RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/M/35
22 March 2002
(02-1494 )
Council for Trade-Related Aspects
of Intellectual Property Rights
MINUTES OF MEETING
Held in the Centre William Rappard
on 5-7 March 2002
Chairperson:  Ambassador Bo niface Chidyausiku (Zimbabwe)
Subjects discussed: Para. Nos
A. NOTIFICATIONS UNDER PROVISION OF THE AGREEMENT 6-8
(i) Notifications under Article 63.2 6-7
(ii) Notifications under Article 69 8
B. REVIEW OF NATIONAL IMPLEMENTING LEGISLATION 9-62
(i) Outstanding initial questions from the reviews of the legislation
of Cameroon, Congo, Grenada, Guyana and Suriname initiated
in April 2001 9-14
(ii) Outstanding initial questions from the reviews of the legislation
of Botswana, Egypt, Fiji, Mauritius, the Philippines, Saint Kitts
and Nevis and the United Arab Emirates initiated in June 2001 15-19
(iii) Outstanding initial questions from reviews initiated in
November 2001 20-30
(iv) Follow-up to reviews already undertaken 31-50
(v) Reviews of the legislation of Moldova, Nigeria and Saint Vincent
and the Grenadines 51-53
(vi) Arrangements for reviews of China, Chinese Taipei and Qatar 54-62
C. THE TRIPS AGREEMENT AND PUBLIC HEALTH 63-138
(i) Paragraph 6 of the Doha Declaration on the TRIPS Agreement
and Public Health 63-136
(ii) Extension of the transition period provided for in paragraph 7
of that Declaration 137-138IP/C/M/35
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D. ISSUES RELATED TO THE EXTENSION OF THE PROTECTION OF
GEOGRAPHICAL INDICATIONS PROVIDED FOR IN ARTICLE 23 TO
PRODUCTS OTHER THAN WINES AND SPIRITS
E. REVIEW OF THE PROVISIONS OF ARTICLE 27.3( B)
F. RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION
ON BIOLOGICAL DIVERSITY
G. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE
H. REVIEW OF IMPLEMENTATION OF THE TRIPS AGREEMENT UNDER
ARTICLE 71
I. IMPLEMENTATION OF ARTICLE 66.2
J. NON-VIOLATION AND SITUATION COMPLAINTS
K. ELECTRONIC COMMERCE
L. OTHER OUTSTANDING IMPLEMENTATION ISSUES (TIRETS 93 AND 94 AND
PROPOSAL BY LDCS ON THEIR TRANSITION PERIOD )
M. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2
N. TECHNICAL COOPERATION AND CAPACITY -BUILDING
O. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
(i) Accessions
(ii) Dispute Settlement
P. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL
ORGANIZATIONS
Q. OTHER BUSINESS
(i) Dates of regular meetings in 2002
(ii) Information from WIPO
R. ELECTION OF CHAIRPERSON139-205
206-227
228-249
228-249
250-252
253-275
276-281
282-284
285-287
288-298
299-308
309-315
309-312313-315
316-323
324-337
324-325
326-337
338-339
_______________
1. The Chairperson said that the proposed agenda (WTO/AIR/1720) was based on the discussion
at the Council's informal meeting on 15 February 2002.  He suggested that the proposed agenda be
adopted on the following understandings:  first, th at the Council would ensure that all mandates
relevant to each agenda item were met;  second, that this was done within the specified time-frames;
and third, that the Council would ensure an equitable sharing of the time between the different agendaitems.IP/C/M/35
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2. The representative of Brazil proposed that items F and G be made sub-items under both items
E and H.
3. The representative of the United States supported adopting the proposed agenda without
modification.  Responding to Brazil's proposal, he sa id that nothing prevented Members from raising
the subject-matter of items F and G under item E if they so wished.  He considered that it would notbe appropriate to list only certain issues amongst those that Members might wish to raise under
item H.
4. The representative of Brazil said that he could accept the proposed agenda on a provisional
basis for the present meeting.  He asked the Chairperson to consult informally on the structure of the
agenda before the next meeting.
5. The Council agreed to adopt the proposed agenda for the present meeting with the
understanding that informal consultations would be held on the agenda for future meetings.
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT
(i) Notifications under Article 63.2
- Notifications from Members whose transitional periods under Article 65.2 or
65.3 expired on 1 January 2000 or acceded to the WTO after that date
6. The Chairperson drew the attention of Members to the Secretariat's note reflecting the status
of the notifications received from Members whose transitional periods under Article 65.2 or 65.3
expired on 1 January 2000 or who acceded to the WTO after that date (JOB(02)/13).  It showed that,
from the 75 Members in question, there were nine who had not yet submitted any notification
concerning their implementing legislation.  No tifications from a number of other Members were
incomplete.  Recalling that pursuant to Article 63.2 of the Agreement the notifications of the laws andregulations in question were due as of 1 January 2000, he urged these Members to submit the
outstanding material without delay.  He also urged the delegations in question, if not all the material
to be notified was ready yet, to submit whatever could be notified now and complement the
notification as soon as other parts of the material  to be notified were ready for submission.  He
reminded delegations again that, under the Agr eement Between the World Intellectual Property
Organization and the World Trade Organization and decisions taken by WIPO's Governing Bodies,
the International Bureau of WIPO was in a position to assist delegations with the translation of their
main dedicated intellectual property laws and regulations, as required.
- Notifications from other Members
7. The Chairperson informed the Council that, since the previous meeting, a notification had
been received from Burkina Faso and amendments to legislation notified earlier had been received
from Sweden.  These notifications would be dist ributed in the IP/N/1/- series of documents.
(ii) Notifications under Article 69
8. The Chairperson informed the Council that, since the previous meeting, a new notification of
contact points under Article 69 of the Agreement had been received from Moldova as well as updated
information from the delegations of the Czech Republic and Estonia.  These notifications had been
consolidated in a revised list of contact points and circulated in document IP/N/3/Rev.6.  A newnotification had been received from Nicaragua wh ich would be circulated in IP/N/3/Rev.6/Add.1.
There were now 111 Members who had notified contact points under Article 69.IP/C/M/35
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B. REVIEW OF NATIONAL IMPLEMENTING LEGISLATION
(i) Outstanding initial questions from the reviews of Cameroon, Congo, Grenada, 
Guyana and Suriname initiated in April 2001
9. The Chairperson recalled that, at the previous meeting, these five Members, whose reviews
had been initiated in April 2001, had initial questions outstanding.  No replies had been received from
them since the last meeting.
10. The representative of Cameroon said that his delegation would provide responses to the
questions posed by the European Communities and their member States and to the one outstanding
question posed by the United States before the next meeting.
11. The representative of Congo said that his delegation would provide responses to the questions
posed by the European Communities and their member States in due course and apologized for the
delay.
12. The representative of Grenada said that his delegation, and a number of other CARICOM
Members, would begin submitting responses to outstanding initial questions within one week.  These
Members' resource constraints had significantly hampered their ability to provide responses in a
timely manner but, with the assistance of other Members and the International Bureau of WIPO, they
would provide the responses soon.
13. The delegation of Suriname supplied responses to all outstanding initial questions during the
meeting.  These have been circulated in document IP/C/W/283/Add.2.
14. The Council took note of these statements and agreed  to revert to this sub-item at its next
meeting.
(ii) Outstanding initial questions from the reviews of the legislation of Botswana, Egypt,
Fiji,  Mauritius, the Philippines, Saint Kitts and Nevis and the United Arab Emirates
initiated in June 2001
15. The Chairperson recalled that, at the previous meeting, seven Members whose reviews had
been initiated in June 2001, had initial questions outstanding.  Since then, further responses to initial
questions had been received from Botswana, the Philippines and the United Arab Emirates(documents IP/C/W/295/Add.1, 272/Add.2 and 291 /Add.2, respectively).  Responses to initial
questions remain outstanding from Egypt, Fiji, Mauritius, Saint Kitts and Nevis and the United Arab
Emirates.
16. The Chairperson said that the Deputy Prime Minister of Saint Kitts and Nevis
 had written to
him on 4 March 2002 indicating that his delegation was aware that the review of its TRIPS legislation
was on the agenda for this meeting.  However, he had expressed his regret that his delegation was not
in a position to comply at this meeting but intended to make every effort to supply answers before thenext meeting.
17. The representative of Egypt said that he expected to submit outstanding responses before the
next meeting.  He recalled that Egypt had received over 130 questions, of which the bulk had already
been answered.  Many of the questions overlapped and his delegation was trying to identify those
areas in which questions were unanswered.
18. The Chairperson urged these delegations to submit their responses to outstanding initial
questions without delay.IP/C/M/35
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19. The Council took note of these statements and agreed to revert to this sub-item at its next
meeting.
(iii) Outstanding initial questions from reviews initiated in November 2001
20. The Chairperson recalled that, at its previous meeting, the Council had initiated the reviews of
16 Members.  At the conclusion of the meeting, several of them had had initial questions outstanding.
Since that time, further responses to initial questions had been received from  Gabon, India, Lithuania,
Pakistan and Tunisia (documents  IP/C/W/338 and addenda 1 and 2, 326/Add.2, 335, 329/Add.1 and
331/Add.1).  Responses to initial questions remained outstanding from Barbados, Brazil, Ghana,
India, Malaysia, Pakistan and Zimbabwe.
21. The representative of Barbados said that she would submit responses to outstanding initial
questions during the course of the meeting.1
22. The representative of Brazil drew the Council's attention to responses to questions submitted
since the last meeting (document IP/C/W/303/Add.2).  He said that his delegation was still examining
the other outstanding questions and would provide responses in due course.
23. The representative of Ghana said that his delegation had made its best efforts to meet the
deadline but regretted that it had not been able to do so.  He expected to be able to submit the
responses within two weeks.2
24. The representative of India said that his delegation had responded in November 2001 to 79 of
the 126 questions that it had received.  In March 2002, it had responded to 39 more questions
(document IP/C/W/326/Add.2).  There were only eight more questions outstanding, to which his
delegation would respond soon.
25. The representative of Malaysia regretted that her delegation had still not answered some
questions.  She said that her delegation would submit responses before the next meeting.
26. The representative of Pakistan said that his delegation had answered most questions and
regretted that some were outstanding.  His delegation would respond to them before the next meeting.
27. The representative of Zimbabwe said that his delegation would provide responses to
outstanding questions soon.
28. The Chairperson recalled that, at the previous m eeting, the Council had agreed to revert to the
review of Swaziland at this meeting.  However, the Swazi Ambassador had written to him on 1 March
2002 informing him that due to circumstances beyond its control, Swaziland had not been able to
make notification of its legislation or submit replies to the questions posed by various delegations.
The Ambassador had said that Swaziland would submit its legislation and written replies in another
two weeks and stood ready to send a delegation to m eet with the Chairperson and discuss the replies
and/or attend the next session of the Council.
29. The Chairperson urged these delegations to submit their responses to outstanding initial
questions without delay.
30. The Council took note of these statements and agreed to revert to this sub-item at its next
meeting.
                                                     
1 These have been circulated in document IP/C/W/325/Add.1.
2 These have been circulated in document IP/C/W/343.IP/C/M/35
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(iv) Follow-up to reviews already undertaken
- April 2001
31. The Chairperson informed the Council that, with  respect to the April 2001 review, responses
to follow-up questions had been received since the last meeting from Namibia (document
IP/C/W/248/Add.3).   However, Cameroon, Congo and Suriname  still had some follow-up questions
outstanding.
- June 2001
32. The Chairperson informed the Council that, w ith respect to the June 2001 review, responses
to all outstanding follow-up questions had been received during or since the last meeting from
Botswana and Côte d'Ivoire  (documents IP/C/W/295/Add.1 and IP/C/W/287/Add.3, respectively).  He
proposed that the reviews of Botswana and Côte d'Ivoire be deleted from the agenda, it beingunderstood that any delegation should feel free to revert to any matter stemming from those reviews atany time.
33. The Council so agreed.
34. The Chairperson informed the Council that responses to follow-up questions were still
outstanding from Albania, Fiji, Kenya, Oman, the Philippines and the United Arab Emirates.
35. The representative of the Philippines drew attention to the responses that his delegation had
submitted shortly before the meeting (document IP/C/W/272/Add.2) and said that he would provide
responses to the outstanding follow-up questions soon.
36. The representative of the European Communities said that his delegation wished to pose
follow-up questions to Egypt.3
37. The representative of the United States said th at his delegation might wish to pose follow-up
questions to a few of these Members, including Kenya.
- November 2001
38. The Chairperson informed the Council that, with respect to the November 2001 review,
responses to follow-up questions had been received since the last meeting from Lithuania (document
IP/C/W/335/Add.1). He proposed that the review of  Lithuania be deleted from the agenda, it being
understood that any delegation should feel free to revert to any matter stemming from that review at
any time.
39. The Council so agreed.
40. The Chairperson informed the Council that, sin ce the last meeting, follow-up questions had
been posed by Switzerland to certain delega tions (documents IP/C/W/239/Add.4, 263/Add.4 and
315/Add.1).  Shortly before the meeting, responses to follow-up questions had been received from
Antigua and Barbuda, Brazil, Thailand, Tunisia and Uruguay (documents IP/C/W/317/Add.3,303/Add.3, 331/Add.1, 319/Add.1 and  330/Add.1, respec tively.  Responses to follow-up questions
were still outstanding from Barbados, Brazil, Brunei Darussalam, India, Malaysia, Pakistan and
Sri Lanka.
                                                     
3 These have been circulated in document IP/C/W/274/Add.2.IP/C/M/35
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41. The representative of Brazil drew the Council's attention to the replies to follow-up questions
which his delegation had submitted before the meeting (document IP/C/W/303/Add.3).  His
delegation would respond to the one outstanding follow-up question in due course.
42. The representative of Brunei Darussalam said that her delegation hoped to submit the
responses to outstanding follow-up questions before the next meeting.4
43. The representatives of Barbados5, India , Malaysia  and Pakistan  said that they would respond
to the follow-up questions at the same time as they responded to outstanding initial questions.
44. The representative of Switzerland informed the Council that Sri Lanka had said that its
responses to follow-up questions posed by Switzerland would be available shortly.
45. The representative of the European Communities said that his delegation wished to pose
follow-up questions to India.6
46. The representative of Switzerland said that his delegation wished to pose follow-up questions
to Pakistan and Thailand.
47. The representative of the United States said that his delegation wished to pose follow-up
questions to certain Members.
48. The representative of Canada said that her delegation also might wish to pose more questions.
49. The Chairperson urged those Members who had not supplied responses to follow-up
questions to do so without delay.
50. The Council took note of these statements and agreed  to revert to this sub-item at its next
meeting.
(v) Reviews of the legislation of Moldova, Nigeria and Saint Vincent and the Grenadines
51. In accordance with the procedures for the review of legislation, the delegations of Moldova
and Nigeria each provided a brief introductory overvi ew of the structure of their legislation in the
areas covered by the Agreement and of the changes that they had had to bring about in order to make
their legislation compatible with the TRIPS Agreement.  The records of these introductory statements
as well as the questions put to them and the responses given (including responses to follow-up
questions given after the meeting) will be circulated in the following documents with the followingsymbols:
Moldova IP/Q/MDA/1;  IP/Q2/MDA/1;   IP/Q3/MDA/1;   IP/Q4/MDA/1;
Nigeria IP/Q/NGA/1;  IP/Q2/NGA/1;  IP/Q3/NGA/1;  IP/Q4/NGA/1.
52. The Chairperson recalled that, at the previous  meeting, the Council had agreed to postpone
the review of the legislation of Saint Vincent and the Grenadines to this meeting, but Saint Vincent
and the Grenadines was not represented at the present meeting.  He suggested that the Council revert
to the review of its legislation at its next meeting.
53. The Council so agreed.
                                                     
4 These have been circulated in document IP/C/W/318/Add.2.
5 These have been circulated in document IP/C/W/325/Add.3.
6 These have been circulated in document IP/C/W/320/Add.3IP/C/M/35
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(vi) Arrangements for reviews of China, Chinese Taipei  and Qatar
- China
54. The Chairperson reminded the Council that China's protocol of accession to the WTO
required that, within one year of China's accession, the TRIPS Council and 15 other WTO subsidiary
bodies review China's implementation and report to the General Council as part of the transitionalreview mechanism established under section 18 of the protocol.  He imagined that, in regard to
TRIPS, Members would want to conduct this review  together with the Council's normal review.  He
suggested that the Council revert to this matter at its next meeting when it might have a better idea of
the approach being taken in the WTO to fulfilling the requirements of the transitional review
mechanism.
55. The representative of China said that her delegation was delighted to cooperate with other
Members in the area of TRIPS and hoped to strengthen this cooperation in the future.  She informed
the Council that, even before its accession to the WTO, China had begun the huge task of amending
and revising its laws and regulations relating to intellectual property rights to ensure their consistency
with the requirements of the TRI PS Agreement.  The task had almost been completed, as the majority
of the revised laws and regulations had been promulgated after being approved by the relevant
domestic legislative and administrative bodies in China.  However, due to certain legal proceduresrequired by China's laws in the official interpretation of the revised laws and regulations, a short
period of time was still needed before China could notify the implementing legislation to the Council.
Her delegation welcomed the proposed combination of the transitional review with the Council's
normal review and asked those Members who had questions concerning China's TRIPS-implementing
legislation, either before or after China made its notification, to deliver them either to China'spermanent mission in Geneva or its capital.  This would enable her delegation to carry out
preparations for the review to be conducted in due time.
56. The Council agreed to proceed as suggested by the Chair.
- Chinese Taipei
57. The Chairperson suggested that the Council revi ew the legislation of Chinese Taipei at the
September 2002 meeting, in accordance with the following arrangements.
- questions should be submitted to Chinese Ta ipei, with a copy to the Secretariat, by
9 July 2002, i.e. 10 weeks before the meeting;  and
- responses to questions posed within that deadline should be submitted by
20 August 2002, i.e. four weeks before the meeting.
58. The Council agreed to proceed as suggested by the Chair.
- Qatar
59. The Chairperson recalled that, at the last meeting, Qatar had requested a postponement of its
review.  He had asked the representative of Qatar to consult with its authorities on holding the review
of its legislation in the first half of 2002.
60. The representative of Qatar said that his delegation agreed to be reviewed at the June 2002
meeting.
61. The Chairperson recalled that Qatar had already received questions in its review and
suggested the following arrangements:IP/C/M/35
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- any further questions should be submitted to Qatar, with a copy to the Secretariat, by
16 April 2002, i.e. 10 weeks before the meeting;  and
- responses to questions posed within that deadline, including those which have already
been posed, should be submitted by 28 May 2002, i.e. four weeks before the meeting.
62. The Council agreed to proceed as suggested by the Chair.
C. THE TRIPS AGREEMENT AND PUBLIC HEALTH
(i) Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health
63. The Chairperson recalled that paragraph 6 of the Declaration on TRIPS and Public Health
(WT/MIN(01)/DEC/2)(referred to as the " Declaration" under this agenda item) recognized that WTO
Members with insufficient or no manufacturing capacities in the pharmaceutical sector could face
difficulties in making effective use of compulsory licensing under the TRIPS Agreement.  TheMinisterial Conference had instructed the Council to  find an expeditious solution to the problem and
to report to the General Council before the end of 2002.  He proposed that the Council plan to be in a
position to make concrete recommendations to th e General Council about how this matter should be
dealt with by the end of 2002.  Since the matter was clearly complex and there might well be some
differences of approach and view among delegati ons, the Council needed to leave adequate time to
work through these differences.  It was therefore important that the various proposals that delegations
might have be tabled in good time.  He suggested that the Council consider requesting those Members
who had concrete proposals to submit them by the June meeting of the Council on the understanding
that this would not be a rigid deadline.
64. Introducing the submission of the European Communities and their member States entitled
"Concept paper relating to paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public
Health" (document IP/C/W/339), the representative of the European Communities said that the
Declaration instructed the TRIPS Council to find an "expeditious" solution to problems faced by
WTO Members with insufficient or no manufacturing capacities in the pharmaceutical sector in
making effective use of compulsory licensing under the TRIPS Agreement.  The EuropeanCommunities had been at the forefront of the debate on TRIPS and public health before and at Doha.
They were therefore committed to continue these efforts by co-operating with the other WTO
Members in order to reach agreement on such a solution.  In his delegation's view, finding "an
expeditious solution" to this problem meant, in effect, that one should be found before the end of
2002.  He supported the Chairman's call for the submission of concrete proposals by the next meeting.
In order to kick off the work in the Council, his delegation had tabled a communication in the form of
a concept or an options paper.  Its objective was to launch the debate, whilst keeping all options open.Other options might exist and his delegation was willing to consider any realistic approach on its
merits.  He reserved the right to propose additional approaches other than those elaborated under the
present communication and to react to others' proposals.
65. He said that it would be unwise to expect that any solution that would emerge from the
present discussion in the Council would be a universal panacea for the problem of access tomedicines. For the poorest populations, even the lowest possible price of generic medicines or
medicines manufactured under a compulsory licence mi ght remain unaffordable.  Access to medicines
in countries which did not have patents did not appear to be any better than in countries which did,
except where special efforts had been deployed by governments. Therefore, the discussion within the
Council should not overshadow other measures needed to improve access to medicines;  nor should itdivert attention from ongoing international efforts to make medicines available at affordable prices,
such as the Global Fund to fight HIV/AIDS, tube rculosis and malaria or the European Commission's
own Programme for Action.  The European Communities were working on developing a tieredIP/C/M/35
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pricing concept and the need to stop re-exportation or re-importation of goods originally exported at
strongly reduced prices.
66. The basic argument underlying the present debate was that Members with insufficient or no
manufacturing capacities in the pharmaceutical sector could face difficulties in making effective use
of compulsory licensing under the TRIPS Agreement with regard to patented pharmaceuticals.  Formany developing country or least-developed country Members, the right granted under Article 31 of
the TRIPS Agreement was indeed of no practical use because, in reality, there was no domestic
manufacturer to which such licences could be granted.  As a result, they did not enjoy the degree of
flexibility or possess the kind of leverage that the ability to issue a compulsory licence could give, and
might therefore find it more difficult to obtain substantial price cuts on essential medicines.  As such,
Members could not all benefit from the same opportunities pursuant to Article 31.  Finding a solution
to the problem posed by their current inability to resort to compulsory licensing could, therefore,benefit these countries in particular and would be in line with the development focus of the new trade
agenda.
67. The representative of the European Communities noted that the ability to issue a compulsory
licence depended of course upon a certain drug being patented, which presupposed that the country
had patent legislation in place.  His delegation had looked at patent legislation in a number ofcountries. Most developing  country Members  did now provide patent protection for pharmaceutical
products but the availability of patent protection did not mean necessarily that patents had always
been applied for.  Nevertheless evidence showed that patents on antiretrovirals, for instance, were in
force in several large developing countries in sub-Saharan Africa or Latin America.  Several
developing countries had opted to exclude pharmaceuticals from patent protection until 1 January2005.  Until that date, these countries could legally manufacture generic pharmaceuticals, and export
them to Members where these drugs were not patented.
68. As far as LDC Members  were concerned, the Declaration now offered them an opportunity to
delay patentability of pharmaceuticals until 1 January 2016.  However, many LDC  Members already
provided patent protection for pharmaceuticals, such as for example the LDC members of theOrganisation Africaine de la Propriété Intellectuelle  (OAPI) .   However, patents applications were
not necessarily always filed so that many medicines still remained unpatented in a large number of
least-developed countries.  Therefore, his delegation concluded that the situation where all
pharmaceuticals were patented in all WTO Members was still some way off. At the same time it
would be false to claim that patents were not a factor  to be taken into account, especially in view of
the concerns expressed by developing country and LDC Members.  Concern had been expressed
about the position of countries which were unable to issue a compulsory licence at all because of anabsence of patent protection or because no patents for a given product had been applied for.  This
situation had not been dealt with in the concept paper at this stage but his delegation was ready to
discuss it later.
69. Turning to possible options, he explained that the paper considered two possible solutions
without in any way excluding other possible solutions or approaches.  A first option  could be to
amend Article 31 of the TRIPS Agreement in order to carve out an exception, under certain
conditions, to Article 31(f).  Such an exception clau se would state that Article 31(f) did not apply to
compulsory licences granted for the purpose of supplying a poor country with a product needed to
address serious public health problems.  In other words, it would create an exception to the principle
stated in Article 31(f) of the TRIPS Agreement that compulsory licences "shall be authorised
predominantly for the supply of the domestic market of the Member authorising such use".  A   second
option  could consist of interpreting the limited exceptions clause of Article 30 of the TRIPS
Agreement in a way which would allow production for export, to certain countries and under certain
conditions, of products needed to combat serious public health problems.  To this end, Members could
adopt a declaration stating that a Member might, in accordance with Article 30, provide that themanufacture, on its territory, of a patented product,  without the authorisation of the right holder, wasIP/C/M/35
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lawful when it was meant to supply another country which had granted a compulsory licence for the
import and sale of the product concerned in its territory in order to deal with a serious public health
problem.
70. Each of these two options had its own legal and procedural specificities that were further dealt
with in the paper.  He emphasised that any such solution should not ignore potential side-effects.Therefore close attention would need to be paid to  feasibility, to ensuring that the TRIPS Agreement
was not undermined in any way, and that adequate safeguards were put in place to avoid abuses and
trade diversion, to create sufficient transparency and to ensure co-operation with right holders.  He
emphasised that any solution would need to be carefully drafted and hedged around with conditions to
prevent abuses and diversion of trade.  This wa s of the utmost importance.  Safeguards would be
needed to ensure that production pursuant to any proposed exception was not diverted from its
destination.  Any abuse could open the door to massive circumvention of intellectual property rules,which would seriously impair the legal security of right holders and possibly undermine the basic
principles of the TRIPS Agreement.  Therefore, among the most important conditions to be further
discussed and refined were: (i) the need to provide safeguards against exports to countries which did
not face serious public health problems and (ii) the need to provide safeguards against re-exportation
from the country of destination, especially to the developed countries, to avoid creating black marketsfor the products concerned.
71. The representative of the European Communities highlighted the need to make the system
transparent in order to allow other Members to be informed if a Member made use of such a
mechanism. It was also equally important to ensure that the right holders of the products in question
were given the opportunity to contribute to the solution.  What mattered was to ensure adequate andsustainable supply of reliable medicines to those in need and not to create a tool for industrial policy.
Therefore, it would at all stages be crucial to ensure a sufficient participation from the patent holder,
through his right to be heard and his right to make sustainable discounted pricing offers in view of
avoiding resort to these mechanisms.  Indeed, effective results could only be achieved if the
international pharmaceutical industry was on board and willing to commit itself to supplying poormarkets on a sustainable basis. Voluntary, long-term undertakings remained the best way forward.
These conditions should not be seen as creating burdensome new obligations for Members;  instead,
they demonstrated the need for the Members concer ned to take the necessary measures within the
context of their existing administrative procedures, notably in the area of customs, and to provide for
legal security and due process and to seek co-operation with right holders. If either of the two options
was not properly limited by such conditions, there could be a risk that any abuse would undermine
confidence in the TRIPS Agreement as well as in in itiatives taken to supply medicines at affordable
prices to poor countries, and would weaken industry support for any subsequent initiative on access to
medicines. He welcomed any comments from other Members, and reserved his delegation's final
position subject to those comments and to any other proposals that may be tabled on this issue.
72. The representative of Kenya, speaking on behalf of the African Group
, Brazil , Cuba , the
Dominican Republic, Honduras , India , Indonesia , Jamaica , Malaysia , Sri Lanka  and Thailand , said
that in light of paragraph 4 of the Declaration, the instruction in paragraph 6 to find an expeditious
solution by the end of 2002 was meant to ensure that the TRIPS Agreement supported WTO
Members' right to protect public health and, in particular, to promote access to medicines for all.  It
was critical that in this process WTO Members did not take a narrow approach in designing a
solution.  Paragraph 6 should be read in light of the entire Declaration.  Effective use of compulsorylicensing should be understood to mean a solution that facilitated strategies to supply the current
pharmaceutical needs of Members without existing capacity while at the same time ensuring the
development of domestic capacities in the pharmaceutical sector in the longer term.
73. He set out considerations that could govern  the Council's search for such an expeditious
solution to the problem recognized in paragraph 6 of the Declaration.  Within those broad parameters,the delegations for which he spoke were committed to working with all Members to find a solution.IP/C/M/35
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The solution clearly had to support governments that adopt measures to addressed public policy
concerns including public health concerns.  The objectives and principles of the TRIPS Agreement
would otherwise remain largely ineffective if public policy concerns and protection of the interests of
the public were not clearly and unequivocally recognized and protected by the Agreement, as
established in the Declaration.  The introduction of general exceptions, along the fairly standard linesof the other WTO agreements, would help the promotion of this spirit and the legitimacy or
acceptability of the TRIPS Agreement.  Paragraph 6 of the Declaration sought to address an important
concern of developing countries and LDCs with respect to the TRIPS Agreement, and discussions of
this problem should be conducted against the backdrop of the primary objectives and principles set
out in the TRIPS Agreement, in particular the objective of transfer of technology as a necessary way
to encourage, whenever economically feasible, the development of local manufacturing capacities in
the pharmaceutical sector.  Any expeditious solution to address the problem acknowledged inparagraph 6 should not divert the Council from the need to consider measures that supported the
acquisition of all necessary technology and the building of a sound technological base including in
respect of medical technology.  This was the proven sustainable way to address the public health and
public policy concerns of developing countries and LDCs.  A number of solutions could be envisaged
to address the problem acknowledged in paragraph 6.  The problem that it recognized was not limitedto a certain category of countries, but rather to any WTO Member having difficulty in its access to
pharmaceutical products, as well as in availing itself of the flexibilities in the TRIPS Agreement.
Naturally, developing countries and LDCs were expected to be the main beneficiaries of the solution,
in light of their difficulties in access to medicines and pharmaceutical products.
74. Without prejudice to the right of the delegations for which he spoke to raise other options in
further discussions, he focused on expeditious solutions based on Articles 31 and 30.  Article 31(f)
contained an in-built flexibility that allowed Members to grant compulsory licences for the supply, to
some extent, of foreign markets.  However, Ar ticle 31(f) limited Members to authorize compulsory
licences "predominantly" for the supply of the domestic market.  Such limitation might prevent
Members from using compulsory licences to supply pharmaceutical products to countries in needwhere there were no domestic demand for those products.  In this sense, an amendment to Article 31
to eliminate paragraph (f) would provide for an expeditious solution for countries in need of
pharmaceutical products.  Article 30 was another important provision, as it provided for limited
exceptions to patent rights.  The Council should explore the possibility of developing an authoritative
interpretation that would recognize the right of Members to allow the production without the consent
of the patent holder to address public health needs in another country.  In this context, the production,
sale and export of the product would be considered as limited exceptions authorized under Article 30.Concerning the possibility of establishing safeguards, Kenya and the Members on whose behalf he
spoke were wary of the possibility of imposing overly burdensome conditions that would render any
solution unfeasible.  They urged the Council to base discussions on the concrete solutions, rather than
moving away from them.
75. The representative of Kenya said that his delegation and the Members for which he spoke
were of the view that these considerations might provide the Council with guidelines in carrying out
its mandate under the Declaration. The General Council should adopt a Decision reflecting these
considerations as soon as possible, and that Decision should be integral to, and read together with, the
Declaration and with paragraphs 17 and 19 of the Doha Ministerial Declaration.  The General Council
should also formally present a copy of the decision to the WHO, UNAIDS, the FAO and WIPO forinformation and noting.  Whenever the Decision might be reviewed in accordance with Article 71.1 of
the Agreement, these organizations should have observer status and participate in the review.  Kenya
and the Members on whose behalf he spoke were in the process of elaborating a paper with possible
solutions for the problem acknowledged in paragraph 6 which he expected to circulate at the next
meeting.
76. The representative of the United States welcomed the Chairman's call for concrete proposals
by June and said that his delegation expected to come forward with some.  He introduced hisIP/C/M/35
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delegation's paper7 which addressed some of the issues that the Council should consider in developing
solutions by the end of the year.  The United States was committed to helping countries that were
experiencing public health crises by finding real solutions to problems that prevented Members from
addressing health problems associated with access to medicines.  As tangible evidence of its
commitment to this integrated approach to fighting disease around the world, the United Statescontinued to be the leading bilateral donor of HIV/ AIDS assistance, providing for nearly 50 percent of
all international HIV/AIDS funding.  He reiterated that his delegation believed that patent rights and
enforcement of those rights for pharmaceutical inventions was an overall benefit to society because
such rights spurred research and development of  new medicines, including those resulting from
biotechnology, to treat and cure diseases.
77. Obviously, in helping countries with limited means to address public health problems, many
factors had to be addressed, including issues of infrastructure, financing, elimination of impedimentssuch as tariffs and internal taxes, training and technical assistance, most of which had to be addressed
in other appropriate fora.  The Council had to recognize that there were many people in the world who
were unable to afford needed medicines at any price and that any TRIPS-related solution would still
involve a cost.  It was for those who could not afford needed medicines, either through a TRIPS
solution on compulsory licensing or through direct purchases from the patent holder, that the GlobalFund was essential and he encouraged all countries that could contribute to that fund, to do so, and
those countries that could benefit from the Fund, to avail themselves of it.
78. Any solution had to include a commitment by all Members to take the necessary steps to
prevent diversion of the relevant pharmaceuticals from the poor for whom they were intended to other
markets as well as develop other appropriate terms and conditions to prevent abuse.  Any solutiondevised by the Council should include a means for evaluating whether its work had truly addressed
the situation identified by Ministers in paragraph 6 of the Declaration.
79. Turning to some specific considerations, the repr esentative of the United States said that it
had to be kept in mind that TRIPS obligations existe d only when a patent existed.  If an innovator had
chosen not to obtain rights for a pharmaceutical invention in a particular market, if a country did notcurrently provide patent protection for pharmaceutical products, or if the patent on a particular
medicine in that market had expired, anyone could make, use, offer for sale or sell the product in that
market, or import the product involved into the market, or use the process involved.  They could also
produce the product for export. The Council should, in carrying out its work under paragraph 6,
develop information regarding where patents existed currently on pharmaceuticals to treat the diseases
cited in the Declaration afflicting poor countries that lacked or had insufficient manufacturing
capacities in the pharmaceutical sector.  This information would provide Members with an idea of thescope of the potential problem and help them formulate a practical solution.  He believed that there
was a great deal of information on this subject in the public domain.
80. He noted that there were developing countries  taking advantage of Article 65.4 that possessed
the technological capability to manufacture pharmaceuticals and would not be subject to
Article 31(f)'s limitation on exports until 2005.  In the event that a patent existed on a neededpharmaceutical in the territory of a Member that lacked or had insufficient manufacturing capacities,
that Member could grant a compulsory licence to import and distribute foreign-manufactured product
on its local market, including from the developing countries currently taking advantage of the
provisions of Article 65.4.  The expeditious solution devised by the Council would apply for the most
part only to situations arising no earlier than 1 January 2005.  Nevertheless, the United States wascommitted to developing a solution in 2002 but the Council should be mindful that its import would
be most relevant from 2005.
                                                     
7 Subsequently circulated as document IP/C/W/340.IP/C/M/35
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81. Obviously, if a patent existed in a country that lacked or had insufficient capacities for
manufacture in the pharmaceutical sector, the country would have no need for compulsory licensing if
the patent holder was supplying the market in sufficie nt quantities at prices equal to or lower than the
cost of drugs obtained using a compulsory licence.  Similarly, if there was no patent in force in the
country in need, the country would have no need to employ the solution that was going to bedeveloped in the Council if generic pharmaceuticals were also available at similar prices.  Whenever
possible, the country ought first, before granting a compulsory licence, seek accommodation from the
patent owner in order to be assured of a supply of quality product at the lowest possible prices.
82. The representative of the United States said that paragraph 1 of the Declaration made clear
that Ministers were addressing "public health problems," with special reference to "those resultingfrom HIV/AIDS, tuberculosis, malaria and other epidemics".  The Ministers' direction in paragraph 6,
to seek an expeditious solution to potential problems, was limited to the pharmaceutical sector. The
significance of discussions relating to modifying the Articles 31(f) or 30, thereby altering the
equilibrium of concessions already arrived at in the Uruguay Round, should not be discounted. This
was a very serious proposition that was being undertaken in this Council. Therefore, the Councilshould focus on fashioning a solution to improve access to pharmaceuticals to treat these diseases
referred to in the Declaration.  The problem facing the membership was serious and efforts needed to
be focussed on it.
83. The phrase "with insufficient or no manufacturing capacities in the pharmaceutical sector"
would have to be analyzed in connection with any solution.  The United States did not believe it wasappropriate to extend this solution to developed countries or to countries that chose not to
manufacture certain drugs based on a public policy decision or economic factors.  This solution
should reach out to those poor countries that were truly not capable of manufacturing sufficient
supplies of needed pharmaceuticals.  It would be helpful for more information to be gathered for
consideration by the Council with respect to current levels of pharmaceutical manufacturingcapacities world-wide.  Some work on this topic had already been done by UNIDO and it might not
take much additional work to bring such informatio n into the discussion in the Council and see how to
build on it in fashioning a solution to the problem identified in paragraph 6.  He referred to the
question of whether it would be appropriate for this solution to be employed by entities other than
governments or other non-commercial actors such as Doctors without Borders ("MSF").  Given that
the Council was trying to address situations where access to pharmaceuticals was required so that
governments and other non-commercial actors could address major health problems afflicting
particular populations, the United States seriously questioned whether there were any circumstances
under which this solution should be employed by commercial entities on a for-profit basis.
84. Turning to the proposals that had been raised to date, the representative of the United States
said that the Council, in carrying out the task assigned by Ministers in paragraph 6 of the Declaration,
should seek the solution least prejudicial to the balance of rights and obligations negotiated during theUruguay Round.  Absent such an approach, it would be difficult to achieve agreement in future
rounds of negotiations or in the development agenda currently underway, since Members would not
be able to have confidence that rights and obligations that they negotiated in these deals would be
respected in the future.  There had been a proposal regarding Article 30, to include a limited exception
to patent rights for export of medicines to countries lacking or having insufficient manufacturingcapacities in the pharmaceutical sector.  Clearly, Article 30 as it stood, authorized limited exceptions
to patent rights for such things as research exemptions, prior user rights and pre-expiration testing so
long as those exceptions did not unreasonably confli ct with a normal exploitation of the patent and did
not unreasonably prejudice the legitimate interests of the patent holder, taking account of the
legitimate interests of third parties.  An interpretation of Article 30 to allow exceptions to patent rightsto permit otherwise infringing acts to supply a patented pharmaceutical for the purposes of export
would, in fact, seriously prejudice the rights and obligations of Members under the TRIPS Agreement
and could not be fairly described as a limited exception under Article 30.IP/C/M/35
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85. There had been another proposal regarding Article 31, to interpret or amend Article 31(f) to
permit a Member to grant a compulsory licence under an existing patent to a local manufacturer for
purposes of export to a Member that lacked or had insufficient manufacturing capacities in the
pharmaceutical sector.  Article 31 already established agreed terms and conditions for compulsory
licensing to ensure balance in situations in which use of a patent was permitted without authorizationof the patent owner.  Therefore, consideration of solutions based on Article 31, as a whole, had merit.
He suggested that one approach based on Article 31 would be for Members to agree to a moratorium
on dispute settlement in those instances in which a Member granted a compulsory licence, under
situations and circumstances clearly delineated by the Council as the desired solution was developed,
for purposes of export to a poor country that lacked or had insufficient manufacturing capacities in the
pharmaceutical sector.  Such an agreement on a dispute settlement moratorium would not require an
amendment of the Agreement and the application of the solution could be overseen by the Council,including to ensure that medicines being supplied to a Member that lacked or had insufficient
manufacturing capacities were not diverted into other markets, away from the people they were
intended to help.  It was worth considering whether a dispute settlement moratorium would not in fact
be the most expeditious solution and the one least prejudicial to the rights and obligations of Members
under the TRIPS Agreement.
86. Like other delegations, his remained open to consider any other practical approach to
addressing the situation that had been presented for a solution and reserved its right to develop
additional proposals in the future.  He had taken note of Kenya's comment that one of the principal
objectives of the African Group and perhaps other Members in devising a solution was to promote the
transfer of technology as a necessary way to encourage, wherever economically feasible, thedevelopment of local manufacturing capacities in the pharmaceutical sector.  It was very clear that
this type of objective would either be facilitated or frustrated depending on the type of solution that
was devised.  Although he did not have a particular an swer to suggest at the moment, he said that if in
fact it was agreed that this was an appropriate objective for this solution, it was worth considering
whether in fact the various solutions being put forward actually facilitated the transfer of technologyand the development of local manufacturing capacities in Africa itself.  Commenting on footnote 3 in
the EC's paper, which stated that any country might find itself in the position of being unable to
manufacture a particular treatment and of having to seek supplies abroad and referred to the anthrax
situation in North America, he assured the Council that the United States did not consider that it had
insufficient manufacturing capacities in the pharmaceutical sector and, had it found it necessary, it
would have had the means to produce a treatment for anthrax.  Therefore, it was not appropriate to
consider that the United States had insufficient or no manufacturing capacities in the pharmaceuticalsector.
87. The representative of Mexico considered the European Communities' paper a valuable input
to the discussion.  He sought a clarification whether any possible criteria had been considered under
their proposal on Article 30 whereby producers would be designated to manufacture products for
export purposes. This would influence the option's viability and the extent to which it maintained thebalance between the right holders and access to medical resources.
88.  The representative of Zimbabwe supported the statement made by Kenya.  His delegation
also believed that the expeditious solution envisaged under paragraph 6 could be found before the end
of 2002 if all delegations put their minds to it.  It did not matter under which Article of the TRIPS
Agreement the solution lay.  What mattered most was the speed, comprehensiveness and effectivenessof the final solution.  He was encouraged by the European Communities' concept paper and the
United States' statement and the possible solutions they had suggested.  He was particularly
appreciative that the EC's paper had clearly set out the problem recognised in paragraph 6 of the
Declaration and that it pointed the membership in a direction that would lead to a desired outcome.
However, he disagreed with certain statements in it.  It emphasized the need for conditions to avoidabuses and trade diversions of pharmaceutical products exported to countries that needed them. The
United States' intervention had stressed the need for similar conditions.  Whilst this was a legitimateIP/C/M/35
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concern, he cautioned that the current attempt was to address an unbalanced situation and therefore
one should be careful not to create more imbalances by hedging any envisaged solution with terms
and conditions that might turn out to be more burdensome than what was currently in the TRIPS
Agreement.  However, his delegation would wait to see on paper the form and content of the
conditions that the European Communities and United States had in mind.
89. He noted that the EC had said in its paper that the objective of any solution that Members
could come up with was the need to take care of "serious health problems" arising in "small
economies".  However, Zimbabwe saw the objective of a solution as the need to enable Members with
insufficient or no manufacturing capacities to make effective use of compulsory licences, as set out in
paragraph 6 of the Declaration.  Paragraph 6 clearly referred to any compulsory licence and not just
those that relate to serious health problems.  Moreover, paragraph 5 recognised that countries were
free to determine the grounds upon which they could grant compulsory licences.  If the Councilarrived at a solution  that was to be applied in respect of only those compulsory licences that related to
serious health problems, serious damage would be done to this principle. The Council would be drawn
into arguments about whether the licence issued did indeed relate to serious health problems or
whether it should have been issued at all.  This could be avoided by sticking to the language of
paragraph 6 which spoke simply of making effective use of compulsory licences.
90. According to the representative of Zimbabwe, th e EC's paper stressed that any interpretation
agreed upon in the pursuit of a solution should be in full conformity with the relevant provisions of
the TRIPS Agreement and in particular Article 27.1.  The Council was engaged in this exercise
specifically to get around the rule in Article 31(f) - in other words, it had to agree on some kind of
exception.  It would be difficult to accept that in fashioning this exception the membership mustconform to the rule.  Whilst it was acceptable that in attempting to find a permissive interpretation,
account should be taken of the Vienna Convention on the Law of Treaties, the relevant rulings of the
WTO Panels and the Appellate Body could not be used as a basis.  Zimbabwe's understanding was
that in the exercise of interpretation, Members were not bound by these rulings.  In fact, panels and
the Appellate Body should take note of whatever solution Members managed to put in place.
91. Responding to the United States' suggestion that  more information be gathered with respect
to current levels of pharmaceutical manufacturing capacity worldwide, he considered it useful
provided it did not become a condition precedent to a desired solution.  He was encouraged by the
debate and remained hopeful of finding a solution before the end of 2002.  He was prepared to look
seriously at all possibilities in a realistic but creative manner.
92. The representative of Venezuela considered the EC paper a constructive proposal showing a
willingness and commitment to find an expeditious solution to the problem by the end of 2002.  He
agreed with the options that it proposed:  either an  amendment to Article 31(f) or an interpretation of
Article 30.  It was important to indicate that the amendment process required official acceptance by
Members.  If the political will to do so was lacking then it would take more time.  The objective of the
process was not to undermine right holders' rights.
93. The representative of Japan believed that public health problems could and should be solved
only through comprehensive measures, including regu latory measures within the framework of the
TRIPS Agreement as stated in paragraph 2 of the Declaration.  He fully agreed with this concept and
was fully ready to cooperate to solve this problem as instructed.  It was understood that an expeditious
solution under paragraph 6 meant comprehensive measures taken in the various fields. The EC paper
pointed to important aspects in its paragraph 4 with which he fully agreed. His delegation was not in aposition to make any proposal but since the problem was closely related to the compulsory licensing
of patent rights, the Council should first attempt to find a solution within the Agreement and in
particular, within Article 31. The basic concept found in Article 31(a), that each case should be
decided on its individual merits, should be taken into account. There was also need for sufficient and
more accurate information in order to make  an in-depth examination of the problem.IP/C/M/35
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94. The representative of Korea agreed that it was important to effectively address the public
health problems faced by developing countries.  His delegation believed that the issue on the table
was of a very practical nature and that the work done here should ensure that the TRIPS Agreement
was part of the solution, which was the message sent with the adoption of the Declaration.  Dealing
properly with paragraph 6 would further enhance the relevance of the Declaration.  The complicatedtask before the Council mainly arose from the difficulty of reconciling two different value systems
which had no hierarchy between them.  He appreciated the EC and US proposals which he felt would
greatly contribute to the endeavour to explore viable ways to address paragraph 6 and form the basis
for future discussions.  The two proposals made by the EC were each equipped with safeguards to
ensure attainment of the intended objectives. The US proposal for a dispute settlement moratorium
was also noted.
95. While wishing to return to these proposals after further review with regard to their legal
implications and feasibility, he made some prelimin ary remarks. First, the solution would be better if
it made use of the flexibility found in the Agreement as this would be in line with the direction that
was sought in formulating the Declaration which reaffirmed the right of Members to use the flexibility
provided by the Agreement. Second, he cautioned against undermining confidence in the Agreement.
It was important to respect the legal stability of the Agreement and to allow it to fulfill its functions asa framework for providing incentives for new invent ions.  He observed that the EC's second option
was based on the cooperation of another Member which had the capacity to provide the medicines in
need.  Therefore, when a country without sufficient manufacturing capacity for pharmaceuticals asked
for another Member's cooperation to deal with a public health crisis, there needed to be a mechanism
to ensure the cooperation of the other Member in possession of capacity.  He supported the UnitedStates' proposal that the Council develop information regarding where patents existed currently on
pharmaceuticals to treat the diseases cited in the De claration since such information would enable the
Council to have a clearer picture of the problem and would enhance its ability to find proper solutions.
96. The representative of India recalled that Members had agreed at Doha that the TRIPS
Agreement did not and should not prevent Members from taking measures to protect public health.
The Declaration had affirmed that TRIPS Agreement can and should be interpreted in a manner
supportive of WTO Members' right to protect public health and in particular to promote access to
medicines for all.  It had reaffirmed the right of WTO Members to use, to the full, the provisions of
the TRIPS Agreement, which provided flexibility for this purpose. The Declaration also clarified
some of the flexibilities available in the TRIPS Agreement, such as Members' rights to grant
compulsory licences and the freedom to determine the grounds upon which such licences were
granted, the Members' freedom to establish its own regime for exhaustion of intellectual propertyrights etc. Having done so, Members had also explicitly recognized the problem of countries with
insufficient or no manufacturing capacities in the pharmaceutical sector in making effective use of the
instrument of compulsory licensing. Members had agreed to the need for an effective and expeditious
solution to this problem and to report to the General Council before the end of 2002 for taking a
decision.  Therefore, India wanted to underscore the importance of resolving this issue expeditiouslyin keeping with the letter and spirit of the Declaration.  He associated India with the statement made
by Kenya.  A large number of developing countries and LDCs would perpetually face problems in
meeting their public health requirements due to lack of local manufacturing capacity.  Indeed, any
country at some point in time, though temporarily, might find itself in such a situation.  India was
confident that Members would have the foresight to address all such situations.
97. The difficulties faced by countries with insufficient or no manufacturing capacity in the
pharmaceutical sector in addressing their public health related problems primarily arose because of
Article 31(f), which stipulated a condition for manufacturing predominantly for supply of the
domestic market of the Members issuing the compulsory licence.  In other words, the condition of
Article 31(f) made it difficult for countries to locate sources from which cheaper drugs could beimported. Article 31(f) also made local manufacturing uneconomical in countries with a small
domestic market.  In India's view, the most obvious solution was to delete Article 31(f).  However,IP/C/M/35
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there could be many more creative solutions to this problem.  He recalled the two options referred to
by the European Communities and Kenya, and welcomed this positive approach, and said that he
would comment on them at the  next meeting.  He  emphasised that India was open to any approach to
find an effective and expeditious solution to the problem identified in paragraph 6 of the Declaration.
However, it had to be ensured that such a solution should be simple and clear and should not lead tofuture problems of interpretation and to disputes.  It would be in the collective interest of the
membership that the matter be resolved once and for all.  The solution also should not be bound by
such conditionalities which made the effective use of this instrument difficult.  He said that this
decision should allow manufacturing of a patented medicine to meet the public health requirements of
countries which lacked manufacturing facilities for that medicine.  The decision taken in the Council
should enable all countries to make effective use of the instrument of compulsory licence in an
operationally simple manner to meet their public health requirements.
98. The representative of Sri Lanka associated her delegation with the statement made by Kenya.
Following the concerns raised by developing countries in the Council's special discussions on
intellectual property and access to medicines in 2001, Ministers had adopted the Declaration at Doha.
It contained both a promise and an obligation to interpret and implement the TRIPS Agreement in a
manner supportive of Members' right to protect public health and promote access to medicines for all.The Council had to implement the entire Declaration in good faith, ensuring that the safeguards of the
TRIPS Agreement worked for countries with both large and small domestic markets, and for countries
at different levels of technological development. The Declaration did not deal with all issues, in
particular the question raised under paragraph 6.  In this context, effective use of compulsory licences
was understood to mean facilitation of strategies to access essential medicines generally and in casesof national emergency and use that would encourage the development of domestic capacities for the
manufacture of pharmaceuticals.  Paragraph 6 directed the Council to address certain problems and to
report to the General Council by the end of 2002.  It framed a set of concerns that related to the
foreseeable reduction of off-patent medicines that would be available for export and import, as the
transition periods applicable to developing countries and LDCs expired.  It concerned the ability ofMembers to grant compulsory licences and the right of Members to make use of the Article 30
exception.
99. Her delegation viewed this as a two-stage proces s.  First, the TRIPS Council needed to find a
comprehensive and pragmatic solution to the problem.  Second, the General Council and/or the
Ministerial Conference should incorporate the solution as part of WTO rules or understandings.  The
exercise in which the membership was engaged needed to look at various scenarios and identify the
problem in each scenario and suggest what the overall solution should achieve in each case.Therefore, one should avoid taking a narrow approach in considering expeditious solutions to the
problem recognized in paragraph 6 of the Ministerial Declaration.  In this sense, paragraph 6 should
be read in light of the entire context of the Declaration.  Referring to the objectives of the TRIPS
Agreement set out in its Article 7, she said that a country making an effort to improve its
manufacturing capacities in its territory to pursue its health objectives was in line with thoseobjectives.
100. She noted that it was important to bear in mind first, that the Ministerial direction to the
TRIPS Council did not prejudge the kind of solution that might be proposed. This was an important
point in the sense that Members had the choice of either looking for a solution within the strict
confines of the existing text of the Agreement or looking at a broader solution that might even entailan amendment to the Agreement. Second, the solution was not just about getting medicines from
countries with capacity to those without capacity.  The solution had to be seen in the context of
supplying the current immediate pharmaceutical needs of countries without existing capacity, while
providing for ways of ensuring that such capacity is built up in the longer term.  Third, the declaration
referred to "countries with insufficient or no manufacturing capacities" but did not offer any clarity onthis.  Therefore, the problem recognised in paragraph 6 might not be limited to a specific category of
countries although developing countries and LDCs would certainly be among the main beneficiariesIP/C/M/35
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of possible solutions.  This problem could also arise in different scenarios as countries with
insufficient or no pharmaceutical manufacturing capacities might be unable to use compulsory
licensing to secure an efficient, affordable and reliable source of medicines due to restrictions on
production, import and export of patented products.  In specific terms, paragraph 6 related to different
problems and anticipated a range of solutions in the countries with capacity (exporting countries) aswell as the countries without capacity (importing countries).
101. The range of situations envisaged by Sri Lanka were: (a) where there was a patent on the
medicine in both the country of export and that of import; (b) where there was a patent only in the
country of import; (c) where there was a patent only in the country of export; (d) where there was no
patent in the importing or exporting country, either because there was no pharmaceutical product
patent protection at all or because there was none in force for that particular product.  When dealing
with anticipated solutions, all these possibilities should be taken into account.  It was important toanalyse the separate issues clearly, but ultimately an integrated solution, providing concessions for the
various interests, was needed.
102. Continuing, she said that the overall solution sh ould be one that: (a) established that, except
for the quantitative restriction under Article 31(f), in general there was nothing in the TRIPS
Agreement that prevented export or import under a compulsory licence; (b) removed the Article 31(f)restriction or permitted an exception to the rule , including the recognition of foreign compulsory
licences, for example through such mechanisms as an export processing zone; (c) recognised that
compulsory licensing could be used to effect tr ansfer of pharmaceutical technology to ensure that
countries without current manufacturing capacity could establish such capacity in the long run;
(d) recognised that countries could establish an  international exhaustion regime that recognised
products put on the market under a compulsory licence as released from the patent holder's rights and
therefore legitimate parallel imports.
103. She noted that the solutions to the problem centred on Articles 31 and 30, but there were
several others - Articles 6, 7, 8, 27 and 39 - that were relevant to the discussions.  Article 31 was
important in this debate since it established the conditions that had to be respected when issuing acompulsory licence, including when exceptions to certain conditions were permissible. The most
debated condition was the quantitative restriction in Article 31(f).   Although there might be
circumstances where countries granting compulsory licences predominantly to supply the domestic
market could still allow substantial exports in terms of volume, this would seldom be the case.  In this
sense, Article 31(f) created problems.  First, there was a problem where the market of the country
authorizing use was too small (in economic terms) to be the predominant market. The second problem
was encountered in third countries wishing to import from that compulsory licensee as the exportermight be restricted from exporting adequate volumes.  In the former case, there would be a need to
amend the TRIPS Agreement to remove the quantitative restriction under Article 31(f).  In the latter
case, barring any amendments to Article 31(f), it would be necessary to create a mechanism where a
compulsory licence issued in the third country was recognized in the exporting country with the
understanding that the market in this case was the third country's market.  The need for specificrecognition of the foreign licence was for purposes of allowing the licensee to be able to engage in
production without a direct licence from the authorities of exporting country.  However, the
recognition of foreign licences would have no valu e for countries which wished to import but had no
patent laws or had no patent on the particular medicines eliminating the need to use compulsory
licences.
104. The representative of Sri Lanka said that the issue of importation might not be an issue
directly addressed by Article 31, but it was an important point.  For countries with no manufacturing
capacity, it was clear that in the immediate term, the only way that a compulsory licence can be made
effective is through importation. It should therefore be understood that each country is free to
determine the manner in which compulsory licences issued in its territory will be worked. In thatcontext, the challenge for operationalizing such licences lay in ensuring that production andIP/C/M/35
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substantial exports were possible from the exporting country in cases where there was a patent on the
medicine.  She noted that the provisions of Article 30 were equally important in this debate. The
authority for Members to provide exemptions under Article 30 already existed in the TRIPS
Agreement, provided that the conditions set out thereunder were fulfilled.  The solution for the current
purpose should be one that would ensure that Article 30 could be interpreted to permit mechanismsthat fostered the transfer and dissemination of pharmaceutical technology and exports of medicines
and other inventions to address health needs in a third country.  There were certain basic parameters
that might need to guide the discussion on this poin t.  Article 30 authorized limited exceptions to the
exclusive rights conferred by a patent as long as the exceptions did not unreasonably conflict with the
normal exploitation of the patent or unreasonably prejudice the legitimate interests of the patent
owner. Article 30 also provided that in determining what was and what was not unreasonable, the
legitimate interests of third parties must be taken into account. It was important that in the firstinstance Article 30 be interpreted broadly in this exercise. Secondly, it was important that the rights of
patent owners under Article 28 were not read overly broadly, since the wider the rights were read, the
narrower would be the ambit of using the exception clause under Article 30.  Thirdly, Article 30
should also be seen in the context of fulfilling the objectives of the Agreement.  In other words,
exceptions could be adopted if the effect of applying strict patent rights was to negate the objectivesof the Agreement.
105. The representative of Sri Lanka raised the question of the procedural and/or substantive
actions that would have to be undertaken by the TRIPS Council, the General Council and/or the
Ministerial Conference to bring the expeditious solution into operation.  The TRIPS Council was
mandated to find a solution, which did not have to fit into the current formulation of the rules.  It wasimportant that apart from finding the solution itsel f, the Council should consider how expeditiously
that solution could become part of the WTO understanding/rules.  The TRIPS Council in its report to
the General Council should give a clear idea of how Members thought the solution could be put into
effect within the shortest period of time. The General Council would be expected to find an
expeditious way of bringing that solution into operation. There were several possibilities alreadyunder discussion: interpretation of relevant articles of the TRIPS Agreement;  amendment of the
TRIPS Agreement;  adoption of a declaration;  and adoption of a waiver.  In the end, a combination of
these options might be necessary.  The decision on which option to take should hinge on several
factors:  the comprehensiveness of the option; the efficiency of the procedure to operationalize the
solution;  and the practical implications of the procedure chosen.
106. The representative of Pakistan said, as a preliminary remark, that the EC paper addressed the
problem raised in paragraph 6 of the Declaration in a detailed, positive and cohesive manner. The
United States had also proposed a possible solution.  He associated his delegation with the statement
made by Kenya.  Paragraph 6 suggested that among the possible solutions open to producers in
countries with manufacturing capacities was that they could manufacture and export and sell the
patented product without the consent of the right holder to supply the countries with insufficient or no
manufacturing capacities in the pharmaceutical sector.  The Council should discuss the relevantprovisions of the Agreement that imposed limitations or that did not provide enough legal certainty
for solutions for countries with insufficient or no manufacturing capacities in need of access to
pharmaceutical products.  The expeditious solutions for Members with insufficient or no
manufacturing capacities in the pharmaceutical sector included options such as amendments or
authoritative interpretations of the relevant provis ions of the TRIPS Agreement, viz. Articles 30 and
31.  In the light of the clarifications established by the Declaration, the expeditious solution should
ensure the fulfilment of the objectives of the TRIPS Agreement of transfer of technology through the
development of local manufacturing capacities.  He suggested that Members should avoid taking a
narrow approach and consider expeditious solutions recognised in paragraph 6, which should be read
in the light of the entire context of the Declaration.  The objective of transfer of technology wascritical to ensure sustainable health policies and access to affordable medicines particularly in
developing countries.IP/C/M/35
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107. The representative of Malaysia supported the statement made by Kenya.  Kenya had outlined
a number of considerations to be taken into account in arriving at an expeditious solution to the
problem raised in paragraph 6 of the Declaration.  At this very early stage restrictions should not be
placed on what the eventual solution could be, even before the form of the solution had been
discussed.  The solution should be made available to all Members that needed to avail themselves ofthis course of action.  There should be no a priori  restriction on the rights of Members to make use of
this flexibility bearing in mind that compulsory li censing was a flexibility open to all Members.  Any
solution should not be limited to certain diseases.  The Agreement stated that measures could be taken
for public health and not just for specific issues.  Insufficient capacity should also be understood to
include capacity limited either by technological deficiencies or by economies of scale.  The solution
should contribute to the effective use of compul sory licensing, meaning that any solution should
enable Members to make functional and practical use of this flexibility in a manner that did not placeundue legal or administrative restrictions that nullified its intended purpose.  She welcomed the
submission of proposals but said that some were not acceptable in their present form but could form
the basis for further discussion.
108. She said that the Council should decide at the present meeting on a work programme that
would allow the discussions to proceed so as to enable an expeditious outcome to the directive fromMinisters in Doha.  A number of issues needed to be addressed.  Many of the solutions proposed were
supply-driven and were dependent on the country with manufacturing capacity granting the
compulsory licence.  This could be due to the territorial nature of patent protection. However, given
the urgency of the public health problems, any solution should ensure that the country with
manufacturing capacity should be in a position to respond expeditiously to the request. In this caseMembers might also want to consider the recognition of the grant of compulsory licence by a country
needing the medicines directly to a manufacturer in a third  country, without need for the third country
to issue the compulsory licence.  This could take the form of the interpretation that the grant of a
compulsory licence under Article 31 could also be made to a third country manufacturer. This would
overcome the difficulties as to which country would be eligible and the necessary safeguards asArticle 31 as the necessary safeguards in place.  Appropriate amendments to national legislation could
be made to recognise the issue of compulsory licences from a third country.  Another problem was
that countries with small markets might not have the economies of scale to make it effective for
another country to grant a compulsory licence to produce a medicine. Lastly, the nature of the
safeguards to be put in place should not de facto render the solution ineffective.
109. The representative of Indonesia associated his delegation with the statement by Kenya.  The
task mandated in paragraph 6 of the Declaration was important for the Council to ensure not just an
expeditious but also a comprehensive solution which should include building up the long-term
capacity of developing countries and LDCs to access affordable medicines in line with Articles 7 and
8 of the Agreement and the spirit of the Doha Development Agenda.  All possible options and their
advantages and drawbacks should be fully discussed in the Council's efforts to find a solution to the
problem recognised in paragraph 6 whether within the confines of the existing text of the TRIPSAgreement or in looking for a broader solution that may require amendments to its relevant
provisions.  Any solution under paragraph 6 should be made available to all Members without
distinction or further categorisation of developing countries and LDC Members. Whilst safeguards
might be relevant to avoid abuses, Indonesia was confident that if the solution was made available to
all Members, the concern about abuses and trade distortions could be avoided, as all Members wouldhave the same opportunities with respect to access to affordable medicines in addressing their public
health concerns.
110. The representative of Hong Kong, China recognized the potential problem identified in
paragraph 6 of the Declaration.  He recalled that his delegation had presented a non-paper to the
Council before Doha and said that it would continue  to play a constructive role in further discussion
with a view to finding an expediti ous solution to fulfill the mandate given by Ministers.  He said that
the Council should strictly follow the scope of the mandate given by Ministers.  Any Member mightIP/C/M/35
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potentially find itself in the position of being unable to manufacture a particular treatment in sufficient
quantity and having to seek supplies aboard, so any solution identified should not a priori  be
restricted to certain categories of Members.  He said that the EC paper sets out the relevant
background and the pertinent issues. His preliminary vi ews were that the two options identified in the
EC's paper could form the basis of an eventual solution.  He pointed out that the option of introducingan exception to Article 31(f) would still requir e the country with domestic manufacturing capacity but
no national emergency to fulfill the requirement under Article 31(b), i.e. first to make efforts to obtain
authorization from the right holder on reasonable commercial terms within a reasonable period of
time.  Given that there would be a health crisis in the other country and that time would be of the
essence, Members needed to further consider how an expeditious route can be found.  Whatever
option was chosen, sufficient safeguards were needed to ensure that the TRIPS Agreement was not
undermined and to prevent abuses.  However, any measures should be proportionate and not place tooonerous a burden on the country with the health crisis.  Other issues like the participation of and
compensation to the right holder would also need to be considered.  He had not yet studied the United
States' paper and might comment on it at the next meeting.
111. The representative of Argentina considered that the Declaration was the most relevant
declaration adopted in Doha. In it, the Ministers affirmed that the TRIPS Agreement should be
interpreted and applied in a way to support WTO Member's right to protect public health and in
particular to promote access to medicines for all.  Recalling the text of paragraph 6, she said that the
basic premises of the Declaration, in particular those contained in paragraph 4, should be the
framework within which Members should deal with the matter in the TRIPS Council.  Nonetheless, an
effective and long lasting solution to this problem could only be found by ensuring that the measuresand procedures to enforce intellectual property rights  did not themselves become barriers to legitimate
trade and by ensuring that these contributed to the promotion of technological innovation and to the
transfer and dissemination of technology to the producers and users of technological knowledge and
in a manner conducive to social and economic welfare and to a balance of rights and obligations.
Financial and human resources were extremely limited in developing countries and LDCs bycomparison with the developed countries.  A sustainable solution to the problem outlined in
paragraph 6 should be approached from a standpoint that included those factors which were relevant
to the issues such as effective transfer of technology, dissemination of inventions and establishment of
licensing contracts.  Developing countries faced two challenges:  for those that did have sufficient
manufacturing capacities, the challenge was to maintain and sustain these capacities; and for those
that, at present, did not have such capacities, the challenge was to establish a viable and sustainable
technological base.  The solution should deal with the problem in a comprehensive fashion with these
challenges, lest the membership faced even more serious situations to the detriment of developing
countries and LDCs.  The Council's work had to be two-fold: in the short-term, to find an expeditious
solution and in the medium term, to find a sustainable solution. This exercise should not lead to
greater restrictions, nor to a weakening of the flexib ility provided in some of the provisions of the
Agreement.
112. The representative of Hungary noted that in paragraph 6 Ministers acknowledged that there
was a problem.  The objective was to find a solution before the end of 2002.  He supported the Chair's
suggestion to table proposals by June.  The EC paper was a useful and positive contribution to jump-
start work on this issue.  His delegation supported paragraph 4 of that paper according to which
improving access to medicines required a comprehensive mix of measures ranging from publicfinancing of drug purchases, increased research and development to a strengthening of health care
systems.  Although the mandate of paragraph 6 did not cover countries that had problems of access to
affordable medicines in the absence of patent protection, Hungary was ready to further consider this
issue in the Council.  He supported paragraphs 13, 14 and 15 of the EC paper, and agreed with the
legal analysis in its paragraph 5.  The Ministers gave the Council a mandate to redress this imbalance.Compulsory licences should be issued only in exceptional circumstances such as those created by
public health crises and in strict adherence of the conditions laid down in Article 31.  Accordingly, the
solution to be found to the problem should also include adequate safeguards against abuse.  However,IP/C/M/35
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in doing so the creation of new imbalances should be avoided.  In other words, the Council should not
set stricter conditions for the countries that did not possess capacities in the pharmaceutical sector
than those which applied to the countries that did possess them.  Most of the countries that did not
have such capacities were smaller countries with smaller markets and the Council should ensure that
the conditions imposed should not only guard adequately against circumvention but also to thegreatest extent possible they should ensure cost-effectiveness and affordability of the drugs produced
under a compulsory licence by utilising economies of scale.  Hungary was willing to discuss further
the proposals put forward in paragraph 16 of the EC paper and other ideas as well, provided that they
offered a genuine and permanent solution to the problem recognised by the Ministers.  The form of
this solution was secondary to its content, the speed of its development and the time necessary for its
entry into force.  As a preliminary view, Hungary tended towards the Article 30 approach, which did
not make an amendment to the TRIPS Agreement necessary and which would offer an expeditioussolution.
113. The representative of Canada said that the Declaration was an important step forward in
consolidating the issues which the Council had identified and been working on since April 2001.
Canada was  pleased that the gravity of the public health problems afflicting many developing
countries and LDCs, especially those resulting from HIV/AIDS, tuberculosis, malaria and otherepidemics, had been explicitly recognized by the WTO.  Germane to these discussions  was the
confirmation that governments had the ability to protect public health by granting compulsory
licences to produce generic versions of life-saving drugs for public health crises such as the diseases
referred to in the Declaration.  Paragraph  6 clearly recognized the difficulties that some Members
might face, particularly those with insufficient or no manufacturing capacities in the pharmaceuticalsector, in making effective use of compulsory licensing.  Accordingly, the TRIPS Council was
instructed to find an expeditious solution to this problem and to report to the General Council before
the end of 2002.  Canada shared a number of the views that already been expressed by the European
Communities and the United States with respect to the role of patents in this debate and the role of
other bodies.  Before the Council could effectively take on this work, Members needed a fullerunderstanding of the dimensions of the challenges at stake.  For example, it was important to note that
the "Article 31(f) challenge" would not occur if any of the following situations:  (i) where a patent did
not exist in a in either the affected Member or the Member seeking to supply the affected Member;
(ii) where the patentee was supplying the market of the affected Member in sufficient quantities and
affordable prices; in this regard, Canada applauded the positive steps being undertaken by many of the
pharmaceutical companies, both brand-name and generic, in terms of supplying medications for
HIV/AIDS at lower prices in developing countries and LDCs; (iii) when the Member with thesufficient manufacturing capability granted a compulsory licence which was authorized
predominantly for the supply of its own domestic market and exported the remainder to an affected
Member; (iv) where the medicines needed by the affected Member were supplied in quantities and
affordable prices by, or through, an international organization, program or scheme, or in fact donated.
Members needed to consider these questions as the work proceeded.  Members needed to find outwhich Members did not have sufficient manufacturing capacity for the medicines needed to address
their public health crises, and whether these medicines were under patent.  Many pharmaceuticals
were not protected by patents.  Many Members currently benefitted from transition periods with
respect to pharmaceutical obligations such as those under Articles 65.4 and 66.1 and as referred to in
paragraph 7 of the Declaration.  Even when patent protection existed, the pharmaceutical industryoften chose not to exercise its option to patent in each country. In Africa, for example, many of the
LDC Members, such as the OAPI and ARIPO member countries, made available pharmaceutical
product patent protection.
114. There were many other factors besides patents which might explain the lack of access to
antiretroviral drug treatment in LDCs, particularly in Africa.  Part of the answer might lie in therelationship between the wealth of a country and the impact of the public health crises on that country.
This was explicitly recognized by the Declaration which was limited to public health problems
afflicting developing countries and LDCs.  Member s most challenged by public health crises neededIP/C/M/35
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international assistance to establish and develop their health systems and infrastructure capacity for
the delivery and monitoring of complex drug regimes.  In addition to insufficient financial resources,
the challenges for affected Members include poor medical care and infrastructure; inefficient drug
regulatory procedures; high tariffs and sales taxes; and in some cases a lack of political will to address
the issue.
115. Turning to the proposals that had been made, she said that Article 30 allowed limited
exceptions to the exclusive rights conferred by patents in certain instances.  Footnote 7 to Article 31
provided that "other use" referred to use "other than that allowed under Article 30" which made it
clear that Article 30 was not intended to address the issue of compulsory licences provided for under
Article 31.  Otherwise, there would have been no reason to list the specific conditions that need to be
met in Article 31.  Moreover, it was a basic principle of treaty interpretation that a specific provision
took precedence over a general one.  Article 30 was clearly designed as a provision of generalapplication and was not meant to trump the more specific Article 31.  At a minimum the "expeditious
solution" proposed by the Council must accord with th e basic principles of international law.  It was
also important to note that an Article 30 approach might also raise Article 27.1 concerns as it might
potentially discriminate as to field of technology.
116. Another option suggested was to delete Article 31(f).  Canada cautioned against such a hasty
response.  Members must recall that Article 31 provisions applied to all patents and not just
pharmaceuticals which might be needed to address public health crises.  There remained sound policy
rationales for maintaining Article 31(f) such as respect for the territorial application of intellectual
property law and national sovereignty.  Given such implications, eliminating this provision would
entail a lengthy process and would not likely benefit Members across all sectors.  Canada believedthat the United States proposal on a dispute settlement moratorium with respect to Article 31(f) as
worthy of further consideration.  This approach might have the benefit of being able to respond
expeditiously to the challenge because it was time-limited and narrowly circumscribed  by the
conditions laid down in Article 31(b).  Such an appr oach would also need to consider measures that
would prevent leakage or re-importation.
117. Canada recognised that international cooperation and assistance would also be an important
part of the solution given that poverty and devastating economic conditions were the greater challenge
for many developing countries.  Commenting on footnot e 3 in the EC paper, she clarified that in the
event that Canada had granted a compulsory licence to produce Cipro it would have granted the
licence to a Canadian company, thereby fully respecting the conditions in Article 31(f).  Canada also
assured the Council that it had sufficient capacity to produce the drug domestically.
118. The representative of Brazil supported the statement made by Kenya. The Declaration was a
remarkable result as it provided unambiguous clarifications of the provisions of the TRIPS Agreement
regarding their relationship with public health policies.  It consolidated the principle that intellectual
property rights should not be placed above overarching public interest policies, in particular public
health.  Paragraph 6 should be read in the context of the entire Declaration.  In carrying out the
mandate under this paragraph, Members should refrain from taking a narrow approach that wouldresult in narrow, provisional or burdensome solutions.  The aim should be for a more sustainable,
realistic and feasible solution.  The main problem acknowledged in paragraph 6 was the lack of access
to products related to the protection of public health.  Similarly, there was no reason to exclude
Members or categories of Members. There was no indication in paragraph 6 that certain countries
should be excluded from the solution as it referred to situations in which any Member could suffer interms of inadequate access to public health-related products.  It should also be noted that difficulties
in access to drugs or any other public-health related product were not limited to countries where
patent protection existed in terms of a patent being filed in that country.  Turning to the issue of
transfer of technology, he said that there was no question that a sound manufacturing capacity in the
pharmaceutical sector was a crucial step in ensuring sustainable access to medicines and other public-health related products.  Transfer of technology was directly related to the fulfilment of the primaryIP/C/M/35
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objective of the TRIPS Agreement and the Council should not detract from the objectives and
principles set out in Articles 7 and 8.
119. The possible solutions that had been suggested were not exhaustive and Brazil might table
others in the future.  He focused on Articles 31(f) and 30.  Whilst Article 31(f) clearly allowed
Members the possibility of supplying foreign markets, it also imposed a limitation to supply"predominantly" the domestic market.  Such a limitation could lead to inefficient production and
would not provide a sustainable nor an expeditious solution.  Brazil would support those who
proposed the elimination of Article 31(f) as one possible solution.  Another option could be based on
an authoritative interpretation of Article 30 which allowed Members to authorize limited exceptions.
In this context the Council should envisage the possi bility of authorizing third parties to make, sell
and export patented public health related products without the consent of the patent holder to address
public health needs in another country.  This solution would be in line with the existing wording ofArticle 30 as the acts performed by the producer/exporter under this exception would be "limited
exceptions to the exclusive rights conferred by a patent" and they would also meet the criteria of
avoiding "unreasonable conflicts with the normal exploitation of the patent, and do not unreasonably
conflict with the legitimate interests of the patent owner, taking account  of the legitimate interests of
third parties".
120. Commenting on the EC paper, Brazil noted  the common ground between the possible
solutions envisaged by Brazil and other developing countries and the EC paper.  Brazil advised the
Council to refrain from narrow, burdensome or in effective solutions that would defeat the very
purpose of the solution.  Brazil was ready to consider any legitimate concerns that were raised on the
issue of safeguards but remained wary of the possibility of avoiding any expeditious solution in thisrespect.  Brazil would reflect further on the US proposal for a moratorium but, as a preliminary
reaction, feared that such a solution could delay a concrete solution.  Brazil said it remained ready to
continue discussions on this issue in a constructive, realistic and creative manner and reiterated its full
commitment to finding an expeditious solution before the end of the year.
121. The representative of Switzerland said that his delegation would participate actively and
constructively in discussions aimed at reaching a timely solution with respect to the problems of
Members with a genuine public health need and with insufficient or no manufacturing capacities in
the pharmaceutical sector if they needed to make effective use of a compulsory licence because access
to drugs which were under patent was not available otherwise. His delegation was prepared and
willing to contribute to a tailor-made solution devised specifically for the needs of the countries which
might need this kind of additional support.  However, such a solution had to be found without
weakening or undermining the patent protection as a whole provided under the TRIPS Agreement.The solution to be found must not diminish incentives for industry to invest into research and
development of new and more effective medicines as  otherwise it would be a lose-lose situation, with
those dependent on new and effective medicines being hurt most.
122. He referred to information published by the US Center of Disease Control and Prevention the
previous week according to which developing and developed countries were going to face a "vaccinedisaster".  Because research and development in the pharmaceutical, and especially the vaccine, sector
was so expensive and because patients were not willing or not in a position to pay for these new
vaccines, the stimulus for research and production of new vaccines was constantly reducing. As a
consequence, within the last 20 years, the number of producers of vaccines had reduced from 15 to 4
in the United States.  The number of vaccines available against diseases such as tetanus, diphtheria,meningitis or pneumonia therefore was dramatically reduced in the United States and elsewhere.  This
example showed that whatever the legal approach taken by the Council, the stimulus for the relevant
industries to conduct the necessary research into drugs and vaccines against diseases that were
threatening all of humanity should be maintained.  He agreed with the statement in paragraph 15 of
the EC paper that an adequate participation by patent right holders was a prerequisite of any solutionand it should not affect their capacity to offer drugs needed on more favourable terms.  Therefore, theIP/C/M/35
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success or failure of the task before the Council depended on establishing clear, appropriate eligibility
conditions.  The Council should define with meaningful precision what was to be understood by
"insufficient or no manufacturing capacities in the pharmaceutical sector";  which situations were to
be covered by the solutions to be found;  and how to ensure that the solution would be for the real
benefit of those countries that lacked sufficient ma nufacturing capacity to meet their health needs and
not one for the benefit of those Members that indeed had these manufacturing capacities or to
countries which did not face a public health problem.  Distinguishing between these countries should
be done by reference to objective, recognized criteria which could lend welcome transparency.  He
suggested that the Council could ask the Secretariat to ask relevant international organizations such as
UNDP or the World Bank to provide relevant data on world development indicators before the next
meeting.  The Council should also try to identify and point out to the General Council at the end of
this year those options open to Members which enabled access to needed medicines without havingresort to a solution focusing on compulsory licensing, since such options might be much more
efficient and effective in practice and easier to handle for the countries concerned.
123. The representative of Costa Rica considered th at the TRIPS Agreement should be interpreted
and applied in such a way as to offer support to the protection of public health.  It should promote
access to existing medicines and at the same time it should ensure that the rights of right holders wereprotected and that research and development into new medicines was promoted, as this was in
accordance with the Declaration.  Her delegation emphasised the importance of promotion and
encouragement of the transfer of technology.  Any solution to achieve this objective should avoid
reducing the rights and obligations which had already been agreed upon in the multilateral framework,
including in the TRIPS Agreement.
124. The representative of China supported the statement made by Kenya.  Her delegation shared
many of the opinions expressed by other delegations and welcomed some of the possible solutions
that had been put forward. However, since the problem being discussed was that faced by Members
with insufficient manufacturing capacities who were  facing public health crises, China suggested that
besides the proposals already made by certain delegations on possible amendments or possibleinterpretations of certain articles of the TRIPS Agreement, technical cooperation and transfer of
technology be considered to solve the problem.
125. The representative of Norway recalled the importance of the early agreement in Doha on the
Declaration and how it had contributed to the successful outcome of the Ministerial Conference.  The
task at hand was to implement in good faith paragraph 6 of the Declaration, as read in conjunction
with the other elements of the Declaration.  He drew attention to a report on paragraph 6 written by
Professor Frederick Abbott for the Quaker United Nations Office in Geneva and which had beendistributed to the delegates.  Professor Abbott gave an in-depth legal analysis of various solutions to
overcoming the problem of supplying patented medicines to low-income countries.  He had focused
primarily on the two main alternatives already mentioned.  One was to amend Article 31 to overcome
the limitation set by paragraph (f). In this way, a compulsory licence could be issued for the purpose
of specifically supplying the needs of a given developing country market.
126. He said that another proposal was to issue an authoritative interpretation of Article 30. Such
an interpretation would make it clear that Members may, under certain circumstances, "provide
limited exceptions" to the rights of the patent holder under Article 30.  Thereby a Member could, on
the basis of Article 30, authorise the production and export of patented medicines to a low-income
market, without the authorisation of the patent holder.  Several  conditions would have to be met in
order to be able to issue an authorisation under Article 30. For one thing, there would have to be
financial and medical constraints in the recipient country, which limited the country's ability to
safeguard the public health interests of its population.  It should also be made clear that the exceptions
under Article 30 could not be used in order to supply developed importing Members. In the end, it
would be up to each Member, under the terms of any such interpretation, to make the final decision onwhether the conditions of Article 30 were fulfilled. In this connection it was important to note thatIP/C/M/35
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each Member had to ensure that any exception under Article 30 must not be considered
"unreasonable" vis-à-vis  the patent holder. Limited exceptions were made in the country of export,
and if there was a patent on the product in the country of import, a compulsory licence would
normally have to be issued in the country of import.  This raised the issue of remuneration in relation
to the compulsory licence. Moreover, the question of remuneration to the patent holder would alsohave to be discussed in relation to an authorisation under Article 30 in the country of production.  A
thorough analysis of Professor Abbott's paper woul d be a valuable contribution to the deliberations in
the Council.
127. He said that the EC's paper, in its basic form, had much in common with the legal analysis of
Professor Abbott. Norway had an open mind on the type of instrument that should be used.  The
eventual choice would depend to a large extent on the substantive solutions on which the Council
decided to concentrate its work. From the point of legal clarity, however, an amendment of the TRIPSAgreement would seem to be the best way to achieve  the objectives of paragraph 6, since it would, in
principle, be the best way to clarify and resolve relevant legal issues involved. If unforeseen
ambiguities should later arise, an amendment would be lex specialis  in relation to other provisions of
the TRIPS Agreement. On the other hand, an amendment could involve rather cumbersome
procedures.  An authoritative interpretation, if it could manage to address and solve all relevant legalissues involved, would be a simpler procedure.  Members could also foresee other instruments or a
combination of instruments.  At any rate, it was important to find a permanent solution to this
question and also to the problem of re-exportation into third countries.  The issue of preventing
re-exportation was partly a legal issue, but also necessitated certain control mechanisms and thus was
a responsibility of all parties involved.
128. The representative of Singapore said that the Declaration did not indicate what needed to be
done to solve the problem referred to in its paragraph 6.  This had been left to the TRIPS Council.
Interesting, useful and constructive proposals had already been made on possible solutions to the
problem.  Singapore would like to add only that it would be unwise to exclude any of the options that
were being offered because at this stage the Council was only brainstorming.  It was also important toremember that compulsory licensing was not free of charge and carried a cost as it involved the use of
a patent.  The difficulties faced by some countries in the use of this instrument called for a balanced,
durable and useful solution.
129. The representative of Peru supported the statement made by Kenya.  Peru considered it
essential to find an expeditious and effective solution for those countries that had insufficient
manufacturing capacities in the pharmaceutical sector.  Such a situation could arise for various
reasons such as lack of or inadequate infrastructure, or lack of appropriate technology or because oflack of economic feasibility or profitability.  There was a need for  a comprehensive global solution to
this problem. The Council needed to clarify and, perhaps, modify certain provisions in the TRIPS
Agreement, particularly Articles 30 and 31(f).  This would make it possible for the export of
pharmaceutical products to these countries at costs and conditions that were reasonable and acceptable
to them.  The Council should also encourage and promote the transfer of technology so that countriescould be helped to establish manufacturing capacities for pharmaceutical products.
130. The representative of Uganda, speaking on behalf of LDC Members
, associated his delegation
with the statement made by Kenya, which fully re flected the position of LDCs.  The LDCs wished to
reiterate that one of the most important challenges facing the multilateral trading system was
addressing and promoting issues pertaining to developing countries and especially LDCs.  Thepreamble to the Doha Ministerial Declaration recognized the role that international trade and the
multilateral trading system could play in the promotion of economic development and alleviation of
poverty.  The protection of intellectual property rights could contribute to international trade but
private intellectual property rights had to be balanced with the needs of the users of intellectual
property.  The aim should be the promotion of technological innovation and the transfer and
dissemination of technology.  Thus, a more balanced TRIPS Agreement could be part of the solutionIP/C/M/35
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of the problems being faced by developing countries, especially in the field of health.  Hence the need
to approach the negotiations and the review pro cess as mandated in the Doha work programme with
the objective of balancing the rights and obligations of IPR holders with the needs of the public as set
out in Articles 7 and 8 of the Agreement, including access to medicines.
131. He welcomed the adoption of the Declaration and looked forward to the TRIPS Council
giving effect to the Declaration through legal provisions.  While the Declaration recognised the
flexibility needed by developing countries to improve their health systems while maintaining
affordable access to medicines, their capacity constraints remained a serious handicap and required
supportive measures and actions in other related areas of the work programme.   The Declaration
posed important challenges and the LDCs stood prepared to fully contribute to the deliberations on the
subject, particularly on paragraph 6 of the Doha Declaration on TRIPS and Public Health.  He
stressed the significance of the transition measures provided for in paragraph 7 and took note of theSecretariat's draft Decision on this.  His comments were preliminary only and he would revert to the
issue with more detailed proposals later.
132. The representative of South Africa associated his delegation with the statement made by
Kenya.  He said that the parameters for the disc ussion should take into account the objectives and
principles of the TRIPS Agreement, the entirety of  the Declaration, the need for a permanent solution
that was the least cumbersome and that there should be no a priori  exclusion of Members that could
potentially benefit from a solution.
133. The representative of Kenya made preliminary comments on the EC paper.  Compulsory
licences on grounds of public interest were one way of providing access to medicines.  Licensees had
to make a considerable investment in order to manufacture the medicines. The cost of productionshould be covered but making profits was not an objective.  Looking at paragraphs 5 through 9 of the
EC paper, he pointed out that Kenya did not benefit from the extension provided for in Article 65.4.
As regards paragraph 11 of that paper, he said that extension alone could not provide a solution to
access to medicines. These countries had been in existence for decades and still lacked sufficient
manufacturing capacity in pharmaceuticals.  They would not benefit unless there was technologytransfer to them, either individually or as a group.  On paragraph 13 of the paper, he said that it was
true that it might not be easy to find a reliable and affordable source of supply of generics. The Indian
experience showed that there was a potential for such sources that could be further developed once the
system was legalised and promoted.  Commenting on paragraph 16, he said that the word "serious"
before "public health" diminished the spirit of the language used in the Declaration as well as in the
TRIPS Agreement.  The wording should be "public health" as used in the Declaration.  Article 31(b)
used the term "public non-commercial use".  Public health issues were always serious since theycould lead to loss of lives.  Kenya agreed with the reasoning of paragraphs 18 through 21 of the EC
paper.  The legal implications on the modalities set out in paragraph 18 required further exploration.
Kenya noted that poverty was relative so it was better to go with the language of the Declaration, i.e.
"WTO Members".  As regards paragraph 22, he said that affordability of medicines was important and
technology transfer was a better and more sustainable solution.  Availability of generics was the bestsolution.  Paragraph 24 did not provide the solution.  The prices set would remain in the hands of the
manufacturers of medicines and hence medicines would still not be affordable.  The EC depended
upon a legislative solution but the private sector had a very high influence on various pieces of
national legislation and also at the international level.  One could not rule out the possibility of
manufacturers of medicines influencing national legislation to their advantage.  In order to get arealistic solution to this problem, there might have to be amendments to one or more provisions of the
TRIPS Agreement.  Kenya was exploring other options which included Articles 6, 27.2 and 31(h) as a
way forward to solve the problem faced.
134. The representative of the WHO welcomed the attention and concern shown for the health
sector by WTO Members and to access to essential medicines in particular.  He recalled that the
Declaration affirmed that the TRIPS Agreement "can  and should be interpreted and implemented in aIP/C/M/35
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manner supportive of WTO Members' right to protect public health and, in particular, to promote
access to medicines for all".  He said that this  marked a watershed in international trade and
demonstrated that a rules-based trading system should be compatible with public health interests. The
Declaration enshrined the principle that the WHO had publicly advocated and advanced over the
previous four years, namely, the re-affirmation of the right of WTO Members to make full use of thesafeguard provisions of the TRIPS Agreement in order to protect public health and promote access to
medicines.  The WHO would continue to advise c ountries on the implications of globalization on
public health and access to medicines, as mandated by relevant World Health Assembly resolutions.
Furthermore, the WHO is assessing and would continue to assess the implications of the Declaration
as they related to access to medicines.  It would continue to advise its member states, upon their
request, on the implementation of the Declaration into national legislation which affected access to
medicines.  The WHO offered to support the WTO and the Council, in whatever way they deemedappropriate, including the Declaration's instruction in paragraph 6.
135. The Chairperson said that the manner in which delegations had approached this issue had
been encouraging.  The Council should find a solution before December 2002.  He recalled his
proposal that Members be invited to submit proposals for concrete solutions to the problems by the
Council's next meeting in June, without this being a rigid deadline.  Further, he proposed that theSecretariat be requested to prepare notes providing available background information on, first, the
extent to which patents exist in regard to the diseases referred to in the Declaration and, second,
manufacturing capacity for medicines in different countries.
136. The Council agreed to proceed as suggested by the Chair.
(ii) Extension of the transition period provided for in paragraph 7 of that Declaration
137. The Chairperson recalled that, in paragraph 7 of the Declaration, the Ministerial Conference
had agreed that the least-developed country Members would not be obliged, with respect to
pharmaceutical products, to implement or apply Sections 5 and 7 of Part II of the TRIPS Agreement
or to enforce rights provided for under these Sections until 1 January 2016, without prejudice to theright of least-developed country Members to seek other extensions of the transition periods as
provided for in Article 66.1 of the TRIPS Agreement.  In paragraph 7, the Ministers had instructed the
Council for TRIPS to take the necessary action to give effect to this pursuant to Article 66.1 of the
TRIPS Agreement.  He recalled that the Council, at an informal meeting held on 15 February 2002,
had requested the Secretariat to prepare a draft decision for the Council to consider in order to carry
out that instruction given by the Ministerial Conference.  The Secretariat had circulated a draft
decision in document Job(02)/12.  He proposed that the Chair hold consultations on the draft decisionbefore the Council's meeting in June.
138. The Council agreed to proceed as suggested by the Chair.
D. ISSUES RELATED TO THE EXTENSION OF THE PROTECTION OF GEOGRAPHICAL INDICATIONS
PROVIDED FOR IN ARTICLE 23 TO PRODUCTS OTHER THAN WINES AND SPIRITS
139. The Chairperson recalled that in paragraph 18 of the Doha Ministerial Declaration, the
Ministerial Conference had noted that "issues related to the extension of the protection of
geographical indications provided for in Article 23 to products other than wines and spirits will be
addressed in the Council for TRIPS pursuant to paragraph 12 of this Declaration".  Whilst there were
a number of different interpretations of this mandate, he believed that there was a common
understanding that the Council had to report on this issue to the Trade Negotiations Committee by theend of 2002.  This set an important time-frame that the Council should take into account in organizing
its work.  He asked Members to share their thinking as to how the Council should take up the
substance of this matter with a view to being in a position to make a constructive report by the end ofIP/C/M/35
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2002.  In particular, he asked them to indicate whether and when they intended to submit papers, and
invited them to address the substance of this matter if they had new points to raise.
140. The representative of Australia said that the discussion in the TRIPS Council over the last few
years on the subject of geographical indications had generated considerably more heat than light,
confusion than consensus, and passion than persuasion.  Members had spent many hours seeking toclarify what was meant by the reference in Article 24 of the TRIPS Agreement to negotiations aimed
at increasing the protection of individual geographical indications under Article 23.  Ministers had
pronounced on the matter at Doha in a somewhat roundabout way which was the best that could be
achieved at that time.  The Council had been charged with the task of addressing the issues related to
the extension of geographical indications provided for in Article 23 to products other than wines and
spirits and was obliged to present a report to the TNC by the end of the year.  The TNC would then
decide on what further action, if any, should be ta ken. Some delegations would have preferred to have
dealt with the matter in a different way and some delegations had issued unilateral interpretations of
the Doha Declaration which went beyond Australia's interpretation. Australia would, if necessary,
engage in a discussion in the Council about what Ministers agreed but was also ready to focus on
substantive issues.  It did so on the understanding that the purpose was to address the issues relating to
extension and not to discuss modalities of possible negotiations on extension.
141. He said that a number of conceptual issues needed to be discussed.  What was meant by
protecting a geographical indication?  Whose interests were sought to be enhanced or protected? Was
the aim of the demandeurs simply to give the protected geographical indication an exclusive IP right?
Was their aim to promote regional industries or was it to protect consumers?  How was the Council to
reconcile the interests of producers with a distinctive reputation or tradition of production and those ofproducers who had an interest in the unrestricted use of common product descriptions, personal names
and unregistered trademarks and business names?  Which products deserved this additional
protection?  Should services be included?  Were the demandeurs asking to embark on a re-write of the
TRIPS Agreement?  Were they suggesting the remo val of the consumer deception test and the "fair
use" exceptions for geographical indication protection now clearly enunciated in the TRIPSAgreement?   These questions led to more substantive questions about the nature of international
norms that demandeurs were seeking.  Were they, for example, seeking a unique global outcome for
an individual IP right or were they prepared to maintain exceptions for different linguistic and cultural
applications, and to allow for different perceptions among different consumers?  There appeared to be
paradoxes in the argumentation of the advocates for extending geographical indication protection.
Some of these advocates have argued - in relation to pharmaceuticals, living organisms and traditional
knowledge - for the need to apply public policy exceptions to balance the monopolistic effects ofIPRs, for the need to resist the erosion of national  sovereignty in regards to the removal of discretion
over the grant or refusal of IP rights, for the need to avoid claims to IP over material in the public
domain, and for the need to avoid unwieldy regimes which placed unfair burdens on them.  However,
in relation to geographical indications, they appeared willing to eliminate public policy exceptions,
deny national courts jurisdiction over geographical indication determinations, ignore material in thepublic domain, embark on a potentially large and complex regime for protecting geographical
indications - despite the fact that the costs and benefits could only be guessed - and put at risk the
reasonable and carefully negotiated balance between private rights and public interest considerations.
Australia had sometimes been accused of delaying tactics when it argued for a better understanding of
the models of IP protection at the national level.  However, international standards for IP protectionwere likely to be most effective and workable when they gave effect to models which had proved
successful at the national level.  The Council needed to have a better understanding of national
experience in geographical indication protection - an understanding of what countries already did to
give effect to their TRIPS obligations on geographical indications and an understanding of the costs
associated with the kind of international protection models which were being advanced bydemandeurs.IP/C/M/35
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142. Continuing, he said that the results of the Doha Ministerial Conference had portrayed this
issue as an implementation issue by listing it at Tiret 87 in the list of outstanding implementation-
related issues and concerns (Job(01)/152/Rev.1).  The statement in Tiret 87 that "additional protection
for geographical indications shall be extended for products other than wines and spirits" was very
much an ambit claim.  Implementation-related issues had received intensive consideration over thepast two years.  This reflected a determination on the part of the WTO membership to address issues
and concerns that had been raised by many developing country Members regarding the
implementation of WTO agreements and decisions. Implementation issues related solely to areas
where developing countries could potentially benefit either as a result of action taken by developed
countries to accelerate or more fully implement their obligations as they related to developing
countries or by providing for greater flexibility in how developing countries implement their own
obligations.  They were not intended to provide ad ditional flexibility to developed countries who may
have had similar difficulties and resource constraints in implementing obligations or to cover areas
where developed countries would benefit from acti on taken by other developed countries.  None of
the 59 tirets in the list of outstanding implementation-related issues and concerns were inserted at the
request of developed countries.  All were insert ed at the request of developing country and LDC
Members.  Therefore, as an implementation  issue, the Council's task was to address the issues related
to the extension of additional protection to products of specific interest to developing countries  and
not those of interest to developed country demandeur s.  In other words, this was a North/South issue
and South/South issue but not a North/North issue.  As most "countries in transition" were in the
process of negotiating membership of the European Union and were expected to have joined it by the
entry into force of the results of these negotiations, he would categorise them as developed countriesfor the purposes of this exercise.
143. The Council needed to explore the definition of geographical indications.  Geographical
indications were interpreted in the TRIPS Agreement as "indications which identify a good as
originating in the territory of a Member, or a region or locality in that territory, where a given quality,
reputation or other characteristic of the good is essentially attributable to its geographic origin".  Heasked whether the demandeurs for extension of additional protection were seeking to change this
definition.  It had never been interpreted under the DSU and individual Members applied the term in
their own jurisdiction, using a wide variety of definitions and different instruments and policies. The
Council needed further clarification as to how geographical indications had been interpreted
nationally and, more specifically, how Members protected their own geographical indications.
Australia advocated pursuing this issue under the Article 24.2 review.  Unless Members fully
understood what was happening in practice, they would not be able to assess whether the current levelof protection under Article 22 was inadequate.  To date, the Council had heard no concrete, empirical
evidence of instances in which Article 22 protection had failed adequately to protect a term protected
in its country of origin as a geographical indication.  Rather, it had heard general assertions about the
inadequacy of the misleading tests as a means of IP protection - assertions which flew in the face of
established IP protection mechanisms.
144. The Council also needed to explore whether the definition covered indications that were not
geographical place names, such as "basmati" rice and "jasmine" rice, and whether the definition
covered a country name, as at least one Member rejected the view that a country name could be used
to describe a product.  Members needed to ask what the demandeurs were suggesting.
Notwithstanding the implementation nature of th e issue, he took the example of the European
Communities, which he said already had a system of protection for product names which did not
appear to provide national treatment.  Their system or systems were described as "protected
designations of origin", "protected geographical indications" and "traditional specialty guaranteed".
He had found on the internet a list of 562 product names, covering 12 categories of food and other
products, which the European Communities wished other Members to protect. There were 32 othernames which might fall within the TRIPS definition of geographical indications but which were not
protected for some reason in the European Union.  If this was because they were deemed generic, it
raised the question as to whether a term deemed generic in one WTO Member was necessarilyIP/C/M/35
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perceived as generic in another Member.  It was not clear whether the European Communities wished
other Members to protect these 32 other names.  In addition, the European Communities wished other
Members to protect traditional expressions, such as  "vintage", "sweet", "dry" and "fine" which were
listed in an annex to the bilateral Australia-EU Wi ne Agreement.  This showed that Members needed
to consider the long-term implications of exte nding geographical indication protection which led
down an ever-descending track to an ambit claim to protect so-called "traditional expressions".
145. The Council also needed to discuss exceptions. The TRIPS Agreement contained a number of
exceptions to geographical indication protection, relating to terms which had been used for many
years, terms which had become generic in nature, the precedence of trademarks, the use of a person's
name etc.  Australia participated in this discussion on the assumption that in exploring these issues
there was no intention of changing these exceptions.
146. Continuing, the representative of Australia said that the Council needed to consider the
cultural diversity dimension. A number of Members, including Australia, had received many
immigrants who brought with them farming, processing and manufacturing skills, processes and
professions. They had begun to grow, process, brew and distil food and beverages and not unnaturally
had used the same terms that they had used in their home country.  They had not done so out of any
desire or intention to engage in unfair competition or to mislead consumers, but rather because suchterms were familiar to them and formed part of their cultural traditions.  These names and terms had
become part of the common language of the countries to which they migrated long before the TRIPS
Agreement.  During the Uruguay Round, Australia had resisted the extension of Article 23 to products
other than wines and spirits to preserve its right to continue using terms that had come to form part of
its everyday language through long use and tradition.  It was culturally insensitive for Members,predominantly those from which these people had migrated, to try to claim back terms that Australian
producers had used for decades.  Australia therefore refused to forego names and terms which were
part of its multicultural society for the same reason that some European countries did not make GATS
commitments in audio-visual services: they did no t wish to undermine their cultural values.  The fact
was that many governments used a combination of financial incentives, radio and TV contentrequirements, tax measures, rules on foreign investment and intellectual property rules to promote
their culture, although he was not advocating in the Council new WTO rules to promote cultural
diversity.  Members should acknowledge the entitlement of governments to regulate to achieve
legitimate policy objectives to enhance cultural diversity.
147. Concluding, he said that it was critical that Members consider not only intangible factors,
such as cultural diversity and the balance of interests, but also the tangible factor of the costs that
extension of protection would entail and the increased legal obligations that would be imposed onMembers.  He recalled a paper co-sponsored by Australia (document IP/C/W/289) which, among
other things, had canvassed the administrative and other cost implications of extending protection to
products other than wine. This issue needed further thorough examination.
148. The representative of Sri Lanka thanked the Chairperson for including this issue in the agenda
as a priority item which was consistent with the understanding reached by the TNC at its first
meeting.  Introducing a non-paper she was submitting on this issue, she said that the statement of the
Chairman of the General Council at the first meeting of the TNC on 1 February 2002, (document
TN/C/1) which was endorsed by Members, established a structure which meant that substantial work
on the issue of extension of additional protection to other products must take place in the TRIPS
Council.  This understanding should enable the TRIPS Council to proceed now and engage in thesubstantive work on this issue.  She recalled some of the key elements of the discussion in the Council
on the extension of the protection of geographical indications provided for in Article 23 to products
other than wines and spirits.  Misunderstandings and concerns persisted regarding the goals and
content of "extension".  She referred to doc uments IP/C/W/240/Rev.1, 247/Rev.1 and 308/Rev.1, in
which Members in favour of extension had explai ned what should be achieved by extension, what
were the benefits and advantages and showed that the concerns expressed by the opponents were notIP/C/M/35
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justified nor substantiated.  She encouraged delegations to carefully study these communications
again.  Ministers in Doha placed the needs and interests of developing countries at the heart of the
new trade agenda and extension could play an important role in achieving that objective.  However,
all Members could use geographical indications.  Even if this potential had not yet been exploited by
some of them, it offered new trade opportunities.
149. She said that under the current regime, geographical indications for wines and spirits received
more effective protection under the TRIPS Agreement than those for other products.  Not all
Members produced wines and spirits and therefore did not benefit from this additional protection.
They produced and traded in other products which might be equally or even more renowned for their
quality or excellence due to their geographical origin than a wine or a spirit.  This geographical origin
could be recognized or made identifiable by attaching a geographical indication to the goods.
Extension of protection to geographical indications for products other than wines and spirits wouldcreate a level playing field for all Members whether they produced wines and spirits or other products
when using geographical indications to enhance market access opportunities.  Extension would enable
them to prevent more effectively the improper use of their geographical indications and free riding on
their reputation which needed time and much effort  to create.  The documents to which she had
referred had demonstrated that the current level of protection for geographical indications for productsother than wines and spirits was unsatisfactory.  Under the existing provisions of Article 22, the
reputation of a product which displayed unique features and a specific quality due to its geographical
origin can be subject to free riding by other products bearing the same geographical indication but
produced in other regions and not possessing the same qualities.  Such acts could not be prevented
with the protection presently provided for in Article 22.  The provisions of Article 22 related tosituations where the public was misled or where an act of unfair competition was established.
Providing protection to a geographical indication only in those cases, as under Article 22, enabled
such free-riding. When using such a geographical indication for products not actually originating from
the place indicated, according to Article 22 of the TRIPS Agreement, it was enough to add a
"corrective" (e.g. "American type basmati rice") in order to make such use legitimate.  Such a
commercial practice was not allowed for geographical indications for wines and spirits, thanks to the
protection provided for in Article 23 of the TRI PS Agreement.  The use of the designation "Napa
Valley wine produced in Chile" was  prohibited.  Therefore, contrary to the protection under Article
23.1, Article 22 did not provide for an effective protection.
150. Since the Uruguay Round, the economic situation had been steadily developing.  If, more than
ten years earlier, an effective protection for geographical indications for wines and spirits may have
been in the foreground, no economic reasons could be found today to exclude other products fromsuch protection.  On the global market, geographical indications were now recognised as an
invaluable marketing tool in trade for all products.  There was no objective and systemic reason for a
different protection of geographical indications for wines and spirits compared to those for other
products.  A level playing field needed to be established by the WTO, in order to enable all Members
to benefit equally from the use of geographical indications for their products.  It was striking thatsome of those Members, who were wine or spirit producers, were taking advantage of the additional
protection provided by Article 23.1 for the trade of their wines and spirits, but were nevertheless
opposed to an extension of this protection to other products.  The following questions seemed to arise:
Why should they want to deny this more effective protection of geographical indications to Members
producing other goods than wines and spirits?  Why should such protection be reserved to thoseMembers producing wines and spirits?  Why did they not want this additional protection for their own
other goods?
151. Continuing, she said that the opponents of exte nsion sometimes argued that extension would
necessitate the establishment of a new, complicated and costly protection mechanism at the national
level.  This was untrue - such a new mechanism would not have to be established.  The obligation toprovide additional protection was already in force for all Members under Article 23.  No costly or
burdensome protection mechanism had to be established to comply with this obligation.  ExtensionIP/C/M/35
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simply meant, as it did for wines and spirits, that a geographical indication could only be used on a
product if that product actually originated from the place indicated by the attached geographical
indication.  No costly or burdensome proof in a civil or criminal court or administrative body would
be necessary any longer to show either that the public was misled by the use of a geographical
indication or that its use constituted an act of unfair competition.  Using simply a corrective toovercome such a finding would no longer be possible.  The additional protection provided by
Article 23.1, compared to Article 22, provided an objective standard and therefore a more effective
level of protection.  The use of geographical indications such as "Carolina rice grown in India" should
be just as illegitimate as "Napa valley wine produced in Bulgaria".  Bearing in mind the objective of
extension, it was important to highlight that the TRIPS Agreement provided in Article 24 for specific
modalities and exceptions to the rule.  When the protection of Article 23.1 was extended to products
other than wines and spirits, agreement on similar modalities and exceptions would have to beidentified.  She did not mean that this protection would go beyond that for geographical indications
for wines and spirits.  These exceptions meant, for example, that indications which had been used in
good faith and in a customary manner over a long period of time for specific products would not have
to be abandoned.  The balance of rights and obligations provided in Article 24 would have to be taken
into account when working out the modalities of extension. Extension did not imply a "roll-backprotection". One of the main objectives of extension was to prevent more geographical indications
which were not generic today, from becoming generic in the future due to improper use.
152. Concluding, the representative of Sri Lanka said that in view of the instructions of the
Ministers at Doha and the decision of the Trade Negotiations Committee of 1 February 2002, the
TRIPS Council should now make substantive progress on this issue and work out the legal modalitiesnecessary to implement extension in the TRIPS Ag reement in a manner that the agreement provided
for a level playing field for the protection of geog raphical indications, just as TRIPS did for other
areas of intellectual property rights.  It was important to bear in mind that the issue of extension
needed to be addressed in accordance with paragraph 12(b) of the Doha Ministerial Declaration,
which required the issue to be addressed as a matter of priority by the TRIPS Council, which shouldreport to the TNC by the end of 2002.  This mandate therefore required the Council to engage in
substantive work with a view to achieving a solution by the end of 2002.  According to this
interpretation, the ultimate goal of this should be commencing the negotiations on the extension of
additional protection for  geographical indications to products other than wines and spirits.  She said
that the Australian intervention had raised a lot of questions and she reserved her right to come back
with specific answers later.
153. The representative of Slovenia agreed with the statement by Sri Lanka, especially the
reference to the Doha Ministerial Declaration and the decision taken by the TNC.  In the spirit of
Doha, where Ministers agreed that negotiations on outstanding implementation issues should be an
integral part of the Work Programme, it was time the TRIPS Council began a substantial discussion in
order to report to the TNC by the end of 2002.  The Council should make full use of 2002 to create
modalities and reach a commonly agreed solution by the end of the year.  The reason why sufficientprotection of geographical indications for all products was growing in importance was, first, that
equal protection for all geographical indications would be an invaluable marketing tool and value
added for exports because it would increase the chances of market access for such goods.  Moreover,
it would prevent free riding on renowned or famous geographical indications by producers that
claimed that they did not mislead consumers.  An additional benefit of extension would be theelimination of risk that such names could become generic terms in future.  This risk existed because
Article 22 did not prevent the use of geographical indications in translation or accompanied by
expressions such as "style", "type", "kind" or "imitation".  Secondly, the unified level of protection for
all products would solve the problem of the so called "misleading test" and would shift the burden of
proof from the owner of a geographical indication.  Currently, the main difference between the two
levels of protection was that in order to prevent the incorrect use of a geographical indication under
the ordinary level of protection, the party that considered itself wronged had to furnish proof that the
wrongful use of the geographical indication was misleading to the public or constituted an act ofIP/C/M/35
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unfair competition.  This resulted in different protection for the same geographical indication in
different countries, thereby creating serious legal insecurity.  All protection was thus based on the
knowledge or ignorance of the consumers and the discretion of the judge. With additional protection
extended to all products equally, the holder of a geographical indication would no longer need to
prove to judicial or administrative authorities that the public had been mislead or that there had beenan act of unfair competition. Thus, granting the level of protection of Article 23 not only to
geographical indications for wines and spirits but to geographical indications for all products would
establish a uniform level of protection at the multilateral level and would remedy the legal uncertainty
regarding the level of protection granted by WTO Members to a specific geographical indication.
Most Members who favoured extension, many of them developing countries, had realised that from
the commercial point of view geographical origin had the same importance for all products and, as a
consequence, an equal level of legal protection should be accorded under the TRIPS Agreement. Thisrecognition emanated from the fact that different legal terms used to protect a geographical name,
such as trademarks and appellations of origin, had not always facilitated the recognition and the
protection of such names in other countries.  Therefore, the extension of the additional protection to
products other than vines and spirits was considered an investment in the future. Her delegation
wanted to achieve in TRIPS legally-based better competitive conditions for its products in foreign
markets and the domestic market, without fear of the geographical indications identifying them being
borrowed or becoming generic.
154. The representative of the United States said that Australia's intervention had covered the
majority of issues which it was important to address thoroughly in any discussion of a potential
expansion of the scope of Article 23.  He expanded on some issues which deserved particularattention.  On the question of costs, his delegation was preparing a paper to respond to document
IP/C/W/308 which had in turn criticised the vi ews expressed in document IP/C/W/289 sponsored by
Argentina, Australia, Canada, Chile, Guatemala, New Zealand, Paraguay and the United States.  In
particular, the forthcoming paper would rebut the view that extension of additional protection to other
products would involve only minimal costs, if any, because it could be achieved merely by extendingwhat was currently done with respect to geographical indications for wines and spirits to geographical
indications for other products.  That was simply not the case in the United States.
155. On the question of the appropriate relationship between geographical indications and
trademarks, he said that these two forms of protection had similar objectives, such as providing
consumers with accurate source information and to avoid consumer deception.  Geographical
indications and trademarks should be entitled to similar protection in many respects.  A fundamental
concept of international trademark law, including under TRIPS, was that owners of registeredtrademarks should be able to prevent unauthorized third parties from using identical or similar signs
for identical or similar goods if such use would be confusing.  Identical or similar signs could
certainly include words or marks that might fall within the Article 22 definition of a geographical
indication.  Thus, a geographical indication established after a trademark should not detract from, or
prejudice, the rights of a trademark owner un der Article 16.  Any discussion of geographical
indications had to recognize that fundamental concept which was simply a matter of fairness.  On the
question of the Checklist, his delegation had, under the Article 24.2 review, asked all developed
country and developing country Members to provide information on the systems that they had put in
place to protect geographical indications.  The obligation to provide that protection had existed for
over two years for developing country Members.  Any discussion of extension needed fullinformation on the systems that Members had put in place to provide such protection.  He urged all
Members to respond to the Checklist.
156. The representative of New Zealand said that this issue was familiar to Members from the
Council's earlier discussions under the Article 24.2 review.  The Council had been moderately
successful in conducting preliminary discussions on extension.  Now, the implementation agenda hadgiven a new and more specific direction to examine the issues related to extension.  Members had a
duty to engage in a substantive and focussed discussion during 2002 in the Council.  Discussions ofIP/C/M/35
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this issue post-Doha should not be "business as usual".  The Council was obliged to report to the TNC
at the end of 2002 so that it could decide on any further action needed.  There was scope to build upon
relevant issues identified previously, as well as issues that had only been touched upon superficially
or not at all.  The debate should not be limited to the scope of previous discussions in the Council.
This work was pursuant to the implementation concerns in the results of the Doha MinisterialConference.  Her delegation looked forward to a better understanding of the development and
implementation issues associated with this subjec t and suggested the following list of issues for
discussion which was neither prescriptive nor exhaustive.
157. She said that in order to understand and quantify the costs and benefits of extension, the
Council needed first an idea of the coverage of possible extension.  Some Members were interested in
protecting their country names.  Would country names be covered, such as "New Zealand mineral
water"?  If not, why not?  Some Members were interested in protecting the names of types ofproducts, such as particular plants.  Would terms that did not incorporate a geographic name be
covered?   How would existing TRIPS provisions on generic terms and "grandfathered use" be
applied in the future?  Second, on the question of costs and benefits, she recalled that document
IP/C/W/289 referred to costs, and other delegations had made submissions on benefits.  The Council
needed to address the relative  costs and benefits together and ground its discussions in the real world
practical impact of extension.  A sharing of national experiences in the Council might assist.
New Zealand was particularly interested in three categories of impact:  the regulatory and
administrative impacts; the impact on trade, both w ith respect to commercial implications for traders
and broader market access questions;  and the impact on consumers and their adequate and effective
protection.  Third, the Council should also address:  questions of policy balance, for example, the
relative merits of greatly extending private rights vis-à-vis  public rights.  How would exclusive rights
conferred under extension compare with other form s of rights, such as patents, under which rights
were exclusive but limited in their scope?  Fourth, the Council should address issues of culture.  Was
there a risk of stripping migrant communities of some of their key cultural heritage?  How did the
Council recognize migration patterns and the fact that new cultures were built on the foundations ofolder cultures?  Fifth, the Council should address the implementation angle.  The work was to be
pursued under an important mandate on implementation issues.  The development and implementation
issues associated with extension provided a primary lens through which the Council should view its
task.  She recalled the key themes of the implementation debate, such as the realization of anticipated
benefits, the balance of rights and obligations, practical difficulties and resource constraints and
impact on the trade and development prospects of Members.  Against that background, the focus of
the work on extension should be an evaluation of the implementation of the current provisions.  Littleheadway had been made in the Council on that issue to date.  After examining the above issues, or
after some further discussion, the Council should look at some other issues.  Some related to structural
issues in the current TRIPS provisions.  For example, what impact would extension have on the
Article 22 definition?  What impact would it have on the relationship between the provisions on
trademarks and those on geographical indications?  Her delegation asked proponents to help itunderstand what they really wanted from extension and how they envisaged it working in practical
terms whilst, at the same time, her delegation would be working to help other delegations understand
better its own concerns regarding extension and its reservations about some of the arguments
previously raised by the proponents.
158. The representative of Switzerland thanked Sri Lanka and Slovenia for having recalled the key
elements of the Council's discussion to date on the extension of protection of geographical
indications.  Paragraph 18 of the Doha Ministerial Declaration had given the issue an existence of its
own.  In today's globalized trade and economy, it was important that all products could benefit from
geographical indications equally through adequate and effective protection when being traded
internationally.  He asked why it should be possible to prevent the use of an indication such as"Australian Shiraz wine" if the wine was not from Australia, when it was not possible to prevent the
abuse of an indication such as "genuine Antigua coffee" which was not produced in Guatemala but in
Nicaragua, or the use of "New Zealand mineral water", if that was an indication that fulfilled theIP/C/M/35
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definition in Article 22.1, and the water was not from New Zealand?  The goal of extension was
simply to ensure that geographical indications for products other than wines and spirits benefited from
the same effective protection as geographical indications for wines and spirits.  With the extension of
the protection under Article 23.1 to products other than wines and spirits, the use of geographical
indications in expressions such as "Cacao de Chuao, made in Canada" would be as illegitimate as"Spanish tequila".  With extended protection, the geographical indication "Chuao" could only be on
cacao that actually came from the region of Chuao in Venezuela, just as the designation "tequila"
could only be used on a particular spirit from Mexico, thanks to the protection granted under
Article 23.1.
159. He said that the proponents were seeking a balanced solution, similar to the one for wines and
spirits.  They were willing to discuss not only the rights but also the obligations which applied to
wines and spirits in Article 24.  The rights to use a specific indication for a specific good which hadbeen acquired in good faith and over a long period, and the character of generic terms, should not be
prejudiced by extension.  The improper use of geographical indications, which was made possible by
the insufficient protection provided currently under Article 22, resulted from geographical indications
first becoming renowned – a fact welcomed by all producers – but then risking becoming generic – a
fact not welcomed by producers.  Extended protection would prevent geographical indicationsbecoming generic in future.  Current protection for geographical indications for products other than
wines and spirits did not take account of all the investments made by local producers to develop over
years production techniques for products with special and unique qualities due to their geographical
origin, including natural and human factors.  The role of human know-how and efforts which were
often necessary to achieve and bring out a distinctive quality in a product were key for a geographicalindication to become reputed.  Geographical indications were one strategy of product differentiation,
one of the most important and popular business strategies in the globalized trade and economy. They
should only be allowed to be used on products actually originating from the place indicated by the
geographical indication.
160. He said that some Members still had questions or misconceptions as to what was actually
intended to be achieved by extension.  They believed that it would have implications which in fact it
would not have. He recalled that, unlike Article 22, Article 23 did not require evidence of the public
being misled or the presence of an act of unfair competition in order to prevent the use of a
geographical indication in respect of a product from a place other than the indicated region.  With
extension, the same would apply for geographical indications for products other than wines and
spirits.  Extending the protection provided in Article 23 to other products would therefore not involve
the creation of a new protection mechanism as was often raised in opposition to extension.  As withgeographical indications for wines and spirits, the authorities in charge of determining whether the use
of a geographical indication for a particular good was legitimate, would simply have to examine
whether the product actually originated from the place indicated by the geographical indication.  The
question would be decided on the basis of objective and foreseeable criteria (i.e. whether the product
actually did originate from the place indicated by the geographical indication used on it).  This wouldclearly facilitate the procedures for enforcing the protection of geographical indications and result in a
reduction of the workload of judicial and administrative authorities as well as cost advantages for the
enforcement of geographical indications against misuse in general.  It would also facilitate Members'
implementation of the obligations resulting from Section 3 of Part II of the TRIPS Agreement, since
they would have to provide only one coherent leve l of protection for geographical indications in their
national legislation.
161. Responding to the comments made by some delegations, he said that most of the answers
could be found in the three communications wh ich Switzerland had co-sponsored (IP/C/W/204, 247
and 308).  On the question of whether extension would be in the interests of developing countries and
LDCs, he could not answer for those Members, but he referred to an article by the AustralianProfessor, Michael Blakeney (Journal of World Intellectual Property, September 2001, pp.629-652) in
which he concluded that: "The subject of geographical indications is of particular interest toIP/C/M/35
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developing countries because of the importance to those countries of the remunerative marketing of
their agricultural production.  The expansion of the full scope of the TRIPS geographical indications
regime to those products is an effective demonstration of the relevance of the Agreement to their
economic circumstances.  Resistance to this extension may communicate an unfortunate message to
those countries about the political realpolitik of the international intellectual property rights regime."(at p.652)  On the question of costs, Professor Blakeney concluded that: "(…) the costs of extending
Article 23.1 are arguably negligible." (at p.650)
162. Concluding, the representative of Switzerland sa id that extension would lead to the use of
geographical indications on genuinely equitable conditions for all products and would therefore
promote traditional methods of production and pro cessing thereby contributing to WTO Members
economic development and improved consumer information.  With extension, the advantages of
effective protection for geographical indications would be available equally to all WTO Members.  Itwas not a North/South, North/North or even a South/South issue.  Remarkably, it was an issue for all
WTO Members.  He also reminded Members that geographical indications were currently considered
to provide a possible tool for the protection of traditional knowledge and genetic resources, for
example: "kava", "Rooibos tea", "neem", "Mexic an enola beans", "Peruvian yacon" and "Andean
nuna beans".  For all these reasons, the TRIPS Council needed to proceed without any further delay towork out the legal modalities necessary to eliminate the existing deficiencies in the TRIPS Agreement
in the field of the protection of geographical indications with a view to reach a mutually agreeable
solution.
163. The representative of Uruguay said that the Council had been discussing this issue for some
time and now it had to address it pursuant to paragraph 18 of the Doha Ministerial Declaration.  His
delegation understood that this had to be done in a serious and concrete manner so that those who had
posed questions to Members who argued in favour of extension of protection could finally receive
answers.  Many of these questions had been posed by Australia, New Zealand and the United States at
this meeting.  These responses had to be given soon so that the Council could address the substantive
aspects of this issue and report to the TNC at the end of 2002.  His delegation's current position wasthat it did not support extension.  His domestic authorities were conducting an internal evaluation of
this issue as his delegation had to understand the economic impact of any extension on Uruguay's
exports, potential exports and the impact of products that would benefit from additional protection on
its domestic market.
164. He said that, to date, the Council's work had been conducted in a broad and overly general
manner.  Despite the many discussions, there was still no clear idea which were the products it was
sought to protect, and what was the type of protection being sought.  Without answers to thesequestions it was difficult to discuss the matter sensibly.  There were also substantive aspects that
remained unclear.  For example, why was the current level of protection under Article 22 for all these
different products considered insufficient?  What concrete disadvantages had the proponents
encountered from that protection that would justify,  or render absolutely necessary, the amendment of
the current system?  It was unacceptable to argue that extension would be beneficial for all Members,since the proposed new obligations would apply to all products and all Members, including those
which decided not to protect any of their geographical indications.  He insisted that the costs involved
in extension, principally for developing countries, should not be underestimated or generalized.  It
was obvious to his delegation that in some cases that the costs would not be offset by the potential
benefits.  Uruguay was a country whose identity had been formed by migration.  The majority of itspopulation was descended from Europeans who had introduced their techniques, production methods,
names and marks, which had been the productive basis of the country for more than a century.  This
was the case of many other Members.  They were therefore concerned by the negative consequences
that extension could have on products that for decades had been produced and exported, particularly
agricultural products and handicrafts.  They were also concerned about the repercussions and level ofconfusion that this would cause for consumers.  As in all discussion in the WTO, Uruguay was willing
to participate in a serious and open manner with a co nstructive attitude.  However, they needed all theIP/C/M/35
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elements necessary for a complete, considered and balanced evaluation of the possible net benefits
that an amendment of the Agreement, such as th at which had been proposed, would have on countries
such as Uruguay.  Therefore, it was crucial that proponents of such an amendment answer all the
questions that had been posed.
165. The representative of Turkey associated his delegation with the statements by Sri Lanka,
Slovenia and Switzerland.  It was appropriate that the Council's agenda include this item as it
complied with the understanding and agreement reached by the TNC at its first meeting and was in
line with the mandate given by the Doha Ministerial Declaration.  His delegation was pleased to see
the initiation of substantial discussions on this issue in the Council.  Members were finally engaged in
a new discussion and negotiation process.  This issue was extremely important because it gave the
opportunity to address an important imbalance in the TRIPS Agreement which unfairly provided
protection to certain products while excluding and discriminating against other products.  If Memberswished to render the multilateral trade system fairer and more equitable, their aim must be to establish
a system where all products could enjoy the same level of protection.  Extension of the scope of
protection to other products would play an important role in the development of local producers and
of the industries concerned, especially for medium and small enterprises. Members should avoid any
discrimination among different products so as not to create new inequalities.  If provisions were
interpreted too narrowly, there was a risk of excluding many products and their producers from the
multilateral trading system, whilst providing strong protection for some others.  The Council had to
take note of the legitimate concerns of small and medium enterprises trying to enter international
markets.  If the aim was to ensure their participation in, and integration with, the global economy,
Members had to show them that they had their place in the global economy.  If these producers had areputation for a product or for a production method which they have developed over time, it was their
legitimate right to enjoy the benefits of it.
166. He added that the issue of geographical indications was not only an issue for producers.  It
also concerned consumers.  One of the basic prin ciples of a market-oriented economy was consumers'
right to be able to choose in the full knowledge of what they consumed.  It was also their right toenjoy the particular characteristics of the product they wished to consume.  The reputation of a
product should not be subject to abuse, simply because it was not a wine or a spirit.  Each country had
a different range of products in which it enjoyed a comparative advantage in foreign markets.  Some
delegations had asked why the level of protection under Article 22 was not sufficient.  In his
delegation's view the term "misleading the public" was not clear enough and was likely to lead us to
long legal discussions about how the public could be misled.  If it were to be interpreted for different
products with different characteristics to be consumed by people of different cultural backgrounds indifferent countries with varying market structures, it could be difficult to decide what misled the
public and what did not.  Therefore, Article 22 needed to be reinforced and the Council had a good
opportunity to reinforce it.  If it simply extended the geographical indication protection to all products
other than wines and spirits it would avoid discussions about what misled the public in an unfair way.
Extension could not create new barriers to trade but would only provide more predictability andtransparency.  The beneficiaries of extension to all products would be Members from different levels
of development.  He referred to the sponso rs of documents IP/C/W/204/Rev.1, 247/Rev.1 and
308/Rev.1, which were Members with different leve ls of development and economic structure from
different regions. This was not only a matter of geographical distribution.  The sponsors included
developed, developing and LDC Members.  The developing country Members had either completedor were about to complete the establishment of mechanisms foreseen by the TRIPS Agreement.  As a
result of first-hand experience, his delegation could say that this had not been a smooth process but,
once the mechanisms for protection of geographical indications for wines and spirits were established,
extension of this protection to other products involved a negligible amount of work.  This was
demonstrated by the experience of his delegations and some other developing countries that supportedextension.  Of course, in some cases there might be certain additional costs.  However, the concept of
intellectual property, by definition, consisted of a dynamic self-development.  Therefore, the legal
instruments in general, including the TRIPS Agreemen t, needed revisions.  The articles of the TRIPSIP/C/M/35
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Agreement which provided for reviews were evidence of this fact.  These reviews and revisions were
to bring advantages and benefits to all Members. If these entailed costs these were to be offset by their
advantages.  This was especially true of the extension of geographical indication protection.  Any
potential impact on consumers would be positive, as it would enable them to make a better choice
with more accurate information on the product they wished to buy.  If a product really possessedcertain qualities that benefitted consumers, producers should not worry about competition and should
not resort to the abuse of the reputation of another product originating in a certain region.  If it was
valid in principle to grant additional protection for some products, it was not reasonable to exclude it
categorically for other products.  The potential effects on trade would only be positive.  Thanks to
technological developments, a wide range of products  were within the reach of consumers, who knew
more about products from around the world and producers could increase their markets.  However,
this was only possible if there was a system available to them to protect the qualities andcharacteristics of their products against unfair competition. This was especially important for the
producers in developing countries.  If some producers and industries would be affected negatively in
some way, the prospects of increased trade would more than offset those negative effects.  In any
case, the negative effects would be on free-rider producers.  If the existing provisions were interpreted
to protect these free riders, why not protect producers that violated copyright or trademarks as well?
167. The representative of Turkey concluded by saying that according to the mandate of the Doha
Ministerial Declaration and the decision of the TNC, the TRIPS Council should now start substantive
work on this issue, aiming at determining the legal modalities necessary to implement the extension in
a timely manner, as urged in paragraph 12(b) of the Declaration, which stipulated that this issue was
to be addressed as a matter of priority by the Council, which was supposed to report to the TNC bythe end of 2002.  Therefore, in his delegation's view, the Council was supposed to achieve a concrete
solution by the end of 2002.
168. The representative of Korea referred to Australia's view that extension was an implementation
issue, so that the products eligible for additional protection would be limited to those of special
interest to developing countries.  He was not sure that other Members would accept that view and saidthat a balanced perception of the issue required respect for its history up to the time of the Uruguay
Round.  He added that the Council needed further guidance in the following areas before it could
reach any conclusion:  the equation between the benefits of addressing the current difference in levels
of protection for geographical indications according to product type, and the overall administrative,
judicial and trade costs expected to be incurred;  the existence of alternatives for achieving the same
intended objectives as extension;  and evidence of the insufficiencies of Article 22 in protecting
geographical indications for products other than wine and spirits.
169. The representative of India associated his delegation with the statement made by Sri Lanka.
He reiterated that the issue of extension of additional protection to products other than wines and
spirits arose, inter alia , from the mandate in paragraph 12(b) of the Doha Ministerial Declaration,
which required the issue to be addressed as a matter of priority by the TRIPS Council which would
report progress to the TNC at the end of 2002.  Therefore, it was part and parcel of the delicatebalance of the work programme established at Doha.  India looked forward to this issue being
addressed by the end of this year.  He recalled the proponents' arguments for extension in documents
IP/C/W/204/Rev.1, 247/Rev.l and 308/Rev.l, which had been reiterated by Sri Lanka in its statement.
India's own experience had shown that it was extrem ely difficult and resource-intensive to prevent the
incorrect use of a geographical indication under the level of protection under Article 22, under whichthe party that considered itself wronged had to furnish proof that the wrongful use of the geographical
indication was misleading for the public or constituted unfair competition. This resulted in different
protection for the same geographical indication in different countries, thereby creating serious legal
insecurity. All protection was thus based on the knowledge or ignorance of the consumers and the
discretion of the judge. This was really the thrust  of the argument advanced in these communications.
On the question of costs and burdens of extension, he recalled that this had been addressed in
IP/C/W/308/Rev.l.  During the Uruguay Round, the developing countries' flexibility had beenIP/C/M/35
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stretched to its limit in the TRIPS Agreement.  Th e necessity for developing countries to implement
the multifarious obligations in the TRIPS Agreem ent, including establishment of the enforcement
machinery which TRIPS requires, had involved very considerable costs.  These major implementation
costs were imposed upon developing countries without any suggestion of the need to undertake
financial or economic impact studies.  He was confident that the costs of extending Article 23.1 toproducts of interest to developing countries would be negligible compared to the costs borne by
countries in implementing other provisions of the TRIPS  Agreement.
170. Since the Uruguay Round, one of the main reasons for a loss of confidence in the fairness of
the international intellectual property regime in India had been the attempted usurpation of the
geographical indications of basmati rice.  Had a geographical indication regime been in place in the
countries in which protection for these brands was sought, the resolution of this dispute would have
been simpler and much cheaper.  Under the aegis of the Doha Development Agenda, the membershiphad been presented with the opportunity to restore the confidence of developing countries in this
system.  He noted with satisfaction the priority established by the General Council for discussion
within the TRIPS Council of the extension of addi tional protection to products other than wines and
spirits.  He urged the TRIPS Council seriously to engage in the substantive process of working out
modalities necessary to extend additional protection of geographical indications just as the TRIPSAgreement did for other areas of intellectual property rights.  Many of the issues raised by Australia,
New Zealand and the United States were of a technical nature and his delegation wanted to
understand them better before responding to them.
171. The representative of Canada said that Australia had raised a number of important questions
which required further work and elaboration before the Council could complete its work.  The Doha
Ministerial Declaration required the Council to continue to address these issues so that it would be in
a position to report to the TNC by the end of 2002.  The Council had already spent much time on the
issue but perspectives remained divided.  Members needed to find a way to bridge the gap.  Canada
believed that addressing the questions raised by Australia and others would be central to making
progress on whether there was any need to extend protection as identified in Article 23.1 to productsother than wines and spirits.  It was essential to recall the role of Article 22 which obliged Members to
provide protection to geographical indications for all goods and called on the principles of consumer
deception and unfair competition as a basis for the protection.  It accorded Members great flexibility
in implementing the obligations.  Many delegations had called for the enhancement of protection for
other goods but had not elaborated on why Article 22 was insufficient.  For example, Canada offered
geographical indication protection in conformity with Article 22 under the provisions of its Trade
Marks Act.  Some examples of geographical indications currently protected in Canada were:  "Swiss"or "Suisse " for chocolate, "India" for spices, "Ceylon tea", "Freiburger cheese" and "Stilton cheese".
Some delegations had implied that certain wine-producing countries wanted to limit the Article 23
protection to wines and spirits.   However, Article 23 was a significant concession by a number of
Members, not just wine-producing Members.  Ca nada was one of the wine-producing Members who
had not seen the need for such enhanced protection for wines and spirits and its experience inimplementing TRIPS had not changed its views.  It was not clear to what extent the two levels of
protection were different in practice.  Article 23 conferred on Members the exclusive right to give a
geographical indication for a wine or a spirit and ultimately meant that others would be deprived of
the right to use that term.  Such exclusivity might create complex situations if it were extended to
other products.  For example, who from India or  Pakistan would be allowed to use the term
"basmati"?  Many Members had requested extension to other products but none had demonstrated
which difficulties they had encountered in protecting their geographical indications.  There was a need
for further discussion to know why the current system of protection did not work.  Her delegation
asked if the problem was one of implementing the current provisions rather than of the scope of
protection which was currently required.  TRIPS was clear that the levels of protection in bothArticles 22 and 23 had to be available in all co untries.  A number of basic questions had to be
answered before proceeding.  Whilst there had been attempts to discuss the issue of geographical
indications in other fora, most had failed or been considerably affected because of the position ofIP/C/M/35
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reluctant countries.  These countries had been unwilling to discuss important issues such as national
treatment and the safeguard of third party rights.  In this regard, it would be important to have regular
updates on the related work in WIPO on the various elements of geographical indications.  WIPO had
an important role to play and was a good forum in which to discuss the issue at large.
172. One fundamental question was the potential scope of the definition of geographical
indications.  According to Article 22.1, a geographical indication just needed to be an indication and
not necessarily the name of a geographic place.  She asked if that interpretation was unanimously
accepted.  It had not yet been tested.  Some Members were seeking protection of hundreds of
geographical indications but others just sought pr otection for a few and still others had none at all.
Exchange of detailed information was important to the debate and she suggested that the Secretariat
might determine which geographical indications, beyond those in the European Communities' list,
were of interest to other Members.  It was not automatic that a Member would receive moreprotection under Article 23.  Australia had given the examples of country names and basmati rice
which might not be protected.  She recalled that Members had to protect geographical indications in
their country of origin before claiming international protection.  Extension of protection to products
other than wines and spirits seemed to stem from the belief that such extension would bring increased
trade opportunities but there was no evidence that enhanced protection would open new markets.  Shegave the example of wines and spirits, where access to markets remained closed for various other
reasons that went beyond geographical indications.  On the other hand, it was possible that the flow of
goods to certain markets would be affected adversely because of extension.  Canada was ready to
continue work in the Council so that it would be in a better position to report to the TNC at the end of
2002 but encouraged the Council to undertake the necessary fact-finding work.
173. The representative of Pakistan associated his delegation with the statements made by India,
Slovenia, Sri Lanka, Switzerland and Turkey.  The subject of geographical indications was of
particular interest to developing countries, including Pakistan, because of the importance to these
countries of the remunerative marketing, primarily, though not exclusively of their agricultural
products.  Hence, he agreed that expansion of the whole scope of the TRIPS geographical indicationsregime to these products was an effective demonstration of the relevance of the Agreement.
However, extension of the protection under Article 23 to products other than wines and spirits should
not be regarded entirely as a developing country concern, as there were also marketing advantages for
niche industries in developed countries located in particular geographical areas which had attracted a
commercial reputation arising from their technological expertise located in those areas.  He recalled
the arguments in the papers co-sponsored by Paki stan (IP/C/W/204/Rev.1, 247/Rev.l and 308/Rev.l.)
and urged Members to review those papers with an open mind to realize the immense marketing andmarket access opportunities for their own products in addition to wines and spirits.  On the question of
the costs of administering extension, he reiterated the simple answer that all regulations involve
administrative costs and burdens.  Indeed, developing countries' need to implement the multifarious
obligations in the TRIPS Agreement, including th e enforcement machinery required by TRIPS, had
involved considerable burdens.  These major implementation burdens had been imposed ondeveloping countries without any financial or economic impact studies.  Against this, the costs of
extending Article 23.1 were arguably negligible.  It  was time to end this imbalance, to recognize the
commercial strength of geographical indications for all products and to protect them effectively.
174. The representative of Kenya supported the statement by Sri Lanka.  His delegation would
provide a detailed response to Australia's intervention at the next meeting.  The Council's mandate
was clear in paragraph 18 of the Doha Ministerial Declaration.  Discussion of modalities of possible
negotiations was part and parcel of "issues relating to extension" as referred to in paragraph 18.  On
the question of the coverage of services, the mandate was clear because it referred only to products,
which meant goods and not services.  Regarding the rewriting or removal of provisions in the TRIPS
Agreement, he said that Kenya was seeking an extension to other products and, if that demandedamendment or deletion of provisions, then he would welcome it either way.  Neither was difficult.
The issue was whether or not to extend.  The modalities of extension would follow.IP/C/M/35
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175. On the question of the beneficiaries of extension, all Members would benefit, developed,
developing, LDC, north and south, east and west.  He recalled Switzerland's intervention on this point.
On the question of the definition, Kenya wished to maintain the current definition in the TRIPS
Agreement.  All that was being sought was an extension of Article 23.  On the question of the
eligibility of country names, Kenya believed that country names were indicators of geographicalorigin and he indicated Kenya's interest in this question as a producer of products which had specific
qualities related to their geographical origin.  On the question of the traditional expressions raised by
Australia, he said that the Council did not know the terms of the bilateral agreement to which these
expressions were annexed.  However, Kenya did not believe that these terms could be protected as
trademarks because they were just ordinary English words to which sole use should be disclaimed.
Similarly, these words could not be protected as geographical indications because they were not
associated with a specific geographical origin.  On the question of reclaiming terms already used ingood faith, there was a strong exception for these terms in Article 24.  There was no cause for fear.
On the question of the identity of the beneficiary of protection, Kenya understood that protection was
for both industrialists and consumers.
176. The representative of Hungary recalled that, although it had not been possible to obtain
agreement at Doha to begin negotiations on the extension of scope, the second sentence of paragraph
18 indicated that it was to be discussed among the implementation issues.  Given this explicit
reference, which was unique in the Declaration, it could not be questioned that the issue of extension
of scope should be addressed on a priority basis and should be reported to the TNC by the end of 2002
for appropriate action.  He hoped that the Council would have a focussed and efficient discussion.
The track record on geographical indication-related issues in the WTO was not especially good.  Theissue of the register for wines and spirits had been discussed for years without success and, even now,
the deadline was only the Fifth Ministerial Conference.  His delegation was therefore concerned about
the possibility of having a meaningful discussion in the Council on this agenda item.  Geographical
indications were largely an agriculture-related issue, as most of the products were food items.
Proponents of major reforms in agricultural trade had spoken on this agenda item about historicalbackground, cultural considerations and social effects, which were purely non-trade concerns.  They
seemed to believe that the use of these geographical indications had a multifunctional role, which
might indicate a change of approach that presaged fast progress in the agricultural negotiations.  Some
of the opponents of extension had spoken of the interests of developing countries, despite the fact that
Cuba, Egypt, India, Kenya, Mauritius, Nigeria, Pakistan, Sri Lanka and Venezuela had all co-
sponsored written proposals for extension of protection.  Some Members had referred to the unfair use
of geographical names which originated in regions in other countries and which had been protectedfor centuries and said that it was not good to protect them in any substantive manner.  Yet these
Members otherwise insisted on full protection for other forms of intellectual property, including
trademarks and service marks and even supported the patentability of living organisms.  Apparently,
in their view, the rights of owners and original users of such geographical indications were not worthy
of a similar level of protection.  Costs had been raised as a barrier to extension.  Yet costsconsiderations had not been an inhibiting factor with respect to other forms of intellectual property.
There had even been debates about whether there was a need for Members to have dedicated legal
mechanisms to protect intellectual property.
177. He said that it had been claimed that extension was not an implementation issue because non-
developing country Members would benefit from it as well.  He recalled that paragraph 12 of theMinisterial Declaration made no mention of developing countries or development issues, but only
referred to implementation.  Paragraph 18 referred to the "implementation" of Article 23.4 which was
not an essentially developing country issue.  In any case, the issues at hand were as much about
economics and trade as were other parts of the negotiations, including agriculture.  When agricultural
exporters propose agricultural reform through the reduction of support and improved market access,they expect to see more sales and better prices without any concern for the regional, social,
employment or cultural effects such reform.  They would not mind if agricultural production ceased in
some regions because it would create new markets for them.  Therefore, it was interesting to see themIP/C/M/35
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raise these types of concerns as a reason why proponents of geographical indication protection should
resile from their views.  He emphasized that in the area of geographical indications there was no
question of ceasing production or even changing terms of production.  Rather, the discussion was
about specific business interests of a number of producers, mostly agricultural producers.  The sole
issue was whether there was a way to increase sales and profits through enhanced geographicalindication protection.  In the same way, the real issue in some other areas of intellectual property
negotiations had been the protection of the rights of original users of certain names.
178. Recalling that Canada had said that there was no proof that proponents would achieve any
benefits from extension, he said that, according to Hungary's experience, food products sold under a
recognized geographical name were sold at much higher prices than they would otherwise.  He gave
the examples of paprika and red peppers from two regions of Hungary.  Understandably, Hungary was
unhappy to see mediocre products from other countries sold under the same name.   In any case, hecould not recall a time in the Uruguay Round negotiations when the proponents of protection bore the
burden of showing that protection was in their own in terests.  He said that it should be up to the
proponents to decide what would confer serious benefits on their own producers.  Responding to the
legitimate concerns expressed by Australia and others, he said that Hungary did not seek the
additional protection for names that did not satisfy the definition in Article 22.1.  He agreed thatcertain issues had to be discussed, including the exceptions in Article 24, but these required
negotiations.
179. The representative of the European Communities said that many oral interventions and
written communications had been made on this subject.  He was therefore disappointed that Australia
had said that "confusion and heat" was predominating in the discussions.  By contrast, he said that thedeliberations had been enriching and clarifying on many relevant issues.  The discussion had covered
a wide range of opinions cutting across the entire membership.  It could not be described as a clear
split either on geographical or development lines.  The number of participants from different regions
and levels of development confirmed this.  It did not make sense to characterize it as a North/South or
a South/South issue.  The debate had been instrumental in putting on the table some of the items ofgreat concern in the area of geographical indications.  Progress had been very slow, and had been
slowed down by futile debates on the existence of  a mandate to carry out work on extension and to
undertake preparatory work possibly leading to amendments of the TRIPS Agreement.  The Doha
Ministerial Declaration, which framed the debate on extension as part of the negotiations on the
outstanding implementation issues, should put that discussion behind.  It was time to move on and
achieve real and concrete progress by the end of 2002.  It would then be up to the TNC to recommend
appropriate action in this area.  Therefore, the Council should agree on the modalities of the processthat would allow it to present a clear picture of the positions of Members across the board on this
issue.  He suggested that the Council might itemize the controversial issues, along with their pros and
cons.  He suggested that the Council could work on a text reflecting different options from different
delegations on how extension would be implemented.  Such an initiative would be helpful in
establishing a true negotiating environment.  It would also enable the TNC, at a later stage, torecommend adequate follow-up action with full consideration of all relevant factors.  He hoped that
there were no hidden attempt to reopen the mandate in these discussions and negotiations, as the
Council's business was to implement the Doha Ministerial Declaration, not redraft it.
180. He divided the interventions and submissions made on this issue into two main areas:  those
which dealt with the need for extension and those which dealt with the costs.  These had focussed thedebate on providing extension possibly via an amendment of the Agreement.  On balance, the
differential treatment between wines and spirits and other products found no parallel in other
intellectual property rights under the Agreement.  This was the result of the Uruguay Round
negotiations and perhaps the time had come to rectify that lack of balance.  A new Round offered the
opportunity for making progress.  In the debate, account should taken of the interests of newMembers, who bore costs of liberalization in many areas, particularly agriculture.  Account should be
taken of the needs of developing countries and experience in the functioning of geographicalIP/C/M/35
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indication systems and their shortcomings.  As a re sult of increased international competition in basic
generic agricultural commodities, prices might plummet and severely diminish income in a number of
new Members.  Therefore, it was vital for those co untries to ensure alternative sources of income,
which could be done through ensuring market entry for their quality products.  Several new Members
and many developing countries had a long traditio n of products grown or manufactured with special
characteristics due to their origin which, in spit e of the limited amount to which they were traded
internationally, had become known and reputed.  For these countries, ensuring market access for their
"star" products, might be the only way to keep their agricultural sectors alive.  Ensuring market access
for those countries had to be done through the establishment of an internationally-accepted principle.
This would ensure that usurpation were prevented before the product was even on the international
market.  Only via the establishment of a stringent international intellectual property protection could
one avoid pre-emption of exclusive use of a geog raphical indication by the original producers in
international trade.  Otherwise, local producers could be tempted to free ride on the reputation of a
geographical indication and try to model the opinion of local consumers in their favour before a
genuine product entered a domestic market.  In addition, geographical indications did require a link
between a product of a given quality and/or reputation on the one hand, and the territory, on the other.
As of the moment a given geographical indication was protected by a country, the link with theterritory prevented the use of the name for products produced elsewhere.
181. Geographical indications were assets, in particular for developing countries, who might
treasure them.  They did not protect a certain affiliation of a product with a company.  They could
offer opportunities for the boosting of local economies, in particular, agri-food activities.  By
definition, they could protect a range of products manufactured or grown in a certain area.  They wereaccessible to anyone, rich or poor, who was entitled to produce in that area according to certain
precise and binding rules aimed at ensuring that only products coming from that origin bear the
geographical indication-protected name.  Additionally , protection of geographical indications ensured
adequate investment in the territory of developing countries in particular, as products bearing the
protected names generally needed to be produced in specific locations.  Stringent protection ofgeographical indications, as massive support for extension had shown, was of the greatest significance
for developing countries.  Responding to Australia's question, he said that extension was a matter of
central importance to developing countries.  He urged all Members to be sensitive to that concern.
182. He then turned to address the issue of the protection of geographical indications by means of
trademarks and the freedom of choice of method of implementation under Article 1.1 of the
Agreement.  He said that, previously, some delegations had argued that the benefits of geographical
indication protection stemmed more from the way in  which such protection was implemented at the
national level than from the way in which it was pr ovided for in the Agreement.  Wishing to show
how the imbalance of geographical indication protection between wines and spirits and other products
had pernicious effects in implementation, he noted that the Agreement established different levels of
protection depending on the categories of product s.  Article 22 was applicable to all products,
including wines and spirits for those aspects not covered by Article 23.1.  It permitted the use ofprotected signs unless the consumer was misled.  Article 23.1 was applicable to wines and spirits
(names of wines for wines and names of spirits for spirits).  It prohibited the use of identical protected
signs even if the true origin of the product was mentioned in translation or preceded by words such as
"kind", "style" or "like".  Protection was still not exclusive.  Article 16, on trademarks,  established an
exclusive right to use a mark for "identical or similar signs" in the course of trade.  This concerned theuse of such signs for "identical or similar goods" (unlike Article 23, limited to wines for wines and
spirits for spirits).  If the goods or services were identical, the confusion of the consumer was
presumed.  If the goods or services were only si milar, consumer confusion needed to be proved.
Trademarks granted exclusive use since, as far as identical products were concerned, confusion was
presumed.  Therefore, it was not fair to suggest  that Articles 16 and 22 are parallel provisions.
Article 16 could only be compared with Article 2 3.1 to a certain extent.  The review of Article 24.2
had shown that certain Members claimed that they had implemented geographical indication
protection by means of certification and collective trademarks.  This aggravated the imbalance ofIP/C/M/35
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protection between Articles 22 and 23.  It directed producers that could only benefit from Article 22
protection to register their geographical indications as a trademark, which gave them the protection of
Article 16.  This was at odds with Article 1.1 which gave Members the freedom to implement
geographical indication obligations in the way that they best considered fit their national system and
practice.  Lower protection of Article 22 curtailed the freedom of choice in implementing TRIPS.The choice was rendered a theoretical possibility as, in order to achieve true intellectual property
protection against usurpation, rather than against unfair competition, producers had no choice but to
opt for certification marks in certain countries.  Consequently, in those Members that argued that
trademarks were the preferred instrument of geographical indication protection, a geographical
indication right holder intending to protect its geographical indication by means of a mark, basically
enjoyed the protection of Articles 16, 22 and 23 at the same time.  It was unclear whether this was
consistent with the TRIPS Agreement and how the conflict between a geographical indication and atrademark were to be resolved where a geographical indication was protected by means of a
trademark.  He underlined that protecting geographical names by means of trademarks did not
necessarily require proof of the elements in the definition of Article 22.1.  The question remained:
how could one be certain that a geographical name protected as a trademark was an eligible
geographical indication in the sense of the definition of Article 22.1?  How could the consumer haveguaranteed the elements of protection required by Article 22.1?
183. Responding to Australia's intervention, he said that he was surprised that after two years of
discussion of extension there could still be a question as to what a geographical indication was.  There
was a section on geographical indications in the Agreement, negotiated more than ten years earlier,
that included a definition of a geographical indication.  He said that the European Communities hadnot been a demandeur on extension and pointed out that it had never signed a proposal advocating
extension.  Many of the questions raised resembled those that had been raised earlier, which had been
addressed in three different written communications.  He hoped that all delegations would adopt a
cooperative, rather than obstructionist, position.  He stated that delegations should not feel threatened
by the debate on extension.  Yet, he wondered how the position that it was not ripe to establishmodalities of possible negotiations on extension could be reconciled with the enquiry whether
extension would require amending the TRIPS Agreement.  He challenged the claim that the
proponents of extension were not ready to take into consideration public policy considerations and
were ready to remove jurisdiction from national courts.  As for the definition in Article 22.1, he saw
no basis for claiming that the proponents wanted to change it.  As regards the request for empirical
evidence of the need for extension, he wondere d what type of empirical evidence would be
appropriate.  Reference had been made indirectly to some EC regulations, one of which, Regulation(EEC) (2082/92), covered certifications of specific character.  It had nothing to do with intellectual
property or geographical indications.  It simply aimed to protect traditional production methods, such
as recipes, but not GI names.  The relevant regulation was Regulation (EEC) (2081/92) which had
been notified under Article 24.2.  His delegation could supply more information on that Regulation if
required.  Reference had also been made to traditional expressions.  The terms "vintage", "sweet","dry" and "fine" all related to wines and spirits and he asked what relevance they had to extension to
products other than wines and spirits.  Reference had been made to cultural diversity and migration.
The European Union was very respectful of cultural diversity and was a major recipient of migrants.
He doubted, however, whether Asian, African and Latin American nations would find it acceptable if
their emigrants started using geographical indications in Europe which belonged legitimately to theirterritories.  He regretted that some delegations continued to confuse the debate and hoped instead to
be able to work with them.
184. The representative of the Slovak Republic, taking account of the Doha Ministerial Declaration
and the Decision by the TNC, expressed its full support to all interventions calling for initiation of
substantive discussion and work on this issue in the Council.  The additional protection ofgeographical indications should not be enjoyed only by wines and spirits but by other products as
well.  This would provide an equal opportunity for all Members with different levels of developmentIP/C/M/35
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and different production structures.  The Council needed to achieve a concrete outcome to fulfil its
mandate.  Her delegation was ready to participate in such substantive work.
185. The representative of Paraguay supported the intervention by Australia.  His delegation's
position was that additional geographical indication protection should only be applied to wines and
spirits.  The Doha Ministerial Declaration had characterized the negotiation as the DevelopmentRound because its spirit was to strengthen above all the growth of developing countries, so that all
actions taken in every negotiating body of the WTO had to adopt this approach.  The list of
outstanding implementation-related issues and concerns Job(01)/152/Rev. 1, which had been prepared
on the basis of the submissions to the Seattle Minist erial Conference, was a list of outstanding issues
that some members had put forward for considerat ion in the General Council but on which there had
been no consensus.  For this reason, the document was not legally binding.   He recalled the text of
paragraph 18 of the Doha Ministerial Declaration.  His delegation was concerned that extension of
protection to other products be used for protectionist ends and would create a new barrier to trade.
The Doha Declaration created a mandate to study.  There was no mandate to define modalities for
negotiation, much less negotiate.  The Council had to present a report to the TNC on the result of the
debates that it had on this subject.
186. The representative of Ecuador said that, although his country had not taken a position aligning
itself with either of the options in this discussion on extension, it had followed with particular
attention the arguments about the difficulties that might arise in relation to goods that eventually
might be associated with a geographical indication.  In Ecuador, there existed as in many countries,
products clearly identified with a region or a place. Ecuadorian legislation, like those of many others,
protected this category of intellectual property (Articles 237 and following of the Ecuadorian Law on
Intellectual Property).  Nevertheless, his delegation wondered if the text of paragraph 18 of the
Ministerial Declaration, in which the Ministers "took note", actually constituted a sufficient
instruction for negotiations on the subject.  His delegation would not block examination later of the
appropriateness of negotiations and, through the usual means, initiation of such negotiations in the
future.  Regarding paragraph 12 of the Ministerial Declaration on implementation, his delegationwondered whether extension to other products was really a subject of an essential implementation
interest in favour of developing countries and, hence, the LDCs.  In order to be sure that it was, his
delegation believed that it would be necessary to closely study the impact of extension on developing
countries.  His delegation's doubt was based on the scope and similarities that some geographical
terms had, which meant that not all names were eligible to be geographical indications.  Naturally,
they required that the goods from a geographical place had a quality, reputation or other characteristic,
so that a Member that claimed that a term was a geographical indication would bear the burden ofproving that this was the case.  What authority would make that decision?  Who would appoint that
authority?  Would there be a register?  If so, would there be negotiations as well on a system of
registration, as there was for wines and spirits?   If there were a register for wines and spirits, what
would make them different from other products for which there was no notification or register?  What
would happen to a term which had become generic.  Would it not benefit from any protection and loseall rights?  In fact, there were many well-known products with geographical names which could have
had a connection with a specific place but had become generic in many countries.
187. His delegation wondered whether the actual levels of protection were not sufficient.
Article 22.2 granted protection based on the idea of consumer deception and unfair competition,
which were both old forms of intellectual property protection.  Article 24 contained a grandfatherclause which applied to geographical indications for wines and spirits used for ten years or  in good
faith prior to 1994.  Would this rule be extended to all other products?  If a geographical indication
had not been protected, did this mean that it could never be protected under the TRIPS Agreement?
What practical consequences and cost would this have for developing countries?  His delegation had
noted other questions about the appropriateness of extension and valid uncertainties worthy ofreflection which required responses.  For instance, would the use of the name of a country be accepted
as a geographical indication?  There was legislation which did not allow this.  Would the MembersIP/C/M/35
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which had such legislation be willing to change it?  If names were considered generic or granfathered,
what solution would be offered?  What exceptions would apply?  This was a valid question because in
the development of all intellectual property rights there had always been exceptions in order to protect
conflicting interests, such as the interests of the public, the government or the consumer.  There were
important doubts about the burden that extension would create for developing countries since, even ifa product of a given country could be protected, wh at was the certainty that it would obtain access to
the big markets?  If it could enter the market with  a product, what would happen to the other products
that could not be placed on the market because they did not qualify as a geographical indication
because it was already a protected name?
188. This question was all the more important when one realized that many of these products were
emerging on the international market.  His delegation was aware that the recognition of a product with
a geographical indication protection never guaranteed particular market access because suchrecognition did not eliminate tariff barriers nor technical regulations nor any other type of non-tariff
measures.  The difference really rested on the fact that a product whose geographical indication had
become generic, in terms of marketing, attracted a higher price than a product which came from some
other geographical area.  This meant that for practical purposes that the protection sought was not
necessary but would constitute a barrier to free trade.  His delegation was concerned about the costs ofan amendment of this kind.  What would be the cost in financial and administrative terms of fulfilling
the legal obligations to grant protection to an innumerable group of products with geographical
indications of other Members?  These were generally from developed country Members who
possessed significantly more than the developing countries.  What would be the cost of modifying
national legislation to offer this protection to such products?  What would be the cost inadministrative terms of the protection of these produc ts, internally and at the border, to comply with
these possible new provisions?  How could developing countries face the costs of eventual disputes
with which they could be faced?  Could the number of disputes arising from claims to use the same
geographical indication be foreseen?
189. The list of questions could increase.  That was why his delegation asked whether this really
was an implementation issue in the interests of developing countries such as Ecuador and, as a result,
whether it was appropriate to have negotiations on the subject.  It should also be ascertained, if the
objective of the WTO was the liberalization of trade and the elimination of barriers, whether it was
contradictory to seek new forms of protection.  His delegation had noticed that many of the products
that were suggested as potentially eligible for protection by means of geographical indications were
agricultural products.  It would not be acceptable if this proposed additional protection in any way
created a new means of protection for agricultural products, nor that it should be linked withnegotiations underway in other areas besides intellectual property.  There could be an unacceptable
temptation to subject the results of the new Round to acceptance of this extension.  These issues also
need clarification at the outset.
190. The representative of Japan said that the Council should take account of both the advantages
and disadvantages of extension, such as the ef fect on consumers, and the costs on producers with
respect to each individual product.  It was beneficial to have a substantive discussion and
examination, for instance regarding the differences be tween the levels of protection of Articles 22 and
23 and differences in definitions.  The Council should seek the best solution on the basis of fact-
finding work and substantive work.
191. The representative of Colombia said that the mandate under paragraphs 12 and 18 of the Doha
Ministerial Declaration meant that this was an outstanding implementation issue that had to be dealt
with on a priority basis in the Council, so as to pr esent a report to the TNC at the latest at the end of
2002 with a view to appropriate action.  The Council had to treat this subject with the necessary
seriousness so as to clarify for Members the implications of a possible extension of the protection
under Article 23 to products other than wines and spirits.  Colombia therefore believed that thefollowing subjects, in particular, needed further work:  (i) Do national systems recognize geographicalIP/C/M/35
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indications that identified a product as originating from the territory of a Member as required by
Article 22.1?  That is, do current national systems allow a country name to be a geographical
indication and, if not, why not?  (ii) The existing re lationship between rules of origin, trademarks and
geographical indications.  (iii) The administrative implications and costs for Members and for the
WTO of a possible extension.  Colombia proposed further work on these subjects in order to provideclarity on what the Members interested in extension really were seeking and the implications that this
would have for other Members.  This work woul d allow the Council to propose to the TNC the
appropriate action to be carried forward by the Council in the following year.  The Members had not
received a negotiating mandate on this issue and it was therefore premature and inappropriate to begin
work on modalities.
192. The representative of Cuba supported the statements of India, Sri Lanka, Pakistan and others
who had supported a possible extension.  She said that  at future meetings her delegation would try to
respond to the concerns and doubts that had been expressed by other delegations, including Colombia,
Ecuador and Uruguay.  Cuba maintained registrations at the national level of 20 geographical
indications, all of them for agricultural products, particularly tobacco.  The inadequate protection of
these indications at the international level had allowed their misappropriation which had caused
considerable economic losses which was to the detriment of Cuba's economic and social development.She disagreed with those who had said that exte nsion would require the creation of a costly and
burdensome new system.  Members already had an obligation to provide such protection under
Article 23.  That Article did not oblige governments to exercise protection themselves but rather
obliged them to provide the legal means for interested parties to do so.  Extension of Article 23 would
not require a different legal or administrative system.  The fundamental problem for Cuba was theimbalance in the Agreement and this was why it had co-sponsored the proposal for extension in the
context of implementation.  She recalled that implementation was a continuation of the pre-Seattle
process and was not limited to dealing with the difficulties and resource constraints which developing
countries faced in the fulfilment of their WTO obligations, but included overcoming the many
imbalances in the WTO.  This agenda item was one such example.
193. The representative of Morocco said that his delegation considered it very important to find a
way to extend the additional protection which would end the unfair practices that misled the public.
The relevant provisions of the Agreement granted st ronger protection to geographical indications for
wines and spirits, putting them in a better position vis-à-vis  those for other products.  Morocco had
agreed to join a fair and equitable multilateral trading system and could not accept such discrimination
against the products and markets of Members.  In fact, the Council was actually worsening the
discrimination by getting bogged down in the work on extension on the one hand but launchingnegotiations on the establishment of a multilateral system for notification and registration for
geographical indications for wines and spirits on the other.  He referred to WIPO's note on its
activities of relevance to the work of the Council and recalled that the Standing Committee on the
Law of Trademarks, Industrial Designs and Geogra phical Indications had recommended the extension
to other products of the principle of homonymous geographical indications which is expressed inArticle 23.3 of the TRIPS Agreement.  This would be a good starting-point for discussions of the
modalities for extension of additional protection.  The TRIPS provisions on geographical indications
were precise and the Doha Ministerial Declaration was even more so.  On the question of the mandate
his delegation agreed with those who had referred to the practice of unilateral interpretation of that
mandate.  He only wished to add that the mandate required the Council to treat the question ofextension on a priority basis.  It would therefore have to make substantial progress on the necessary
legal modalities to deal with the discrimination.  Members did not have time to be inflexible very long
on this issue.  The work of the Council before the meeting of the TNC at the end of 2002 had to be
productive and he therefore urged other delegations to make constructive contributions and not
confuse the issue.
194. The representative of the Czech Republic had taken the position since 1997 that the scope of
and level of protection for geographical indications for products other than wines and spirits wasIP/C/M/35
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inadequate.  Many Members, both developed and developing countries, had supported extension.  She
supported the statements of Cuba, the European Communities, Hungary, India, Pakistan, Slovenia, Sri
Lanka, Switzerland, Turkey and others.  This meetin g should discuss the organization of work with a
view to fulfilling the mandate given by Ministers.  Her delegation would have preferred that extension
be discussed in the Special Sessions but, since that had not been possible, the regular meetings shoulddevote sufficient time to the issue.  There was no need for further discussion of the existence of a
mandate on this issue, nor of the question whether it covered geographical indications originating in
developed countries.  Rather, the Council's task was to engage in a substantive discussion.  This
should take place in June and September 2002 based on substantive and focussed proposals by
Members to be tabled during a certain period prior to the June meeting.  The Council's report to the
TNC at the end of 2002 should also refer to Tiret 87 of Job(01)/152/Rev.1.  Extension was based on
the need to promote adequate and effective protection for intellectual property rights withoutdiscrimination among categories, or within a category, of intellectual property rights.  This was the
only way to ensure that the multilateral framework of principles, rules and disciplines for IPRs dealt
effectively with counterfeiting of goods and free riding on the reputation of honest and legitimate
producers.
195. The representative of Guatemala said that his country, as a developing country with little
experience in the implementation of legislation on geographical indications, wondered how assuming
onerous obligations in exchange for few advantages could benefit a developing country.  Not all
developing countries believed that this was an issue of benefit to them.  The Agreement already
provided a balanced system for the protection of geographical indications for all Members.  He did
not see what problem the proponents of extension had with the existing balance of rights andobligations.  He therefore asked the proponents to give examples of products that they wished to
receive additional protection that did not already benefit from protection.  Referring to the example
that had been given of the indication "Antigua coffee", he asked Members to indicate whether they
were aware of it being used in any country but Guatemala.  This information would be useful in
getting an idea of the costs for small developing coun tries if they had to assume new obligations.  It
was useful to know the experience of countries that had negotiated bilateral agreements on
geographical indications.  He asked what advantages Members had obtained under bilateral
agreements, and what difficulties they had had in implementing them.  He asked the proponents how
they currently applied the exceptions in Article 24, and how they intended to apply them in future.
The Council should maintain an informative dial ogue on this issue during 2002 so that all Member
would be well informed of the consequences of assuming new obligations.
196. The representative of Egypt supported those delegations that had expressed interest in
extension.  The development of geographical indications involved considerable human and economic
investment which deserved proper protection, just like geographical indications for wines and spirits
and all other intellectual property rights.  The TRIPS Agreement unjustifiably discriminated against
products which led to discrimination among countries' interests.
197. The representative of Bulgaria reiterated the importance that his delegation attached to the
issue of extension.  He associated his delegation with the views expressed by Cuba, the Czech
Republic, Egypt, the European Communities, Hungary, India, Kenya, Morocco, Pakistan, the Slovak
Republic, Slovenia, Sri Lanka, Switzerland and Turkey.  Many of the questions that had been raised
had already been answered.  Some other questions did not seem relevant to the issue of extension but
they should be answered as well.  The kind of substantive discussion that was needed to reach asolution by the end of 2002 was on the question of elaboration of modalities of extension.  A
discussion of modalities would provide the best answers to the questions raised by delegations that
still had doubts about the usefulness of extension.  The Council's mandate was to make proposals to
the TNC, for which it needed to discuss modalities.  This was just one element of the post-Doha
exercise.  There were deadlines to be met by other bodies and progress on this agenda item would be afactor in progress in those other bodies.  The different elements of the post-Doha negotiations were
interlinked.  If solutions could not be reached on a given issue then bargains would have to be soughtIP/C/M/35
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across sectors.  There was a link with agriculture because many of the products that would benefit
from extension were agricultural products.  This link should not be ignored.
198. The representative of Thailand said that the Fourth Ministerial Conference had given the
Council a clear mandate to address extension.  He recalled the interventions by the European
Communities, India, Sri Lanka and Switzerland in support of extension.  His delegation wished to seethis issue discussed in detail according to the Ministerial Declaration and looked forward to a final,
positive and accessible outcome in order to be able to report to the TNC.
199. The representative of Jamaica found no legitimate reason or basis for a higher level of
protection under Article 23 than under Article 22.  Her delegation supported the arguments in favour
of extension.  These should be taken into account in the Council's discussion.
200. The representative of Singapore asked whether Members were repeating themselves. He
could understand why, as important economic issues were at stake on both sides.  A gain on one side
meant a loss on the other side.  The debate had moved up a notch and become heated.  Article 24
invited Members to see whether it was possible to increase the protection of individual geographical
indications.  The Ministerial Declaration also mandated the Council to work on it. The technical
arguments were a means to an end.  The basic issue was whether the Council could come up with any
criteria to move the process forward.  This was what the Council should address by the end of theyear.  Otherwise, the issue should be referred to a higher authority.
201. The representative of Australia said that he would respond at the next meeting to the question
of the mandate, the implementation dimension and other issues that had been raised.  He noted with
surprise that the European Communities had said that it was not a demandeur on this issue.  He
recalled Commissioner Fischler's statements afte r adoption of the Doha Ministerial Declaration that
the European Communities were pleased that they could now negotiate on geographical indications.
He also recalled a statement on 9 January 2002 by the representative of the European Communities
that "Extension of protection to other products is an  area of particular interest to the EU.  The EU
believes that it is time to start serious negotiations on this issue.  The Ministerial Declaration
confirmed that extension of protection of GIs to products other than wines and spirits are to beaddressed in the TRIPS Council but no deadline for this was set."  Australia was pleased to know that
the European Communities were not a demandeur as this then meant that Switzerland was the only
developed country demandeur.  Responding to the European Communities, he reiterated that the
definition of a geographical indication was a fundamental issue, even though the Agreement
contained a definition.  Most of the developing countries interested in extension wished to protect
their country names.  He asked the proponents whether country names would be accepted as
legitimate geographical indications.  The European Communities had suggested in bilateralnegotiations with Australia that it could never use the country name "Australia".  This responded to
the question raised about the use of "Australian Shiraz ".  He gave examples of products on sale in the
European Communities that used country names even though they were not produced in the countries
or regions indicated, although some of the ingredients might have originated in them.  Responding to
the claim that extension would lead to better market access, more investment, more technologytransfer and better trade balances for developing countries, he asked whether these traders would be
prevented from using these indications.  He asked the developing country proponents to show that
geographical indication protection would really solve their problems and cautioned against believing
that additional protection for geographical indications would automatically provide market access.
Responding to the question as to what traditional expressions had to do with this debate, he said thatcountries should be very cautious about agreeing to extension as they did not know where the
demands would end.  Responding to Sri Lanka's quest ion as to why some wine and spirit producers
were taking advantage of the higher level of protection for their products but opposing extension of
that level of protection to other products, he said that Australia was not convinced of the need for the
higher level of protection for any product, includi ng wine.  It had agreed to a higher level of
protection for geographical indications for wine under a bilateral agreement for commercial reasonsIP/C/M/35
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but would be happy to resolve the imbalance in levels of protection for geographical indications in the
TRIPS Agreement by deleting Article 23 and applying a lower level of protection to all products.
Responding to India and Pakistan's comments on the relative costs of extension and implementation
of the rest of the TRIPS Agreement, he was aware that some developing countries felt that they had
been forced to accept the Agreement.  He cautioned those delegations against supporting extensionlest they realize later that the costs of implementation were very high and raise the same concerns
about those costs as they had already raised about the TRIPS Agreement as a whole.  On the question
of the mandate, he said that the European Communities and others had raised the mandate, not
Australia.  Australia was happy to discuss issues of substance and had been doing so at the present
meeting.
202. The representative of Bulgaria said that Australia's comments were not relevant to extension.
Its problems with the European Communities related to a bilateral TRIPS-plus agreement, which was
a different matter from extension.  For example, Australia's comments concerning the definition of a
geographical indication in a bilateral TRIPS-plus agreement did not alter the fact that Members must
protect country names under the definition set out in Article 22.1 of the TRIPS Agreement.  The
proposal on extension was extremely simple.  The costs were, at worst, negligible and, at best, there
were no legislative or administrative costs.
203. The representative of Switzerland said it was fair to discuss costs and the Council should
revert to it, but it was not possible to foresee the costs until the legal modalities necessary to eliminate
the existing deficiencies in the TRIPS Agreement had been established, for example, until it was clear
whether there would be a register and whether Article 24 would apply.  He therefore proposed that the
Council continue with the work on legal modalities.  He agreed with Bulgaria that the Council wasdiscussing a multilateral proposal, not a bilateral agreement.
204. The representative of the European Communities,  responding to Australia, said that it was
inappropriate to discuss bilateral agreements in the Council, and that the European Communities had
never raised the mandate for extension.
205. The Council took note of the statements made and agreed  to revert to this item at its next
meeting.
E. REVIEW OF THE PROVISIONS OF ARTICLE 27.3( B)
206. The Chairperson recalled that this matter was not only part of the TRIPS Council's built-in
agenda but was also referred to in paragraph 19 of the Doha Ministerial Declaration and was the
subject of a number of the outstanding implementation issues referred to in paragraph 12 of the Doha
Declaration.  Reminding the Council that, under paragraph 12 of the Declaration, it had to report to
the TNC by the end of 2002, he shared some ideas as to how the Council might pursue its work underthis item.  Since 1999, the Council had had a rich debate on this matter, including on the issues
covered by agenda items F and G.  He asked whether delegations would find it helpful to ask the
Secretariat to prepare short papers summarizing the material that had been presented to the Council in
written and oral form and listing all the relevant documentation.  He asked whether delegations would
find it helpful to ask relevant IGOs to provide updated information on their activities in relation tothese three agenda items, for example WIPO, UNCTAD, the FAO, the World Bank, the CGIAR, the
CBD, UNEP and UPOV.  He also asked whether the Council should urge more Members to provide
responses to the questionnaire contained in document IP/C/W/273. He asked Members to indicate any
suggestions they may have had regarding the organization of work.  In particular, he asked them to
indicate whether and when they intended to submit papers, and indicated that they could also addressthe substance of this matter.
207. The representative of Brazil made some preliminary remarks on the structure of the debate in
the light of paragraph 19 of the Doha Ministerial Declaration.  Brazil believed that a more faithfulIP/C/M/35
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implementation of the mandate given in this paragraph would lead to the establishment as sub-items
of the agenda item on the Article 27.3(b) review, the two issues of the agenda on the relationship
between TRIPS and the CBD and the protection of traditional knowledge and folklore.  There was a
need to properly reflect the Ministers' instructions.  He reminded the Council that paragraph 12(b) of
the Ministerial Declaration established that outstanding implementation issues should be addressed asa matter of priority by the relevant WTO bodies with a report to the TNC by the end of 2002 for
appropriate action.  The outstanding implementation issues that clearly referred to the relationship
between the TRIPS Agreement and the CBD were tirets 88, 91, 95 and the proposal of LDCs of
22 October 2001 as given in Job(01)/152/Rev.1.  Brazil proposed that these outstanding
implementation issues be addressed by the Council as a matter of priority under the review of
Article 27.3(b).  A number of developing countri es had already tabled proposals to include, for
instance, the disclosure of the source of the genetic material used, the requirement of evidence ofbenefit-sharing and of prior informed consent and the requirement of identification of traditional
knowledge used in the patented invention. He reiterated Brazil's interest in pursuing these matters
under paragraph 12(b) of the Ministerial Declaration.  It would be necessary to rely on information
provided by the Secretariat of the CBD to guid e the Council's mandated discussion on the relationship
between TRIPS and the CBD.  Paragraph 19 directly referred to the CBD and therefore irrespective of
the decision on observership, information should be sought, for example on the issues of traditional
knowledge and genetic resources.  The FAO had also concluded an international treaty on the
protection of plant genetic resources which contained provisions regarding the relationship with
intellectual property rights.  This very important development was directly related to the review of
Article 27.3(b) and not only would it be appropriate to address the contents of the provisions of thistreaty but also useful to rely on documentation provided by FAO Secretariat.
208. The representative of the United States supported the Chairman's suggestion to ask the
relevant intergovernmental organizations to provide information to the Council on their activities and
also for delegations to provide answers to the questionnaire on Article 27.3(b).  He noted that Estonia;
Hong Kong, China; and Thailand had provided responses to this questionnaire and he hoped that theWTO Secretariat would update its previous summary of the information provided to include this new
information.  He also suggested setting a deadline by which information from intergovernmental
organizations and delegations should be obtained in order to have a fuller and more comprehensive
discussion of this topic.  His delegation would submit a new paper on benefit sharing arrangements by
the US National Cancer Institute.
8
209. The representative of India supported the suggestion made by Brazil on the clubbing of the
CBD and the traditional knowledge set of issues  with the review of Article 27.3(b).  The
representative of India said that he had problems in structuring his intervention but as the agenda for
the meeting had already been set he would cover Article 27.3 (b), Article 71.1 and the relationship of
TRIPS with the CBD and traditional knowledge in this intervention.  India and several other
developing countries had been raising the issues relating to protection of traditional knowledge and
relationship between the CBD and the TRIPS Agreement since the very inception of the Council forTRIPS as well as in the Committee on Trade and Environment.  These issues had been raised in the
Council under the mandated review of Article 27.3(b) and as part of the implementation-related
issues.  He recalled the outstanding implementation issues relating to these subjects, namely: patents
inconsistent with Article 15 of the CBD shall not be granted;  the period for implementation of the
provisions of Article 27.3(b) shall be five years from the date the review is completed;  transfer oftechnology shall be provided on fair and mutually advantageous terms;  Article 27.3(b) is to be
amended in the light of the CBD;  and that the re view process under Article 27.3(b) should clarify that
all living organisms, including plants, animals and parts of plants and animals, including gene
sequences, and biological and other natural processes for the production of plants, animals and their
parts shall not be granted patents.  He recalled that India had proposed, in this context, that patentapplicants should be required to disclose the source of origin of the biological material utilised in their
                                                     
8 Subsequently circulated as document IP/C/W/341.IP/C/M/35
Page 54
inventions and should also be required to obtain pr ior informed consent of the country of origin.  The
patent applicant should provide an undertaking that prevalent laws and practices of the country of
origin have been fully respected. Such an obligation could be incorporated through inclusion of
provisions in Article 29.  This would permit countries with possible opposition claims to examine the
application and state their claims well in time. It would also enable domestic institutional mechanismsto ensure sharing of benefits of such commercial utilisation by the patent holders with the indigenous
communities whose traditional knowledge had been used.  While securing benefits to the creators and
holders of the knowledge for the use of this knowledge was subject to national legislation, national
action alone was not sufficient to ensure realization of benefits.  The onus also had to be shared by the
users of this knowledge all over the world so as to ensure compliance of the consent requirements for
using the knowledge and equitable sharing of benefits as visualised in the CBD.   Turning to the
importance of paragraph 12 of the Ministerial Declaration, he supported the proposal of Brazil thatthese issues be addressed under that particular mandate.  He agreed with the Chairperson's suggestion
that the Secretariat prepare a paper to summarise the state-of-play in the discussions so far and also on
the updating of the information from other organizations.
210. The representative of Peru  supported the statement of Brazil on the structure that should
govern the discussions on these issues since that was more faithful to the Doha mandate.  She pointed
out that it was paradoxical that there should be a Ministerial mandate to discuss the relationship
between TRIPS and the CBD and yet the Secretariat of  the CBD could not attend as an observer.  She
hoped that the delegations opposing this so far would be able to reverse their views.
211. The representative of Kenya  reminded the Council that the African Group had presented two
proposals, one prior to the Seattle Ministerial meeting and the other soon afterward.  The issues now
mandated under paragraph 19 of the Doha Ministerial Declaration were the very issues raised by these
two proposals and needed to be discussed further.   He foreshadowed that the African Group would be
submitting further proposals and hoped that the review under Article 27.3(b) would be concluded
soon.  He hoped that the CBD would be granted observer status at this Council meeting.
212. The representative of Ecuador said that it was important to recognize that there was a
relationship between TRIPS and the CBD.  The standards and rules in both Agreements were
complementary to each other and it was necessary to link them.  It was essential for the discussions
under Article 27.3(b) to incorporate the objectives and the principles of the CBD.  He agreed with
Brazil on the structure of the discussion and on the implementation issues.  Ecuador considered that as
a result of the Doha outcome provisions should be included that would result in domestic legislation
having a system of intellectual property protection that contained inter alia  the principles of the
disclosure of the source of origin, the recognition of traditional resources and knowledge used in an
invention, the recognition of the sovereignty on genetic and biological resources, the requirements of
prior informed consent and guarantees for the equitable and fair sharing of benefits and for the
transfer of technology.  He believed that each of the goals of the CBD should be incorporated into the
TRIPS Agreement.  He hoped that as a result of these negotiations there would be a special chapter in
the TRIPS Agreement on traditional knowledge and folklore.
213. The representative of the European Communities said that the structure of the agenda was
appropriate for this and future meetings of the Council.  He supported the Chair's proposal to seek
information from other relevant intergovernmental organizations and sought clarifications on the
proposed Secretariat document.  His delegation had always favoured the grant of ad hoc  observer
status to the CBD.  The receipt of information fr om the CBD should not be an alternative to this.
Target dates should be set for the receipt of information from the intergovernmental organizations and
for responses from Members to the questionnaire.  The Council had begun the review of
Article 27.3(b) in January 1999.  On that occasion, the broader issues of the relationship between
intellectual property right protection and biological diversity, as promoted in the CBD, and the
protection of traditional knowledge had also been raised, even though they were not stricto sensu
covered by the scope of this Article.  The Doha Ministerial Declaration now instructed the Council toIP/C/M/35
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continue this review while also instructing it to examine the relationship between the TRIPS
Agreement and the CBD and the protection of traditional knowledge and folklore. He confined his
intervention to the patentability of life forms, including the protection of plant varieties and possible
exclusions thereto as, stricto sensu,  this was what the review process dealt with. In his view, examples
of issues that fell within the legal scope of Article 27.3(b) were the definition of technical terms suchas microbiological processes, micro-organisms, the exclusion of plants and animals from patentability
etc.
214. He recalled that at the Council's meeting in  March 2000 (document IP/C/M/26), the Chairman
had concluded that the Council should proceed in a more orderly, systematic and productive manner
by focusing on:  the link between Article 27.3(b) and development;  technical issues relating to patent
protection under Article 27.3(b);  technical issues relating to sui generis  protection of plant varieties;
ethical issues relating to the patentability of life  forms;  the relationship to the conservation and
sustainable use of genetic material;  and the relationship between the concepts of traditional
knowledge and farmers' rights.  He believed that in the context of the Doha Development Agenda, the
link between Article 27.3(b) and development  should obviously be the red thread of this debate. This
was emphasised by paragraph 19 of the Doha Ministerial Declaration which instructed the TRIPS
Council to be guided by Articles 7 and 8 of the TRIPS Agreement and to take fully into account thedevelopment dimension. On technical issues he supported the view that the Council examine the
definitions and notions used in Article 27.3(b).  It should also use this opportunity to clarify the
benefits and limitations offered by different national schemes for the protection of plant varieties.
Article 27.3(b) gave Members a large degree of flexibility with regard to patentability of life forms.
The European Commission was in favour of maintaining this flexibility, and therefore saw no reasonto amend Article 27.3(b) as it stood. Nevertheless he was ready to enter into a clarification exercise on
the terms and concepts used in Article 27.3(b).  Turning to ethical issues related to the patentability of
life forms  and other issues, he said that his delegation acknowledged that ethical and moral concerns
might also be addressed and considered carefully and that different societal values could be taken into
account.  The European Communities and their member States had established the scope for the legalprotection of biotechnological inventions in Eur ope in Directive (EC) 98/44.  He said that
Article 27.3(b) provided sufficient flexibility as a basis for this.
215. On the question of the relationship of TRIPS to the conservation and sustainable use of
genetic material, he said that this was an issue that fell outside the direct scope of Article 27.3(b).
Appropriate solutions could now be discussed under agenda item F.  Similarly, the relationship of
TRIPS with the concept of traditional knowledge fell outside the scope of Article 27.3(b). As regards
farmers' rights,  this term referred to two different concepts:  first, these were understood as an
exception to plant breeders' rights or patents.  This was an IPR-related question that fell under the
review of Article 27.3(b) and could be discussed in this context.  The European Community's plant
variety regulation as well as its directive on biotechnology provided that farmers might freely use, on
their own farm, seeds obtained from the harvest of patent protected plants. Second, the term "farmers'
rights" also referred to a set of measures in recognition of the ancestral role of farmers in developingfood crop varieties and preserving biodiversity. This was a much broader issue that was being dealt
with in other organisations, in particular, FAO.  Some aspects might be examined in the context of
traditional knowledge under agenda item G.
216. The representative of the European Communities recalled his delegation's paper on
intellectual property and biodiversity (document IP/C/W/254) in which it had concluded that thesearch for solutions to the developing countries' concerns expressed in the review of Article 27.3(b)
did not necessarily lie within the scope of that Article itself, but rather could be found in taking
appropriate measures or providing for the appropriate  legal and political instruments to better enforce
the objectives of the CBD, in particular benefit sharing, as well as those objectives of the TRIPS
Agreement which, in the view of the developing countries, had not sufficiently been promoted by thedeveloped countries, and in providing technical as sistance to implement the CBD.  It could also be
found in the possible amendment of other Articles of the TRIPS Agreement.  He recalled that hisIP/C/M/35
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delegation had consistently held that these issues would be better dealt with in the framework of the
new Round, partly as a component of a comprehensive package for developing countries. Therefore,
he welcomed the broader mandate provided by paragraph 19 of the Doha Ministerial Declaration
because the Article 27.3(b) review was too narrow a basis for dealing with the wide array of complex
issues that had been raised.  However, the review of 27.3(b) and the examination of the relationshipbetween the TRIPS Agreement and the CBD were, by virtue of their numerous interconnections,
inseparable.
217. The representative of Canada supported the existing structure of the agenda.  She also
supported the Chair's suggestions to gather information on the ongoing work of WIPO since its role in
determining solutions to the issue at hand was very important.  Reports from other intergovernmental
organisations would also be helpful.  She asked for a clarification of the suggested Secretariat paper
but could support notes that pulled together all the relevant interventions that had been made.  Shesupported the suggestion that Members respond to the Questionnaire and that the summary table be
updated.
218. The representative of the Secretariat said that Article 27.3(b) had been on the agenda of the
Council for over three years and that there had been a rich discussion with a wide variety of issues and
questions raised.  The question was whether it would be helpful to delegations if the Secretariatprepared for each of the agenda items E, F and G a short note of about ten pages, which would
summarise the work done, by indicating the issues that had been raised and the points made and by
providing a guide to the existing documentation that had been presented to the Council.
219. Supporting the statements made by Brazil and India, the representative of Venezuela  said that
priority should be given to implementation issues.  He supported Ecuador and Peru's statements in
favour of granting observer status to the CBD Secretariat.  He said that particular attention should be
given to the incorporation of traditional knowledge and folklore in the Agreement and also to the
principles contained in the CBD.  The objective of  the transfer of technology for the development of
national capacities was also very important.  It would also be appropriate to have information on the
important progress that had been made in the FAO and CBD on these issues.
220. The representative of Costa Rica referred to the review of Article 27.3(b) and said that her
delegation was in favour of sui generis  protection for plant varieties.  Members did not necessarily
have to be members of UPOV.  She believed that there should be flexibility so as to enable Members
to select their own system for an effective protection of plant varieties.
221. The representative of Australia supported the proposals made by the Chair on seeking
information from other intergovernmental organisations, on urging Members to respond to the
Questionnaire and asking the Secretariat to prepare summary papers.
222. The representative of the United States responded to the concerns about the lack of a
definition of the term "micro-organism".  Some Members had raised concerns that this left them
uncertain as to what must be patentable and what could be excluded from patentability.   Patent
experts themselves had not defined the term and there were a number of conventions and treaties that
took up the issue and yet did not define the term.  One example was the Comparative Study of PatentPractices in the field of Biotechnology related mainly to Microbiological Inventions, dated 20 January
1988, prepared by various patent offices.  On page 3 of that document it was stated that "it did not
seem expedient to introduce a definition as the rapid evolution in the field of microbiology would
necessitate its frequent update".    If patent experts and the WIPO Committee of Experts and others in
various patent offices did not find it expedient to define the term, it did not seem possible for theCouncil to add much to the discussion.  Nevertheless, if any delegations were to propose a definition,
his delegation would be prepared to consider it.  Another question raised by Members was the
meaning of "effective sui generis system" for the protection for plant varieties.  He agreed that
systems other than 1991 Act of the UPOV Convention might be effective.  However, it was easier forIP/C/M/35
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Members to adopt an existing system that was consistent with the systems used by many other
Members, even though TRIPS provided for other possibilities.  He invited delegations aware of
alternative sui generis  systems to submit such information to  the Council for examination of their
effectiveness by comparison with the UPOV system.  In the absence of any specific alternative
systems to evaluate it would be difficult to further the debate on this point.
223. The representative of Malaysia supported the Chair's proposals to ask the Secretariat to
prepare summary papers and to call for updated information from other intergovernmental
organisations with a fixed deadline.  With respect to the call to Members to provide timely responses
to the Questionnaire, she noted that in document IP/C/W/273 the questions in Annex 1 were different
from the synoptic tables given in Annex 2.  She asked for clarification on the format to be used.
224. The representative of the Secretariat clarified that most Members had presented their
information in a somewhat different structure from  that used in the illustrative list contained in
document IP/C/W/122.  Since most of the responses that had been received had been based on this
alternative structure, contained in document IP/C/W/126, the Secretariat had used it in preparing the
summary table.  An option open to delegations in supplying information would be to fill in the
relevant boxes in the summary table in Annex 2 to document IP/C/W/273.
225. The representative of Korea supported the agenda as currently structured.  In her view under
this agenda item the following two items should be discussed:  the scope of the exclusion from
patentability provided under Article 27.3(b) and the sui generis  system for the protection of plant
varieties.  Korea believed that other issues could be appropriately addressed under the other agenda
items, such as the review under Article 71.1.  Korea believed that the distinction between plants and
animals and micro-organisms was well established under many international conventions includingthe CBD.  However, there had been rapid development in the field of microbiology leading to
increasing ambiguities in the scientific definition s of the term "micro-organism".  Korea did not
believe that this technical matter could be resolved  in the Council and believed that it was wiser to
leave this complex issue to each Member's patent offices and experts.  With respect to the second
issue, Korea believed that the UPOV-type of system was an appropriate sui generis  protection.  Korea
had become the fifth Member of the 1991 Act of UPOV in 2001.  Korea believed that Article 27.1
established the basic criteria of patentability and that the exceptions made under Article 27.3(b)
should be interpreted restrictively.
226. The Chairperson proposed that the Secretariat be requested to prepare short papers on this
agenda item and agenda items F and G summarizing the relevant material that had been presented to
the Council during its earlier discussions, whether in written or oral form, and listing all the relevant
documentation, and that WIPO, UNCTAD, the FAO,  the World Bank, the CGIAR, the CBD, UNEP
and UPOV be invited to provide updated information on their activities in relation to these three
agenda items by 1 June 2002.  He proposed that the Council urge more delegations to provide
responses to the questionnaire contained in docume nt IP/C/W/273 by the same time.  Further, he
proposed that the Secretariat be requested to update its summary of the responses in the light of
additional responses received.
227. The Council agreed to proceed as suggested by the Chair.
F.&G. RELATIONSHIP BETWEEN THE TRIPS AGREEMENT AND THE CONVENTION ON BIOLOGICAL
DIVERSITY ;  PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE
228. The Chairperson recalled that the Council had discussed under item E how the Council might
pursue its work under agenda items E, F and G and agreed on certain steps.  He noted that the issue
under agenda item F overlapped with outstanding implementation issues on which the Council must
report to the TNC by the end of 2002.  He asked whether Members had any additional suggestionsIP/C/M/35
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regarding the organization of work on agenda items F and G and asked them to indicate their
intentions regarding the presentation of papers on these agenda items.
229. The representative of Brazil referred to his intervention under agenda item E on the
appropriate way to structure the debate on the relationship between the TRIPS Agreement and the
CBD and the protection of traditional knowledg e and folklore pursuant to the mandate in
paragraphs 12(b) and 19 of the Doha Ministerial Declaration.  The separation of items F and G from
item E duplicated discussions and did not reflect the structure that was already established in
paragraph 19.  The review of the provisions of Ar ticle 27.3(b) was of the utmost importance to Brazil
and was a priority issue for a number of other Members.  He therefore referred the Council to his
intervention under item E.
230. The representative of the United States supported the agenda as it currently stood, which he
believed was the best and most efficient way to organize discussions on these topics.  Regarding
agenda item F, his delegation would submit a paper on this subject shortly.9  This paper was intended
to give a fuller description of a contractual system that would be effective in implementing provisions
of the CBD regarding access to genetic resources including benefit-sharing.  This paper discussed the
practices of the US National Cancer Institute ("NCI") in collecting plant genetic resources from
around the world.  The NCI's Developmental Therapeutics Program was its drug discovery programunder which it screened synthetic compounds and natural product materials derived from plants,
marine macro-organisms and microbes as potential sources of novel anti-cancer drugs.  Since 1986,
the NCI had acquired 53,000 plant samples, 13,000 marine invertebrate samples, 3,000 marine plants
and 25,000 fungal extracts from more than 30 tropical or sub-tropical source countries or
organizations in those countries.  Most of these samples had been obtained by the NCI undernegotiated letters of collection or memoranda of understanding with the source country or
organization because the NCI was committed to promoting conservation of biological diversity and
recognized the need to collaborate with source countries in developing medicines from organisms
collected within a country's borders or obtained from source country organizations and peoples.  The
demandeurs on this issue were specifically concerned about this activity.  Copies of the letter ofcollection and MoU were appended to the US paper, together with a list of countries and
organizations with which the NCI had, or was negotiating, such agreements.  Even in those instances
in which a letter of understanding or MoU had not been signed with a source country, the NCI was
totally committed to the terms of the letter and abided by its terms.
231. He said that these letters and MoU provided for compensation or other benefits related to
commercialization of any product developed from the materials acquired from the source country or
organization.  The NCI and US National Institute of  Health ("NIH") require that any NCI licensee
negotiate an agreement with the source country or the source country licensee.  The agreement must
address the concerns of both parties to ensure that pertinent agencies, institutions and persons receive
royalties and other forms of compensation, as appropriate.  The amount of royalties depended on the
relationship of the marketed medicine to the origin al lead from the extract.  In addition, NCI made
sincere efforts to transfer knowledge, expertise and technology related to drug discovery anddevelopment to the source country organization so long as mutually acceptable guarantees were
provided for the intellectual property associated with any shared technology.  A MoU between NCI
and a qualified source country organization encouraged such an organization to carry out the process
of isolating and characterizing biologically active extract constituents so that the source country
organization was able to patent the active agent either solely or jointly.  The NCI collaborated withthe source country organization through pre-clinical development of medicines and joint patents could
be sought on all inventions made by the source country organization, working together.  Inventorship
was determined under the relevant patent laws.  For compounds that were determined through the
NCI screening to possess sufficient anti-cancer potential to schedule clinical trials, the US
Government did obtain with respect to any patented product or process, a royalty-free, irrevocable,
                                                     
9 Subsequently circulated as document IP/C/W/341.IP/C/M/35
Page 59
non-exclusive licence to manufacture or use the patented product or process for medical research
purposes related to or connected with the therapy of cancer.  NCI would provide limited quantities of
research material collected from source countries or source country organizations that it maintained in
its natural products repository to selected, qualified research organizations involved in the discovery
of bioactive agents related to cancer therapy.  Material would be transferred only under a materialtransfer agreement which called for "sharing in a fair and equitable way the results of research and
development and the benefits arising from the commercial and other utilization of genetic resources
with the source country providing such resources."
232. Concluding, he said that the United States submitted its paper, and provided these concrete
examples of benefit-sharing contracts in the hope that Members of the Council would view them as
useful models that could be used in developing their own contracts for governing access to genetic
resources or in reviewing such contracts for possi ble changes.  He welcomed any reactions to the
paper and his intervention at the next meeting.
233. The representative of the European Communities,  referring to agenda item F, said that the
new mandate under the Doha Development Agenda allowed the Council to give a new impetus to this
broad debate, within a proper framework.  The EU was not a demandeur on these issues.  However,
since before the Seattle Ministerial Conference, it had declared its openness to deal with them in anew round, as a sign of its commitment to developi ng country concerns.  He suggested that those
Members which had a particular interest and had specific demands on these issues submit a systematic
presentation of these demands, in order to allow a structured and fruitful discussion.  He recalled his
delegation's paper submitted in April 2001 (IP/C/W/254) which was based upon two basic premises.
First, his delegation believed that, from a strictly legal perspective, the CBD and the TRIPSAgreement did not conflict with each other.  However, it acknowledged that there was considerable
interaction between  the rights referred to in the TRIPS Agreement and the subject matter of the CBD.
Therefore, secondly, the implementation of each of the TRIPS Agreement and the CBD should not
undermine the other's objectives but rather they should be implemented in a mutually supportive way.
234. He explained that his delegation wanted to engage in this new process in the same spirit of
openness with a view to finding a means to interp ret and implement the TRIPS Agreement in a way to
support the objectives of the CBD, such as for example the sharing of benefits.  To this effect, it was
open to examining, if Members wished, the clarification of certain existing TRIPS rules, such as for
example, but not necessarily exclusively, certain paragraphs of Article 27.  However, any proposal to
amend the TRIPS Agreement needed further careful examination before his delegation could come to
a definitive view on the issue. One of these issues concerned the disclosure of origin, in patent
applications, of genetic resources used in inventions.  He confirmed that his delegation was preparedto engage in a positive manner in a discussion on a multilateral system and/or other solutions for
disclosing and sharing information about the geographical origin of biological material relied on in
patent applications.  Once such a system or solution was in place, attention could then be focussed on
examining how and to what extent it needed to be  included in the TRIPS Agreement.  His delegation
was willing to develop positions and actions that were genuinely responsive to developing country
concerns without, however, affecting the TRIPS Agreement and whilst preserving its right to create a
favourable intellectual property environment for its biotechnology research.  The European
Communities and their member States were looking forward to concrete proposals from Members
which had raised specific concerns in the Coun cil, and was considering preparing a follow-up
communication to its earlier which laid the basis of his delegation's position.
235. The representative of Egypt supported Brazil's comments on the structure of the agenda.
Regarding agenda item F, her delegation believed that there was a need to have a multilateral system
for access and benefit-sharing for plant genetic resources so that all partners enjoyed access to, and
the benefits from, these resources at the same time in accordance with the principle of joint access.
The CBD established rules on access to genetic resources and on benefit-sharing taking into accountstate sovereignty over natural resources.  The way in which the TRIPS Agreement and CBD wereIP/C/M/35
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implemented would influence the development and operation of a multilateral system on plant genetic
resources.  In this context, her delegation believed that examining and ensuring the linkage and
compatibility between both agreements was extremely important.
236. The representative of Peru thanked the United States for its intervention and, given its highly
technical nature, she would refer it to capital for analysis.  She reiterated her delegation's position that
bilateral contracts for the distribution of benefits was but one of the manners of proceeding.  Their
character was voluntary, but there was a need for multilateral rules in this field to ensure that the
requisite protection was provided.
237. The representative of Norway recalled his delegation's paper submitted under the agenda item
of review of Article 27.3(b) (document IP/C/W/293 ), in which it gave its understanding on the
relationship between the TRIPS Agreement and the CBD.  Norway had stated that there was no legal
conflict between the CBD and the TRIPS Agreement but since they interacted in several areas, there
could be a potential for conflict between them.  The key element in ensuring consistency between the
two agreements would therefore be mutually supportive national implementation of the two
agreements.  Compliance with the relevant CBD provisions should thus be ensured through effective
implementation in national legislation.  Norway was of the opinion that an important element in the
national implementation of the CBD would be to put in place appropriate national systems for benefitsharing and prior informed consent, as well as the establishment of access and transfer systems.  The
TRIPS Agreement could be made to play an important role in the implementation of the CBD.
Specifically, an obligation under the TRIPS Agreement to disclose the origin of genetic resources
when applying for patent protection could ensure transparency as regards the origin of biological
materials that were to be patented.  This could make it easier for parties to enforce their rights to their
own genetic resources when such resources were subjec t to patenting.  The Council should keep on its
agenda whether the TRIPS Agreement needed to be st rengthened in order to require or allow for the
mandatory disclosure of the origin of genetic resources in patent applications.  The discussion needed
to enter a more analytical phase, to which Norway would contribute.
238. The representative of the European Communities said that, regarding agenda item G, his
delegation was not a demandeur but had consistently taken an open and constructive attitude in the
various fora where the issue had been raised, whether the CBD or WIPO.  A broader scope of
protection, including elements of particular interest to a number of countries, and in particular
traditional knowledge, would improve confidence in the international IP system, and would allow
more people, especially in developing countries, to benefit from the global IP system.  In its April
2001 paper (document IP/C/W/254), his delegation had clearly expressed its support for the
development of an international model for the legal protection of traditional knowledge.  In thiscontext, it had also confirmed that it remained open to developing country requests to include
traditional knowledge on the agenda of a new round, just as it had at the Seattle Ministerial
Conference. Therefore, the European Communities we lcomed the reference to traditional knowledge
in paragraph 19 of the Doha Ministerial Declar ation.  The question was how and when the Council
should deal with this issue.  Certain Members had suggested that they would like to see bindingobligations on traditional knowledge in the TRIPS Agreement. This was understandable because the
TRIPS Agreement was perceived to have more teeth than many other international agreements which
did not dispose of a dispute settlement mechanism of the kind offered by the WTO.
239. He said that, however, the question remained whether it was appropriate, at this stage, to start
an in-depth examination of this issue in WTO.  It  seemed to the European Communities that, at this
stage, the WTO was not the right place to negotiate a fully fledged protection regime for a complex
new subject matter like traditional knowledge or folklore. This was an issue on which the WTO
should ideally be able to build on the work perfo rmed by WIPO, where traditional knowledge was
currently extensively discussed in the Intergovernmental Committee on Genetic Resources,
Traditional Knowledge and Folklore.  It was difficult to anticipate at this stage the result of the workof the WIPO Intergovernmental Committee. Nevertheless, it was clear from the his delegation'sIP/C/M/35
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perspective that WIPO, as the specialised UN agency responsible for the promotion of IP world-wide,
was from a technical point of view, the most appropriate forum to tackle the issue of legal protection
of traditional knowledge, especially if the purpose was to create a new "IP-like" protection regime.
Trying to set up such a regime ran up against considerable hurdles in the form of stringent criteria
such as, for example the definition of traditional knowledge protectable subject matter, thedetermination of ownership or the modalities of ownership.  The same applied to folklore.  Therefore,
it would be appropriate to wait for the results of  the WIPO Intergovernmental Committee, and only
then determine whether this warranted further work in the WTO.  Depending on the outcome of the
WIPO process, the WTO might, for example well be the place to make a protection regime for
traditional knowledge eventually enforceable, for instance through inclusion in the TRIPS Agreement.
When the time was ripe, and without prejudging the outcome, the European Communities would be
supportive of a discussion about whether or not the resulting outcome should then be written into theTRIPS Agreement.
240. The representative of Kenya said that his delegation had always sought harmonization of the
provisions of the CBD with Article 27.3(b) of the TRIPS Agreement relating to the recognition of
royalties and access to genetic resources.  It had also sought harmonization of the provisions of the
International Undertaking on Plant Genetic Resource s at FAO on farmers' rights.  The Council needed
to work closely with the WIPO Intergovernmental Committee on the Protection of Genetic Resources,
Traditional Knowledge and Folklore in order to harmonize positions on these subjects and related
topics in future.  Kenya supported the draft African model legislation on the protection of community
rights, plant breeders' rights and farmers' rights and access to genetic resources as provided under the
CBD and the International Undertaking.
241. The representative of the United States said that WIPO was engaged in a very substantive
programme on the issues of genetic resources, traditional knowledge and folklore.  He highlighted
two results that WIPO's work had already yielded:  first, the Intergovernmental Committee had
adopted a two-step approach to the development of model IP clauses for genetic resource contracts,
beginning with the development of an electronic databa se of existing contracts.  He expected that the
NCI contracts to which he had referred under agenda item F would be among them.  Regarding
traditional knowledge, the Intergovernmental Committee had requested the WIPO Secretariat to
prepare a document with the elements for a possible sui generis  system for the protection of
traditional knowledge.  He agreed with the Euro pean Communities that that was the appropriate venue
for such discussions given the level of expertise on intellectual property and sui generis  systems at
WIPO.  The Intergovernmental Committee had also supported the implementation of various
activities on traditional knowledge as prior art.  A number of Members were concerned about thegranting of patents where prior art existed but was not available to patent examiners.  It was very
important that WIPO was compiling an inventory of traditional knowledge-related periodicals for
possible integration into a document list under the PCT.  WIPO was also taking into account the
amendment of guidelines for the examination of patent applications.  WIPO was studying the
electronic exchange of public domain traditional knowledge data including through traditionalknowledge databases and digital libraries.  WIPO was examining the applicability of existing
intellectual property documentation standards to traditional knowledge-related subject-matter.  WIPO
was assisting traditional knowledge documentation initiatives to manage the intellectual property
implications of the documentation process.  He hoped that this process would result in a better system
of making prior art known to examiners.  Recently in the United States, the Indian government hadsought to ensure that the USPTO had evidence of pr ior art in looking at a particular examination and
obtained a re-examination of the patent.  The United States had no objection to the WIPO providing
effective mechanisms for the collection of prior ar t information related to traditional knowledge and
was very interested in following the work of WIPO on that matter.  He was not sure what the Council
could add to that work.
242. Regarding folklore, he said that the Intergovernmental Committee had considered a
preliminary report on national experiences with the legal protection and expressions of folklore andIP/C/M/35
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finally decided that a report would be prepared by  the Secretariat which would provide an explicit
analysis and draw conclusions as well as suggest activities on expressions of folklore which the
Intergovernmental Committee might undertake.  One interesting aspect of WIPO's work, which
differed from discussions in the Council, was the involvement of indigenous communities.  The views
expressed by indigenous representatives and others in those discussions varied widely regarding theobjectives of those discussions.  For example, some delegations were concerned about disclosure of
prior art to prevent patenting of traditional knowledge.  Others discussed the protection of traditional
knowledge through existing forms of intellectual property, such as trade secrets.  Others pointed out
the advantages of using contracts to protect traditional knowledge.  This reflected the disparate
objectives of interested groups, which made it difficult to structure concrete proposals to address all
the concerns.  He urged the Council to follow WIPO's work closely and not duplicate it.
243. The representative of Brazil said that the exis tence of voluntary contracts demonstrated that
there was no objection to fulfilling the CBD objective of ensuring benefit-sharing and prior informed
consent.  The United States' examples of voluntar y contracts supported the argument that there was a
need to ensure that the requirements of disclosure of the source of genetic material, of benefit-sharing
and of prior informed consent should be included in  the review of the provisions of Article 27.3(b) in
order to ensure that the TRIPS Agreement and the CBD were mutually supportive.  He would providemore comments on the United States' paper at the next meeting.
244. The representative of Japan said that his delegation's position had not changed on agenda item
F since its communication of December 2000 (doc ument IP/C/W/236).  The TRIPS Agreement and
CBD were mutually non-exclusive.  Given their totally different objectives and the flexibility in the
provisions of each treaty, it would be unlikely that one would conflict with the other whenimplemented.  Regarding traditional knowledge, he referred to the work carried out in other
international fora, mainly WIPO, the FAO, the CBD and the WSSD (World Summit on Sustainable
Development which will take place in Johanne sburg, South Africa in August 2002).  Some
fundamental issues, such as the definition of traditional knowledge, were still under discussion in
those fora.   Given their status, it was important to take account of, and follow, such discussions andtheir progress in order to reduce duplication.
245. The representative of Singapore saw merit in looking at WIPO's work on traditional
knowledge and folklore before the Council decided to deal with the issue.  WIPO had conducted
extensive work in this area, both prior to the es tablishment of the Intergovernmental Committee and
afterwards.  WIPO had conducted a survey, compiled the results and held seminars throughout the
world.  It had gathered much knowledge which was now under review in that forum.  The work
should be kept in that forum and he doubted that it would be useful for the Council to repeat any of it.
246. The representative of Korea said that there should be some clarification as to what needed to
be discussed under agenda item F because other fora within and outside the WTO were addressing
this issue.  The Council should identify appropriate aspects of the issue on which it had expertise.  She
referred to the work of the WIPO Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore which was in the process of developing a guide tocontractual practices and model IP clauses for contractual agreements on access to genetic resources.
The Council should avoid duplicating the work done in  WIPO and focus more on subject that could
complement or create synergies with what was already been done by organizations such as WIPO.
The relationship between the TRIPS Agreement and CBD was also a discussion item in the CTE
under paragraph 32 of the Doha Ministerial Declaration, and the relationship between the WTO andMEAs was a negotiating item under paragraph 31 of the Declaration. The Council should be cautious
of duplication of work even within the WTO.  Regarding agenda item G, she said that the concepts set
out in Article 8(j) of the CBD and UNESCO's Model Provisions for National Laws on the Protection
of Expressions of Folklore against Illicit Exploitation and Other Prejudical Actions were not easy to
apply in practice. Greater elaboration of the concept was necessary to enhance Members'understanding of specific cases of the protection of traditional knowledge. In this regard, the WIPOIP/C/M/35
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Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge
and Folklore was accumulating responses of its Members through a questionnaire on traditional
knowledge, and folklore, and it was also looking for elements of a sui generis  system for the
protection of traditional knowledge and to sharpen the meaning of traditional knowledge and folklore.
WIPO was also working on documentation and establis hment of a database of traditional knowledge
which would give patent examiners easier access to related prior art and enhance the quality of patent
examination.
247. The representative of Switzerland said that the current structure of the agenda was the
appropriate one.  His delegation fully recognized paragraph 19 of the Doha Ministerial Declaration
and was willing and committed to participating actively and constructively in discussions on the issue
of traditional knowledge.  The question was what was the most appropriate way to structure such a
discussion in order to reach a useful and acceptable outcome.  The Council's work on item G couldand should benefit from work already done on these issues in the WIPO Intergovernmental
Committee.  Switzerland, with others, had proposed that the Committee give high priority to the
clarification of terminology, without which work could not be constructive.  Switzerland had
proposed that WIPO prepare a document for discussion at the Committee's session in June 2002 on
the feasibility of an international database on traditional knowledge – an idea which his delegationhad already explored in great detail in the Counc il (document IP/C/W/284).  Patent examiners could
consult the database when examining patent applications relating to genetic resources as to their
novelty and non-obviousness and reject applications which were not actually new but simply drew on
traditional knowledge.  Switzerland had supported a proposal that WIPO provide additional financial
means allowing for the increased participation of indigenous and local communities in theCommittee's meetings.  The WIPO Intergovernmenta l Committee remained in the foreground as the
appropriate forum to deal with the intellectual property-related aspects of the protection of traditional
knowledge and folklore.  However, Switzerland was willing to get involved constructively in a
discussion of concrete proposals in the TRIPS Council on any issues that were not dealt with at
WIPO, or not dealt with appropriat ely at WIPO, so that there was no risk of a duplication of work and
outcomes.
248. The representative of China said that the protection of biodiversity was of great importance to
all WTO Members, indeed of all the nations of the world.  China had joined the CBD shortly after it
entered into force and supported all the principles set out in it.  The question of potential conflicts
between the TRIPS Agreement and the CBD might not be of great importance.  Some delegations had
tried to show that a proper interpretation of the relevant articles of the TRIPS Agreement prevented
any conflict.  However, the question that needed to be addressed was how the TRIPS Agreementcould help protect genetic resources, especially bearing in mind the development dimension stressed
by the Doha Declaration.  Biological diversity was a relatively new concept compared with those of
intellectual property.  Therefore, the extent to which the traditional legal framework of IPR could
provide protection to biological diversity was the problem at hand which needed further consideration
by all Members.  Her delegation was interested in the proposal for a contractual system to protectaccess to genetic resources but, taking into account the development dimension, it had to be
acknowledged that the parties to any contractual access arrangement might not have equal bargaining
power, information or legal knowledge.  Therefore, the Council needed to identify more effective and
innovative ways to protect biological diversity.
249. The Council took note of the statements made under these agenda items.
10
H. REVIEW OF IMPLEMENTATION OF THE TRIPS AGREEMENT UNDER ARTICLE 71.1
250. The Chairperson recalled that the Council had been considering how to organize the review
under Article 71.1 for some two years and a substantial number of suggestions for topics to be
                                                     
10 As regards the Council's agreement on the next steps, see paragraphs 226-227.IP/C/M/35
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considered had been made.  Some of these topics overlapped with other items on the Council's new
agenda, so that the situation had changed by comparison with prior to the Doha Ministerial
Conference.  He suggested that the Council establish a time-frame or target date for delegations to
submit ideas for issues to be taken up in this revi ew, say the Council's meeting in June 2002, without
excluding the right of delegations to suggest additional points at a later stage.
251. The representative of India said that it was good to have the June meeting as a target date for
raising issues under this agenda item but it should be  without prejudice to the rights of delegations to
table proposals after that date.
252. The Council agreed to invite Members to submit ideas for issues to be taken up under this
agenda item by the Council's meeting in June, without prejudice to the right of Members to submit
such ideas at a later stage.
I. IMPLEMENTATION OF ARTICLE 66.2
Organization of work programme
253. The Chairperson recalled that at Doha, the Ministerial Conference had adopted a Decision on
Implementation-Related Issues and Concerns (WT/MIN(01)/17).  Paragraph 11.2 of the Decision
stated: "Reaffirming that the provisions of Article 66.2 of the TRIPS Agreement are mandatory, it is
agreed that the TRIPS Council shall put in place a mechanism for ensuring the monitoring and full
implementation of the obligations in question.  To this end, developed country Members shall submit
prior to the end of 2002 detailed reports on the functioning in practice of the incentives provided to
their enterprises for the transfer of technology in pursuance of their commitments under Article 66.2.
These submissions shall be subject to a review in  the TRIPS Council and information shall be updated
by Members annually."  He said that the Doha Decision set out a clear time frame for the submissionof these reports by developed country Members, namely by the end of 2002.  Since these reports were
a central component of the monitoring mechanism that  the Council had been asked to put in place,  it
would make sense for the Council to have decided on this mechanism prior to the submission of the
reports.  Therefore, the Council had relatively little time in order to agree on this mechanism.  He
asked whether Members would be in a position to come forward with their proposals regarding thismatter by the Council's meeting in June 2002 .
254. The representatives of Canada and the European Communities
 said that they needed time to
reflect on whether the submission of proposals for the monitoring mechanism by the June meeting
was realistic.  In addition, the representative of the European Communities recalled that at Doha the
Ministerial Conference agreed to establish a work ing group under the auspices of the General Council
to examine the relationship between trade and transfer of technology (paragraph 37 of the Ministerial
Declaration).  His delegation needed to understand th e link between that work and this item, so that
the June meeting could be too early for it to submit proposals.
255. The representative of Switzerland said that this was an important issue but the Council needed
to find a way to fulfil its many tasks.  He said that Members should only agree to submit proposals by
the June meeting if they were sure that they could actually do so, and his delegation could not submit
anything by then since even proposals required prior contact with stakeholders.  His delegation couldonly commit to provide its detailed report prior to the end of 2002.
256. The representative of Grenada said that Members' resources were stretched by the number of
commitments that were piling up for the June meeting and many would not be able to meet that target.
If the Council did establish a target date of the June meeting under this agenda item, it should be with
the proviso that this did not exclude the right of delegations to suggest additional points at a later
stage.IP/C/M/35
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257. The Chairperson confirmed this proviso, i.e. that a target date for submission of proposals
would not exclude the right of delegations to suggest additional points at a later stage.
258. The representative of the United States was sympathetic to those delegations who had
expressed concerns about a June deadline and asked whether there was a need for a mechanism.  He
encouraged Members who had programs that implemented Article 66.2 to present them in the Counciland proceeded to make a presentation on the work of the US Agency for International Development
("USAID").  This Agency had been created by an executive order in 1961 and for forty years had
been a leader in helping developing countries improve education, health, agriculture and economic
development.  USAID programs were also aimed at promoting democracy and providing
humanitarian assistance and preventing conflicts.  USAID had field missions in 72 countries and
funded programs in more than 100 countries.  He highlighted some USAID programs that were
responsive to the concerns raised under Article 66.2.  Ohio State University had been the primecontractor in the Ugandan Manpower for Agricultural Development Project funded by USAID and
developed in close cooperation with the Ugandan government, with private sector leaders in Uganda
and other donor organizations.  Highlights of the ni ne year program included:  38 Ugandan nationals
had received Ph.D. or Master's degrees, training at 11 participating US universities; three primary
research units in Uganda had been physically rehabilitated, including the agricultural researchinstitute; new varieties of corn, soybean and sunflowers had been introduced on the Ugandan market
which increased agricultural yields from 25% to 60% over those of local varieties in use previously;
participating farmers had increased their overall farm productivity by 31% and their farm income by
300%.  USAID had a collaborative research support program involving Ohio State and Virginia Tech
Universities, and another university faculty of agriculture and the National Agricultural ResearchOrganization, to develop a new environmentally-friendly and cost-effective practice for controlling
major pests on food crops.  All phases of the research were carried out in cooperation with organized
groups of farmers providing a direct link between public sector research and development and small
farmers which comprise about 84% of the Ugandan labour force.  These two programs were small
examples of the type of assistance that USAID prov ided that actually resu lted in the transfer of
technology.  Much more information about its programs could be found at its website at
www.usaid.gov which could be searched by country name.
259. The Chairperson reminded Members that the Ministerial Decision stated that "… the TRIPS
Council shall put in place a mechanism for ensuring  the monitoring and full implementation of the
obligations in question."  The Council had no choice but to fulfil that mandate.
260. The Council took note of the statements made.
Outstanding questions from the Council's work in the year 2001
261. The Chairperson recalled that, at the Council's meeting in June 2001, Zambia had requested
information on specific questions from developed country Members (document IP/C/W/298).  At the
Council's meeting in September 2001, some Members had indicated that they were still looking into
the questions posed by Zambia.  He asked whether Members had any further reactions to Zambia's
request.  He noted that, since the meeting in September 2001, additional information had beenreceived from Canada and the United Stat es (documents IP/C/W/132/Add.7 and Add.1/Supp.1,
respectively).
262. The representative of Zambia had been hoping that developed country Members, particularly
those which had submitted information, would at least provide some highlights, but he appreciated the
opportunity to read their information and make comments.  The submissions of Canada and theUnited States should contribute to the implementation of the commitment under the Ministerial
Decision which in turn would contribute to the implementation of Article 66.2.  He recalled the text of
Article 66.2.IP/C/M/35
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Presentation by UNCTAD
263. As agreed at the Council's meeting in September 2001, the Chairperson invited the
representative of UNCTAD to introduce the written information that it had submitted on the outcome
of its Expert Meeting on International Arrangements for Transfer of Technology in June 2001
(document IP/C/W/332).
264. The representative of UNCTAD informed the Council that the UNCTAD Expert Meeting on
International Arrangements for Transfer of Technology had been held in June 2001 under the
umbrella of the UNCTAD Commissi on on Investment, Technology and Related Financial Issues.  The
meeting had been a response to the UNCTAD X Bangkok Plan of Action, which had requested
UNCTAD to "analyse all aspects of existing international agreements relevant to transfer of
technology" and "examine and disseminate widely information on best practices for access to
technology".  Thus, the Expert Meeting had not been about technology transfer per se, as the need for
technology transfer, especially to developing countries, had been recognized in various international
fora for some years. Instead, the main issue had been how to enhance the effectiveness of existing
international arrangements, or in other words, how to translate good intentions into good practices.
265. He said that, in the past two decades, specific provisions on transfer of technology had been
incorporated into several dozen international instruments including the WTO agreements.  ByUNCTAD's count, there were 35 multilateral and 25 regional and interregional instruments. When
bilateral agreements were included, the number of instruments exceeded 80. To help take stock of this
large volume, the UNCTAD secretariat had compiled on the occasion of the Expert Meeting a
"Compendium of International Arrangements on Transfer of Technology" .  The provisions on transfer
of technology and capacity building in existing international instruments were underpinned by avariety of shared concerns: effective integration of the developing countries in world trade and
investment, protection of intellectual property righ ts and sustainable development. These provisions
had different objectives and scope, and different modes of implementation, including the provision of
financing, and were subject to different terms and conditions. In most cases, however, such provisions
took the form of "best efforts" commitments, rather than mandatory rules. In addition, manytechnology-related provisions relied on national measures for their implementation.
266. He said that the Expert Meeting had reviewed the implementation experience and made
various suggestions, which had been considered  by the UNCTAD Commission in January 2002.  The
Commission had produced agreed recommendations (UNCTAD document TD/B/COM.2/L.16).  The
Commission had recognized that Governments and the private sector had an important role to play in
the implementation of commitments, inter alia  through public and private partnerships.  In this
connection, the Commission had emphasized the need for adequate protection of intellectual propertyin providing incentives for investment and transfer of technology in all countries, taking into account
the interests of producers, users and consumers.  In its recommendations addressed to Governments,
the Commission had noted that the creation of a hospitable domestic regulatory environment for
foreign investment, together with intellectual property protection, encouraged access to technology.
In this connection, technical cooperation should focus on technological capacity building with a viewto enabling beneficiary countries to use intellectual property rights in ways that advanced their
national systems of innovation.  Th e Commission had also noted that the setting up of coordination
committees at the national or regional level with regard to the interface between commitments in the
TRIPS Agreement and national implementation requirements might facilitate the application of the
TRIPS arrangements to local innovation needs and to favouring their pro-competitive implementation.The Commission had further noted that measures by home countries to promote transfer of
technology, especially through FDI in developing c ountries, should be promoted.  In this connection,
the Commission had drawn attention to Article 66.2 of the TRIPS Agreement and paragraph 11.2 of
the Decision of the Doha Ministerial Conference of the WTO on Implementation-Related Issues and
Concerns (WTO document WT/MIN(01)/17).  In its recommendations addressed to the internationalcommunity, the Commission had noted that the TRIPS Agreement should be implemented in aIP/C/M/35
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manner that was conducive to transfer of technology, in accordance with its Articles 7, 8 and 40,
including by assessing its impact on transfer of technology and capacity building.
267. The Commission had also addressed three re quests to UNCTAD.  First, UNCTAD should
provide assistance to developing countries in strengthening their capacity to discuss and examine
transfer of technology issues and to negotiate technology transfer provisions in internationalinstruments.  UNCTAD hoped to do this in conjunction with other organizations, including as
appropriate, the WTO.  Second, UNCTAD should explore ways and means for effective
implementation of international commitments in the area of transfer of technology and capacity
building and assist interested countries by undertakin g a needs assessment with regard to the interface
between commitments in the TRIPS Agreement and national implementation requirements.  Third,
UNCTAD should disseminate information concerning existing home country measures that encourage
transfer of technology in various modes to developing countries, in particular LDCs.
268. In this connection and in relation to Article 66.2 of the TRIPS Agreement, the representative
of UNCTAD informed the Council that work on home country measures was underway in
cooperation with the OECD and some national agencies of home countries. The objective was to
outline the existing measures and facilities in home countries aimed at transferring technology to
developing countries and in particular LD Cs.  As necessary, UNCTAD would update the
Compendium of International Arrangements on Transfer of Technology.  Finally, as reported to the
Council under item N on Technical Cooperation, UNCTAD was implementing a project on capacity
building in the area of TRIPS.  The project aimed at generating a better understanding of the TRIPS
Agreement and to strengthen the analytical and negotiating capacity of developing countries in their
participation in intellectual property rights related negotiations. This project was being undertaken byUNCTAD jointly with the International Centre for Trade and Sustainable Development with the
support of DFID and SIDA.  It would include the preparation of a policy discussion paper, case
studies and a resource book conceived as a practical tool for negotiators and policy makers in order to
facilitate their informed participation in ongoing as well as future negotiations and decision-making
processes.  In conclusion, he emphasised that UNCTAD welcomed the opportunity to share itsexperiences with Members of the Council and looked forward to continue contributing to its work.
269. The representative of Senegal thanked UNCTAD and also the developed country Members
who had submitted information on their implementation of Article 66.2, which was a mandatory
obligation for those Members.  During the six year s since the entry into force of the Agreement in
those Members, Article 66.2 had suffered from inadequate and ineffective implementation from the
LDCs' perspective.  This was the first meeting of the Council since the Doha Ministerial Conference,
which had introduced a new element, namely the development agenda.  This had been shown in thespeeches made at Doha and put in practice in different actions of the Organization since then, notably
with respect to technical cooperation and the forthcoming pledging conference.  He wished to draw
the link between development and Article 66.2.  He dr ew attention to the fifth recital to the TRIPS
Agreement in which Members recognized that "the underlying public policy objectives of national
systems for the protection of intellectual property" included "developmental and technologicalobjectives".  There was a systemic link between development and technology, which was
corroborated by the work of UNCTAD.  He drew attention to the sixth recital to the TRIPS
Agreement in which Members recognized "the special needs of the LDC Members in respect of
maximum flexibility in the domestic implementation of laws and regulations in order to enable them
to create a sound and viable technological base".  There was a link between the status of LDC and thelack of a technological base.  The objectives of the Agreement in Article 7 were also relevant, and had
been referred to in the Doha Ministerial Declarations.
270. Regarding the extension of the transitional period for LDC Members with respect to
pharmaceutical products until 2016, he welcomed the draft Decision circulated by the Secretariat
(JOB(02)/12) and reserved the right to comment on it  further.  The extension of the transition period
had to take place on two levels:  the first concerned the bringing of national laws into conformity withIP/C/M/35
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the Agreement;  the second and more important was to allow LDCs to build the technological
capacity to benefit from the extension and progress beyond the status of LDCs and dispose of the
means to ensure their development.  Article 66.2 reinforced the credibility of any extension period
provided to LDCs.  If Members did not make an  additional effort to boost LDCs' technological
capacity during that time, the transition period would not be able to cease in 2016.  Another newelement introduced by Doha was paragraph 6 of the Declaration on the TRIPS Agreement and Public
Health that had been discussed under agenda item C.  LDCs were among the principal beneficiaries of
the work under that paragraph.
271. The representative of Senegal said that Article 66 constituted a balanced and viable
instrument in the building of a technological base.  These new elements meant that work on this
agenda item should be different this year.  He recalled the mandate in paragraph 11.2 of the
Ministerial Decision.  The mechanism required the Council to monitor those countries which alreadyprovided the requisite incentives and see to what extent these had been effective.  It also required the
full implementation of the obligation in Article 66.2 in order actually to attain the objectives
expressed in the TRIPS Agreement.  These were that LDCs should gain access to technology that
permitted them to develop, so that they could no t only comply with the TRIPS Agreement, not only
gain access to pharmaceutical products but also gain access to markets and all the opportunitiesoffered by globalization and the multilateral trading system.
272. The representative of Mauritius said that it was appropriate for UNCTAD to be present given
the prominent place of development in the Doha Ministerial Declaration.  He commended UNCTAD's
efforts to promote initiatives for the transfer of technology.  UNCTAD had already begun
consultations regarding work on the transfer of technology agenda.  He thanked the DFID and SIDAfor their active support in promoting this work under the aegis of UNCTAD.  He thanked the
United States, the European Communities and other partners for their active promotion of work on
technology transfer.  Further support, particularly financial backup, was needed to fulfil the ambitious
Doha Development Agenda.  He singled out UNCT AD and the ITC as needing substantial support.
273. The representative of Uganda recalled that the Doha Ministerial Decision had referred to
Article 66.2.  He thanked UNCTAD for its work in the area of transfer of technology to LDCs.  The
issue of technology transfer should be read with the extension of the transition period agreed for
LDCs in the Doha Ministerial Declaration on the TRIPS Agreement and Public Health.  The
extension would be meaningless if Members did not take measures, including measures to transfer
technology.  The entire membership needed to give  the issues of transfer of technology and building
capacity the priority that it deserved.  He welcomed the reaffirmation of the mandatory nature of
Article 66.2 in the Ministerial Decision and the commitment of the Council to put in place amechanism to ensure its monitoring and full implementation.  His delegation looked to developed
country partners to fulfil their commitment by submitting detailed reports for review in the Council.
He thanked the United States for their bilateral programmes to develop capacity in Uganda.
274. The representative of Zambia supported the interventions by Senegal and Uganda.  Recalling
that Zambia had originally suggested that the Co uncil invite UNCTAD to make a presentation on its
expert meeting, he thanked UNCTAD for having accepted to do so.  He noted that discussions were
taking place between UNCTAD and the OECD in re lation to home country measures and he asked
UNCTAD to keep the Council informed of those discussions, particularly their eventual outcome.
275. The Council took note of these statements and agreed to revert to this item at its next meeting.
J. NON-VIOLATION AND SITUATION COMPLAINTS
276. The Chairperson recalled that at Doha, the Ministerial Conference had adopted a decision on
Implementation-Related Issues and Concerns (WT/MIN(01)/17). Paragraph 11.1 of the Decision
stated: "The TRIPS Council is directed to continue its examination of the scope and modalities forIP/C/M/35
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complaints of the types provided for under subparagraphs 1(b) and 1(c) of Article XXIII of
GATT 1994 and make recommendations to the Fifth Session of the Ministerial Conference.  It is
agreed that, in the meantime, Members will not  initiate such complaints under the TRIPS
Agreement."  He said that the Council therefore had a time-frame for its work, namely the Fifth
Ministerial Conference, even if it was not yet sure of  the exact date of that Conference.  In order to be
able to prepare recommendations, the Council would need to have specific proposals from
delegations, and have fully discussed them sufficiently in advance of the Fifth Ministerial Conference,
so that Members had a clear picture of the options available and their implications.
277. He suggested that the Council might establish an indicative time-frame or target date for the
submission of such proposals, say the Council's meeting in November 2002. Prior to that meeting, the
Council could continue its discussion on the basis of the headings in Job(01)/70, but the Chairperson,
with the aid of the Secretariat, could also prepare an annotated agenda, raising specific questionsunder each of the headings in that note, to which Members could react at the next meeting.  The
Secretariat could also be requested to prepare a summary paper of the points raised in the substantive
discussion of this agenda item so far.  He in vited Members to comment on how the Council should
continue its work, in particular on the possibilities that he had raised.
278. The representatives of Australia, Canada
, the European Communities , Hungary  and Turkey
recalled their respective substantive contributions to work under this agenda item and supported the
Chair's proposal that the Secretariat prepare an annotated agenda and a summary paper.  However,
they suggested that establishment of a target date for submission of proposals should be postponed
until after the discussion at the next meeting.
279. The representative of the United States said that his delegation's position on this issue had not
changed since the Doha Ministerial Conference and that it did not share many of the concerns and
uncertainties expressed by other delegations regarding the applicability of non-violation complaints
and remedies in the TRIPS context.  He did not object to the Secretariat compiling a summary of
previous interventions but asked that the Secretariat include in its paper a review of GATT/WTO
dispute settlement practice where non-violation had b een applied so that the reader could make sense
of what had happened on the topic.  Given the divergence of views on the topic, he asked for thorough
informal consultations during preparation of the annotated agenda.
280. The Chairperson took note of the points raised by the United States.  He suggested that the
Council ask him, with the aid of the Secretariat,  to prepare an annotated agenda, raising specific
questions under each of the headings in its note Job(01)/70 and further ask the Secretariat to prepare a
summary paper of the points raised in the substantive discussion of this agenda item so far.
281. The Council took note of the statements made and agreed  to proceed as suggested by the
Chair.
K. ELECTRONIC COMMERCE
282. The Chairperson recalled that, at its meeting in September 2001, the Council had discussed a
suggestion from Switzerland that the Secretariat be requested to prepare a study on electronic
commerce and the TRIPS Agreement.  The Council had decided to request the Secretariat to explore,in consultation with interested delegations, the scope and content of a study it could undertake, and to
revert to the matter at its next meeting where electronic commerce would be on its agenda. At an
informal meeting of the Council held on 15 February 2002, the Secretariat had reported on the
consultations it had held accordingly.  At that informal meeting it had appeared that a generally
acceptable approach would be that the Council would request the Secretariat to update the earlierbackground study that it prepared on this topic and circulated in document IP/C/W/128 in February
1999.  The updated version of this document should reflect the recent developments that were relevant
to the issue, including the work carried out by WI PO and other intergovernmental organizations.  LikeIP/C/M/35
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the original Secretariat background note, the updated note would of course be merely a factual
contribution to the Council's discussion.
283. Accordingly, the Chairperson proposed that the Se cretariat be requested to update this earlier
factual background note and circulate it before the Council's meeting in June 2002.
284. The Council agreed to proceed as proposed by the Chair.
L. OTHER OUTSTANDING IMPLEMENTATION ISSUES (TIRETS 93 AND 94 AND PROPOSAL BY LDCS
ON THEIR TRANSITION PERIOD )
285. The Chairperson recalled that paragraph 12 of the Doha Ministerial Declaration
(WT/MIN(01)/DEC/1) and paragraph 13 of the Doha Decision on Implementation-Related Issues and
Concerns (WT/MIN(01)/17) referred to outstanding implementation issues (a list of these issues was
compiled in document JOB(01)/152/Rev.1).  These issues had been covered under previous agenda
items, with the exception of the following:
- Tiret 93:  The transitional period for developing countries provided for in Article 65.2
shall be extended.
- Proposal by Least-Developed Countries, 22 October 2001: The General Council
agrees that the transition period for LDCs shall be extended so long as they retain the
status of an LDC.
- Tiret 94:  Articles 7 and 8 of the TRIPS Agreement to be operationalized by
providing for transfer of technology on fair and mutually advantageous terms.
286. The representative of Cuba said that this was an important agenda item on which her
delegation hoped to make a substantive contribution at the next meeting.
287. The Council took note of this statement.
M. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL
INDICATIONS UNDER ARTICLE 24.2
288. The Chairperson recalled that, at its meetings in 2001, the Council had continued its detailed
review of the experience and practice with the application of the provisions in the TRIPS Agreement
on geographical indications, with the aid of the main section headings in the Secretariat note(document IP/C/W/253).  This note had been prepared  in response to the request by the Council and
summarized Members' responses to the Checklist of Questions on the application of TRIPS provisions
on geographical indications (IP/C/13 and Addendum 1).  The previous time that this item had been on
the Council's agenda, in September 2001, certain Members had provided additional information in
response to questions raised by Australia.  Since that meeting, the Council had not obtained further
information on the application of the TRIPS provisions on geographical indications.
289. The representative of Australia said that important questions were being raised at the regular
and special sessions of the Council concerning the scope and operation of geographical indication
protection in Members.  This protection was relatively new for many Members;  some were still
working on full implementation and others were demanding substantial review of existing obligations.
There was a pressing need for a collective understanding of national experience with existing
provisions.  Australia had encouraged a substantive discussion under this agenda item and remainedkeen to discuss the main issues arising from geographical indication protection including, but not
limited to, the definition of a geographical indication, the application of Article 24 exceptions,
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protection and protection in the country of or igin.  The review under Article 24.2, based on the
Checklist of Questions in documents IP/C/13 and 13/Add.1 would be useful in informing further
important work on geographical indications.    He proposed that Members who had not already done
so respond to the Checklist and suggested the June meeting as a target date.  In order to invigorate
work on this agenda item, Australia would be pleased to make a presentation on its responses to theChecklist and answer questions in relation to its own geographical indication protection.  He
encouraged other Members to do likewise.  One possible approach was for Members, in alphabetical
order, to make presentations following the Secretariat's summary of responses to the Checklist
(document IP/C/W/253).
290. The representative of the United States supported Australia's suggestion.  His delegation was
also willing to give a brief overview of the United States' implementation of the geographical
indications provisions in the TRIPS Agreement.  He also urged Members who had not already done soto respond to the Checklist, if possible by the next meeting.
291. The representative of New Zealand said that the review under Article 24.2 was important in
its own right but also as an opportunity to increase Members' collective understanding of the current
provisions.  She reiterated the call in her delegation's paper (IP/C/W/205) for the review to be
conducted in a systematic and substantive manner.  A further discussion and improved understandingof the current provisions would assist discussions under related agenda items on extension of
protection for geographical indications and the multilateral register.  This was even more the case now
that the work on extension had a specific mandate on implementation aspects.  Whilst these agenda
items and negotiations on the multilateral register were separate, the Council should allow discussions
in one area to inform its deliberations in another.  Better understanding of current nationalimplementation would help Members understand the problems which developing country proponents
claimed that they faced under the current provisions.  It would help Members understand how
individual Members had approached specific issues, such as the protection of country names as
geographical indications, the application of the exceptions in Article 24 and the types and numbers of
terms that Members had deemed protectable at the national level.  A closer look at the currentoperation of Section 3 provisions would allay some of the concerns expressed by some delegations
regarding the supposed variability and legal uncertainty of the misleading test in determining
consumer deception.  The basis of work in previous meetings had been the Secretariat's summary note
which had been helpful, but there was a lot of information to digest across different national systems
and she asked if there were ways to structure the discussion to improve its focus.  She welcomed
Australia's suggestions and said that New Zealand might make a presentation of its national system in
due course and encouraged other Members to do so as well.  She also urged Members who had notalready done so to respond to the Checklist, if possible by the next meeting.
292. The representative of Canada supported previous interventions under this agenda item.  The
Council needed some precise information as to  how Members had implemented to date.  Some
structured approach would be useful.  Canada co uld be prepared to make a presentation of its
geographical indication protection in its trademark system if the Council so wished.
293. The representative of the European Communities said that the Council had a lot of
information at its disposal, in particular thanks to the Secretariat summary note which was a good
basis for discussion.  He looked forward to presen tations foreshadowed by some delegations at the
next meeting but did not agree that it was useful to proceed in alphabetical order.
294. The representative of Japan supported Australia's suggestions.  As it would be useful to
understand national implementation, all Members should respond to the Checklist as soon as possible.
295. The representative of Hungary recalled that the review under Article 24.2 was of the
application of Section 3 of Part II of the Agreement and only the first in a series of reviews.  Some of
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fell outside that mandate.  He agreed with the European Communities that the Council had a lot of
information at its disposal and urged Members who had not already done so to respond to the
Checklist.
296. The representative of Australia said that the presentations to be made at the next meeting
would inject life into this review.  The extensive information on the table had not yet been used to its
full advantage.  The Secretariat summary note demonstrated the great variety of implementation
mechanisms in various Members.  She therefore hoped that those Members who had different
mechanisms from Australia's would volunteer to make presentations in due course.
297. The Chairperson suggested that the Council urge those Members who had not already done so
to respond to the Checklist before the next meeting, if possible.
298. The Council took note of the statements made and agreed  to proceed as suggested by the
Chair.
N. TECHNICAL COOPERATION AND CAPACITY -BUILDING
299. The Chairperson recalled that the Council's meeting in September 2001 had had a special
focus on technical cooperation and, in that context, developed country Members had provided their
annual updates of information on their technical cooperation activities (IP/C/W/306 and addenda).
Information on technical cooperation activities had also been obtained from a number ofintergovernmental organizations observers to th e TRIPS Council (IP/C/W/305 and addenda) and the
WTO Secretariat (IP/C/W/304).  It had been agreed, as in previous years, that Members be provided
an opportunity to make further comments on these annual reports at the present meeting.
Furthermore, he recalled that the WIPO and WTO Secretariats had launched on 14 June 2001 a Joint
Initiative on Technical Cooperation for Least-Developed Countries.  He invited the two Secretariats toupdate the Council on this Joint Initiative.
300. The representative of the WTO Secretariat said that the Joint Initiative envisaged assistance in
two phases.  During the first phase, the two Secret ariats would organize two regional workshops.  The
second phase would focus on country specific action plans.  The first of these workshops, for the
least-developed Sub-Saharan countries and Haiti, would be held from 22 to 25 April 2002 in Dar esSalaam, Tanzania in cooperation with the Government of Tanzania.  The objective of the workshop
was to discuss with senior officials international intellectual property norms and standards as well as
current issues, including the work in WIPO and the results of the Doha Ministerial Conference.
Participants would be asked to contribute to disc ussions aimed at identifying critical implementation
issues in their respective countries.  This was intended to help in the drafting of country-specific
actions plan.  The second regional workshop would be held for least-developed countries of the Asia-
Pacific region.  The Secretariats were in contact with some countries who had offered to host theworkshop.
301. Continuing, he said that the Secretariats were in the process of responding to 13 requests that
had been received from LDCs under the Joint Initiative.  He drew Members' attention to the latest
version of the Coordinated WTO Secretariat Annual Technical Assistance Plan  2002 (document
WT/COMTD/W/95/Rev.2, pages 66 and 67) which provided for six projects designed to respond tothese requests.  In addition to the activities to be carried out under the Joint Initiative for LDCs, he
said that the WIPO and WTO Secretariats would hold a joint conference for Arab countries from 28 to
30 April 2002 in Doha, Qatar.
302. The representative of WIPO recalled, in addition to what had already been explained by the
representative of the WTO Secretariat, that WIPO's technical cooperation activities in favour of LDCs
had been conducted over time before the launch of this Joint Initiative.  That work would continue as
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303. The representative of the European Communities reiterated his satisfaction at the launch of
the Joint Initiative.  Implementation of the Agreem ent by all Members remained a major objective of
his delegation because intellectual property protection was important for the economic development
of any country by stimulating domestic industry and attracting foreign direct investment.  He referred
to his delegation's reports on its wide-ranging programs of technical cooperation.  He recalled thatrecently the WTO had adopted an ambitious program of technical cooperation and assistance as a
follow-up to the Doha Ministerial Declaration.  Some of the activities under that plan related to the
TRIPS Agreement.  The European Communities and their member States would try to cooperate as
much as possible in the framework of that plan.  He recalled that Commissioner Lamy had written to
the Directors-General of the WTO and WIPO in 2001 drawing their attention to the ongoing
discussions relating to the link between intellectual pr operty and public health, in particular in the area
of access to medicines, and underlining the need to take account of the objectives and principles laiddown in Articles 7 and 8 of the TRIPS Agreement which he had said were particularly important in
the pursuit of national public health policies.  He had encouraged both organizations to work together,
where appropriate, when providing technical assistance to developing countries to give sufficient
attention to the public health dimension.  He as ked both the WTO and WIPO Secretariats how that
request had been followed up.  Recalling that Commissioner Lamy's had said in his letter that it wasappropriate to take advantage of the available expertise on health matters, such as in the WHO, he
asked whether the WTO and WIPO Secretariats had, in their technical cooperation programs, called
on the help of the WHO.
304. The representative of Brazil supported the point made by the European Communities about
the need to address public interest issues in the implementation of the TRIPS Agreement.
Implementation covered not only Members' obligations but also their rights and their need to make
use of the flexibility allowed under the Agreement.  He strongly urged the WTO and WIPO
Secretariats to emphasize strongly the points about public health and biodiversity in discussions of
implementation of the TRIPS Agreement.  Supporting the statement by Brazil, the representative of
Peru said that technical cooperation was important and should cover subjects of great importance for
developing countries, such as traditional knowledge.
305. The representative of Zimbabwe supported the holding of the regional workshop for LDCs in
Dar es Salaam.  He asked whether there were plans for workshops for developing country Members in
Africa.  The representative of Morocco said that his country was very interested in the Joint Initiative
due to the experience that it had gained concerning intellectual property, particularly in relation totechnical assistance.  He asked whether the regional workshop for Arab countries was limited to
LDCs, and what were the criteria used in choosing experts to provide technical cooperation under theJoint Initiative.
306. The representative of the WTO Secretariat, responding to the European Communities, said
that the issue of IP and public health figured significantly in the Secretariat's technical cooperation
and contacts with delegations.  It was envisaged that the regional workshop under the Joint Initiative,
and the conference for Arab countries, would include sessions relating to this topic.  If the WTO heldevents focussed specifically on TRIPS and public health, it would want to call on the help of the
WHO.  The regional workshop was not specifically on this subject but it included a session on health
among many others.  If the WHO was interested in participating and available, the WTO would
discuss it with WIPO and see if it could be accommodated.  Referring to the latest version of the
Coordinated WTO Secretariat Annual Technical Assistance Plan  2002 (documentWT/COMTD/W/95/Rev.2) considered by the Committee on Trade and Development, he said that the
plan responded as far as possible to the requests received, including under the Joint Initiative.  While
it did not at present  include national events for African developing countries, the plan was evolving
so that Members interested in holding other workshops should submit requests.  The Secretariat would
do its best to respond to such requests.  He said that the major resource constraint appeared to be oneof human, not financial, resources.  Responding to Morocco, he said that the conference in Doha for
Arab countries was not undertaken under the Joint Initiative and not limited to LDCs.  Regarding theIP/C/M/35
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criteria used for selecting resource persons in workshops, seminars and other activities, he said that
the WTO used its own personnel as well as recognized outside experts, particularly those from or with
experience in the relevant region.
307. The representative of WIPO said that the issue of public health was of interest to many of
WIPO's member states and that regional workshops and other symposia covered this subject, not only
as a follow up to the Doha Ministerial Conference but also as a matter of public interest.  Regarding
the criteria for selection of resource persons, one key criterion was to have people from the relevant
region or, if that was not possible, individuals who had worked with people from the relevant region.
WIPO was attempting to work closely with the WHO and was increasing cooperation with its
Secretariat.  The Directors-General of WIPO and the WHO had met in the previous months.  They
had discussed coordination and WIPO was awaiting designation of the WHO's focal person.
308. The Council took note of these statements.
O. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
(i) Accessions
309. The Chairperson informed the Council that on 11 December 2001, China had become the
143rd Member of the WTO.  Paragraph 1.2 of its Protocol of Accession (WT/L/432) incorporated a
number of commitments specific to the TRIPS Agreement contained in the Report of the WorkingParty on the Accession of Ch ina (WT/ACC/CHN/49) (paragraphs 252, 256, 259, 263, 265, 270, 275,
284, 286, 288, 291, 292, 296, 299, 302, and 304-305).  These included a confirmation that, upon
accession, China would fully apply the provisions of the TRIPS Agreement (paragraph 305).
310. Continuing, he informed the Council that on 1 January 2002, Chinese Taipei had become the
144
th Member. Paragraph 1.2 of its Protocol of Accession (WT/L/433) incorporated a number of
commitments specific to the TRIPS Agreement contained in the Report of the Working Party on the
Accession of Chinese Taipei (WT/ACC/TPKM/18) (paragraphs 187, 198, 207, 208 and 209).  These
included a commitment that Chinese Taipei would fully apply the provisions of the TRIPS Agreement
by the date of accession, without recourse to any transitional period (paragraph 209).
311. The representative of the European Communities welcomed the new Members and expressed
his delegation's intention to work together with them.
312. The Council took note of this information.
(ii) Dispute Settlement
313. The Chairperson informed the Council that on 23 July 2001, the United States and the
European Communities had notified to the DSB their agreement to resort to arbitration pursuant to
Article 25 of the DSU to determine the level of nullification or impairment of benefits to the EC in
United States – Section 110(5) of the US Copyright Act .  An award of the Arbitrators in this case had
been notified to the DSB and the TRIPS Council on 9 November 2001 (IP/D/16/Add.2) and circulated
in document WT/DS160/ARB25/1.  On 7 January 2002, th e EC had requested the authorization of the
DSB to suspend its obligations under the TRIPS Agreement.  At its meeting on 18 January 2002, the
DSB had agreed that the matter raised by the EC should be referred to arbitration in accordance with
Article 22.6 of the DSU (doc uments WT/DS160/19-21).
314. Continuing, he informed the Council that, at its meeting on 1 February 2002, the DSB had
adopted the Appellate Body report on United States – Section 211 Omnibus Appropriations Act of
1998  (WT/DS176/AB/R) and the Panel report (WT/DS176/R), as modified by the Appellate Body
report.IP/C/M/35
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315. The Council took note of this information.
P. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS
316. At the beginning of the meeting, the Chairper son informed the Council that the Joint United
Nations Programme on HIV/AIDS ("UNAIDS") had requested to be admitted again as observer to the
present meeting of the Council only as far as the discussion under agenda item C (intellectual propertyand public health) was concerned, and to future Council discussions on this subject.  He recalled that
UNAIDS was admitted as observer to the June and September meetings to follow the discussion
under the agenda item Intellectual Property and Access to Medicines.
317. The Council agreed to admit UNAIDS as observer to the discussions on intellectual property
and public health at this and future meetings of the Council.
318. Reverting to this item at its place in the agen da, the Chairperson recalled that the Council
continued to have before it 15 outstanding requests for regular observer status from the 15
Organizations listed in document IP/C/W/52/Rev.9.  He recalled an earlier suggestion by the
Chairperson that the Council might consider, as a first step, accepting the requests from:
(i) Multilateral organizations which already had observer status elsewhere in the WTO,
i.e. the International Plant Genetic Resources Institute (IPGRI);  the Secretariat of the
Convention on Biological Diversity (CBD);   and the United Nations Environment
Program (UNEP);  and
(ii) Organizations running regional industrial property offices, i.e. the African Regional
Industrial Property Office (ARIPO) and the Cooperation Council for the Arab States
of the Gulf (GCC), as they were directly concerned with implementing the TRIPS
Agreement.
319. The representative of the United States said that he could not agree to the Chair's suggestion
for three reasons.  The General Council had not yet established guidelines for the granting of ad hoc
observer status;  some of the candidates for observer status did not have sufficiently broad interest in
the various activities of the TRIPS Council;  and some delegations had sought to draw linkages
between the granting of observer status to various organizations.
320. The representative of Brazil said that it reflected very badly on the whole WTO that the
Council was not able to agree to a matter as simple as granting observer status to the CBD Secretariat.
The Council now had a mandate under paragraph 19 of the Doha Ministerial Declaration to examine
the relationship between the TRIPS Agreement and the CBD, and traditional knowledge and folklore
which created the clearest possible interest in having the CBD Secretariat in the Council.
321. The representative of Peru said that her delegation deeply regretted that the Council was still
not able to take a decision on this matter, and that it had not granted observer status to the CBD
Secretariat.  She suggested informal consultations to find a solution for it as a special case because the
Council had such a clear mandate on the issue.
322. The Chairperson said that he would suggest to his successor that he conduct consultations on
this matter.
323. The Council took note of the statements made.IP/C/M/35
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Q. OTHER BUSINESS
(i) Dates of regular meetings in 2002
324. The Chairperson recalled that the Council, at its informal meeting held on 15 February 2002,
had requested the Secretariat to explore the possibility of reserving an additional day back-to-back
with each of the envisaged regular sessions of the Council for use by the Special Sessions of theCouncil if they should so decide.  These dates for the regular meetings 2002 had been provisionally
set at the Council's previous meeting.  The Secretariat had been able to schedule one additional day
for the Special Sessions after each of the four re gular meetings of the Council in 2002.  However, in
order to avoid a conflict between the Special Session and other negotiating bodies, it had been
necessary to advance the tentative dates for the regular meeting in September by one day.  He
proposed that the Council agree to the following da tes for the next formal meetings of the Council:
- 25-27 June;- 17-19 September; and
- 25-27 November.
325. The Council so agreed.
(ii) Information from WIPO11
326. The Chairperson recalled that, following informal  consultations in the Council, the Secretariat
had been in contact with the International Bureau of WIPO regarding the provision of information on
WIPO's activities of relevance to items on the Council's agenda.  In response, the International Bureau
had prepared a note (document JOB(02)/15), which he invited the representative of WIPO to
introduce.
327. The representative of WIPO thanked the Council for the opportunity to introduce the note.
He spoke about five main areas: geographical indications, traditional knowledge, electronic
commerce, copyright and related rights and biotechnology.
328. The representative of WIPO said that there were three items on WIPO's work programme that
concerned geographical indications . The first was the Standing Committee on the Law of
Trademarks, Industrial Designs and Geographical Indications, which had discussed at its last sessionin December 2001 at length a document prepared by the WIPO Secretariat on the historical
background, the nature of geographical indication rights and existing systems for protection of
geographical indications.  A further session would be held in May 2002 for which the WIPO
Secretariat had been asked to revise the document considered at the previous session and supplement
it with certain other information mainly relating to the definition of geographical indications, the
protection of geographical indications in their country of origin, the protection of geographical
indications abroad, conflicts between geographical indications and trademarks, generic terms andhomonymous geographical indications.  That work was in progress and continuing.  Secondly, WIPO
administered an International Register for Appellations of Origin under the Lisbon Agreement.  The
agreement had a limited geographical membership as only 20 states were party to it, but certain
amendments had been introduced during the previous 12 months, mainly directed toward the
introduction of an electronic register.  Thirdly, WIPO had been asked by its member states to preparea report on the interface between certain identifiers other than trademarks and internet domain names.
One of those other identifiers was geographical indications.  The report on the Second WIPO Internet
Domain Name Process had been considered briefly by WIPO's member states at their annual meeting
                                                     
11 The Council took up this sub-item at the beginning of the meeting.IP/C/M/35
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in September 2001, at which they referred it to special sessions of the Standing Committee on the
Law of Trademarks, Industrial Designs and Geographical Indications.  The first special session
considered the possibility of amending the uniform dispute resolution procedure which applied to
disputes between trademarks and internet domain na mes so as to apply to abusive registrations of
geographical indications.  The views of members of the Standing Committee were divided as to thedesirability of such an amendment.  The matter would be discussed at the second and final special
session of the Standing Committee in May 2002 which will report to the WIPO's member states in
September 2002 on what, if any, action should be taken.
329. The work of WIPO on traditional knowledge  could be divided into two distinct phases.
During the first phase from 1998 to 2000, the WIPO Secretariat had undertaken considerable research
and fact-finding missions to ascertain the needs of custodians of traditional knowledge in the area of
intellectual property.  This had led to the publication of a report (WIPO Publication No. 768)following which WIPO's member states had decided in September 2002 to establish an
intergovernmental committee whose mandate was intellectual property and access to genetic
resources and benefit sharing, traditional knowledge,  and folklore.  The Intergovernmental
Committee had held two sessions and would hold a third in June 2002.  Concerning access to genetic
resources and benefit sharing, the committee had considered a document prepared by the WIPOSecretariat on model contractual clauses and practices for the use of intellectual property as a
mechanism for sharing benefits in respect of inven tions and other intellectual property rights that
might be established on the basis of genetic resources to which access had been given.  That work
continued and the Secretariat was in the process of creating the prototype of a database which would
make this information readily available in an easily  searchable and retrievable form.  That tool would
be of significant value to all countries which had genetic resources.  Concerning traditional
knowledge, work was being carried out on the "defensive" protection of traditional knowledge or the
prevention of the unfair appropriation of intellectual property rights over traditional knowledge by
unauthorized parties.  This involved the question of establishing the prior art that should be
considered with respect to any potential patentable invention, which required adequate reference anddocumentation of traditional knowledge.  In this regard, WIPO was constructing traditional
knowledge digital libraries and other inventories of available traditional knowledge publications for
reference by intellectual property offices in the examination of patent applications.  It was also
necessary to have adequate tools to ascertain or locate traditional knowledge.  The International Patent
Classification Union was working on the establishment of appropriate classification tools to enable
easy access, search and retrieval of traditional knowledge.  Work was also being carried out on the
"positive" protection of traditional knowledge or the potential for it to constitute intellectual property.At the request of its member states, WIPO had prepared a questionnaire and conducted a survey of
existing national legislation on the sui generis  protection of traditional knowledge.  It would publish a
report on the 20 responses received in the following two months.  The Intergovernmental Committee
had also asked the WIPO Secretariat to prepare a document referencing elements of a sui generis
system for the protection of traditional knowledge.  These elements could form model guidelines fornational legislation, but the character of the instrument was not decided.  Concerning folklore, the
WIPO Secretariat had been asked to prepare a que stionnaire and conduct a survey of WIPO member
states to ascertain to what extent the UNESCO/ WIPO 1982 model provisions for national laws on the
protection of folklore had been implemented and, if they had not been implemented, the reasons for
this.  Over 60 countries had replied to that survey and a full report detailing existing national practiceswould be available in the following two months .  The Intergovernmental Committee had encouraged
the WIPO Secretariat to establish close working relations with the CBD and FAO Secretariats.  The
respective secretariats were endeavouring to establish an import/export mechanism whereby questions
relating to intellectual property would be referred by those bodies to WIPO, and matters relating to
biological diversity or food security within the WIPO Intergovernmental Committee would bereferred to those bodies.
330. The main work of WIPO in the area of electronic commerce  concerned internet domain
names.  WIPO provided dispute resolution services under the Uniform Dispute Resolution ProcedureIP/C/M/35
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established to prevent cybersquatting of trademarks.  Up until the end of 2001, WIPO had dealt with
over 5000 cases.  WIPO had already been working on the application of the UDRP not just in the area
of generic top level domain names ("gTLDs") but also  in ccTLDs.  So far, some 23 administrators of
ccTLDs had applied the UDRP.  WIPO was working on the establishment of appropriate dispute
settlement procedures in respect of the introduction of seven new gTLDs.  WIPO was attempting toprovide services to potential domain name applicants or intellectual property right holders which
might be useful in dealing with the interface between trademarks and intellectual property rights.  In
this respect, WIPO had established a portal for online trademark databases of member states and a
database of ccTLDs.  Additionally, the possibility of protecting other forms of intellectual property
rights under the UDRP was under consideration.  Those forms were geographical indications, other
geographical names, personal names, names and acronyms of intergovernmental organizations and
trade names.
331. In the area of copyright and related rights , the two so-called "internet treaties", namely the
WIPO Copyright Treaty ("WCT") and the WIPO Performances and Phonograms Treaty ("WPPT")
had reached the requisite number of 30 ratifications or accessions to bring them into force.  The WCT
would enter into force on 6 March 2002 and the WPPT on 20 May 2002.  Work continued on
adapting the existing regime of copyright and related rights to the digital environment in the area ofaudiovisual performances which had been omitted from the WPPT.  The discussions among member
states were stalled in that area.  Similar work was being undertaken on the rights of broadcasting
organizations within the WIPO Standing Committee on Copyright.
332. The representative of WIPO said that he had already mentioned one area of work on
biotechnology , namely the work on access to genetic resources and benefit sharing in the
Intergovernmental Committee.  More generally, WIPO was monitoring developments in this area.
Specifically, the interface between plant variety rights and patent protection was under discussion.  In
October 2002, WIPO and UPOV would jointly organize a conference on this issue.
333. The representative of Australia said that WIPO's note and presentation demonstrated the
broad range of work being carried out at WIPO that was relevant to a number of the Council's agenda
items.  The information provided by WIPO woul d inform the Council's ongoing discussions. She
suggested that it would be useful for the Council to receive regular updates from WIPO on its
continuing work in relevant areas.
334. The representative of Brazil said that WIPO's presentation had shown the amount of work
conducted in that fora relevant to the Council's work.  WIPO did provide regular updates to the
Council on the progress of its work and he could therefore support Australia's suggestion.  However,
the Council could benefit from inputs from other IGOs as well.  Given that the Council now had amandate to examine the relationship between the TRIPS Agreement and the CBD and the protection
of traditional knowledge, it urgently needed to address the issue of granting observer status to the
CBD Secretariat, which was carrying out work relevant to the Council's work, particularly in its
Working Group on Article 8(j) of the CBD, so that it could make a similar presentation on its
activities of relevance.
335. The representative of Guatemala said it was of the utmost importance to be aware of what
happened in WIPO so as to know fully what intellectual property experts were doing on the issues
under examination in the Council.  The clarification of these issues would help the Council
understand where its work could lead.
336. The Chairperson said that he would ask his su ccessor to follow up on the need for the Council
to get inputs and briefings from time to time from IGOs of relevance to its work.
337. The Council took note of these statements.IP/C/M/35
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R. ELECTION OF CHAIRPERSON
338. The Chairperson said that, at its meeting of 15 February, the General Council had taken note
of the slate of names for the appointment of chairpersons for WTO bodies.  On the basis of the
understanding reached, he proposed that the Council for TRIPS elect H.E. Ambassador Eduardo
Pérez Motta of Mexico as its Chairperson for the coming year by acclamation.
339. The Council so agreed.
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