RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/M/28
23 November 2000
(00-5002)
Council for Trade-Related Aspects
of Intellectual Property Rights
MINUTES OF MEETING
Held in the Centre William Rappard
on 21 and 22 September 2000
Chairperson:  Ambassador Chak Mun See (Singapore)
Subjects discussed: Para. Nos .
A. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL
ORGANIZATIONS 1-6
B. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT 7-14
(i) Notifications under Article 63.2
(ii) Notifications under Article 69
C. REVIEW OF LEGISLATION : 15-27
(i) Follow-up to review of legislation of the Kyrgyz Republic
and Latvia
(ii) Follow-up to the review of legislati on of Belize;  Cyprus;  El Salvador;
Hong Kong, China;  Indonesia;  Israel;  Korea;  Macau, China;  Malta;
Mexico;  Poland;  Singapore;  and Trinidad and Tobago
(iii) Review of legislation in November 2000
(iv) Review of legislation in 2001
D. SECTION 211 OF THE UNITED STATES OMNIBUS CONSOLIDATED AND
EMERGENCY SUPPLEMENTAL APPROPRIATIONS ACT OF 1998 28-33
E. IMPLEMENTATION OF ARTICLE 70.8 AND 70.9 34
F. IMPLEMENTATION OF ARTICLE 66.2 35-39
G. TECHNICAL COOPERATION 40-52
H. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION
ON GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2 53-74
I. IMPLEMENTATION OF ARTICLE 24.1 75-105IP/C/M/28
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Para. Nos.
J. IMPLEMENTATION OF ARTICLE 23.4 106-122
K. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b) 123-174
L. REVIEW OF THE IMPLEMENTATION OF THE AGREEMENT UNDER
ARTICLE 71.1 175-190
M. NON-VIOLATION COMPLAINTS 191-200
N. ELECTRONIC COMMERCE 201-211
O. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO 212-213
(i) Accessions
(ii) Dispute settlement
A. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS
1. The Chairperson recalled that the Council had before it 15 outstanding requests from
intergovernmental organizations for observer status (document IP/C/W/52/Rev.9).  He said that, in the
informal consultations that he had held on these requests, he had suggested that the Council considergranting ad hoc observer status on the requests of those multilateral organizations which already had
observer status elsewhere in the WTO, i.e. the International Plant Genetic Resources Institute
(IPGRI), the Secretariat of the Convention on Bi ological Diversity (CBD) and the United Nations
Environments Program (UNEP), an d of those organizations which ran regional industrial property
offices, i.e. the African Regional Industrial Property Organization (ARIPO) and the CooperationCouncil of the Arab States of the Gulf (GCC).  However, some delegations had indicated that they
were not ready at this stage to accept this proposal.
2. The representative of India expressed his delegation's disappointment and said that the failure
to agree on this issue sent a wrong signal.  He also said that, if the Council could not take a positive
decision on it at its next meeting, this might have implications for observer status granted elsewhere inthe WTO and the question of observer status in general.
3. The representative of Brazil agreed with India that, if the Council could not reach a
satisfactory solution at its next meeting, this would send a negative signal regarding coherence
between the WTO and other organizations.  UPOV had made a substantive contribution to discussions
at the request of the United States delegation;  the CBD Secretariat should have a similar opportunity.Civil society, non-governmental organizations and the CBD itself expected a positive gesture from
WTO Members on this issue.
4. The representatives of the European Communities, Norway
 and Peru  also expressed their
disappointment with the lack of progress on this issue.
5. The representative of Egypt said that his delegation looked to the General Council to provide
guidance on this issue before the next meeting of the Council for TRIPS.  A solution within the
domain of the General Council would have a positive effect on the work of its subsidiary bodies.IP/C/M/28
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6. The Council took note of the statements made and agreed  to revert to the matter at its next
meeting.
B. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT
(i) Notifications under Article 63.2
- Notifications from Members w hose transitional periods under 
Article 65.2 or 65.3 expired on 1 January 2000
7. The Chairperson said that the Secretariat had updated its note reflecting the status of the
notifications received so far from Members whose transitional period under Article 65.2 or 65.3 had
expired on 1 January 2000 (JOB(00)/5674 of 20 September 2000).  In the distribution of these
notifications, the Secretariat was now giving priority to the ones received from those delegations
whose legislation was scheduled to be taken up for review in November of this year.  Most of the
material received from these Members had been distributed.  However, as the table concerning these
Members in the Secretariat note showed, gaps remained.  The note also showed that many of the
Members in question had not yet submitted any notification concerning their implementing legislation
at all, in particular those whose legislation would be reviewed at a later stage.  In this regard, he urged
the Members concerned to submit the outstanding material without delay and recalled that
Article 63.2 of the Agreement required them to notify the laws and regulations pertaining to the
subject-matter of the Agreement applicable as of 1 January 2000.  He suggested that, if not all the
material to be notified was ready yet, Members submit whatever could be notified now and
complement the notification as soon as other parts of the material to be notified were ready forsubmission.  Delegations were also reminded that, under the WTO/WIPO Cooperation Agreement
and decisions taken by the WIPO's Governing Bodies, the International Bureau of WIPO was in a
position to assist delegations with the translation of their main dedicated intellectual property laws
and regulations, as required.
8. The representative of the United States said that his delegation wished to note that the year
was three-fourths over but many developing country Members had not notified their laws and
regulations as required by Article 63.2.  In addition, a number of the notifications that had been
received had been incomplete.  He commended those developing country Members that had notified
their laws and regulations in a timely fashion, thereby making possible the preparation of specific
questions for the Council's review of implementation.  His delegation had provided questions basedon the notifications, when those notifications had been timely.  For the reviews of Members that had
not notified laws and regulations or that had done so only recently, it had based its questions on the
text of the Agreement and on problems that had been brought to its attention.  The United States had
noted that a number of developing country Members had proposed that the Council for TRIPS pursue
work in many areas of interest to them, work that went beyond the built-in agenda, but his delegationwould not be in a position to give serious consideration to such proposals at a time when many of the
Members making these proposals had failed to fulfil the fundamental obligations they had agreed to
when they had become Members of the WTO, including the obligation to notify their laws and
regulations.
9. The representative of the European Commun ities agreed with the United States and
underlined that formally notified laws and regulations were obviously the most appropriate basis for
the review of a Member's legislation questions.  He expressed his delegation's concern about the lackof notifications from many Members and urged these Members to submit, if amendments were still
pending, at least the current legislation and preferably also the pending bills.  In view of the technical
difficulties that some Members had eluded to, he wi shed to reiterate that resources were available
under the European Communities' technical cooperation programmes allowing the Members in
question to solve these difficulties.IP/C/M/28
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10. The representative of Guatemala said that her delegation expected to be in a position to notify
its TRIPS implementing legislation within the next few days.
11. The Council took note of the statements made.
- Notifications from other Members
12. The Chairperson said that, since the last meetin g, amendments to legislation notified earlier
had been received from Bulgaria, Slovenia and Germany.  These would be available in the
IP/N/1/- series of documents as soon as possible.
- Notifications specifically relating to Articles 3, 4 and 5
13. The Chairperson said that s uch a notification had been received from Chad and had been
distributed in document IP/N/1/TCD/1.
(ii) Notifications under Article 69
14. The Chairperson said that, since the last meeting, notifications under Article 69 of the
Agreement had been received from Angola, Brunei Darussalam, Bulgaria, Hungary, Indonesia,
Suriname and the United Arab Emirates.  Notifications on contact points were circulated in theIP/N/3/- series of documents.
C. 
REVIEW OF LEGISLATION
(i) Follow-up to review of legislation of the Kyrgyz Republic and Latvia
15. The Chairperson recalled that, at the last meeting, the United States had requested further
information from Latvia concerning the review of its legislation, while the European Communities
and their member States had indicated that they were still analysing the responses received from these
two Members.  Since then, Latvia had supplied further information which had been distributed in
document IP/Q2/LVA/1/Add.2.  He suggested that the it em concerning the review of the legislation of
the Kyrgyz Republic and Latvia be deleted from the agenda, it being understood that any delegation
should feel free to revert to any matter stemming from this review at any time.
16. The Council so agreed.
(ii) Follow-up to the review of legislation of  Belize;  Cyprus;  El Salvador;  Hong Kong,
China;  Indonesia;  Israel;  Korea;  Macau, China;  Malta;  Mexico;  Poland;
Singapore;  and Trinidad and Tobago
17. With regard to the 13 Members whose legislation had been reviewed at the last meeting, the
Chairperson recalled that at the end of the meeting answers to some questions posed had remained
outstanding.  Responses had since been received from Israel;  Korea;  Macau, China;  Malta;  Mexico;
Singapore;  and Trinidad and Tobago.  These were in the process of being circulated in the
IP/Q/- series of documents.  However, some responses remained outstanding from Belize, Cyprus and
Mexico.  He suggested that the items concerning the review of the legislation of El Salvador;Hong Kong, China;  Indonesia;  Israel;  Korea;  Macau, China;  Malta;  Poland;  Singapore;  and
Trinidad and Tobago be deleted from the agenda, it being understood that any delegation should feel
free to revert to any matter stemming from this re view at any time.  Furthermore, the Council might
urge those Members who still had responses outstanding to submit these without delay, and agree to
revert to the item concerning the review of Belize, Cyprus and Mexico at its next meeting.IP/C/M/28
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18. The representative of Mexico said that, at present, her delegation was preparing its responses
to a number of the questions posed to it by the United States.  These responses would be submitted as
soon as possible in order to conclude the review of Mexico's legislation under this item.
19. The Council took note of the statements made and agreed  to proceed as suggested by the
Chairperson.
(iii) Review of legislation in November 2000
20. The Chairperson said that, following informal co nsultations that he had held on the schedule
for the reviews of legislation in November 2000 and in the year 2001, it had been agreed that eight
Members would have their legislation reviewed at the meeting scheduled for the week of
27 November to 1 December 2000, namely Chile, Colombia, Estonia, Guatemala, Kuwait, Paraguay,
Peru and Turkey.  He recalled that, at the last meeting, the Council had agreed, in accordance with the
agreed procedures for these reviews, that questions for the Members to be reviewed in the week of
27 November to 1 December 2000 were due ten weeks before the meeting, i.e. by 18 September 2000,and the countries concerned should submit their answers in writing to those questions by
30 October 2000.
(iv) Review of legislation in 2001
21. The Chairperson said that, on the assumption that the Council could agree to schedule its first
meeting next year for the week of 26 March, questions for the Members to be reviewed at that
meeting should be sent in, in accordance with  the agreed procedures for these reviews, by
15 January 2001, i.e. ten weeks before the meeting, and the countries concerned should submit their
answers in writing to those questions by 26 February 2001 .
22. The Council so agreed.
23. The Chairperson said that, following the inform al consultations that he had held on the
revised schedule for the reviews of legislation in November 2000 and in the year 20011, he would
issue a further revision in the light of the informal consultations that he had held.  He was conscious
that it was important to avoid the schedule from becoming too unbalanced, which would cause
practical problems and burdens for delegates.  He would therefore see whether there was scope for
any reviews to be brought forward, taking into account that it was not essential that each and everyaspect of a country's legislation be fully in conformity for a review to be nonetheless useful.
24. The representative of Brazil said that, while his delegation was supportive of the
Chairperson's efforts to establish a schedule for the review of national implementing legislation, he
had not yet received instructions concerning the Chairperson's proposed schedule.  He reiterated his
delegation's concerns as regards current bilateral constraints related to his country's nationallegislation.  He was not in a position to agree to scheduling the review of his country's national
implementing legislation at the first meeting of the Council in 2001.
25. The representative of the United States said, while referring to the concern expressed by the
European Communities with regard to the lack of notifications from many Members2, that his
delegation was particularly concerned about the fact that certain Members had expressed their
inability and unwillingness to participate in the schedule of reviews as originally set out.  As indicated
to these Members bilaterally, his delegation was interested and prepared to help all Membersscheduled to be reviewed in any way necessary, so that they could in fact meet their scheduled review.
                                                     
1 JOB(00)/4860 of 8 August 2000.
2 See under agenda item B above.IP/C/M/28
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He also wished to take the opportunity to urge all Members to participate in the reviews as scheduled,
whether or not their implementation process was fully complete.  The review exercise was a most
valuable exercise to all Members of the Council,  both in terms of promoting transparency and in
building confidence.  He hoped that there would not be further significant modifications to the
schedule, so that the goal stated by the Chairperson, i.e. that the Council complete all these reviews
in 2001, could in fact be achieved.
26. The representative of Mauritius wished to confirm that his country's legislation could be
reviewed as scheduled, i.e. in June or July 2001, notw ithstanding the difficulties that his country, like
many developing country Members, were facing.  His delegation was interested in what the European
Communities2 had said about assistance with a view to allowing developing countries to participate in
the review exercise and might contact them, as it had contacted other delegations in respect of the
legislation that his delegation would notify soon.
27. The Council took note of the statements made.
D. SECTION 211 OF THE UNITED STATES OMNIBUS CONSOLIDATED AND EMERGENCY
SUPPLEMENTAL APPROPRIATIONS ACT OF 1998
28. The Chairperson recalled that this matter had been on the agenda for several meetings.  Since
the last meeting, the European Communities and their member States had requested the establishment
of a panel on this matter (document WT/DS176/2), a nd their second request was on the agenda of the
DSB meeting to be held on 26 September 2000.
29. The representative of Cuba recalled that this matter had been on the agenda of the Council
upon a request from his delegation, which was seeking information from the United States regarding
the compatibility of Section 211 with the TRIPS Agreement.  However, to date, his delegation had not
received satisfaction.  Since the matter was now the subject of a dispute settlement procedure underthe DSU, he requested that the matter be removed from the agenda of the Council.  His delegation
was awaiting with great interest what would occur in the proceedings of the dispute and reserved its
right to exercise its rights at a time it deemed appropriate.
30. The representative of the European Communities confirmed that his delegation had requested
the establishment of a panel on the matter and hoped that, after the next DSB meeting, the panel
would be constituted swiftly.
31. The representative of Japan said that his delegation had a concern about the compatibility of
Section 211 with the relevant TRIPS provisions.  He wished to inform the Council that, if a panel
would be established on this matter, Japan was prepared to join the panel procedure as a third party.
32. The Chairperson suggested that the Council take note of the statements made and that, if a
Panel were to be established to examine this ma tter, this item be deleted from the agenda of the
TRIPS Council, it being understood that any Member coul d revert to it at any time should it so wish.
33. The Council so agreed.
E. IMPLEMENTATION OF ARTICLE 70.8 AND 70.9
34. The Chairperson said that, since the last meeting, the Council had not received any
notifications under this agenda item.
                                                     
2 See under agenda item B above.IP/C/M/28
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F. IMPLEMENTATION OF ARTICLE 66.2
35. The Chairperson recalled that, at its last meeting, the Council had discussed the
implementation of Article 66.2 on the basis of the information it had received from developed
countries on how that Article was being implemented (documents IP/C/W/132 and addenda and
supplements).  Since the last meeting, written information had been received from Canada and
Norway.  The discussion at the last meeting had been based also on a Secretariat note (IP/C/W/169),prepared upon a request by the Council and setting out the types of incentive measures that had been
notified, with cross references to where further details could be found.  The text of the statement made
by the delegation of Zambia at that meeting had been circulated in document IP/C/W/200.  In
addition, at the request of that delegation, its proposal relating to special and differential treatment in
respect of technology transfer made at the Committee on Trade and Development and originally
circulated in document WT/COMTD/W/67 had been circulated as a TRIPS Council document
(IP/C/W/199).  The Council had agreed to revert to the matter at the present meeting.
36. The representative of the United States said that his delegation had carefully studied the paper
submitted by the delegation of Zambia and would like to state that it could certainly support the
suggestion made by Zambia that the TRIPS Council place a request to various other international
intergovernmental organizations to provide information regarding their activities aimed at
technological capacity-building for least developed c ountries, noting that some of that information
was already available in reports from these other organizations.  The United States might also be
willing to provide information rega rding the distribution of benefits to least developed countries under
certain of the programmes that his delegation had noted in its submission.  Some of this information
was available on the Internet, but he recognized that it would be more convenient for many Members
to receive this information in writing.  He cautioned, however, that some of the specifics regarding theactivities of private organizations under some of these programmes could not in fact be made
available, if these would concern information which was confidential and making them available
would violate US laws regarding privacy.  This woul d not seem to apply to most of the information
that would be of interest to Members.  With rega rd to the question raised by Zambia concerning the
application of MFN to the incentives provided by developed country Members under Article 66.2, hewished to note that Article 4 of the TRIPS Ag reement applied "with regard to the protection of
intellectual property" and Article 66.2 did not deal with the protection of intellectual property, but
with capacity-building for least developed countries.   In response to the point made by Zambia that
many developed country Members, including the United States, already had in place, at the time they
had to apply the provisions of the TRIPS Agr eement, significant incentive programmes aimed at
encouraging technology transfer to least developed countries in order to enable them to create a sound
and viable technological base, he said that, if a Member was already in compliance with particular
provisions of the TRIPS Agreement on the date of application of the Agreement for that Member, the
TRIPS Agreement did not require that Member to make changes to its legislation.
37. The representative of Zambia thanked the United States for their support and for the
relationship that was developing between the United States and his country.  He expressed the hope
that other developed countries would follow the example of the United States and respond at a futuremeeting to the points made by his delegation on this matter.
38. The Chairperson suggested that delegations might wish to reflect on the suggestion made by
Zambia and supported by the United States that the Council might request other international
organizations, such as UNCTAD, WIPO, UNIDO and the World Bank, to provide information on
capacity-building as mentioned in Zambia's paper.
39. The Council agreed to revert to the matter at its next meeting, while taking note of the
statements made.IP/C/M/28
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G. TECHNICAL COOPERATION
40. The Chairperson recalled that the Council had agreed, at its last meeting, to focus on technical
cooperation at today's meeting.  In preparation fo r this annual review, developed country Members
had once more been requested to update information on their technical and financial cooperation
activities relevant to the implementation of the TRIPS Agreement in time for this meeting.  In
addition, international intergovernmental organizations observers to the Council as well as the WTOSecretariat had also been invited to do the same.  The resulting documentation concerning the
technical cooperation activities of developed country Members could be found in
documents IP/C/W/203 and addenda, and of intergovernmental organizations in
documents IP/C/W/202 and addenda.  Updated information on the WTO Secretariat's technical
cooperation activities in the TRIPS area could be found in document IP/C/W/201.
41. The representative of the United States drew the attention of delegations to the submission
that the United States had made and said that his delegation was proud of its record in providing
technical assistance to developing country WTO Members and to countries that were seeking to
become Members.  The United States had been committed to providing technical cooperation
programmes since the early 1980s and that commitment was reflected in the quantity and quality of
programmes that it provided and participated in.  His delegation stood ready to work with developing
country Members in areas of interest to them to the degree that its resources permitted.  Whileexpressing his appreciation to the WHO for the submission that it had made, he believed that it would
be worth highlighting to the WHO, which Organization was participating for the first time in a
meeting of the TRIPS Council, following the re cent decision of the Council to grant the WHO
observer status, that an issue that had been discussed in the Council on many occasions was what was
the appropriate means of interpreting the TRIPS Agreement.  The Council had been asked on anumber of occasions to provide interpretations of the Agreement, but Members had always been clear
that only the Ministerial Conference and the General Council were entrusted with and empowered to
interpret the TRIPS Agreement.  In certain instances, the Dispute Settlement Body was also
empowered to interpret the TRIPS Agreement, when adopting panel and Appellate Body reports in
disputes settlement cases under the DSU.  He mentioned this, because, as the document submitted bythe WHO indicated, the WHO was engaged in a great deal of activity in helping developing countries
and other countries to understand the TRIPS Agreement as it related to health issues.  He expressed
the hope and expectation that the WHO, in all of these activities, would cooperate with the WTO and
fully avail themselves of the expertise in the WTO in conducting their activities.
42. The representative of Japan stressed that Japan continued to be committed to technical
cooperation and drew the attention of the Council to Japan's submission with information on Japan's
technical and financial cooperation activities.
43. The representative of the European Communitie s said that the EC and their member States
had provided technical cooperation for many years and would continue to do so because of their
commitment to providing assistance to developing countries.  This included assistance to the least
developed WTO Members who were preparing themselves for meeting the deadline of
1 January 2006.  His delegation also often discussed with representatives of developing countries andinternational organizations what the best methods were for providing such assistance or adapting it,
for example, to make it more effective.  Appropriate assistance should be available whenever the
countries concerned requested it.  His delegation would shortly make an additional notification with
supplementary information from some of the EC member States, which had had technical difficulties
in providing information on their technical cooperation activities on time.  His delegation had notedthat the submission received from the WHO was not limited to information about their technical
cooperation activities, but also went into policy perspectives and objectives which the WHO pursued.
While stressing that the EC and their member States were very active in areas covered by the WHO
and their cooperation with the Organization worked well, he did not think that it was appropriate thatIP/C/M/28
Page 9
such information was provided in this particular context.  He also concurred with the United States
that advice, assistance and opinions about the TRIPS Agreement should be provided by TRIPS
experts and that authoritative interpretations of the provisions of the TRIPS Agreement could only be
adopted by the Ministerial Conference or General Council following a recommendation from the
TRIPS Council or, in the context of disputes under the DSU, by the Dispute Settlement Body.
Therefore, caution was required when advice was provided concerning the application of theprovisions of the Agreement.
44. The representative of Jordan expressed his delegation's gratitude to the United States for the
technical assistance provided in the preparation of  Jordan's intellectual property legislation and the
training of officials.
45. The representative of Australia said that his delegation, in the light of the particular focus on
the issue of technical cooperation at this meeting, would like to dwell on some aspects of its
submission.  Australia regarded it as vitally important to have a dialogue on technical assistance.Assistance should be appropriate and it should be avoided to put effort and resources into activities
that were not necessarily productive.  His delegation had comparatively limited resources and was
most concerned to apply them as productively as possible.  To that end, for example, during the recent
visit of the WIPO's Director General, Dr. Idris, to Australia, a bilateral agreement had been concluded
with WIPO, which focused especially on development cooperation in the Asia-Pacific region, with theexpress intent of greater coordination of effort to the benefit of developing countries in the region.  A
particular focus of Australia's work had been with its neighbour Indonesia and there had been a
number of extensive programmes with that country, not only in relation to the implementation of
TRIPS obligations in a formal sense, but also work ing towards mechanisms for driving the benefits of
TRIPS implementation.  Furthermore, South Pacific island countries faced a number of challenges inrelation to appropriate forms of intellectual property administration and protection and Australia was
working through the South Pacific forum to identify appropriate regional approaches so as to alleviate
the burden on these small island countries.  A growing focus was the need for specific sectoral
technical cooperation in relation to intellectual property and a good example thereof concerned the
field of biotechnology.  There were very widely held concerns about the implications of howintellectual property in this field was administered, enforced and exploited.  One response to this was
of course to build up specific expertise in this field.  This was a focus of the work his delegation,
which would shortly release a comprehensive training package, of which all Members would be able
to take advantage if they so wished.  As regards the broader question of featuring directions for
technical cooperation under Article 67 of the TRIPS Agreement, he recalled that the focus so far hadrightly been on systemic cooperation, building up intellectual property systems, establishing legal
structures, establishing administrative structures, providing the necessary skills for their
administration.  However, having invested extensive resources in this process, developing countries
were naturally looking to reap the benefits of that investment and this involved a new phase of
activity, in particular the development of new skills and new capacities, relating more to the
management of intellectual property rights and the exploitation of intellectual property rights than to
the establishment of the system under which they operated.  With that in mind, Australia had beenfocusing on areas such as public awareness and education programmes and materials as well as the
development of specific skills in management of intellectual property rights and the
commercialization of research and other intellectual property assets.
46. The representative of Brazil said that his delegation had a great interest in the issue of
technical cooperation and also wished to thank WHO for the cooperation provided in the plan of
2000-2001 and through three WHO collaborating centres (WHOCC) and other partners, including a
technical programme on the evolution of drug prices such as, for example, aids-related drugs.  He also
informed the Council that in September, parallel to the General Assembly meeting of WIPO Member
States, Brazil was going to sign a cooperation agreement with WIPO, which would be signed betweenIP/C/M/28
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the Director General of that Organization, Dr. Idris, and the President of the Brazilian National
Institute of Industrial Property and which focused mostly on capacity-building.
47. The representative of Paraguay wanted to place on record his delegation's gratitude for the
technical cooperation which had been provided to it  by WIPO and the personal interest shown by the
Director General of that Organiza tion, Dr. Idris, in providing this cooperation, which would enable
Paraguay to render a proper account of its intellectual  property activities in the course of the review of
its national implementing legislation in the Council for TRIPS.  Last year, in November, Paraguay
had also received useful technical cooperation from the United States.  Such technical cooperation
was of paramount importance to enable the developing countries to catch up with the other Members
of the WTO.
48. The representative of the WIPO said that, as regards the technical cooperation activities of
WIPO, including the results of the Joint Initiative, WIPO had submitted an updated document to the
TRIPS Council covering the period from January 1996 to June 2000.  Since the document was bothcomprehensive as well as gave a detailed account for each year of the WIPO's technical cooperation
activities, it would be taking the Council's time unnecessarily to recount them.  However, she would
like to state that the document was public and could be obtained from WIPO under the code
WIPO/TRIPS/2000/1.  In addition, she wished to inform the TRIPS Council that the Directors
General of WIPO and the WTO had met twice this year, in March and April, to discuss further thevarious areas of cooperation between the two Organizations.  At the second meeting, the heads of
UNCTAD and the ITC had also been present.  In or der to carry out the intentions expressed by the
heads of the four Institutions, two additional meetings had been held at the level of their cabinets.
Among the items discussed, one strong desire expressed by the WTO had been to better assist the
Members and observers who were not present in Geneva and, in this regard, to hold another GenevaWeek this year.  Most of the Members and observers involved were small economies, with half of
them being least developed countries.  WIPO had decided not only to participate in the Geneva Week,
but also to make a financial contribution in orde r to assist those Members and observers, most of
whom were also Members of WIPO.  She wished to reiterate that WIPO was committed, on all levels,
to assisting developing and least developed countries, also beyond the Joint Initiative, on all mattersconcerning intellectual property.
49. The representative of WHO said that, first and foremost, he would like to thank the Members
of the WTO, on behalf of the Director General of the WHO, for having granted observer status to the
WHO in the TRIPS Council.  This constituted an im portant step forward in the cooperation between
the two Organizations.  While it was the first time that the WHO was present at a meeting of theTRIPS Council, the cooperation between the two Or ganizations dated back many years.  In this
regard, and also to respond to the comments made by the delegations of the United States and the
European Communities, the various activities set out in document IP/C/W/202 had been carried out in
close cooperation with the WTO and WIPO.  WHO had facilitated the participation of the Secretariats
of these two Organizations in meetings in Indonesia and Thailand, for example, and the role played by
WHO in this area was limited exclusively to giving the public health perspective in this overall
process.  Thus, the participating ministries of health had heard not only the strictly legal perspective.
50. The representative of St. Lucia wanted to acknowledge the statement made by the
representative of WIPO and thank it for the planned participation in the upcoming Geneva Week.
Saint Lucia was both a non-resident and a small economy and acknowledged the WIPO's great
technical assistance efforts in intellectual property.
51. The Chairperson urged those Members that had not yet provided updated information to do so
early and indicated that it was his intention to provide an opportunity at the next for meeting of the
Council to make further comments on the information submitted, as Members might not have had
sufficient time to study the material carefully.IP/C/M/28
Page 11
52. The Council took note of the statements made and agreed  to revert to the matter at its next
meeting.
H. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL
INDICATIONS UNDER ARTICLE 24.2
53. The Chairperson said that the Secretariat had very recently circulated a preliminary version of
the paper that the Council had requested it to prepare summarizing the replies to the Checklist of
Questions (IP/C/13 and Add.1) on the implementa tion of the Section on Geographical Indications
(JOB(00)/5619).  This paper summarized the in formation submitted by those Members who had
responded to the Checklist.  He recalled that one of the ideas under discussion on the occasion of the
Council's last meeting had been to invite additional Members to respond to the Checklist.  Such
responses had just been received from Korea.3  The Council had also received communications from
New Zealand and Australia, respectively, on the subject of geographical indications and the
Article 24.2 review.4
54. The representative of New Zealand, introducing his delegation's paper, said that it set out his
delegation's observations on the Article 24.2 review with  a view to assisting th e Council to ensure that
the review was conducted in a structured manner which allowed all Members to have the opportunity
to consider the effectiveness of each of the provisions in question through a process in which the way
Members had applied these provisions would be t horoughly analysed.  To date, the Council had only
been able to compile information on how some Members had implemented their obligations and had
not as yet been able to engage in any substantive discussions on each of the provisions of Section 3 of
Part II of the Agreement.  As noted at the outset of the paper, the coverage of geographical indications
in the TRIPS Agreement marked a major step forward in the multilateral protection of geographical
denominations and it was the first time that a truly international forum attempted to lay down rulesand obligations for geographical indications.  His delegation also thought it was important to
recognize that Article 22.1 of the Agreement made it clear that the provisions of the Agreement
covered geographical indications for all goods.  This was a point that was still often misunderstood
and that fact in itself perhaps demonstrated the need to increase understanding in this area through the
sort of information exchange and review that a structured and thorough review would provide.  As
emphasized in the paper, in view of the very ground-breaking nature of the TRIPS provisions on
geographical indications, it was most important for each Member to appreciate how other Members
had approached the issues and how important the rôle of the Article 24.2 review was.  His delegation
had very much welcomed the responses to the Checklist and the compilation of the information
contained in these responses that the Secretariat had circulated recently.  However, now Membersmust turn their attention to the substantive details of the review.  As proposed by his delegation, the
way to conduct these substantive discussions in a structured manner was by going through each of the
provisions of Section 3 of Part II and reviewing their application, operation and enforcement, so that
all Members with differing legal systems and regimes for the protection of geographical indications
could get a better sense of the different systems that had been developed in this regard.  Until the
Council had reviewed Section 3 of Part II in a systematic and substantive way, it would be premature
to consider any changes to this Section of the Agreement.
55. Continuing, he then made some observations on the individual provisions of Section 3,
bearing in mind how the Council might go about lookin g at issues that they raised.  Again, Article 22
established the general rule for the protection of geographical indications and covered all products and
his delegation's preliminary review of the responses to the Checklist so far highlighted the number of
different ways in which this provision had been im plemented, in line with the fundamental principle
stipulated in Article 1 of the Agreement that Members shall be free to determine the appropriate
                                                     
3 Distributed as document IP/C/W/117/Add.20.
4 Distributed as documents IP/C/W/205 and 211, respectively.IP/C/M/28
Page 12
method for implementing the provisions of the Agr eement within their own legal system and practice.
Therefore, his delegation believed that, looking at this provision, the Article 24.2 review would need
to consider in traverse the different ways in which Members had implemented the general rule of
Article 22 so as to better appreciate and understand the way in which this provision had been applied.
Article 23 laid down special protection for geographical indications for wines and spirits and the most
significant distinction in this regard was that, unlike in Article 22, there was no requirement that thepublic be misled or that use constituted an act of unfair competition.  As he believed everyone also
realized, the provisions of Article 23 were themselves a compromise made in the context of the
Uruguay Round negotiations and therefore reflected a careful balance that had been struck in
Section 3 as well as across all other aspects of the TRIPS Agreement.  Just as was the case for
Article 22, the Article 24.2 review would need to traverse and consider the various ways in which
Members had implemented the special rule contained in Article 23 so as to help the Council fully
appreciate and understand the way in which these provisions had been applied by Members.Article 24.1, in his delegation's view, confirmed that Members had agreed to enter into negotiations
aimed at increasing the protection of individual geographical indications for wines and spirits
conferred under Article 23.  Given its narrow focus on geographical indications covered by Article 23,
his delegation did not agree with the position outlined by Switzerland that Article 24.1 also allowed
the possibility of extending the scope of products already covered by Article 23.  As his delegationhad indicated in its paper (footnote 12), one European academic commentator at least had pointed out
that this provision was designed to address cases where additional protection was intended to be
explored for the use of certain wine geographical indications that would otherwise fall within the
exceptions set out in Article 24.  Finally, he drew attention to the opening words of Article 24.2, that
the TRIPS Council shall keep under review the app lication of the provisions of Section 3 and said
that, in his delegation's view, the Council, as a fi rst step, needed to analyse and consider all the
information it had from Members about how each of these provisions had been applied.
56. The representative of Australia, introducing his delegation's paper, said that this reflected
Australia's concern that it was perhaps overdue for the Council to begin to consider the substance of
geographical indication protection.  Like any form of intellectual property protection, geographicalindications were not protected for their own sake but to serve public policy objectives and, in doing
so, to accommodate a balance of interests.  His delegation believed that the widely held concerns that
geographical indication protection be enhanced and serve better the trade interests of Members were
well-founded and deserved serious attention.  The Article 24.2 review should therefore become more
than just a process of filing questions and answers without the information provided stayingunanalysed.  It was important for the Council to look at this information, to develop a collective sense
of what better protection of geographical indications really represented.  To that end, his delegation's
paper put forward some considerations about the interests and policy objectives taken up in the
protection of geographical indications.  It was probably a misleading idea to talk about stronger or
weaker protection of geographical indications;  one had perhaps better talk about better protection and
the Council should be using the wealth of informa tion that the Article 24.2 review had already yielded
to explore what better protection meant.  The pa per also recognized the increasing importance in
international trade of geographical indications, especially for the benefit of developing countries,
which were understandably increasingly looking to geographical indications as potential intellectual
property assets that needed to be nurtured and exploited appropriately.  Considering the specifics of
geographical indication protection, there was a wide range of interests caught up and, just as for any
other aspects of intellectual property rights, no one set of interests should be allowed to prevail andthe overall level of protection needed to be determined by an appropriate balance.  Australia had set
out in its paper some of the factors that it suggested were balanced in this approach, as well as what
current elements of the TRIPS Agreement were relevant in achieving that balance, looking at all of
the provisions of Section 3 of Part II.  There was a need to recall that Article 24 had a number of
important optional exceptions to geographical indication protection and the way those operated wereillustrated by the case-study the paper introduced relating to the word "orange".  In this regard, he
pointed out that, while this term had been notified by Australia as a geographical indication, the termIP/C/M/28
Page 13
happened to be a geographical indication for a number of other countries.  However, it was of course
much better known as a descriptive term, i.e. a term describing an actual product, or as a surname.
This example helped illustrating that no one an swer would necessarily apply to individual terms.
Terms might also have different signification in different jurisdictions or societies, in translation or
simply in different commercial contexts.  All these fa ctors needed to be taken into account in finding
the appropriate balance of geographical indication protection.  How that balance was struck was apublic policy matter for each Member to consider at a domestic policy-making level.  However,
equally, all stood to benefit from learning about the experience of others and this was where his
delegation saw a valuable role for the Article 24.2 process.  The Council now had a great deal of
information before it, which the Secretariat had usefully synthesized.  It had to be borne in mind that,
when this review began, Members posed over 50 questions of each other concerning geographical
indication protection.  Australia had noted at the time that this was quite a burdensome, exhaustive
process and it had, indeed, required considerable effort for his delegation to produce its answers tothese questions.  The lack of attention so far to all this information was probably due to the fact that
there was no clear framework for moving forward this analysis.  Australia would like to suggest such
a framework and this was the aim of the questions at the end of his delegation's paper, which related
to the provisions of Articles 22 to 24.  This was not to suggest that these Articles were necessarily
problematic or in need of close textual analysis, but it was to suggest that Members had naturallytaken different approaches in their jurisdictions and that these approaches were not well understood.
It would perhaps be beneficial if the Council could structure its review of the material produced in the
Article 24.2 process based on these sort of general questions.  Ultimately, the actual benefits that
Members stood to gain from geographical indication protection did not stem from the wording in the
TRIPS Agreement, but in the actual protection afforded at a national level.  Therefore, it wasappropriate to consider the interaction between TRIPS provisions and the actual implementation of
these provisions in domestic law and he hoped that this would shed light on approaches of best
practice and the most productive models of protection, but also lay the ground work for the other
work that would proceed under Section 3 of Part II of the Agreement concerning possible revisions of
TRIPS standards.
57. The representative of India said that his delegation wished to take a close look at the
Secretariat's summary paper before giving its reaction.  The same applied with regard to the paper
from Australia, although he wished to put on record already now his delegation's gratitude to
Australia for suggesting a way forward and welcome the political thrust of the view expressed by
Australia that there was some merit in the demand made by a number of countries, includingdeveloping countries, for extending additional protection for geographical indications to products
other than wines and spirits.  As regards the provisions of Article 24.2, he first wished to emphasize,
in particular for those who had expressed the view that Article 24.2 was just about reviewing
implementation of obligations, that, in the entire paragraph, the word "implementation" did not figure
at all, whereas this word did figure in the rest of Article 24.  Article 24.2 concerned a review of the
application of the provisions of Section 3 of Part II, which was not the same as a review of their
implementation.  The term "implementation" had a different meaning, as was clear from its use invarious parts of the Agreement.  The second point that he would like to make was that the Council's
annual report of 1996 made it clear that it was understood that there would be a review of the scope of
Section 3 of Part II and that, in this regard, Member s' inputs were sought.  It was under this provision
that India would be making a proposal under Articl e 24.1.  His delegation did not agree with the thrust
of New Zealand's paper, which denied that a demand could be made for extending the coverage ofArticle 23 to products other than wines and spirits.  Providing some preliminary comments on the
paper, he questioned that, as stated in its paragraphs 17 and 18, the protection under Article 23 was
"special";  the protection was "additional".  Article 23 had to be read cumulatively with Article 22.
Application of Article 23 did not do away with the requirement under Article 22 not to mislead the
public as to the true place of origin.IP/C/M/28
Page 14
58. The representative of Hungary, providing pr eliminary observations on New Zealand's paper,
first wished to emphasize that Hungary was committed and interested in a substantive and systematic
review under Article 24.2.  The first sentence of this provision made it clear that the review was about
the application of the provisions of Section 3 of Part II.  Therefore, the last sentence of paragraph 21
of the paper would seem to be somewhat out of pl ace, where it suggested that the review "would need
to contemplate the potential disadvantages of creating property rights to the cost of many WTOMembers - and, indeed, the actual disadvantages of the current Article 23 provisions".  Noting that
Hungary could not share New Zealand's view, in particular with regard to Article 23, his delegation
was of the view that this kind of discussion, if there was a need for it, had to be put into the proper
context and had perhaps better fit under the upcoming review of the implementation of the Agreement
under Article 71.1.  Hungary disagreed with New Zeal and that it would be premature for the Council
to consider any changes to Section 3 of Part II while the review was under way.  Negotiations could
be started on the extension of Article 23 protection parallel to conducting the review.  His delegationbelieved that the time required for successfully concluding such negotiations was much longer than
the time-span for the review.  In line with the first sentence of Article 24.2, this review was not a
one-off exercise, but only the first of a series of reviews.  He would comment on the Secretariat
summary and the Australian paper at a future occasion.
59. The representative of Uruguay said that her delegation was awaiting more detailed comments
from her authorities on the Australian and New Zealand submissions.  She wished to emphasize, as a
first reaction, her delegation's interest in the linkage in the Australian paper between international
trade in geographical indications and consumer protection.
60. The representative of Switzerland said that he would comment on the Australian paper at the
next meeting.  As regards the submission from New Zealand, his delegation certainly agreed with
New Zealand on the importance of the review of Ar ticle 24.2 and also that this review should be
carried out in a focused and structured manner.  Switzerland also shared New Zealand's opinion that
this review played an important role in relation to the work on other built-in agenda items on
geographical indications, including the issue of the extension of the product coverage of Article 23.
Switzerland would carefully study the analysis in the Secretariat's summary paper, but was convincedthat it would provide a good basis for proceeding with the work on the built-in agenda concerning
Section 3 of Part II.  However, as said by the delegation of Hungary, the work on the Article 24.2
review was not a conditio sine qua non  for the discussion of the issue of the extension of the product
coverage of Article 23.  Having said this, it went  without saying that Switzerland did not agree with
New Zealand's narrow reading of Article 24.1, which reduced the built-in agenda work under theprovision calling for a better protection of geographical indications solely to a few specific indications
for wines and spirits.  First, such a limitation could not be found in the first sentence of Article 24.1.
Second, as set out in paragraph 12 of the communication on the issue of extension contained in
document IP/C/W/204, co-sponsored by his delegation, it would be illogical to limit the mandated
negotiations in such a way.  Third, such an approach would add to the imbalances already existing in
Section 3 of Part II, which would not be consistent with the spirit and basic objectives of the TRIPS
Agreement.  Finally, he shared the views expressed by the delegation of India.
61. The representative of Canada noted that the proposals for further study of national regimes
under Article 24.2 would help inform the discussion of geographical indications overall.  The
suggestions from Australia and New Zealand in this  regard provided a useful starting-point for how
the Council might proceed.
62. The representative of Mexico said that, since the Australian document had just been received,
she would come back to it later and limit herself, at this time, to stating that her delegation saw merit
in the proposal contained in the paper for a substantive discussion of the provisions under review
pursuant to Article 24.2 as well as how Section 3 of Part II had been implemented in practice at the
national level within domestic legislations.  She did not comment on the compilation prepared by theIP/C/M/28
Page 15
Secretariat, since this document had just become available and because of its size and the quantity of
information contained in it required a detailed study.  Her delegation would certainly check how the
Mexican responses to the Checklist had been reflected and make any comments known to the
Secretariat for possible modification as necessary.  Turning to the communication from New Zealand,
she said that the document had the merit of recapitulating the work of the Council in the field of
geographical indications and contributed certain useful ideas for the organization of the Council'sfurther work.  In particular, her delegation agreed that the Article 24.2 review might be carried out in
a more structured and detailed manner, benefiting thus from national experiences as well as from the
abundant information garnered by the Council.  In this connection, she felt that the document from the
Secretariat would be a most useful tool to suppl ement the Council's review work.  Until the review
had taken place, it would be premature for the Council to consider other aspects or action within the
meaning of the last sentence of Article 24.2.  This provision interpreted objectively did not necessarily
imply amendments to Section 3 of Part II.  Having alluded to the last sentence of Article 24.2, shealso wished to point out that there seemed to be a discrepancy between the English version, which
used the term "further" in relation to the objectives of Section 3, and the Spanish version, which said
"favorecer".  The English term "further" seemed to enlarge the scope.  When reading the text of this
provision in the different official language versions, it occurred to her that delegations might have
different ideas about the scope of the various provisions of the Section due to such discrepancies.  Theprovisions of Article 24.2 did not, in her delegation's interpretation, imply in any way negotiations to
extend the scope of protection.  Consultations could be carried out under these provisions in order to
elucidate or clarify problems that had arisen in connection with implementation and/or application of
the provisions of Section 3 of Part II.  As regards Article 23.4, she wished to emphasize, in relation to
the New Zealand paper, that this provision had been agreed during the Uruguay Round by consensusof all participating countries.  In her delegation's view, it did not amount to a lack of balance in the
Agreement.  Consequently, she did not necessarily concur with the comments in paragraphs 17 and 21
of the New Zealand paper.
63. The representative of Japan said that the Article 24.2 review should first examine the various
ways of implementation Members had opted for nationally, in order to gain a better understanding of
the TRIPS provisions in the area of geographical indications.  He said that the summary paper
prepared by the Secretariat could form a useful basis for this examination and requested those
Members which had not yet done so to provide their responses to the Secretariat.  Regarding the
proposed expansion of the goods covered by Article 23, he wished to emphasize the importance of a
balance of interests.  While the extension of covered products would increase the protection ofproducers in certain sectors, it would raise the costs and burdens in business transactions.  Therefore,
a careful examination should take place of the appropriateness of an extension of covered products,
based on an analysis of the various ways Members were protecting geographical indications while
having implemented the Agreement.
64. The representative of New Zealand said that some of the comments made on his delegation's
paper underlined the need for more information on the experience of Members and their approach to
the different provisions of Section 3 of Part II of the Agreement and, consequently, a thorough andstructured analysis of these provisions.  Reacting to the comment from India that Article 24.2 did not
refer to implementation and therefore might have a broader focus, he said that, while there might be
different views among Members as to the focus of the provision, the first sentence clearly indicated
that a key task should be to review how the provisions had been applied by Members.  Article 24.2
also referred to "any matter affecting the compliance with the obligations under these provisions"being drawn to the attention of the Council, which he believed also indicated a link to how the
existing obligations had been applied by Members.  Also on the issue raised as to whether protection
under Article 23 was "special protection" or "additional protection", he believed Members might have
different views.  The point made by India concer ning paragraph 17 of the New Zealand paper with
regard to the last part of Article 23, was one of those on which Members could exchange informationin a thorough and structured review.  The queries that  had been raised in this regard pointed to theIP/C/M/28
Page 16
merits of proceeding in an analytical way and addressing questions such as, for example, those
outlined in the Australian paper.
65. The representative of the Czech Republic said that her delegation would study the individual
elements of the documentation received carefully and come back to the papers at a later stage.
66. The representative of Korea said that it was his delegation's view that the main purpose of the
review in this area was to identify or review issues which had emerged in the course of the
implementation of provisions on the protection of geographical indications under the TRIPS
Agreement.  It was evident from the language of Article 24.2 that the review should concern the
application of the provisions of Section 3 of Part II , i.e. to clarify what appeared to be uncertain or
ambiguous in these provisions or identify shortcomings in their application.  Therefore, it would not
serve the purpose of Article 24.2 if one were to link the expansion of the product coverage of
Article 23.4 to the review under Article 24.2.  One possible candidate to be taken up in the review
under Article 24.2 was Article 24.6.  According to this exception provision, a geographical indicationbecoming a generic expression and losing its distinctiveness could not be protected as a result.  In this
regard, it remained an important issue to be se ttled what criteria should be applied for the
determination of whether geographical indications had become generic expressions.  Eventually, final
judgements on their nature would be determined under domestic law.  The lack of clear rules on this
issue at the international level warranted a review in the context of Article 24.2.  In this connection, itwas also necessary to take into account what was being discussed in other international fora, in
particular in the WIPO Standing Committee on Trademarks, Industrial Designs and Geographical
Indications, where discussions were under way on how to solve the possible conflict between
geographical indications and trademarks as well  as between homonymous geographical indications.
Finally, he stressed the importance of the Secretariat summary paper and commended the efforts madeby the Secretariat.
67. The representative of the United States said that his delegation was impressed by the paper
submitted by Australia.  It made good sense for all delegations to have a clear and full understanding
of how the existing provisions of the Agreement on geographical indications had been implemented
and what kind of protection was provided through the implementation of these provisions beforetaking decisions on how to possibly improve them.  New Zealand and Australia had given practical
suggestions as to how the Council might organize  its work on the review under Article 24.2.  His
delegation would study these suggestions and come back to them at the next meeting.  He suggested
that all delegations reflect on how the Council, in a practical way, might make use of the information
contained in the Secretariat's summary paper.  Finally, he said that any further work that the Councilmight engage in relation to Article 24.1 should not stand in the way of a practical examination of the
information that had been collected in the context of Article 24.2.
68. The representative of the European Communities expressed his delegation's appreciation for
the Chairperson's efforts in order to find out how the Council might proceed on the various agenda
items relating to geographical indications.  Although the Secretariat's summary paper and submissions
of the delegations of Australia and New Zealand required careful analysis before comments could be
provided on their substance, it was already clear that there was now quite a bit of material available toMembers and that the Council should dig into these papers in detail.  Hence, he wished to suggest
that, if the Chairperson would hold informal consultations, late October or early November, the
Council might seize that opportunity to also have a substantive, technical discussion, in informal
session, on all the papers that were now on the table concerning the various agenda items relating to
geographical indications.  There was a clear interest in discussing the protection of geographicalindications for products other than wines and spirits and it would be useful to include that issue fully
in these discussions.  It would be useful and appropriate if Members that had not yet responded to the
Checklist would still do so.  However, this should not be a reason for delaying the discussion on the
Secretariat summary.IP/C/M/28
Page 17
69. The representative of Chile expressed support for a systematic approach in the review under
Article 24.2 as proposed by New Zealand.  In its further discussions, the Council should also consider
progress made in this area in other international organizations, such as in WIPO, where recently
geographical indication issues had been discussed.  The format of the discussions in the Council on
these matters had to be radically changed, for example as suggested by New Zealand and the
European Communities.
70. The representative of Kenya said that his delegation wished to put on record that it would also
like to be mentioned as a co-sponsor of the joint paper introduced by Switzerland.  He reminded
delegations of the proposal that the African Group had tabled last year in the preparations of the
Seattle Ministerial Conference.  Kenya was developing its laws on the protection of geographical
indications in respect of any products of an agricultural or industrial nature.  As regards the Australian
paper, he wished to emphasize that the Council had only received responses to its Checklist of
Questions from 35 Members and that many Members, in particular developing countries, had notsubmitted any replies as yet.  A review of national laws as suggested by Australia and New Zealand
should not prejudice the future development of the protection of geographical indications in these
countries.
71. The representative of Mauritius said that the African Group had made proposals in the Seattle
process in connection with product coverage and could support the joint paper introduced by
Switzerland.  He also expressed support for the suggestion from the European Communities.
72. The representative of Bulgaria expressed support for the suggestion made by the European
Communities, but wished to emphasize in that regard  that the suggested review of national legislation
under Article 24.2 should not influence the discussions under Article 24.1 on the extension of the
additional protection for geographical indications under Article 23 to product areas other than winesand spirits.  His delegation was not convinced by Australia and New Zealand that a detailed review of
national legislation had to proceed a decision on such  an extension.  In view of the fact that the
New Zealand paper stated that Article 24.1 did not lay down a mandate for negotiations on such an
extension, he wished to recall that his delegation had suggested in the Special Session of the
Committee on Agriculture to address, in that case, also there first the issue of whether each specificproposal made in the negotiations was within the negotiating mandate.
73. The Chairperson, while indicating that he intended to suggest a procedure for moving the
work forward after the discussion of the agenda item concerning the implementation of Article 24.1,
suggested that the Council take note of the statements made.
74. The Council so agreed.
I. IMPLEMENTATION OF ARTICLE 24.1
75. The Chairperson said that this item had been placed on the agenda on the request of the
delegation of Switzerland.  A joint paper had been submitted by the delegations of Bulgaria, the
Czech Republic, Iceland, India, Liechtenstein, Slovenia, Sri Lanka, Switzerland and Turkey, which
outlined the views of those delegations on the implementation of Article 24.1, in particular in regard
to the extension of additional protection for geographical indications to products other than wines and
spirits.  In addition, he drew attention to the papers that had been recently circulated by the delegationof India to the Council for TRIPS in documents  IP/C/W/195 and IP/C/W/196, which also addressed
this matter.IP/C/M/28
Page 18
76. The representative of Switzerland introduced the communication that his delegation had
jointly submitted with Bulgaria, the Czech Republ ic, Iceland, India, Liechtenstein, Slovenia,
Sri Lanka and Turkey on the issue of extension of additional protection for geographical indications to
products other than wines and spirits.  In the meantime, Egypt, Kenya and Pakistan had also become
co-sponsors of the paper.  He said that, for a considerable time, Members had been discussing in the
Council for TRIPS whether the important issue of extension was part of the Council's work to be
addressed under Section 3 of Part II of the TRIPS Agreement.  For a long time, this debate in the
Council had been limited to oral statements of Members declaring or denying that a mandate existed.
The purpose of the joint communication was to respond to the Chairperson's request to Members to
come forward with legal arguments on this issue and to present such arguments in written
submissions.  The delegations on behalf of which he spoke were of the view that the issue of
extension was, indeed, part of the built-in agenda of the Section on Geographical Indications in the
TRIPS Agreement and the paper aimed to show, by conclusive reasoning, that the Council for TRIPSshould address, in its work, the imbalance of protection for geographical indications for wines and
spirits on the one hand and for other products on the other hand.  Some Members might ask why it
was so important to have this additional protection also for other products than wines and spirits and
whether the current protection for these products was not sufficient.  Section 3 of Part II of the TRIPS
Agreement provided for two different levels of protection for geographical indications.  First, therewere the general standards of protection that must be available for all geographical indications against
misleading and unfair practices.  Such protection, as required by Article 22, shall be applicable
against a geographical indication which, even if literally true as to the territory, region or locality in
which the goods originate, falsely represented to the public that the goods originated in another
territory.  Second, there was the additional or "absolute" protection which must be accorded togeographical indications for wines and spirits.  Under the provisions of Article 23 laying down
enhanced protection for these geographical indications, it was, for example, not necessary to prove
that the public was misled or that there was unfair competition.  Protection in accordance with
Article 23 shall provide the legal means for interested parties to prevent use of a geographical
indication identifying wines for wines not originating in the place indicated by the geographicalindication in question or identifying spirits for spir its not originating in the place indicated by the
geographical indication in question, even where the true origin of the goods was indicated or the
geographical indication was used in translation or accompanied by expressions such as "kind", "type",
"style", "imitation", or the like.  An example might illustrate why this additional protection was also
needed for geographical indications other than those for wines and spirits.  Rice that was sold underthe Indian geographical indication "Basmati", but which was clearly marked as originating from
another region or country, would not mislead the public as to the place of origin of that product;
nevertheless, such use would free-ride on the worldwide famous and therefore commercially valuable
geographical indication "Basmati".  The same applied with regard to the famous Swiss cheese
"Vacherin Mont d'Or", for example.  There was no systematic or logical explanation for the
distinction made in Section 3 of Part II of the TRIPS Agreement and this distinction ignored that
geographical indications for categories of goods other than wines and spirits were equally importantfor trade.  Not all issues relevant to the protection of geographical indications had been settled in the
Uruguay Round.  Therefore, the built-in agenda of the TRIPS Agreement provided for a basis for
further negotiations on increasing the protection of geographical indications.  In its report to the
Ministerial Conference in Singapore in 1996, the Council for TRIPS had identified three built-in
agenda items of the TRIPS Agreement, i.e. Article 23.4, Article 24.1 and Article 24.2.  Article 24.1and 24.2 contained the basis for negotiations to extend the additional protection of Article 23 to
products other than wines and spirits.  Article 24.1 required that Members enter into negotiations
aimed at increasing the protection of individual geographical indications under Article 23.  Some
Members had a very narrow reading of this provision.  They claimed that the built-in mandate should
only cover an increase or extension of the protection of individual geographical indications for winesand spirits.  However, such an interpretation of Article 24.1 was too narrow;  it would be illogical to
limit the mandated negotiations to an improvement of the protection of geographical indications for
wines and spirits, because these already benefitted from the additional protection under Article 23.IP/C/M/28
Page 19
Such an approach would add to the imbalances already existing in Section 3 of Part II, which would
not be consistent with the spirit and basic objectives of the TRIPS Agreement.  In order to address all
issues left for further clarification and improvement by the Uruguay Round compromise, the
negotiations required by the built-in agenda of Article 24.1 should include not only the question of
additional protection for geographical indications for wines and spirits and/or of mitigating the
exceptions to protection contained in paragraphs 4 to 8 of Article 24, but should also deal with theissue of increasing the protection of individual ge ographical indications for products other than wines
and spirits.  In other words, Article 24.1 was a provision of general application to all products and the
reference to Article 23 did not relate to products contained therein but to the level of protection to be
provided.  An additional argument for this interpretation of Article 24.1 could be found in the inherent
structure of Section 3 of Part II.  The title of Article 23 clearly denoted that this provision dealt
exclusively with geographical indications for wines and spirits.  Article 24, however, was not limited
to wines and spirits, except where the provisions explicitly mentioned so in the text.  Turning to
Article 24.2, he said that this provision contained three additional elements which supported the view
of taking up an extension of the additional protection of Article 23 to products other than wines and
spirits in the built-in negotiations.  Firstly, the first sentence of Article 24.2 mandated the Council to
review the application of the provisions of Section 3 of Part II.  Apart from the fact that any review of
the application of provisions might lead to an improvement and an increase of the protection grantedby the provisions under review, the Council for TRIPS had reported to the 1996 Ministerial
Conference in Singapore explicitly "[…] that a re view of the application of the provisions of the
Section on Geographical Indications as provided for in Article 24.2 [...] permits inputs from
delegations on the issue of scope...".  The same statement could be found in a recent Background
Paper to the General Council's Special Session on Implementation.  Secondly, Article 24.2 provided,
in its second sentence, that any matter affecting the compliance with the obligations under these
provisions could be drawn to the attention of the Council.  Thirdly, the last sentence of Article 24.2
mandated the Council to take such action as might be agreed to facilitate the operation and further the
objectives of Section 3 of Part II.  The joint communication from the delegations on behalf of which
he spoke signalled the importance many Members attached to the issue of an extension of theadditional protection for geographical indications to products other than wines and spirits.  The
communication showed the concerns of these Members regarding the unjustifiable distinction in the
level of protection of geographical indications for different categories of products and the imbalance
and distortions of trade which resulted therefrom.  Switzerland and the Members co-sponsoring and
supporting this communication were, therefore, convinced that the Council's work on the built-inagenda in Section 3 of Part II of the TRIPS Agreement for increasing the protection of geographical
indications must also include the issue of extension.   Only then could an overall satisfactory solution
in the field of geographical indications be found in line with the spirit and the objectives of the TRIPS
Agreement and to the benefit of all Members.  The delegations on behalf of which he spoke presented
this communication as a first step.  They would like, with a next communication to be presented in
one of the following Council for TRIPS meetings, to make further and more detailed proposals on
how the future work of the Council on geographical indications, and in particular the issue ofextension, could be addressed and organized.  He requested the Chairperson to continue his informal
consultations on the issue of geographical indications in due time before the next meeting of the
Council.
77. The representative of Egypt wished to thank the delegation of Switzerland and other
co-sponsoring countries for their submission.  His delegation agreed and supported the analysis and
conclusions reached in the paper.  It was in the interest of all Members to improve the quality of the
protection of geographical indications for all goods, by providing additional protection as stipulated in
the Agreement without discrimination between goods.  This would be in line with the provisions of
the Agreement in general, which aimed at promotin g effective and adequate protection for intellectual
property rights, as stated in the Preamble of the Agreement.  The review and amendment provisions ofthe Agreement called for adjusting to higher levels of protection of intellectual property rights.IP/C/M/28
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Therefore, his delegation would like to be mentioned as a co-sponsor of the joint paper introduced by
Switzerland.
78. The representative of Hong Kong, China said that his delegation supported the global
approach set out in paragraph 17 of the joint paper and was planning to put forward, in the near future,
a non-paper fleshing out, to some extent, the basket approach referred to in the joint paper.
79. The representative of India said that, in addition to the introductory remarks made by
Switzerland on the joint paper, his delegation would li ke to underline, as co-sponsor of the paper, its
view that there was a political, legal and economic basis for this proposal.  The political basis was that
the time had come for developing countries to derive benefits from the TRIPS Agreement.  Balance
was required and there was no reason why some products, which were of interest to developed
countries, alone should be protected in a particular way and other products, whether of interest to
developing countries, to transition economies or to developed countries, should not get that
protection.  The legal basis could be found in both Article 24.1 and 24.2.  He had already dwelt on theinterpretation of Article 24.2 under the previous agenda item.  As regards Article 24.1, many possible
interpretations of the first sentence had been advanced.  The New Zealand interpretation advanced
under the previous agenda item was just one such possible interpretation.  One point on which his
delegation would take issue with New Zealand was that the words "wines and spirits" did not occur in
the first sentence of Article 24.1.  As for the economic basis for the proposal, if a country saw namesof products it considered its intellectual property and its heritage being appropriated by others for
selling products, obviously there was an economic reason for doing so.  It was not a coincidence that,
for example, Basmati rice or Darjeeling tea were being used by others;  it was clear that there had to
be a sound trade and economic reason for doing so.  Consequently, his country would like to derive
the economic benefits of those products whose appellation of origin or geographical indicationrightfully belonged to it.  It was the duty of this Council to look not only at the legal questions
involved, but also at the political, economic and trade factors involved;  and to take into account the
demand made by a group of countries, including a large group of developing countries in particular,
who would like to see this fundamental im balance in the TRIPS Agreement rectified.
80. The representative of Turkey fully associated  his delegation with the interventions made by
the other co-sponsors of the joint paper introduced by Switzerland.  He wished to emphasize one
point, i.e. that the issue of the extension of geographical indication protection was neither an
implementation issue nor a negotiation issue;  it was part of the built-in agenda.  In his delegation's
view, the mandate stipulated in the TRIPS Agre ement was clear enough to enable the Council to
discuss this issue.  Looking at the list of the co -sponsors of the joint paper and the Members that had
given their support to it, one could see that it represented the common view of countries with different
economic backgrounds and with different levels of development;  and that the countries in question
were not producing similar products and had different economic policy objectives.  This point
required more attention.  The fact that there were so many countries seeing an urgent need to increase
geographical indication protection under the TRIPS Agreement for such a wide range of products was
an indication of the imbalance of the TRIPS Agreement and made the distinction between certain
products and others difficult to explain.  If one tended to interpret the provisions of the Agreement toonarrowly, there was a risk of excluding many products and their producers from strong protection
under the multilateral trading system while providing such benefits to others.  Members should not
fail to notice the legitimate concerns of the producers which were seeking protection for the
geographical indications of their products, in particular since many were small and medium-sized
enterprises trying to enter other markets.  If the WTO's aim was to ensure their participation andintegration in the global economy, Members had to show them that they had their place in it as well.
If these producers had a reputation for a product or a production method they had developed over the
years, it was their legitimate right to benefit from such reputation.  The issue of geographical
indications was not only an issue for producers;  it had a consumer dimension as well.  One of the
basic principles of a market-oriented economy was the consumers' right to choose with properIP/C/M/28
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knowledge enabling them to know exactly what to consume.  It was also their right to enjoy the
particular characteristics of a product they wished to consume.
81. The representative of Sri Lanka also endorsed the views expressed by other co-sponsors of
the joint paper in relation to Article 24.1 and 24.2.  Sri Lanka attached significant importance to the
issue of geographical indications, as these had, in the global market, become invaluable marketing
tools in business.  Their role in identifying commer cial national, regional or local characteristics was
an asset for all countries.  Accordingly, the economic and political significance of geographical
indications was growing, as increasing quality awareness and higher quality requirements promoted
the demands for such products.  While referring to the explanation given by the delegation of India to
the different importance that countries attached to geographical indications, she said that Sri Lanka
did not wish to be in a position not to be able to benefit from the inherent qualities of the products to
which it had attributed geographical indications.  The TRIPS Agreement required geographical
indications in general to be protected, at least with a view to avoiding unfair competition andconsumers being misled.  In the context of this definition, it was her delegation's view that general
standards of protection accorded or available under Article 22 were not adequate to protect the
exclusive rights right holders should enjoy under the Agreement, as the general protection granted
therein could not prevent the use of a geographical indication identifying a specific product not
originating in the place indicated by the geographical indication.  Article 23 did provide for theadditional protection required for geographical indications attributed to products, since it provided
protection even where their true origin was indicated or the geographical indication was used in
translation or accompanied by expressions such as "kind", "type", "style", "imitation" or the like.  The
General Council had agreed that mandated reviews should address the impact of the TRIPS
Agreement on the trade and development prospects of developing countries and, in the context ofgeographical indications, it could hardly be denied that a large number of developing countries and
transition economies attached tremendous importance to extending the scope of protection under
Article 23 to products other than wines and spirits.  She said that her delegation was planning to
enlighten the Council at the next informal session on the subject with specific details justifying why
the group of countries sponsoring the joint paper needed the additional protection under Article 23 tobe extended to other product areas.
82. The representative of Slovenia said that his delegation, as a co-sponsor of the joint paper
introduced by Switzerland, would like to stress th e importance of geographical indications and their
protection in the globalization of trade, in order to show the urgent need to work on this built-in
agenda item.  His delegation was convinced that this work could be carried out in parallel to themandated work under Article 24.2.  He also expressed support for the proposal made by the European
Communities, to have informal consultations on matters of substance in this area before the next
meeting of the Council.
83. The representative of Australia wished to express his delegation's eagerness to see a rich
substantive discussion in the Council concerning geographical indication protection and hoped that,
by saying so, this might help dispel a slight misunderstanding that had developed.  Australia was not
questioning, in its paper concerning the review under Article 24.2, the value of geographicalindication protection, but wondered whether the balance struck in various jurisdictions was
necessarily the best way to achieve such protection.  Referring to the notion of "absolute protection"
used in the joint paper introduced by Switzerland, he believed that one should be cautious in applying
absolute protection to any form of intellectual property.  Australia was suggesting through its
discussion paper that the rather simplistic pasting of the words "everything made by man under thesun" into Article 23 would not necessarily in itself confer any significant economic or trade benefits
and that there should be a strong focus on the need for a look at the practical reality of geographical
indication protection.  In that regard, he wished to clarify that it was his delegation's understanding
that Article 24.1 provided a basis for negotiations on eliminating balancing exceptions to geographical
indication protection as applied in accordance with the exceptions provisions of Article 24, forIP/C/M/28
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example exceptions based on prior use in good faith, use of generic descriptive terms or pre-existing
trademarks.  It concerned negotiations along these issues in relation to geographical indications
already protected under Article 23.  Not that his delegation believed that this was a palatable prospect,
because it seemed to concern a process that threatened the balance of interests and, in some instances,
the fair use of the English language in his country.  If delegations were to consider that Article 24.1 in
fact covered the re-writing of Article 23.1, to introduce new product lines, he would suggest that, inthe context of forthcoming informal consultations, one would look at individual geographical
indications, because it was unquestionable that  Article 24.1 was about individual geographical
indications rather than about product classes or industrial sectors.  It might be helpful, before one did
consider the exact nature of this mandate, to consider the individual geographical indications that
were of interest or concern.  In that context, one might also consider how these were protected in
existing systems or find out if some of them were, in some jurisdictions, regarded as not being
geographical indications at all.  Referring again to the joint paper introduced by Switzerland, he saidthat there seemed to be some lack of clarity.  If this Council was indeed mandated to undertake
negotiations on product extension, it seemed to be unclear whether that mandate was intended to fall
under Article 24.1 or 24.2.  From his delegation's point of view, this underscored the need for greater
clarity of the nature of geographical indication protection.
84. Continuing, he wished to clarify that it was not his delegation's intention to suggest that
discussions under Article 24.1 should begin after terminating the review under Article 24.2, nor had
he suggested any other prioritization in terms of timing.  Australia had been engaged in negotiations
under Article 24.1 on a bilateral basis and intensively since the TRIPS Agreement had come into
effect.  All that his delegation had been suggesting in terms of an effective organization of the
Council's work had been that any outcome on how to  go about Article 24.1 would serve the interests
of Members better if it would involve a more informed process and an extraordinarily good source of
information would be the review under Article 24.2.  Thus, genuinely enhanced protection of
geographical indications might be achieved and unexpected disappointments could be avoided.  It
would also be useful if the Council would get an  update from WIPO concerning the practical issues
that were currently being addressed in the context of the Lisbon Agreement with a view to improvingthe multilateral registration system under that Agreement.  It was important for the Council's work
under Article 23.4 to get such an update, now that  the only existing analog internationally was
undergoing some form of review building on experience gained in its operation.  Finally, he expressed
support for the suggestion made by the European Communities for a stand-alone informal session of
the Council to look in-depth at geographical indication issues and recalled his delegation's earliersuggestion that these issues might be of suffic ient importance for the Council to consider the
establishment of a subsidiary body in accordance with Article IV of the WTO Agreement.
85. The representative of Bolivia thanked Switzerland and its co-sponsors for presenting the joint
paper, for which his delegation wished to express its support.  His delegation had already made
known its position at sessions of the General Council in the preparatory work for last year's
Ministerial Conference and fully concurred with the position voiced by India.  It could not be so that
the higher level of protection would only be available in respect of a limited number of products,leaving unprotected a large number of products of interest to Members, including developing country
Members.
86. The representative of the Czech Republic wished to subscribe fully the introductory remarks
of Switzerland concerning the joint paper of which her delegation was a co-sponsor.  Having listened
to some of the other interventions made, she believed that some further explanation on the nature andobjectives of the joint paper was needed.  First, the paper was an attempt to put into effect the
respective commitments under Section 3 of Part II of the Agreement.  Moreover, in her delegation's
understanding, it was fair and balanced;  it had been carefully crafted to strike a balance between the
various interests of all WTO Members.  Second, the objective of the paper was to offer a method
allowing the Council to proceed constructively and in a result-oriented manner, and to achieveIP/C/M/28
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progress on both fronts, i.e. on the issue of the notification and registration system and on the issue of
the extension of the coverage of Article 23.  The method proposed was to treat all relevant issues
together, i.e. a basket approach.  In her delegation's view, it was now high time to stop discussing
issues of mandates and procedure and to launch a substantive debate on Section 3 of Part II:  This
method could meet all interests of WTO Members.  She also expressed support for the suggestion to
have informal consultations on the issue of geographical indications ahead of the next meeting of theTRIPS Council, when the agenda items concerning Article 23.4, Article 24.1 and Article 24.2 should
be discussed in a basket approach.
87. The representative of the European Communities said that he had refrained so far from
participating in a linguistic or legalistic debate, because he did not think that such a debate was
helpful.  However, for those who had concerns about the discussions or the basis for discussions on
additional protection of geographical indications to products other than wines and spirits, he would
like to highlight paragraph 14 of the joint paper introduced by Switzerland, which stated "that theTRIPS Council reported to the 1996 Ministerial Conference in Singapore explicitly 'that a review of
the application of the provisions of the Section on Geographical Indications, as provided for in
Article 24.2, permits inputs from delegations on the issue of scope'.  The same statement can be found
in the background paper to the General Council's Special Session on Implementation".
88. The representative of Hungary wished to join others in welcoming the joint paper introduced
by Switzerland and also put on record that, similarly to the sponsors of this paper, Hungary attached
great importance to the improvement of geographical indication protection under the TRIPS
Agreement.  His delegation shared, in particular, the salient points in paragraph 2 of the paper.  It did
not only believe that geographical indications were invaluable marketing tools on the global market,
but also that, by identifying goods as originating in a certain territory and showing the consumer the
presence of a given quality, reputation or other characteristics of the goods, which was or were
essentially attributable to this geographical origin, geographical indications had in fact become
elements or attributes of the goods themselves.  Hungary was convinced that geographical indications
had considerable potential for commercial use and could be assets for all countries.  It believed that
liberalization efforts, in particular in the area of agriculture, should be accompanied by animprovement of geographical indication protection.  In its view, the composition of the group of
sponsors of the joint paper and the enormous interest from many others during the preparatory process
leading up to the Seattle Ministerial Conference convincingly showed that extension of Article 23
protection to products other than wines and spirits was in the interest of many WTO Members from
various regions of the world and at different levels  of economic development.  The proposal to start
negotiations on the extension of the product coverage of Article 23, in his delegation's view, would be
a clear step forward in improving the TRIPS Agreement.  He wished to add that, if Members took
seriously that one was now in a confidence-building mode after Seattle, the launching of negotiations
on this extension could be a good candidate for prompt action.  Against this background, he stressed
that Hungary took a pragmatic approach and was ready to start such negotiations.  As first steps, he
could support what Switzerland ha d suggested.  His delegation slightly differed in view from the
sponsors of the joint paper as to the need for the es tablishment of a strict link between the negotiations
under Article 23.4 and those on the extension of Article 23 protection.  A strict link might unduly
slow down the setting up of the notification and registration system under Article 23.4 and would
make Members mostly interested in the latter he sitant in their support for an extension of the
Article 23 protection.
89. The representative of New Zealand said that his delegation was of the view that Article 24.1
was not intended to be used to add other product sectors to those covered by Article 23.  New Zealand
believed that this was clear from the first sentence of the provision.  As also mentioned by Australia,
the real intention in the wording of Article 24.1 was to allow for negotiations to limit the application
of the exceptions set out in Article 24.4 and foll owing with respect to geographical indications
covered by Article 23, i.e. those for wines and spirits.  Looking at some of the comments made andIP/C/M/28
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the questions raised, his delegation believed that Members really needed to use the review under
Article 24.2 to allow an opportunity for Members, who felt that there were specific issues raised in
relation to the protection provided by Article 22, to come forward and discuss particular issues that
they might have identified in relation to their own domestic application and implementation.  He
endorsed the comments made by Australia about the misleading nature of statements on the absolute
protection already provided for particular terms.  In order to get to the bottom of this issue, it wouldbe necessary to take a rigorous approach to the review of all the provisions of Section 3 of Part II.
90. The representative of Venezuela said that there was obviously no consensus regarding the
scope of the negotiations under Article 24.1 or the review under Article 24.2 of the application of the
provisions of Section 3 of Part II.  Her delegation would like the record to show that Venezuela
concurred with the interpretation given by Switzerland and its co-sponsors in the joint paper and
considered paragraph 17 of this paper of great interest, pointing out the need to discuss all matters
relating to Section 3 of Part II in a global and balanced manner.
91. The representative of Cuba similarly highlighted paragraph 17 of the joint paper.  She also
expressed support for the comments made to the effect that the coverage of products should be borne
in mind as an indispensable part of the multilateral nature of the negotiations, if Members wished to
correct any imbalances which existed in the treatment of different products.  Section 3 of Part II did
not cater across the board to the interests of all Members.
92. The representative of Canada said that, during the informal consultations held on the matter,
the idea of a special meeting on geographical indications had been raised.  Her delegation wished to
support the idea of initiating a discussion on the range of issues in this area.  This would provide an
opportunity to delve further into an analysis of national geographical indication regimes as allowed
for in Article 24.2 as well as to educate and inform the Council's discussion of geographicalindications and, most importantly, to increase Members' mutual understanding of the considerable
protection afforded to all geographical indications under Article 22.  Her delegation would like to
note, however, that the question of the meaning of Article 24.1 and the mandate it provided to the
Council for TRIPS would remain an issue where Me mbers would continue to have different views.
Canada believed that the meaning and intent of Article 24.1 was straightforward;  it explicitly referredto increasing the protection of individual geographical indications under Article 23, namely wines and
spirits alone.  Her delegation was, therefore, not in a position, at this time, to agree to begin
negotiations or exploratory talks aimed at expanding the enhanced protection afforded to wines and
spirits to any other products.  Article 24.1 did not provide a mandate to do this.
93. The representative of Mexico said that her delegation respected the political and economic
reasons mentioned by certain delegations as justifying their wish to enter into negotiations to extend
the protection of geographical indications under Article 23 to products other than wines and spirits
and recognized the right of delegations to submit proposals as they saw fit and to have these discussed
by delegations that wished to discuss.  These were all "inputs from delegations on the issue of scope"
of the review under Article 24.2, as referred to in paragraph 34 of the TRIPS Council's 1996 annual
report, which had been endorsed by the Singapore Ministerial Conference.  However, Mexico could
not accept legal interpretations of Article 24.1 as had been put forward to justify why this Councilshould get involved in negotiations to extend the additional protection of Article 23 to products other
than wines and spirits.  In her delegation's view, an objective reading of Article 24.1 made it clear that
the negotiations referred to therein were to improve the protection of the individual geographical
indications already covered by Article 23.  There was no need to get into legal hair-splitting or
terminological considerations in that regard.  Howe ver, having seen the legal reasoning in the joint
paper introduced by Switzerland, it should be pointed out that this paper seemed to lack precision in
some respects regarding the interpretation of Ar ticle 24.1 and her delegation was not prepared to
accept the interpretation advanced.  The WTO was a rules-based Organization and that was why her
delegation was of the view that a legal analysis had to be carried out of the provisions in trying to findIP/C/M/28
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solutions.  At present, Members were clearly far from a consensus as regards interpretation.  Inputs in
the form of proposals were being made and could be made, but that did not mean that Members had
also achieved a consensus on the issue of whether an extension of the product coverage of Article 23
could be negotiated.  For that reason, and because the various elements of the basket did not have the
same legal standing, paragraph 17 of the joint paper, which was asking for a basket approach, was
therefore not acceptable to her delegation.  She expressed support for what had been proposed byAustralia and New Zealand to the effect that there be a detailed study of how each of the provisions of
Section 3 of Part II might be interpreted and were being applied in practice.
94. The representative of Chile expressed his delegation's gratitude for the joint paper introduced
by Switzerland.  Although it was true that this paper did not necessarily lead to a consensus, as the
discussion had shown, it had served the purpose of providing a basis for a discussion which had in
fact enabled assessment of the different views Members had in this Council.  As far as he
remembered, the first text which had been analysed during the TRIPS negotiations had been based onfive proposals from delegations, namely the European Communities, the United States, a group of
developing countries, Switzerland and Japan.  None  of these five proposals contained any provision of
the sort that was the subject of the present agenda item.  Nor did the Chairperson's report of
23 July 1990, summing up the different proposals presented and certain elements on which at that
time consensus had been reached following discussions on these proposals, reflect something evenclosely resembling the provisions of Article 24.1.  The text sent to the Brussels Ministerial in
December 1990 did not contain any such provision either.  Article 24.1 appeared for the first time in
the Draft Final Act of December 1991, which showed that the provision was rather the result of
political compromises reached than of technical discussions, for the purpose of ensuring that the
Uruguay Round might be successfully concluded.  In his delegation's view, it was important to recallthe history of this provision and to maintain the balance struck at the time the provision had been
adopted.  Historically speaking, Article 24.1 was possibly representative of one of the most
substantive changes the TRIPS draft had undergone after the Brussels Ministerial of December 1990.
Another point that he would like to mention was that his delegation supported the view that the
negotiations referred to in Article 24.1 only concerned what was covered by Article 23, which in itstitle and in its paragraphs 1 and 2 referred to additional protection for wines and spirits and in its
paragraphs 3 and 4 only to wines.  This showed that there were three different categories of products
in the Agreement and not just two, as had been suggest ed in the joint paper.  Therefore, his delegation
would see some difficulties, in the light of the provisions of the Agreement as it was at present, in
negotiating an increase in the scope of products that would come under additional protection.  Inconclusion, as a developing country, it seemed to Chile that the solution to the problems which
developing countries might come up against in Se ction 3 of Part II went far beyond a simple of
increasing or not the scope of protection.  A far more systemic consideration of this Section was
required.
95. The representative of Bulgaria thanked Australia for its important clarifications, in particular
that the Australian delegation did not see any impediment to work under Article 24.2 and work under
Article 24.1 proceeding in parallel.  In fact, that was also what India had been suggesting and hisdelegation had supported.  However, work on the issue of the extension of the additional protection
under Article 23 to other product areas in the context of Article 24.1 should not be held hostage to the
review under Article 24.2.  Both Article 24.1 and 24.2 established built-in agenda items and neither
required consensus for the initiation and continuation of work under them.  Work under one of these
items should not depend on the work on the other.  If, as the United States had said, there was noconsensus on what Article 24.1 mandated, his delegation would maintain the view that there was no
consensus on the mandate of the Special Session of the Committee on Agriculture either.  Moreover,
he would have difficulties in accepting to have a detailed review and analysis of national systems for
the protection of geographical indications under Article 24.2, if there would not be a clear
understanding that the Council would also proceed under Article 24.1 in dealing with the issue of theextension of the additional protection under Article 23 to other product areas.IP/C/M/28
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96. The representative of Norway said that it was go ing to be difficult to reconcile the different
views on what was in the built-in agenda, including the interpretation of Article 24.1.  Nevertheless,
his delegation believed that it would be possible to accommodate views by placing on the agenda
what Australia and New Zealand had said, namely broadening the review of national implementation,
and, at the same time, also looking at other products which might merit extension of protection.
These elements could be addressed under different agenda items so as to allow the Council to get abetter understanding of the needs of various Members.  His delegation, therefore, concurred with the
European Communities that an informal meeting should be convened some time between now and the
next meeting of the TRIPS Council, in order to proceed on the procedural issues and improve an
understanding of substantive issues.
97. The representative of Jamaica would like to underscore the importance her delegation
attached to this issue, in particular the extension of the additional protection under Article 23 to
products other than wines and spirits.  Her delegation shared the views expressed by the sponsors ofthe paper introduced by Switzerland and was considering to become a co-sponsor.
98. The Chairperson suggested that he hold informal consultations prior to the next meeting of
the Council at which Members would discuss propos als on how to carry forward the work of the
Council for TRIPS on geographical indications, including documents IP/C/W/204, IP/C/W/205 and
IP/C/W/211, and initiate a more structured and detailed process of examination of experience withregard to the operation of the provisions of Section 3 of Part II of the Agreement.
99. The representative of Argentina said that, with regard to the Chairperson's proposal,
Argentina was not opposed to the holding of informal consultations concerning the relevant
provisions for geographical indications.  In fact, until now, the Council had always held such
consultations before each meeting.  However, her delegation was concerned over the content of theChairperson's proposal, which covered the handling of two items, one regarding the discussion of
document IP/C/W/204 and the other regarding the initiation of a structured review process of national
experiences with regard to the operation of the provisions of Section 3 of Part II of the Agreement.
The documents submitted by Australia and New Zealand, which had been submitted under
Article 24.2 and not under Article 24.1, had been included under the first item of the proposal togetherwith document IP/C/W/204 without an indication of substantial differences in the underlying matter
they addressed.  In Argentina's view, this proposal favoured a conception of the structure of the
discussion not supported by all Members.  Differing views on this matter had repeatedly been
expressed in successive Council meetings and informal consultations.  Moreover, it was not clear
under which provisions these items would be discussed.  In her delegation's view, this was notirrelevant.  Further, Article 23.4 had been conspicuously ignored.  Her delegation therefore reserved
its right to prepare its comments on document IP/C/W/204 and other documents submitted for the
consideration of the Council which had not been circulated sufficiently in advance for her delegation
to be able to analyse them carefully and prepare its comments in time for this meeting.  With regard to
Article 23.4, she wondered whether it should be understood that the discussions under this provision
had been postponed and, if so, whether a consensus had been reached on this.  Her delegation would
be grateful for clarification of the reasons for the omission of Article 23.4 in the Chairperson'sproposal.  In the light of these considerations, she requested that, if it was agreed that official
consultations should be held, this be done pursuant to the structured method of working followed until
now in the meetings of the Council, i.e. on the basis of each of the built-in agenda provisions relating
to geographical indications as reflected in the formal agenda of the Council.  She pointed out that,
despite the fact that several delegations had request ed at the previous Council meeting that the usual
agenda structure be retained, the agenda of the informal consultations which had been conducted
before this Council meeting had been designed acco rding to different parameters.  In view of the
differences of opinion on this issue which had existed until now and which, in her delegation's view,
had not been resolved in the current meeting, Argentina believed that a decision should not be taken
in advance as to the content of eventual consultations.  Neither should the content of the discussions,IP/C/M/28
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irrespective of whether they took place immediately before or some time prior to the Council's
meetings, be steered in any particular direction, since it was clear that a consensus had yet to be
reached on what that direction should be.  She associated her delegation with the statements made by,
for example, Mexico, Chile, Canada and New Zealand.  She expressed her delegation's surprise at
comments made calling for a "pragmatic approach" and against "narrow or legalistic interpretations".
Her delegation shared the concern of developing countries with regard to the existing imbalances inthe WTO Agreements, but was of the opinion that the subsidiary bodies did not have the authority to
redress such imbalances within their own areas of responsibility.  Argentina believed that there were
two ways of rectifying the existing imbalances:  either by recourse to the specific provisions
concerning the amendment of WTO Agreements, or by  a new round of negotiations.  For all of these
reasons, and as her delegation had already pointed out in the informal consultations, Argentina would
like to see the Council concentrate its efforts on fulf illing its existing and outstanding obligations, i.e.
the negotiations concerning a multilateral system of notification and registration for wines and thereview of how Members had implemented their obligations under Section 3 of Part II of the
Agreement.  Her delegation would ask Members to refrain from distracting the attention of the
Council to issues outside its express terms of reference under Articles 23.4, 24.1 and 24.2, by trying to
include new obligations into the system or new products into certain existing obligations.  Argentina
believed that the Council did not have the mandate to negotiate on broadening the protection underArticle 23 for geographical indications in respect of wines and spirits to other products, or to include
other products in the Council's negotiations under Article 23.4.
100. The representatives of Bulgaria, Egypt
, the European Communities , Hungary  and Switzerland
expressed support for the Chairperson's proposal.  The representatives of Bulgaria wished to inform
the Council in this connection of the statement by his delegation at the last Special Session of the
Committee on Agriculture, where he had said that it was the right of Members to make proposals for
the mandated negotiations, which included those on agriculture, those on services and those on
geographical indications.  If Members were here to discuss mandates, then necessarily mandates also
had to be discussed at the Special Session of the Committee on Agriculture scheduled for next week.
His delegation had reserved its right to raise this matter at the moment of the adoption of the agendaof that Special Session and would do so if his delegation's understanding of the situation would be
challenged.  The representative of Egypt believed that the informal consultations should not be
conducted in parallel or back to back with the next meeting of the Council.  The representative of the
European Communities wished to stress the need that the work under Article 23.4 should be
addressed as well if further informal consultations were called as proposed by the Chairperson, given
the interests of his delegation in that item.
101. The representative of the United States said that the discussion had made it clear that several
delegations needed further instructions before they might be in a position to support the scheduling of
such informal consultations.  The representative of Mexico said that her delegation shared some of the
comments made by Argentina as regards the content of the Chairperson's proposal, in particular asregards the structure of the discussions.  In this regard, she expressed concern about the absence of a
reference to Article 23.4 in the proposal.  The representative of New Zealand said that some of the
comments that had been made suggested that there might be a need to consult further on exactly how
informal consultations were to be proceeded with.
102. The Chairperson did not sense any opposition for him holding informal consultations.  There
were differences of view as to how and on what he should consult.  He should, in any case, consult
Members on how to carry forward the work of the TRIPS Council on geographical indications.Bearing in mind that some delegations had to cons ult their capitals, he would check with delegations
after the meeting as to what precisely would be taken up in these informal consultations.IP/C/M/28
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103. The representative of Bulgaria said that it would be important if the Chairperson could
provide more clarity before the next Special Session of the Committee on Agriculture, which would
take place within a week from the present meeting.
104. The representative of India had no problems with the Chairperson's proposal, but wished to
air some systemic concerns his delegation had about some of the comments made.  In his delegation's
view, the Chairperson's statement was one he had made on his own responsibility, for which he hadthe full authority under the rules of procedure.  The Chairperson did not need any permission from
any delegation to conduct informal consultations on a subject, such as the protection of geographical
indications, that fell within the scope of the TRIPS Agreement.  If the consent of each and every
delegation would be required for Chairpersons of WTO bodies holding informal consultations on any
single subject, would there be any chance of moving forward at all?  He emphasized that, in its annual
report of 1996, the Council for TRIPS had stated that Members could provide inputs on the issue of
scope.  The joint paper introduced by Switzerland was no more than such an input.
105. The Chairperson said that, while he had the authority to conduct his own informal
consultations, it was his responsibility to make sure that such informal consultations would be
constructive and fruitful, taking into account the views of delegations.  Thus, he would proceed with
informal consultations, as suggested by delegations, after having checked with delegations as to how
best to conduct these informal consultations.  Finally, he also urged Members to provide furtherresponses to the Checklist as suggested by the Eu ropean Communities, so that the Secretariat could
update its summary paper in a more comprehensive manner.
J. 
IMPLEMENTATION OF ARTICLE 23.4
106. The Chairperson said that, before the last mee ting, the Council had received a revision of the
proposal of the European Commun ities (IP/C/W/107/Rev.1) as well as a paper from New Zealand
(IP/C/W/189), on which Members had made prelimin ary comments.  He invited WIPO to brief the
Council on the work that had recently commenced in that Organization in relation to the Lisbon
Agreement.
107. The representative of WIPO said that, pursuant  to the programme and budget of WIPO for the
biennium 2000-2001, a working group had been convened to review the implementing regulations of
the Lisbon Agreement for the Protection of Appellations of Origin and their International
Registration, in order to propose modifications thereto during the ordinary session of the Assembly of
the Lisbon Union in the autumn of 2001.  The first meeting of this working group, to which the
member states of the Lisbon Union and all other memb er states of the Paris Union had been invited as
well as a number of intergovernmental and non-go vernmental organizations, had taken place from
10 to 13 July 2000.  The relevant documentation, including the report of the meeting, were available
on the WIPO's website under the symbol LI/GT/1.  Discussions had taken place on the basis of
document LI/GT/1/2, in which the International Bu reau had laid forth the main difficulties in
application or interpretation it had come across in administering the Lisbon system and had given,
where possible, possible solutions and means of application thereof.  The matters under discussion
related to:  the advisability of including into  the implementing regulations a certain number of
definitions;  the national authority or authorities competent for the purposes of the internationalprocedure;  the entitlement to the protection of appellations of origin and their international
registration;  the contents of the international app lication;  the treatment of irregularities associated
therewith;  the content of the declaration stipulated in Article 5(3) of the Lisbon Agreement through
which a member state of the Agreement made it k nown that it was not in a position to protect an
appellation of origin whose registration had been notified to it;  the different time-limits and howthese were calculated;  the starting-point for the international protection to be granted;  modifications
which required a new international registration;  corrections to be made to the international register;
and, finally, the inscription in the international regist er of the invalidation, in a contracting party, ofIP/C/M/28
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the effects of the international registration of an appellation of origin which had not been the subject
of a refusal of protection by the administration of that contracting party pursuant to Article 5(3) of the
Lisbon Agreement.  The terms of reference for the International Bureau and the working group were
limited to the examination of the implementing regulations of the Lisbon Agreement.  The WIPO's
programme and budget for the biennium 2000-2001 did not include any project for a review of the
Lisbon Agreement itself.  Nevertheless, to the extent that the implementing regulations were intendedto complete and implement the Lisbon Agreement, an examination thereof would necessarily lead to
commenting on or spelling out the scope of certain provisions in the Agreement itself.  Thus, the
proposal to provide in the implementing regulations that, when a refusal to protect an appellation of
origin was based on the existence of a prior trademark with which the appellation of origin was in
conflict, the basic data concerning the prior trademark shall be contained or indicated in the
declaration of refusal.  Another example concerned a proposal to include in the implementing
regulations a provision for inscription in the international register, and publication thereof, of aninvalidation by a contracting party of the effects of an international registration.  On the basis of the
discussions that had taken place during the first se ssion of the working party, as contained in the
report thereof (document LI/GT/1/3), the Intern ational Bureau would draw up proposals for the
modification of the implementing regulations, which would be submitted to a second session of the
working party planned to take place in March 2001.
108. The representative of Hungary said that Hungary was in favour of a strong and effective
multilateral system for the notification and registration of geographical indications.  Such a system
was to be established under Article 23.4 and to go beyond a mere collection of information;  it had to
include an adequate registration mechanism as well.  His delegation believed that among the
approaches put forward so far only the proposal from the European Communities was in line withArticle 23.4 in this respect.  As his delegation had stressed repeatedly, for Hungary the opposition
procedure was a most important element of the system to be set up.  Hungary, especially as a smaller
Member having limited bargaining power in a bilateral context, was in favour of including a
multilateral mechanism for settling disputes regarding opposed geographical indications that the
parties to the dispute were not able to settle bilaterally.  His delegation had serious doubts whether acase could be brought under the DSU citing the registration of an individual geographical indication.
Therefore, in its view, it seemed that there was a need for a multilateral dispute settlement mechanism
outside of the DSU specifically dealing with such cases.  Another compelling reason for having a
multilateral mechanism was the need to ensure the prevention of abuse.  It should be up to a
multilateral mechanism and not be left to individual Members to decide whether challenges werejustified or not.  When discussing the possible forms of such a multilateral mechanism, the options
that could be looked at would include an experts committee, mediation committees, some kind of
arbitration or a combination of these.  Hungary believed that all these possibilities deserved in-depth
discussion in the Council.  At present, his delegation felt especially attracted to the option of binding
arbitration.  Such a procedure was not alien to the settlement of intellectual property related disputes.
By way of example, he referred to the arbitration center in WIPO, which currently only dealt with
disputes between private parties.
109. The representative of the European Communities fi rst wished to recall that, in his delegation's
view, the elements of the Lisbon Agreement on which the Council required information for its work
on geographical indications were fully covered in the excellent background note of November 1997
prepared by the Secretariat (document IP/C/W/85).  Responding to a number of issues and questions
that had been raised during the last meeting of the Council for TRIPS on the revised proposalsubmitted by his delegation, he first turned to a point raised by the United States and said that
paragraph B.3 of the proposal had, indeed, been elaborated upon in order to accommodate the
different existing national systems.  It would, for example, allow a geographical indication which had
been recognized by a judicial decision to be notified in the system.  In that respect, he did not think
that, contrary to what had been said at the last  meeting of the Council, WTO Members who protected
geographical indications through unfair competition law or other laws, would be at a considerableIP/C/M/28
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disadvantage.  As far as the possible use of an objection was concerned, WTO Members were or
should be aware that the exceptions which could be used as the basis of an objection were clearly
defined.  Referring to claims that his delegation's revised proposal could create additional burdens and
obligations, emphasized that the Agreement provided for the creation of a multilateral system of
notification and registration and not only for an exch ange of information on existing national systems
or databases.  This did not mean, of course, that the European Communities wanted to promote asystem that would create unnecessary burdens.  However, paragraph B.3 of the proposal was flexible
enough to permit that unnecessary documents were not notified.  He would not have difficulties with
references to existing information under notifications and obligations already established by the
Agreement.  Referring to criticisms with regard to  the establishment of a body for the resolution of
conflicts above the national level, he insisted that  the two levels were not incompatible, but recourse
to the national jurisdiction was always possible.  However, it also seemed useful to have a possibility
to discuss conflicts at a bilateral or multilateral level, in particular when conflicts arose on the basis ofan exception pursuant to Article 24 of the Agreement.  The revised proposal now provided that
conflicts were solved by direct negotiations between the Members concerned.  This avoided the
creation of a new administrative burden and respected the provisions of Article 24.1 and 24.2 of the
TRIPS Agreement, which provided for such negotiations and consultations.  Responding to Chile,
Hungary and Japan, he would like to underline that careful attention had been given when drafting therevised proposal to ensure that it would not go beyond what the TRIPS Agreement itself had
established.  He noted in this regard, in particular, that paragraph D.4 had to be read together with
paragraph C.2.  He thanked Venezuela for the comments made at the last meeting of the TRIPS
Council, which had shown how a simple interpretation of the Agreement could be used to design a
multilateral register.  If it would not be possible to have a consistent interpretation of these terms onlyfor the multilateral register, it could have effects on the rest of the Agreement.  He hoped that the
revised proposal of the European Communities and their member States would help the progress in
this debate.
110. The representative of Chile said that the statements that he had heard forced him to go on
record as follows.  As far as his delegation know, Chile had never been obliged to have a register for
geographical indications with international scope and certainly not to have a dispute settlement
mechanism to deal with geographical indications.  His delegation did not wish to enter into details at
this stage, but would await the results of the Chairperson's informal consultations.
111. The representative of India wished to emphasize that his delegation saw a concomitance
between the mandate on the establishment of a multilateral register for wines and the extension of the
scope of additional protection for geographical indications to products other than wines and spirits.
India was also of the view that, when the negotiations for a register were conducted and one would
actually get down to the process of making a register, in order to avoid duplication, the register should
be constructed in such a way that it was extendable to products other than wines and spirits.
112. The representative of New Zealand reiterated his delegation's view that the collective
proposal tabled by Canada, Chile, Japan and the United States seemed to be the most workable
approach consistent with the provisions of Article 23.4, in particular in view of its ability toaccommodate different national approaches to the protection of geographical indications.  Having
looked at the revised proposal put forward by the European Communities, his delegation continued to
have a number of questions about the consistency of that proposal with the provisions of Article 23.4.
It did seem to his delegation that the proposal had the character of adding in additional obligations to
those envisaged at the time Article 23.4 had been concluded.  He looked forward to hearing furtherviews from delegations on these issues.
113. The representative of Switzerland said that his delegation considered that, in order to ensure
true protection of geographical indications in respect  of wines and spirits by setting up a register, one
should provide for a registration system which was binding on all WTO Members.  Were there to be aIP/C/M/28
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voluntary system, one would be running the risk of  ending up with a plurilateral agreement which
would just be yet another agreement such as the Lisbon Agreement, i.e. without the worldwide scope
which the TRIPS Agreement would give it.  Clarification was required as to what would be the legal
impact of the registration of a geographical indication in the register.  It was indispensable that a
specific dispute settlement mechanism, irrespective of its form or structure, be provided for.  In this
regard, he could support what the delegation of Hungary had said with reference to mediation andarbitration in WIPO.  He suggested that discussion s be resumed on the basis of the proposal from the
European Communities and go into more depth on the points that he had raised.
114. The representative of the United States associated his delegation with the intervention made
by New Zealand.  He also wished to express appreciation for the European Communities' effort to
respond to the comments that had been made at the last meeting of the Council, although his
delegation continued to have concerns about the approach contained in their proposal.  He would
come back to the revised proposal in more detail at the next meeting.
115. The representative of Korea reiterated his delegation's basic position that the protection of
geographical indications should be left to national authorities in each Member, in view of the different
regimes Members were employing in this area.  As the summary paper prepared by the Secretariat in
the context of the review under Article 24.2 show ed, some Members were protecting geographical
indications through laws dealing with false designations of origin, unfair competition or passing off,while others had adopted formal procedures requiring the notification or registration of a geographical
indication before protection was available.  His delegation's position seemed to be in conformity with
Article 1 of the TRIPS Agreement, which clearly stip ulated that Members shall be free to determine
the appropriate method of implementing the provis ions of the Agreement within their own legal
system and practice.  The fear that a system that provided for unilateral and binding protection ofgeographical indications would create additional burdens on those Members operating disparate and
voluntary protection systems, would only weaken the will of Members to participate in the anticipated
multilateral notification and registration system to be established under Article 23.4.  A multilateral
system of a binding nature would rather undermine the facilitation of protection of geographical
indications.  In order to ensure wider participation, information available in each Member on thissubject should be shared and utilised.
116. The representative of Australia thanked WIPO for its update on the current work concerning
the Lisbon Agreement.  In his delegation's view, th e information provided was most pertinent to the
issues under discussion in the Council under this agenda item.  Some of the alive issues discussed in
WIPO at the moment deserved the TRIPS Council's consideration as well, for a better understandingof how an international registration system for geographical indications would operate.  As examples
of such issues, he referred to the grounds, procedures and evidence required for refusal of protection
under an international system;  the legal status of registrations;  issues of amendments;  and the
implications of amendments to geographical indications notified.  Along with other delegations, he
thanked the European Communities for their responsiveness to comments made at earlier Council
meetings and for their willingness to enrich the de bate on these issues.  His delegation was also in
favour of a detailed debate, not merely on specific proposals but on the issues behind them, because itsaw this as the most productive way of resolving these negotiations.  To that end, he drew attention to
the paper his delegation had submitted under the agenda item concerning Article 24.2.  Some of the
broader public policy issues and intellectual property policy issues raised in that paper would need to
be borne in mind as one worked towards the conclusion of these negotiations.  For example, one issue
was whether there was to be a form of global right for an individual geographical indication or wasthe trend rather towards determining this jurisdiction by jurisdiction.  Another question concerned
what was the nature of the presumption concerning the notification of a geographical indication.  Was
it to be presumed that, because a geographical indication had been notified, the burden of proof was
on others to demonstrate that it had another signification in their jurisdictions?  Was there to be some
form of dispute settlement mechanism to resolve issues concerning the signification of individualIP/C/M/28
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words for consumers in each and every WTO Member?  What would be the implications of such a
mechanism for all?  Another issue raised concerned the voluntary nature of the mechanism to be
established.  There was a need to come to some understanding about the options that Members had in
relation to these systems.  For some Members, the wines and spirits sectors was not of great economic
significance and these might have some reluctance to invest considerable resources in this area.  This
was not the case for Australia, but his delegation had systemic concerns on this matter.  The costsinvolved were also a relevant issue, especially at the national level.  Probably the main systemic issue
was whether, in taking part in the system to be established, an individual Member was expected to
have some form of pre-emptive decision-making process, i.e. a registration process or another
administrative or judicial process.  This ran tw o ways.  If a Member would be obliged, when a
geographical indication had been notified by another Member, to take a decision as to whether that
geographical indication was already protected in some form in its jurisdiction, how could one do this
in the absence of a registration system or another form of pre-emptive decision-making process?  If aMember only provided protection through unfair co mpetition law or similar consumer protection
laws, would it be necessary to go to court in order to get a finding as to whether or not the term in
question was to be protected and, if so, under what conditions?  In order to illustrate the complexity of
the matter, he referred to the example concerning  the term "Orange" in his delegation's paper
submitted in the context of the review under Article 24.2.
117. The representative of Mexico reiterated that her delegation attached great importance to the
establishment of a multilateral system for the notification and registration of geographical indications
for wines and spirits.  She welcomed the proposal from the European Communities and was grateful
for the additional explanation given to the Council at the present meeting.  Nevertheless, her
delegation saw that the text of the proposal itself omitted specifying what would be the coverage ofthe proposed register which, it seemed, would mean that it would be open to any product.  As regards
paragraph B.2 of the proposal, she said that, if a geographical indication met the definition of
Article 22.1, this did not automatically mean that th at geographical indication would also be entitled
to the additional protection of Article 23.  Her delegation would appreciate a further explanation from
the European Communities as to the legal effects of the proposed register, in particular if objectionshad been raised to protection and bilateral negotiations were ongoing, i.e. for Members that had not
raised an objection and for those not participating in the system.  It might be worthwhile to consider
also other proposals that had been made in this regard, such as by the delegation of Hungary at the
present meeting.  Finally, she said that the term  "eligibility" used in the European Communities'
proposal was not clear to her delegation either.
118. The representative of Japan reiterated his delegation's view that the system to be established
under Article 23.4 should not create new obligations.  The legal effect to be generated by the
multilateral register should be determined by the na tional law of each Member in accordance with the
TRIPS Agreement's provisions.  The administrative burden and cost to be imposed by the multilateral
system should be minimal.  If examination and opposition were associated with the multilateral
system, such a system would be costly and burdensome.  Finally, he thanked the European
Communities for their comments, which his delegation would carefully study and revert to, ifnecessary.
119. The representative of Turkey said that his delegation saw a relation between the issue of the
extension of the additional protection of geographical indications under Article 23 to products other
than wines and spirits and the establishment of a multilateral system of notification and registration of
geographical indications under Article 23.4.  In his delegation's view, the provisions of Section 3 ofPart II of the TRIPS Agreement had a number of cross-references.  Consequently, it saw merit in a
comprehensive approach to discuss these issues together and this should be taken into account during
the Council's future work.  Both matters were important and, in this connection, his delegation
welcomed the proposal form the European Communities.  The multilateral system to be established
under Article 23.4 should also apply to products other than wines and spirits.IP/C/M/28
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120. The representative of the Czech Republic support ed for the view that the multilateral register
to be created under Article 23.4 should be non-discriminatory and allow extension of the scope of
registered geographical indications to products other than wines and spirits.  In this context, the
proposal for a basket approach on the various issues concerning geographical indications was
relevant.  Furthermore, her delegation remained of the view that the register to be established must
have clear legal implications and clear provisions for opposition procedures.
121. The Chairperson suggested, while indicating that  there seemed to be a need for him to hold
informal consultations on how to proceed on this matte r, that the Council take note of the statements
made and revert to the matter at the next meeting.
122. The Council so agreed.
K. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
123. The Chairperson  recalled that, at the Council's last meeting, Members had had an extensive
discussion on how the Council should handle its work.  The issues addressed included those of
seeking additional information on how this provision was being implemented by way of responses to
the illustrative lists of questions5;  requesting various other intergovernmental organizations, including
WIPO, FAO, CBD and UPOV to provide updated information;  and considering ways of organizing
the topics that had been raised in the discussions so far.  Since that meeting, the Council had received
communications from India (documents IP/C/W/ 195, IP/C/W/196, IP/C/W/198 and Corr.1, as well as
a non-paper entitled "Issues for Discussion under the Review of the Provisions of Article 27.3(b)");
from Mauritius on behalf of the African Group (document IP/C/W/206);  and from the United States
(document IP/C/W/209).  Finally, responses to the illustrative lists of questions had been received
from Iceland and circulated in document IP/C/W/125/Add.19.
124. The representative of India recalled that documents IP/C/W/195 and 196 contained proposals
which had been circulating for a while and focused his intervention on document IP/C/W/198, which
set out the Indian experience with the protection of biological diversity and traditional knowledge.
The submission gave, in its introductory part, facts and figures explaining why India attached
importance to the protection of traditional knowledge.  The second part gave details on the Biological
Diversity Bill 2000 which had been introduced in Parliament.  The third part demonstrated that, as faras the interface with the TRIPS Agreement was concerned, the practice of disclosure of the source of
origin and the prior informed consent were important steps necessary in order to protect traditional
knowledge.  The submission underlined that India had indeed taken a number of steps to protect
traditional knowledge associated with biological resources, which could be a model for several other
countries.  On the issue of documentation of traditional knowledge, the submission described,inter alia , the concept of "Community Diversity Registers", which had been implemented by a
number of States in India and documented all knowledge, innovations and practices;  the setting up of
a "Traditional Knowledge Digital Library";  as well as the existence of the "HoneyBee Network",
which also covered traditional knowledge.  The submission was a counter to those in developed
countries who were claiming that the onus of protecting traditional knowledge was basically on
developing countries.  It was also an attempt to  stress that, whilst India was doing its own part,
traditional knowledge, more than any other area, could not be tackled by India alone or any countrywishing to have such protection alone, but required that developed countries should undertake
obligations too.  New in the submission was that it listed in some detail attempts that had been made
by India to do its part to protect traditional knowledge.  It also hinted that, just as there was a
sui generis  system for the protection of plant varieties, it might be possible to contemplate a
sui generis  system for the protection of traditional knowledge.  In terms of international action, India
                                                     
5 A compilation of responses received was prepared by the Secretariat, upon a request from the
Council, and distributed in Job No. 2689 of 7 May 1999.IP/C/M/28
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suggested that patent applications should disclose  the source of knowledge and biological material,
and that prevalent laws and practices of the country of origin should be fully respected.
125. With regard to his delegation's non-paper (JOB(00)/6091), he recalled that, at the previous
meeting of the Council, a general view had appeared  to be developing that the Council should move
on to a more focused discussion.  Even though Members had been unable to agree to do this on the
basis of a checklist of issues, it would appear to be helpful for the Council's further work to havecomments made in a structured manner.  In that spirit, the non-paper addressed the relationship of
Article 27.3(b) with development, an issue on which the Council for TRIPS had also received a
mandate from the General Council.  It did so focusing on three distinct aspects.  The first one
concerned the flexibility to deny patents to life form s.  The development aspect in this regard was the
manner in which rights over life forms was customarily addressed in developing countries.  Plants and
animals were closely intertwined with the lives of  local communities;  they provided the communities
with means of livelihood.  These communities worked on these plants and animals in a sustainablemanner;  they acquired knowledge on their uses and put them into practice in their day-to-day lives,
without having any legal rights accruing to these communities on this knowledge.  What accrued was
a customary right, which these communities could use and trade with other communities in various
ways such as local remedies for diseases, use in agriculture and industry, etc.  India held the view that,
even if the national laws applicable to these communities did not allow patents on inventions based onsuch knowledge, patents in other countries woul d reduce the economic value of this knowledge and
put constraints on development.  The second aspect of development concerned the obligation under
Article 27.3(b) to grant patents to certain inventions.  The non-paper made the point that local
communities in developing countries would not have the knowledge nor the capacity to protect their
rights under a patent system.  Many a time, local communities would not even realize that theirknowledge of a micro-organism, for example, co uld be eligible for rights under the TRIPS
Agreement;  they would not have the education or dare at all to get a patent even though they wished
to.  Based on customary practices, they would ther efore readily part their knowledge to those who
would ask and thereby render it into the public doma in without getting any benefit.  The third aspect
relating to development concerned plant variety protection.  In many developing countries, agricultureconstituted a most significant portion of the economy and land holdings were very small;  often
neighbouring farmers would have a cooperative relationship.  Farmers in developing countries would
neither feel the need to get legal protection through the plan variety protection system nor would they
have the capacity or the education required to seek for such protection.  The institution of plant
variety protection systems, unknown to the traditional practice, would therefore not only act as adisincentive for innovations but would also make the farmers change their age-old practices to avoid
infringement of breeders' rights.  It would therefore be impractical to expect these local communities
and farmers to suddenly start adopting practices of industrial societies.  Any constraint on the farmers'
right to disseminate their innovations could be a cause of worries for developing countries in the
context of food and livelihood security.
126. With regard to the technical issues relating to patent protection under Article 27.3(b), the
non-paper drew the attention to the trend regarding the grant of patents in recent times, which mightnot be entirely in consonance with the intent behind the concept of intellectual property protection.
The reason behind the grant of intellectual property rights and behind the emergence of the TRIPS
Agreement was, among other things, to motivate innovators so as to allow them to recoup the
investments they had made for R&D.  What was happening on the ground was, however, different.
Patents were not only a means to prevent the use of inventions without a patent owner's authorization.Biotech companies sometimes would use patents for boosting their share prices or limit competition
as in the case of gene use restriction technologies (GURTs).  There was also a tendency to seek very
broad patents.  The practices in patent offices also raised important technical issues.  Some patent
offices did not have appropriate procedures, thereby giving an unintended head-start to persons who
had the means to approach them vis-à-vis  those who did not.  Other patent offices often paid their
examiners on the basis of the number of patent applications handled, thereby encouraging examinersIP/C/M/28
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to be less than careful in granting patents rather  than in rejecting patent applications.  Another
problem concerned the immense cost and time involved in opposing a patent application or getting a
patent invalidated, as India had experienced.  Moreover, some patent offices did not recognize oral
prior art or prior art which was not documented in their country or jurisdiction.  This encouraged
piracy.  The problems arising out of the practices in different patent offices could be exemplified by
the patents granted on the basis of the traditional knowledge of the use of biological material held byindigenous communities.  In the United States, for example, a patent granted on the healing properties
of turmeric, had been revoked following an oppositi on claim from an Indian research organization.  A
European patent granted for a fungicide extracted from the neem tree had recently been revoked by
the European Patent Office on the basis of an opposition procedure initiated by an Indian NGO.  His
delegation's non-paper made the point that mistakes made by patent offices should not involve so
much effort on the part of developing countries to correct the situation.  India would therefore urge
the Council to find a systemic means to address these problems.
127. With regard to ethical issues in connection with the patentability of life forms, he said that the
non-paper made the point that patents entailed the danger of economic motives superseding ecological
or ethical ones.  While Article 27.2 contained certain exceptions considered as adequate to deal with
ethical or moral issues, India held the view that these exceptions would need to be examined more
fully.  On the issue of the conservation and sustainable use of genetic material, he said that thenon-paper examined to some extent the relati onship between the TRIPS Agreement and the
Convention on Biological Diversity (CBD).  The letter that the Director-General of the WTO had
received from the Executive Secretary of the CBD Secretariat in July 2000 made to some extent the
same point.  The non-paper also addressed the relationship between intellectual property rights and
traditional knowledge and farmers' rights.  It reached the conclusion that such relationship wascomplex and multifaceted.  The concept of intellectual property rights as understood in the developed
world, its appropriateness in the face of a larger dimension of rights and knowledge, their knowledge
and its use were, according to the delegation of India, an important component of the review of
Article 27.3(b).  The non-paper further made the point that, in societies such as India, there was also a
cultural component which created an additional problem in as much as the systems of traditionalknowledge were not reward-oriented like the TRIPS Agreement.  The tribal knowledge of the benefits
of a herb, for example, travelled within a community by word of mouth or by practice.  No property
right was sought on it.  Therefore such knowledge, at least in that context, was alien to the existing
intellectual property regimes.  India urged that the review under Article 27.3(b) be substantive.  For
some issues, India had hinted solutions, for others it was still trying to find solutions.
128. Turning to the intervention made by Japan at the previous meeting of the TRIPS Council
(document IP/C/M/27, paragraph 131), he said that his delegation agreed with Japan that a more
organized and systematic debate on the review unde r Article 27.3 (b) would facilitate discussion.  In
this context, the Chairperson's checklist of issues, as mentioned in footnote 5 on page 12 of
document IP/C/M/26, would enable a focused discus sion without prejudice to Members' position on
the review.  It was not clear to his delegation to which proposals Japan was referring when saying that
it was opposed to proposals which would lead to the reduction of the existing level of protection underArticle 27.  Article 27 was a complex provision and had to be seen in the context of its negotiating
history and its actual text.  The first paragraph of the provision mandated the grant of patents for
inventions that met the three criteria of patentability, viz. novelty, inventive step and industrial
applicability.  The scope of these criteria had not been negotiated, nor how they should be interpreted,
because patents were granted under national laws and had territorial application.  Therefore, the levelof protection, as far as these criteria were concerned, was entirely in the national domain.  Latest
developments in other intellectual property fora also showed the importance of the examination at the
national level of matters of substantive protection.  Thus, the "existing level of protection" mentioned
by Japan would depend, to a large measure, on national laws and practices.  What the TRIPS
Agreement had done only was that it had obliged the application of such national laws and practicesto all fields of technology and the availability of rights without discrimination as to the place ofIP/C/M/28
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invention, the field of technology and whether produc ts were imported or locally produced.  In his
delegation's view, Article 27.2, Article 27.3(a) and the first sentence of Article 27.3(b) related to the
"scope" of protection and not to the "level" of protection.  The second sentence of Article 27.3(b),
however, related both to the "scope" and the "level of protection", and dealt only with plant varieties.
It was clear from this sentence that there was no agreement amongst Members as to whether plant
varieties should be included in the scope of patentable subject-matter.  What was clear only was thatMembers were desirous of rewarding innovations in plant varieties in some way.  Flexibility had been
given to Members to grant patents or reward such innovations in some other way, which could even
be sui generis  or "one of its own kind".  Any interpretation to harmonize the "level of protection" for
plant varieties, or to characterize it as patentable  subject-matter, would militate against the concept of
sui generis .  Further, the last sentence of Article 27.3(b) called for a review of "this subparagraph",
which included the "scope" issues in respect of life  forms (i.e. the flexibility to exclude plants and
animals and essentially biological processes from patentable subject-matter, and the lack of flexibilityto exclude micro-organisms and non-biological and microbiological processes from patentable
subject-matter) and the "scope" as well as the "level" issues in respect of plant varieties.  Proposals on
any of the above issues would form legitimate parts of this review.  Proposals that would suggest
solutions to these "scope" and "level" issues could no t be said to lead to a reduction of the existing
level of protection prescribed by Article 27.  To say otherwise would be to render the reviewredundant.  India agreed with Japan in that the c oncept of traditional knowledge and its relationship
with existing intellectual property rights systems were not clear.  It was precisely for this reason that
the issue had to be discussed.  Traditional knowledge had economic value and was often owned by
local and indigenous communities who did not have the wherewithal or the capacity to exploit this
knowledge in the same manner as large multinational enterprises of industrialized countries.Certainly, the TRIPS Agreement or the intellectual property rights system as such was not introduced
to serve only the mighty.  It was the responsibi lity of the international community to create an
egalitarian system for the availability, acquisition, maintenance and enforcement of intellectual
property rights, which did not a priori exclude any section of the society.  This responsibility was
being discharged through various fora and the Council for TRIPS should closely follow thedevelopments there.  To the extent that the TRIPS Agreement could sub-serve this egalitarian
purpose, this would be a positive effort to give a human face to globalization.  The connection made
by Japan between the obligation of non-discrimination as to the field of technology under Article 27.1
and the proposal that applicants should disclose the source of origin of any biological resource used in
an invention was not clear to India.  Such a disclosure provision did not mean that a particular field oftechnology (e.g. biotechnology) was denied protection.  It was only a transparency measure, providing
additional information that might be necessary to test an invention on the criterion of novelty.
Revocation of patents in some patent offices on the ground that prior art had not been checked by the
examiner showed the importance of the disclosure pr ovision.  India held the view that the connection,
instead, was with Article 29.  Article 29.1 provided for a mandatory condition on patent applicants to
disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person
skilled in the art, and an optional condition to indi cate the best mode known to the inventor for
carrying out the invention.  Individual patent offices could seek the disclosure of the source of origin
of biological material or associated traditional knowledge as a part of the patent description already,
both because Article 29.1 would allow the seeking of such information and because Article 29 was
inclusive in nature.  The problem arose only where the patent office chose not to seek such a
disclosure.  In biotechnological inventions, such di sclosure was necessary to test the invention on the
novelty criteria.  This had been proven in the turmeric patent case in the Patent and Trademarks
Office in the United States (USPTO) and the neem patent case in the European Patent Office (EPO).
Hence, the disclosure provision, if made mandatory, would resolve the problem of the grant of bad
patents ab initio  rather than going through the complicated, costly and time-consuming opposition
proceedings in individual patent offices.  On th e other hand, there was virtually no additional cost to
the patent applicant.  In conclusion, the disclosure provision did not change the substantive level of
protection;  it was only to be a transparency measure and would facilitate better grant of patents
involving lesser time and cost, particularly for developing countries.IP/C/M/28
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129. The representative of Mauritius, speaking on behalf of the African Group, recalled that at the
meeting of the Council for TRIPS on 21 March 2000, the Chairperson had set out, on the basis of the
discussions, a list of issues:  the link between the provisions of Article 27.3(b) and development;
technical issues relating to patent protection under Article 27.3(b);  technical issues relating to
sui generis  protection of plant varieties;  ethical issues related to the patentability of life forms;  the
relationship to the conservation and sustainable use of genetic material;  and the relationship with theconcepts of traditional knowledge and farmers' rights.  The African Group recognized that these
issues were of fundamental importance and had proceeded with a detailed examination thereof.  He
emphasized that the proposals contained in document IP/C/W/206 were supplementary to those
already made by the African Group during the preparation of the Seattle Ministerial Conference
(document WT/GC/W/302).  It was a considered view of the Group that some issues continued to be
in an evolutionary stage and would need to be re-visited in due course.  The proposals were made
without prejudice to the positions of any of the members of the Group, who reserved the right to
revert in due course to the special and differenti al treatment provisions of the TRIPS Agreement as
well as those embodied in Articles 7 and 8 and to the need for an effective operationalization of these
provisions so as to meaningfully address the socio-economic and technological developmental needs
of the African countries and other developing countries.  In particular, this would need to be done so
as to contribute to the transfer and dissemination of  technology, to the mutual advantage of producers
and users of technological knowledge and in a manne r conducive to social and economic welfare, and
to a balance of rights and obligations.  There would also be a need to ensure that the necessary
flexibility would be retained in favour of the members of the African Group and other developing
countries.
130. The representative of the United States, while  noting India's interest in a structured and
organized systematic review of Article 27.3(b), re called that a great deal of information had been
gathered in 1999 on the way Members, mostly developed countries, had implemented that provision.
Moreover, views had been expressed both orally and in writing on a wide variety of topics.  Some of
them were directly related to the implementation of Article 27.3(b), while a great number of them
were, in his delegation's view, beyond the scope of the review under that provision.  The informationsubmitted in response to a questionnaire was reflected in synoptic tables prepared by the Secretariat,
whilst the views expressed orally by Members were reflected in the minutes of the Council's four
meetings in 1999.  It was true that the information contained in these synoptic tables mostly described
the laws and practices of developed countries, since responses to the questionnaire had mainly been
received from developed countries.  This situation could be remedied if developing countries whichwere obligated to fulfil the obligations of Article 27.3(b) would also provide information on their
implementation of that provision.  In this perspective, his delegation would urge delegations to
complete the synoptic tables in view of a more organized discussion of the implementation of
Article 27.3(b).
131. Continuing, he introduced document IP/C/W/209, which was a second paper from his
delegation on Article 27.3(b) and aimed to respond to comments made at earlier meetings of the
Council, including on issues that his delegation would view as falling beyond the scope of the actualreview.  For the benefit of the discussions in the Council, he wanted to provide his delegation's
perspective on any issue that any delegation felt warranted bringing to the attention of the Council.
The presentation which had just been made by India addressed a number of issues to which the
United States had already responded in its previous paper.  He expressed his delegation's regret that
the presentation made by India did not contain a direct response or reaction to the perspectives hisdelegation had set out previously.  Highlighting a few points of the new communication, he said that
the term "micro-organism" was not in fact de fined in the TRIPS Agreement nor in relevant
multilateral treaties such as the Budapest Treaty on the International Recognition of the Deposit of
Micro-organisms for the Purposes of Patent Procedures.  This was because experts had recognized
that any definition that would be agreed upon today would have to be updated later due to the rapidevolution of research in this field.  The ordinary meaning of "micro-organism" was any organism thatIP/C/M/28
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was not visible to the naked eye, i.e. a microscopic organism.  This definition should be sufficient to
distinguish micro-organisms from plants and animals for the purposes of the discussions in the
Council for TRIPS.  The submission also reiterated the points made earlier, that a patent could not be
granted for a micro-organism as it existed in nature because it would not meet the standards of
patentability, i.e it would not be new.  Only if it were altered in a manner that constituted an inventive
step and only if the resulting micro-organism were  useful, a patent would need to be granted when
applied for.  The submission also outlined his delegation's view of the characteristics that a sui generis
system of protection for plant varieties must have in order to be considered effective.  The paper also
discussed more "peripheral" issues that had been raised in the context of the discussions relating to
Article 27.3(b), such as ethical questions, the relationship between the TRIPS Agreement and the
Convention on Biological Diversity (CBD) as well as the importance of examining benefit-sharing in
relation to genetic resources and traditional knowledge.  He expressed the hope that Members would
consider carefully the points made and would welcome reactions.
132. The representative of Uruguay said that her country was a member state of UPOV as were a
large number of other countries.  Her delegation was convinced that the sui generis  system for the
protection of plant varieties under the UPOV Convention was capable of ensuring effective protection
of plant varieties.  She called the Council's attent ion to an important drafting discrepancy between the
Spanish and English versions of the TRIPS Agreement regarding the sui generis  protection for plant
varieties addressed in the second sentence of Article 27.3(b).  The Spanish text contained, unlike the
English text, the word "all", reading "Sin embargo, los Miembros otorgarán a todas las variedades
vegetales".  It had been argued in certain Members that, since the TRIPS Agreement was negotiated in
English, Article 27.3(b) did not oblige Members to give protection to "all" plant varieties meeting the
conditions for protection.  Uruguay was of the opinion that the English, French and Spanish texts ofthe Agreement were all equally authentic and, on the basis of this principle, her delegation's
understanding was that protection must be granted to "all" plant varieties meeting the conditions for
protection.  A Member not doing so would not provide "effective" protection to plant varieties under
Article 27.3(b).
133. The representative of Brazil said that the submissions from India, the United States and
Mauritius, on behalf of the African Group, were adding new breath to the discussions in the Council
for TRIPS on this matter.  In Brazil's view, the vari ety of issues raised by Members in the context of
the review of Article 27.3(b) had demonstrated the necessity of establishing a more structured
discussion.  For example, on the basis of the issues raised, as listed by the Chairperson at the meeting
of the Council in March 2000, Brazil considered that th e first item of that list ("The links between the
provisions of Article 27.3(b) and development") related to cross-cutting issues that would be
discussed in more detail under the further items.  The generic nature of this item should serve to
ensure that the progress in the review would take into account the needs of developing countries.
Concerning the future discussions under this item, Brazil suggested that the results of UNCTAD's
Expert Meeting on Systems and National Experiences for Protecting Traditional Knowledge,
Innovations and Practices (30 October-1 Novemb er 2000) would be circulated in the Council.
134. As regards technical issues relating to patent protection under Article 27.3(b), Brazil
considered that WTO Members should preserve the existing flexibility to exclude plants and animals
and parts thereof from patentability.  Brazil was also open to discuss issues previously raised by other
delegations.  As noted by a developed country Member at the last meeting of the Council for TRIPS
(document IP/C/M/27, paragraph 119), a definition of "micro-organisms", for instance, would be
helpful to limit the scope of patentability under Article 27.3(b).  Clarification that naturally occurringplant material, including genes, were not subject to any intellectual property protection would also be
necessary.IP/C/M/28
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135. An item of great importance to Brazil, the relationship to the conservation and sustainable use
of genetic material, enshrined several issues concerning the relationship between the Convention on
Biological Diversity and the TRIPS Agreement that  demanded clarification by the Council for TRIPS.
As stated on several previous occasions, Brazil considered that the TRIPS Agreement and the CBD
were not in inherent conflict.  It would, however, be necessary to ensure that implementation of both
Agreements was done in a mutually supportive way.  Failure to clarify such relationship might turnout to be detrimental to the implementation of both instruments.  In order to explore a mutually
beneficial relationship, one important step would be to debate ways of ensuring that patenting of
genetic resources would not run counter to the principles of benefit-sharing and prior informed
consent of the CBD.  Several countries currently had to tackle the problem of unauthorized
bio-prospecting and patenting of genetic resources over which they had sovereign rights.  In its paper
on the "Protection of Biodiversity and Traditional Kn owledge", India, for instance, had reported its
experience in this regard with reference to the cases concerning turmeric, karela, basmati and theneem tree.  On the other hand, in a biodiversity-rich country like the United States, for instance,
awareness against bio-piracy in the public opinion seemed to have increased after a coalition of
environmental and scientific groups had filed a suit against the Yellowstone Park service to challenge
a bio-prospecting agreement between the Park and a biotech company.  The agreement aimed at
researching thermophiles, which were micro-organisms capable of surviving extremely hightemperatures in geysers.  The lawsuit was based on environmental and intellectual property laws, on
the grounds of inadequate benefit-sharing.  Bio-piracy, therefore, should not be mostly perceived as a
problem confined to developing countries nor to CBD Members exclusively.  Some countries might
argue that bio-piracy was a concept that lacked a formal definition.  Although other organizations
might be the adequate fora to provide a broad definition of that concept, it might be useful that theCouncil for TRIPS would also consider the estab lishment of a definition of bio-piracy, for the
purposes of intellectual property, as well as the remedies against it.  In order to implement the CBD,
several countries were currently putting in place legislation that might contain intellectual property
related provisions, in line with Article 16 of the CBD.  For example, in Brazil a piece of legislation
had entered into force in June 2000 to regulate the access to genetic resources, the protection of andaccess to the related traditional knowledge, benefit-sharing and access to and transfer of technology.
Such legislation provided protection for traditional knowledge against its illegal or unauthorized use
or exploitation.  It also recognized the rights of indigenous and local communities to decide upon the
use of their knowledge related to national genetic resources.  Brazil fully agreed with India as regards
the cost-effectiveness of establishing benefit-sharing schemes in the patent system, either nationally orinternationally, compared to using resources in expensive judicial processes for the revocation of
patents that included genetic resources illegally.  Developing countries did not have the resources to
follow each and every patent issued outside their territories on the use of their resources.
136. With regard to the relationship with the concepts of traditional knowledge and farmers' rights,
he said that discussions in the context of the review of Article 27.3(b) had already demonstrated that
traditional knowledge might bring significant benefits to several industrial sectors, in particular the
pharmaceutical sector.  India had provided a useful contribution regarding the issue of documentationof traditional knowledge.  Brazil also understood that the paper of the United States, in the section on
"Patents Related to Knowledge and Practices of Indigenous Peoples", was supportive of the issue of
the creation of databases, taking on a proposal by Switzerland.  Brazil considered that the rich
experience of India, as laid down in its paper, c ould be a constructive contribution to provide a more
concrete basis for discussion on the different possibilities to protect traditional knowledge.  Brazilagreed with India that the establishment of databases would have the clear benefit of providing
documentation for patent offices to check against patent applications that would be filed without the
consent of the community concerned.  It should go without saying that information that belonged to
traditional and indigenous communities should never be disclosed in those databases without their
prior informed consent, in accordance with the CBD.  There was a need for further consideration,
however, of the best ways to determine the final us e of information contained in such databases, in
order to avoid that they facilitated bio-piracy.  In  previous debates, some countries had mentioned thatIP/C/M/28
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the status quo already provided for different means of protecting such knowledge.  For instance,
companies could currently establish inter partes contracts with traditional or indigenous communities.
Such contractual modalities of protection, however, were not easily enforceable and were subject to
the direct negotiations between the parties involved.  There was no way to ensure, that the prior
consent obtained from these communities would actually be an informed  one.  There was no way to
ensure either that the benefit-sharing betwee n a company and a community would actually be fair and
equitable .  Brazil also fully endorsed the conclusion of the Indian paper (IP/C/W/198) on the need to
go beyond the national level to provide adequate pr otection to traditional knowledge.  However useful
it might be to explore options within conventional intellectual property right regimes, such as the
so-called "petty patents", they might not be sufficient to provide adequate protection to traditional
knowledge.  Thinking prospectively on the comments in paragraph 32 of the Indian paper
(document IP/C/W/198), Brazil was open to envisage the possibility that, after the Council for TRIPS
had concluded the review on Article 27.3(b), Members might realize that the best way to protecttraditional knowledge under the intellectual property system might be to establish minimum standards
of protection at the multilateral level.  Some countries might argue that so far relatively few countries
had already established legislation on the issue, which would make it difficult to establish an
internationally recognized regime to secure benefits arising out of the use of traditional knowledge.  It
should be recalled, however, that the majority of countries that had negotiated the minimum standardsfor intellectual property rights in the TRIPS Ag reement had not yet incorporated such minimum
standards at their national levels.  In other words, the absence of protection at the national level had
not deterred, in the past, WTO Members from negotiating and establishing one of the most ambitious
international treaties on intellectual property rights.
137. Brazil wished to reiterate the importance of establishing a list of issues as a means of
facilitating the discussions and moving forward the review under Article 27.3(b).  Such a list should
not be exhaustive and should be without prejudi ce to the positions of individual Members on such
issues.  While recognizing that it might be useful fo r the review to take into account the information
provided by Members on sui generis  systems for the protection of plant varieties in response to the
questionnaire (IP/C/W/122), it should be noted that several developing country Members were stillcovered by the transitional period of Article 65.4 of the TRIPS Agreement and might therefore be in
the process of passing legislation in this area.  Moreover, Brazil held the view that it would not make
sense to consider the responses to the questionnaire as a necessary condition for the progress of the
review exercise under Article 27.3(b).  At this juncture, Brazil felt that a checklist of issues would
allow for a more balanced and representative exchange of information concerning nationalexperiences.
138. Finally, he suggested that the Secretariat circulate documents from other international
intergovernmental organizations which were of relevance to the Council's work regarding the review
of Article 27.3(b), in particular:  Decision V/16 on Article 8(j) and Related Provisions and
Decision V/26 on Access to Genetic Resources , both taken at the Fifth Conference of the Parties of
the Convention on Biological Diversity (Nair obi, 15-26 May 2000);  document WIPO/IPTK/RT/99/2
on the " Protection of Traditional Knowledge:  A Global Intellectual Property Issue ", prepared by the
International Bureau of WIPO for the Roundtable on Intellectual Property and Traditional Knowledge
(Geneva, 1-2 November 1999);  document WIPO/IP/GR/00/2 on " Intellectual Property and Genetic
Resources - An Overview ", prepared by the International Bureau for the WIPO Meeting on
Intellectual Property and Genetic Resources (Geneva, 17-18 April 2000).  He also suggested that
document WT/CTE/W/50 (" The CBD and the TRIPS Agreement - Note by the Secretariat ") be
circulated as a TRIPS Council document as well and that other future documents to be circulated in
the Committee on Trade and Environment in relation to item 8 of the work programme of that
Committee concerning "the Relevant Provisions of the TRIPS Agreement" be circulated jointly in theIP/C/M/28
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Committee on Trade and Environment and the Council for TRIPS.6  The Council agreed to these and
the earlier suggestions of Brazil (see paragraph 133 above).
139. The representative of Kenya said that the submission presented by Mauritius on behalf of the
African Group was a further development of the proposal made by the same group on the same
subject in the run up to the Seattle Ministerial Conference (document WT/GC/W/302).  The list of
issues set out by the Chairperson at the meeting of the Council for TRIPS of 21 March 2000addressed various concerns arising from Article 27.3(b).  One of the questions raised, when
considering whether the TRIPS Agreement in its current state would promote the economic
development of developing countries, was whether the conditions of patentability in this area had
struck the correct balance between rights holders and society.  Considering these conditions of
patentability also concerned ethical issues.  Whether a right balance had been reached would also
depend on whether the provisions would promote or might undermine the conservation and
sustainable use of biological diversity;  as well as on whether essential domestic goals, such asensuring food security and equity for local and fa rming communities, were properly reflected in the
provisions.  He suggested that the Council discuss the various aspects under clear headings that would
facilitate the consideration of concrete proposals and not engage in a discussion on the question of
which of the issues raised fell under Article 27.3(b), which might result in the consideration of the
various aspects under a limited number of issues and confuse the discussion.
140. With regard to the link between Article 27.3(b) and development, he recalled that the General
Council had agreed at its meeting on 7 and 8 February 2000 that mandated reviews should address the
impact of the agreements concerned on the trade and development prospects of developing countries
(paragraph 39 of document WT/GC/M/53).  This decision or agreement could serve as a basis for the
first issue listed by the Chairperson of the Council for TRIPS in March 2000.  During the UruguayRound negotiations, developing countries had been led to accept the TRIPS Agreement primarily on
the grounds that the Agreement would promote inward  foreign direct investment and the transfer of
technology as well as innovation, and in this  way would promote their economic development.
Experience so far in the overwhelming majority  of developing countries showed that strong
intellectual property regimes, on the scale required by the TRIPS Agreement, did not by themselveslead to foreign direct investments, neither encouraged technology transfer nor local innovation.  The
Human Development Report 2000 (p. 84) showed that developed countries hold 97 per cent of
intellectual property rights and that global corporations hold 90 per cent.  Other studies also
confirmed that a few top multinational enterprises held patent portfolios far in excess of the number
held by the developing world as a whole.  Besides, developed countries, and to some extent the WTO,held the view that the WTO was not a development agency and that provisions in the WTO
Agreement for special and differential treatment for developing countries were not enforceable.  This
raised fundamental questions on whether the provisi ons of the TRIPS Agreement were consistent with
its objectives and principles, and with the negotiated deal among the Members.  According to Kenya,
therefore, this review must be the occasion to redress this fundamental imbalance and to firmly take
on board the development concerns of developing countries.
141. With regard to technical issues relating to patent protection under Article 27.3(b), Kenya held
the view that patentability had at least two aspects:  the conditions and the exceptions.  The TRIPS
Agreement left it to Members to define many of the conditions for patentability, such as what would
amount to an invention and what would be novel.  Kenya welcomed this, as it afforded Members with
some flexibility.  Nonetheless, some Members had defined novelty in a manner that did not recognize
information available to the public through use or oral traditions outside their domestic jurisdictions.This had induced or led to the piracy of this information for patents within these jurisdictions.  Also,
some Members had defined inventions to include discovery or isolation of naturally occurring matter.
                                                     
6 The documents specified were distributed following the meeting as IP/C/W/213, 217, 218 and 216,
respectively.IP/C/M/28
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This had led to patents on life forms and on research materials.  Patents on life forms were unethical
and patents on research materials restricted further research, thereby reducing welfare gains to
humankind.  These conditions must be revisited to deal with the wrongs they had facilitated.
Article 27 set out the requirement of patentability for all technological inventions and proceeded to
deal with exceptions in a very limited manner, that did not reflect the balance of rights and obligations
reached in other WTO agreements such as the GATT (Articles XX and XXI) and the GATS(Articles XIV and XIVbis).  In these other agreem ents, the exceptions took the form of general and
security exceptions.  The language used in these ot her agreements ("Nothing in this Agreement shall
prevent any Member from taking measures to […]") recognized and catered to important public
policy concerns, such as the public interest and im portant domestic goals.  Such exceptions were even
more vital in the TRIPS Agreement, for it dealt essentially with private rights, unlike the other
agreements;  and, traditionally, intellectual property laws had contained provisions for striking a
balance between rights holders and society.  The TRIPS Agreement, however, circumscribed anylimited exceptions it attempted so exceedingly as to prevent the taking of measures of important
public policy.  Kenya therefore proposed that the exceptions in Article 27 be amended along the
model of the general and security exceptions in the other WTO agreements, using similar language, in
order to redress the imbalance between the private rights protected, on the one hand, and important
public policy and development goals, on the other.  The current language used undermined theexisting exceptions in Article 27.2 and 27.3.  Further, the distinction made in respect of
micro-organisms and in respect of non-biological and micro-biologic al processes for the production of
plants or animals should be done away with, as unwarranted.
142. With regard to technical issues related to the sui generis  protection of plant varieties, Kenya
held the view that the obligation on Members under Article 27.3(b), in respect of plant varieties, wasto protect plant varieties.  Unlike other provisions on the protection of intellectual property rights,
such as those setting out the rights to be protected and their duration, the requirement to protect plant
varieties left it to Members to determine the suit able way to do so, i.e. according to an effective
sui generis  system.  What was "effective" was left to Members to determine.  Indeed, the meaning of
"sui generis " (i.e. "of its own kind") was inconsistent with a prescription of rights and duration or
even models to be imposed on all WTO Members.  It was up to individual Members to come up with
what sui generis systems they would consider effective for purposes of protecting plant varieties and
they would do so on the basis of important domestic goals related to plant varieties.  Plant varieties
provided food and medicine for local and farming communities and they were a tested means of
conserving, and sustainably using, biological divers ity.  In protecting plant varieties, governments
would seek to adopt laws and measures that w ould promote the food security of these communities
and of the country at large;  that would ensure equity to these communities where the staple or
medicinal knowledge in the plants was used as a basi s for intellectual property rights to be protected,
for example, by patents abroad;  and that would ensure biodiversity.  Such laws and measures would
provide for and protect farmers' rights, as reco gnized in Annex II of the FAO International
Undertaking on Plant Genetic Resources.  These rights included the right to save, share, sell and
re-use propagating material such as seeds.  The laws and measures would also protect the breeders'exemption, to freely innovate around protected varieties.  The laws and measures might ensure
biodiversity in accordance with the Convention on Biological Diversity.  Consequently, the obligation
to protect plant varieties entailed more than protecting the rights of commercial breeders.  Intellectual
property rights in the TRIPS Agreement already included geographical indications, that were more or
less regional rights rather than the traditionally individual rights.  He said that the Organization ofAfrican Unity had adopted a model law ("the African Model Legislation for the Protection of the
Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological
Resources") for its member states, which duly took all these various aspects into account, and
indicated that the African Group members would be guided by this model law, which had been
developed bearing in mind their public policy and development concerns as well as their internationalobligations.IP/C/M/28
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143. With regard to ethical issues relating to the patentability of life forms, he expressed his
delegation's strong support for the position of the African Group that the patenting of life forms was
unethical and should be unconditionally prohibited.  Article 27.2 provided for a "morality" exception
to patent protection.  However, the exception was available only if the prevention within their territory
of the commercial exploitation of the invention was necessary to protect ordre public or morality and
provided that such exclusion was not made merely because the exploitation was prohibited by theMember's law.  Both these conditions were unnecessary and cumbersome.  The protection of
ordre public  and morality extended to activities outside commercial exploitation.  Laws served these
purposes and, if they prohibited certain patents, that should suffice for the grounds.  Ethical or moral
matters were not always matters for commercial calculation and their force, or the conviction of
people, would not be affected by reasoned commercial concerns.  The Universal Declaration of
Human Rights, in recognizing that the conscience of people was a legitimate concern to be protected,
did so without qualifications of the kind imposed in Article 27.2.  The qualifications included in
Article 27.2 amounted to redefining morality for Members.  Cultural or social values of societies the
world over could not countenance the appropriation or marketing of life in any form or at any stage.
The preponderance of such inherent values in particular countries were matters for the democratic or
domestic law-making processes to determine and not for the WTO, whose trade mandate was narrow
and insufficient to make it arbiter over these matters.  The compulsion to include micro-organisms aswell as non-biological and microbiological proce sses for the production of plants or animals was
therefore overly inappropriate.  There could be no doubt that patents over life forms would lead to
horrendous abuses associated with cloning, whether privately or commercially, and with the taking of
resources away from public health needs, especially the development and adequate production of
essential drugs.  Without departing from statements already made, it might be emphasized that anydevelopment and production of cures for human ailments, that arose from research related to life
forms, did not necessarily require patents or any form of intellectual property protection, as existing
mechanisms under the auspices of the WHO and the FAO showed.
144. With regard to the relationship to the conservation and sustainable use of genetic material, he
said that the conservation and sustainable use of biological diversity carried considerable moral andlegal force at the entire global level, as humankind was acutely aware of the imperative to care for the
environment, not only in self-interest but also for its intrinsic value.  The first recital to the WTO
Agreement recognized the need for sustainable resource use.  The Committee on Trade and
Environment was mandated to develop the means of fully containing trade within environmental
considerations.  WTO jurisprudence developed under the dispute settlement mechanismsystematically interpreted WTO agreements consis tently with environmental considerations and
envisaged contributions from and participation by civil society.  However, within the individual
agreements, certain provisions touching on the environment might not explicitly address the concerns.
One example was Article 27.3(b), which required protection of plant varieties without recognizing the
CBD, i.e. the principal international instrument, at least for its 177 member states, on the conservation
and sustainable use of biological diversity.  As  indicated in the submission of the African Group,
Africa was rich in biological diversity, which was a resource Africa and other developing countrieswould like to develop to their advantage and to the advantage of the entire humankind.  The CBD
duly recognize and protected this interest.  Among other things, the CBD required prior informed
consent, benefit-sharing, authorization from the host government and technology transfer.  The
obligations in Article 27.3(b) of the TRIPS Agreement did not recognize and protect these
requirements.  Article 27.3(b) therefore was a means of defeating the CBD, if a Member were tomerely protect the rights of commercial breeders as the way of implementing the requirement to
protect plant varieties by patents, a sui generis system or a combination thereof.  Indeed, some
Members had intimated they would do precisely this, using the 1991 Act of UPOV.  It was vital that
Article 27 of the TRIPS Agreement incorporate the requirements under the CBD, if not on the basis of
the first recital to the WTO Agreement concerning sustainable resource use as well as of WTOdecisions and jurisprudence, then on the basis of the objectives and authority of the CBD.IP/C/M/28
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145. With regard to the relationship with the concepts of traditional knowledge and farmers' rights,
he said that the recognition and protection of farmers' rights, especially to save, share, sell and re-use
propagating material such as seeds, was affected by the manner in which plant varieties were
protected.  For instance, under the 1991 Act of UPOV, any exception to allow the exercise of farmers'
rights was subject to "reasonable restrictions" and the "legitimate interests" of the breeder.  The
exception did not extend to the sharing of propagating material.  It only applied to saved materialharvested on the same holdings.  In Kenya's view, the so-called "terminator technology" and
persistent poverty in developing countries rendered this exception meaningless for all practical
purposes.  The dire consequences would be in terms of food insecurity and intolerable dependence of
the country on probably unreliable foreign commercial breeders for seeds.  Besides, the ravages of
bio-patenting abroad were that it became illegal to save and use certain seeds for staple foods long
known and used by farming communities;  and that traditional varieties might be killed off by
genetically modified varieties, causing a depletion of biodiversity apart from the implications of foodinsecurity.  The identification and conservation of staple or medicinal plants were traditional
knowledge.  Long usage and knowledge, however, did not qualify the plants as varieties for the
purposes of UPOV.  The CBD, on the other hand, recognized this knowledge and went further to
require benefit-sharing and authorization as conditions for access to genetic material (including these
plants and the associated knowledge) of othe r countries.  He said that the OAU Model Law
recognized and protected farmers' rights and traditional knowledge.  If a model was needed for
purposes of sui generis systems under Article 27.3(b) of the TRIPS Agreement, members of the
African Group would have this model law.  It would be the source for their domestic laws on
protecting plant varieties by effective sui generis systems.
146. Against this background, Kenya proposed that Article 27.3(b) of the TRIPS Agreement be
amended to duly take into account the concerns raised in the submission of the African Group,
including the proposals made in August 1999 (document WT/GC/W/302).  First, there should be an
amendment with the effect of prohibiting or excluding the patentability of all biological and living
organisms, including plants, animals, micro-organisms and parts thereof such as cells, cell lines, genes
and genomes, as well as of any processes making use of, or relating to, such biological and living
organisms.  This prohibition or exclusion would be justifiable on legal, scientific, developmental,
moral and ethical grounds.  Second, such a prohibition or exclusion would also do away with the
artificial distinction that currently existed in Article 27.3(b) between plants and animals, on the one
hand, and micro-organisms, on the other hand;  as well as the artificial distinction between essentially
biological processes for the production of plants  and animals, on the one hand, and microbiological
and non-biological processes, on the other.  Third, the exclusion of plants from patentability would
mean that there would be no patents on plant varieties.  Therefore, the amendment might only require
sui generis systems for the protection of plant varieties.  In this regard, it must also be clarified that
such sui generis systems could, and indeed should, include the effective protection and promotion of
the rights of farmers, indigenous and local communities over their genetic resources and their
knowledge relating to the use of such resources.  Th is would also be consistent with the CBD and the
FAO International Undertaking on Plant Genetic Resources.
147. The representative of Zambia expressed his delegation's support for the statement made by the
delegation of Mauritius on behalf of the African Group.  Commenting on the items relating to the
sui generis  protection of plant varieties, indigenous knowledge and farmers' rights, and referring to
the information provided by his delegation and circulated in document IP/C/W/125/Add.3, he said
that Article 27.3(b) was a provision which would ma ke developing countries lose control over their
own biodiversity and the benefits they derived therefrom.  His delegation held the view that
developing countries were rich in biodiversity and giving monopolies over these resources would
curtail the enjoyment of these resources by communities.  Opting to extend the patent laws to plant
varieties would be setting up a system of private rights over individuals to prevent others from
making, using or selling the protected variety or any product that might have patented geneticinformation.  Consequently, farmers would not be able  to freely access or re-use seed, nor would theyIP/C/M/28
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be able to save and/or exchange seed.  Patenting of plant varieties would not provide for
benefit-sharing, as a patent was regarded as a private right to the exclusion of anybody else than the
right owner.  Major companies would have monopolie s and secure ownership of plant varieties which
contained genetic information obtained from the farmer's own field in the developing countries, which
would then be sold back to them w ith a royalty charged in addition.  A sui generis  system under
Article 27.3(b) would provide for the protection of plant varieties, but the expression " sui generis "
had not been defined sufficiently.  It was difficult to determine what effective an sui generis  system
for plant varieties would entail.  Some might suggest that it should be along the lines of the UPOV
system.  This should not be so.  In Zambia's view, legislation on the protection of plant varieties
should be developed which would accord recognition to innovations of indigenous peoples and local
communities.  Such a statute should define innovation to include any inventive input done
collectively, accretionally, intergenerationally and over time in relation to genetic resources.  Such a
system would effectively protect ownership rights of farmers and indigenous peoples over their plant
varieties and seeds.  Consequently, in the review of Article 27.3(b), a provision should be considered
for a clear understanding within the provisions of Articles 27.3(b) on the conservation and sustainable
use of biological materials as well as for a clear understanding of the coverage of a sui generis  system.
As most least developed countries depended much on farming, there was a need to recognize the
contribution of farming and indigenous communities to genetic resource conservation andenhancement.  The plant variety protection route should not deprive farmers of their own rights and,
therefore, whatever sui generis  system was adopted, it should include provisions to either protect the
farmer's privilege or provide wider space in the plant variety protection law for farmers as breeders
and/or conservers.
148. The representative of Peru, offering preliminary comments on the submissions from India and
from Mauritius on behalf of the African Group, said that her delegation in general agreed with the
points described in these documents.  Peru held th e view that, in reviewing Article 27.3(b), it would
be necessary to take into consideration the relation ship with development as well as the impact of the
provision on food security, health and the conservation of biodiversity, in particular in developing
countries.  On the one hand, large parts of the population in Peru and of other developing countrieswere dependent on traditional culture and medicines, which were generally not protectable by existing
intellectual property regimes, and, on the other hand, a limitation of the access to seeds or high costs
thereof would have devastating effects on the capacity of developing countries to produce basic food.
Therefore, in protecting plant varieties, account should be taken not only of the breeder's rights but
also of farmers' rights.  For medicinal plants, which were being used by large sectors of the poor indeveloping countries, it would be necessary to ensure that they were adequately protected against
illicit appropriation or commercial exploitation without authorization.  Her delegation held the view
that it would be indispensable to recognize the va lue of traditional knowledge of indigenous and local
communities in the conservation and sustainable development of biodiversity, as well as the
contribution of such knowledge to scientific and t echnological developments.  This would also require
ensuring a fair and equitable sharing of the benefits derived therefrom.  As regards the submission
from the United States, while she disagreed with many of the ideas expressed, she appreciated that thedocument also addressed, as issues raised in the context of the review of Article 27.3(b), questions
relating to traditional knowledge and practices of local communities, access to genetic resources and
benefit-sharing.
149. The representative of Egypt, recalling that his country was one of the co-sponsors of the
submission presented by Mauritius, commended the Indian delegation and agreed largely with the
analysis and conclusions advanced, which were co mplementary to the African Group's paper.  His
delegation would give careful attention to the communication from the United States, to which he
would comment at the next meeting of the Council.IP/C/M/28
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150. The representative of Australia expressed his delegation's appreciation for the many
substantive contributions made, singling out the interventions made by the delegations of India and
Brazil which his delegation found very thoughtful and thought-provoking and said that his delegation
shared with many delegations the fundamental interests that had been described.  Australia had
concerns about the protection of traditional knowledge;  it had a rich indigenous cultural heritage,
which it would like to see appropriately preserved and protected.  Similarly, because of its richbiodiversity, it had an interest in appropriate benefit-sharing of the use of genetic resources.  Equally,
at a policy-making level, there were, in Australia, concerns about the appropriate balance of interests
in the protection of intellectual property in the field of biotechnology.  These concerns were that
biotechnology research should serve the broader in terests of the community and how the intellectual
property system could be more effectively used in a balanced way to achieve such objectives.
Australia was also deeply attuned to the concerns of developing countries in this area.  It was a
priority in its technical cooperation activities to provide the necessary tools to build up the sort ofcapacity mentioned by India to make more effective use of the system in the area of biotechnology.
Australia therefore welcomed the prospect of a wide-ranging discussion on the issues that had been
advanced, mirroring the considerable debate and policy analysis that was being conducted on each of
these issues in Australia and many other countries.  It was Australia's belief that the Council for
TRIPS had a valuable role to play in shedding light on these issues and in looking for practical andequitable responses to the concerns raised.  The six clusters of issues identified by the Chairman in
March 2000 were all highly topical and of keen interest to Australia and many other Members.
151. Australia supported the development of a comprehensive, inclusive debate about the
interaction between the TRIPS Agreement and the vital topics raised.  Rather than leave these issues,
which touched on the TRIPS Agreement, to other inte rnational fora and international commentators to
consider, Australia would suggest that the Council for TRIPS take a more active role in considering
these interactions.  However, to make this process more productive and inclusive, the Council might
need to come to a clearer idea of how the review under Article 27.3(b) would interact with the broader
review under Article 71.1.  For the convenience of delegations and to save time, he would respond to
the broader issues that had been raised under the present agenda item, even though his delegation heldthe view that the range and importance of these issues were too extensive to be productively managed
under this agenda item alone;  some more productive division of labour would need to be considered
between the review of Article 27.3(b) and the br oader review under Article 71.1.  One possible
approach would be to distinguish between the "technical" issues of Article 27.3(b), including the
subject-matter already covered by the questionnaire (IP/C/W/122), and the broader issues that hadbeen raised.
152. Continuing, he said that Article 27.3(b) concerned an optional exception to the scope of
patentable subject-matter, an option exercised to various extents by Members, and an optional
requirement, very generally expressed, for an effective sui generis  form of plant variety protection.
The issues and concerns raised under the present agenda item clearly went far beyond that limited
scope and related to a wide range of TRIPS provisions, including those not relating to patents.  For
example, the debate about the interaction between biotechnology, genetic resources and intellectualproperty rights concerned the definition of an invention, including the distinction between an
invention and a mere discovery and the application of the criteria of novelty, non-obviousness and
industrial applicability in the biotechnology sector.  In this connection, the degree of inventiveness
called for in the extraction of genetic information was, for example, a matter that aroused concerns
about misappropriation of material in the public domain;  about the nature of the novelty criterion inthe field of biotechnology;  about the tendency to seek patents that were too broad in scope;  and
about the application of Article 27.1.  The concerns expressed about ethical exceptions to patent
protection or exceptions relating to environment and health raised questions related to the
interpretation and application of Article 27.2.  Other concerns expressed involved the rights conferred
upon patent owners as stipulated in Article 28, in particular in the light of claims of ownership ofgenetic material;  the obligation for adequate disclosure of inventions as required under Article 29;IP/C/M/28
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and the exceptions to patent protection foreseen under Article 30, in particular those research,
education or prior use.  These were all important aspects to be taken into account in balancing the
interests in the area of biotechnology.  Beyond the patent system, there were calls for a specific
protection of traditional knowledge which, in Australia's experience, involved a wide range of
elements of the TRIPS Agreement, such as the application of copyright and related rights, or the use
of trademarks and certification marks, for example in relation to geographical indications.  There werealso calls going beyond what was currently contained in the TRIPS Agreement, such as those for the
creation of an entirely new form of intellectual property right, to be enshrined in international law.
153. In connection with the application of Article 27.3(b), he emphasized the importance of
Article 67.  For Australia, this was a priority area in its technical cooperation programmes in the
Asia-Pacific region.  A modular training package relating to intellectual property in the field of
biotechnology would shortly be made available to Australia's partners in the Asia-Pacific region;
other Members would be most welcome to make use of it, if it were of interest to them.  With regard
to the concerns that patents might be used to withhold access to important technologies, he referred to
the possibility to adopt measures as addressed in Article 40 or under Article 31 of the TRIPS
Agreement.  Commenting on the concern raised ab out the time and costs involved in opposing a
patent application, he referred to the obligation under Article 62.4, which laid down obligations in
respect of these matters in administrative procedures, such as opposition procedures.  Calls had alsobeen made that the protection of intellectual property should serve the purposes set out in of Article 7
and that there was, within the TRIPS framework, scope for measures to protect public health and
nutrition, in particular in Article 8.
154. On the linkage between the TRIPS Agreement and the CBD with regard to the issue of
benefit-sharing, he recalled that his delegation had submitted a paper on Article 71.1, in which it wassuggesting that the Council for TRIPS might take a more active role in exploring a best practice
model for implementation that took into account these concerns.  National experiences might shed
some light on these broader issues.  He referred to a recent report, drawn up under the authority of the
Australian Ministry of Environment, on a regime on access to biological resources.  It made
recommendations related to Article 71.  As a key element, the report envisaged a plan that wouldregulate access to genetic material, plants and animals and would deliver substantial benefits to
industry, to the environment and above all, to indigenous communities.  In announcing the results of
an enquiry, the Minister of Environment had made a special note concerning the important role played
by indigenous communities.  As regards the issue of biological resources, he noted that, if knowledge
of biological resources was used by others for commercial benefit, then any future access regimewould need to ensure that the benefits arising fr om the use of indigenous knowledge be shared with
the relevant indigenous communities.  The proposed scheme would set out an elaborate system
concerning the way this might operate.  Concerns about primary producer access to gene technology
and appropriate use of biotechnology had been the subject of another Parliamentary report, which also
contained detailed recommendations on how the various interests and concerns of the users and
producers of technology could be balanced.  This might help to shed light on how the implementation
of the TRIPS Agreement could be carried out.  A nother point of possible interest to the Council for
TRIPS was the active role taken by Australia in relation to the WIPO program on traditional
knowledge:  Australia was one of the three countries chosen as a subject of case studies, because of
the number of its existing programs and activities as well as recent legal developments that could help
to shed light on how traditional knowledge might be protected.  The case study concerning Australia
covered a wide range of issues, in particular the extension of copyright and related rights to traditionalknowledge;  the use of the tort of passing off in that area;  forms of licensing;  and recent
developments of copyright law which allowed for punitive damages to apply in case of offensive
misuse or culturally insensitive misuse of indigenous knowledge.  Australia was not only taking into
account economic factors but also potential cultural offences.  Other elements of the case-study
included the use of design law or the use of the trademark system.  In this connection, he referred tothe national label of indigenous authenticity registered as a certification mark by the nationalIP/C/M/28
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indigenous artist association of Australia for indige nous arts and other products.  Australia wished to
stress the urgency for Members to explore how these issues could be more effectively addressed at the
national level and was of the view that it would be  appropriate for the Council for TRIPS to do so as
well but, given their wide-ranging nature, under Article 71.1.
155. The representative of Pakistan said that, as far as methodology was concerned, the need for a
more structured debate was becoming more and more evident.  Many delegations had flagged a wide
range of issues and there also seemed to be differences of opinion as to whether all these issues fell
within the ambit of Article 27.3(b).  The idea to  continue the discussion under broad headings as
suggested by the Chairperson in March 2000 would seem to be a sensible approach.  Since some
issues would not yet seem to be ripe for discussion in the Council for TRIPS, a certain prioritization
might be considered.  His delegation would urge the Chairperson to hold informal consultations with
Members who had objections to a more structured discussion in order to see how a more productive
exchange of views could be achieved.
156. Flagging some issues of concern to his delegation, he said that it had been signalled in a
number of publications that patents which were granted in a very broad manner could have effects on
both the ability of countries and private parties to conduct research and also on the question of how
firms could enter into certain industries, especially  the biotech industry.  With regard to research
itself, it had been pointed out by the United States National Institute of Health that broad basic patentson fundamental processes might deter and complicate follow-on research.  For example, research
tools such as expressed sequence tags (ESTs) were patented in such a broad manner that research was
inhibited.  It also made a difference as to whether a patent covered sub-cellular, cellular variety or
species levels of a plant or animal;  if it covered the entire scope, it might prevent innovation or
commercialization in related areas.  Even though some collective action might have been taken inthese cases, the issue as such remained.  There was also a question of horizontal reach, for example if
patents allowed control over a number of varieties or species, or the insertion of genes into plants.
Then there was the question of vertical reach, i.e. when patents had too great a coverage across
generations extending backwards and forwards to generations straight from the original plant.
Finally, patents might overlap and there might be a combination of a number of related processes andproducts into a single patent, creating an integrated web of rights which might prevent others from
commercializing the results of innovation in related areas.  If a patent was granted in such a broad
manner that it would cover the function of a plant or its structure or both (e.g. in the case of a United
States patent for high tryptophan corn), all plant breeders, regardless of whether these plants were
bred by traditional or patented processes, might potentially be challenged by the patent right holder.This problem was not limited to the United States nor to biotech industries alone.  Pakistan would
suggest that the Council for TRIPS might address these issues.
157. With regard to patents wrongfully granted and challenged at great cost, as in the neem and
turmeric cases referred to by India, he said that the paper from the United States was arguing that the
patents in these two cases had been revoked, showing that the system was working correctly.
However, another possible argument was that the patent system was inordinately expensive, in
particular for developing countries, if one had to monitor what was going on but did not have theability or resources to challenge individual patents.  There was an obvious need for a systemic
solution to this problem.
158. As regards the question of prior informed consent, his delegation was of the opinion that it
was too simplistic an approach to say that prior informed consent would lead to huge expenses and
that therefore the possibility of concluding contracts between individual prospectors and users ofbiodiversity should be explored instead.  Such an approach presumed that the two parties negotiating
the contract would be equal and would be able to defend their rights in a more or less equal manner.
Experience showed that this presumption was unrealistic and that, therefore, an additional safeguard
was required.  Even though a requirement of prior informed consent might not be the ideal solution,IP/C/M/28
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this would in any case provide an additional safeguar d in that it allowed patent offices to see that,
whether or not a contract concluded, the patent applicant had obtained a prior informed consent from
the country of origin or the community concerned.
159. Turning to the concept of a "communities register",  he said that Pakistan was also considering
this avenue.  However, such a register did not give a right to the communities or the country which
had created the register to the knowledge recorded  in it.  Any third party could make use of the
knowledge contained in it and the question arose as to  how such use could be prevented.  Should legal
safeguards be created preventing exploitation of knowledge contained in the register?  This raised
issues comparable to those concerning intellectual property rights on databases.  His delegation had
mixed feelings on this matter and would appreciate input from Members who had more experience on
it.
160. The representative of the European Communities said that his delegation would react to the
written contributions and statements at the next meeting.  The European Communities and their
member States were examining all the issues raised by Members and did so with an open mind.  He
informed the Council that one of the EC member States had recently organized a successful seminar
where the clarification of the issues linked to Article 27.3(b) had been addressed.
161. The representative of India said that his delegation would look carefully at the new
submission from the United States and would react to it at the next meeting.  India supported the
submission from the African Group as well as the po ints made by Brazil.  He also welcomed the
intervention from Australia.  In reply to the comments made by the delegation of Pakistan on
"communities registers", he said that the idea of having such registers was basically to put the
information into the public domain.  This idea had been generated by India's experience in the
turmeric case, where the US Patent Office had asked for written evidence from the Indian researchorganization opposing the patent.  As the knowledge of the wound-healing properties of turmeric was
mainly based on oral evidence, it was only thanks to searches leading to an ancient scripture reporting
these properties that the Indian party had won the case.  The purpose of putting this kind of
knowledge into the public domain was to prevent, at least, what India considered misappropriation
and bio-piracy through patents.  However, his delegation would reflect on the question raised by thedelegation of Pakistan on the legal effects of such registers.
162. The representative of Japan said that his delegation needed more time to study the papers
submitted.  His delegation was interested to learn more about the concerns and interests of other
Members and, in that regard, considered it important that all Members respond to the Secretariat's
questionnaire relating to Article 27.3(b) (IP/C/W/122).  The Council for TRIPS needed such inputs inorder to get a clear worldwide picture regarding the implementation of this provision.  In order to
allow questions raised, such as those with regard to the definition of "micro-organisms", the criteria
for "inventive step" or "novelty" of inventions c oncerning micro-organisms, or the meaning of the
term "effective sui generis system", a correct understanding was required of how Members had
implemented Article 27.3(b) nationally.  In Japan's view, some questions raised seemed irrelevant to
Article 27.3(b), but their relevance might become clear through a process of information exchange.
Japan would be prepared to contribute with a paper addressing the questions raised if it could definewhat those questions were.  He said that his delegation considered it useful for the Council to closely
follow relevant developments in other internati onal fora, such as the WIPO, in order to avoid
duplication of efforts and to facilitate the Council's discussions.
163. The representative of the United States said that his delegation had noted that, unfortunately,
its previous paper and perhaps also its new submission had not been entirely persuasive to a large
number of delegations.  Turning to the submission from Mauritius on behalf of the African Group, he
noted that the paper began with a reference to the set of issues that the Chairperson had identified as
being representative of the subjects that had been discussed in the context of the review underIP/C/M/28
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Article 27.3(b).  Although his delegation had always appreciated the Chairperson's efforts during
informal consultations to try to bring all Members together, he wished to recall that the United States
was not able to support this list of issues as comprising an appropriate scope for the review under
Article 27.3(b).
164. The representative of Korea reiterated his delegation's position that, in order to have a more
effective review, it was important at this stage to exchange experience as well as information on
implementation and to enhance understanding among Members on systems for the protection of plant
varieties and their operation.  His delegation's view was that Article 27.3(b) focused on
implementation aspects.  In that connection, Members who had not yet submitted responses to the
Secretariat's questionnaire (IP/C/W/122) were called upon to do so as soon as possible.  This would
contribute to a more constructive discussion of the various issues involved.  With regard to the
relationship between the TRIPS Agreement and the CBD, his delegation remained of the view that
both international instruments were complementary and mutually supportive.  However, some of theissues raised in this connection went beyond the mandate of Article 27.3(b).  Since these issues were
being studied and discussed in the WIPO, he sugge sted that the Council for TRIPS might first await
the results of this work.
165. The representative of Venezuela said that the review of Article 27.3(b) provided an
opportunity for a substantive discussion of a number of issues of great interest to all Members and
reiterated her country's interest in having a structured and comprehensive discussion.  The usefulness
of the list drawn up by the Chairperson in March 2000 and the informal consultations held on the
matter had been proven by the documents that Members now had before them.  The papers from the
African Group and from India reflected many of the points of concern to Venezuela.  In her
delegation's view, the CBD and the TRIPS Agreement were not incompatible.  On the contrary, both
instruments were mutually supportive in achieving common goals.  However, their relationship might
benefit from a confirmation concerning the Members' right to require prior informed consent and
benefit-sharing for the use of genetic resources.
166. The representative of South Africa supported the submission from Mauritius on behalf of the
African Group.
167. The representative of India, commenting on the suggestion made by some delegations that
certain issues should be dealt with in the WIPO, said that his delegation, on the contrary, held the
view that it would be inappropriate to have issu es and problems arising out of the TRIPS Agreement
dealt with by the WIPO.  He agreed with Australia that the Council for TRIPS should play an active
role in this regard.  More generally, his delegation did not accept arguments to the effect that, forexample, development issues always be referred to  UNCTAD, financial issues to the IMF or to the
World Bank, and intellectual property issues related to traditional knowledge to the WIPO.  In respect
of issues arising out of the TRIPS Agreement, including issues arising out of Article 27.3(b), the
Council for TRIPS had an obligation to, at least, study them.  He wondered which of the issues raised
were considered by the delegation of Korea to go beyond the mandate of Article 27.3(b).
168. The representative of Brazil, agreeing with I ndia, said that his delegation recognized the
supportive role of the WIPO in the discussions on these issues but, at the same time, held the view
that there were systemic issues related to the review under Article 27.3(b) that could only be tackled
in the Council for TRIPS.
169. The representative of the Dominican Republic supported the statements made by India and
Brazil and expressed his delegation's support for the document submitted by Mauritius on behalf of
the African Group and for the Indian paper as well as the intervention made by Pakistan.IP/C/M/28
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170. The representative of the FAO informed the Council that the Contact Group of the
Commission of Genetic Resources for Food and Ag riculture had held, from 26 to 31 August 2000, a
meeting in Teheran, the purpose of which had been to continue the negotiations relating to the
revision of the International Undertaking on Plant Genetic Resources.  The meeting represented an
important step forward because the Group had reached an interpretation on certain essential but
controversial aspects.  As regards the conditions of access to genetic resources, there would not be anobligation to track individual accessions and the multilateral system would only include the genetic
resources for food and agriculture included in the list annexed to the Undertaking, i.e. it would not
include chemical, pharmaceutical and/or other non-food/ feed industrial uses.  Benefit-sharing would
be achieved through the sharing of economic benefits arising from commercialization, the exchange
of information, access to and transfer of technology and capacity-building.  With regard to the sharing
of economic benefits arising from commercialization, it was agreed to establish a mechanism through
which royalties would be collected on patented products whose subsequent use for research purposeswould be restricted.  In cases of other forms of protection allowing subsequent use for research,
contributions would be on a voluntary basis and depend on each State.  However, other issues
remained unsolved such as those concerning the list of species covered by the multilateral system;  the
possibility of applying for intellectual property rights on components of the material covered by the
multilateral system;  the possibility for requesting access to plant genetic resources for food andagriculture for purposes of conservation only;  the conditions for accession by states that were not
party to the International Undertaking and for instit utions that were not associated to the agreement;
and the financing system.  She finally informed the Council that an extraordinary session was planned
in order to conclude the negotiations before November 2000, i.e. before the 119
th session of the FAO
Council, and to present to that Council the final version of the compromise text.
171. The representative of the UPOV recalled the reasons for protecting breeders' rights.  By the
year 2020, the world's population would increase to more than seven billion people.  This meant that
food production had to be increased by 40 per cent just in order to maintain the present, and in many
cases, insufficient status of nutrition.  As land resources were scarce and other resources as well, this
had to be done mainly by better varieties, i.e. higher yielding varieties, varieties which would have abetter resistance against pests and diseases and varieties with a better quality.  In order to achieve this
goal, it was necessary to give an incentive to plant breeding.  The breeder needed the possibility to
recover his investment of, sometimes, ten or twenty years of breeding.  The UPOV Convention
provided a flexible system.  It only dealt with the protection of plant varieties.  However, member
states were of course, and had always been, free to develop additional systems to protect indigenous
or traditional knowledge.  The UPOV Convention gave a clear definition of what was a variety,
i.e. the protected subject-matter – as well as of the minimum scope of the breeder's rights.  It
contained a set of international standardized criteria for protection.  In order to be protected, a variety
had to be novel, clearly distinguishable from other varieties being a matter of common knowledge,
uniform to a certain degree, and stable when reproduced.  This was the set of criteria for protection.
The UPOV Convention contained provisions for farmer s' privileges to take into account traditional
procedures of farmers of saving seed and using it for subsequent sowing, provided that the legitimateinterests of the breeders were respected.  The UP OV's member states had developed various solutions
to this problem.  With regard to traditional knowledge, he said that, because a new variety for which
protection was sought had to be checked against all varieties of common knowledge, including
landraces, the UPOV Convention did not allow the wrongful protection of landraces.  It had been said
that variety protection would reduce biodiversity.  The contrary was the case.  The protected varietiesunder the UPOV system were available for further breeding without the authorization of the right
holder.  At present, 45,000 protected varieties under the UPOV system represented a broad source of
genetic variation.  They were made known to the public and they could be used for further breeding.
The growing membership of UPOV showed that an in creasing number of states were convinced of the
advantages of the system.  Out of the current 46 member states, almost 20 had adhered to the1991 Act of the Convention.  Some of the members whose representatives had spoken under this
agenda item were in the process of joining the UPOV.  The Conference of African Trade MinistersIP/C/M/28
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which had met in Cairo three days before the present meeting had urged the continued cooperation
and technical assistance of the UPOV.  This showed that there was, in fact, growing interest in the
UPOV system which, as far as he knew, was the only sui generis  system for the protection of plant
varieties which currently existed.
172. The representative of India did not agree that the UPOV system was the only sui generis
system that existed in this area.
173. The Chairperson said that, with regard to the question of how to find a way of handling the
Council's further work, he detected on the whole a broad readiness to discuss further the range of
issues that had been raised, but that there were concerns about the extent to which Article 27.3(b) was
the correct reference point.  He therefore asked delegations to reflect on whether it would be possible
for the Council to find a practical way of providing a more organized way of continuing the
discussions, while avoiding prejudicing the positions of delegations with regard to whether
Article 27.3(b) was the right context.  He intended to consult further on this matter.  He also calledupon Members who had not yet done so to submit responses to the questionnaire contained in
document IP/C/W/122.
174. The Council took note of the statements made and agreed
 to revert to this matter at its next
meeting.
L. REVIEW OF THE IMPLEMENTATION OF THE AGREEMENT UNDER ARTICLE 71.1
175. The Chairperson recalled that Article 71.1 required the Council for TRIPS to review the
implementation of the Agreement after the end of the five-year transition period provided for in
Article 65.2.  The Council had had a number of discussions of how it should approach this general
review of the implementation of the Agreement.  At the Council's previous meeting, the discussion
had focused on a non-paper circulated by the delegation of Australia setting out that delegation'sthoughts in some detail on this matter.  Since then, formal contributions had been received from
Australia and India.
7
176. Introducing his delegation's paper, the representative of Australia said that his delegation had
endeavoured to take into account comments made by other delegations at the previous meeting.  The
key areas that had been revised when comparing the text with the earlier non-paper were, first, theneed to take into account the trade and development impact on developing countries during the course
of this review.  Regarding the substantive areas that the review could cover, the paper suggested ways
of implementing the Agreement that optimized Members' interests, especially in the areas of
biotechnology, traditional knowledge and genetic resources and of making implementation of the
Agreement more consonant with the objectives of the Convention on Biological Diversity.  Hisdelegation would provide further information regarding its own implementation of the Agreement to
illustrate how this process could work and draw attention to the options available to advance social
and economic interests under the Agreement.
177. The representative of India said that the detailed paper presented by Australia had overtaken
his delegation's comments on the earlier non-paper from Australia.  His delegation's understanding of
Article 71.1, which was evolving, was that the review should cover the residual issues.  Turning to the
introduction of his delegation's own paper, he said that, since national implementing legislation wasalready being reviewed under a different agenda item, his delegation presented its paper under the
present agenda item.  The paper was entitled "Clarifying TRIPS:  A Confidence Building Measure".
The first paragraph discussed the scene since the Seattle Ministerial Conference, and how the
long-term health of the multilateral trading system would depend on the extent of flexibility retained
                                                     
7 Subsequently distributed as documents IP/C/W/210 and 214, respectively.IP/C/M/28
Page 53
by all Members, not just developing country Members, in meeting their WTO obligations.  The
second paragraph made the point that introspection in the WTO was required to determine the extent
of sovereign flexibility necessary to retain a balance between the right of peoples and Member
countries to achieve their needs and aspirations and the obligation of Member governments to provide
a predictable multilateral trading system.  The paper referred to Article XVI:4 of the WTO Agreement
which obliged each Member to ensure the conformity of its laws, regulations and administrativeprocedures with its obligations and, in this case, as provided in the TRIPS Agreement.  For a
determination as to whether such conformity was being ensured, recourse was available to the Council
for TRIPS or to the Dispute Settlement Body.  He drew Members' attention to Articles 7 and 8, which
contained the objectives and principles of the TRIPS Agreement, respectively.  His delegation
believed that these were two pillars to promote inventions and the transfer and dissemination of
technology embodied in such inventions.  These objectives and principles, and the fact that the TRIPS
Agreement had been annexed to the WTO Agreement, demonstrated that the TRIPS Agreement was atrade agreement with the overarching objective of promoting trade through international transfer of
technology.  This was the only reason why it had become part of the WTO acquis .  Although export
of pharmaceuticals or active ingredients, sound recordings, films and software might have been the
primary objective of the demandeurs  of the Agreement, it had been sold to the entire membership of
the WTO as a trade agreement, and thus transfer of technology was an integral part of its objectives.The TRIPS Agreement balanced the private rights of inventors with the rights of the users of
inventions.  Any debate of the TRIPS Agreement s hould therefore take into account the objectives
and principles stipulated in Articles 7 and 8.  The Council for TRIPS, as well as the Dispute
Settlement Body, needed to reflect them in their discussions and decisions.  He referred to the
objectives in the preamble to the WTO Agreement, in  particular those concerning raising of standards
of living and ensuring full employment, i.e. welfare considerations, which should be taken into
account in discussions concerning the TRIPS Agreement, in addition to Articles 7 and 8.  Thus far,
the discussions in the Council for TRIPS had focused on two key aspects:  review of practices of
Members in implementing their obligations under th e TRIPS Agreement, and some specific mandated
negotiations and reviews.  A survey of the numerous questions posed by Members, in particulardeveloped country Members, during the reviews of legislation over the previous four years had
revealed that all questions were based on obligations resulting from minimum standards of protection
provided for under the Agreement and that no questions had been asked on the extent to which the
objectives and principles of the Agreement had been translated or applied in national legislation.
Rather, exercise of legislative or administrative flexibility by some WTO Members, to accommodatecompeting public values, such as the use of compulsory licences or government use, had been the
subject of repeated follow-up questions meant primar ily to question the use of such flexibility.  The
transfer and dissemination of technology and the consequent increase in trade appeared to be of little
concern to the questioning Members.  It could thus be argued that the TRIPS Agreement, instead of
being the trade agreement that it was, had been s ought to be converted into a means of enforcing
private rights irrespective of their trade effects.  While during the discussions of mandated
negotiations and reviews, developing countries had largely emphasized the flexibilities availableunder the Agreement to pursue public interest, developed countries had been proposing further
strengthening of the rights of inventors irrespective of public interest.  His delegation's submission
then discussed developments in the Dispute Settlement Body and cited the DSB's interpretation of the
word "limited" in Article 30 of the TRIPS Agreement, in which little account had been taken of
Articles 7 and 8 but which let Article 30 stand virtually on its own.  Many developing country
Members had sought the operationalization of Articles 7 and 8 in their proposals;  attention could be
drawn to proposals submitted in the context of the Seattle Ministerial Conference.  Whilst lip-service
had been given to the objectives and principles in Articles 7 and 8, there had been an actual practice
of little accommodation in terms of accepting them in legislative or administrative practice.  It was
unfortunate that the WTO membership had handed over its primary responsibility of clarifying thetrade implications of intellectual property rights, and the basic objectives and principles behind the
TRIPS Agreement, to the Dispute Settlement Body.  The kinds of rumblings heard in Seattle and
reflected in a number of implementation issues would not go away if the collective WTO membershipIP/C/M/28
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refused to accept its responsibility and interpret the Ag reement for itself rather than leaving it to the
judgement of a few.  There was more reason to do this under the TRIPS Agreement than in other
areas, because the TRIPS Agreement concerned largely uncharted territory.  His delegation was
committed to the TRIPS Agreement, India being the repository of an immense amount of intellectual
property.  It did not doubt the need to protect intellectual property both in India and elsewhere.  It was
also true that protection of intellectual property coupled with liberal trade and investment policies wasimportant for development and particularly for India.  The abjectly mercantilist use of intellectual
property rights involving possible losses to health and other development objectives was neither
intended by negotiators nor should it be encouraged.  This trend needed to be checked through the
operationalization of Articles 7 and 8.  His delegation's submission contained some recommendations:
a clarification could be made of the language used in Articles 7 and 8 for the benefit of national
governments pursuing public interest and for the benefit of the dispute settlement mechanism itself.
For example, it could be clarified that Article 7 was not circumscribed by any other provision of theAgreement.  The phrase "provided that such measures are consistent with the provisions of the
Agreement" in Article 8.1 could be clarified to emphasize that the principles in Article 8 could not be
completely negated by this proviso.  Referring to a number of implementation proposals in
paragraphs 21 and 22 of the draft Ministerial text prepared for the Seattle Ministerial Conference, he
said that it would be a confidence-building measure if the developed countries agreed to theseproposals and would help in operationalizing Articles 7 and 8.  His delegation urged the Council for
TRIPS to examine the above issues in order to build the confidence of weaker trading partners who
might not be able to otherwise express their negotiating intent either through the existing agenda of
the Council or through recourse to dispute settlement.
178. The representative of the European Communities said that he would respond to the
intervention by the representative of India at the next meeting, but requested clarification of his
references to "flexibility" inherent in the TRIPS Agreement and in Articles 7 and 8.  He asked the
representative of India why he had said that this flexibility had not been recognized when countries
had been implementing the TRIPS Agreement in their national legislation.
179. The representative of India said that the context of his comment had been the current review
of the implementing legislation of developing countries.  Whilst great interest had been shown in
whether developing country Members had met the minimum standards of protection stipulated in the
Agreement, not many questions were sensitive to the fact that the Agreement also stipulated
objectives and principles and that developing country Members, through their implementing
legislation, might be trying to achieve those very objectives and principles legitimately.  He said thathe would complement this preliminary response in more detail at a later stage.
180. The representative of Malaysia welcomed the papers presented by Australia and India
respectively as the way to proceed with the review under Article 71.1.  In a way, the review had
already begun with a review of the national implementing legislation as well as the reviews under
Article 27.3(b) and regarding geographical indications.  She agreed with the representative of India as
regards the importance of Articles 7 and 8.  These provisions could guide the review under
Article 71.1, for example by addressing the following issues.  Did the TRIPS Agreement contribute tothe promotion of technological innovation?  Di d the TRIPS Agreement promote the transfer and
dissemination of technology to the mutual advantage of producers and users?  Were the provisions of
the TRIPS Agreement consistent with the provision that countries could adopt measures to protect
public health and promote public interest in sectors of vital importance?  What were the appropriate
measures that were needed to prevent the abuse of intellectual property rights by right holders or theresort to practices which unreasonably restrained trade and had they been adequately reflected in the
Agreement?  Although only a limited period of time had passed since the Agreement had had to be
implemented by many Members, even in the drafting of national legislation her delegation had found
that there were difficulties associated with the TRIPS Agreement.  Additionally, the issues raised by
Australia and India also fell within the scope of the review.IP/C/M/28
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181. The representative of the Dominican Republic said that his delegation supported the paper
introduced by India.  He would be happy to respond informally to the request by the representative of
the European Communities for evidence of problems related to the flexibility available under the
Agreement.  However, placing that evidence on the formal record could lead to more inflexibility,
which no-one in the Council wished to occur.
182. The representative of Australia underscored the fact that the Article 71.1 review could be an
opportunity for Members to present the way in wh ich they had been able to implement TRIPS
provisions in a way that served the objectives and principles of Articles 7 and 8.
183. The representative of Egypt supported the main thrust of the Indian paper.  As a matter of
principle, the review of the implementation of the Agreement under Article 71.1 should take into
account the General Council decision of February 2000 to analyse the effect of the implementation of
the TRIPS Agreement on trade and developmental aspects of developing countries.  There should be
no a priori conclusions as to whether or not the review might lead to amendments to the text of theAgreement.  The review should aim to examine to  what extent the implementation of the Agreement
had so far achieved and satisfied the objectives and principles as stated in Articles 7 and 8, and how
the balance of rights and obligations between the interests of right holders and the broader interests of
society had been struck.   The transfer of technology should be the central focus and key element of
the TRIPS Agreement, and should be promoted by the establishment of a mechanism to facilitateaccess to new technologies on a reasonable and fair basis.  Competition could also be an element of
the review by examining implementation to ensure th at strengthened intellectual property rights did
not have an adverse effect on competition, especially in developing countries, in the light of
anti-competitive conduct that might result from their exercise.
184. The representative of the European Communities said that he would welcome an informal
discussion with the representative of the Dominican Republic on the flexibility available under the
provisions of the TRIPS Agreement.  His delegation's approach to the review of implementing
legislation was not to reject any flexibility in im plementation but, rather, to check whether, in its
view, the minimum requirements set out in the Agreement had been translated into national
legislation.  If his delegation had not respected flexibility, there would have been many more disputesettlement cases.  Responding to the Indian intervention, he said that he was not convinced that there
was a need for clarification of Articles 7 and 8, since proof was available that dispute settlement
panels already took those Articles into account.
185. The representative of Brazil said that, in principle, his delegation shared Australia's reasoning
in its reading of Article 71.1.  The support of developing countries to implementation-related issues in
the preparations for the Seattle Ministerial Conference and currently in the General Council indicated
the relevance of this issue.  It made sense that , at this time, the review took into account the
experience gained by Members at the present phase of implementation.  A more comprehensive
review leading to possible amendment of the Agreement should take place from 2002 and every two
years thereafter.  Responding to the Australian paper, Brazil favoured a discussion of measures to
counter anti-competitive abuses of intellectual property rights under Article 40, taking into account
the experience of different Members to remedy abusive practices of intellectual property rights thatlimited transfer of technology.  On implementation of existing TRIPS standards in the digital
framework, he wished to point out that the Council for TRIPS was about to resume discussions on
electronic commerce as mandated by the General Council.  More importantly, the issue had no
connection with implementation of the Agreement and therefore fell outside the scope of the review
under Article 71.1.  Brazil had a well-known interest in intellectual property rights in connection withtraditional and indigenous knowledge, but this issue was currently being discussed more appropriately
as part of the review of Article 27.3(b), which was not a review of implementation but a substantive
review.  There might be problems of conflicts in the implementation of the Convention on Biological
Diversity (CBD) and of the TRIPS Agreement, but this demanded a systemic solution to be addressedIP/C/M/28
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as part of the review of Article 27.3(b).  Brazil did not agree with Australia that in the review under
Article 71.1 new intellectual property standards should be discussed in the light of other multilateral
agreements, such as the WIPO Copyright Treaty,  as such discussions would obviously lead to
negotiations aimed at modifying substantive provisions of the TRIPS Agreement, and consequently
move the focus of the review away from implementation.  If anything, the CBD should take
precedence in the identification of other multilateral agreements that were relevant for the purpose ofArticle 71.2, in light of their provisions that were relevant to the objectives of the TRIPS Agreement
on transfer and dissemination of technology.  In this connection, Brazil supported several notions
expressed in the submission from Indian contained in document IP/C/W/195.  Brazil was open to
discuss the Indian proposal to consider ways and means to make operative the objectives and
principles of the TRIPS Agreement in respect of transfer and dissemination of technology to
developing countries, in particular the least developed countries.  The TRIPS Agreement was usually
understood as an Agreement essentially to protect individual intellectual property rights, but littleeffort had been made in the Council to ensure that th e principles and objectives were actually fulfilled.
The Australian paper had noted the widespread interest in increasing the range of beneficiaries from
intellectual property right protection and in improving the contribution of the intellectual property
system to overall national development and well-being.  This approach was all the more relevant if
considered in the light of the implementation of Articles 7 and 8 and in the context of work onimplementation carried out by the General Council.  Braz il felt that this approach in the review would
be a relevant way of allaying the concerns of civil society on potentially negative effects of the TRIPS
Agreement on developing countries.  Brazil had noted that a recent resolution on human rights and
intellectual property rights by the Sub-Commissi on on the Promotion and Protection of Human Rights
requested "the WTO in general and the Council for TRIPS during its ongoing review of the TRIPSAgreement in particular to take fully into account existing State obligations under international human
rights instruments".  Additionally, the UN Human Development Report 2000, in box 4.9 on page 84,
mentioned that "the TRIPS Agreement benefits tec hnologically advanced countries.  It is estimated
that industrialized countries hold 97 per cent of all patents and global corporations 90 per cent of all
technology and product patents.  Developing countries have little to gain from stronger patentprotection from the TRIPS Agreement, because they have little research and development capacity."
The report concluded that "There is little evidence so far that patent protection has stimulated research
and development in or for poor countries or that it offers the potential to do so".  Whether WTO
Members agree or not with such a conclusion, a review of how Members were implementing
measures necessary to protect public health and nutrition and to promote the public interest in sectorsof vital importance, for instance, would, as a minimum, send a positive signal to civil society and
other international organizations.
186. The representative of the Dominican Republic thanked the representative of the European
Communities for his willingness to have an informal discussion with his delegation on the issue of
flexibility and announced that his delegation was planning to revert to this item at the next meeting
and, later, to submit a written contribution.  He noted that the representative of the European
Communities had interpreted inflexibility or disagr eements about implementation solely in terms of
an increase in the number of disputes before the Dispute Settlement Body.  However, in reality, such
disagreements were being expressed by other means.  The review of the implementation of the
Agreement should examine how, in effect, the TRI PS Agreement provided a framework of minimum
standards within which Members had choices.  Unfortunately, this had been forgotten in international
debates and especially in bilateral discussions.  The objectives and principles of the Agreement werebeing applied by developed country Members in a most creative manner.  Developing country
Members, such as the Dominican Republic, would be  interested to know, for instance, how developed
countries maintained a preponderance of pro-competitive objectives and laws above and beyond the
provisions on the protection of intellectual prop erty.  They would also like to know how some
developed country Members were able to grant more compulsory licences than any other country inthe world.  It was important that the review of the implementation of the Agreement addressed these
mechanisms, because it would influence how developing country Members, such as the DominicanIP/C/M/28
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Republic, had to implement the Agreement.  It was important to review the ways in which some
Members were interpreting the provisions of the Agreement nationally, in particular given that this
was not necessarily consistent with the attitude of those same Members with regard to what occurred
in other countries.  This was the key to the problem of inflexibility.
187. The representative of Pakistan suggested that there was a need for clarity regarding what
should be discussed as part of the review under Arti cle 71.1 now, what should be discussed later, and
what was the scope of the review.  There had been a suggestion that the 2000 review under
Article 71.1 should address the steps taken to implement TRIPS obligations, namely legislative
provisions and enforcement procedures.  His delegation believed that that was a sub-set of the issues
to be covered in the review, but that in addition th e Council should look at the difficulties that had
been encountered in that process of taking those steps.  Both were important.  Many developing
countries were identifying certain areas which fell within the second sub-set, where perhaps the
TRIPS Agreement was not balanced.  The two sub-sets were not mutually exclusive.  There was nojustification for excluding either.
188. The representative of New Zealand referred to a number of "common sense" proposals in the
Australian paper regarding the procedure for this review.  He emphasized the value in focusing on the
measures taken by different Members to implement TRIPS obligations in different sectors, bearing in
mind the range of different systems and approaches taken.  The current exchange of information couldbe valuable in clearing up ambiguities and problems that might be identified along the way.
189. The representative of the Philippines said that, to date, "implementation" had referred to the
measures taken by a Member to protect and enforce intellectual property rights.  However, in the
context of implementation, no-one had asked how those measures promoted social and economic
welfare.  Aside from the other aspects of implementation, his delegation hoped that there would be ameaningful review of the extent to which the operational provisions of the Agreement had met the
objectives of the Agreement itself.  The review also needed to take account of the trade and
development impact on developing countries.
190. The Council took note of the statements made and agreed
 to revert to this matter at its next
meeting.
M. NON-VIOLATION COMPLAINTS
191. The Chairperson recalled that, at the previous  meeting, the representative of the European
Communities and their member States had introduced a joint submission by his delegation, Brazil,
Canada, the Czech Republic, Hungary and Turkey (document IP/C/W/191), and the representative of
the United States had introduced a paper by his delegation (document IP/C/W/194).  The Council hadhad a preliminary discussion on these two submissions.  Since then, the Council had received a formal
submission from Australia and a non-paper from Korea.
8
192. The representative of Australia said that his delegation's paper was intended to take forward
the Council's work on non-violation.  All Members had an interest in clarifying this difficult and
obscure issue which led to varying levels of concern among Members.  Above all, the paper focussed
on the potential meaning of any recommendations that might be developed on scope and modalities
and the sort of issues and sources of law that could be drawn on in doing so.  The paper did notadvance any formal position and concluded with some mere suggestions of the sort of material that
recommendations could include, and some might even be considered obvious.  It mentioned that
non-violation was widely perceived as having an exceptional character and there was a general
                                                     
8 Subsequently distributed as documents IP/C/W/212 and JOB(00)6166 of 9 October 2000,
respectively.IP/C/M/28
Page 58
interest in retaining it as an exceptional remedy;  it referred to the arguably higher burden of proof for
non-violation complaints;  it drew on comments in other delegations' papers on the elements of a
successful non-violation complaint;  it considered how the expected benefits under the TRIPS
Agreement could be assessed, referring to Articles 7 and 8 as well as the detailed substantive
provisions of the Agreement;  it addressed concerns raised in previous debates, such as avoiding
undermining the consistent application of the agreements covered by the Dispute SettlementUnderstanding and the notion that non-violation complaints could be precluded for measures found
consistent with provisions in the Agreement that permitted exceptions to intellectual property rights.
193. The representative of Korea, highlighting the main elements of his delegation's non-paper,
said that it identified three requirements necessary for a cognizable claim:  first, application of a
measure;  second, existence of a benefit accruing directly or indirectly to a complaining Member
under the Agreement;  and third, nullification or impairment of such benefit as a result of the
application of the measure.  In addition to these three requirements, other elements could beconsidered.  With regard to the first requirement, Korea's non-paper focused on the meaning of the
term "measure" and its implications for the TRIPS Agreement, in light of the application of the
Agreement to the acts of private parties and the scope of its subject-matter.  The Council could
discuss what measures potentially fell within the scope of the subject-matter of non-violation
complaints under the TRIPS Agreement, particularly since the scope of the Agreement could lagbehind the expansion of new technological property  rights.  With regard to the second requirement,
there were no concessions under the TRIPS Agreement and, as indicated by Canada in its paper
(IP/C/W/127), this made it difficult to apply the non-violation remedy.  It was essential that there be
some common understanding among Members as to what constituted reasonable expectations of
benefits in the context of the TRIPS Agreement.  With regard to the third requirement, the concept of
a competitive relationship was key.  A complainant should demonstrate that a competitive position
was being upset, nullified or impaired by the application of a measure not reasonably anticipated.
Under the TRIPS Agreement, there was not only the competitive relationship between a Member's
own nationals and the nationals of other Members, but also the bargain between the right holder and
society as a whole.  Further, the demonstration of causality between the measure and its effect on thecompetitive relationship was another issue to discu ss.  In addition to these three requirements, the
Council also needed to take into account the role played by the objectives and principles of the
Agreement in Articles 7 and 8.  The Agreement was intended to achieve a balance between the
protection of intellectual property rights and othe r social and economic policies, and it was important
that Members have the necessary flexibility to adju st intellectual property rights to maintain the
desired balance.  His delegation hoped that this important matter would be clarified and that Members
would obtain a common understanding of the various issues surrounding it.
194. The representative of India supported the Australian intervention in a preliminary manner and
said that it had raised a number of issues which the Council had a duty to consider.  He would respond
to the Australian and Korean contributions at a la ter meeting.  Providing his delegation's preliminary
comments on the United States' paper (IP/C/W/194), he first referred to the part entitled
"Background", which said that the delay in the application of non-violation complaints to the TRIPSAgreement had ceased on 1 January 2000 and that the United States was not in a position to agree to
continue discussions but was willing to listen to others' views regarding what purpose the continued
discussion might serve.  It added that no purpose would be served in continuing discussions,
particularly at a time when the Council's built-in agenda already required substantial, significant
work.  In India's opinion, this view was not only at  variance with the understanding of all the other
WTO Members, but it did not appear to be legally correct either.  The discussions on the subject in
1999 had been inconclusive as was evident from the annual report from the Council for TRIPS for
1999 (document IP/C/19, paragraph 6).  That report had been forwarded to the Seattle Ministerial
Conference with a view to arrive at a consensu s decision, but the Conference had been inconclusive.IP/C/M/28
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"Therefore," as stated by the Chairman of the Conference in the closing plenary session9, "Ministers
had agreed to suspend  the work of the Ministerial Conference, and to allow the Director-General time
to consult with delegations in order to do the follo wing:  first and foremost, to ensure that the WTO
developed rules and processes that would ensure maximum transparency for all delegations, and
second, to discuss creative ways in which to bridge the remaining differences in areas where
consensus did not yet exist , so that the Ministerial Conference could resume and complete  its work."10
The Council for TRIPS had to, therefore, resume its discussions with a view to arriving at a consensus
on the issue and, until that happened, the work envisaged under Article 64.3 would not conclude.  The
United States paper emphasized that the TRIPS Agreement was a market access agreement.  It was
acknowledged that the TRIPS Agreement had been introduced into the WTO acquis  with the desire,
as stated in the Preamble, to reduce distortions and impediments to international trade.  It would have
been a classic market access agreement if it had dealt with only trade in counterfeit goods, as
envisaged at one time during the negotiations.  However, now its connection with market access layonly in its basic principles as enunciated in Part I, i.e. Articles 1 to 8.  For example, it provided for
national treatment and most-favoured-nation treatment in Articles 3 and 4, respectively.  It also had
the objective of transfer and dissemination of technology and the reasonable expectations in respect of
such transfer and dissemination through the promotion of technological innovation envisaged under
the Agreement.  In Part II onwards, the Agreement was a minimum standards agreement on the scopeand level of intellectual property rights, their enforcement, acquisition and maintenance, etc.  This
distinction was important in the context of the scope for non-violation disputes.  The reasonable
expectations in respect of intellectual property rights, for example, would relate to the minimum
standards prescribed and not the market access expectations of the kind found in market access
agreements.  The Agreement on Technical Barriers to Trade and the Agreement on Sanitary andPhyto-Sanitary Measures, on the other hand, not only had the specific objective of providing
predictable market access, but their substantive provisions were also related primarily to predictability
of market access through universally accepted standards in respect of legitimate objectives like safety,
health, etc.  The Council for TRIPS, therefore, had a responsibility to determine the scope and
modalities and application of non-violation complaints in the specific context of the TRIPSAgreement and, until that was done, there could be no clarity about the application of non-violation
complaints to TRIPS issues.  The United States paper argued that protection through the TRIPS
Agreement enabled producers of protected goods to invest with greater assurance that their
investments would be rewarded.  This appeared to have no basis, either in the TRIPS negotiations or
in the TRIPS Agreement's provisions, as there was no legal basis for assuming that the negotiatorswanted TRIPS to be an investment Agreement.  Even if one talked of reasonable expectations, this
could relate only to market access of goods which had obtained intellectual property right protection
in the country of export, and it could not extend to the expectations of reward of investments, if any.
In arguing that the TRIPS Agreement was a market access agreement, the United States paper gave
three examples.  In India's opinion, these examples conveyed a misplaced view of the expected
benefits of intellectual property right protection.  Firstly, intellectual property rights had to be granted
under national law and the TRIPS Agreement only pr escribed minimum standards.  Therefore, the
level of protection available in the home country might not necessarily be available in the country to
which products were exported, nor could reasonable expectations in the home country be equated to
the expectations in the host country.  Secondly, intellectual property rights were negative rights to
exclude others from the market where they applied and not a positive right to compete in the export
market with directly competitive products.  Thus, tariff reduction might have no relationship with therights obtained through the TRIPS Agreement, nor the reasonable expectations arising therefrom.  His
delegation agreed with the position of the United States that the measures illustrated in the paper
introduced by the European Communities were not legitimate subjects for non-violation complaints.
                                                     
9 See WT/MIN(99)/SR/8.
10 Emphasis added by India.IP/C/M/28
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195. The representative of Canada said that her delegation appreciated the Australian paper's
detailed analysis of the various issues surrounding the concept of non-violation nullification and
impairment in the context of the TRIPS Agreement and other WTO agreements.  It built on the work
undertaken by other Members in the Council and presented an additional basis for discussing these
issues in a more substantive manner.  She would come back to the new contributions at a later stage.
196. The representative of the European Communities, while reminding Members of his
delegation's paper presented at the previous meeting (IP/C/W/191), said that his delegation had much
sympathy for some of the recommendations presented in the Australian paper.  He requested the
representative of Korea to clarify what he had meant by his references to the concept of "competitive
relationship" and from where it originated.  He appreciated the comments of the representative of
India on the question of whether or not the TRIPS Agreement was a market access agreement, which
his delegation's paper had dealt with at length.  He looked forward to more contributions on this
agenda item.
197. The representative of Hungary believed that the papers that had been presented raised many
pertinent issues that the Council had to examine.  He would provide substantive comments at the next
meeting.
198. The representative of the United States thanked the representative of India for his reaction to
some of the specific comments in the United Stat es paper.  He would respond to them at the next
meeting.
199. The representative of Korea said that he would respond to the European Communities' request
for clarification at the next meeting.
200. The Council took note of the statements made and agreed  to revert to the matter at its next
meeting.
N. ELECTRONIC COMMERCE
201. The Chairperson recalled that, at its meeting of 17 July 2000, the General Council had agreed
to invite the Council for TRIPS and three other subsidiary bodies, namely the Council for Trade in
Goods, the Council for Trade in Services and the Committee on Trade and Development, to pick up
where they had left off in their work on electronic commerce within their respective spheres ofcompetence, to identify cross-sectoral issues, and to report back to the General Council at its regular
meeting in December 2000 (paragraphs 94 and 131 of document WT/GC/M/57).  He had held
informal consultations on how the Council might proceed on this invitation.  The Council for TRIPS
had submitted its Progress Report to the General Council on 30 July 1999, which had been circulated
in document IP/C/18.  In this Progress Report, th e Council had expressed the view that the WTO
should continue to consider developments in relation to electronic commerce and intellectual
property, including the further work of the WIPO.  Given that the General Council had requested the
Council for TRIPS to report back to it at its regular meeting in December, the Council for TRIPS
should be able to agree to its report at its next meeting scheduled from 27 November to
1 December 2000.  He invited a representative of the International Bureau of the WIPO to make a
presentation on recent activities of the WIPO of relevance to electronic commerce.
202. The representative of the WIPO highlighted the main areas of activity that the WIPO had
pursued since its previous presentation on the matter to the Council.11  The member states of the
WIPO had adopted in September 1999 a digital agenda, of which he would highlight selected items.
The first such item was directed at trying to enhance the participation of developing countries in the
                                                     
11 See document IP/C/M/24, paragraphs 71 and 72.IP/C/M/28
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discussion of the issues that were arising as a result of the impact of electronic commerce on the
intellectual property system.  To this end, over the past several months, the WIPO had conducted a
series of regional consultations throughout the world and the discussion of the implications of
electronic commerce on intellectual property was now a regular feature of its programme for
development cooperation.  Turning to three particular substantive areas, he first drew attention to that
item in the WIPO's digital agenda pursuant to which the WIPO was pursuing compatibility between,on the one hand, the system of "real world identifiers" that existed, most notably trademarks, and, on
the other hand, the system of "virtual identifiers" that existed, most notably domain names.  The real
world naming systems had in common two characteristics.  They usually had a limited purpose and
were usually geographically specific in their operation.  For example, trademarks were limited to
commerce and naming systems for scientific genera were limited to the purposes of science.  Virtual
identifiers, most notably domain names, in contra st occurred or were used on a multifunctional
medium, the Internet, which was used for economic, social, cultural and political purposes withoutlimitation, and which was global and did not respect any borders.  The opposition of these two
characteristics of the systems of real and virtual identifiers produced all of the legal problems that
were currently being experienced.  As the Members of the Council were aware, the WIPO had
conducted a hybrid process involving both the public sector and the private sector, to develop
recommendations on dealing with the intersection of trademarks and domain names.  Pursuant to the
report that had been presented as a result of that process to the Internet Corporation for Assigned
Names and Numbers (ICANN) in 1999, a uniform dispute resolution procedure had been established
for the generic top level domains of .com, .net and .org.  The WIPO had been administering dispute
resolution services under this dispute resolution procedure since the beginning of 2000 and the
demand was heavy.  WIPO had had more than 1,250 complaints filed since the beginning of 2000,based on the deliberate, bad faith cyber-squatting or theft of identity reflected in a trademark.  That
number of cases did not represent the number of domain names involved because, for example, one
case had been filed which involved 108 variations of the words "HarryPotter.com".  To date, 636 of
the cases had been resolved.  Eighty per cent of the complaints had been resolved in favour of the
complainant;  thus 20 per cent were being denied.  There had been widespread geographicalparticipation in the procedure;  complaints had been filed from residents of 68 countries.
203. Continuing, he said that the cases filed had revealed that there were nevertheless a number of
outstanding issues in respect of the intersection of domain names and "real world identifiers".  First, at
the request of the WIPO's member states, the International Bureau had been invited to commence a
second domain name process, involving public sector and private sector participation, to developrecommendations on the deliberate bad faith use and registration of domain names in violation of
other forms of "real world identifiers", notably personal names or personality rights, geographical
indications, the names and acronyms of international organizations that were protected under
Article 6 ter of the Paris Convention and under the TRIPS Agreement from appropriation in the
trademark system, international non-proprietary names for pharmaceutical substances and the names
and entities that were not otherwise protected by trademark law, such as events or corporations.  That
process had started and very shortly a second Request for Comments on these questions would beissued and he expected that the report developing any recommendations on these questions would be
published in the middle of 2001.  The second set of outstanding issues concerned the country code top
level domains ("ccTLDs"), i.e. the top level domains that bore the two-letter country code of the
various countries of the world.  The WIPO had been  requested to work with those administrators of
country code top level domains that so wished to examine whether the uniform dispute resolutionprocedure might be applied in the ccTLDs.  A number of these ccTLDs operated in what was known
as an "open" sense in that they permitted registrations from persons or entities all over the world.  The
consequence was that, if a trademark, or rather an intellectual property right, was violated as a result
of a registration, there was very often a jurisdictional difficulty in finding an appropriate forum in
which to pursue the violator of the intellectual property right.  To date, 12 ccTLDs had adopted theuniform dispute resolution procedure and the WIPO had administered four cases concerning
violations of trademark rights in ccTLDs.  Another major item of the WIPO digital agenda was theIP/C/M/28
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promotion of the adjustment of the international le gislative framework to deal with digital technology
and electronic commerce.  As was well known, two treaties had been concluded at the end of 1996
- the WIPO Copyright Treaty and the WIPO Perf ormances and Phonograms Treaty - and a major
element of the WIPO's work programme was promoting accession or adherence to these treaties so
that they could enter into force.  Each required 30 accessions or ratifications.  To date, one had 19 and
the other 16, but the WIPO hoped that, in the course of the next 12 months, a sufficient number ofratifications or accessions might be achieved to bring the treaties into force.  In December 2000, a
diplomatic conference would be held also to conclude a new instrument on one of the issues that had
been left outstanding at the 1996 diplomatic conference, namely the international protection of
audiovisual performances.
204. Turning to the coordination of horizontal issues that affected intellectual property, he said that
the issue that was of most concern to the WIPO was the question of jurisdiction, which was not an
issue that was confined to intellectual property.  The Hague Conference on Private International Lawwas the forum in which discussions were being pursued on a draft Convention on Jurisdiction and
Foreign Judgements in Civil and Commercial Matters.  It had been brought to the WIPO's attention
that intellectual property jurisdiction questions might present some particularities which distinguished
them from contract or other commercial jurisdictional questions.  For example, in electronic
commerce generally, for sales there was a discussion as to whether the law of origin or the law ofdestination in respect of the sale ought to apply.  Many in business and industry extolled the virtues of
the rule of the law of origin in order to reduce compliance costs on the part of business and in order to
create greater predictability and certainty.  That rule did not fit well, however, for example, with
copyright.  If the law of origin were to apply, then it would be possible to create intellectual property
piracy havens where no intellectual property protection existed and where that law would be the lawwhich would apply to the distribution of copyrighted works on the Internet.  In order to address these
questions in the context of intellectual property, the WIPO was organizing, jointly with the Hague
Conference Secretariat, a conference to address jurisdictional questions on intellectual property and
electronic commerce in Geneva on 30 and 31 January 2001.  Finally, many people considered that the
best approach to dealing with the complex questions relating to jurisdiction was a compositeapproach, not just an approach of trying to adjust treaty law, but also using, to the extent possible,
alternative dispute resolution mechanisms, particularly in the context of consumer disputes.  In this
respect, the WIPO would also organize, in November 2000, a conference on dispute resolution in
electronic commerce, where its experience to date had been chiefly with respect to Internet domain
names.
205. The representative of Japan said that this issue should be considered further in view of the
rapid nature of technological development in the area of electronic commerce.  His delegation
supported further informal consultations on issues relevant to electronic commerce.  The Council
should pay attention to the parallel discussions in  other organizations such as the WIPO, OECD and
the Hague Conference on Private International Law.  Issues such as international jurisdiction, or
choice of law, related not only to violations of intellectual property but also to privacy and consumer
protection.  Various electronic commerce issues should  be considered from a horizontal point of view,
in particular, from the points of view of technology and economic development.  Cross-cutting issues,
such as jurisdiction or choice of law, should be discussed in appropriate fora.  Accordingly, his
delegation strongly supported establishment of an ad hoc task force for cross-cutting issues, which
many other Members had already supported at the July 2000 meeting of the General Council.  This
was the best way to have an effective and efficient discussion.  He asked the Chair, when reporting tothe General Council on the restarted discussions on electronic commerce-related issues, to note that
support had been expressed for an ad hoc task force.
206. The representative of the European Communities underlined the importance his delegation
attached to electronic commerce and the need to study  further intellectual property-related issues.  He
foreshadowed a paper on this agenda item.  He a ppreciated the intervention of the representative ofIP/C/M/28
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the WIPO which had demonstrated the value of contributions by representatives of observer
organizations.  Given that the Council needed to adopt a report to the General Council on its work
under this agenda item at its next meeting, he asked how the Chair proposed to proceed.
207. The Chairperson said that the procedure under this agenda item depended on interventions
made at this meeting and subsequent inputs by Members.  The Council had to revert to this matter at
its next meeting at which time it would de cide how to report to the General Council.
208. The representative of Australia recalled that in July 1999 his delegation had submitted a paper
on electronic commerce, shortly before the Council's previous progress report.  Electronic commerce
was one of the most important issues confronting policy-makers in the intellectual property field.  The
presentation by the WIPO highlighted that this was a fast-moving area, and that there had been a
range of developments since the TRIPS Agreement had been concluded.  It was incumbent on the
Council to keep track of those developments and respond to them.  His delegation would update its
paper to take account of developments in the meanti me and re-circulate it.  Nonetheless, he reminded
the Council that its main proposal related to the general applicability of intellectual property
principles and the TRIPS objectives to the realm of electronic commerce.  It considered the distinctive
features of intellectual property in the digital environment and the challenges for enforcement and
particularly border measures under the TRIPS Agreement;  it highlighted the importance of
international cooperation relating to enforcement in  line with Article 69 and the jurisdictional issues
raised by the representative of the WIPO in his inte rvention.  It considered the impact of some of the
development issues, such as access to new technologies and the role of electronic commerce
technology in intellectual property administration.  Finally, it considered some of the substantive legal
issues that had arisen in the context of electronic commerce, in particular concerning copyright
standards, and the possible relationship of the TRIPS Agreement to the 1996 WIPO Treaties thatrepresented extensions of the Berne Convention; and the issue of distinctive signs such as trademarks,
geographical indications and the names of international organizations and the possibility of extending
the TRIPS Agreement's standards in the internet en vironment, not only in relation to domain names
but also general use on the Internet.
209. The representative of Pakistan, responding to the intervention by Japan, said that debate on a
task force had taken place in the General Council and there had been no consensus on it.  He
reiterated his delegation's position that no task force was needed.
210. The Chairperson said that, in the light of discussions at the present and next meetings, he
proposed that he would prepare a report to the General Council on his own responsibility on the
further work done by the Council for TRIPS.  He would circulate the draft report for comments.
211. The Council took note of the statements made and agreed  to proceed as suggested by the
Chairperson.
O. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
(i) Accessions
212. The Chairperson said that Albania had become the 138th Member of the WTO on
8 September 2000 (WT/Let/353).  Albania had committed itself to apply fully the provisions of the
TRIPS Agreement by the date of its accession to the WTO without recourse to a transitional period.On 17 July 2000 the Government of Croatia had accepted, subject to ratification, its Protocol of
Accession, which included a commitment to apply fully the provisions of the TRIPS Agreement by
the date of its accession to the WTO without recourse to a transitional period.IP/C/M/28
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(ii) Dispute Settlement
213. The Chairperson informed the Council that th e report of the Panel on United States -
Section 110(5) of the US Copyright Act, a complaint by the European Communities and its member
States (document WT/DS160/R), had been adopte d by the Dispute Settlement Body on 27 July 2000
(document IP/D/16/Add.1);  and that the report of  the Appellate Body in Canada - Term of Patent
Protection (document WT/DS170/AB/R) had been circulated on 18 September 2000.
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