RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/M/27
14 August 2000
(00-3294)
Council for Trade-Related Aspects
of Intellectual Property Rights
MINUTES OF MEETING
Held in the Centre William Rappard
on 26-29 June 2000
Chairperson:  Ambassador Chak Mun See (Singapore)
Subjects discussed:
A. ELECTION OF THE CHAIRPERSON OF THE COUNCIL FOR TRIPS
B. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS
C. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT
D. REVIEW OF LEGISLATION :
(i) Follow-up to the review of the legislation of the Kyrgyz Republic and Latvia
(ii) Legislation of Belize;  Cyprus;  El Salvador;  Hong Kong, China;  Indonesia;  Israel;
Korea;  Macau, China;  Malta;  Mexico;  Poland;  Singapore and Trinidad and Tobago
(iii) Arrangements for reviews in November 2000 and in the year 2001
E. SECTION 211 OF THE UNITED STATES OMNIBUS CONSOLIDATED AND EMERGENCY
SUPPLEMENTAL APPROPRIATIONS ACT OF 1998
F. IMPLEMENTATION OF ARTICLE 70.8 AND 70.9
G. IMPLEMENTATION OF ARTICLE 66.2
H. TECHNICAL COOPERATION
I. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL
INDICATIONS UNDER ARTICLE 24.2
J. IMPLEMENTATION OF ARTICLE 23.4
K. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
L. REVIEW OF THE IMPLEMENTATION OF THE AGREEMENT UNDER ARTICLE 71.1
M. NON-VIOLATION COMPLAINTS
N. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
O. OTHER BUSINESSIP/C/M/27
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A. E LECTION OF THE CHAIRPERSON OF THE COUNCIL FOR TRIPS
1. The Council elected H.E. Ambassador Chak Mun See of Singapore as its Chairperson for the
year 2000.
B. O BSERVER STATUS FOR INTERGOVERNMENTAL ORGANIZATIONS
2. The Chairperson said that the Council had received a new request from UNEP for observer
status and that there were now 16 outstanding requests from intergovernmental organizations
(IP/C/W/52/Rev.8).  At the previous meeting, the Council had decided to seek further information
from the WHO concerning its application for observer status.  The WHO had responded by means of
a letter dated 11 May 2000.  In the light of the informal consultations he had held on the matter, he
suggested that the Council accept the request of the WHO for observer status and that the Secretariat
be requested to write to UNEP seeking information in accordance with the guidelines for decisions on
the grant of observer status (WT/L/161/Annex 3).
3. The representative of the United States said that she could agree on an ad hoc basis to the
extension of observer status to the WHO, as it had an interest in many of the forms of intellectual
property that were covered by the TRIPS Agreement.  She added that this should be done only on the
express understanding that the WTO would be given reciprocal opportunities to observe meetings ofall functional bodies under the WHO, including those at the regional level, except when those
meetings were limited to members only, so that the WTO would have an equivalent observer status in
the WTO.
4. The Council agreed to accord observer status to the WHO on an ad hoc basis, on the
understanding that the WTO would be given reciprocal opportunities to observe meetings of all
functional bodies under the WHO, including those at the regional level, except when meetings were
limited to Member governments only.  The Council also agreed to proceed regarding the request by
UNEP in the way suggested by the Chairperson.
5. In response to a question from the representative of Canada, the Chairperson  said that on the
basis of ad hoc observer status, as opposed to regular observer status, the WHO could attend meetings
of the TRIPS Council until the Council decided otherwise.
6. The Chairperson asked Members to indicate whether they would be ready to grant observer
status to the 14 other intergovernmental organizations whose requests were pending.
7. The representative of the United States said that she could not agree to accord observer status
to these organizations until the General Council had completed guidelines for granting observer status
to subsidiary bodies;  that is why she had agreed to accept the WHO on an ad hoc basis.
8. The representative of India proposed that the Council accord ad hoc observer status to the
Secretariat of the Convention on Biological Diversity (CBD).  He said that the Secretariat of the CBD
would benefit from following the discussions at th e TRIPS Council.  He referred to a CBD working
group examining the relationship be tween the CBD and the TRIPS Agreement, a topic that had also
been raised by several delegations present at the TRIPS Council.  This proposal was supported by the
representatives of the Brazil, Cuba , the European Communities,  Kenya , Peru , Turkey , and Venezuela .
9. The representative of the United States said that the broad spectrum of interest in various
aspects of the TRIPS Agreement in the WHO could not be attributed to the discussions in the context
of the CBD, and that it would not be appropriate to  grant the Secretariat of the CBD ad hoc observer
status to the TRIPS Council.IP/C/M/27
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10. The Council agreed to revert to the proposal to accord ad hoc observer status to the CBD
Secretariat as well as to the 14 other pending requests at its next meeting.
C. N OTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT
(i) Notifications under Article 63.2
11. The Chairperson said that since the last meetin g, amendments to legislation notified earlier
had been received from Sweden, Spain, Japan and Bu lgaria, which would be circulated in the IP/N/1/-
series of documents as soon as possible.
12. The Chairperson drew attention to a communication from Madagascar which had been
circulated in document IP/C/W/170.  This communi cation concerned the application of Article 27.1 of
the TRIPS Agreement, the availability of patent protection without discrimination as to the field of
technology of inventions, and the applicable 20 year term of protection.  It also provided information
on problems encountered in the implementation of the TRIPS Agreement.
13. Referring to the Members subject to a review of their implementing legislation in the years
2000 and 20011, the representatives of the United States and the European Communities  thanked
those delegations that had already submitted their notifications.  They also expressed concerns as tothe delays in the notification of legislation by most of these Members subject to review in November
2000 and in the year 2001, and called for the Chairperson's good offices to encourage the Members inquestion to notify their legislation in a timely manner.
14. The representative of Bulgaria said that new legislation in the area of industrial property,
copyright and related rights had been notified by his delegation.  Three new laws dedicated to the
protection of industrial property had been adopte d by Parliament in September 1999:  the Law on
Marks and Geographical Indications, the Law on Industrial Designs and the Law on Topographies ofIntegrated Circuits.  These laws fully corresponded with the relevant provisions of the TRIPS
Agreement and provided for effective action against an y infringement of exclusive rights.  With their
entry into force on 14 December on 1999, the Law on Trademarks and Industrial Designs of 1968 had
been repealed.  He said that a law supplementing and amending the Law on Copyright and
Neighbouring Rights of 1993 had entered into force on 6 May 2000.  The law incorporated theprovisions of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty of
1996, although Bulgaria had not yet acceded to these treaties.  The law also provided for an extended
term of protection of copyright (70 years from the beginning of the year following the death of the
author) and the introduction of new categories of related rights, as well as security measures in
relation to civil claims for violation of copyright or related  rights in accordance with the provisions of
Article 50 of the TRIPS Agreement.  The amended law ensured more effective protection for authors
of computer programs.  New corpus delicti  of administrative violation was envisaged in respect of
illegal use of computer software, damage or destru ction of technological (coding) means, and removal
or modification of information presented in an electronic way that concerned the rights.  The
amendments and supplements introduced guaranteed not only compliance with the provisions of the
TRIPS Agreement, but furthermore provided for a higher level of protection.  He added that an
important element was the inclusion of sections in the above laws envisaging the implementation ofborder measures in respect of import and export of goods infringing intellectual property rights.  The
new provisions were in compliance with the requir ements of Articles 51-60 of the TRIPS Agreement.
All recent changes were aimed at establishing a modern and adequate national legislation in the field
of intellectual property rights protection, supplemented by effective and appropriate means for the
enforcement of those rights.
                                                     
1 Details on the notifications by the Members subject to review in the years 2000 and 2001 can be
found in paragraphs 32 and 38 under agenda item D, Review of Legislation.IP/C/M/27
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15. The Council took note of the statements made.
(ii) Notifications under Articles 1.3 and 3.1
16. The Chairperson said that a notification received from Zambia had been circulated in the
IP/N/2/- series of documents.
(iii) Notifications under Article 69
17. The Chairperson said that, since the last meet ing, modifications to contact points notified
earlier under Article 69 of the Agreement had been received from Trinidad and Tobago, Zambia and
Bolivia.  The Secretariat had recently circulated an updated list of contact points in document
IP/N/3/Rev.4.
D. R EVIEW OF LEGISLATION
(i) Follow-up to the review of the legislation of the Kyrgyz Republic and Latvia
18. The Chairperson said that responses from the Kyrgyz Republic and Latvia to outstanding
questions posed by the European Communities had been received and distributed in the documents in
which the records of the reviews of these Members' legislation had been distributed.2
19. The representative of the United States referred to Latvia's response to the first follow-up
question his delegation had posed to it, in which the Government of Latvia had volunteered to provide
further information regarding the cases referred to in that question. He said that he would appreciatereceiving further information about all cases, in particular an explanation of the rationale under
Latvia's laws cited in the question for the decisions reached at each stage of these cases.
20. The representative of Latvia said that her delegation would provide this information in
writing.
21. The representative of the European Communities said that his delegation was still analyzing
the responses his delegation had received to its questions, and reserved the right to revert to them.
22. The Council took note of the statements made.
(ii) Legislation of Belize;  Cyprus;  El Salvador;  Hong Kong, China;  Indonesia;  Israel;
Korea;  Macau, China;  Malta;  Mexico;  Poland;  Singapore and Trinidad and
Tobago
23. Turning to the review of the legislation of those Members scheduled to be reviewed at the
present meeting, the Chairperson informed the Council that the thirteen Members under review had all
provided complete notifications of their implementing legislation prior to the meeting, as well asresponses to the Checklist of Issues on Enforcement, as set out in the note by the Secretariat
(JOB(00)/3788) circulated on 20 June 2000.  In addition, a correction of some responses to the
Checklist of Issues on Enforcement received from Korea had been circulated in document
IP/N/6/KOR/1/Corr.1.  Responses to the Checklist of Issues of Enforcement regarding industrial
property received from Poland had been circ ulated in document IP/N/6/POL/1/Add.1.
24. The Chairperson said that these Members had received questions from Australia, Canada, the
European Communities and their member States, Japan, Switzerland and the United States, which had
been circulated in documents IP/C/W/171 through 174, 177 and 184 and addenda.  Some of these
                                                     
2 See documents IP/Q/KGZ/1/Add.1 and IP/Q/LVA/1/Add.1.IP/C/M/27
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questions had been posed two weeks or less before the meeting.  The thirteen Members had provided
responses to most or all of the questions posed prior to the meeting, which had been circulated in
documents IP/C/W/176, 179 to 183, 185 to 188, 190, 192 and 193 and addenda. Thanks to their
diligence in submitting their notifications and responses, the delegations in question had greatly
assisted in ensuring a smooth running of this review .  He recalled that the Council had agreed at its
last meeting to take up the review of the legislation of Trinidad and Tobago first, and then the
legislation of the other twelve Members in alphabetical order.  In accordance with the procedures for
the reviews of legislation, he asked each of the delegations whose legislation was under review to
provide a brief introductory overview of the structure of its legislation in the areas covered by the
Agreement (or, in the case of Poland, of the structure of its legislation in the areas under review) and
of the changes, if any, that it had had to bring a bout in order to make the legislation compatible with
the TRIPS Agreement.
25. During the review, the representative of Japan expressed his appreciation for the efforts of the
delegation of Hong Kong, China to adapt and notify its legislation which went far beyond its
obligations under the TRIPS Agreement.  It had notified its legislation not only on paper but also on
CD-ROM with a search function.  CD-ROM notification increased the accessibility of the relevant
laws and regulations, with the assistance of the search function.  This not only contributed to reducingthe workload in the review process but also information dissemination to the general public.  In view
of the thorough responses of Hong Kong, China to questions it had posed, Japan had no follow-up
questions at present.  The representative of the European Communities also complimented the
delegation of Hong Kong, China on the way that it had prepared its notification.
26. During the meeting, some Members posed additional and follow-up questions, and the
thirteen Members under review provided responses to many of these when the Council reverted to this
agenda sub-item later in the meeting.  After the presentation of these responses to follow-up
questions, the Chairperson suggested the following arrangements for the subsequent follow-up:
- that the texts of any further follow-up questions be submitted to the country
concerned and the Secretariat by the end of July;  and
- that a target date of 15 September 2000 be set for the submission by the countries
under review of responses to follow-up questions to which they had not yet replied,
fine-tuned versions of responses to questions to which they had given preliminary
replies and, to the extent possible, responses to any further follow-up questions that
would be made available before the end of July.
27. The Council so agreed.
28. The record of the introductory statements made by the delegations, the questions put to them
and the responses given (including certain written responses to follow-up questions given after the
meeting) will be circulated in the foll owing documents with the following symbols:
Belize IP/Q/BLZ/1; IP/Q2/BLZ/1; IP/Q3/BLZ/1; IP/Q4/BLZ/1;
Cyprus IP/Q/CYP/1; IP/Q2/CYP/1; IP/Q3/CYP/1; IP/Q4/CYP/1;
El Salvador IP/Q/SLV/1; IP/Q2/SLV/1; IP/Q3/SLV/1; IP/Q4/SLV/1;
Hong Kong, China IP/Q/HKG/1; IP/Q2/ HKG/1; IP/Q3/HKG/ 1; IP/Q4/HKG/1;
Indonesia IP/Q/IDN/1; IP/Q2/IDN/ 1; IP/Q3/IDN/1;  IP/Q4/IDN/1;
Israel IP/Q/ISR/1; IP/Q2/ISR/1; IP/Q3/ISR/1; IP/Q4/ISR/1;Korea IP/Q/KOR/1; IP/Q2/KOR/1; IP/Q3/KOR/1; IP/Q4/KOR/1;
Macau, China IP/Q/MAC/1; IP/Q2/MAC/1; IP/Q3/MAC/1; IP/Q4/MAC/1;
Malta IP/Q/MLT/1; IP/Q2/MLT/1;  IP/Q3/MLT/1; IP/Q4/MLT/1;
Mexico IP/Q/MEX/1; IP/Q2/MEX/1; IP/Q3/MEX/1; IP/Q4/MEX/1;
Poland IP/Q/POL/1/Add.1; IP/Q 2/POL/1; IP/Q3/POL/1/Add.2;IP/C/M/27
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IP/Q4/POL/1/Add.1;
Singapore IP/Q/SGP/1; IP/Q2/SGP/1; IP/Q3/SGP/1; IP/Q4/SGP/1;
Trinidad and Tobago IP/Q/TTO/1; IP/Q2/TTO/1; IP/Q3/TTO/1; IP/Q4/TTO/1.
29. The Chairperson thanked all thirteen delegations under review for their readiness to respond
to the original questions and to follow-up questions, even during the meeting.  In his opinion, the
review had been very smooth and efficient with a high comfort level for delegations.  It was an
example for the Council to follow in future reviews.
30. At the conclusion of the review, the representative of Australia thanked all thirteen Members
under review for their constructive approach and in particular those Members, especially Korea and
Singapore, which had responded to follow-up questions posed by Australia in a very timely manner.
Australia expressed its appreciation to those Members which had volunteered for a review of theirlegislation at an early stage.  Preparing for the notification and review procedures was a complex task,
as Australia had found in compiling its informal survey which it had circulated as technical assistance
for developing countries.  Most questions in this review had been circulated subsequent to the agreed
deadline allowing little time for preparation of responses.  Those Members under review had also had
the challenging task of responding to questions on all aspects of their intellectual property systemsembracing all substantive areas of intellectual property law as well as enforcement.  Despite these
constraints, a great deal of useful material had been documented and reviewed in the Council, which
had substantially advanced Members' collective understanding of the TRIPS Agreement and the
various approaches taken in its implementation at the national level.
31. The representative of the European Communitie s congratulated the thirteen Members which
had volunteered for the review exercise at the present meeting for the efforts they had undertaken and
for the early replies which had been provided in particular to the questions posed by his delegation.
He looked forward to replies to the follow-up questions posed by his delegation.
(iii) Arrangements for reviews in November 2000 and in the year  2001
32. Turning to the reviews in November 2000, the Chairperson recalled that fourteen Members
would have their legislation reviewed at the meeting scheduled for the week of 27 November to
1 December 2000. The status of notifications of laws and regulations by these Members was set out in
the note by the Secretariat (JOB(00)/3788) circulated on 20 June 2000.  He drew attention to the fact
that notifications had been received from only seven of these fourteen Members, at least two of which
were incomplete, and that responses to the Checklist of Issues on Enforcement had been received
from just three of them.  He urged these Members to make their notifications without delay and to
provide their responses to the Checklist of Issues on Enforcement well in advance of the Novembermeeting.
33. Continuing, he proposed that, in accordance with the agreed procedures for these reviews,
questions for the fourteen Members to be reviewed  in November 2000 should be sent in ten weeks
before the meeting, that is by 18 September, and the countries concerned should submit their answers
in writing to those questions by 30 October.  He recalled that it had been agreed at the last meetingthat, at the meeting in November, the legislation of St. Lucia would be taken up first, with the other
Members being taken up in alphabetical order after St. Lucia.
34. The Council so agreed.
35. Turning to the reviews in 2001, the Chairperson recalled that there were forty-two developing
country Members whose legislation had yet to be reviewed, to which should be added two newly-
acceded Members, Jordan and Georgia, making a total of forty-four Members.  The Council had
envisaged that the reviews of these Members would be conducted at three meetings:  the first in
February/March, the second in June/July and the third in November.  Referring to a draft schedule ofIP/C/M/27
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Members to be reviewed at these meetings, which he had made available following the informal
consultations he had held on the matter, he said that some delegations had conveyed difficulties with
this schedule.  If agreeable to Members, he would try to accommodate those delegations where they
had genuine difficulties and circulate a revised schedule prior to the next meeting.
36. The representative of Brazil said that, while Brazil had made a complete notification of its
legislation in January 2000 and had been ready for a complete review, developments on the bilateral
level had prompted his delegation to reflect further on the exercise and Brazil could therefore not
agree, at this stage, to a review of its legislation as proposed in the draft schedule.
37. The Council took note of this statement and agreed  to proceed as proposed by the
Chairperson.
38. The Chairperson said that the status of notifications of laws and regulations by these
Members was set out in the note by the Secretariat (JOB(00)/3788) circulated on 20 June 2000.  He
drew attention to the fact that notifications had been received from only six of these forty-four
Members, and that responses to the Checklist of Issues on Enforcement had been received from just
one of them.  He urged these Members to make their notifications without delay and to provide their
responses to the Checklist of Issues on Enforcemen t well in advance of the meeting at which their
legislation would be reviewed.  He said that, under the procedures adopted by the Council pursuant toArticle 63.2, implementing legislation should be notified within 30 days of the expiry of the relevant
transition period.
39. As suggested by the Chairperson, the Council agreed to urge these Members to make their
notifications without delay.
E. S ECTION 211 OF THE UNITED STATES OMNIBUS CONSOLIDATED AND EMERGENCY
SUPPLEMENTAL APPROPRIATIONS ACT OF 1998
40. The Chairperson recalled that additional information had been received from the United
States just prior to the last meeting.  Since then, this information had been circulated in document
IP/C/W/139/Add.1.
41. The representative of Cuba said that, on 27 June 2000, the Mission of Cuba had received from
the Mission of the United States a copy of an application for appeal by the companies Havana Club
Holding S.A. and Havana Club International S.A.  against Bacardi & Company Limited and Bacardi-
Martini USA Inc.  As in the case of the previous meeting of the Council for TRIPS, this information
had been received at the last minute.  He stated that this information in no way satisfied his request
concerning the compatibility of Section 211 of the United States Omnibus Consolidated and
Emergency Supplemental Appropriations Act of 1998 with the TRIPS Agreement.  Consequently, he
reiterated his delegation's view that the United States had not complied with the request forinformation made by Cuba at the Council meeting of December 1998 in accordance with Article 63.3
of the TRIPS Agreement.
42. Continuing, he said that Section 211 was among the provisions which, in spite of growing
international disapproval, had been issued by the Un ited States legislature to intensify that country's
economic, commercial and financial blockade against Cuba, and this intellectual property legislationmerely added to the enormous list of legal and other instruments used by the United States
Government to exercise political pressure against his country.  It was not enough at this point merely
to conduct a technical analysis of the subject in  isolation, de-linking it from the whole series of
measures used to set up, against Cuba, a blockade whose clear purpose was to bring his country to its
knees through disease and starvation.  Indeed, to fail to discuss in any depth the harmful effects onCuba and on the entire multilateral trading system of this genocidal policy would be to relegate to the
sidelines certain elements which were fundamental to Cuba.  Quite apart from the technical violationsIP/C/M/27
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of the TRIPS Agreement and the underlying principles of the multilateral trading system contained in
Section 211, in the particular case of Cuba this Section cast doubt on the actual exercise of Cuba's
sovereign rights.  Accordingly, his delegation reserved the right to take appropriate action when he
considered that the circumstances so warranted.
43. The representative of the European Communities said that his delegation had expressed at the
past Council meetings its concerns about the compatibility of Section 211 with a number of provisions
of the TRIPS Agreement.  Consultations with the United States delegation had not led to a settlement.
Therefore, his delegation would shortly request the establishment of a panel to examine the matter.
44. The Council took note of the statements made.
F. I MPLEMENTATION OF ARTICLE 70.8 AND 70.9
45. The Chairperson informed the Council that a notification had been received from Egypt
concerning its implementation of Article 70.9, which had been circulated in document
IP/N/1/EGY/1/Add.1.
G. I MPLEMENTATION OF ARTICLE 66.2
46. The Chairperson recalled that, in response to the Council's invitation to developed country
Members to supply information on how Article 66.2 of the TRIPS Agreement was being
implemented, information had been provided in writing by Australia, Japan, the EuropeanCommunities and twelve of their member States, New Zealand, Switzerland and the United States
(document IP/C/W/132, addenda and supplements).  Information had also been provided orally during
the discussion of this agenda item at Council meetings since December 1998.  The Council had
requested the Secretariat, at its last meeting, to prepare a short note setting out the types of incentive
measures that had been notified, with cross references to where further details could be found.  TheSecretariat had circulated this note in document IP/C/W/169.
47. The representative of Norway said that his delegation would provide a written contribution
prior to the next meeting of the Council.
48. The representative of the Philippines said that much of the technical assistance detailed in the
developed country Members' submissions did not necessarily comply with the specific requirements
of Article 66.2.  However, this did not diminish his gratitude as a representative of a developing
country for whatever technical assistance these Members might have extended to least-developed
countries.
49. The representative of Zambia made a statement, the text of which is being distributed in full
in document IP/C/W/199.  It addressed, first, the implementation of the provisions under Article 66.2
and, second, situated the issue in the broader context of the transfer of technology to developing
countries.  By way of introduction, he emphasized that the underlying public policy objectives ofintellectual property systems and the special needs of least developed countries, as recognized in the
TRIPS Agreement, were more than ever importa nt given the increasing role of technology in
development and trade.  Therefore, the effective implementation of Article 66.2 was important and
urgent.  While thanking the Secretariat for groupin g the incentives mentioned in the answers provided
by developed countries, he was not sure how these related to the obligation to fulfil the requirementsof Article 66.2.  How did the answers fit into the multilateral format?  Most of the answers were based
on bilateral initiatives taken before the TRIPS Agreement had come into existence.  He wondered
whether the Council should not be provided with a list  of incentives to enterprises and institutions that
were potential technology providers;  be informed which LDCs, if any, had enjoyed these benefits so
far;  whether MFN applied and, if so, how exactly it applied and what implications this had foranswers that talked about initiatives focusing  on one region and ignoring others.  The answersIP/C/M/27
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provided did not target LDCs because they included all countries.  His delegation also wondered what
was the nature of and money involved in the incentives listed.  Was this what had been the envisaged
form that implementation would take when the Agreement had been signed?  For all these reasons, his
delegation called upon the Council for TRIPS to make a more critical assessment of the answers
provided by developed country Members, so that the many questions could be clarified to thesatisfaction of his delegation.
50. Turning to his second point, the representative of Zambia said that he wished to put the issue
of implementation into the broader context of the tr ansfer of technology with a view to strengthening
the capacity of developing countries.  He referred to the different ways in which technology could be
transferred, underlining the importance for development of the transfer of capacity as opposed to
hardware.  He referred to the provisions on technological capacity building also contained in a
number of other WTO agreements, including those on SPS, GATS, TRIMs and TBT.  Whileappreciating the lack of legal enforceability of  these provisions, his delegation was still hopeful that
political will and moral obligation among the developed country trading partners would prevail and,
therefore, wished to put technology transfer at the centre of WTO  activities.  He referred to the array
of domestic and international actions that were needed to meet these challenges, including human
resource development, strengthening of policy and legal frameworks and the competitiveenvironment, establishment of science and technology institutes and infrastructure, encouragement of
business support service, and home country measures that encouraged the transfer of technology.
This was why other organizations such as UNCT AD, in particular following UNCTAD X, should be
involved in the achievement of  the objectives set in the TRIPS Agreement.  He reiterated that the
main message that he wished to put across was that the ultimate objective of  the implementation
exercise in the WTO was to strengthen the supply capacity of developing countries, especially LDCs,
by creating a sound technological base.  It was in this context that his delegation had presented a
proposal in the Committee on Trade and Development, WT/COMTD/W/67.
3  The gist of the proposal
was to kick-start the process of implementation of the provisions relating to technology transfer to
developing countries, particularly LDCs.  Whil e technical assistance would remain important in
improving supply capacity, it was not a substitute for technology-content products that were essential
for these economies to compete.  Technology-content was the dynamo and only hope for integrating
LDCs into the world trading system.  His delegation's proposal was about starting  that process.  I n
this context, he supported strongly the suggestion by Norway at the last CTD meeting that the
international organizations listed in his delegation's proposal, namely UNCTAD, WIPO, UNIDO, the
World Bank and indeed any other organization compet ent in this area of work, be invited to provide
information on their work in this area of technology.
51. The representative of the United States said that his delegation would endeavour to review the
questions raised by the delegation of Zambia and see how his delegation could provide clarifications
concerning its submission.
52. Supporting Zambia's remarks, the representative of Kenya said that in his delegation's view
the information on the implementation of Article 66.2 was not satisfactory.  Much of the information
related to technical assistance that had been made available already before the establishment of the
WTO.  Obviously, the scope of Article 66.2 needed to be clarified.
53. The representative of the European Communities said that the issue of transfer of technology
was most important and that his delegation would study carefully the text of Zambia's intervention
and come back to the issue when appropriate.
                                                     
3 At the request of the delegation of Zambia, this document has also been circulated to Members of the
Council for TRIPS in document IP/C/W/199.IP/C/M/27
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54. The representative of Australia said that her delegation while appreciating Zambia's
intervention, would come back to Zambia's remarks after having studied them in detail.  Turning to
the Secretariat compilation, she said that this document highlighted the wide ranging and resourceful
ways through which Members had provided incentives for technology transfer to least-developed
countries.  In line with Article 1.1 of the TRI PS Agreement, Members had given effect to their
obligations in different ways reflecting the need fo r a flexible and workable approach to technology
transfer.  Referring to a paper by Korea circulated as document WT/WGTI/W/82 in the Working
Group on the Relationship between Trade and Investment, which drew on Korea's noteworthy
experience in transfer of technology, she said that this document broadly supported Australia's
position on Article 66.2 and quoted the conclusion of the Korean paper that "[d]omestic policies
designed to improve the technology-related investme nt environment are important to attract FDI and
enhance a country’s ability to absorb new technologies.  However, such policies must fall short ofimposing technology transfer requirements on foreig n investors.  The main problem with mandatory
requirements is that they are not conducive to transfers of the best technologies or technologies that
are needed.  Indeed, foreign investors subject to these requirements will often prefer to transfer low-
level technologies which may not be necessarily what the host economy needs.  […]  Korea’s
experience has proven that a free-hand approach is better than imposing technology transferrequirements […].  Such free-hand approach […] must be supplemented by the host economy’s effort
[…] to improve its investment environment […]."
55. The representative of India encouraged Members to take a closer look at the issues raised by
Zambia.  Referring to Australia's statement, he said that he had a slightly different view as to what
was the best context for transfer of technology.  While it was true that the domestic environment wasimportant in attracting transfer of technology, leav ing everything to market forces might not lead to
best results.  As regards Korea, while it had now reached a level in its development where
intervention was no longer necessary, at an earlier stage the state had intervened heavily in Korea.
56. The representative of the Philippines, in genera l terms agreeing with Zambia, wished to recall
that Article 66.2 was a mandatory provision.
57. The representative of Egypt said that the questions raised by Zambia deserved examination by
the Council.
58. The Council took note of the statements made and agreed to revert to the matter at its next
meeting.
H. T ECHNICAL COOPERATION
59. The representative of the European Communitie s said that the EC and their member States
and the Asia-Europe Meeting ("ASEM") countries had recently held a seminar in Thailand for the
purposes of reviewing recent developments in the EC and their member States and TRIPS
implementation in the ASEM countries.  A similar meeting had been organized between the EC and
their member States and the ASEAN countries.  He looked forward to continuing cooperation with
both groups of countries.  In his view, it was importa nt that the International Bureau of WIPO and the
WTO Secretariat would continue to cooperate in providing assistance to developing countries thatwere under an obligation to implement the TRIPS Agreement since 1 January 2000;  he was interested
in information on the cooperation during the first half of the year 2000.  Attention should also be paid
to the provision of adequate assistance to least-developed countries to meet their obligations by
1 January 2006.IP/C/M/27
Page 11
60. The representative of Australia drew attention to a Joint Statement on the WTO TRIPS
Agreement Implementation made at a meeting of APEC ministers responsible for trade held in
Darwin, Australia on 6-7 June 2000.4  The Statement acknowledged the considerable progress that
had been made in the development and strengthening of intellectual property administrations and
enforcement systems in line with the TRIPS standa rds.  It reaffirmed the commitment for the APEC
economies to continue technical cooperation to bring about a full and sustained TRIPS
implementation in a way compatible with the objec tives of the Agreement.  It reaffirmed the
collective commitment to ensure that the necessary sk ills would be developed to enable the realization
of the potential economic and social benefits of intellectual property rights in all APEC economies.
And finally, it resolved on greater cooperation wi thin the APEC region on the planning, development
and delivery of public education programmes concerning intellectual property.
61. The representative of Hong Kong, China expressed his delegation's interest in the subject of
technical assistance, in particular in the last of  the areas mentioned by the representative of the
European Communities.  Having benefitted from generous technical assistance from Members and
international organizations in preparing for its implementation of the Agreement, he wished to express
his delegation's gratitude for the assistance it had received from the Australian Patent Office, the
United Kingdom Patent Office as well as the European Patent Office.  He was interested in exploring,in the near future, what scope existed for assistance by industrial and developing economy Members
who had already been through the notification and review procedures to those Members who had yet
to go through this process, complementary to what was already available from Members of the TRIPS
Council and WIPO, specifically in the preparation of the notification of national laws pursuant to
Article 63.2 of the TRIPS Agreement and of the subsequent review process.
62. The representative of Japan, referring to Australia's intervention concerning the APEC Joint
Statement on the WTO TRIPS Agreement Implementation, wished to stress, first, the commitment of
the WTO APEC Members to full implementation of the TRIPS Agreement as well as their
commitment to continued technical cooperation necessary not only to bring about full TRIPS
implementation but also sustained implementation of the Agreement.  Much effort would be needed tokeep the national IP systems in good operation.  In this sense, technical cooperation should be a
continuing process.  He also wished to underline that the Statement noted that technical cooperation
should be conducted in a manner corresponding to the objectives of the TRIPS Agreement as set out
in its Article 7, namely that the protection and enforcement of intellectual property should contribute
to the promotion of technological innovation and technology transfer, thus providing important
guidance to APEC members for conducting technical cooperation.
63. The representative of Kenya thanked the International Bureau of WIPO and the WTO
Secretariat for the assistance they had given to Kenya, in particular in the areas of legislation, training
and human resource development, as well the United States Government for its assistance, in
particular on customs and enforcement issues.  He encouraged developed country Members to extend
their assistance to other developing and least-developed African countries in order to facilitate their
compliance with the TRIPS Agreement.
64. The representative of Singapore supported the statements made by the representatives of
Australia and Japan concerning the work in APEC on technical cooperation in regard to TRIPS
implementation within the 21 APEC members.  As the Chairperson of the ASEAN Working Group on
Intellectual Property Cooperation, he informed the C ouncil that also ASEAN was looking at the level
of progress in TRIPS implementation and technical assistance in relation to sharing information on
legislation, seminars and other activities aimed at helping members to develop their legislation.
                                                     
4 This statement was subsequently distributed as document IP/C/W/197.IP/C/M/27
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65. The representative of the Secretariat said that cooperation between the WTO and WIPO
Secretariats on technical cooperation continued very actively based on the 1995 cooperation
agreement between the Organizations.  As in previous years, the Secretariat would be pleased to
provide a full report on its technical cooperation activities for the Council's September meeting if so
requested.
66. In regard to the arrangements for the annual re view that the Council traditionally took up at
its first meeting in the autumn, the Chairpers on suggested that the Council once more invite
developed country Members to supply information on their activities pursuant to Article 67 of the
TRIPS Agreement.  Other Members who also made available technical cooperation might be
encouraged to share information on these activities if they so wished.  The Council might also invite
once more those intergovernmental organizations that had observer status in the TRIPS Council as
well as the WTO Secretariat to provide information on their technical cooperation activities ofrelevance.  The Council might request that information be made available by the end of August.
67. The Council so agreed while taking note
 of the statements made.
I. R EVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL
INDICATIONS UNDER ARTICLE 24.2
68. The Chairperson informed the Council that answ ers to the Checklist (IP/C/13 and Add.1) had
been received from Greece, Ireland and Luxembourg.  These would be circulated as soon as possible
in document IP/C/W/117/Add.10/Suppl.2.  The question s received from the United States addressed
to the European Communities and their member States, of which the Council had been informed at the
last meeting, had been circulated in document IP/C/W/168.  He had no progress to report from his
informal consultations on the issue of the review under Article 24.2, except that they should continue.
69. The representative of Bulgaria expressed his delegation's profound concern with the attitudes
adopted by some Members at the previous Council meeting to the negotiations mandated under the
TRIPS Agreement and in particular to the extension of the additional protection for geographical
indications under Article 23 to products other than wines and spirits.  These Members were of the
opinion that there was no specific mandate for negotiations on the extension of the additionalprotection for geographical indications to products other than wines and spirits and that the Council
should therefore concentrate on other issues which in their view were covered by the mandate.  In his
delegation's view, this was an attempt to limit the mandate for the negotiations foreseen in Article
24.1 of the TRIPS Agreement.  Article 24.1 stated that "Members agree to enter into negotiations
aimed at increasing the protection of individual geographical indications under Article 23".  Legally
speaking, these negotiations were as mandated as were those under Article 20 of the Agreement on
Agriculture or under Article XIX of the GATS.  The negotiations under Article 24.1 of the TRIPSAgreement were as "paid for" as the negotiations in agriculture or in services.  The formulation of the
first sentence of Article 24.1 was broad enough to cover negotiations on the extension of the
additional protection of geographical indications to products other than wines and spirits.  There was
nothing in this mandate that would exclude the ex tension of the additional protection of geographical
indications to products other than wines and spirits from the scope of the negotiations or limit them toother specific issues, mentioned in Articles 23 or 24.  Therefore, the interpretation by some Members
to artificially narrow the meaning of Article 24.1 and to exclude from the mandate the extension of
the additional protection of geographical indications to products other than wines and spirits was
legally unjustified.  It was an unacceptable attempt to limit at the very outset the scope of the
negotiations which had been "paid for" long ago.  The negotiations had been "paid for" by means ofthe existing broad formulation of Article 24.1 and not by means of any specific reference to any
specific issue mentioned elsewhere in the Agreemen t.  Therefore, the extension of the additional
protection of geographical indications to products other than wines and spirits was not just a matter
related to the establishment of a multilateral system of notification and registration of geographical
indications, but a matter for negotiation in its own right in which many Members were interested.IP/C/M/27
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From the point of view of logic there was no convincing reason why certain products - in which
certain Members had an interest - should enjoy an additional protection for their geographical
indications and others - in which other Members were interested - should not.  And there was no
convincing reason why certain intellectual property rights - in which certain Members had an interest
- should be strongly protected - and others - in which other Members were interested - should not.
From the point of view of the coherence and credibility of the multilateral trading system, it was
important that the negotiations on the extension of the additional protection of geographical
indications to products other than wines and spirits be conducted successfully and lead to meaningful
results.  The adoption of a tactic of blocking, at the outset, the negotiations on the extension of the
additional protection of geographical indications to products other than wines and spirits with the
argument that a broad formulation of the scope of the mandate for negotiations did not cover one
specific aspect, in which many countries were interested, only because it was not specificallymentioned, could have far reaching and dangerous consequences.  It would mean that any negotiating
proposal could be rejected a priori with the argument that there was no specific mandate for it.  Such
an approach was far from constructive and, if it was adopted by some countries in one area, there
would be no obstacle to use it in other areas, e.g. in  the negotiations on agriculture or services.  The
mandated negotiations on TRIPS constituted a package, which was part of the broader packageincluding agriculture and services.  His delegation was deeply disappointed with the lack of progress
for so many years on the issue of an extension of the additional protection of geographical indications
to products other than wines and spirits and wished to point out that progress in the negotiations on
this issue would no doubt influence its position on any further steps to be undertaken in the course of
negotiations in the areas not only of TRIPS but also of agriculture and services.  It would alsoinfluence its readiness to undertake any commitments in these areas.  At the same time, the question
of the extension of the additional protection of geographical indications to products other than wines
and spirits as part of the mandated negotiations provided for in Article 24.1 of the TRIPS Agreement
was a matter of implementation of the existing agreements and should therefore be discussed in the
framework of the already initiated process on implementation in the General Council.  Article 24.1should be on the future agendas of the TRIPS Council.  Under this agenda item, proposals could be
made and it would be most counterproductive if particular proposals made would meet preliminary
objections that they might not fall within the mandate of Article 24.1.  They would result in similar
approaches in other negotiations, including those on agriculture.  Any proposals made should be
discussed and, if necessary, a time-limit might be agreed for the submission of proposals, as had been
agreed in the negotiations on agriculture.
70. The representative of India, requested the Secretariat to circulate two Indian papers presented
to the General Council (documents WT/GC/W/147 and 225) as TRIPS Council documents.  He then
suggested that the agenda item from now on be called "Work under Article 24", since delegations had
been raising issues related to Article 24.1 as well.  Reiterating his delegation's position on the issue of
the extension of the higher level of protection for geographical indications under Article 23 to other
products than wines and spirits, he said that the first sentence of Article 24.1 and the provisions ofArticle 24.2 provided a mandate for negotiations for such an extension.  The Council had recognized
this in its 1996 Annual Report allowing input from  Members on scope in the form of proposals.  He
also pointed out that the information provided by Members in their responses to the Checklist
(IP/C/13 and Add.1) showed that their national practi ces seldom created distinctions between products
and that the practices in respect of wines and othe r food products were almost always the same.  He
also expressed the view that the negotiations mandated under Article 24.1 and 24.2 on the one hand,
and those under Article 23.4 on the other, could not be looked at separately;  they should progress in
parallel and, in any event, no consensus would be possible on results in one without there being a
consensus on results in the other.  The time had come for delegations to inform each other of their
trade interests that were affected and try to accommodate each other's interests as reflected inproposals made without prejudice to their positions on Articles 23 and 24.IP/C/M/27
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71. The representative of Australia recognized the dissatisfaction of some Members with the
protection of their geographical indications in some or all export markets.  This was a reflection of the
fact that the regime for geographical indication protection provided for by the TRIPS Agreement was
not global, but rather based on individual, national -level systems.  Her delegation believed that the
WTO Membership had a common interest in reaching a greater understanding of the practicaloperation of the provisions of Section 3 of Part II of the TRIPS Agreement.  The Council needed to
take a practical, problem-solving approach to its work on geographical indications, to try to shed light
on the source of the dissatisfaction of some Members with TRIPS geographical indication protection.
In particular, there was a need to examine whether the current unhappiness with the existing
provisions was really due to fundamental flaws in the rules themselves, or rather related to issues of
compliance at the national level with those rules.  Australia was concerned that changing the existing
treaty language for its own sake might amount to an empty gesture, and that it might not actuallysolve the difficulties being experienced by some Members in having their geographical indications
protected in other Members.  Inserting a set of more prescriptive geographical indication obligations
into the TRIPS Agreement could create new costs and burdens for all Members, and in particular
developing country Members.  It would be pre-emptive to begin negotiations on amending the text
before the Council had a collective understanding of the operation of the provisions.  Her delegationfully supported ongoing consultations on geographical indications between now and the next TRIPS
Council meeting, and was ready actively to engage in such discussions.  It intended to table a series of
practical proposals for taking the work on geographical indications forward.  In her delegation's view,
there was currently no mandate for a multilateral register for products other than wines and spirits,
and no mandate to expand the product coverage of Article 24.1.   It would retard progress in general to
merge two distinct issues, one of which was mandated and one of which was not - the establishment
of a multilateral register under Article 23.4, a mandated task, and the rewriting of Article 23.1 to
introduce new products under its coverage, a task which was not mandated.  If delegations wished to
merge a distinct, mandated task with a task which would require a fresh or expanded mandate from
the Ministerial Conference, then no concrete outcome would be possible until after the nextMinisterial.  It would be a more productive use of time to attempt to complete existing mandated tasks
now, and then consider what recommendations might be made for future tasks.
72. In order to clarify her delegation's view concerning the mandate under Article 24.2, she said
that this review concerned the application of the provisions of Section 3 on geographical indications.
One dictionary definition of 'applicat ion' was 'an act of putting to use'.  In general, this required a
review of how the provision had been put into effe ct.  Given that domestic laws were the only means
of giving effect to this provision, a review of national laws was the logical way forward to carry outthis provision.  With regard to the question as to  how to proceed on Article 24.2, practical answers to
questions about perceived shortcomings in geographical indication protection could only come from
consideration of provisions in national law, which provided for the actual legal means that provided
protection.  Members had already requested a vast  amount of information, over and above normal
notification and review requirements, in the form of the extensive questionnaire that had beencirculated.  It was vital to ensure that all Members which had now implemented TRIPS consistent
laws should be represented in this study, and they should be encouraged to provide responses to the
questionnaires so as to broaden the base and representative nature of the input to the review.  Further
elements of Article 24.2 gave a suggestion as to how the review could continue: the Article 24.2
review established a consultative process concerning compliance with TRIPS obligations in this area.In the absence of any specific concerns about compliance, it might be useful to conduct a case study
approach, whereby specific geographical indication protection scenarios of concern to Members
would be explored, and greater understanding attained as to how protection would be afforded under
the wide range of national legal means that had been notified.  If this task was too complex for the
TRIPS Council as such, it might be timely to recall that the Council could establish subsidiary bodiesunder Article IV:6 of the Marrakesh Agreement.IP/C/M/27
Page 15
73. The representative of the Czech Republic, reiterating the importance her delegation attached
to an extension of the scope of the product coverage of Article 23, said that only substantive
discussions on Section 3 of Part II of the TRIPS Agreement could lead to the results wished and
expected by Members.  Therefore, her delegation was interested in further consultations by the
Chairperson, which could be limited to the issue of geographical indications.  She also proposed thatthe Secretariat prepare a checklist of questions, objections and reservations that had been put forward,
so as to allow a more in-depth discussion at expert level and move the process forward.
74. The representative of New Zealand said that his delegation supported the proposed ongoing
informal consultations under the Chairperson's guidance with a view to closing the gaps that still
existed between delegations.  He also noted that New Zealand would like to make progress on this
issue.  His delegation believed that it was necessary for the TRIPS Council to approach the
Article 24.2 review in a structured manner so that all Members would have an opportunity to consider
the effectiveness of each of the provisions in question.  Members needed to keep in mind the separate
mandates of Article 23.4 and Article 24.2 and should not muddy the waters by linking them.
Article 24.2 envisaged the Council keeping under review the application of the provisions of
Section 3 of Part II of the TRIPS Agreement.  Howe ver, there had been little substantive discussion of
appropriate methodologies for the continuation of this review.  New Zealand felt that, until theCouncil had managed to review Section 3 in a systematic and substantive way, it was premature for
any Member simply to assert that it would like to extend the scope of protection;  this would be
somewhat akin to putting the cart before the horse.  His delegation was more than ready to
constructively engage with other Members on this re view.  However, the Council had to do so in a
structured way, working through each of the provis ions of Section 3, reviewing their operation and
enforcement so that all could get a better sense of the various geographical indications regimes that
Members had developed.  Some Members had raised the possibility of amending this agenda item and
the agenda item on the Article 23.4 negotiations into a more generic heading so that all issues relating
to geographical indications could be accommodated.  New Zealand could not agree to this approach
as it overlooked the fundamental fact that the Article 24.2 review was completely distinct from theArticle 23.4 negotiations, as well as the Article 24.1 negotiations that a few Members had also alluded
to.  Each of these provisions had its own specific nature.  New Zealand fully recognized the right of
any Member to inscribe any item on the agenda of the Council and to table papers under either
existing or new agenda items.  Indeed, New Zealand would more than welcome further papers on not
only this issue, but any other intellectual property issue.  But any papers tabled under the Article 24.2
review (or any other item) would need to be related to the mandate of such an item.  Since a few
Members had sought to focus upon the additional protection provided for under Article 23, he wishedto note that, for many WTO Members, the provisions of Article 23 were themselves a compromise
made in the context of the broad based Uruguay Round negotiations.  Like others, New Zealand had
been prepared to work within the parameters of Article 23, but saw no consensus for extending this
extra protection to products other than those specified in that provision.  Nor would his delegation
assume that, as the implications of this pioneerin g international agreement made themselves felt, the
underlying purposes of the TRIPS Agreement would be seen to be best served by creating an ever
expanding catalogue of additional protection beyond the relatively balanced provisions of Article 22.
In New Zealand's view, any review under Article 24.2 would need to contemplate the potential
disadvantages of creating property rights to the cost of many WTO Members - and, indeed, the actual
disadvantages under the current Article 23 provisions..  In regard to Article 24.1, he would like to notethat his delegation's reading of this provision was that the negotiations referred to in that provision
were only aimed at increasing the protection of geographical indications already covered by Article
23 (i.e. wines and spirits) and did not extend to the possibility of extending the scope of products
already covered by Article 23.  The assertions that the Article 23.4 negotiations on the multilateral
register were on a par with those on agriculture and services could not be sustained given the clearlanguage of Article 23.4 that the negotiations should be focused upon the development of a
registration and notification system and did not involve the extension of TRIPS obligations.  As
regards the procedure for the way  ahead, he agreed with Bulgaria that there was no need at all for a
complicated procedure.  As had been the case under Article 23.4, discussion could take place on theIP/C/M/27
Page 16
basis of specific proposals made by delegations.  However, he disagreed with Bulgaria and others that
such proposals had to be discussed by the Council irrespective of the mandate that existed under the
specific provision under which a proposal was made.  Members were free to table any proposal they
liked but, if they wanted such a proposal to be discussed in relation to a specific provision of the
Agreement laying down a mandate for the Council, the proposal had to fall within the mandate.  Workunder various provisions of the TRIPS Agreement could not be equated with the very clear mandates
for negotiations under the Agriculture and Services Agreements.  New Zealand would be in favour of
the Council asking Members who had not yet responde d to the Checklist (IP/C/13 and Add.1) to do so
and, in particular, to give concrete examples of geographical indications originating in their territories.
He also expressed support for the Council inviting WIPO to provide information on the system of the
Lisbon Agreement, in particular on the work that it had recently started in the context of the Lisbon
Agreement.
75. The representative of Switzerland expressed support for the Chairperson's pragmatic
approach.  Looking at Section 3 of Part II of the TRIPS Agreement, there were three issues at stake
for the Council's discussion:  the creation of a multilateral register;  the review of the application of
the provisions of Section 3;  and the extension of additional protection for geographical indications to
other products than wines and spirits.  All these issues were aimed at improving the protection ofintellectual property rights, which was in line with the general aim of the TRIPS Agreement as
expressed in its Preamble.  When reviewing Section 3, his delegation believed that these issues should
be looked at together and would propose to do so on an interest-based approach.  Thus, a balance of
interests could be achieved, allowing progress on this matter in the near future.  He also wished to
confirm that his delegation was clearly making a link between the negotiations on agriculture in theAgriculture Committee and on geographical indications in the TRIPS Council.  He expressed support
for the statements made by Bulgaria and India.  Discussions on the three topics together should be
based not only on Article 23.4 and Article 24.2 but also on Article 24.1.  The formalistic approach in
the discussions so far had to be turned into a pragmatic one and Article 24.1 would provide the avenue
for doing so, because it allowed Members to put forward proposals based on their interests in the areaof geographical indications and, since it was not limited to wines and spirits, enlarged the cake.
Therefore, in order to break the deadlock that the Council was faced with, and had already been faced
with for several years, one basket should be created, which would contain the three provisions on
geographical indications he had referred to;  and, to facilitate the further discussion, the Chairperson
should circulate, on his own responsibility, a list of the issues that had been raised in the discussion so
far, it being understood that this list would be without prejudice to the positions of delegations on the
relevance of the issues contained in it to Section 3 on geographical indications.  The fact that somedelegations were of the opinion that negotiations could only start once approved by the Ministerial
Conference did not prevent the TRIPS Council from engaging in work on issues of substance prior to
such approval.  Finally, he disagreed with the view expressed that the negotiations under Article 24.1
related to geographical indications for wines and spirits only, since it would not make sense to call for
negotiations to increase protection for geographical indications that already benefitted from additionalprotection under Article 23.
76. The representative of Chile agreed with New Zealand on India's suggested change in the title
of this agenda item.  The fact that there was not sufficient clarity on the Council's mandates, and their
scope, in the area of geographical indications simply reflected the fragile balance which had been
achieved at the end of the TRIPS negotiations in the Uruguay Round and which should be preserved.Moreover, the Section on geographical indications of the Draft Final Act of the Uruguay Round of
Multilateral Trade Negotiations issued by Arthur Dunkel in December 1991 also contained changes
compared to the text that had resulted from the nego tiations in the fall of 1991.  He said that his
delegation's preliminary reaction to the suggestion to ask WIPO to make a presentation at the next
Council meeting providing information on the Lisbon Agreement was positive;  WIPO should beasked to provide information on the Lisbon Agreement, including on the recent activities regarding
that Agreement.  As to the other suggestion made, his delegation did not understand why it would be
necessary, at this juncture, when reminding delegations that they had all been invited by the CouncilIP/C/M/27
Page 17
to respond to the Checklist contained in documents IP/C/13 and Add.1, to single out one particular
question from the Checklist in doing so.
77. The representative of Kenya said that the Council had to take a broader look at the issues than
strictly mandated under the provisions in question, in particular as regards the economic impact on
developing countries where the main economic activity concerned the area of agriculture.  Therefore,he supported the call that the Chairperson should continue his informal consultations.  Kenya was in
the process of drafting legislation on geographical indications which would take into account its own
interests in the area of agriculture.  It was difficult to explain to people in the developing world that
their representatives were involved in negotiations in the WTO concerning additional protection for
wines and spirits without any benefit being offered to developing countries.
78. The representative of Malaysia wished to register her delegation's interest in extending the
scope of the work on geographical indications and expressed support for further informal
consultations by the Chairperson on the matter.
79. The representative of Argentina said that her delegation could agree that the Chairperson
would continue his informal consultations on the matter, as long as treatment of the subject would
remain within the existing mandates.  As regards the proposal to merge the current agenda items on
geographical indications into one single item, he shared the view expressed by New Zealand andChile.  Article 24.2 did not call for negotiations on an expansion of the scope of the product coverage
of Article 23.  If that issue were to be discussed, it should be in the General Council.  Her delegation
was prepared to have such discussions, but they had to be held in the appropriate forum.
80. The representative of Mexico expressed support for continued informal consultations by the
Chairperson on issues concerning the work of the Council in relation to Article 24.1 and 24.2 and on
the basis of the mandates contained in those provisions.  Under Article 24.2, the Council had started
to review the application of the provisions of the Agreement's Section on geographical indications in
national systems and the Council should continue this review.  The Council should also take into
consideration information from Members for whom the Agreement had entered into effect at the
beginning of this year and who had not yet responded to the Checklist (IP/C/13 and Add.1).  Thesedelegations should therefore be asked to provide such information, thus allowing the Council a wider
overview of the situation.  Analysis of this information in combination with the summary paper that
the Secretariat was preparing on the responses to the Checklist received so far would greatly assist the
Council in completing this review exercise in a more  structured way.  An objective reading of the text
of Article 24.2 made it clear that this provision did not call for negotiations aimed at expanding the
product coverage of Article 23, nor did Article 24.1, which concerned negotiations between Members
aimed at increasing the protection available in their territories for individual geographical indicationsfor a wine or a spirit.  Negotiations aimed at expanding the product coverage of Article 23 would
necessarily require a new mandate to be established.  He could not support the idea concerning the
preparation of a checklist of issues put forward by delegations in relation to the provisions of
Article 24, as had been proposed by one or two dele gations.  The situation under these provisions was
different from that under Article 23.4, under which the Council had already embarked uponnegotiations.  This work under Article 23.4 should continue separately on the basis of the mandate
contained in it and in decisions taken at the Ministerial level concerning that work.  Work on
Article 23.4 had been confused, in the discussions that had taken place to date, with those concerning
the work of the Council called for in Article 24.  This was unnecessary and to be avoided;  the work
under Article 23.4 should be carried forward efficiently and systematically so as to allow theestablishment of the multilateral notification and registration system of geographical indications for
wines and spirits as soon as possible.  As regards the suggestion to include the question of Article 24
as such on the agenda of the Council, he said that his delegation would respect requests from any
delegation to include any item on the agenda.IP/C/M/27
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81. The representative of Singapore said that the work that the TRIPS Council would carry out in
relation to the three provisions involved, i.e. Articles 23.4, 24.1 and 24.2, would contribute to the
preparation of the work if this would be resumed where it had been left after the Seattle Ministerial
Conference.  Despite differences of view as to whether all issues raised had to be taken up, no
delegation had expressed the view that certain issues should not be taken up.  He therefore urged theChairperson to continue his informal consultations  on the modalities for carrying the work forward,
without prejudice to any delegation's position on the provisions involved.  It was important that the
Council would be in a position to address the substance before a new Round would start.
82. The representative of Australia associated her delegation with the view expressed by New
Zealand, Chile and Argentina that issues relating to Articles 23.4, 24.1 and 24.2 should not, as
proposed by other delegations, be discussed under one single agenda item.
83. The representative of the United States said that his delegation shared many of the
observations made by Australia, Argentina, Chil e and New Zealand.  The United States was not in
favour of changing the title of the agenda item under discussion to one reading "Work under
Article 24".  He said that such a change had the risk of impeding progress in the work in the review
under Article 24, even though his delegation would have a great interest in discussing many of the
other provisions of Article 24, in particular those concerning exceptions to the protection forgeographical indications as well as those concerning the relationship between trademarks and
geographical indications.  Unfortunately, the work in this review had been somewhat stalled by the
delay in the Secretariat's work on a compilation of the responses to the Checklist (IP/C/13 and Add.1),
but he hoped that this paper would be issued soon and that, with it in hand, the Council could move
forward to expand that information base to include information from developing countries.  Hethanked the Chairperson for his efforts to guide the discussions during the informal consultations and
took issue with certain interventions by delegations suggesting that the Council had not moved
forward on the mandated negotiations and other work.  There was ample evidence to demonstrate that
progress had been made, which had been possible thanks to a clear understanding of the rules under
which the Council was operating.  Referring to the proposals that the Chairperson had made duringhis informal consultations in relation to the work under Article 23.4 and that under Article 24.2, he
said that his delegation had always supported efforts to gather further information before pursuing
further work and could support the Chairperson's proposals in this regard as amended by the
delegations he had already referred to.
84. The representative of Canada also wished to urge the Chairperson to continue his informal
consultations in relation to the Council's work under Article 24.2.  As regards the disagreements
expressed on the specific meaning attached to the provisions of Articles 23.4, 24.1 and 24.2, forreasons well-known to all delegations, his delegatio n would agree with Argentina, Australia, Chile
and New Zealand that, in order to move forward, the distinction between what these provisions were
supposed to serve had to be kept in mind.  Not doing so would blur the line between what was an
existing mandate under the TRIPS Agreement itself and the interests of various Members, which
would no doubt be put forward at a time when discussions would move to negotiations concerning theTRIPS Agreement more generally.  For the moment, there was only the existing mandate that should
guide the Council.
85. The representative of Bulgaria supported the proposal made by India to include on the
Council's agenda an item called "Work on Article 24".  As far as he knew, if a delegation proposed an
item to be included on the agenda, such an item would be taken up in the draft agenda distributed inthe airgram convening the next meeting of the Council.  He wondered whether the delegations that
had objected to such an agenda item being in cluded on the Council's agenda would also block
adoption of the proposed agenda if it included an item referring either to Article 24 in general or to
Article 24.1.IP/C/M/27
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86. The representative of the European Communities said that his delegation had much
appreciated the pragmatic approach of the Chairperson in his informal consultations, which would
allow some progress to be made during the next meetings.  He regretted that this pragmatic approach
thus far had not found much response.  He encouraged delegations which believed that further work
should be undertaken in the TRIPS Council under Article 24 to table proposals;  nothing stood in theway of doing so and his delegation would comment on any such proposals once submitted.
87. The representative of Turkey expressed support for the statements made by the Czech
Republic and Switzerland and favoured further informal consultations by the Chairperson on the
issue.  The protection of geographical indications had interrelated aspects and the fact that Articles 22,
23 and 24 of the TRIPS Agreement, which were all three of a different nature, had been taken up in
one and the same Section of the Agreement was an  indicator urging the Council to interpret them
together, without overlooking the interrelations and cross-references.  There might be delegations infavour of an extremely narrow interpretation of these Articles, but it should be borne in mind that the
multilateral trading system was not of a static but of a dynamic nature, based on the idea that there
should be an on-going process of trade liberalization through ever more extensive and comprehensive
commitments.  Members should adopt a broad outlook and refrain from restrictive interpretations of
existing commitments.  At this stage, his delegati on believed that a comprehensive approach to cover
all aspects of geographical indications was a more appropriate one to adopt than one which would
unnecessarily divide the issues involved.  If the Council were to discuss extension of protection, the
model to serve protection should not be discussed separately.  If protection and additional protection
were the aims and the establishment of a multilateral notification and registration system a means to
ensure these aims, there was no logic in separating discussion of objectives and means.  Combiningthe discussions would be more fruitful and facilitate the Council's work.  In this context, his
delegation was more than willing to enter into consultations on a clearer methodology for carrying
forward the work on geographical indications allowing for more concrete contributions and proposals.
88. The representative of Mexico reiterated his delegation's view that any Member had the right
to request any item to be included on the proposed agenda for a Council meeting in accordance with
the Rules of Procedure.  It would be difficult for other Members to oppose a matter thus proposed
successfully.  However, on the draft agenda a distinction might be made between items that had
traditionally been on the agenda, by consensus, and those that had been suggested by Members
individually or jointly.
89. The representative of Norway said that the different provisions involved provided for
different approaches, Articles 23.4 and 24.1 laying down specific negotiating mandates and
Article 24.2 a specific review mandate.  On these merits only, work under these provisions had to bedistinguished in further discussions of the Council.  If Article 24.1 was going to be proposed to be
included on the agenda, his delegation would take the view that Article 24.1 should be the subject of a
specific item on the agenda and not part of a generic item concerning the whole of Article 24, which,
as pointed out by the United States, had more to it than only the specific issues addressed in
Article 24.1.
90. Responding to queries from the floor, the representa tive of the Secretariat said that the proposed
agenda for a meeting that was circulated in th e airgram convening the meeting was drawn up on the
basis of items which the Council had agreed to discu ss together with any items that had been suggested
for inclusion by any Member.  It was the Secretar iat's practice in regard to the Council for TRIPS to
include in the airgram a specific provision inviting any Member wishing an additional item to be placed
on the proposed agenda to inform the Secretariat of this  sufficiently in advance so that a revised airgram
could be issued ten calendar days prior to the mee ting – the deadline established by the Council's Rules
of Procedures.  These Rules of Procedure further sp ecified that "requests for items to be placed on the
agenda of the forthcoming meeting shall be communicat ed to the Secretariat in  writing, together with
the accompanying documentation to be issued in connection with that item".IP/C/M/27
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91. The Council took note of the statements made and agreed  to revert to the matter at its next
meeting.
J. I MPLEMENTATION OF ARTICLE 23.4
92. The Chairperson recalled that the Council had had for some time before it a joint proposal of
the delegations of Canada, Chile, Japan and the United States (document IP/C/W/133/Rev.1) and a
proposal from the EC and their member States (doc ument IP/C/W/107).  The revision of its proposal,
which the EC had foreshadowed at the Council's last meeting, had been recently circulated as
document IP/C/W/107/Rev.1.  In addition, the Council had received a paper from New Zealand on
this subject (document IP/C/W/189).  From the informal consultations that he had held, all he could
report was that further consultations were necessary.
93. The representative of the European Communities encouraged the Chairperson to continue his
informal consultations on the matter to see how this process could move on.  In his delegation's view,
insufficient progress had been made to date on the issues involved.  In this connection, he recalled that
Article 23.4 itself contained an obligation to undertake negotiations on a multilateral notification and
registration system and that this provision had been in force since 1995.  Introducing his delegation's
revised proposal on the matter (IP/C/W/107/Rev.1), he  said that, in drafting it, his delegation had of
course kept in mind the contents of its original proposal and the supplementary statements it had madesince, but had also reflected upon the other proposals made in writing and the comments made at
previous TRIPS Council meetings.  Geographical indications, compared to other intellectual property
rights, were often difficult to identify.  The TRIPS Agreement provided for the possibility of
preventing the use of geographical indications or trademarks not originating in the place indicated by
the geographical indication.  This information could usefully be provided by the multilateral registerforeseen in Article 23.4.  In his delegation's view, such a register should allow a participating Member
to inform WTO Members of the geographical indications which were protected in its territory.  In that
respect, the register surely would facilitate the application of existing obligations and thus make
paragraphs 1, 2 and 3 of Article 23 of the TRIPS Agreement operational.  The use of the information
provided by a multilateral register should permit Members to protect geographical indications at therequest of a right holder as provided for under Article 23.1 of the Agreement against their misuse.  In
addition, it should also help trademark offices to make paragraphs 2 and 3 of Article 23 operational by
providing them with a list of geographical indications.  In that respect, a multilateral register was a
useful tool to ensure equality of treatment between national and foreign geographical indications, in
addition to being a practical instrument for importers, exporters, administrative and judicial
authorities, producers and consumers.  An important issue, which had been discussed on several
occasions at previous meetings of the Council, was the possible challenge by a WTO Member of thegeographical indications notified for registration.  On the side of the European Communities and their
member States, a number of systems had been explored to deal with such challenges, such as expert
committees, mediation committees or recourse to dis pute settlement or arbitration.  Having examined
all these different possibilities, the European Communities and their member States had come to the
conclusion that each had advantages but also disadvantages with regard to their limits and with regardto the time and expenses it could take to solve issues involved.  Therefore, after long reflection, his
delegation's revised proposal now provided that these challenges should be solved by direct
negotiations between the Members concerned.  This clause should be understood as being strictly
limited to the protection of individual geographical indications as provided for in Articles 23.4 and
24.1 of the TRIPS Agreement.  These negotiations would be without prejudice to the Members' rightsunder the WTO dispute settlement mechanism.  Looking at the revised proposal from his delegation,
one would see that there was a framework for this re gister, which went step-by-step from notification
and the accompanying obligation to provide information to the publication of the notification and then
the opportunity to examine the published notification during a certain time-period, during which it
would also be possible to eventually challenge the publ ished notification;  after that, the next step was
registration and publication thereof, so that all the relevant information would be available to all
interested parties.  In order to be complete, provision was made for the possible suspension of aIP/C/M/27
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registration in case there was a change in the legislation of the notifying Member and it was also
important to make sure that information and notifications would be updated whenever necessary.
94. The representative of New Zealand, in intr oducing his delegation's submission (IP/C/W/189),
noted that New Zealand was not, nor had ever been, a demandeur for this registration and notification
system.  Nevertheless, his delegation had actively engaged in discussions over the last few years,because it felt that it had something valuable to add to the discussions, particularly in the light of the
fact that New Zealand's regime for the protection of geographical indications was quite different from
those regimes more prevalent throughout a number of other countries who had been the key
demandeurs  when it came to anything associated with Article 23.  On the question of its paper, his
delegation wanted to provide the Council with something which set out why New Zealand had been
taking the position that it had in relation to the Article 23.4 notification and registration system.  New
Zealand also wanted to help other Members focus upon the range of issues that had been raised inconnection with the registration and notification system so that more Members might have a better
understanding of the issues and how their respective national regimes might be affected.  New
Zealand's paper indicated that, at the heart of the "collective proposal" of Canada, Chile, Japan and the
United States, was a recognition that the notification and registration system should simply facilitate
protection, be a transparent information tool, be voluntary, accommodate different nationalapproaches to geographical indication protection, be administratively simple and cost effective and,
most importantly, not create an additional raft of legal obligations on top of those already contained in
the TRIPS Agreement.  It went on to note that New Zealand had generally supported the "collective
proposal" as it more fully accorded with the letter and intent of Article 23.4, as well as the
fundamental principle contained in Article 1 of th e TRIPS Agreement that "Members shall be free to
determine the appropriate method of implementing the provisions of this Agreement within their own
legal system and practice".  The paper also noted that the concepts on which the collective proposal
was built were consistent and mutually supportive with those which had shaped the development of
New Zealand's system of protection for geographic al indications.  The New Zealand paper highlighted
the workability of the "collective proposal", partic ularly its ability to accommodate different national
approaches to geographical indication protection, by using the New Zealand system of protecting
geographical indications as an example.
95. The representative of the United States said that the written contributions of the European
Communities and New Zealand and substantive interventions provided ample evidence that progress
was being made in this debate.  This should encourage other delegations, in particular those that were
of the view that progress was not being made, to come forward with similar proposals or observations
about proposals that had been made.  While appreciating that the revised proposal from the EuropeanCommunities and their member States reflected some willingness to compromise by providing for
consultations rather than a formal opposition procedure and by providing 18 months rather than
twelve in which a Member might object to particular geographical indications notified by another
Member, his delegation did not believe, however, that these changes eliminated the concerns
expressed by it and various other delegations regarding the imposition of new obligations on all WTOMembers to protect particular geographical indications.  Given the number of geographical
indications that would be notified and the volume of materials that would be required in support of
each under paragraph B(3) of the revised proposal, a considerable burden would be imposed on all
WTO Members to monitor and oppose each and every geographical indication to which they objected.
The revised proposal also would not accommodate all of the various régimes that countries had forprotecting geographical indications, as revealed to date by the responses to the Checklist (IP/C/13 and
Add.1) under Article 24.2.  For example, thos e WTO Members that protected geographical
indications through unfair competition law or other laws would be at a considerable disadvantage in
that rights in a geographical indication were formally recognized only when a dispute arose.  Those
WTO Members would be unaware of many rights established in their country existing that mightjustify an objection.  His delegation might have further observations on the papers submitted at a later
stage.IP/C/M/27
Page 22
96. The representative of Korea, while also thanking the delegations of the European
Communities and New Zealand for their efforts to contribute to the discussion on the establishment of
a multilateral system for the notification and registration of geographical indications by tabling their
respective submissions, said that the present approach of the European Communities seemed to be
more constructive and more in line with the provisions of Article 23.4 than the previous one.  In thisconnection, he emphasized that the proposal now said that Members might participate in the
multilateral system by making a voluntary declaration and that it separated the coverage of the
multilateral system from its nature, which was, as his delegation saw it, in conformity with the
requisite of the provisions of Article 23.4.  However, his delegation remained of the view that the
system should not create any additional burden, whether legal or administrative, by respecting the
legitimacy of Members' existing national legislation and, by the same token, not leaving room for
challenges at a level beyond national jurisdiction.  In this context, New Zealand's communicationclearly showed how its national system functione d in accordance with Article 23.4.  His delegation
appreciated and welcomed New Zealand's approach in this regard and believed that it would
contribute much to move the discussions in a benefi ciary way.  He wished to note, in particular, that
New Zealand's system for the protection of geographical indications fully reflected the fundamental
definition of Article 1 of the TRIPS Agreement that Members shall be free to determine theappropriate method of implementing the provisions of the Agreement within their own legal system
and practice, which meant that the level and method of protection of intellectual property rights
should be left to national legislation.
97. The representative of Argentina said that he r delegation agreed with the approach in the
document presented by New Zealand.  The proposal of the European Communities was an important
step allowing Members to continue negotiations in the context of Article 23.4.  Providing some
preliminary comments on specific points in the EC proposal, she said that under B(2) reference was
made to geographical indications which identified "goods", but her delegation believed that, according
to Article 23.4, the system should only cover wines.  Referring to B(3) and B(5), she said that
Argentina believed that both points created additional burdens and obligations on top of thenotification obligations already established by the Agreement.  Under C, the revised EC proposal
provided for a procedure which her delegation believed implied not only the creation of a burdensome
requirement, but also the establishment of a body for the resolution of conflicts above the national
level.
98. The representative of Hungary said that hi s delegation shared the view of the EC that
insufficient progress had been made in these negotiations under Article 23.4 during the past four years
and was clearly interested in the establishment of an adequate, credible and effective register.  He
reiterated that his delegation did not oppose negotiations on the extension of Article 23 protection to
other products and believed that the register should be set up in such a way that it could accommodate
the products to which additional protection was extended.  Commenting on the revised proposal fromthe European Communities and their member States, he fully shared the view expressed in the fifth
paragraph of the EC paper in question that the multilateral register, as set out in Article 23.4 of the
TRIPS Agreement, should facilitate not only the identification of geographical indications but also
their protection.  In other words, the register should not exclusively be seen as a source of
information, but as a tool that should serve all by facilitating the application of Section 3 of the TRIPSAgreement, in particular paragraphs 1 to 3 of Article 23.  He welcomed the inclusion of an
examination phase in the operation of the register as set out in paragraph C(1) of the proposal.  His
delegation believed that this phase, by providing an avenue to gather information about a notified
geographical indication without having to formally oppose its registration, could reduce the number of
confrontations and make the operation of the register smoother.  His delegation also shared the view
expressed in paragraph 8 of the EC paper that the examination and opposition procedure was an
extremely important element and had read with great interest paragraph 9 of the EC paper, whichindicated that the EC could imagine and had indeed explored different kinds of systems, such as an
expert committee, a mediation committee, recourse to  dispute settlement or arbitration.  Given the
importance of the opposition procedure, his delegation thought that all these possibilities should beIP/C/M/27
Page 23
thoroughly discussed in the Council for TRIPS.  Therefore, he wondered whether the EC could share
with Members the details of their examination referred to in paragraph 9, in order that Members could
collectively determine which of the indicated options or what combination of them could be the best
solution.  At present, Hungary, in particular as a small country, would definitely favour a procedure
that would have more of a multilateral character, in order to ensure equal opportunity to represent its
interests.  His delegation did not have illusions about the results that it could expect as a party
challenging a particular notified geographical indication exclusively in the framework of direct
bilateral discussions.  A related question that the Council should, in his delegation's view, look into
when examining the best possible form of dispute settlement was what conditions or requirements a
challenge should meet so that it could be deemed to be "duly justified" as the EC proposal put it in
paragraph C(2).  Such a set of conditions was needed in order to prevent abuse.  An additional
question was of course who would be authorized to judge which challenges met these conditions and
which did not.  In his delegation's view, such a determination, i.e. whether a challenge was duly
justified, should not be made unilaterally.  This, he believed, would also call for the strengthening
of the multilateral character of the opposition pr ocedure.  Another crucial and partly related
element that, in his delegation's view, required fu rther thought and improvement was the effect of
a challenge.  According to paragraph D(4) of th e EC proposal, a successful challenge would not
have an erga omnes effect, i.e. only the Memb er or Members who had opposed the registration
would be exempted from the obligation to provid e protection.  Paragraph D(5) of the EC paper
then added that registration would create a pres umption of eligibility for protection in the
participating Members.  His delegation feared that  the lack of erga omnes effects in fact could
lead to a situation where a misleading and challenged geographical indication would still beregistered and where third non-opposing parties wo uld be under an obligation to protect the
misleading geographical indication.  This, his de legation firmly believed would not only run
counter to the objective laid down in Article 23.4, namely that the register should facilitate the
protection of geographical indications, but would also be against the normal commercial interests
of the owners of geographical indications.  Fi nally, he wished to emphasize once again his
delegation's interest in moving forward the estab lishment of an adequate, credible and effective
register and hoped that, when revising this proposal, the EC would be in a position to take intoaccount the comments that he had made and which he believed reflected the interests of many
Members.
99. The representative of Australia said that her delegation had not had sufficient time to consider
comprehensively the revised proposal of the European Communities, but would broadly support the
comments that had been made by the United States and Argentina on this paper.  She hoped to be in a
position to provide more detailed remarks at the next meeting.  Her delegation particularly welcomed
New Zealand's paper, which it found a useful and constructive addition to discussions under this
agenda item.  The reasons put forward by New Zealand as to why it supported the 'collective proposal'largely accorded with Australia's own views on the necessary characteristics of an Article 23.4
register.  That register should facilitate protection of geographical indications under Article 23, be
genuinely optional, not directly or indirectly create new legal obligations for Members, and should
serve as a transparency and information mechanism rather than as a means of creating a pre-emptive
global intellectual property right.  New Zealand's paper also reflected clearly Australia's own viewthat any register established under Article 23.4 should not subvert Members' current right to employ
the full range of legal means for the protection of geographical indications that had been notified and
analysed in the Article 24.2 review.  For these reasons, Australia would like to reiterate its support for
the "collective proposal".  Finally, she wished to note that the Lisbon Agreement administered by
WIPO was a multilateral registration system which had been in force for many years and that therewere some aspects of this Agreement which might overlap with the proposal made by the European
Communities;  therefore, it would, in her delegation's view, be beneficial to the Council to obtain
information from WIPO on how the Lisbon Agreement was actually functioning.IP/C/M/27
Page 24
100. The representative of Venezuela found the new papers constructive and some of their
elements interesting and, while thanking the delegations that had presented them, provided some
preliminary comments on them.  With regard to the EC proposal, his delegation believed that perhaps
under C(2), regarding consultations, even if the extension of the period of 18 months could assist in
finding bilateral solutions, a simple system with administrative characteristics was necessary.  Thereason for this was, first, that, if consultations would not lead to the solution of a problem, the dispute
settlement system could be too costly for all the possible new bilateral conflicts that could arise
between two geographical indications.  Second, in systems which provided for opposition, there was
analysis of many issues of fact.  Perhaps in th e system of dispute settlement there would not be
sufficient scope for a deep analysis of the facts and all the characteristics of each geographical
indication.  Referring to the discussions on the extension of the product coverage of Article 23, he
wondered whether the proposal could not leave the possibility for such an extension open.  With
regard to the system proposed by New Zealand, his delegation had some systemic doubts and
concerns.  Article 23.4 talked of the establishment of a multilateral system of notification and
registration and not of a plurilateral one.  As regards the terms "notification" and "registration",
"notification" might imply transparency of in formation, voluntary and administratively simple
systems, but the term "registration" had to imply fundamental legal effects.  As regards whether theterm "registration" implied effects erga omnes  or inter se , he said that, where the term was not
accompanied by the words "effects with regard to third parties", this did not necessarily mean that
there were no effects with regard to third parties.  He also drew attention to the fact that the term
"registration" was used in other places in the TRIPS Agreement without the words "effects with
respect to third parties", for example in Article 15.1 on trademarks, which provided that "Such signs… shall be eligible for registration as trademarks".  Did this mean that such a registration did not have
effects for such parties?  His delegation believed that the characteristics of registration could be
defined by the exclusive rights granted.  In the case of a trademark, it was the right to exclude others
from using the trademark.  If the purpose was protection against, and repression of, unfair
competition, with effects with regard to third parties, then that was also what should be protected byregistration.  Whichever interpretation Members adopted in respect of the term "registration", it would
have effects on the rest of the Agreement, and proposals should be consistent in their interpretation.
101. The representative of Switzerland said that his delegation greatly welcomed the initiatives and
efforts of the delegations of the European Communities and their members States as well as New
Zealand to carry forward with the important work of the Council on a multilateral notification and
registration system for geographical indications.  Switzerland had always been in favour of a strong
multilateral register which would leave scope for an extension to other products than wines andspirits.  After a first reading of the paper from New Zealand, it seemed to his delegation that New
Zealand's proposal was not in line with his delegation's approach with regard to a future register for
geographical indications.  After a first reading of the EC's revised proposal, he wished to note that, in
his delegation's view, some questions still remained open or had not been addressed in sufficient
detail, such as the issue of an effective dispute settlement or opposition mechanism necessary for anadequate and effective protection of geographical indications by such a multilateral register.
Elements like this as well as the ones highlighted by the delegation of Hungary would need future in-
depth study and clarification.
102. The representative of Brazil said that, due to the fact that both papers had only been received
a few days prior to the meeting, he had not yet received instructions from the capital.  However, by
way of preliminary reaction, he expressed his delegation's support for the approach taken by New
Zealand as regards the general nature of the multilateral system for the notification and registration of
geographical indications.  This system should be non-burdensome and voluntary, aiming basically at
facilitating transparency.  In this connection, he considered the New Zealand paper a helpful
contribution for delegations in exchanging information on national experiences with geographicalindications.  He also acknowledged the EC's effort to adapt its previous proposal to the reactions by
other delegations and, in this connection, underlined the voluntary nature mentioned in the new paper.
However, his delegation had an initial concern with paragraphs B(3) and B(5) of the EC's revisedIP/C/M/27
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proposal, because of the burdensome nature of the procedure concerned;  since legislation would have
to be notified anyway, the proposal would seem to call for duplication of work.  He did not wish to
comment on section C of the proposal, which concerned multilateral examination of geographical
indications published, until he had received instructions from his authorities.
103. The representative of the Czech Republic said that her delegation generally welcomed all
steps taken that could move constructive discussions of the issue of geographical indications forward
and considered the new papers to be such steps, in particular the revised proposal from the European
Communities and their member States.  However, having observed this proposal in a broader context
than just that of Article 23.4, her delegation wished to note that it seemed to be aimed at the
establishment of a register which would protect rights and economic interests only for the benefit of
right holders of geographical indications for wines and spirits.  Reiterating her delegation's opinion,
she said that a non-discriminatory system had to be created which allowed the extension of the scopefor additional protection in respect of other products than wines and spirits, in order to meet legitimate
interests of the whole WTO Membership.  The issue of the establishment of a multilateral register was
not to be discussed separately from the issue of the extension of the additional protection for
geographical indications under Article 23 to other products than wines and spirits.  The revised
proposal from the EC contained some elements which were worth to be discussed further.  She would
come back to the proposal with detailed comments once her delegation would have had time to study
it.
104. The representative of Chile expressed his delegation's appreciation to New Zealand for its
contribution, which had the merit of demonstrating a concrete reality concerning the distinct forms by
which geographical indications could be protected.  These distinct forms, as could be appreciatedfrom the accompanying explanation in the paper, had quite different characteristics, which had to be
taken carefully into account in the establishment of a register as required by Article 23.4.  The
different forms of legitimate protection recognized by national legislation might have different values
within each system.  With regard to the EC proposal, he appreciated the EC's effort to take into
account the "collective proposal" when revising its original proposal.  Such an attitude was needed inorder for progress to be made.  However, he joined other delegations which had raised questions
about certain points in the EC proposal that should not  be there.  While he would revert to the various
elements of the proposal at the next meeting in gr eater detail, he wished to mention already now that
the scope of protection under paragraph B(2) exceeded the Council's mandate.  Paragraphs B(3) and
B(4) created an additional burden which his delegation would not wish to have in this multilateral
system of registration and also gave the impression of creating a link between protection and the fact
that a geographical indication had been registered.  This objective went far beyond the objectives ofArticle 23.4, which only spoke of facilitating the protection of geographical indications.  His
delegation had serious concerns about paragraph C(2), because it did not believe that a registration
system should incorporate a mechanism for the resolution of any kind of disputes.  Paragraph D(4)
went far beyond what the Agreement itself established.
105. The representative of Mexico said that his delegation was still studying the new contributions
but, nevertheless, wished to underline that as speedy progress as possible should be made, pursuant to
the obligation to undertake negotiations laid down in Article 23.4 and in the Singapore Ministerial
Declaration.  However, quality should not be sacrif iced for the sake of gaining time;  his delegation
had an interest in the establishment of a multilateral system for the notification and registration of
geographical indications that would be practical and useful but, in any event, additional protection forgeographical indications for wines and spirits already had to be made available by Members,
irrespective of the establishment of the notification and registration system under Article 23.4,
pursuant to the provisions of Article 23.1, 2 and 3 of the Agreement.
106. The representative of India said that, given the strong view that his delegation had about
concomitance of negotiations under Article 23.4 and negotiations that it believed should be conducted
under Article 24 for extension of the scope of the additional protection under Article 23 to productsIP/C/M/27
Page 26
other than wines and spirits, it would be very difficult, if not impossible, for his delegation to support
any proposed multilateral system for the notification and registration of geographical indications that
did not have the capacity to extend itself to products other than wines and spirits.  His delegation
considered it far from clear, looking at the revised proposal from the European Communities and their
member States, whether it had this capacity and, therefore, his delegation could not support it in itscurrent form.  He shared the comments made by Hungary and Switzerland and believed that some of
the issues in the EC proposal should be looked at further, such as the determination of eligibility of a
geographical indication for protection under the system they had proposed and the proposed
procedure for the resolution of issues at the bilateral level.
107. The representative of Japan, expressing his delegation's appreciation to the European
Communities and New Zealand, recognized that the revised proposal submitted by the European
Communities tried to accommodate the concerns expressed by his and other delegations concerningthe EC's earlier proposal.  However, his delegation still had concerns with regard to this new proposal.
First, the multilateral system to be established under Article 23.4 should not create new obligations
going beyond the TRIPS Agreement.  The legal effect to be generated by the multilateral register
should be determined by national law, which law should of course be consistent with the TRIPS
Agreement.  The new proposal from the EC still seemed to require more than that.  Second, hisdelegation's view was that the administrative burden and the cost to be imposed by the multilateral
system should be minimal.  The examination and opposition systems associated with the EC's
proposal seemed to be more burdensome and costly than the system of the "collective proposal".
108. The representative of Singapore, providing his delegation's preliminary views on the new
papers submitted, emphasized that the predominant objective of the exercise should be to try and
accommodate the various systems that Members had, so as to allow as many Members to come on
board at the end of the day.  In this regard, his delegation tended to share what had just been said by
the representative of Japan and was more favourably inclined towards the views expressed in the New
Zealand paper and in the "collective proposal".
109. The representative of the European Communities agreed with New Zealand that every
Member could apply the protection already established in the Agreement in different ways.
Furthermore, Members were indeed already required to protect geographical indications under
Article 23.  In this sense, a notification and registration system was essentially going to facilitate that
protection.  Therefore, the question was not to cons ider whether or not it was appropriate to protect
foreign geographical indications, because under the Agreement misleading use and usurpation already
had to be avoided.  The language of paragraph 4 of  Article 23 was clear and self-reliant as to the
creation of a system of not only notification, but also of registration.  Even if Members appliedprotection required by the Agreement without al ways providing a registration system, Article 23.4
provided for such a system at the multilateral level.  In fact, without prejudice to national laws or
systems, a multilateral register was the way to show a complete picture of the protection, or non-
protection, of eligible geographical indications.  A multilateral register had an added value because it
permitted to obtain a transparent and multilateral information system on geographical indications.  Inthat respect, in his delegation's view, the system suggested by New Zealand and also reflected in the
"collective proposal" did not offer more than a compilation of existing national lists without any legal
effects.  Also in the European Communities, jurisdictions provided for legal procedures and
judgments to be given in courts on the protection, or non-protection, of geographical indications.
However, as in New Zealand, the resulting information remained rather local.  Therefore, it would bemuch more accessible and transparent for the use of other Members and right holders, if it would be
contained in a multilateral register.  Only such a register would be a common  instrument of
notification and registration, reflecting how Article 23 was already applied in WTO Members.
Responding to reactions on his delegation's revised proposal, he emphasized, first, that, for a
meaningful multilateral system to be established, a certain amount of information would need to beprovided in order for a geographical indication to be registerable.  Second, it would be inconceivable
in a multilateral system to have recourse only to a national approach for challenging notifiedIP/C/M/27
Page 27
geographical indications.  Because of doubts expressed by several Members concerning the possible
linkage between disputes under a multilateral register on the one hand and the WTO dispute
settlement system on the other hand, his delegation had opted, as reflected in its revised proposal, for
a way in between, i.e. bilateral negotiations.  Third, a multilateral system consisting merely of a
database as described in the "collective proposal" and also by New Zealand in its paper, i.e. withoutcertain legal effects flowing from it, would not meet the wording or spirit of Article 23.4.  So far, his
delegation's proposal was the only one that fell fully within the ambit and scope of Article 23.4.
110. The representative of the Philippines, while thanking the European Communities and New
Zealand for their papers, which his delegation was still studying, suggested that the Council might
request the Secretariat to prepare a paper explaining whether protection under the registration system
of Article 23.4 was the additional protection envisaged in Article 23.1;  whether there was additional
protection in addition to the register and, if so, what was the difference between additional protection
under Article 23.1 and general protection under Article 22.2 of the Agreement.  The representative of
Mexico said that the Secretariat did not have competence to resolve the three questions suggested by
the Philippines.  The Chairperson said that delega tions might first wish to reflect further on this
suggestion.
111. The representative of New Zealand thanked the European Communities for its revised
proposal, which had been circulated on the same day as his delegation's paper, so that there had not
been an opportunity to refer to it in that paper.  That said, he wished to acknowledge that the EC had
made a constructive effort to find a middle ground in this debate, but had to admit, as a preliminary
reaction to it, that he did not believe that the revised proposal found such a middle ground.
112. The Chairperson, referring to a specific request made by the delegation of Australia,
wondered whether the Council would be ready to invite  the International Bureau of WIPO to make a
presentation at the Council's next meeting in order to provide information on the functioning of the
Lisbon Agreement.  The representative of the European Communities said that document IP/C/W/85,
prepared by the Secretariat in 1997 at the request of the Council, already contained the information inquestion and did not understand why the Council should again ask for this information to be provided.
113. The Council took note of the statements made and agreed
 to revert to the matter at its next
meeting.
K. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
114. The Chairperson said that, apart from the circulation as a TRIPS Council document5 of the
background note that the Secretariat had prepared for the Committee on Trade and Environment on
the relationship between the Convention on Biological Diversity and the TRIPS Agreement,6 he had
no new papers to draw to the TRIPS Council's attent ion on this subject.  He further informed the
Council that he had held consultations on how the work might proceed, pursuant to the decision taken
by the TRIPS Council at its last meeting.  In these consultations, he had sought advice from Members
on the best approach for carrying forward the work on the basis of a discussion on the four options
that had been put forward at the last TRIPS Council meeting.  These options were:  to conclude the
review;  to continue the open-ended discussion;  to have a more structured discussion;  to assemble afuller information base which would take better account of the way in which Article 27.3(b) had been
implemented by transition economy and developing country Members.  He was not as yet in a
position to report any concrete outcome of the discussions that had taken place and suggested that he
might continue his informal consultations on the matter.
                                                     
5 Document IP/C/W/175
6 Document WT/CTE/W/125.IP/C/M/27
Page 28
115. The representative of India reiterated that his delegation attached great importance to the
review under Article 27.3(b).  He pointed out that the mandate and the language contained in this
provision were clear.  As demonstrated by the representative of the Philippines in another context
with regard to difference between the terms "rev iew" and "review of the implementation", the term
"implementation" was missing in Article 27.3(b). Most Members in the TRIPS Council  wererecognising that this provision contained a mandate that should be undertaken by the Council.  His
delegation believed that the review had already begun and the Council was discussing issues.  Given
the importance of the subject-matter to India, he would have preferred that the Chairperson come up
with a list of issues, entirely on his own responsib ility and without prejudicing  the position of any
delegation as to the relevance of any of those issues to the review of Article 27.3(b), so that the TRIPS
Council could have gone ahead and have a discussion on an issue-by-issue basis, as issues had already
been put forward by delegations.  The TRIPS Counc il could only fulfill its responsibility under the
mandate of Article 27.3(b) if the Council moved to the next stage, that is to listen to both sides and try
to find a procedure, representing a middle ground between Members' positions.  Several issues had
already been identified on page 12 of document IP/C/M/26, namely:  link between Article 27.3(b) and
development;  issues relating to patent protection; sui generis  protection;  ethical issues relating to
patentability of life forms;  relationship between the TRIPS Agreement and the Convention onBiological Diversity (CBD);  protection of tradit ional knowledge and farmers' rights.  The Council
had to discuss the matter issue by issue, so as to allow Members to understand each other better and
be able to conclude debate on them.
116. The representatives of Brazil, Canada
, Chile , Colombia , Cuba , Egypt , Honduras , Japan ,
Kenya, Malaysia , Namibia , New Zealand , Norway , Peru , the Philippines , South Africa , Thailand ,
Turkey and Venezuela  agreed that the discussions should be based on a list of issues in order to have a
more organized and productive discussion.  Such a list should not be exhaustive but rather illustrative
in order to enable the necessary flexibility in the discussions.
117. The representatives of  the Philippines, South Africa  and Venezuela  said that the TRIPS
Council, in any event, would have to address in re lation to this mandated review the impact of the
TRIPS Agreement on the trade and development prospects of developing countries, as agreed by the
General Council at its meeting of 7-8 February 2000 (see paragraph 39 of document WT/GC/M/53).
The representative of Venezuela said that, in his delegation's view, the General Council's decision
represented a binding element which was applicable to all the current review exercises in the TRIPSCouncil.  This binding element should be taken into account in the consultations or for purposes of
establishing a list of issues to be discussed.
118. The representative of the United States recalled that, at the last meeting of the TRIPS Council,
his delegation had advocated that the Council not continue its review under Article 27.3(b) and
expressed some concerns about the list that had been developed, primarily because it considered that
many of the issues listed went in fact beyond the provisions of Article 27.3(b).  His delegation had
concerns about if - and how -  the TRIPS Council could in fact pursue discussions on these issues in a
constructive manner.  It seemed difficult at this stage to imagine how the TRIPS Council could have a
full discussion of these issues in the future unless and until developing countries provided for the
information that developed and other countries had already given in response to the Secretariat's
questionnaire.  In reply to a suggestion made by the delegation of India to have an issue-by-issue
approach, he said that the experience earlier at the present meeting, in relation to another item of the
agenda, had been that, despite the best efforts of the Chairperson to discuss topics separately, mostdelegations had been unable to follow the Chairperson's suggested approach.
119. The representatives of Australia, Canada
, Egypt , the European Communities , Japan , Korea ,
New Zealand and Switzerland  agreed that it would be useful if those Members that had not yet
submitted information on the application of provisions as addressed in Article 27.3(b) in their
territories would do so.  Thus, the Council would have a more comprehensive basis for its work on thematter.  In this regard, the representatives of the European Communities and Switzerland
 underlinedIP/C/M/27
Page 29
the urgent need for developing country and transition economy Members to respond to the
Secretariat's questionnaire relating to Article 27.3(b).   The representative of Australia said that the
exchange of information would help to address various questions, such as how national authorities
had interpreted the term "micro-organism" as th e limit to the scope of patentable subject-matter.
Information on the choice of the options for protecting plant varieties and on the common elements ofthe national plant varieties protection systems might shed light on what would be considered as an
effective sui generis  system.  The synoptic tables made by the Secretariat were heavily dominated by
information on developed countries' systems.  As further documentation was progressively provided
by Members which had been under a transitional period, it would be possible for the review of Article
27.3(b) to be based on a more representative collection of information.
120. The representative of the Philippines said that, while he recognized the relevance of
information on the implementation of Article 27.3(b), he disagreed with the delegations that had
stated that no review could start meaningfully wit hout the completion of the information exercise.  In
this regard, he pointed out that Article 27.3(b) provid ed for a review already four years after the entry
into force of the Agreement, which was prior to  the expiration of the transitional period for
developing countries.  In his view, there were tw o categories of Members:  those who were under the
obligation to provide patent protection or sui generis  protection or a combination thereof to plant
varieties and those whose obligation was not to di minish any protection which was provided under
their laws until a specified date.  Therefore, there were still many Members who would not be obliged
to provide protection to plant varieties.  In this context, while the questionnaire would be useful, the
TRIPS Council should not wait for the completion of the information gathering exercise to start the
review process.  The representative of South Africa said that it was his delegation's understanding that
any delegation submitting information would do so on a voluntary basis.  This review was not one of
implementation and therefore submitting information was not obligatory.  Information would be
submitted for the purpose of exchanging information and making sure that the TRIPS Council could
carry out its review.  The representative of Namibia said that the lack of responses from developing
countries did not mean that there was a lack of will.  It was only indicative of the challenges and
difficulties that developing countries had in dealing with issues of intellectual property in general and
in putting in place the required systems which prevented them from engaging in these issues in a
much more constructive manner.
121. The representative of Venezuela drew attention to document IP/C/W/175 which his
delegation had asked for the circulation as a TRIPS Council document.  This contained a factual note
that the WTO Secretariat had prepared for the Committee on Trade and Environment (CTE).  The
note addressed various elements that could be taken into consideration in the TRIPS Council.  On theissues of traditional knowledge and genetic resources, he called Members' attention to the experience
of the Andean countries and Costa Rica as examples of how some of the issues covered by the CBD
had been implemented in the national laws of some Members.  The representatives of Brazil and
Kenya supported such efforts to protect traditiona l knowledge being taken into consideration in the
work of the TRIPS Council.
122. The representative of Brazil, calling the atte ntion of the TRIPS Council to the developments
in other international organizations, referred to th e Conference of Parties (COP) to the Convention on
Biological Diversity (CBD) which had adopted in May 2000 in Nairobi various decisions of relevance
to the work in the TRIPS Council.7  Decision V/16 reaffirmed "the importance of making Article 8(j)
and related provisions of the Convention and provisions of international agreements related tointellectual property rights mutually supportive" and further noted that there "[are] existing
international agreements, intellectual property rights, current laws and policies that may have
influence on the implementation of article 8(j) and its related provisions".  The COP V also
recognized "the potential importance of sui generis  and other appropriate systems for protection of
traditional knowledge of indigenous and local communities and the equitable sharing of benefits
                                                     
7  See document UNEP/CBD/COP/5/23IP/C/M/27
Page 30
arising from its use to meet the provisions of the Convention on Biological Diversity, taking into
account the ongoing work on Article 8(j) and related provisions" and decided "to transmit the
findings" to the WTO and WIPO.  The programme of work on the implementation of Article 8(j) and
related  provisions foresaw various tasks:  one of relevance to the TRIPS Council was "to assess
existing sub-national, as appropriate, national and international instruments, particularly intellectualproperty rights instruments, that they may have implications on the protection of knowledge,
innovations and practices of indigenous and local co mmunities with the view to identifying synergies
between these instruments and the objectives of Article 8(j)".  The programme of work must "as
relevant, take into account the work of the Ad-Hoc Open-ended Working Group on Access and
Benefit-sharing, and, as far as possible, be carried out in collaboration with other relevant
organizations, including the World Intellectual Property Organization…".  Decision V/26 on access to
genetic resources requests "relevant international organizations, for example, the World IntellectualProperty Organization and the International Union for the Protection of New Varieties of Plants, in
their work on intellectual property rights issues, to take due account of relevant provisions of the
Convention on Biological Diversity, including th e impact of intellectual property rights on the
conservation and sustainable use of biological diversity, and in particular the value of knowledge,
innovations and practices of indigenous and lo cal communities embodying traditional lifestyles
relevant for the conservation and sustainable use of biological diversity;".  Decision V/26 also invited
the WTO "to acknowledge relevant provisions of the Convention and to take into account the fact that
the provisions of the Agreement on Trade-related Aspects of Intellectual Property Rights and the
Convention on Biological Diversity are interrelated and to further explore this interrelationship;".  The
delegation of Brazil held the view that, taking these recent decisions into account, it would of majorrelevance to the review exercise under Article 27.3(b) if the TRIPS Council could proceed with a
substantial analysis of the relationship between the TRIPS Agreement and the CBD.  As already
stated on many occasions in the TRIPS Council, both treaties were mutually supportive, but there
could be conflicts in their implementation.  The task of the TRIPS Council was not only to ensure that
the implementation of both treaties would be compatible but also be mutually supportive.  Therepresentative of Brazil further indicated that WIPO had undertaken work that was also of major
interest for the review of Article 27.3(b).  On 17 and 18 April 2000, WIPO had hosted a meeting on
intellectual property and access to genetic resources.  The meeting itself had been successful, taking
into account Brazil's point of view that the TR IPS Council, the WIPO and the CBD were capable of
establishing synergy in order to ensure the comp atibility and the mutually supportive relationship
between the different intellectual property agreements and the CBD.  As far as the Patent Law Treaty
was concerned, Brazil regretted that, in the preparatory negotiations for that Treaty, some developedcountries had refused to negotiate a provision establishing a formal requirement to identify the source
of the genetic material in a patent application.  Such a provision would be one way to establish a
mutually supportive relationship between the CDB and intellectual property agreements.  He
expressed the hope that reluctance to discuss an issue would not be repeated in other fora, especially
not in the TRIPS Council.  Brazil and other developing country Members were showing a greatdegree of flexibility and a good disposition to negotiate and conduct the debate in a substantive form.
The representative of Brazil also referred to two recent events which might need  more substantial
discussion:  the completion of the Human Genome Project and the intellectual property issues that
might arise therefrom and the challenge of a European patent relating to the "Neem" tree.
123. The statement of Brazil was supported by the delegations of Honduras, Cuba
 and India .
124. The representative of Kenya, recalling that his delegation had presented a paper on this
particular area in the General Council (docum ent WT/GC/W/302), said that the TRIPS Council
should have a keen interest in the work of other international organizations.  In WIPO, in the context
of the Patent Law Treaty, which had been concluded on 2 June 2000, there had been an agreed
statement that the proposal made by Colombia on the requirement for the identification of the sourceof the genetic resource in a patent application would be brought up in the WIPO Assemblies in
September 2000;  there was a probability that a committee of experts would look into the proposed
article.  In FAO, the International Undertaking on Plant Genetic Resources had been discussing theIP/C/M/27
Page 31
issue of farmers' rights since 1989.  He also stated that few countries in Africa had put the legislation
on plant varieties in place. The OAU (Organization for African Unity) Ministerial Council had
adopted in 1998 a Model Law for the registration and protection of communities' rights, farmers'
rights and  plant breeder's rights in order to assist those countries.
125. The representative of Singapore expressed the view that, in order to work in a useful manner,
the TRIPS Council should examine a number of points:  first, it should consider the developments that
had occurred since the conclusion of the TRIPS Agreement which might impinge on Article 27.3(b)
and the ways these questions should be dealt with.  Second, the Council should at the same time
consider the work being done in other fora, for exam ple in WIPO, in ECOSOC or  in the context of the
CBD.  An indicative list by the Chairperson woul d be a good starting-point.  However, in order to
allay the fear of some delegations that such an approach could prevent them from bringing up other
issues, the list should be circulated as a starting -point, as an indicative list, and the Council should
examine which new areas would need to be developed and take into account the work being done in
other fora.  This way of proceeding would give meaning to the word "review" and help the Council
have a focused debate.
126. The representative of Switzerland said that, in this delegation's opinion, the review under
Article 27.3(b) had to focus on two issues:  first, the scope of the provision regarding the exclusion
from patentability of "plants and animals other than micro-organisms, and essentially biological
processes for the protection of plants and animal s other than non-biological and micro-biological
processes";  and second, the system of protection for plant varieties.  According to the Swiss
delegation, such a review would be possible only once it had been established how WTO Members,
including those for whom the transition period ended on 31 December 1999, had implementedArticle 27.3(b).  With regard to the other substantive questions raised, the delegation of Switzerland
was of the view that most of them were be yond the content of the review provided for by
Article 27.3(b). Like for the field of geographical indications, an interest-based approach might be
helpful in order to carry out the review, and ef forts by the Chairperson to carry forward the
discussions should be the same for both fields.  The Swiss delegation would not be opposed to theChairperson circulating, on his own responsibility, a list of the issues raised in the discussions so far
in order to have a more structured discussion, with the understanding that such a list would be of a
purely indicative nature and be without any prejudice to the positions of delegations on the relevance
of the issues raised to the provisions of Article 27.3(b).  It went without saying that, before discussing
any issue other than the two topics, whic h were, in the Swiss delegation's view, expressis verbis
covered by Article 27.3(b), the TRIPS Council should examine carefully whether some of the issues
raised were not already dealt with in other intern ational organizations and whether in these instances
the TRIPS Council would be a competent forum to discuss such issues.  A duplication of the
discussions should be avoided
.
127. The representative of Australia said, in response to the statement made by the representative
of India, that her delegation acknowledged the fact that the issues listed on page 12 of the minutes of
the last meeting had been raised for some time.  It  also acknowledged and shared the views that these
issues were important ones. It would have no difficulty with continuing discussions in the TRIPSCouncil and would support an open-ended approach. It  wished however to make the point that the text
of Article 27.3(b) was itself quite narrow in focus.  The provision related essentially to an optional
exclusion from the scope of patentable technology.  It would be disproportionate and
counterproductive for this rather narrow provision to bear the entire weight of concerns about the
overall balance of rights and obligations in relation to biotechnology, intellectual property rights andthe TRIPS Agreement.  In that regard, there were other provisions of the TRIPS Agreement on
measures concerning abuses of intellectual property rights, including anti-competitive practices,
ethical, health and environmental patenting issues, compulsory licensing, and public policy exceptions
to the patenting criteria of novelty, of inventive step and industrial applicability in the patent law.
With regard to Article 27.3(b), the Australian delegation was of the view that a much more inclusiveapproach to information gathering was necessary.  The Australian delegation held the view thatIP/C/M/27
Page 32
discussions on more general issues in relation to the scope of Article 27.3(b) could be taken up in the
context of the review under Article 71.1.  It also pointed out that some of the issues raised were
already taken care of in the WIPO work program. It would be counterproductive to have parallel work
on the same issues.
128. The representative of the European Communities reiterated the opinion expressed by the
delegation of the EC and member States at the last  two meetings of the TRIPS Council.  As reflected
in the minutes of these meetings, his delegation had indicated that a number of very interesting points
raised would certainly require further examination and possibly clarifications.  With regard to a
structured debate, his delegation felt that such an approach was premature:  as previously stated, some
of the issues might not have any direct link with Article 27.3(b) or even with intellectual property
altogether.  In addition, other international organizati ons were dealing with the same issues.  He asked
whether a structured debate would imply that Memb ers should agree that all the issues would need to
be taken up by the TRIPS Council and raised questions for intellectual property regimes.  He called
for some caution.  With regard to the suggestion made by the delegation of India to have a discussion
issue by issue, he indicated that his delegation would not have any difficulty since it interpreted it
basically as a suggestion or a recommendation to the Chair on possible ways to conduct or guide the
discussions in the TRIPS Council and it would leave it to the Chairperson to decide.  He suggested, asone possible way to handle the process, the use,  as for some other WTO meetings, of annotated
agendas.
129. The representative of New Zealand said that there was no disagreement on the need for
continuing discussions on the review of Article 27.3(b).  His delegation fully supported any efforts to
provide more structure to future discussions in line with the mandate of Article 27.3(b) which coversthe patentability of "plants and animals other than microorganisms, and essentially biological
processes for the production of plants and animal s other than non-biological and microbiological
processes."   He expressed the belief that the Council would find a way ahead to develop a structure
for future discussions which would balance the positions of all members and recognize the parameters
of Article 27.3(b).  There could be a number of ways to achieve progress.  One would be to receivemore information on the implementation of Article 27.3(b) from Members that had not yet responded
to the Secretariat's questionnaire, and also by taking side by side progress in relation to the range of
issues raised in the checklist.  As pointed out by previous speakers, issues in relation to Article
27.3(b) were being raised in a number of intern ational organizations (e.g. WIPO, UNCTAD, CBD).
The representative of New Zealand stated that there were synergies between the WTO and these
organizations in relation to the review and his c ountry would not be adverse to the Council engaging
in closer contact with them.
130. The representative of Malaysia said that it woul d be very useful to continue the discussions,
particularly on the definitions of the patentability of life forms or the kind of "effective sui generis
system" for plant varieties, bearing in mind the issues under the CBD.
131. The representative of Japan expressed his delegation's view that a pragmatic approach and a
more organized and systematic debate that would facilitate discussion.  His delegation would
appreciate a list of the issues that had been raised in the discussions, provided it was understood to be
without prejudice to the positions of delegations on the relevance of the issues to the mandate given
by Article 27.3(b).  In his delegation's view, the review mandate given by Article 27.3(b) was a very
limited one.  He further gave his delegations's views on several issues.  First, Japan would be opposed
to proposals which would lead to the reduction of the existing level of protection described underArticle 27.  Second, the concept of traditional knowledge was not yet clear nor was its relation with
existing IPR systems.  In this respect, the delegation of Japan held the view that this sort of
fundamental question had to be addressed before the issue could be taken further.  Third, regarding
the proposal that patent applications should disclose the source or origin of any biological resource
used in an invention, the provisions of Article 27.1 on non-discriminatory treatment as to the field ofIP/C/M/27
Page 33
technology had to be taken into account.  He recalled suggestions for the future launching of a study
by WIPO in this area.  Input from WIPO woul d contribute to the TRIPS Council's discussions.
132. The representative of Turkey said that the review and the implementation process of
Article 27.3(b) had a vital importance in terms of filling the gap between that Article and the other
international conventions and agreements.  It woul d help to find a compromise between the different
approaches to identifying the issues at the conjunc tion of the trade-related intellectual property rights
and the biological diversity.  Being a country rich in genetic resources and a party to the Convention
on Biological Diversity (CBD), Turkey was fully aw are of the importance of the spirit of both the
Convention and its Protocol on Biosafety, as upholding genetic and biological diversity as a common
asset for mankind.  In addition, the Convention took into account the rights of the country of origin.
In this regard, during the review process of Article 27.3(b), the TRIPS Council should take into
account the natural rights of the country of origin of genetic resources.  Article 27.3(b) should beharmonized with and should be mutually supportive of the related articles of the CBD, namely
Articles 8(j), 15, 16 and 19, and also particularly with the outcome of the 5
th Conference of the Parties
to the CBD.  The review process under Article 27.3(b) should consider the clarification and the
standardization of terminology regarding biotechnological inventions, namely plants and animals,
plant and animal varieties,  microbiological processes, essentially biological processes and effectivesui generis  systems, taking into consideration other related conventions and  agreements.  Considering
the complexity of the required work, the review process of Article 27.3(b) should be expanded with a
view to clarifying the implications of the TRI PS Agreement on the following:  farmers' privileges;
biodiversity conservation objectives and protection systems;  the relationship and conflicts between
Article 27.3(b) and the rights of the countries of origin of genetic resources and traditional knowledge,within the framework of concerns over trade and competitiveness in food and agriculture;  and the
relationship and conflicts between Article 27.3)(b) and the CBD.  The TRIPS Council should invite
the CBD Secretariat to participate in the meetings  of the TRIPS Council as an observer in order to
establish the necessary links in a timely manner.
133. The representative of Norway said that, while agreeing that Article 27.3(b) could be of a
technical nature, his delegation held nevertheless the view that it was not possible to disregard the
underlying issues pertaining to the formulation of Article 27.3(b).  Moreover, WTO Members should
not leave it exclusively to other organizations to discuss the relationship between Article 27.3(b) and
issues of concern to those organizations.  It was important that the TRIPS Council tackle these issues
so it would be able to also form an intellectual property perspective as an element of balance in regard
to all the important issues raised.
134. The representative of the Philippines said, in reaction to the statement that it would not be
acceptable to have a system which would lead to a diminution of the level of protection under
Article 27.3(b), that any such a priori conclusions should not be allowed to prevent the TRIPS
Council from complying with its obligations, from considering other delegations' concerns in relation
to Article 27.3(b) and from discussing these concerns on their merits.
135. The representative of South Africa recalled that the paper tabled by the African Group before
the Ministerial Conference of Seattle contained elements which had been identified as being relevant
for consideration under Article 27.3(b).  In addition to the issues of an effective sui generis  system for
plant varieties and  the patentability of life forms, the paper by the African Group had also identified a
third element:  that of coherence with other international organizations.  The representative of South
Africa called the attention of the TRIPS Council to  the last paragraph of the preamble of the TRIPS
Agreement ("Desiring to establish a mutually supportive relationship between the WTO and the
World Intellectual Property Organization … as well as other relevant international organizations;").
This paragraph constituted a sufficient basis for considering what was being conducted in other fora
although it did not address the objectives.IP/C/M/27
Page 34
136. The representative of India, in reply to the in tervention that the requirement to disclose the
source of the genetic resource in a patent application might not be compatible with the non-
discrimination clause in Article 27.1 of the TRI PS Agreement, indicated his disagreement concerning
such an interpretation.  He also expressed concerns  with regard to the opposition to any outcome that
would lead to a diminution of the patent protection currently available under Article 27.  In his view,
there were really three options under Article 27.3(b):  protection by patents, protection by an effective
sui generis  system or a combination thereof.  Therefore to say that anything other than a patent system
should conform to the level of patent protection currently enjoyed under Article 27 would be against
the reading of the text and would amount to an interpretation of the provisions.
137. The representative of Canada said that his delegation believed that not all of the issues raised
in the TRIPS Council under Article 27.3(b) would fall under this item of the agenda.  As the
delegation of Australia had pointed out in previous interventions, some of the issues could be taken upunder the review of Article 71.1.   The representative of Canada also noted that some of the issues
were being considered within WIPO, the CBD and the FAO. His country encouraged and supported
the work in these organizations, particularly in light of the complex nature of the work and the need
for further definition of some concepts such as traditional knowledge.  The TRIPS Council, in his
delegation's view, should monitor and be informed of  developments in these fora.  However, in the
interest of advancing discussion, his delegation was in support of the Chairperson's efforts to structure
the review on his own initiative, provided that th is did not prejudice the position of any Member with
respect to the scope of Article 27.3(b).  Such discussions would be enriched by drawing on the
experience of Members in their implementation of Article 27.3(b).
138. The representative of Colombia said that the TRIPS Council should take into account the
progress made in other fora in order not to "re-in vent the wheel" without, however, leaving it in the
hands of these fora.  It should use the existing synergies to carry out the work together and
simultaneously with these organizations.
139. The representative of Korea thanked the Chairperson for his constructive initiative to move
forward the discussion.  His delegation echoed the concerns expressed by previous speakers in
particular the Australian delegation, that some of the issues contained in the list would, in its view, go
beyond the mandate of Article 27.3(b).  Since developing countries had just entered into the
obligation of implementing Article 27.3(b), his de legation held the view that the TRIPS Council
should focus on the implementing aspects and colle ct more information.  With regard to the
relationship between the TRIPS Council and other intern ational organizations, it shared the view that
the TRIPS Council could, through a closer cooperation, benefit from the expertise of these
organizations in their respective areas.
140. The delegation of Namibia expressed concerns regarding the use of the so-called "technical"
argument in certain situations, for example in the case of peoples or communities which had for years
been using medicines coming from a certain plant a nd which had to face the objection that a company
had acquired rights over that plant.  To the exte nt that the TRIPS Council was dealing with "technical"
issues, it should not lose sight of the human and developmental dimension.
141. The representative of Cuba expressed the view that the review of Article 27.3(b) should
recognize the public and private interests involved in the various areas and the technical aspects at
stake.  It would also be necessary to recognize the issues of access to and sustainability of genetic
resources.
142. The Council took note of the statements made and agreed  to revert to the matter at its next
meeting.IP/C/M/27
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L. REVIEW OF THE IMPLEMENTATION OF ARTICLE 71.1
143. The Chairperson recalled that, at its last meeting, the Council had had a preliminary exchange
of views on this matter.  It had been agreed that delegations should reflect further on the nature and
scope of the review and delegations had been invite d to come forward with written suggestions as to
how the Council might best approach the review .  Australia had recently done so in a non-paper.
144. The representative of Australia said that the submission of her delegation had been circulated
as a non-paper so that it could take into account views expressed by other delegations on it before it
would circulate a formal document on the matter.  The non-paper was intended to promote discussion
and put forward some ideas as to how the review might be undertaken to be as productive as possible
in the course of 2000 and 2001.  The paper was built on Australia's intervention at the Council's
previous meeting (paragraph 95 of document IP/C/M/26).  The TRIPS Agreement foresaw, first,
implementation of existing TRIPS standards at the national level;  secondly, notification of relevantlaws by Members implementing the Agreement, and review of their intellectual property systems;
thirdly, a collective review of the implementation of the Agreement; fourthly, consideration of
possible amendments and modifications in the light of the experience of implementation and other
developments;  and, finally, formulation of recomme ndations for modification or amendment.  Article
71.1 exemplified this approach, as it limited the general review the TRIPS Agreement mandated for2000 to implementation only and laid down a clear sequence for future work.  A review of
"implementation" as provided for in Article 71.1 should cover the implementation of existing
standards and policy options, rather than the consideration of the imposition of new or modified
standards.  Converting the Article 71.1 review into a preamble for negotiations rather than having a
constructive exchange of factual information about implementation would greatly restrict the flow ofuseful information and could deny Members the opportunity to learn in a collective manner how
TRIPS standards might be best put into operation so as to garner the benefits of intellectual property
protection.  To be complete, the Council's review  of implementation would need to draw on the
experiences of a wide cross-section of Members.   A progressive, structured approach to the
Article 71.1 review would be the most likely way to deliver a balanced, comprehensive and inclusiveunderstanding of the operation and impact of the TRIPS Agreement for the full range of WTO
Members.  This approach had been followed in the Article 27.3(b) and Article 24.2 reviews and a lot
of information had been provided to the Council for further discussion and analysis.  The Article 71.1
review needed to have an inclusive approach and should allow an opportunity to those Members who
had recently implemented the TRIPS standards to come forward with information on how they had
done so.  Therefore, Australia's non-paper contained a specific proposal that, in the period 2000-2001,
the TRIPS Council should conduct an inclusive review of the implementation of the TRIPS
Agreement by facilitating an exchange of experience of implementation at the domestic level,
including by those Members that had made use of the Article 65.2 and 65.3 transition periods. This
would yield the necessary information about "the experience gained in the implementation of the
Agreement" that the TRIPS Council was required to  draw on in its subsequent reviews under
Article 71.1 as from 2002.  The 2000 review under Article 71.1 need not be limited to the notificationand documentation of domestic IP laws.  The non-paper contained some illustrative examples of
issues that could be discussed.  These included measures to counter anticompetitive abuse of IPRs
under Article 40;  implementation of existing TRIPS standards in the digital environment;  and IPRs
in traditional and indigenous contexts.  Finally, she noted that Article 71.2 provided for a possibility
of amending the TRIPS Agreement so as to adjust "to higher levels of protection of intellectualproperty rights achieved, and in force, in other multilateral agreements and accepted under those
agreements by all Members of the WTO".  It appeared that no such agreement existed at the moment
but in time there might be agreements that could be considered under that provision.  She proposed
that the TRIPS Council keep under review releva nt multilateral agreements which might become
eligible for consideration under that provision.IP/C/M/27
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145. The delegations of Argentina, Brazil , Canada , the European Communities , Korea , Malaysia ,
Peru, the Philippines , the United States  and Venezuela  expressed their appreciation for the Australian
contribution and said that they would come back to the non-paper in detail after having studied it
more carefully.  The following preliminary remarks were made.
146. The representative of the Philippines said that, taking into account the General Council
decision of 7 and 8 February 2000, the Article 71.1 review must analyze the impact of the
implementation of the TRIPS Agreement on the trade and developmental prospects of developing
countries.  There should be no a priori  conclusion as to whether or not the review might lead to the
negotiation of amendments to the text of the Agreement.  If implementation of the Agreement
appeared to have a negative impact on developmental prospects, negotiation of amendments would be
warranted.
147. The representative of Peru said that the development aspect should be part of any review of
the implementation of the TRIPS Agreement.  In her delegation's view, the Australian non-paper
contained a contradiction.  On the one hand, it recognized that it was necessary to widen the list of
beneficiaries in order to improve the IP system but, on the other hand, it proposed that the review be
limited to the implementation of the provisions of the Agreement.  She also said that there was
discriminatory treatment of some subjects in the non-paper, emphasizing that traditional knowledge
was already being discussed in various fora, while electronic commerce had only recently come to the
fore as an issue deserving detailed consideration.  The review under Article 71.1 required an open
mind and flexibility.
148. The representative of Venezuela supported the Philippines and Peru.  He recalled that
proposals had already been made in the context of Article 71.1, in particular on traditional knowledge.
Apart from the mandate in Article 71.1 itself, the General Council had decided that reviews under the
built-in agenda should analyze the impact on the trade and development prospects of developing
countries.  His delegation did not have problems with the specific topics referred to by Australia and
was of the view that each Member's priorities should be respected.  In relation to WIPO's work on
these topics, the Council should establish clear principles and avoid duplication.
149. The representative of Argentina referred to the distinction between, on the one hand, the
review of the implementation of the Agreement after the expiration of the Article 65.2 transitional
period and at two year intervals thereafter and, on the other hand, reviews in the light of new
developments which might warrant amendment of the Agreement.  In general, she agreed with the
statements made by Australia and Brazil at the previous Council meeting to the effect that Article 71.1
included a logical sequence and it would not be reasonable to change that.  The Council should
concentrate on examining the implementation of obligat ions that already existed taking into account
the fact that the implementing legislation of the majority of developing countries had not yet been
subject to review by the Council.
150. The representative of New Zealand said that the Australian non-paper addressed a number of
issues with which his delegation had also been grappling.  He agreed that the review should focus on
implementation issues and also address the impact on development in line with the General Council'sdecision.  This melded well with the emphasis on th e need for an inclusive approach as suggested in
the Australian non-paper.
151. The representative of Kenya said that during the Uruguay Round negotiations Kenya's
participation had been very slim, and it had gone through difficulties in implementing the Agreement,
which difficulties it would like to be looked at in the course of the review.  The impact of theAgreement on trade and economic development of developing countries should especially be looked
at in the fields of health, food, environment, fore ign direct investment and technology transfer.  The
review should accommodate certain areas of protection and intellectual creation, especially traditional
creations by communities.  Some of the problems faced by Kenya in implementing the AgreementIP/C/M/27
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concerned difficulties in interpreting some of its provisions and terms.  More clarity was needed in
this regard.  For example, Articles 7 and 8, which were crucial for the developing world, were
difficult to operationalize.  Article 31 was very restrictive, and its long list of conditions was
sometimes not practical.  Guidance was also needed on Article 6, given his delegation's interest in
parallel importation.  Capacity building was a concern to all.  Referring to Articles 67 and 66.2, hesaid that practical assistance was needed to help developing countries to reap the benefits of the
Agreement.  The benefits that should accrue from the implementation of the Agreement were long
term benefits.  In the short term, it had to be ensured that consideration was given to assistance and
market access to developed country markets so that developing country Members could effectively
participate in international trade.
152. The representative of South Africa emphasized the need to take into consideration
developmental aspects in line with the General Council's decision.  The issues raised by Kenya would
give flesh to the objectives of that decision.  The Council could also assess whether the measures
notified under Article 66.2 had actually helped in transferring technology to least-developed country
Members.
153. The representative of Malaysia, emphasizing that developmental aspects had to be considered,
said that the Council should take a look at some practical problems in implementation, such as the
implications of the extension of the term of patent protection to 20 years, abuse of IPRs, in particular
whether there had been restrictions on technology transfer, and how to ensure access to essential
goods through reasonable pricing for such goods.  In addition, the Council might have a look at the
high costs involved in enforcement and ensu ring full implementation of the Agreement.
154. The representative of the United States observed that contributions such as the Australian
non-paper generated a good deal of discussion and encouraged those who were concerned with
moving issues forward under other agenda items to similarly bring papers forward.  He believed that
they would find that substantive discussions could be had and progress would be made.
155. The representative of Canada said that Australia's non-paper presented the logical sequence of
the operation of the Agreement and situated the Article 71.1 review in an appropriate context in
relation to the other reviews under the Agreement as well as to the consideration of possible
recommendations to a future Ministerial Conference for changes to the Agreement.
156. The representative of Australia thanked Members for the interest shown towards her
delegation's non-paper and for the substantive comments and suggestions made.  She reiterated that
the suggestions made in the non-paper under the heading "Structure and Scope of the Review" were
for the sake of illustration only and encouraged delegations to comment also on how exactly the
review should be conducted, as there did not yet seem to be an agreed view as to how, as a practicalmatter, the review should move forward.  Since this  would need to be agreed as a preliminary matter,
her delegation would welcome such comments, either in writing or bilaterally.
157. The Council took note of the statements made and agreed
 to revert to the matter at its next
meeting.IP/C/M/27
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M. NON-VIOLATION COMPLAINTS
158. The Chairperson said that, since the Council ha d last met, it had received on the issue of
non-violation complaints a submission co-sponsored  by Brazil, Canada, the Czech Republic, the
European Communities and their member States, Hungary and Turkey,8 and a submission from the
United States.9
159. The representative of the European Communities,  said that feedback on the joint submission
his delegation was co-sponsoring had confirmed his delegation's determination to continue the
discussion on the scope and modalities of possible non- violation complaints in the TRIPS context.  He
encouraged other Members to make proposals as well.  Highlighting some key elements of the
submission, he emphasized the sui generis  character of the TRIPS Agreement and the need for
coherence among different WTO agreements.  Concerning the sui generis  character of the agreement,
he said that, whilst it was true that the TRIPS Agreement facilitated market access for goods andservices in which intellectual property rights subsisted, it was not a market access agreement as such.
Even though there was a link with market access, it should be borne in mind that  market-access
commitments were encapsulated in Members' respective GATT and GATS schedules as negotiated in
successive Rounds.  The TRIPS Agreement provided a number of minimum standards with regard to
the acquisition and exploitation of intellectual property rights and their scope, as well as proceduresand measures to enforce those rights, in particular by providing for effective action against
unauthorized use of those rights by third parties.  Complaints could fall within the possible ambit of a
non-violation case under the TRIPS Agreement when they were primarily linked to benefits that could
reasonably be expected to result from the conferral of intellectual property rights and their exclusivity,
i.e. benefits that were specific to the TRIPS Agr eement.  Cases where limitations on the availability,
maintenance and enforcement of an intellectual prop erty right were the specific object of a complaint
might fall within this category.  Intellectual property rights were invariably linked to goods or services
for which market access rights had been negotiated in the context of GATT or GATS.  It was
important to ensure that a complaint lodged under a particular WTO agreement should not lead to a
dispute settlement result that could undermine the coherence among WTO agreements.  This wasespecially relevant in the field of non-violation complaints to the extent that these related not to the
breach of an international obligation accepted by a Member, but to the nullification or impairment of a
benefit without any provision having been specifical ly violated.  In light of these examples, it was
questionable whether WTO Members would be in favour of leaving open the option of non-violation
complaints under the TRIPS Agreement, if the measure were found to be in full compliance with
multilateral provisions under the GATT and its annexed agreements or GATS.  As a minimum, in
order to maintain consistency among the WTO agreements, measures that fell within the generalexceptions found in GATT or GATS should not be subject to dispute settlement under the TRIPS
Agreement.  He hoped that the Council would be ab le to discuss these key elements at the current
meeting and possibly at future meetings.  He was sure that much remained to be said on this issue and
that the Council was only at the beginning of a brainstorming exercise.  He drew attention to a recent
panel report on government procurement
10 which had elaborated on the nature of non-violation cases
and was worth looking at.  It demonstrated the need for the TRIPS Council to address possible non-
violation complaints under the TRIPS Agreement, rather than leaving the issue up to future panels.
160. The representative of the United States said that his delegation remained of the opinion that
the moratorium on the filing of non-violation complaints in Article 64.2 had expired and that nothing
in Article 64.3 required the Council to use its scarce time to discuss further the scope and modalitiesof non-violation complaints.  Article 26 of the DSU adequately addressed the questions of scope and
modalities of such complaints.  Nevertheless, his delegation was happy to respond to submissions by
other delegations on this subject.  Highlighting some of the points in his delegation's paper, he said
                                                     
8 For the text of this submission, see document IP/C/W/191.
9 For the text of this submission, see document IP/C/W/194.
10 Korea – Measures affecting government procurement (WT/DS163/R) .IP/C/M/27
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that the TRIPS Agreement was a market access agreement.  When negotiating for reductions in tariffs
on certain products for which they had a competitive advantage, or to eliminate a quota on those
products, Members anticipated a certain level of market access that would result from such changes.
The standards and procedures established by the TRIPS Agreement were for the identification, grant,
enjoyment and enforcement of private rights in most cases but, in the same way as the TBT or SPSAgreement, established minimum standards that governments must meet before imposing limitations
on goods that might be sold in their markets based on health, environment or other factors.  In the
absence of such agreements, Members' expectations of the level of market access obtained could be
frustrated.  The obligations of the TRIPS Agreement opened markets to increased trade in legitimate
goods and provided consumers with real freedom to choose among an increasing range of high quality
and technologically-advanced products.  The protection provided through the implementation of the
TRIPS Agreement also enabled producers of such goods to invest in such product differentiation withgreater assurance that their investments would be rewarded.  The TRIPS Agreement therefore was a
market access agreement, because it would help reduce unpredictable market distortions that existed
prior to its negotiation by establishing adequate standards and principles concerning the availability,
scope and use of trade-related intellectual property rights and by ensuring that effective and
appropriate means for enforcement of those rights were available.  Referring to a paper submitted bythe European Communities to the Special Session of the Committee on Agriculture
(G/AG/NG/W/18), in which the EC had referred to the "essential link" between market access and
those issues, his delegation was pleased to note that the EC had altered its view of the relationship
between market access and issues such as fair competition, consumer protection and protection
against usurpation of names - issues which the TRIPS Agreement had been negotiated to address.With regard to coherence, an issue addressed in the EC paper, if the possibility existed that a
complaint lodged under the TRIPS Agreement might undermine the overall coherence among WTO
agreements, then that same possibility existed wi th respect to all WTO agreements.  However, the
Marrakesh Agreement was the result of a single undertaking, so that it was highly unlikely that a
panel would determine that something a WTO Member had agreed to under one part of that singleundertaking, in fact, nullified and impaired benefits in another area.  Since one of the conditions that
must exist for a non-violation complaint was that the measure that was the subject of the complaint
could not have been foreseen at the time the benefit had been negotiated, it should be obvious that, if
another WTO agreement provided for a measure, that  measure had been foreseen at the time of the
negotiations and the complaint would likely fail.
161. The representative of the European Communities said that the approach in the joint paper on
non-violation complaints was that the TRIPS Agreement was not a market access agreement per se
but, as also stated in his delegation's paper submitted in the agricultural negotiations, there was a link
with market access.  He was puzzled by a passage in the paper from the United States which said that
there was scope for a number of non-violation cases under the TRIPS Agreement, but that it was
probably very limited. He therefore could not understand the final conclusion in the US paper that
there was no purpose in continuing the discussion of scope and modalities in the Council, because themere fact that one could think of cases in this area was a sufficient reason to continue the discussion
in the Council.  The statement in the US paper,  under the heading "The TRIPS Agreement is one part
of a coherent system of agreements", that the focus of the Council should be on the results of cases
and not on the filing of complaints, also contradicted the conclusion of the United States that the
subject should not be discussed, since it suggested that the Council should address certain aspects.Moreover, his delegation believed that it was important to discuss not only the results of cases but
also the filing of complaints, because any procedure either in the DSB or before a national court
began with the filing of a complaint and therefore with the admissibility of a complaint.
162. The representative of Hong Kong, China said that his delegation supported the suggested
follow-up action in paragraphs 12 and 13 of the joint paper.  Members had gone through a debate on
the interpretation of the provisions of Article 64 in the process leading to the Seattle Ministerial
Conference, but had missed the deadline in forging a consensus in their discussion under Article 64.3,
although they had come very close to it.  They needed some extra time but not any sudden death.IP/C/M/27
Page 40
WTO Members were engaged in a critical confidence-building stage.  The display of goodwill on
Article 64 on the part of all Members since Seattle was highly commendable.  It would be best if this
display of goodwill were further deepened.  His delegation agreed that the WTO membership should
try and inject some pragmatism with a sense of urgency into the mandated task under Article 64.3.
Referring to the last paragraph on page 3 of the US paper, which commented on an example given inthe joint paper, he said that it was quite clear that Members might have different views which did not
converge with respect to the same subject-matter or the same example, whether hypothetical or real.
He recommended that the US delegation show the constructive spirit which it had so usefully
displayed in the presentation of its paper.  This was precisely what the Council needed:  to engage in a
constructive dialogue on the scope and modalities, by exchanging individual views on examples of
possible non-violation complaints.  Such examples could be real or hypothetical.  He had also read
with keen interest the second-last paragraph of th e US paper stating that "It was the view of the
United States that a number of instances in which non-violation complaints could succeed in the WTO
in relation to the TRIPS Agreement or any other agreement for that matter is very limited."  His
delegation agreed.  Going to a dispute settlement panel was always a major commitment and one had
to assess the merits of a potential case critically including, among other things, whether one could
demonstrate clearly that nullification or impairment of  benefits accruing to a Member or alleged to be
accruing to a Member had actually taken place.  The view expressed in the second-last paragraph of
the US paper showed that there was scope and a need to study further this important issue.
163. The representative of Canada said that the paper his delegation had co-sponsored recognized
the importance the sponsor delegations attached to an examination by the Council of the scope and
modalities of the non-violation remedy.  He also referred to the paper submitted by Canada in 1999 onthis issue.
11  His delegation had already noted why the application of the remedy within the GATT
system to date was an inadequate guide as to how it would apply in the context of the TRIPS
Agreement, which was a minimum standards agreement rather than a pure market access agreement.
As a first comment on the US paper, his delegation disagreed with the view it put forward that the
Council had examined the scope and modalities of this remedy in 1999.  In fact, the discussion hadcentred on the concern that the Council had in fact not discharged its responsibility.  His delegation
believed that it was important that the Council consider the many options and ideally come to some
conclusion and recommendations regarding the application of the remedy.  The alternative would be
to delegate the responsibility of the Council set out in Article 64.3 of the Agreement to potential
dispute settlement panels.  In the absence of a common understanding among Members about this
remedy, there was a potential chilling effect on the regulatory process.  This warranted continued
restraint by Members in applying the remedy until the Council had fully considered the questionsraised by its application.  The joint paper started this process of examination.  He urged other
Members to come forward with ideas to advance the examination of the scope and modalities and said
that he might also have further comments on the US paper including its views on the nature of the
TRIPS Agreement.  Further discussion of this point would be of considerable value for future
Ministerial Conferences and Ministers would find it of considerable benefit if the TRIPS Council hadconsidered this and come to some conclusions.  He welcomed the United States' willingness to
participate in the discussion by presenting its paper.
164. The representative of Australia found the joint paper a particularly constructive addition to the
Council’s discussions on non-violation disputes and would provide detailed comments on it and the
US paper at the next meeting.  Her delegation believed that discussions on the scope and modalities ofnon-violation complaints should continue in the Council and saw a need to establish a conceptual
framework and a process for working on draft recommendations in the Council.  The Council should
avoid a situation where the scope and modalities of non-violation complaints would be determined
opportunistically, in a case-by-case way in individual disputes.  To this end, her delegation was in the
process of preparing a paper which would set forth some ideas to facilitate Council discussions onthese issues canvassing the range of factors that might be considered, rather than promoting any one
                                                     
11 See document IP/C/W/127.IP/C/M/27
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interpretative approach.  Before briefly explaining some of the ideas in the draft paper, she wished to
make the following observations.  The limited debate  so far in the Council appeared to assume that
the non-violation mechanism would be used directly to promote the interests of individual holders of
IPRs in export markets.  The TRIPS Agreement did not call for the protection of private IPRs as an
end in itself, but within a balanced public policy framework.  An assessment of benefits andobjectives of the TRIPS Agreement should pay heed to the stated objectives and Preamble of the
Agreement.  Non-violation cases had been tr eated with circumspection in general GATT/WTO
jurisprudence and any recommendations on scope and modalities in relation to the TRIPS area should
reflect this cautious approach.  Australia did not acc ept the view put forward in the US paper that the
period for discussion of views on scope and modalities of non-violation complaints had passed.  The
Council had, under Article 64.3 of the Agreement, an undischarged responsibility to prepare
recommendations on the scope and modalities of non-violation TRIPS disputes.  Her delegation
concurred with the view of some delegations that the moratorium had technically expired, but equally
accepted that work on scope and modalities should continue in earnest.  She suggested that those
Members speaking most strongly in favour of the need for non-violation disputes in the TRIPS
context should come forward with illustrative exampl es of how this right would be usefully exercised.
Her delegation believed there were several key issues to be considered in formulating TRIPS Councilrecommendations:  first, what was meant by "scope" and "modalities", in order to determine the
nature of any recommendations;  second, what was meant by the key concepts of "benefit accruing
directly or indirectly under the Agreement", "nullification or impairment" of such a benefit, and
"impediment to the attainment of any objective of TRIPS".  Consistent with the general principles of
treaty interpretation, she suggested there were thre e complementary approaches to interpreting these
key issues:  analysing the terms in their direct context within the relevant WTO agreements (TRIPS,
DSU and GATT 1994);  reviewing the GATT/WTO dispute settlement practice on non-violation
disputes in other fields (essentially trade in goods); and reviewing the negotiating history of the
TRIPS Agreement.  She would present these views in more detail to Members at the next meeting.
Her delegation supported the suggestion made by Hong Kong, China that it could be valuable topresent specific dispute scenarios to help give form and substance to this discussion and she
encouraged those with an interest in the issue to come forward with them to help the Council's work
proceed.
165. The representative of St. Lucia said that her comments on the papers were preliminary.
Although Article 64.2 referred to a period of five years with respect to the non-applicability of
subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994, Article 64.3 mandated work which the
Council was to complete during that period of tim e, including the submission of recommendations to
the Ministerial Conference for approval.  The Council had not completed the work mandated by
Article 64.3 and her delegation read the provisions of Article 64.2 in that context.  Referring to the
joint paper, she stressed in particular paragraph 10, which addressed the need to maintain coherence
among the different WTO agreements and provided some interesting illustrative examples.  Her
delegation was also mindful of the general views expressed by the panel in the recent case of Korea –
Measures affecting government procurement (DS163)  on non-violation complaints in the context of
customary international law.  The views of that panel, which it suggested reflected general
GATT/WTO jurisprudence on non-violation claims , enhanced her delegation's concerns over
permitting non-violation claims in the context of the TRIPS Agreement.  The notion that non-
violation complaints may extend beyond the traditional approach represented by pacta sunt servanda
in the context of Article 26 of the DSU underscored the need for further deliberations on this issue in
the Council.  Her delegation did not support the view that the period for discussion of scope and
modalities of non-violation complaints had passed and that no purpose would be served in continuing
discussions.  She welcomed the suggestion of the US that the Council undertake further debate on its
paper at future meetings.  Other provisions in WTO agreements which had been expressly applied on
a provisional basis and had lapsed remained the subject of continuing discussions.  The language of
Article 64 of the TRIPS Agreement, in contrast with other provisions such as Article 31 of the
Agreement on Subsidies and Countervailing Measur es, was forward looking.  It anticipated a
considered debate on this issue by the Ministerial Conference, or at least the General Council actingIP/C/M/27
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on its behalf, before subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 could form a basis
for a complaint in dispute settlement proceedings under the TRIPS Agreement.  Article 64 called for a
political decision to be made by the collective Membership and demanded due restraint on the part of
all individual Members.
166. The representative of Korea, providing pre liminary comments on the joint paper, believed
that it represented a constructive initiative for the discussion to move forward by focusing on scope
and modalities rather than on futile debates on whether extension of the moratorium was legally
warranted or not.  Whilst his delegation agreed in principle with many points raised in the EC paper, it
also believed that the possible application of non-violation complaints to the TRIPS Agreement
involved many more issues such as, for example, a clear distinction between violation and
non-violation complaints;  the relationship between trade-related intellectual property rights and the
general principles and objectives of the Agreement;  and the balance between national sovereigntyand specific public policy objectives and private rights.  Therefore, it was necessary and useful to take
a wider and more comprehensive look at this issue in  future deliberations and analysis.  Some of these
issues and the need to study them further were mentioned in the EC paper and the listed issues were
not exhaustive.  His delegation would participate in this discussion and would aim at submitting a
paper before the next meeting.
167. The representative of Chile, commenting on the joint paper, said that his delegation agreed
that the TRIPS Agreement had a special nature that merited extreme caution when transposing into
the Agreement institutions or regulations proper to an agreement concerning goods and market access.
His delegation considered that there were particular difficulties in examining non-violation complaints
in the light of the minimum standards of the TRIPS Agreement and that this question had not beensufficiently or adequately analyz ed in the Council.  He drew attention to the fact that on only six
occasions had this subject been addressed in the last five years, and in far fewer had it been addressed
truly in the terms mandated by Article 64.3.  Subjects of less importance and less complexity had been
under discussion for years in this Council without results to date.  The subject of non-violation
complaints under the TRIPS Agreement should be addressed substantively by the Council so as toarrive at recommendations and decisions.  The Council should not allow a mandate to be implemented
inadequately without such recommendations and decisions.  His delegation shared the considerations
expressed in the joint paper to analyze this questi on both with respect to the special nature of the
Agreement and the necessary coherence which should exist among the distinct WTO agreements, a
matter which had been the subject of concern in the context of other discussions which were
underway in other subsidiary bodies of the WTO.  Other considerations might also be relevant within
the context of this discussion.  His delegation therefore supported the idea in the joint paper to give areal opportunity to continue the debate on this subject.
168. The representative of Japan said that the scope of non-violation in the context of the TRIPS
Agreement seemed rather vague, because non-violation complaints had not occurred so often under
other agreements.  There was only a limited amount of  analysis on this issue.  Therefore, it was
difficult to predict what could be relied on in  a non-violation complaint and what was beyond its
scope in the TRIPS context.  This situation could cause problems not only to a panel which had to
deal with non-violation complaints within the TRI PS area, but also to the authorities of Members
which had chosen legitimate national IP policies.  The same applied to those who wished to rely on
the non-violation complaint procedure in the context of the TRIPS Agreement.  In his delegation's
view, there should be a commonly shared understanding as to the scope and modalities ofnon-violation complaints in the TRIPS area.  Japan was preparing a paper which it hoped to submit
soon. As to the question of whether the TRIPS Agreement was a market access agreement or not, he
expressed the view that, even if it were such an agreement, it had its own distinctive character, and
therefore, additional considerations were more or less needed to analyze the application of non-
violation under it.  The concept of non-violation basically entailed that WTO Members should not be
deprived of the benefits of concessions granted to them in trade negotiations by lawful but
unanticipated actions of another Member.  This was based on the assumption that the complainingIP/C/M/27
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Member had agreed to provide reciprocal concessions in the context of the same negotiations.  In
other words, the rationale of non-violation was to protect the overall balance of concessions which
could be reasonably expected at the time the agreement had been reached.  When analyzing the
application of non-violation specifically in the context of the TRIPS Agreement, one had to consider
issues such as what were the concessions made in the TRIPS context and what were the reasonableexpectations in the TRIPS context.  When considering these reasonable expectations, one might have
to take into consideration the Preamble of the Agreement, which expressed the underlying purpose
and objective of the Agreement.  He supported the suggestion for a case-study approach in addition to
the theoretical analysis approach suggested in the joint paper.  If the Council were to examine the
applicability of non-violation complaints by means of  hypothetical examples, it would be able to do a
more concrete and easy-to-understand examination of scope and modalities.  Alluding to possible
categories of hypothetical examples that would be described in Japan's paper, he mentioned, first,laws and regulations which affected the exploitation of an IPR and which might reduce the value of
IP;  second, administrative or judicial interpretatio ns of the TRIPS Agreement that might be consistent
with the express terms of the Agreement but nonetheless might be argued to undermine the
anticipated value of IPRs;  and third, enforcement measures which were under-protective or
overprotective of IPRs and therefore reduced the expected value of IPRs.  The Council shouldexamine the scope and modalities of non-violation complaints in the TRIPS context, because this
would contribute to increased predictability and legal stability which all involved would benefit from.
169. The representative of Argentina agreed in ge neral terms with the joint paper.  Argentina
agreed that there was a substantial difference between the TRIPS Agreement, on the one hand, and the
GATT and GATS on the other, which required Members to establish with clarity and precision thenature and characteristics of complaints that woul d fall within the scope of the TRIPS Agreement, in
order to ensure coherence among the different agreements.  She joined those delegations which had
sought that this issue should remain on the agenda of the Council.
170. The representative of South Africa said that his delegation was among those which supported
a continued discussion of scope and modalities.  The Council was currently in a "legal vacuum"
resulting in an unpredictable state of affairs as far as the scope and modalities to deal with
non-violation complaints were concerned.  The Council also had the option to leave the matter to
panels to decide on a case-by-case basis, but his delegation was of the view that it was important for
the Council to show leadership, i.e. that Members were prepared to take responsibility and take
decisions.  A decision on scope and modalities of non-violation complaints would be of a political,
not just a legal nature.  In his view, the dispute settlement mechanism was basically inaccessible for
developing countries, not to mention least-developed countries;  this situation would worsen if theCouncil did not address issues such as the present one.  It was not accurate to say, as the US paper
stated, that the TRIPS Council had fully examined the scope and modalities of non-violation
complaints and, in any event, it was unhelpful to the development of the WTO system if the Council
would not continue its examination merely because the time had lapsed for this examination
irrespective of whether the issue had been dealt with sufficiently.
171. The representative of Poland referred to her delegation's statement at the previous meeting on
behalf of the CEFTA countries and Estonia and Latvia, emphasizing those Members' interest in
further substantive discussions and further in-depth an alysis of this matter and their belief that these
discussions should aim at forging consensus on the recommendations on scope and modalities
required by Article 64.3.  She reiterated the view that non-violation complaints remained inadmissibleunder the TRIPS Agreement until a decision were made by the Ministerial Conference, approving
such recommendations.  She associated her delegation with the comments and observations made in
the joint paper, especially those regarding the specific nature of the TRIPS Agreement and the need to
maintain coherence among the different WTO agreements.  Her delegation shared the concerns
expressed about potential attempts to use the non-violation complaints mechanism for unfaircompetition purposes or against honest commercial practices.  The examples given in this context
adequately illustrated the consequences and implications that the application of this mechanism inIP/C/M/27
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cases involving intellectual property rights migh t entail.  Poland supported the follow-up action
suggested in the joint paper and the proposal to continue the debate on scope and modalities of non-
violation complaints in the context of the TRIPS Agreement.  Her delegation was ready to engage in
this exercise with an open mind.
172. The representative of Brazil recalled that Brazil was a co-sponsor of document IP/C/W/191.
This sponsorship was without prejudice to Brazil's rights under Article 64.2, as well as to his
delegation's understanding that the non-violation issue should be settled by a Ministerial Conference,
and any additional points of view that it might have on the substance of this examination.  The great
number of Members that had taken the floor on this issue demonstrated the large interest in the issue.
Moreover, there appeared to be a broad similarity of views on several issues, in particular on the
necessity of undertaking a substantive examination of the scope and modalities in the Council to avoid
an uncertain situation.  He appreciated the United States' willingness to participate in this exercise.He would comment on the US paper at the next m eeting.  Additionally, in a spirit to advance
discussions, he suggested that the examination of scope and modalities as mandated by Article 64.3
take into account the note by the Secretariat in document IP/C/W/124.  The headings of that note
would provide a good basis for a more productive and efficient discussion. in the Council.
Specifically, in section III.A.1, the h eadings of items 3 to 7 could provide a structure for a useful and
pragmatic discussion.  These headings, which should not be taken as amounting to an exhaustive list,
concerned the following topics:  nature of the benefit;  nature of measure;  reasonable expectations;
timing of measure;  causality;  burden of demonstration of nullification and impairment;  and remedy.
173. The representative of the Czech Republic recalled that her delegation was a co-sponsor of the
joint paper.  In the light of certain interventions at the present meeting, she reminded delegations that
the paper was not about the moratorium, but ab out the commitment to examine the scope and
modalities for non-violation complaints.  This paper should be interpreted as the first attempt to
comply with that commitment and launch substantiv e discussions.  The paper was not intended to be
exhaustive and the aim of the views expressed in it was to help develop a good discussion without
prejudice to the results of the discussion or the position of any Member regarding either the scope andmodalities for non-violation complaints or the issue of the moratorium. She also wished to reiterate
her delegation's repeatedly expressed view that, until the work on the scope and modalities had been
completed, non-violation complaints were not admissible.
174. The representative of Hungary said that his delegation supported the continuation of
discussions on the scope and modalities of non-violation complaints under the TRIPS Agreement
because the Council had not adequately addressed the complex issues.  The membership had
collectively failed to live up to its obligations under Article 64.3 with respect to the examination,formulation of recommendations and their ultimate adoption by consensus.  His delegation began this
exercise with an open mind.  The engagement of Members in this exercise was without prejudice to
their respective positions on this issue.  With regard to the paper that his delegation had co-sponsored,
he highlighted three points.  First, the paper was a tool to jumpstart the examination – the list of issues
in the paper was by no means exhaustive.  Second, one of the key issues was the definition of"benefits expected under the TRIPS Agreement".  He referred to paragraphs 6 and 13 of the paper.
Third, section 2B of the paper tried to argue that, if it was agreed that non-violation complaints should
be applicable, the scope of such complaints should be limited substantially.  He urged the whole
membership to engage in this discussion.  Since the United States had put on record once again its
views as to the applicability of non-violation complaints under the TRIPS Agreement, he recalled thestatement by the representative of Poland, on behalf of the CEFTA countries and Estonia and Latvia,
on this issue at the last meeting.  The United States had argued at the present meeting that Article 26
of the DSU provided all the necessary assurances and safeguards for Members to handle any disputes
that might arise alleging non-violation nullification and impairment under the TRIPS Agreement and
prevent any abuse of the dispute settlement process.  According to his delegation's understanding,Article 26 of the DSU set out special procedures for non-violation complaints:  the complaining party
had to present a detailed justification in support of any complaint;  there was no obligation toIP/C/M/27
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withdraw the measure if it were found to nullify or impair benefits;  the arbitrator of a request might
suggest ways and means of reaching a mutually satisfactory adjustment; and compensation might be
part of a mutually satisfactory adjustment as final settlement of the dispute.  However, the special
safeguards in Article 26 of the DSU did not convince one of the need or applicability of the
non-violation remedy in the TRIPS context.  These safeguards could not be regarded as relevant to thequestion whether non-violation complaints should be  admissible in the TRIPS context and, if so, on
what conditions and within what limits.  He welcomed the US paper which very clearly set out the
US' views on non-violation and situation complaints under the TRIPS Agreement.  As a co-sponsor of
the joint paper, Hungary did not share many of those points of view in the US paper, particularly its
conclusion.  Rather, his delegation shared many of the points of view raised by the European
Communities;  Hong Kong, China;  Canada;  Australia;  Korea;  Chile;  Brazil and others.  During the
previous year, his delegation, together with Japan and others, had repeatedly asked delegations thatwere convinced of the need for the application of the non-violation remedy to the TRIPS Agreement
to bring practical examples.  He was happy to note that the US paper, on page 3, did raise such an
example, but it was not very clear what the specif ic measure was in that example which, in the US
view, could give rise to a non-violation complaint.  He requested that the US elaborate on that
example, and that other Members bring further examples that the Council could discuss collectively.The lively debate at the present meeting showed the enormous interest in examining the scope and
modalities of non-violation complaints.  His delegation agreed with Australia, Chile and others that
the purpose of the process should be to work out recommendations on the scope and modalities, as
Article 64.3 required, and submit these to the Ministerial Conference.
175. The representative of India reiterated his delegation's view that the non-violation procedure
did not apply to the TRIPS Agreement, not least of all because the TRIPS Council had not fulfilled its
mandate under Article 64.3.  Nonetheless, India supported the overwhelming view that the Council
should do some useful work in this regard, as proposed in the joint paper.  He would comment in
detail on the US paper at the next meeting, especially since it referred to a dispute to which India had
been a party.12
176. The representative of Thailand supported the EC's call for continued debate on the issue of
scope and modalities for non-violation complaints in the TRIPS Council.  Thailand agreed that the
TRIPS Agreement was not a market access agreement and agreed that Member governments'
responsibility to regulate important matters should not be undermined by actual or threatened
non-violation complaints under the TRIPS Agreement.  His delegation fully supported a discussion
that would focus on the reasonably expected benefits of the TRIPS Agreement.  In his delegation's
view, the benefits that were reasonably expected to flow to right holders were the exclusive rights setout in the text of the Agreement itself.  The benefits that were reasonably expected to flow to
Members, users and society included those set out in the Preamble and Article 7.  These included
multilateral settlement of intellectual property disputes and transfer of technology.  He drew the
attention of Members to the last paragraph on page 3 of the US paper which included the following
statement: "The TRIPS Agreement provides patentee s only the right to prevent third parties from
taking certain actions;".  His delegation therefore understood that the US reading of the TRIPS
Agreement was that the reasonably expected benefits of the Agreement did not include the right to
exploit a patent.  This might shorten future debate on the issue of scope and modalities.
177. The representative of Switzerland believed that the two papers introduced at this meeting
would provide a helpful contribution to an ongoing  discussion in the Council on the question of the
scope of non-violation complaints and the question as to whether specific modalities for such
complaints under the TRIPS Agreement should apply.  The concept of non-violation was a WTO
principle and, considering that the TRIPS Agreement was one of the pillars of the WTO system, in his
delegation's view, the principle clearly applied also to the TRIPS Agreement.  Article 64.2 and 64.3
made specific reference to the non-violation principle under the TRIPS Agreement and, contrary to
                                                     
12 India – Patent Protection for Pharmaceutical and Agricultural Chemical Products (DS/50).IP/C/M/27
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the views expressed at the current meeting, his delegation believed that there was no substantial
difference between GATT, GATS and the TRIPS Agreement.  Switzerland welcomed future work by
the Council in the ongoing discussions on scope and modalities but, notwithstanding this future work,
after the expiration of the transitional period of five years at the end of 1999, the principle of
non-violation applied to the TRIPS Agreement.  Any prolongation of the moratorium would have
required a decision at a Ministerial Conference.
178. The representative of New Zealand said that the discussions at the current meeting
highlighted the fact that all Members had a shared interest in ensuring the clarity and predictability of
the dispute settlement mechanism as it applied to their rights and obligations under the TRIPS
Agreement, particularly in the area of non-violation complaints.  The interventions over the last 12 or
18 months had highlighted that a great range of Members had a number of doubts over the clarity and
predictability of non-violation complaints in the TRIPS area.  Article 26 of the DSU had been referredto in this connection at the current meeting.  However, although this provision did set out some
specific modalities for non-violation complaints, these modalities might not be sufficient in relation to
the TRIPS Agreement and a number of Members had, therefore, expressed the view that there was a
need for further study of non-violation specifically in relation to the TRIPS Agreement.  His
delegation believed that the follow-up suggested in paragraphs 12 and 13 of the joint paper mightprovide this extra clarity and supported such further work.  Without prejudice to the various views
that existed on the current status of the moratorium, his delegation believed that Article 64 did not
prevent the Council from engaging in further discussion of scope and modalities.  Like a number of
other Members, his delegation believed that the Secretariat note (IP/C/W/124) continued to be a
valuable resource document for these future discussions.
179. The representative of Singapore said that the papers that had been presented and the fact that
there was so much interest on this subject reaffi rmed what was felt by the negotiators of the
Agreement in the Uruguay Round, i.e. that this was clearly an area which needed to be thought
through further.  Intellectual property was being brought into the WTO for the first time and, in the
rush of the Uruguay Round, it had not been clear how non-violation might apply to it.  One of themost important aspects of this work would be to c onsider how it would apply in concrete terms.  The
case-study method, using examples, would be helpful.
180. The representative of Egypt said that his delegation had co-sponsored a paper on this issue
which had been submitted to the Council in 1999.  His delegation supported the views expressed by
the EC and its explanation that the TRIPS Agreement was a minimum standards agreement with a
special nature and not, as such, a market access agreement.  His delegation also agreed that the
concept of benefits was different under GATT and GATS from that under the TRIPS Agreement.  Heagreed that the Council should begin addressing the issues related to scope and modalities and submit
recommendations to the Ministerial Conference as stated in Article 64.3.
181. The representative of Peru agreed with those delegations that had expressed the need for the
Council to undertake a detailed evaluation of the scope and modalities of non-violation complaints as
suggested in the joint paper.
182. The representative of the Philippines said that the two papers which had been presented
indicated the wealth of topics on which the Council could start its discussion of the scope and
modalities.  He supported the proposal that this item remain on the Council's agenda, although this
might be a surplus requirement since there was a mandate under Article 64 to discuss scope and
modalities.  The US view that there was no room for such a discussion seemed to present a bold andcurious notion to the effect that failure to comply with an obligation within a specified period
absolved one of the obligation.  There were differing views on the applicability of non-violation
complaints and the legal status of the moratorium.  Although it was neither the time nor the place to
discuss the legal status of the moratorium, he wish ed to state for the record that it had been the
consistent view of his delegation that the failure to arrive at a consensus on scope and modalitiesIP/C/M/27
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prevented the application of these complaints, i.e. there was a de facto  extension of the moratorium.
As to the possible scope of non-violation in the TRIPS area, the joint paper was a good starting-point.
The TRIPS Agreement was not a market access agreement.  Of course, to some extent, the TRIPS
Agreement affected market access, but one could not characterize an agreement by its consequences.
On the question as to whether the TRIPS Agreement was a market access agreement, there was nobetter authority than Article 63.1 which defined the "subject-matter of this Agreement" as follows:
"the availability, scope, acquisition, enforcement and prevention of the abuse of intellectual property
rights".  In discussing the scope, it might also be useful to examine the very nature of non-violation
complaints.  International trade law, which the WTO administered, was not immune from general
principles of international law.  Rather, it was just a sub-system of international law.  Referring to the
distinction in general international law between primary obligations and secondary obligations, he
said that the non
-violation concept entailed a secondary obligation – to remedy the consequences of a
violation of a primary obligation – without a primar y obligation – no obligation had been violated -
which, in itself, was a unique notion in international law.  Whilst it could be argued that this remedy
had been in GATT 1947 and was therefore part of international trade law, it should be remembered
that under GATT 1947 the establishment of a panel and the adoption of a panel report required the
consent of the Member whose action was called into question or judged incompatible with theAgreement.  The validity of the non-violation procedure was therefore based on the consent of the
Member against which it was exercised.  However, the situation had now changed.  Panel reports
were now adopted automatically.  This had to be considered in the discussion of non-violation
complaints.  An ordinary market access agreement involved a government granting, say, tariff
concessions for reciprocal tariff concessions.  The concessions were made by one government toanother and, if there were a non-violation complaint, the adverse effect would be borne by the other
government.  However, the TRIPS Agreement was sui generis ;  it was about giving private parties
certain rights.  Would possible secondary obligations as a result of non-violation complaints affect
private parties?  If the Council were to discuss fully scope and modalities, as it should, it should not
only do so from the viewpoint of the private right ho lders who expected certain benefits but also from
the viewpoint of WTO Members which had agreed to grant and recognize intellectual property rights.
For example, the Philippines was a Member of the WTO and therefore had obligations under the
TRIPS Agreement.  One of the expected benefits of being a WTO Member was that all disputes
would be settled in accordance with the rules.  If another Member threatened to withdraw GSP
benefits for the Philippines if it did not take certain action, the threat itself could nullify and impair the
expected benefit for the Philippines of rule-based settlement of disputes.  The discussion should be
considered from both angles:  the respective points of view of the right holders and of the Memberswhich had agreed to protect their rights.
183. The representative of the European Communities expressed his satisfaction with the
overwhelming support for the proposal to continue the examination under Article 64 of scope and
modalities of possible non-violation complaints.  He noted with satisfaction that several delegations
had foreshadowed papers on this subject which would provide more material for continuation of thediscussion at the next meeting.  This material included the Secretariat note (IP/C/W/124).  He had
some sympathy for the suggestion that further work might include discussion of concrete cases.  He
echoed the comments of the representative of Hungary that the reasoning in the US paper was
unconvincing.
184. The Chairperson said that the discussions on Article 71.1 and those on non-violation had
demonstrated how important it was that Members submit proposals, because these allowed the
Council to engage in substantive discussions.  He therefore encouraged Members to table proposals
not only on these two items but also on other items actively being discussed in the Council.
185. The Council took note of these statements and agreed  to revert to this matter at its next
meeting.IP/C/M/27
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N. I NFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
(i) Accessions
186. The Chairperson said that Jordan had become the 136th Member of the WTO on 11 April
2000, and Georgia the 137th Member on 14 June 2000.  As already mentioned previously, both
countries had committed themselves to apply fully all the provisions of the TRIPS Agreement fromthe date of accession to the WTO, without recourse to any transitional period.
(ii) Dispute Settlement
187. The Chairperson informed the Council that, by means of communications dated 30 May 2000,
the United States had requested consultations with Argentina regarding certain measures on the
protection of patents and test data;  and with Brazil regarding measures affecting patent protection
(documents IP/D/22 and 23);  that the report of the panel on Canada - Patent Protection of
Pharmaceutical Products  (document WT/DS114/R), had been adopted by the Dispute Settlement
Body on 7 April 2000 (document IP/D/11/Add.1) ;  that, the report of the panel on Canada - Term of
Patent Protection , a complaint by the United States (document WT/DS170/R), had been circulated on
5 May 2000 and Canada had filed a Notice of Appeal on 19 June 2000 (document WT/DS170/4);  and
that the report of the panel on United States - Section 110(5) of the US Copyright Act , a complaint by
the European Communities and their member States (document WT/DS160/R), had been circulatedon 15 June 2000.
O. O
THER BUSINESS
188. The representative of Switzerland recalled that the Swiss authorities had been planning for
some time to organize an excursion with a view to illustrating the importance of geographical
indications for certain places and regions in Switzerland.  He proposed to organize such an excursionon 20 September 2000 and said he was looking forward to welcoming as many of the delegates as
possible at the event.
13
189. The Chairperson recalled that the Council had reserved 21 and 22 September 2000 for its next
meeting.  These dates took into account the timi ng of the annual session of the WIPO Assemblies.
__________
                                                     
13 A written invitation by the Swiss delegation containing further details has been circulated in
document JOB(00)/4460.