RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/M/21
22 January 1999
(99-0240)
Council for Trade-Related Aspects
of Intellectual Property Rights
MINUTES OF MEETING
Held in the Centre William Rappard
on 1-2 December 1998
Chairperson:  Ambassador István Major (Hungary)
Subjects discussed:
A. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL
ORGANIZATIONS
B. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT
C. REVIEW OF LEGISLATION:
(i) Legislation of Ecuador, Mongolia and Panama
(ii) Follow-up to the reviews already undertaken
(iii) Arrangements for future reviews
D. IMPLEMENTATION OF ARTICLE 70.8 AND 70.9
E. IMPLEMENTATION OF ARTICLE 66.2
F. TECHNICAL COOPERATION
G. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2
H. IMPLEMENTATION OF ARTICLE 23.4
I. TRADE FACILITATION
J. ELECTRONIC COMMERCE
K. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B)
L. ARTICLE 64.3
M. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
N. DRAFT ANNUAL REPORT
O. OTHER BUSINESS.IP/C/M/21
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A. O BSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS
1. The Chairperson informed the Council that new requests for observer status had been
received from the Secretariat of the Convention on Biological Diversity based in Montreal and from
the South Centre based in Geneva.
2. In the light of informal consultations held on the pending requests for observer status1 the
Chairperson suggested that further informal consultations be held on this matter and that the Council
revert to it at the next meeting.  While appreciating the existence of horizontal issues, he said that it
would be desirable to see if any of the requests for observer status could be dealt with in a way that
would not impact on these issues.  It was his intention to consult Members on this point before the
next meeting.  The Secretariat of the Convention on Biological Diversity and the South Centre would
be requested to provide information relevant to the criteria contained in paragraphs 3 and 4 of theprocedures relating to the grant of observer status for international intergovernmental organizations
(Annex 3 of document WT/L/161).
3. The Council so agreed.
B. N OTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT
(i) Notifications under Article 63.2
4. The Chairperson informed the Council that, since the previous meeting, new notifications of
legislation had been received from Denmark, France, the European Communities, Liechtenstein,
Romania, Spain and Zimbabwe.  The notification from Zimbabwe concerned the provisions of
Articles 3, 4 and 5 of the Agreement and informed the Council that Zimbabwe was availing itself of
the transitional period of Article 65.2.  All these notifications would be available in the IP/N/1/-document series as soon as possible.  He also informed the Council that Ecuador and Mongolia had
notified their responses to the Checklist of Issues on Enforcement.  These notifications had been
circulated in the IP/N/6/- series of documents.
5. The representative of the European Commun ities informed the Council that the Directive
relating to the Legal Protection of Biotechnological Inventions that his delegation had notified had
been adopted by the European Communities and had entered into force on 30 July 1998;  the
provisions of the Directive would have to be implemented by the member States of the European
Communities by 30 July 2000.
6. The Council took note of this statement.
(ii) Notifications under Article 69
7. The Chairperson informed the Council that, since the previous meeting, a new notification
under Article 69 had been received from Senegal, bringing the number of Members that had notified
contact points under this provision to 87.  A notification had also been received from the delegations
of the European Communities and Spain, containing updated information concerning their respective
contact points under Article 69.  Information on these contact points was available in the IP/N/3/-
series of documents.
8. The representative of Brazil said that the information on his country's contact point would be
updated shortly.
9. The Council took note of this statement.
                                                     
1 See document IP/C/W/52/Rev.4.IP/C/M/21
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C. R EVIEW OF LEGISLATION
(i) Legislation of Ecuador, Mongolia and Panama2
10. The Chairperson suggested that the reviews in question be taken up on a country-by-country
basis and, in accordance with the procedures for these reviews, in alphabetical order.3  Prior to the
meeting, questions posed to the three countries in question had been received from Japan, circulatedin document IP/C/W/111, and questions posed to Ecuador and Mongolia had been received from the
European Communities and their member States, circulated in document IP/C/W/112 and
IP/C/W/112/Add.1.  Responses to all these questions had been received and circulated prior to the
meeting as well (IP/C/W/115, IP/C/W116, IP/C/W/1 16/Add.1 and IP/C/W/118).  In accordance with
the procedures, the delegations of Ecuador, Mongolia and Panama were asked to provide a brief
introductory overview of the structure of their co untries' legislation in the areas covered by the
Agreement and of the changes, if any, that they had had to bring about in order to make the legislationcompatible with the TRIPS Agreement.  Since answers to all these questions had already been
circulated in WTO documents, the Chairperson suggested that there was no need for the responses to
be read out.  If the delegations in question so wished, they could limit themselves to introducing their
responses, emphasizing any points that they felt were particularly salient.  Questions posed by the
European Communities and their member States addressed to Panama, as well as additional questionsaddressed to Mongolia, had recently been received and would shortly be circulated as document
IP/C/W/112/Add.2.
11. The record of the introductory statements made by the delegations of Ecuador, Mongolia
 and
Panama, the questions put to them and the responses given (including written responses to be given
after the meeting) will be circulated in due course in the series of documents containing the records of
the reviews of national TRIPS implementing legislation.
12. The representatives of the European Communities and Japan  made general statements
regarding the Mongolian legislation.  The representative of the European Communities expressed
serious concerns with regard to the legislation of Mongolia in the area of enforcement and said that, in
the view of his delegation, there was a serious violation of the WTO Protocol on the Accession ofMongolia.  The representative of Japan said that the answers provided by Mongolia indicated that it
needed to make further amendments to its intellectua l property laws in order to comply fully with the
TRIPS Agreement.
13. The representative of Panama said that the answers of his delegation to the questions that it
had just received from the European Communities and their member States would be provided as
soon as possible.
14. The Chairperson recalled that, according to the procedures for the review, responses to
questions that could not be given at the present meeting should be submitted within eight weeks after
the meeting. He suggested that Mongolia and Panama make their outstanding responses available to
the Secretariat accordingly, so that the records of the review could be produced without undue delay.
15. The Council took note of the statements made.
                                                     
2 These reviews concerned all the areas of intellectual property covered by the TRIPS Agreement.
3 The basic procedures can be found in document IP/C/M/7, paragraph 6.IP/C/M/21
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(ii) Follow-up to the reviews already undertaken
- Copyright and Related Rights
16. The Chairperson recalled that, at the previous  meeting, the European Communities and their
member States had addressed a follow-up question to Hungary and informed the Council that the
response from Hungary to this question had been receiv ed and circulated as part of the records of the
review of the Hungarian legislation on copyright and related rights in document IP/Q/HUN/1.
- Trademarks, Geographical Indications and Industrial Designs
17. The Chairperson recalled that, at the previous  meeting, the European Communities and their
Member States had addressed a number of follow- up questions to Bulgaria and informed the Council
that the responses from Bulgaria to these questions had been received and circulated as part of the
records of the review of the Bulgarian legislation on trademarks, geographical indications and
industrial designs in document IP/Q2/BGR/1.
- Legislation on Enforcement
18. The Chairperson recalled that, at the previous meeting, the Council had urged Members to
provide any outstanding material concerning the re view of their legislation on enforcement without
delay.  He informed the Council that there were still seven Members who needed to complete the
records of the review of their legislation on enforcement, namely Norway, Portugal, Romania, theSlovak Republic, Slovenia, South Africa and the United States.  He suggested that the Council urge
those delegations to do their utmost to provide the material due soon.
19. The representative of Slovenia said that his delegation had already sent replies to the follow-
up questions posed by the United States concerning statistics but needed more time to respond to the
questions posed by Switzerland as they were legally complex.  He assured Members that hisdelegation was doing its best to provide the answers in the near future.
20. The representative of the European Communities said that Portugal's responses to the
questions posed by the United States had been prepared and would be provided shortly.
21. The Council took note of the statements made and agreed  to revert to the matter at its next
meeting.
(iii) Arrangements for future reviews
22. The Chairperson recalled that, at the previous meeting, it had been agreed that the Chair
would hold further consultations with those Member s that had been open to early reviews of their
legislation to see if they would be in a position to have their legislation reviewed in the first part of
2000, so as to initiate the post-2000 review of legislation.  It had also been agreed that consultations
would be held on the practical arrangements that woul d need to be put in place for the reviews of the
national implementing legislation of developing country Members after 1 January 2000.  He reportedthat seven Members were prepared to have their TR IPS implementing legislation reviewed in the first
part of the year 2000, namely Cyprus;  Hong Kong, China;  Israel;  Korea;  Macau;  Trinidad and
Tobago;  and Singapore.  Consultations with these Members had been held on the understanding that,
in order for a review in the first part of 2000 to  work, the required notifications would need to be
made during 1999.  Some of these Members had already made advance notifications of theirlegislation, but the others would need to do the same so as to allow an appropriate preparation time for
the review exercise, in line with the procedures de veloped during the reviews of legislation carried out
in 1996 and 1997.  Israel had indicated that, if it could not notify before 1 January 2000, because of
translation difficulties, it would do so in the early days of January 2000.IP/C/M/21
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23. The Council took note of this statement.
24. As regards the consultations on practical arrangements for the reviews of the national
implementing legislation of other developing country Members, the Chairperson said that he had been
consulting on this matter, in particular about whether the reviews should be organized on a subject-by-subject basis, or by dividing the work between groups of countries.  Some delegations hadindicated their particular preference and he urged as many delegations as possible to inform him or
the Secretariat of their views on this matter in th e weeks ahead, so that he would be in a position to
put to the Council a suggestion for a schedule of reviews early in 1999.
25. The Council took note of this statement.
D. I MPLEMENTATION OF ARTICLE 70.8 AND 70.9
26. The Chairperson said that he had one new notification to report under this agenda item,
namely from Zimbabwe.  Zimbabwe had notified that its patent law already provided for the
protection of inventions of pharmaceuticals and agricultural chemicals by product patents.
27. The Chairperson recalled that, at the previous meeting, it had been proposed that the Council
consider again the possibility of a systematic review of the implementation of Article 70.8 and 70.9.
It had been agreed that, in the interests of transparency, the United States would circulate to all
Members the questions that it had posed to individual Members.  These questions were addressed toArgentina, Egypt, Paraguay and Uruguay and were available in document IP/C/W/113. Responses to
these questions which the Secretariat had received recently from Uruguay were available in
photocopied form at the present meeting and would be circulated in document IP/C/W/121 in due
course.
28.  The representatives of Argentina and Egypt
 said that their delegations had only learnt about
these questions through document IP/C/W/113. Since this document had been circulated only
recently, the questions were still being examined in  their respective capitals and answers could not yet
be provided.
29. The representative of the United States thanked Uruguay for its responses and appreciated the
efforts by Argentina and Egypt to provide answers to  the questions.  He reiterated his support for a
systematic review of the implementation of Article 70.8 and 70.9.
30. The representative of the European Communities welcomed the statements made and said that
his delegation was looking forward to the responses to the questions posed by the United States.
31. The representative of Venezuela said that his delegation could not, at the moment, agree to a
systematic review of the implementation of Article 70.8 and 70.9.  Support for his statement was
expressed by the representatives of India and the Philippines .
32. The representative of Egypt said that, in the view of his delegation, agreement had been
reached earlier this year that there would not be a systematic review but that any Member could ask
any other Member how it was applying Article 70.8 and 70.9.
33. The Chairperson concluded that there was a difference of view among Members and
suggested that the matter be dealt with in inform al consultations so as to try to reach a common
understanding.
34. The Council took note of the statements made and agreed  to proceed as suggested by the
Chair.IP/C/M/21
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E. I MPLEMENTATION OF ARTICLE 66.2
35. The Chairperson recalled that the provisions of Article 66.2 required developed country
Members to provide incentives to enterprises and institutions in their territories for the purpose of
promoting and encouraging technology transfer to least developed country Members in order to
enable them to create a sound and viable technological base.
36. The representative of Haiti expressed the hope of his delegation that, given the provisions of
Article 66.2, developed country Members, and above all Haiti's main bilateral partners, would give
more incentives to enterprises and institutions in their territories so that these would indeed be
encouraged to transfer technology to Haiti and help it build a sound and viable technological base.  He
requested information on action taken under Article 66.2, in particular access to any list of incentives
which might be drawn up.
37. The representatives of Venezuela, Morocco , Pakistan  and the Philippines  supported the
request from Haiti.  The representative of Venezuela said that it was the moral responsibility of all
developed and developing countries to help and assist all least developed countries.  The
representative of Morocco suggested that the Secretariat consider drawing up a questionnaire to obtain
a fuller picture as to how developed country Members were implementing Article 66.2.  He alsoproposed that this Article be expanded to include all developing country Members.  Therepresentative of Pakistan pointed out that the specif ic requirement was to have information as to how
the provisions of Article 66.2 had already been implemented.  Information regarding what incentives
had been provided and who had provided the incentives would be useful for discussing the measures
required for full implementation of the provisions.
38. The representative of the European Communities said his delegation was ready to discuss
how the information in question could best be provided.
39. The representative of Switzerland underlined the importance her delegation attached to
technical cooperation.  While transfer of technology could not be compulsory, there was a wide range
of projects in Switzerland, such as partnership funds, to encourage investments in developing
countries and economies in transition.  Recently, Switzerland had initiated a project to establish afinancial enterprise for development, the main ai m of which was to encourage joint ventures between
small and medium-size enterprises in Switzerland and those in developing countries.  Fifty-one per
cent of the capital for the financial enterprise which was being set up would be provided by the
private sector and 49 per cent by the public or state sector.  This enterprise would be assisting in the
transfer of technology and was an example of an incentive-type measure which Switzerland
considered to fall within the terms of Article 66.2.  Therefore, in the view of her delegation,
Switzerland was already implementing Article 66.2.
40. The representative of the United States said that his delegation was perfectly willing to
provide information as to how the United States had addressed the requirements of Article 66.2 and
would respond to any question directed towards it on the implementation of Article 66.2 in the same
way as it would expect other Members to respond to questions addressed to them, for example in
relation to Article 70.8 and 70.9.
41. The representative of the Philippines said that, in the view of his delegation, the
implementation of Article 70.8 and 70.9 should not necessarily be monitored in the same way as the
implementation of Article 66.2.  Obligations under Article 70.8 and 70.9 applied to a small group of
Members, namely only those yet to provide for product patent protection of pharmaceutical and
agricultural chemical inventions.  Monitoring the implementation of these obligations, which inpractice only concerned developing and least developed countries, did not require a systematic
review, but could be left to interested Members posing questions to the Members concerned on the
floor of the Council, as they deemed appropriate.  However, Article 66.2 imposed an obligation on allIP/C/M/21
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developed country Members, which made a syst ematic review the more appropriate way of
monitoring.
42. A discussion of how information on the implementation of Article 66.2 might be provided
ensued.  In this discussion, some delegations made a link with the provision of information on the
implementation of Article70.8 and 70.9, while some others said that such a link was not appropriate.In the light of the discussion and some consultations, the Chairperson proposed that the question put
by the delegation of Haiti be circulated in an informal document of the TRIPS Council to allMembers
4 and that developed country Members be invited to supply information in response to this
question.  He appealed to Members to take the necessary action to ensure that all notifications and
information provided in the Council were as complete as possible, in this case as well as in all others.
43. The Council agreed to proceed as proposed by the Chairperson.
F. T ECHNICAL COOPERATION
(i) Contact points for technical cooperation
44. The Chairperson informed the Council that, since the previous meeting, France had notified
its contact points for technical cooperation purposes relating to the TRIPS Agreement and updated
information had been received from the European Communities concerning its contact point.  These
notifications had been made available in the IP/N/7/- series of documents.
(ii) Updated information on technical cooperation activities
45. The Chairperson informed the Council that no tifications of updated information on technical
and financial cooperation activities had been received from the United States and the World
Intellectual Property Organization.  These notifications could be found in documents
IP/C/W/109/Add.5 and IP/C/W/108/Add.5 respectively.   During the year, updated information on
technical and financial cooperation activities had been received from 15 Members and, when
information provided in previous years was taken into account, the Council had received information
altogether from 18 different Members.  There were still some developed country Members that had
not provided information on their technical and financial cooperation activities.  The Chairperson
urged those Members that had not yet provided updated information on their activities, and inparticular those Members that had not provided information during the previous years either, to do so
at the earliest possible opportunity.  The Secretariat would contact those Members that had not yet
provided such information.
46. The representative of the European Commun ities informed the Council that the European
Communities and their member States were assisting a number of developing and least developed
Members in improving their systems for intellectual property protection.  Technical assistance was
also being provided to a number of acceding countries like those of the Commonwealth ofIndependent States, China and Vietnam for the adaptation of their legal frameworks to the TRIPS
Agreement.  A programme for the modernization of intellectual and industrial property was being
held for the Central and Eastern European countrie s, known as the PHARE countries, consisting of
two separate technical assistance programmes called the Regional Industrial Property Program and the
Horizontal Program on Intellectual Property.  A programme was conducted, for the first time, for theASEAN countries to provide technical assistance for strengthening and developing their intellectual
property right systems between October 1993 and J une 1997.  A second cooperation programme with
the ASEAN countries was under preparation.  An industrial property programme was undertaken with
Macau from 1995 to 1997 and further technical assistance programmes were currently in preparation
with Bangladesh, India, Pakistan and Sri Lanka.  In addition to the technical assistance programmes
                                                     
4 The question from Haiti has been circulated in informal document No.7093 of 23 December 1998.IP/C/M/21
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run by the European Communities, member States also ran their own programmes.  Information on
such programmes from Austria, Finland, France, Germany, the Netherlands, Spain, Sweden and the
United Kingdom had already been provided to the WTO.
47. The representative of Japan reported to the Council about the WIPO Asian Forum organized
jointly by WIPO and Japan, in Tokyo from 5 to 7 October 1998.  Commissioners responsible for the
protection of intellectual property from 23 Asian countries had participated in and discussed Asian
intellectual property perspectives.  The forum had issued a joint statement at the end, highlighting the
importance of the implementation of the TRIPS Ag reement within the available time-limit, taking
appropriate measures for the enforcement of intellectual property rights and making efforts for
acceding to international treaties on the protection of intellectual property.
48. The Council took note of the statements made.
(iii) Follow-up to the Joint Initiative of the WTO and WIPO Secretariats
49. In response to a request from the representative of the European Communities, the
representative of the Secretariat said that, since the Council's last meeting, about 30 Members had
expressed an interest in the Joint Initiative, including two Members who were yet to finalize thedetails of the assistance they needed.  These Members had approached WIPO or the WTO or, in many
cases, both.  The WTO Secretariat was working out with WIPO ways of responding to the requests forassistance received.  There had also been several joint meetings of the WTO and WIPO Secretariats
with delegations concerned.
50. The representative of Guatemala informed Members that her country had presented a detailed
request for technical assistance in the contex t of the WIPO-WTO Joint Initiative on Technical
Cooperation, and attached to it a work programme which contained various points ranging from thetraining of judges, magistrates, public prosecutors and lawyers to a request for assistance with the
drafting of legislation that Guatemala had to enact to comply with its obligations under the TRIPS
Agreement.  Her delegation had already held a meeting with the Secretariats of WIPO and the WTO
about the type of assistance that could be provided to contribute to the efforts that Guatemala was
undertaking to fulfil precisely in the time permitted the obligations which derived from the TRIPSAgreement.
51. The representative of the European Communitie s suggested that the Secretariat report on a
regular basis concerning the progress made in the implementation of the Joint Initiative.
52. The Chairperson proposed that the Council take note of the statements made and agree to
proceed as suggested by the representative of the European Communities.
53. The Council so agreed.
G. R EVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL
INDICATIONS UNDER ARTICLE 24.2
54. The Chairperson recalled that, at its meeting of 12 May 1998, the Council had taken note of a
Checklist of Questions and invited those Members already under an obligation to apply the provisions
of the Section on Geographical Indications to provide their responses by 16 November 1998, while
other Members could furnish replies on a voluntary basis.  This action had been taken by the Councilon the understanding that both the questionnaire itself and the responses to it would be without
prejudice to the rights and obligations of Members.  Responding Members would be free to group
their responses to questions as they found appropriate in the context of their national systems.  This
Checklist was available in document IP/C/13.  At its meeting of 16 July 1998, the Council had taken
note of four additional questions and agreed that these questions be included in the Checklist.  TheIP/C/M/21
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additional questions were available in document IP/C/13/Add.1.  The Secretariat had received
responses to the Checklist from, in chronological order, the Czech Republic, Japan, Bulgaria, the
United States, Turkey, Canada, the Slovak Re public, Norway, Hungary, Ecuador, the European
Communities and several of their member States, Liechtenstein and New Zealand.  Advance copies of
these responses were available at the present meeting and would be circulated as documentsIP/C/W/117 and addenda in due course.
55. The representative of Australia said that her delegation was in the final stages of the
preparation of comprehensive answers to the Ch ecklist and would be forwarding them as soon as
possible.
56. The representative of Mexico said that her delegation looked forward to receiving detailed
replies from Members, which would need to be analysed in the context of Article 23.4 as well.
Mexico would provide its replies soon, on a voluntary basis.
57. In response to a question from the delegation of Brazil, the Chairperson said that, since
developing country Members could provide answers to the Checklist on a voluntary basis, answers to
some of the questions or partial answers would be acceptable.
58. The representative of the European Communities noted that an important number of Members
had responded to the Checklist and said that his delegation had started to analyse the responses.  He
agreed with the views of the representative of Mexico that the responses provided would also be
useful for the future work to be carried out under Article 23.4.  In order to enable progress to be made
in the discussions on the implementation of Article 23.4, he suggested that the Secretariat draft a
synopsis of the responses received.
59. The representative of Australia wondered what kind of synopsis the European Communities
was envisaging.  The purpose of the Checklist had been to obtain information on the range of different
approaches by Members in implementing their obligations under the Section on geographical
indications and she therefore found it difficult to envisage what kind of a synopsis would be possible
and helpful.
60. The representative of the European Communities said that his delegation was thinking of an
overview with a short summary of the responses provided by Members to the Checklist.
61. The representative of Turkey said that her delegation had already provided responses to the
Checklist but would provide more comprehensive responses shortly.  She said that Turkey's
geographical signs protection system was fully compatible with the relevant Section of the TRIPS
Agreement.  The Decree Law No. 555 pertaining to the Protection of Geographical Signs had entered
into force on 27 June 1995 and intended to establish a functional system which met the demands and
realities of Turkey, compatible with the TRIPS Agreement and, because of the customs union it hadentered into with the European Union, with European Communities Directives and Regulations.  It
included the following provisions:  protection of designations of origin and geographical indications;
publication of the applications;  opposition by all interested parties;  inspection (control) mechanisms
for the production of the related goods;  relationship with trademarks;  compensation for damages;
and the establishment of special courts.  The protection of geographical signs under this law aimed toprotect natural, agricultural, mining and industrial products and handicrafts under geographical signs,
when they were in conformity with the definition of a designation of origin or a geographical
indication.  Protection provided by the Decree Law was effective on registration.  She emphasized, as
her delegation had done in its non-paper circulated to Members in informal document No. 1076/Rev.1
of 30 March 1998, the importance of the extension of the additional protection which was availablefor geographical indications for wines and spirits to all other goods such as natural, agricultural,
mining and industrial products and handicrafts.  Fu rthermore, she hoped that very soon an exercise
could be initiated to extend the negotiating mandate on a multilateral register to include all sorts ofIP/C/M/21
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goods capable of being identified by their geographical origin as this was important for the
development of local producers and industries.
62. The representative of Canada indicated that his delegation would need some time to analyse
the answers to the Checklist that had been received before requesting the Secretariat to carry out
further work.  It wished to analyse itself first what the appropriate next step should be.
63. The representative of Morocco said that his delegation was not clear as to the purpose of the
suggested synopsis.  There was a risk that the responses received might be generalized and that such a
synopsis would give a wrong picture of i ndividual domestic systems of Members.
64. The representative of the United States said that his delegation would also prefer to have time
to analyse the responses itself first.  However, given the volume of information provided and the
complexities involved in the various protection systems among Members, he thought that Members
could benefit from some assistance from the Secretariat.  He suggested that the Secretariat prepare aproposal as to how the information made available could be arranged for easier understanding by
Members, and that the Council consider that proposal at its next meeting.
65. The representative of Hungary shared the views of the European Communities and the United
States, in particular in relation to the work under Article 23.4, and said that a synopsis or summary
would be of benefit, particularly for small delegations.
66. The representative of Morocco said that some Members might still be preparing responses.
He further sought time to study the information received to see whether the questions had been
comprehensively answered.
67. The Chairperson proposed that the Council take note of the statements made and revert to the
matter at its next meeting.
68. The Council so agreed.
H. I MPLEMENTATION OF ARTICLE 23.4
69. The Chairperson recalled that the discussion on this matter, after the information-gathering
exercise in 1997, had focused on the question of what the next step should be for carrying forward
work concerning negotiations for the establishment of an international system for the notification andregistration of geographical indications under Article 23.4.  A proposal for a multilateral register of
geographical indications for wines and spirits under Article 23.4 from the European Communities and
their member States (circulated as document IP/C/W/107) had been commented upon by many
delegations at the last meeting.
70. The representative of the European Communitie s, referring to the extensive comments and
questions raised at the meeting of the TRIPS Council in September 1998 by Members on its proposal
of the European Communities and their member States for a multilateral register of geographicalindications for wines and spirits (document IP/C/W/107), wished to clarify what he believed were
some important aspects of such a register.  Regarding the scope of the register, he said that
Article 23.4 clearly referred to wines only.  However, Ministers at the Ministerial Meeting in
Singapore in 1996 had taken a clear decision in favour of the inclusion of spirits. They had endorsed
the TRIPS Council's report (1996)  as contained in  document IP/C/8 which, in paragraph 34, said
"[…] in regard to geographical indications […] the Council will initiate […] preliminary work on
issues relevant to the negotiations specified in Article 23.4 of the TRIPS Agreement […] for wines.
Issues relevant to a notification and registration system for spirits will be part of this preliminary
work.  All of the [..] work would be conducted w ithout prejudice to the rights and obligations of
Members under the TRIPS Agreement […]." Ministers had not distinguished between wines andIP/C/M/21
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spirits in relation to the work to be carried out, despite the fact that Ministers had the competence to
take such a decision.  Against this background, spirits had to be included in the Council's work.  Any
other course of action would be in open contradiction of the decision by the Ministerial Conference.
With respect to the inclusion of "other products" in a register, the TRIPS Agreement did not provide a
legal basis.  However, why should Members rule out possibilities already at this stage, which theymight appreciate at a later point in time?  There was no need to take a decision on this issue now.
71. He reiterated that his delegation's proposal was not intended to change the level of protection
under the obligations of the TRIPS Agreement.  However, at the last meeting of the TRIPS Council,
several Members had questioned whether the proposal correctly reflected the TRIPS Agreement – in
particular, Article 23.3 (about homonymous geographical indications) and Article 24.5 (about the
prior use of a trademark) – by proposing that Members should undertake negotiations with respect to
these points.  Both provisions related to holders of a legitimate right.  His delegation believed thatconducting negotiations was the only possible way to ensure equitable treatment of the different
producers and to avoid consumers being misled.  Ho wever, this did not mean that the geographical
indications concerned should not be registered.  Article 24.1 explicitly referred to the possibility of
entering into negotiations and underlined that "the provisions of paragraphs 4 through 8 […] shall not
be used by a Member to refuse to conduct negotiations […]".
72. Coming to the voluntary character of the system  (IP/C/W/107, sub I.), he said that an ideal
system would require that all Members participate in it.  Nevertheless, it was his delegation's view
that it should be a voluntary system.  This position was supported by the wording of Article 23.4 of
the TRIPS Agreement, which said: "[…] negotiati ons shall be undertaken in the Council for TRIPS
concerning the establishment of a register of geographical indications […] eligible for protection inthose Members participating in the system". Another important question was whether or not such a
system, although based on voluntary participat ion, would be binding on all WTO Members once a
geographical indication had been   registered.  At first sight, the logical response to this question
seemed to be that a voluntary system could only  be binding on those Members participating in the
system.  However, this was not the solution the European Communities and their member Statesfavoured.  In his delegation’s view, all WTO Memb ers should be subject to such a register, for
reasons of transparency and efficiency.
73. To counterbalance this, it seemed only fair that all WTO Members might raise objections
against an application for registration of a geographical indication, as described in the proposal
(IP/C/W/107, sub III.).  Such an approach would lead to further transparency and clarity of a
registration system.  In regard to the question of how the "opposition procedure" (IP/C/W/107, sub III.
and V.) and its legal effects related to the voluntary character as just described, he recalled that, at thelast meeting of the TRIPS Council, several references had been made to Section V.3 of the proposal,
which outlined that the refusal of a registration would only benefit a Member which had opposed the
registration and would not be valid vis-à-vis  all WTO Members.  On this matter, he wished to state,
first, that the "opposition procedure" – and the proposed register as such – was neither designed nor
meant to create conflicts.  On the contrary, it should avoid potential conflicts, by providingtransparency with regard to the situation of the original applicants and opponents.  Secondly, his
delegation expected that the number of WTO Members concerned with a specific problem in relation
to a geographical indication would, most likely, be limited.  Indeed, in practice only a limited number
of countries generally had a real interest in a specific geographical indication.  Having said this, he
felt that it might be useful to make the effects of an opposition procedure dependent on the type ofreasons on which the opposition was based.  In this respect, he wished to develop further the
intervention made at the last meeting by his delegation concerning Member-specific exceptions to the
protection of a geographical indication.  He pointe d out that in the proposal (IP/C/W/107, sub III.),
four reasons had been listed on which an opposition could be based:  (1)  the question of whether a
geographical indication fulfilled the definition, as contained in Article 22.1 of the TRIPS Agreement;(2) the question of whether it was still protected in the country of origin (Article 24.9 of the TRIPS
Agreement); (3) the decision of whether a geographical indication had become generic;  and (4) in theIP/C/M/21
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case of Article 22.4 of the TRIPS Agreement, i.e. protection against a geographical indication which,
although literally true as to the territory, region or locality in which the goods originated, falsely
represented to the public that the goods originated in  another territory. The first two reasons seemed to
be of a more general interest, while the last two reasons were of a more Member-specific interest.  It
was unlikely that many WTO Members would be concerned when it came to these latter two reasons.In this context, he added that it might be useful to discuss further reasons for objections – as had been
suggested at the last meeting of the TRIPS Council.   He suggested that an additional reason could be
"fraud" when applying for the registration of a geographical indication.
74. Coming to the elements of proof,  i.e. to the question of what kind of proof would be
appropriate, he said that Members should not limit themselves as to what should be recognized as
acceptable proof, in order to take into account the different legal systems in WTO Members.  It could
be the relevant legislation, as suggested in his delegation’s proposal (IP/C/W/107, sub I.), but couldalso be national certificates of registration, information on the original characteristics of the product,
statistics of production, national regulations on the quality applicable to the product and the existence
of producers' associations.  Certainly, elements of proof should fully support an application for
registration and, when objections to a registration were being raised, they should fully support the
objections.
75. As regards geographical indications protected under regional or multilateral agreements, he
reiterated his delegation's suggestion that the WTO Secretariat should be supplied with the agreements
themselves and a list of geographical indications registered under those agreements.  This proposal
had been made in the interest of achieving maximum transparency.  It did not mean that a different
group of geographical indications would be created to which different general rules (e.g. onsubmission of proof) would apply.
76. Regarding the relationship between the "opposition procedure" and dispute settlement,
another important question was who should decide about a registration and an opposition and how this
would relate to possible dispute settlement, if at all.  His delegation’s proposal stated that an
appropriate mechanism would have to be devised to  cope with "objection cases" in order to settle
cases of (potential) disputes.  The European Communities and their member States believed that the
needs of WTO Members with respect to potential disputes and the characteristics of such a
mechanism would become clearer once the discussion  had advanced further on other aspects of the
register.  Recalling that, at the last meeting of the TRIPS Council, several delegations had raised the
question of possible costs of a register, he said that one could only have a clear idea of the costs
involved once one knew how the register would operate.  However, he did not believe that the costs
would go beyond the "normal";  Members should avoid setting up an expensive system, be it money-wise or in terms of manpower.
77. Finally, on the relationship between the register and national competences (e.g. the role of
domestic authorities), he underlined that it was not his delegation’s intention that national systems be
replaced.  His delegation understood Article 23.4 as a transparency exercise with the important
objective of creating more clarity and legal certainty in the area of geographical indications for winesand spirits.  This also meant that national authorities would continue to decide on the acceptance,
maintenance and protection of a geographical indication in accordance with the national rules and in
compliance with the TRIPS Agreement and that a geographical indication, once registered on the
multilateral register, should be enforced pursuant to the domestic rules.
78. The representative of the Czech Republic said that the European Communities proposal
offered an opportunity to move forward to a st age for more concrete preparatory work for the
establishment of a multilateral system of notification and registration of geographical indications for
wines eligible for protection in those Members participating in the system, as stated in Article 23.4 of
the TRIPS Agreement.  Questions regarding the proposal at this stage were understandable and many
of these could, perhaps, be satisfactorily answered only when a conclusion had been reached on theIP/C/M/21
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systemic or basic point as to what kind of a multilateral system of notification or registration was to
be developed.  Recognizing the built-in flexibilities in the proposal which left options open as to how
to progress on the work, he thanked the representative of the European Communities for the
clarifications provided in his statement.  Regarding the level of protection, he expressed the opinion
that higher levels of protection or additional protection as well as a requirement for notification asenvisaged under the provisions of Article 23 called for a fully fledged system and as such he
supported a more complex and legally ambitious multilateral system as set out in the European
Communities proposal.  His delegation was pleased that the proposal took into account the legitimate
interests expressed by some Members and referred to the possibility of launching complementary
discussions with the objective of extending the multilateral register's coverage to other goods, in
stages, once the multilateral system for wines was in place.  In this context, he wished to remind
Members that inputs from delegations on the issue of scope had been invited in paragraph 34 of theReport (1996) of the Council for TRIPS, which fo rmed part of the section dealing with issues,
problems and recommendations to be brought to the attention of Ministers in Singapore.  His
delegation had reacted positively to this invitation and presented a detailed written submission on the
issue of the narrow scope of Article 23 and the need to expand its scope to cover goods other than
wines and spirits.  Since certain delegations had questioned, at the last meeting, the existing legalbasis for negotiations concerning geographical indications for other goods, he reiterated that, in his
delegation's opinion, Articles 22, 23 and 24 of the TRIPS Agreement provided an integrated
framework for further negotiations aimed at increasing the protection of geographical indications.
The first sentence of Article 24.1 provided the method for increasing the protection of individual
geographical indications, while the method of providing such additional protection was specified inArticle 23.4 by mandating negotiations in the Council.  Further, under the provisions of Article 24.1,
the holding of such negotiations could not be refused and the provisions of Article 24 were of general
application to all goods and not only to wines and spirits.  Therefore, he agreed with the opinion
expressed that inclusion, in the future, of the legitimate interests of other Members to enlarge the
product coverage should not be ruled out.
79. The representative of Iceland expressed support for the European Communities proposal.
However, the concepts involved needed more examination and study, such as the proposals regarding
dispute settlement and arbitration.  While Iceland had no problems with wines and spirits, the fish
producers in Iceland had faced a number of problems where their competitors were selling products in
certain markets as Icelandic products which affected the competitiveness and reputation of Icelandic
products as high-quality goods.  If an exercise of the kind proposed by the European Communities for
wines and spirits proved to be successful in better identifying and protecting the origin of the goods inquestion, Iceland was interested in seeing that this kind of protection was also made available to other
kinds of goods, including fish.
80. The representative of the United States said that, in the perspective of his delegation, the
purpose of the exercise regarding the multilateral system for notification and registration under
Article  23.4 was to facilitate protection.  Any system that might be developed should meet severalcriteria: it should not establish any new obligations or diminish the rights and obligations contained in
Section 3 of Part II of the TRIPS Agreement; any system for notification and registration should
accommodate the various systems for protection of geographical indications existing in all WTO
Members' legal regimes;  and such a system should not impose burdens on the WTO Secretariat.
Likewise, participation in the system by Members should be voluntary and not be burdensome.  His
delegation believed that any system of notification or registration should involve the voluntary
submission of information to the Secretariat and that such information should be made available for
Members' use.  The information contained in the responses to the Article 24.2 Checklist would of
course help Members to ensure that any system that might be established would not require Members
to alter their current legislation and practice.  In order to participate in the system or use theinformation, it was his delegation's intention to review the responses to the Article 24.2 Checklist, and
the information contained in those responses, to develop its own proposal, which it hoped to introduceIP/C/M/21
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at the Council's meeting in February 1999. The proposal would be consistent with the criteria
mentioned and in keeping with the purpose stated in Article 23.4.
81. The representative of Argentina said that, firstly, the Report (1996) of the TRIPS Council
approved by the Ministerial Conference in Singapore indicated that a system of notification and
registration of spirits would form part of the pre liminary work of the Council for the establishment of
a multilateral system of notification and registration under Article 23.4.  Her delegation therefore
considered that spirits should be included in th e “preliminary work” of the Council, but they did not
seem to fall within the scope of “negotiations” which under Article 23.4 were envisaged only for
wines.  As a result, her delegation believed that all references to spirits should be understood as
relating to work with a preliminary character without the inference that they related to the negotiations
as such.  Secondly, her delegation believed that it was clear from an analysis of the last part of
Article 23.4, where it referred to "those Members participating in the system", that registration shouldbe of a voluntary nature.  Registration was only to be an instrument for transparency and to facilitate
compliance with obligations already in force under the Agreement.  If new obligations and burdens
were introduced, there was a risk that many Members would refuse to participate in the system,
thereby removing its usefulness.  As regards the European Communities proposal, she said that,
despite the fact that the European Communities had said it would not impose on Members any newobligations, the second point of the first paragraph of section I entailed the creation of a new
obligation in its reference to elements of proof and appeared to aim at creating a special dispute
settlement mechanism for Members participating in  the register.  Section IV exceeded what was
provided for in Article 23.3 in terms of introducing negotiations on aspects not envisaged in these
provisions.  The first paragraph of section V, which stated that the geographical indications would beprotected for "an indefinite period", was in contradiction to Article 24.9 and the last sentence of this
paragraph seemed redundant when compared to the text of the TRIPS Agreement.  Her delegation had
no problem with the third paragraph of section V, in light of the principles expressed at the last
meeting by the representative of the European Communities, in which context he had referred to
"exceptions in the Agreement which were Member-specific".  Nonetheless, in order to ensureequitable treatment, the possibility should be considered that those Members who had not opposed a
registration could revise this in the light of new factors which emerged subsequently.  There should
also be a possibility for the register to remain open to the inclusion of new geographical indications as
provided in Part VII.  If not, the register would "freeze" the current situation, making difficult the use
of geographical indications in those Members in which use was still incipient.
82. The representative of Australia said that her delegation was in favour of the transparency and
efficiency a register would bring and was happy to look at constructive ways to meet the obligations
under Article 23.4.  She wished to follow up on some of the comments made at the present meeting.
On the issue of scope, while noting the point made by the representative of the Czech Republic
regarding the provisions of Articles 22, 23 and 24, she stressed that these provisions also contained a
number of caveats and standards which also needed to be taken into account.  Members should not be
misled that TRIPS obligations were about to ch ange and engage in too much speculation about
anything that was not in the TRIPS Agreement.  In discussing how to meet the obligations, the
Council should not address matters that were not obligations.  A related question was whether the
negotiations under Article 23.4 envisaged the renegotiation of other existing rights that were provided
for in Article 24.  In her delegation's view, this would go beyond the normal understanding of
Section 3.  A similar point could also be made about the voluntary nature.  Her delegation was notconvinced that the opportunity to object to specific geographical indications was really a substitute for
a truly voluntary system. She reiterated her delega tion's comments at the previous meeting concerning
oppositions, in particular those concerning whether an opponent had to establish a prima facie  case or
not, and what would happen in the interim.  Her delegation was also concerned about the labour-
intensive nature of the system as any register would have to be enforced through domestic procedures.Every Member would have an interest in watching which terms were registered and she was not
persuaded that the fact that the register would on ly apply to certain Members would diminish the need
for all to regularly check its contents.  Her delegation would wish to ensure that any system of proofIP/C/M/21
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set up for the register would not favour one particular model, system or approach, given that Members
took a range of approaches to the protection of geographical indications.  As regards the issues of
disputes and costs, the system would not be cheap if  this would only transfer all the costs to national
authorities.  The question of how any disputes arising from oppositions would be resolved was a
fundamental issue and she looked forward to further discussions on this matter, which had been leftopen in the proposal of the European Communities.
83. The representative of Morocco said that the European Communities proposal could be the
basis for future work and indicated that his delegation would wish the coverage of the register to be
extended to other items, especially foodstuffs and artisan ware.
84. The representative of Mexico considered that the proposal was a useful basis for setting up a
multilateral register for wines and spirits as required under Article 23.4 and in accordance with the
mandate provided in the work programme for the Council endorsed by Ministers in Singapore in1996.  She said that the system to be set up should be designed so as to take into account the different
types of protection now provided by Members.  Her delegation was considering the submission of
some ideas to the Council concerning a notification and registration system, drawing on the
experience of Mexico.
85. The representative of Japan expressed support for the views of the United States and
Australia.  In the view of his delegation, renegotiation issues and the characteristics of the system for
the protection of geographical indications in the European Communities proposal should not result in
too much burden either on the WTO Secretariat or Members.
86. The representative of Chile reiterated his delegation's view that, since Article 23.4 referred
exclusively to wines, the Council had, in its Report (1996), which had been sent to the Ministerial
Conference in Singapore, made a clear distinction with regard to the work required under Article 23.4
in relation to wines and that to be initiated in rela tion to spirits, which would be only preliminary. The
negotiations to be undertaken under Article 23.4 should not include spirits.  This should not be taken
to mean that Chile was opposed to the inclusion of other products in a registration system to be set up
under Article 23.4, only that such inclusion should be the result of the same negotiating route as hadled to the inclusion of a provision in the TRIPS Agreement requiring negotiations for a registration
system for geographical indications for wines.
87. The representative of India said that his delegation was still scrutinizing the European
Communities proposal.  A number of ideas that had emerged in the discussion, such as transparency,
voluntary participation, no new obligations and no extra burden on domestic systems, were attractive
and should govern any new system.  As regards the issue of scope, divergent views expressed by
Members necessitated a closer look at the Singapore Ministerial Declaration before coming to aconclusion as to the coverage of the work in this area.  India had a strong interest in extending the
additional protection to other products than wines and spirits.
88. The representative of Canada expressed support for the points raised by the United States,
Australia and Japan.  His delegation was still scrutinizing the replies to the Article 24.2 Checklist,
which were also important for deciding on the appropriate next step in the context of Article 23.4.
89. The representative of Venezuela said that the preliminary work in relation to spirits could
very well be carried out in parallel with the negotiations in relation to wines.  In future, inclusion of
additional products, such as crafts and industrial products, would be acceptable to his delegation.
Regarding the characteristics of the register, he underlined the importance of determining the effect
of registration or opposition vis-à-vis  third parties and any retroactive application thereof.  In regard to
existing or regional agreements, he mentioned that further examination was needed as well.IP/C/M/21
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90. The representative of Cuba expressed the hope that the product coverage of the notification
register would be extended to, in particular, agricultural products.
91. The representative of Hong Kong, China ag reed with the observation made by the
representative of Chile on the issue of scope. Article 23.4 of the TRIPS Agreement referred only to
wines, which meant that wines and spirits should be dealt with on two separate tracks and notnecessarily in parallel.  Guidelines or directives agreed by the Ministerial Conference could not
change that.  In respect of wine, there was a legal obligation under Article 23.4 to create a rule-based
system with rights and obligations, whereas any further work on spirits must proceed on a slower
track.  Proposals made by some Members to include other products, like fisheries, agricultural
products, artisan ware, industrial products and so on, were not consistent with the suggested criteria
that the system should not be burdensome and not be in conflict with existing national systems.  He
said that there was no legal basis whatsoever under the TRIPS Agreement for any further work onproducts other than wine, and that even work on spirits had no legal basis, either in Article 23.4,
which only referred to wine, or in Article 24.1, which referred back to Article 23.  Nowhere in Section
3 of the TRIPS Agreement did any requirement exist for any work on any product other than wine.
Hong Kong, China, like other developing Members, was preparing implementation of the TRIPS
Agreement in the year 2000 and was anxious about engaging in additional negotiations and additionalobligations beyond the requirements of the Agreement.  Due care should be taken that the level of
protection would not be changed and that there would be no change in obligations under the
Agreement.  He drew attention to the possible implications for dispute settlement.  The European
Communities had emphasized the voluntary nature of the system, but this was already stipulated in
Article 23.4 itself.  However, it left open the questi on of how any system that would be set up would
apply to Members not participating in the system.  He believed that the wording in paragraph V.1 of
the European Communities proposal in this regard was not clear.
92. The representative of New Zealand said that his delegation had taken full note of the issues
raised and suggestions made and would be looking forward to additional papers and further
discussions.
93. The representative of Turkey said that the European Communities proposal was a good basis
for establishing the multilateral register system and reiterated his delegation's interest in extending the
scope of the register to products other than wines and spirits.
94. The representative of Korea agreed with the views expressed by the United States;  Hong
Kong, China;  and Japan.  Article 23.4 was limited to wines only.  Furthermore, a basic question in
relation to the area of geographical indications concerned the nature of the protection, in particular
what was the essential element to be protected.  His delegation would study the EuropeanCommunities proposal and any others which might be submitted.
95. The representative of Nigeria considered the approach taken by Hong Kong, China rather
legalistic.  His delegation saw the European Communities proposal also as a political paper and took
the view that, in case the work under Article 23.4 was being expanded to include spirits, other
products, such as agricultural products and fisheries, could not be kept out for the reason thatArticle 23.4 did not provide a legal basis for them to be included in the work either.
96. The representative of India, also commenting on the remarks made by the representative of
Hong Kong, China, said that there would seem to be a need to examine the legal value of the
Singapore Ministerial Declaration vis-à-vis  the text of the TRIPS Agreement itself.  Regarding the
point made by Hong Kong, China that there was no legal basis in the TRIPS Agreement forconsidering the extension of additional protection for geographical indications to other products, he
quoted from Article 24.2, which said that "The Council for TRIPS shall keep under review the
application of the provisions of this Section …".  As  part of the review, it was not conceivable that the
Council could come to a conclusion on the basis of consensus.IP/C/M/21
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97. The representative of Mexico, referring specifically to the view expressed by Hong Kong,
China that there was only a legal basis in the Agreement for work in relation to geographical
indications for wines, said that Article 24.1 referred to Article 23 and the subheading for Article 23
was "Additional Protection for Geographical Indications for Wines and Spirits".  Consequently, the
provisions of Article 24.1 clearly applied also to spirits.
98. The representative of the Philippines said that  Members had the right to propose the inclusion
of other products in the registration system to be negotiated under Article 23.4.  However, such
proposals should not prevent progress in the negotiations that were required to be held, in good faith,
under that provision in relation to geographical indications for wines and possibly spirits.
99. The representative of Brazil said that his delegation was still scrutinizing the matter.  The
questions raised by the representative of Venezuela regarding the definition of protection whether
protection worked erga omnes  and concerning any retroactive application of protection were very
important and needed to be examined carefully.
100. The representative of Sri Lanka said that Section 3 of the TRIPS Agreement started with
Article 22 and this Article referred to "goods" and not just wines and spirits.  As such, the product
coverage of the Section could not be restricted only to wines and spirits.
101. The Chairperson proposed that the Council take note of the statements made and revert to the
matter in its next meeting.  With a view to organizing its discussion at its next meeting, he proposed
that the Chair might come forward with suggestions  for a more structured approach to the issues
under debate. In this context, the responses to the Checklist on Article 24.2 which had been received
from more than 20 Members, and other proposals made, could also be taken into account.
102. The Council so agreed.
- Question from Brazil to the European Communities
103. The Chairperson recalled that, at the meeting in May, the delegation of Brazil had addressed a
question to the European Communities relating to the protection of geographical indications.  He
informed the Council that the answer from the European Communities to this question had been
circulated in document IP/C/W/114.
I. T RADE FACILITATION
104. The Chairperson recalled that this matter was on the agenda of the Council for Trade in
Goods as a result of a decision at the Singapore Ministerial Conference and that the Council for
TRIPS had agreed to consider this issue following a letter, dated 1 September 1998, received from the
Chairman of the Council for Trade in Goods.  The letter requested the Council for TRIPS to address
those aspects of trade facilitation which the Council for TRIPS regarded as being related to the TRIPS
Agreement and to convey the results of its discussions on the issue by March 1999.  In theconsideration of trade facilitation in the Council for Trade in Goods context, reference had been made
to the provisions on border enforcement in the TR IPS Agreement.  In the light of the informal
consultations he had held on this matter, the Chairperson proposed that the Council request the
Secretariat to prepare a short background note on the relationship between the TRIPS Agreement and
trade facilitation.  The Council would revert to th is matter at its next meeting, with a view to
concluding its discussions at that meeting, so as to  be able to report to the Council for Trade in Goods
in March 1999.
105. The Council so agreed.IP/C/M/21
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J. E LECTRONIC COMMERCE
106. The Chairperson recalled that the General Council, at its meeting on 25 September 1998, had
established a Work Programme on Electronic Commerce for the relevant WTO bodies, namely the
Council for Trade in Services, the Council for Trade in Goods, the Council for TRIPS and the
Committee for Trade and Development.  In addition, the Work Programme provided that furtherissues could be taken up at the request of Memb ers by any of these bodies.  The General Council
would conduct an interim review of progress in  the implementation of the work programme by
31 March 1999.  The four WTO bodies in question should report or provide information to the
General Council by 30 July 1999.  The Work Programme provided that, in undertaking their work, the
bodies concerned should take into account the work of other intergovernmental organizations.
Consideration should also be given to possible ways of obtaining information from relevant non-
governmental organizations.  Paragraph 4.1 of  the Work Programme on Electronic Commerce
provided that the Council for TRIPS shall exam ine and report on the intellectual property issues
arising in connection with electronic commerce, including issues concerning the protection and
enforcement of copyright and related rights;  the protection and enforcement of trademarks;  and new
technologies and access to technology.  He had held informal consultations on how the TRIPS
Council should approach the issues referred to in  this paragraph of the Work Programme.  However,
before reporting on these consultations, he invited the representative of WIPO to provide information
regarding WIPO's programme of work in relation to electronic commerce.
107. The representative of WIPO thanked the WTO, on behalf of the Director General of WIPO,
for the opportunity given to explain what WIPO’s work programme was in the area of electronic
commerce and intellectual property.  He said that this work programme was very much in evolution,since the underlying developments concerning electronic commerce were both rapid and radical.
WIPO considered, at this stage, however, that electronic commerce was something that was affecting,
or would affect, every aspect of the protection and exploitation of intellectual property.  In assessing
the effects of electronic commerce, there were two broad developments which WIPO considered
needed to be taken into account.  These were very much connected, but were nevertheless separate.The first was the advent of digital technology and the second was global digital networks.  Certain
issues arising from the advent of digital technology raised discrete problems from those that arose out
of the use and exploitation of intellectual property on global digital networks.  For example, the issue
of reproduction of copyrighted works might require  attention in the context of CD-ROM products or
multimedia works without necessarily involving the additional complication of use or exploitation of
the works on the Internet.  Such problems as might exist as a result of digital technology were, of
course, compounded in the context of works exploited also on the Internet.  In general, there were twomain challenges for intellectual property that arose as a consequence of global electronic commerce.
They were the questions of enforcement  of intellectual property rights and jurisdiction .  Both
challenges resulted from the ease with which intellectual property might be copied and might circulate
on a global digital network.  They were also both challenges that arose from the impact of a global
medium without borders on a territorially based intellectual property system.  The approach that hadbeen established by the Director General of WI PO in order to deal with these two challenges
envisaged that there was no one easy and comprehensive solution to them.  Rather, the two challenges
of enforcement and jurisdiction would need to be tackled by a multiplicity of projects.  There were a
number of such projects under way at present within WIPO.  The first project concerned Internet
domain names, where WIPO was, with the approval of its members states, undertaking aninternational process to develop recommendations on certain questions relating to the protection of
intellectual property within the domain name system.  Those questions were:  (i) best practices for
domain name registrations, designed to reduce conflicts between trademarks and domain names;
(ii) uniform dispute resolution procedures;  (iii) a mechanism for the protection of famous and
well-known marks;  and (iv) an evaluation of the impact on intellectual property rights of adding newgeneric top-level domains.  The interim report of the WIPO process would be published by the end of
1998 and the final report at the end of March 1999.  The recommendations of the final report would
be submitted to the new corporation that had been established to manage the domain name system andIP/C/M/21
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would be reported to the member states of WIPO .  A second area of projects concerned copyright.
Here, the emphasis had been on the implementation of the two new treaties concluded in
December 1996, i.e. the WIPO Copyright Treaty and the WIPO Performances and Phonograms
Treaty.  There were also two parallel efforts to extend the principles established by those two treaties
to other categories, namely audiovisual works, where the discussions were well advanced, and therights of broadcasters, where the discussions were only just getting under way.  In the same general
area, work was also proceeding on examining the feasibility of a treaty for the protection of non-
copyrightable databases.  This project had been under discussion for some years, but progress on the
multilateral level was slow pending the resolution of some of the issues involved on the national level
in various countries.  In the area of trademarks, the use of trademarks on the Internet was under
consideration in the WIPO Standing Committee on Trademarks, Industrial Designs and Geographical
Indications.  As far as patents were concerned, a very specific question was under study, namely theeffect that publication on the Internet might have on the patentability criterion of novelty.  Finally,
there was a series of projects which were directed at exploiting the tools developed for electronic
commerce in the delivery of intellectual property services.  WIPO felt that it was more accurate to
characterize these projects as electronic administration , rather than electronic commerce , i.e. WIPO
considered that, while the on-line filing of patent or trademark applications or the on-line availabilityof patent databases were electronic activities, they were more properly questions of the administration
of intellectual property services than of commerce.  Nevertheless, it was the case that a number of
issues and tools arising in the context of electronic commerce, such as encryption and digital
signatures, did have an immediate application in the area of the electronic delivery of intellectual
property services. WIPO was studying these issues and tools within the context of the services that the
Organization rendered under the global protection systems that it administered (the Patent
Cooperation Treaty (PCT) and the Madrid System for the international registration of marks), as well
as in the context of the equivalent services that were delivered by national industrial property offices.
108. The Chairperson thanked the representative of WIPO for this useful information.  As regards
the informal consultations that he had held, he said that the discussions had focused on three main
questions:  first, what type of information the Council might wish to obtain as a basis for its work;
second, what should be the particular focus of work in the Council, taking into account the issues that
were already being addressed in other fora;  an d third, procedurally, how the Council should carry
forward the work on this matter.  In the light of the consultations held, he proposed that the Council
proceed as follows:
The Secretariat would be requested to prepare a factual background note examining the
provisions of the TRIPS Agreement relevant to paragraph 4.1 of the Work Programme onElectronic Commerce.  The note should also provide information on the relevant activities of
WIPO and other intergovernmental organizations.
The Council would revert to the matter at its next meeting, at which it should prepare a
progress report for the General Council.  The Chairperson would hold, before that time,
further informal consultations.  It would be open to Members to make contributions at anytime, and Members were urged to do so.
109. The Council took note of the statement made and agreed
 to proceed as proposed by the
Chairperson.
K. R EVIEW OF THE PROVISIONS OF ARTICLE 27.3( B)
110. The Chairperson recalled that the Council had agreed, at its previous meeting, to consider at
the present meeting how to take up the review of Article 27.3(b) that it was required to undertake in
1999, and that informal consultations would be held in advance in this regard. Reporting on these
informal consultations, he said that they had focu sed on two main issues, namely whether this review
process should be initiated in the same way as the Council had done in respect of other elements ofIP/C/M/21
Page 20
the built-in agenda, i.e. through an information-gather ing exercise, and if this were to be an acceptable
way of proceeding, whether the Council would need to draft some type of questionnaire or whether
Article 27.3(b) itself was already sufficiently clear on the sorts of information that would be relevant.
111. In the light of the informal consultations held, the Chairperson proposed that the Council
initiate this review process in the following way:
First, those Members that were already under an obligation to apply Article 27.3(b) would be
invited to provide information on how the matters addressed in this provision were presently
treated in their national law.  Other Members would be invited to provide such information on
a best endeavours basis.  The target date for the provision of this information would be
1 February 1999.
Second, while it would be left to each Member  to provide information as it would see fit,
having regard to the specific provisions of Article 27.3(b), the Secretariat would be requestedto provide an illustrative list of questions releva nt in this regard in order to assist Members to
prepare their contributions.
Third, the Secretariat would be requested to contact the FAO, the Secretariat for the
Convention on Biological Diversity and UPOV, to request factual information on their
activities of relevance.
It would be understood that this information-ga thering would be a first step in the review
process and without prejudice to the review process to be carried out.  Once this information
had been received, the Council might revert to the question of whether any further
information might be requested from the Secretariat.
112. The representative of India regretted that he did not have instructions to agree to the
Chairperson's proposal at the present meeting.  Normally, he would have requested the Chairperson to
conduct further informal consultations and to revert to the matter at a later stage but he realized that
this would unduly complicate matters.  He therefore requested more time for his delegation to
consider the Chairperson's proposal.
113. The representative of Mexico said that her delegation had a few suggestions for the
illustrative list concerning the review of Article 27.3(b) to be provided by the Secretariat.  Her
delegation would submit a non-paper on certain items that it would like to see included in the
illustrative list.5
114. The representative of Malaysia, speaking on behalf of the ASEAN group of countries, asked
the Chairperson to amend the third point of his proposal by replacing references to "information" with
"inputs" to clarify that the Secretariat might obtain information on the implications of Article 27.3(b)
from the other intergovernmental organizations mentioned.  The ASEAN countries could go alongwith the proposed information-gathering exercise, which could initially be limited to an exchange of
information about how Members were applying the provisions in question, but should be followed by
a review of the provisions of Article 27.3(b) themselves.  The purpose of the review was to see
whether the provisions could be kept as they currently read or needed to be amended, be it by
expanding the exceptions or by eliminating exceptions.  Therefore, it was important to haveinformation about the implications of the provisions of Article 27.3(b) in relation to, for example,
biological diversity, such as from the FAO, the Se cretariat of the Convention on Biological Diversity
and UPOV.
                                                     
5 Circulated as informal document No. 6954 of 8 December 1998.IP/C/M/21
Page 21
115. The representative of Morocco saw no problem with the proposed working procedure, but he
believed that the text should reflect that a number of delegations had underscored that the review was
not a review of the implementation of Article 27.3(b) but was a review of the provision itself.  He did
not wish to prejudge the outcome of the review but he did wonder what would be the legal status of
Article 27.3(b) if there were no consensus during the review.
116. The representative of India suggested that the last paragraph of the proposed text refer
specifically to the nature of the re view provided for in Article 27.3(b).
117. The Chairperson suggested that the last paragraph of the proposed text be replaced by the
following text:
It would be understood that this information- gathering would be without prejudice to the
nature of the review provided for in Article 27.3(b).  Once this information had been received,
the Council would revert to the question of whether any further information might berequested from the Secretariat.
118. The Council took note of the statements made and agreed
 to proceed as proposed by the
Chairperson, subject to a waiting reserve on the part of India that was lifted on 11 December 1998.
L. A RTICLE 64.3
119. The Chairperson recalled that, under this provision, the Council was required to examine the
scope and modalities for complaints of the type provided for under Article XXIII:1(b) and (c) of
GATT 1994 (so-called "non-violation" disputes) made pursuant to the TRIPS Agreement.  At the
previous meeting, the Council had requested the Secretariat to prepare a factual background note on
the experience with disputes so far under the TRIPS Agreement, including any references made to
non-violation issues, the negotiating history of para graphs 2 and 3 of Article 64, the experience with
non-violation complaints under the GATT/WTO, and any information available on the use of the non-
violation concept in disputes on intellectual property matters elsewhere.  Unfortunately, the
Secretariat had not been able to complete this work  in time for this meeting of the Council, but would
have the paper available in time for the Council's next meeting.
120. The representative of Korea said that, while awaiting the Secretariat's factual background
note, her delegation wished to express its initial views on the matter.  The TRIPS Agreement provided
for minimum standards of protection of intellectual property rights which were of a prohibitive,
private and contractual nature and Members were free to determine appropriate methods for
implementing the TRIPS Agreement's provisions within their respective legal system and practice.
Given this, it might be difficult to determine whether such rights were being nullified or impaired by a
government measure.  As these rights were to be enforced under domestic legislation after
incorporation of the enforcement provisions of the Agreement, the right holder could have recourse todomestic courts in respect of benefits derived from protection to be provided under the Agreement, if
these were believed to be nullified or impaired by any government measure or if such measures were
not consistent with the related domestic laws a nd regulations implementing the TRIPS Agreement.  In
addition, the Member government of which the right holder was a national could have recourse to the
DSU for any lack of proper protection under domestic legislation in a violation case.  In the view ofher delegation, opening the window to non-violation complaints under the TRIPS Agreement might
contradict or undermine the spirit of the TRIPS Agreement as a minimum standard Agreement, as
stipulated in Article 1 of the Agreement.  Therefore, it was the preliminary view of her delegation that
it would not be necessary to provide for the non-violation route in the TRIPS area.  Moreover, she
recalled the view expressed at the informal meet ing of the General Council the previous week that,
during the moratorium period of Article 64.2, developing countries were still benefiting from a
transitional period and that it was difficult for them to assess the possible advantages or disadvantages
of the application of non-violation complaints by the end of the transitional period.  As Members hadIP/C/M/21
Page 22
only limited experience with regard to non-violation complaints with regard to intellectual property
protection, it was unreasonable to simply let the moratorium expire at the end of the transitional
period.  Members should be extremely careful when committing themselves to a binding rule when
they did not have a clear picture as to how such a rule would work.
121. The representative of Canada said that his delegation had long had concerns about the use of
the non-violation remedy in the context of the TRIPS Agreement.  Those concerns had not been
alleviated since the Agreement had entered into force.  His delegation believed that many others
would share those concerns and that there were a number of issues that needed to be identified and
examined carefully as Members looked at the potential application of this remedy in the area of
TRIPS.  For that purpose, his delegation intended to circulate a paper in advance of the next meeting
on this matter.
122. The representative of India associated himself with the statements of Canada and Korea.
123. The representative of Japan stressed the importance his delegation attached to examination of
the scope and modalities of the application of the non-violation remedy in the TRIPS area.
124. The representative of the United States wished to make it clear that his delegation firmly
believed that the concept of non-violation nullification or impairment was an important element of the
WTO dispute settlement system and should apply to the TRIPS area as it did to other areas of theWTO.  His delegation looked forward to discussing the scope and modalities of such disputes
although it believed that Article 26 of the DSU was sufficiently clear to provide direction in any such
dispute.  Nevertheless, his delegation believed that the moratorium provided by Article 64.2 of the
TRIPS Agreement should be allowed to expire on 1 January 2000.  The United States could not agree
to any weakening of the rights of Members in connection with the DSU.
125. The representative of the Philippines, speaking on behalf of the ASEAN group of countries,
said that, pending the receipt of the input from the Secretariat, his delegation was not in a position to
state the view of ASEAN on the matter but looked forward to the debate on specific viewpoints.
126. The Chairperson proposed that the Council take note of the statements made and revert to the
matter at its next meeting.
127. The Council so agreed.
M. I NFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
(i) Dispute settlement
128. The Chairperson informed the Council that the Re port of the Panel established to investigate
the complaint of the European Communities and their member States regarding patent protection for
pharmaceutical and agricultural chemical products in India had been circulated to WTO Members on
24 August 1998 (document WT/DS79/R) and adopted by the DSB at its meeting of22 September 1998.
129. Referring to dispute IP/D/11 (WT/DS114), the Chairperson informed the Council that, on
11 November 1998, the European Communities and their member States had requested the
establishment of a panel in their dispute with Canada on patent protection for pharmaceutical products
in Canada (document WT/DS114/5).
130. The representative of Canada said that his delegation was disappointed that the European
Communities had chosen to request the establishment of a panel to challenge certain aspects of
Canada's patent laws and regulations.  His delegation believed that this challenge was intended toIP/C/M/21
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strike not just the Canadian model for patent protection, but also the model used by many other
Members.  This was a vital issue for Canada with implications for many other Members.  This panel
request challenged the stated objectives of the TRIPS Agreement which were to balance a competitive
investment, research and development climate with social welfare.  In focusing on the pharmaceutical
sector, the European Communities were challenging essential measures that many governments had inplace to balance interests of innovators with interests of governments to ensure affordable access to
medicines.  He emphasized that Canada supported the effective protection of intellectual property
rights: it had been instrumental with the European Communities and others in negotiating the TRIPS
Agreement which contained both minimum substantive standards and effective enforcement
procedures for the protection of intellectual property rights.  However, at the same time, the
Agreement provided that the application of those ri ghts needed to be balanced against other important
societal interests.  The European Communities position, in challenging Canada's legislation, seemednot to reflect that balance, but instead a more absolutist form of protection.  The TRIPS Agreement
did not support such a position.  Various provisions of the TRIPS Agreement expressly contemplated
a balance between the rights of producers and users of technology.  It recognized the fact that
Members would take measures that were necessary for the protection of public health and promotion
of other public interests.  One of the ways to do so was through the use of limited exceptions.  TheTRIPS Agreement allowed limited exceptions to be made to patent rights, not in the narrow
traditional sense of exceptions to other intellectual property rights but in the general sense of
safeguards against overprotection in order to protect public policy objectives.  The European
Communities seemed to be forgetting that these provisions also formed a part of, and animated, the
TRIPS Agreement.  For these reasons, Canada could not agree to the establishment of a panel andhoped that the European Communities would reconsider their request in the light of the effect that it
would have on national patent laws and the international trading system.  This was not the type of
issue that should be litigated but, if it were, it would be important for all Members to be involved as it
would have a significant impact on all Members.  Canada would certainly vigorously defend its patent
law as it was fully consistent with what all Members had negotiated in the TRIPS Agreement.
131. The representative of the European Communities said that his delegation’s request for the
establishment of a panel in dispute IP/D/11 (WT/DS114) concerned Canada's implementation of
Articles 27, 28 and 33 of the TRIPS Agreement in relation to pharmaceutical inventions.  Under
Canadian patent legislation, a person who was not the patent holder was permitted, without the
consent of the patent holder, to use a patented invention to (i) carry out experiments and tests required
for obtaining marketing approval of a copy of the patented medicine before the expiration of the
relevant patent; and (ii) manufacture and stockpile patented medicines for a period of up to six months
before patent expiry for sale after expiry.  The TRIPS Agreement obliged Members to provide that the
holder of a patent had exclusive rights, for a period that would end 20 years from the filing date of the
application on which the patent had been granted, to prevent others from making and using his or her
patented invention during that period.  His delegation had made the request for consultations after it
had carefully examined the legislation of Canada, which it had begun to do so soon after Canada wasrequired to implement the corresponding provisions  of the TRIPS Agreement.  The review exercise
had been extremely helpful in this regard and, indeed, through the discussions in the Council his
delegation had become convinced that the legislation of Canada violated the TRIPS Agreement.  His
delegation considered this to be an important matter and the European Communities and their member
States were certainly not challenging the balan ced outcome of the Uruguay Round negotiations.  It
was a question of making sure that, in this particular area, Canada, like others, complied with its
obligations.
132. The representative of Pakistan expressed his delegation’s interest in this issue, which it
believed had widespread implications.  It would wa tch closely the evolution of the matter and, at this
stage, wished to state only that it would consider it unfortunate if the balance of interests betweenright holders and consumers were in any way upset in an undesired direction.IP/C/M/21
Page 24
133. The representative of Venezuela recited an African proverb, that "When there is a fight
among elephants, the grass does not grow".  His delegation viewed with sympathy the exception
established by Canada.  It was his delegation's understanding that the stockpiled products covered by
a patent in Canada were not commercialized until after patent expiry.
134. The representative of the European Communitie s referred to dispute IP/D/10 (WT/DS86) and
said that his delegation had nearly reached an agreement with the United States in the context of the
request of the United States for consultations concerning measures affecting the enforcement of
intellectual property rights in Sweden.  The parties were very close to reaching a mutually agreed
solution because recently Sweden had adopted new legislation which provided judicial authorities the
authority to grant provisional measures in civil pr oceedings involving intellectual property rights.  He
hoped that the parties could soon end the consultation procedure.
135. The representative of the United States thanked the Government of Sweden for its work to
resolve this dispute.  In addition to the comments made by the representative of the European
Communities, it was his delegation's understanding that the new Swedish legislation provided that, if
there were reasons to believe that a person had taken, or was about to take, action to infringe
intellectual property rights, the courts could order a search for infringing materials, documents or
other relevant evidence and that this search could be ordered without prior notice to the other party ifthere was a risk that materials or documents could be removed, destroyed or altered, and that this
legislation would come into effect on 1 January 1999.  He stressed the importance of this development
for all Members.
136. The representative of Canada informed the Council that his delegation had recently made a
request for consultations with the European Communities pursuant to Article 4 of the DSU, Article 64
of the TRIPS Agreement and in conjunction with Article XXII of GATT 1994.  It was requesting
consultations regarding the protection of inventions in the area of pharmaceutical and agricultural
chemical products that the European Communities affo rded in relation to their obligations under the
TRIPS Agreement.  The patent term extension scheme of the European Communities, in Canada's
view, was incompatible with the obligation of th e European Communities not to discriminate with
respect to the field of technology as stipulated in Article 27.1 of the TRIPS Agreement, since the
patent term extension scheme only applied to pharmaceutical and agricultural chemical inventions.
137. The Council took note of the statements made.
(ii) Accession
138. The Chairperson informed the Council that, since the previous meeting, the accession
negotiations with two governments had been concluded, namely the Kyrgyz Republic and Latvia,
subject to ratification.  The Protocols of Accession for both these countries included, in relation to theTRIPS Agreement, a commitment that no transitional period under the TRIPS Agreement would be
invoked.  Meanwhile, the Kyrgyz Republic had deposited its instrument of ratification and would
become a WTO Member as of 20 December 1998.
N. D
RAFT ANNUAL REPORT
139. The Chairperson informed the Council that th e Draft Annual Report of the Council had been
circulated in document IP/C/W/119.  As the period of review included also the present meeting, he
proposed necessary additions taking into account the discussions at the present meeting, which were
made available to the Council in document IP/C/W/119/Rev.1.
140. The Council adopted the report with amendments taking into account proposals by the
Chairperson and a number of delegations, as reflected in document IP/C/15.IP/C/M/21
Page 25
O. O THER BUSINESS
(i) Schedule of meetings in 1999
141. The Chairperson proposed that the Council schedule its next meeting for 16 and
17 February 1999.  As regards the other dates that the Secretariat had tentatively pencilled in for 1999,
namely, 27 and 28 April6, 7 and 8 July, 15 and 16 September and 23 and 24 November, he suggested,
in the light of comments made, that the Council consider further its autumn schedule at its July
meeting.
(ii) Question posed by Cuba to the United States
142. The representative of Cuba  addressed a question to the United States concerning section 211
of its Omnibus Consolidated and Emergency Supplemental Appropriations Act.7
143. The Council took note of the statement of the delegation of Cuba.
__________
                                                     
6 Subsequent to the meeting, the tentative dates for the meeting in April were rescheduled and are now
pencilled in for 21 and 22 April 1999.
7 The text of this question is available in document IP/C/W/120/Rev.1.