew of existing international instruments relevant
to plant variety protection, as well as country studies on the implementation of sui generis  systems
based on the UPOV Convention, and examples of legislation enacted to implement the CBD.  Brazil
considered that this paper was a useful input for delegations in further discussions on Article 27.3(b).In the context of the preparations for the next Mini sterial Conference in Seattle, Brazil welcomed the
proposals by several delegations to discuss the review of Article 27.3(b), particularly on the issue of
the protection of traditional knowledge.  The fact that a significant number of delegations like
Venezuela, Peru, Ecuador, India, Cuba, Kenya ( on behalf of the African Group) and Egypt, among
others, had expressed their wish to include issues related to Article 27.3(b) demonstrated theimportance of such discussions for developing count ries.  Among those proposals, Brazil would like
to single out the joint proposal by Bolivia, Colombia, Ecuador, Nicaragua and Peru on the protection
of traditional knowledge of local and indigenous communities (document WT/GC/W/362 of 12
October 1999), which presented sound arguments in favour of discussing the issue of traditional
knowledge at the WTO.  The paper suggested the establishment of studies, in collaboration with otherIP/C/M/25
Page 25
relevant international organizations, in order to issue recommendations on the most appropriate means
of protecting traditional knowledge as an object of intellectual property rights.  Brazil considered that
such studies could be a first step for the better understanding of all Members on the benefits of the
incorporation of traditional knowledge in the intellectual property system.
95. The representative of Korea said that his delegation intended to provide comments on the
written submissions in the future.  Traditional knowledge, as his delegation understood it, was a vague
concept that had not yet been fully explored.  The Council should wait for the outcome of the
discussion in WIPO on the matter so as to benefit from its expertise in this area.  The CBD and the
TRIPS Agreement should be developed in a mutually complementary and supportive manner.
96. The Chairperson, summing up, said that the debate had been interesting and substantive. The
discussions, which had not only touched on intellectual property but also on ethical, social and
cultural areas, should be continued in the future.  Many delegations had requested time to considerwritten submissions made, including in the context of the General Council.  He suggested that the
Council take note of the statements made and revert to this matter at its next meeting, taking into
account the outcome of the Seattle Ministerial Conference.
97. The Council so agreed.
K. ARTICLE 64.3
98. The Chairperson said that, at previous meetings, the Council had had a substantive exchange
of views on the matter which appeared in the minut es of those meetings.  His informal consultations
on the matter since the meeting of the Council of 7 and 8 July 1999 had shown that no consensus had
been reached.11  The Council had to send to the Ministerial Conference certain recommendations on
this matter, but it was clear that no recommendations could be agreed upon.  He suggested that theCouncil use its Annual Report (1999) to convey to the General Council what the situation on the
matter was, for example by adding the following text to paragraph 26 of the draft Annual Report
(1999) as contained in document IP/C/W/157:  "Most Members have expressed themselves in favour
of recommending to the Ministerial Conference an extension of the period referred to in Article 64.2
of the Agreement in order to allow the Council to further examine the scope and modalities of non-violation complaints under the TRIPS Agreement.  One Member has made it clear that it is not in a
position to join a consensus to that effect."
99. The representative of the Philippines said that he concurred with the Chair's summary but
that, if the Annual Report were to take into consideration the positions of single Members, it should
include an additional sentence that many Members were of the view that if there were no consensus
on the scope and modalities, there was no room for non-violation and situation complaints as of
1 January 2000.
100. Following a discussion in the Council, the Chairperson proposed that a record of the debate in
the informal consultations on this matter be included in the Minutes (see Annex) and the following
two sentences be added to his earlier proposal fo r the Annual Report:  "Some Members were of the
view that, in the absence of a decision of the Ministerial Conference pursuant to Article 64.3, there
would be no scope for non-violation complaints under the TRIPS Agreement.  Some other Memberswere not in a position to share this view."
101. The Council agreed to proceed as proposed by the Chair.
                                                     
11 Various delegations requested their statement made during the informal consultations on 20 October
1999 to be reflected in these minutes.  As suggested by the Chair, the discussion at the informal consultations isreflected as a whole in the Annex to the present document.IP/C/M/25
Page 26
L. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
(i) Accessions
102. The Chairperson informed the Council that on 21 May 1999, the Government of Estonia had
accepted, subject to ratification, the Protocol of Accession of Estonia to the Marrakesh Agreement
Establishing the World Trade Organization, done at Geneva on 21 May 1999 (WT/Let/300).Paragraph 2 of the Protocol of Accession for Estonia (circulated in document WT/ACC/EST/30)
incorporated the commitment given by Estonia in relation to intellectual property as reproduced in
paragraph 126 of the report of the Working Party on the Accession of Estonia.  This paragraph said
that "the representative of Estonia stated that Estonia would fully apply all the provisions of the
Agreement on Trade-Related Aspects of Intellectual Property Rights from the date of its accession to
the WTO, without recourse to any transitional period".  Estonia had deposited its instrument of
ratification and would become Member of the WTO on 13 November 1999.  Consequently, it wouldbe under an obligation to apply the provisions of the TRIPS Agreement as of that date.
103. The Chairperson suggested that, in accordance w ith the practice so far in respect of newly
acceded Members, the Council add Estonia to the list of Members whose implementing legislation
would be reviewed in the second part of 2000.
104. The Council so agreed.
105. The Chairperson informed the Council that on 6 October 1999, the Government of Georgia
had accepted, subject to ratification, the Protocol of Accession of Georgia to the Marrakesh
Agreement Establishing the World Trade Or ganization, done at Geneva on 6 October 1999
(WT/Let/312).  Paragraph 2 of the Protocol of Accession for Georgia (to be circulated in document
WT/ACC/GEO/33) incorporated the commitment given by Georgia in relation to intellectual propertyas reproduced in paragraph 161 of the report of the Working Party on the Accession of Georgia.  This
paragraph said that "the representative of Georgia stated that Georgia would fully apply all the
provisions of the Agreement on Trade-Related Asp ects of Intellectual Property Rights from the date
of its accession to the WTO, without recourse to any transitional period".
(ii) Dispute Settlement
106. The Chairperson informed the Council that since its meeting in July 1999, one new dispute
settlement case concerning the TRIPS Agreement had been initiated under the DSU.  As he had
mentioned under Agenda Item D, the European Communities and their member States had requested
consultations with the United States concerning Section 211 of the United States Omnibus
Appropriations Act of 1998 (IP/D/20).
M. DRAFT ANNUAL REPORT
107. The Chairperson recalled that the draft Annual Report of the Council had been circulated in
document IP/C/W/157 and updated on the day of this meeting in document IP/C/W/157/Rev.1.  The
changes were marked up in bold type but they were minor .  The Chairperson proposed that the
Council adopt this revised version, with the addition of the four sentences agreed under Agenda
Item K, as its Annual Report (1999) and have it forwarded to the General Council.
108. The Council so agreed.IP/C/M/25
Page 27
N. OTHER BUSINESS
(i) Statement by Malaysia concerning optical disk piracy
109. The representative of Malaysia said that his government, in its efforts to combat optical disc
piracy, was contemplating optical disc (licensing and control) legislation to be tabled in Parliament.
This legislation would further enhance IPR protecti on, which was now provided by the Copyright Act
1987.  This legislation was aimed at licensing and regulating manufacturers of optical discs, with a
view to preventing the manufacture of counterfeit copies of optical discs and the infringement of
copyright works in optical discs.  The legislation provided for stiff penalties for offenders, and it was
Malaysia's intention to strictly enforce the provisions of this legislation.  However, he said it was
sometimes all too convenient to blame optical disc piracy or counterfeiting solely on the infringers of
copyrights.  In relation to this, owners of copyrights must also bear a certain responsibility to
discourage piracy, such as by setting reasonable rates for their products or by including tamper-proofor copy-proof devices so that the motivating factor for piracy was reduced.  It had to be stated that
infringement of rights would be difficult to cont ain, so long as the environment remained conducive
to it and the priority of copyright holders was on making profits with little regard for ensuring
reasonable prices for their products in the international market.  For Malaysia, as a developing country
Member, the TRIPS Agreement was lopsided, as the onus was on governments to enforce rights andscarce resources had to be devoted to this task.  Malaysia would continue to do so, but there had to be
shared responsibility between governments and right holders.  He reserved the right to revert to this
issue at the appropriate time.
(ii) Dates of meetings of the Council in 2000
110. The Chairperson said that the Secretariat had pe ncilled in tentatively the following dates for
meetings of the Council in 2000, which could be modified depending on the outcome of the Seattle
Ministerial Conference.  These were:
21 and 22 March
26 to 30 June
21 and 22 September27 November to 1 December
(iii) Review under Article 71.1
111. The Chairperson informed the Council that this issue had been discussed informally. It had
been noted that there were relevant proposals before the General Council which would be discussed at
the Seattle Ministerial Conference.  Therefore, he proposed that this item be included on the agenda of
the Council for TRIPS at its first meeting in 2000, taking into account the results of the Ministerial
Conference.
112. The Council so agreed.
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ANNEX
Record of the Informal Consultations on the Issue of Article 64.3
(held by the Chair on 20 October 1999)
1. The Chairperson said that this was the last meeting of the Council before the end of the period
during which the Council had to conduct the examinat ion provided for in Article 64.3.  According to
Article 64.3, the Council shall "submit its recommendations to the Ministerial Conference for
approval."  Consequently, he had invited delegations, in the fax inviting them to this meeting, to
consider what recommendations the Council might make on this matter.  He was conscious that this
was also the subject of debate in the General Council and that various delegations had made proposals
regarding the extension of the moratorium under Article 64.  However, it appeared that it would be
useful to share views on this issue and, in particular, to see, in the absence of a consensus in the
TRIPS Council, what follow-up  could be given in  the General Council, in preparation for the
Ministerial Conference.
2. The representative of Canada said that the C ouncil needed to continue its examination of the
scope and modalities of the use of this remedy in the context of the TRIPS Agreement.  His delegation
proposed that the draft Annual Report note that Members of the Council for TRIPS submitted a
recommendation to the Ministerial Conference that the Council for TRIPS take an appropriate periodof time to examine the scope and modalities of complaints of the type provided for under this Article,
followed by the original language of Article 64.3, to the effect that any decision of the Ministerial
Conference to extend that period of time shall be made only be consensus and that approved
recommendations shall be effective for all Members without further formal acceptance process.
3. The representative of India said that the Council had not examined substantively the scope
and modalities of non-violation complaints, although many delegations had expressed their points of
view, and there was an overwhelming majority opinion, but not a consensus, that non-violation
complaints should not apply.  Some, like Canada, su ggested a further period to examine complaints of
this type.  India's view was that non-violation complaints should not apply to the TRIPS Agreement at
all, and he referred to the rarity of such complaints under the GATT.  The absence of a substantiveexamination in the Council meant that, as a minimum, the complaints should not apply immediately,
although India would prefer that they were excluded indefinitely.
4. The representative of the United States maintained the views he had expressed in earlier
meetings.  It was clear from a plain reading of Artic le 64.3 that, in the absence of a consensus, the
moratorium would expire on 1 January 2000.  His delegation believed that it was appropriate for the
moratorium to expire.  He saw no scope for a recommendation from the Council to the Ministerial
Conference.
5. The representative of Hungary said that, in light of the relative lack of clarity of the basic
concepts, the complexity of the issues involved and the divergence of views as to the applicability and
desirability of the remedy, further analysis was needed to forge a consensus on the recommendations
on the scope and modalities called for by Article 64.3.  In his delegation's view, recommendations by
the Council and their approval by the Ministerial Conference was a precondition for the lapsing of themoratorium.  In the course of preparations for the 1999 Ministerial Conference, the CEFTA countries
and Latvia had proposed that the Ministerial Conference should clarify that the period in Article 64.2
did not expire until the period of work, including the approval by consensus of the Council's
recommendations on the scope and modalities, was completed.  The Council should make
recommendations and, in order to give momentum to this work, it should be able to agree on setting anew and realistic target date by which time it could deal with and complete the necessary analytical
work and consensus-building.IP/C/M/25
Page 29
6. The representative of Singapore said that Article 64.3 required an examination of the scope
and modalities, but the Council had not complied with that requirement.  Members therefore needed
to decide what to do, either in this Council, the General Council  or the Ministerial Conference.
7. The representative of the Philippines said that from a strictly legal viewpoint his delegation
agreed with the United States that the moratorium lasted five years and that it required consensus to
extend it, failing which the moratorium expired de jure  on 31 December 1999.  However, even if the
moratorium expired, Article 64.3 also required there to be consensus on scope and modalities, failing
which there would be a de facto  extension of the moratorium.  Non-violation complaints could not
apply without consensus on their scope and modalities.
8. The representative of Malaysia said that there was an emerging consensus to extend the
moratorium, which one delegation did not join but should recognize.  Referring to the intervention by
the Philippines, he said that there had to be an extension of the moratorium until the Council hadworked out the scope and modalities of the remedy.  It was incumbent on the Council to recommend
an extension of the moratorium, which was inevitable.  The length of the extension, and whether it
should be indefinite, could be worked out later.
9. The representative of Egypt referred to his delegation's proposal contained in document
WT/GC/W/141.  Egypt had proposed that the time-period under Article 64.2 be extended for an
"adequate" time until such time as the complexity and implications of this remedy in the area of
intellectual property was better understood and the possible scope and modalities were adequately
addressed in accordance with Article 64.3.
10. The representative of Venezuela wished to support the view expressed by the representative
of the Philippines.  As a matter of international law, obligations had to be specific and determinable
for them to be operative and performed.  Without defined causes of action or even issues that could be
addressed, a panel would have to decide in a specific case the scope and modalities of application,
which would, from a technical point of view, be so difficult that, de facto , the moratorium would be
extended.
11. The representative of Hong Kong, China said that this was not simply a matter of drafting the
Council's Annual Report.  Rather, Article 64.3 provided that the Council "shall" determine the scope
and modalities.  It had not fulfilled that mandate.  He reiterated his delegation's strong support for
Canada's proposal.
12. The representative of Pakistan noted that there appeared to be no consensus on an extension
of the moratorium, so that it would lapse.  He recalled that the Member which had stated that it would
not join such a consensus had said at the July mee ting of the Council that, in the absence of a decision
by the Ministerial Conference, panels themselves would interpret the provision in the context ofparticular disputes.  His delegation did not believe that this was a healthy way to address this issue.
The Council for TRIPS would be avoiding its responsibility by not addressing the scope and
modalities, so that one could wonder what a panel might decide.  He urged the Member that would
not join the consensus to reconsider its position carefully.  It was possible that the General Council
would take some action on the matter in its preparations for the Ministerial Conference.  The AnnualReport could reflect the factual situation and communicate that to the General Council, or the Council
for TRIPS could make its best effort to resolve the matter and agree on an extension to conduct a
review of the scope and modalities.  He saw no other option.
13. The representative of Norway said that the Council should try to solve this issue without
going into the legal question of how to interp ret the requirement of examining the scope and
modalities.  His delegation would support an extension of the moratorium.  It was difficult to decide
how the non-violation remedy would be an effe ctive remedy under the TRIPS Agreement or how it
would have real implications for the rights and obligations of Members.  The Council should embarkIP/C/M/25
Page 30
on analysis as required by Article 64, which it had not yet done.  Norway would not object to a non-
violation remedy available in respect of the TRIPS Agreement, mainly because it did not think that
this would make any difference as to rights and obligations.
14. The representative of the European Communities doubted whether this problem would be
solved at the present meeting.  From a procedural point of view, the Council had not undertaken an in-
depth examination of what the scope and modalities of non-violation complaints might be in the
context of the TRIPS Agreement.  It was not wise to put non-violation complaints to a panel without
any guidance from the Council.  On the other hand, there was a clear provision in Article 64.3.
15. The representative of Mexico said that her delegation had many doubts about the applicability
of the non-violation remedy in the sphere of the TRIPS Agreement.  There was clearly a problem of
the operability of the remedy.  The Council had not completed the mandate it had to examine
substantively the scope and modalities for non-violation complaints, nor the complex implications thatwould derive from their application in the framew ork of the TRIPS Agreement.  As a result, the
Council did not yet have a clear idea of what would be the scope and modalities.  The substantive
problem was how this Article would apply in a case before a panel, if there were no clear definition of
the scope and modalities of non-violation complaints.  According to the DSU, a panel could not add to
nor diminish the rights and obligations of the Members nor, by the same token, could it create ordefine the said scope and modalities of non-violation complaints.  The Council first had to conduct a
full examination and, when it had a clearer idea of the definition of this remedy, it could consider
making this Article operative.  It was therefore necessary to extend the moratorium.
16. The representative of New Zealand said that there was an emerging consensus that the
Council had not yet had an adequate opportunity to examine the scope and modalities for non-
violation complaints in relation to the TRIPS Agreement.  This was an integral part of Article 64.3
and it was therefore necessary to extend the moratorium, so that Members could understand how this
sui generis  remedy could or should apply to the TRIPS Agreement.  He echoed the comments of the
representative of the Philippines that, if the Counci l could not agree to an extension, then the plain
reading of the provision meant that the moratorium would end, but that did not prevent the Councilfrom examining the scope and modalities, lest a dispute settlement panel be left to determine the
scope and modalities.  Members could do better than that; they should be able to determine from their
own perspective how this remedy could apply.
17. The representative of Ecuador agreed with other delegations that had expressed their concerns
about the application of this remedy to the TRIPS Agreement.  A majority of Members wished to
extend the moratorium and he asked the Member who had opposed such an extension what exactly
were its arguments for opposing what the other Members were seeking.  These arguments had notbeen sufficiently clear or convincing to understand the basis of its position.  If it was afraid of setting
a precedent for future moratoria, it should state so clearly.  If the Council for TRIPS was unable to
make a recommendation, it would pass the issue to the General Council.
18. The Chairperson said that Members had to tackle problems which were substantive in nature,
but procedural matters would also need to be considered.  Without wanting to sum up the discussion,
he said it was clear that, firstly, there was no consensus and, secondly, the Council had not complied
to the letter with the requirement in the TRIPS Agr eement in this respect.  At the same time a large
majority of delegations were  in favour of an extension of the moratorium and had made
pronouncements to that effect.
19. The representative of India said that, to have a meaningful discussion in the formal meeting, it
would be useful to have a few examples of the cases which the proponents of the proposal to end the
moratorium envisaged.IP/C/M/25
Page 31
20. The representative of the United States said that he had already given his delegation's view on
the proposal to engage in a discussion on hypothetical situations where  non-violation claims might be
appropriate.   He did not feel that it would be a productive course for the discussion and he was not
prepared to provide such examples.  While he appreciated the concerns expressed by many
delegations, he looked forward to further discussions in the formal meeting, but, like India, he too feltthat these might well follow the same course as the present discussion.
21. The Chairperson said that, if the matter coul d not be solved within the Council and a
recommendation was not sent to the Ministerial Conference, then the matter would have to be taken
up in the General Council.  He called upon Members to consult each other before the formal meeting
as to whether the issue could not be solved in th e TRIPS Council rather than in the General Council
where the concerns would not relate only to intellectual property.
__________