RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/M/23
2 June 1999
(99-2220)
Council for Trade-Related Aspects
of Intellectual Property Rights
MINUTES OF MEETING
Held in the Centre William Rappard
on 21 and 22 April 1999
Chairperson:  Ambassador Carlos Pérez del Castillo (Uruguay)
Subjects discussed:
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT
B. REVIEW OF LEGISLATION:
C. SECTION 211 OF THE UNITED STATES OMNIBUS CONSOLIDATED AND
EMERGENCY SUPPLEMENTAL APPROPRIATIONS ACT
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. ELECTRONIC COMMERCE
J. REVIEW OF THE PROVISIONS OF ARTICLE 27.3( B)
K. ARTICLE 64.3
L. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
M. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL
ORGANIZATIONS
N. OTHER BUSINESSIP/C/M/23
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A. N OTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT
(i) Notifications under Article 63.2
1. The Chairperson informed the Council that new notifications of legislation had been received
from Australia, Austria, Qatar, Romania, Slovenia and Spain.  The notification from Qatar concerned
the provisions of Articles 3, 4 and 5 of the Agreement.  All these notifications would be available in
the IP/N/1/- document series as soon as possible.
2. The representative of the European Communities said that his delegation had taken note of the
notification that had been made by Slovenia (document IP/N/1/SVN/G/1 of 10 March 1999)
concerning the Slovenian decree on Lipizzaner horses, and of the Slovenian application under
Article 6 ter of the Paris Convention for the protection of the two branding marks used on Slovenian
Lipizzaner horses.  His delegation was examining the notification, in particular with regard to thedecree's compatibility or incompatibility with Artic le 22 of the TRIPS Agreement, and reserved the
right to address this issue again at the next meeting after a full and thorough legal examination of this
notification.
3. The representative of Slovenia said that his Government had notified the decree on the
protection of the name "Lipizzaner" for horses as a geographical indication in accordance with
Article 63.2 of the TRIPS Agreement, which required that Members should notify their laws and
regulations to the Council.  He understood that the European Communities were examining whether
the subject-matter of the decree was in compliance with Article 22.
4. The Council took note of these statements.
(ii) Notifications under Article 69
5. The Chairperson informed the Council that Guat emala had notified its contact point under
Article 69 which brought the number of Members that had notified contact points under this provision
to 90.  Information on contact points was available in the IP/N/3/- series of documents.
B. R EVIEW OF LEGISLATION
(i) Follow-up to the reviews already undertaken
6. The Chairperson said that the Secretariat had informed him that responses to all outstanding
questions and follow-up questions posed in the Council's reviews of legislation in 1996, 1997 and
1998 had been received by the Secretariat.  Cons equently, the records of these reviews could be
completed and he suggested that the item concerni ng the follow-up to these reviews be deleted from
the agenda, it being understood, of course, that any delegation could revert to any matter stemming
from these reviews at any time.
7. The Council so agreed.
(ii) Arrangements for future reviews
- Kyrgyz Republic and Latvia
8. The Chairperson recalled that, at the last meeting, the Council had agreed that the review of
the TRIPS-implementing legislation of the Kyrgyz Republic and Latvia should be taken up at the end
of 1999.  In accordance with the basic procedures that the Council had employed thus far for theIP/C/M/23
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reviews of legislation, he said that a time path should be established for the submission of questions
and of responses to questions.  Questions should normally be submitted some ten weeks prior to the
review meeting and responses some four weeks prior to that meeting.  Dates had been pencilled in for
Council meetings on 15 and 16 September and on 23 and 24 November, but the Council would
consider its autumn schedule of meetings further at its meeting in July.  In the light of this, hesuggested that questions for the review of the legislation of the Kyrgyz Republic and Latvia be
submitted by the end of July and the Council agree on a target date for the submission of responses at
its meeting in July.
9. The representative of Morocco referred to  the tentative dates for Council meetings in
September and November which would be discussed at the Council's meeting in July.  At the
Council's meeting in December 1998, there had been a long discussion of the calendar of meetings for
1999, and no agreement had been reached on the convening of five meetings.  His delegation hadsuggested that four meetings be held in 1999.
10. The Council took note of the statement made and agreed
 to proceed as suggested by the Chair.
- Arrangements for reviews after 1 January 2000
11. The Chairperson, reporting on his informal consultations on the matter, said that he had held
consultations in the weeks preceding the Council meeting with a considerable number of developing
countries and progress had been achieved.  Nine Members had volunteered to have their legislation
reviewed in the first half of the year 2000, and six in the second half of the year.  He was awaiting
responses in the following weeks from 14 Members and was optimistic that the Council would be able
to have a schedule ready for the reviews of legislation of developing country Members to be held in
2000.  He suggested that the Chair should expedite his consultations, emphasizing that, for thesereview meetings to be efficient, considerable preparation time was needed, both on the part of the
Member whose legislation was being reviewed and on the part of other Members who might wish to
pose questions.  With the Council's permission, he would therefore continue his consultations with a
view to presenting a concrete proposal at the next meeting and thereby facilitating a Council decision
at that meeting.
12. The Council agreed to proceed as suggested by the Chair.
C. S ECTION 211 OF THE UNITED STATES OMNIBUS CONSOLIDATED AND EMERGENCY
SUPPLEMENTAL APPROPRIATIONS ACT
13. The Chairperson recalled that, at the Council's meetings of December 1998 and
February 1999, the delegation of Cuba had informed the Council of a request it had sent to the
delegation of the United States, in accordance with Article 63.3 of the TRIPS Agreement, for detailed
information concerning Section 211 of the Unit ed States Omnibus Consolidated and Emergency
Supplemental Appropriations Act 1998.  At the Coun cil's meeting in February 1999, the delegation of
Cuba had reiterated this request on the floor of the Council, while the delegation of the European
Communities had informed the Council that it had also  approached the United States with a request
for information on this matter.  A response from the United States to the request from Cuba had been
circulated in document IP/C/W/139 and additional information on this matter, that had recently beenreceived from the United States, would be circulated shortly.
1
14. The representative of the United States referred to the document that had been circulated for
the content of its response to the request from Cuba.
                                                     
1 Subsequently distributed in document IP/C/W/139/Add.1.IP/C/M/23
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15. The representative of Cuba referred to the answer that his delegation had received, on
15 April 1999, from the United States concerning Section 211 of the United States Omnibus
Consolidated and Emergency Supplemental Approp riations Act 1998 for the fiscal year 1999 (pp.105-
277), which included some provisions concerning the boycott against Cuba.  Unfortunately, the
information contained therein did not meet Cuba's e xpectations, since it did not illustrate or comment
on the compatibility of Section 211 with the TRIPS Agreement.  He regretted that, even though
almost five months had passed since Cuba's firs t formal request before the Council, made on 2
December 1998, and having reiterated the request at the Council's meeting of 17 February 1999, the
United States could only put forward the legal texts which, as the accompanying note said, were
available on the Internet.  In the light of the communication of 15 April 1999 and six months after the
enactment of Section 211, the delegation of Cuba wished to express its total disagreement with the
evident breach of the obligations undertaken by the United States as a Member of the World TradeOrganization and, in particular, its infringement of the rules applicable under the TRIPS Agreement as
a result of the enactment, on 21 October 1998, of Section 211 of the Omnibus Consolidated and
Emergency Supplemental Appropriations Act for the fiscal year of 1999.  Whereas the TRIPS
Agreement did not admit any reservation without the consent of all Members, the exceptions
established in Article 73 did not apply to Section 211, and the Agreement generated obligations inrespect of all subject-matter existing at the date of its application, the delegation of Cuba concluded
that the above-mentioned law presumably violated, among others, Articles 2, 3, 41 and 62 of the
Agreement.  Section 211 unjustifiably impeded access to the protection, in the territory of the United
States, of rights that legitimately pertained to foreign and Cuban applicants and holders.  In addition,
it nullified the benefits under international or multilateral agreements or treaties, accruing to  nationalsor Cuban firms or any other person who acted on behalf of the Cuban authorities.  This result affected
the application of the TRIPS Agreement in particular.
16. Given that the documentation submitted by the United States did not satisfy Cuba's request, he
formally reiterated the request that the United  States provide detailed information about the
compatibility of Section 211 with the TRIPS Agreement, by virtue of its obligations pursuant toArticle 63, in particular its paragraph 3.  The delegation of Cuba demanded the strict and
unconditional respect of the principles of the multilateral system, which should be applicable without
discrimination and arbitrary considerations or acts in deviation from the rules of international trade
that had been multilaterally agreed.  Section 211 was a unilateral coercive measure contrary to
international law, which represented an unprecedented extension and reinforcement of the economic,
commercial and financial boycott imposed against Cuba, which had implications for foreign
investment and Cuban trade with third countries and which had been rejected on several occasions bythe General Assembly of the United Nations as well as by other regional and international
organizations.  The most recent condemnation of the economic boycott had been made during the
second summit of the Heads of State and Governments of the Caribbean Countries, of 17 April 1999,
in Santo Domingo, whereby all the governments of that area had stated their rejection of all unilateral
coercive measures, as well as the extraterritorial application of national laws, by any State.  In view ofthe above, Cuba reserved its right to undertake other actions in the context of the WTO.  He requested
that his statement be recorded in the minutes of the meeting and distributed to all Members.
2
17. The representative of the European Communities said that he wished to reiterate his
delegation's concerns about the impact of Section 211 of the United States Omnibus Consolidated and
Emergency Supplemental Appropriations Act enacted in October 1998.  This section, in his view,
reduced the availability of the protection of trademarks and trade names in the United States of Cuban
right holders or companies that established partnerships with Cuban right holders.  Section 211 raised
serious doubts with respect to its compatibility with the provisions of the TRIPS Agreement.  His
concerns related to the denial of national treatment and most-favoured-nation treatment, as well as the
denial of adequate protection of trademarks and of available enforcement procedures.  His delegationwas even more worried since, recently, the section had been applied retroactively by a United States
                                                     
2 Distributed in document IP/C/W/142.IP/C/M/23
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District Court in litigation between private parties and in spite of the fact that no implementing rules
and regulations had been promulgated by the United States Government as required by Section 211.
For these reasons, his delegation would like to state its disappointment with the information provided
by the United States and invited the United States to explain how Section 211 could be justified under
the provisions of the TRIPS Agreement.  His delegation would, of course, expect the United States toremove any inconsistencies between Section 211 and the TRIPS Agreement and to fully comply with
the obligations of the Agreement.
18. The representative of the Dominican Republic, expressing her delegation's concern with the
enactment of Section 211, echoed the reference made by the delegation of Cuba to the statement by
the Heads of State and Government of the Countries of the Association of Caribbean States at its
recent meeting held in Santo Domingo, categorically rejecting all unilateral coercive measures and
any extraterritorial application of national laws by any State, because those were contrary tointernational law, to the sovereignty of States and their international coexistence.  In this context,
these States had again urged the Government of the United States to revoke the Helms-Burton Act, in
accordance with the Resolutions approved by the General Assembly of the United Nations. The
representatives of Honduras and Venezuela
 supported the statement made by the Dominican
Republic.  The representative of Venezuela reaffirmed the position of his authorities against any
unilateral measure that conflicted with the multilateral trade agreements.
19. The representative of the United States said that her delegation disagreed with the statements
made regarding Section 211.  Her delegation had recently voluntarily supplemented its response to the
written question it had received3 and remained willing to respond to any follow-up questions that
might be submitted in writing.
20. The representative of Malaysia said that Section 211 had the appearance of a unilateral
measure against Cuba, which was intolerable, and wished to express his delegation's serious concern
with this matter.
21. The representatives of India and Indonesia  also expressed their concerns and said that their
respective authorities were still examining this matter.
22. The representative of Cuba said that the answer to his question about the compatibility of
Section 211 with the TRIPS Agreement was still outstanding.  He wished to reiterate that the
delegation of the United States had yet to reply to that question.
23. The representatives of Argentina, Brazil  and Ecuador  said that their delegations would study
the matter carefully and that their respective author ities would give due attention to the information
provided by the United States and Cuba.
24. The representative of Haiti shared the concerns of Cuba with respect to Section 211, which
appeared to prevent any transaction regarding a trademark or a licence or a trade name bearing an
identical or a similar sign to a trademark or a licence or a trade name which was used by any firm
confiscated by the Government of Cuba after 1959. In his delegation's view, Section 211 conflicted
not only with the WTO Agreements, and in particular some provisions of the TRIPS Agreement, but
also impaired the intellectual property rights of the Cuban people as a whole.  In addition, Section 211
appeared to be an extension of the Helms-Burton Act.  At a recent meeting of the Association of
Caribbean States held in Santo Domingo, 25 heads of state and government of the Caribbean region,
including Mexico, Colombia and Venezuela, had urged the Government of the United States to
revoke the Helms-Burton Act which was enacted against Cuba in 1995.  It was unfortunate that
Section 211 had been enacted exactly when the members of the ACS had renewed their commitmentto work on the reinforcement of an economic area based on the rules of the WTO.  That measure was
                                                     
3 Distributed as document IP/C/W/139/Add.1.IP/C/M/23
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particularly unacceptable having in view that, with respect to globalization, the leaders of the
Association of Caribbean States had stated that multilateral action was the indispensable answer
which permitted to meet the challenges and take advantage of new economic trends.  His delegation
understood that it would be preferable for the Governments of the United States and Cuba to reach, by
means of negotiations, an accepted solution to the problems arising from the confiscation, in Cuba, ofcertain assets belonging to United States citizens.
25. The representative of Egypt said that his authorities would also examine the information
provided in this context.  His delegation wished to note that the United States was one of the most
important partners in the international system and, as such, had a particular responsibility with regard
to preserving its rules so as to avoid that unilateralism or extraterritoriality became the base for that
system.  His delegation urged the United States to reconsider its position in the event it was in conflict
with the TRIPS Agreement.
26. The Council took note of the statements made and agreed  to revert to the matter at the next
meeting.
D. I MPLEMENTATION OF ARTICLE 70.8 AND 70.9
27. The Chairperson informed the C ouncil that answers to questions posed by the United States to
four other delegations and circulated in document IP/C/W/113 had been received from Uruguay,
Argentina and Egypt, and circulated in documents IP/C/W/121, 135 and 136.  Since the last meeting,
follow-up questions to the responses that Uruguay had given to the United States' questions had been
received from the European Communities and their member States and circulated in
document IP/C/W/137.
28. The representative of Paraguay said that his delegation would, in the coming days, present
written responses to the questions posed by the United States concerning the implementation of
Article 70.8 and 70.9.  The responses had already been drafted by the office responsible for these
matters but unfortunately, due to force majeure, his delegation was not yet able to present them.
29. The representative of Uruguay said that, with respect to the follow-up questions posed by the
European Communities and their member States, and those which had already been posed by the
United States, seeking information on aspects related to the implementation of Article 70.9, his
delegation had asked its capital for additional information to the responses already circulated in
document IP/C/W/121.  This supplementary information would shortly be available to the Secretariat
for distribution.  His delegation was prepared to continue any consultations which Members might
wish to hold on these matters.
30. The representative of the United States said that her delegation had reviewed the responses it
had received to its questions from Argentina, Egypt and Uruguay.  It also appreciated the statements
made by the representatives of Paraguay and Uruguay concerning additional information.  Her
delegation recommended that all Members who were obligated to provide exclusive marketing rights
under Article 70.9 refer to the relevant paragraphs of the Appellate Body Report in India - Patent
Protection for Pharmaceutical and Agricultural Chemical Products (document WT/DS50/AB/R) for a
thorough discussion of the exclusive marketing rights obligation.  As pointed out at the last meeting,whilst that report dealt with a dispute between two Members, the Appellate Body's discussion of the
obligation contained in Article 70.9 could certainly be helpful to any Member for whom this
obligation was not clear.  The report also clarified that the mere fact that a Member had not received
any applications for exclusive marketing rights did not excuse a failure to have a system in place for
granting such rights.
31. The Council took note of the statements made.IP/C/M/23
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E. I MPLEMENTATION OF ARTICLE 66.2
32. The Chairperson recalled that, at the Council's meeting of 1 and 2 December 1998, the
delegation of Haiti had requested information from developed country Members on how Article 66.2
of the TRIPS Agreement was being implemented.  The Council had agreed that this question be
circulated in an informal document of the TRIPS Council to all Members and that developed countryMembers be invited to supply information in response to this question.
4  At the meeting of
17 February 1999, New Zealand had made available information on its implementation of
Article 66.2, which had subsequently been circulated  in document IP/C/W/132.  Since the meeting,
information received from the United States, Japan and Australia, had been circulated in
documents IP/C/W/132/Add.1-3.
33. The representative of Australia, summarizing her delegation's written submission, said that
several Australian government agencies were involved in the provision of incentives, either directly or
indirectly, for Australian enterprises and instituti ons to engage in activities involved in technology
transfer to least-developed countries.  Australia prov ided such incentives at the bilateral, regional and
multilateral levels to contribute to the development of human capital, infrastructure and private sector
enterprise in least-developed countries.  Due to its geography, many Australian activities relevant to
Article 66.2 were focused on countries in the Asia-Pacific region.  The agency most actively involvedin these activities was the Australian Internatio nal Aid Agency ("AUSAID").  AUSAID's extensive
range of programmes, many of which contained large technology transfer components, was delivered
by the provision of monetary incentives to various Australian business enterprises, educational
institutions and other organizations.  Australia considered that the provision of money to enterprises
and institutions not only qualified as an incentive to encourage and promote technology transfer toleast-developed countries for the purposes of Article 66.2, but was possibly one of the most effective
means of meeting its objectives.  As indicated in the table and details of specific programmes in the
written submission, a large proportion of AUSAID's activ ities were directed to education and training.
Australia considered that the education of least-developed country nationals at Australian universities
and their training in the use and management of technological equipment comprised two of the mosteffective means of transferring technology and know-how to which Australia had access.  There were
a range of other Australian agencies which ran programmes and projects that provided incentives,
either directly or indirectly, to Australian businesses and other institutions to transfer technology to
least-developed countries.  These included the De partment of Industry, Science and Resources, the
Department of Defence, AUSTRADE  and various State government departments.  More details
would be provided on the relevant activities of those organizations in due course.
34. The representative of the European Communities said that his delegation was still collecting
information but, due to the nature of the European Communities, this was a cumbersome exercise
which was taking more time than foreseen.  He hoped to be able to provide that information prior to
the next meeting.
35. The Council took note of the statements made.  It agreed  to urge those developed country
Members that had not yet submitted information to do so, and to revert to the matter at its next
meeting.
                                                     
4 No. 7093 of 23 December 1998.IP/C/M/23
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F. T ECHNICAL COOPERATION
(i) Updated information on technical cooperation activities
36. The Chairperson informed the Council that, si nce the last meeting, updated information on
technical and financial cooperation activities relevant to the implementation of the TRIPS Agreement
had been received from the Food and Agriculture Organization (FAO) (documentIP/C/W/108/Add.6).  As mentioned at the meeting in February, the Council had received, for the year
1998, updated information on technical and financial cooperation activities from 16 developed
country Members.  If one also took into account information provided in the previous years, 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.  As agreed at the Council's meeting in December 1998, the Secretariat had
contacted those Members.
37. The representative of Korea said that APEC member economies had agreed to exchange
information on the current status of implementation of the TRIPS Agreement and, based on the
information exchanged, Korea would hold in June 1999 a technical cooperation symposium to assist
in implementation of the Agreement.  The budget  for this symposium would be funded from the
APEC Trade and Investment Liberalization and Facilitation Special Account.  Since the symposiumwould be held only six months before the end of the transition period for developing country
Members, Korea had attempted to select themes and programme details relating to specific issues
where particular problems lay or which merited a focused discussion, rather than carry out a
comprehensive review on the basis of the whole of the TRIPS Agreement.  In consultation with the
member economies that were expected to participate, Korea had finalized the main themes of thesession and arranged a more open-ended question and answer session.  As the programme aimed at a
successful implementation of the TRIPS Agreement among APEC economies by 2000, it called for
the cooperation and understanding of specialists with authority in government as well as businesses.
In this context, the symposium was extending invitations to 42 governmental officials from 14
member economies, such as Brunei Darussalam; Chile; China; Hong Kong, China; Indonesia;Malaysia; Mexico; Papua New Guinea; Peru; the Philippines; the Russian Federation; Chinese Taipei;
Thailand; and Vietnam.  Twelve professionals woul d take charge of instruction at the symposium:
seven experts from member economies that had implemented the TRIPS Agreement and five experts
from the private sector or international organizations.
38. The representative of the European Communitie s recalled that, at the last meeting, the
representative of India had posed a question to his delegation concerning a technical assistance
programme on intellectual property rights between the European Communities and India.  He hadlooked into this matter.  In January 1998, the European Commission and Indian authorities had agreed
on the terms of reference for a programme of cooperation.  Unfortunately, due to technical reasons,
there had been a delay, but these problems had since been overcome and his delegation expected that
implementation would begin shortly.
39. The Council took note of the statements made.
(ii) WIPO-WTO Joint Initia tive on Technical Cooperation
40. The Chairperson recalled that the WIPO and WTO Secretariats had launched, in July 1998, a
Joint Initiative on Technical Cooperation to assist developing countries to meet their commitments
under the TRIPS Agreement by the year 2000, and that the Council had agreed, at its meeting in
December 1998, to request the WTO Secretariat to report on a regular basis on this matter.
41. The representative of the Secretariat said that, at the previous meeting, he had indicated that
more than 30 developing country Members had expressed interest in taking advantage of the JointIP/C/M/23
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Initiative.  Since then, some of those Members had provided more information on their needs or
submitted further requests to the two Organizations.  One additional Member had expressed interest in
receiving assistance under the Joint Initiative and the Secretariat was consulting with the International
Bureau of WIPO on the best way in which to respon d to it.  Recalling the general approach that had
been agreed with the International Bureau on the way to respond to these requests, he said that in mostcases the International Bureau was taking the lead in  providing the assistance requested by integrating
the requests into its 1999 programmes of assistance for each of the countries concerned.  The WTO
Secretariat had been contributing to these activities of WIPO to the extent that its human resources
permitted.  In the past two months, since the last meeting, the WTO Secretariat had provided speakers
to four regional seminars organized by WIPO:  those held in Oman for Arab countries, in Zimbabwe
for the English-speaking Sub-Saharan African developing countries, in Cameroon for the French-
speaking Sub-Saharan African developing countries, and in Dominica for the CARICOM countries.Another mode of follow-up agreed  with WIPO and Members concerned was the organization of joint
events.  In this regard, plans had been developed for joint national TRIPS seminars in a number of
Members.  Two such events would take place in June and a further one was scheduled for September.
The Joint UPOV-WIPO-WTO Symposium on the protection of plant varieties held on 15 February in
Geneva was also relevant to the WIPO-WTO Joint Initiative.  This Symposium had been followed bya joint regional workshop held in Bangkok in March for countries from the Asia-Pacific region.  Two
more regional seminars on plant variety protection would be held in May:  one in Cairo for countries
from the Middle East and North Africa and the other in Nairobi for English-speaking African
countries.  Further, in March 1999, a joint WIPO-WTO symposium on the implementation of the
TRIPS Agreement was held in the Central African Republic for the French-speaking Sub-SaharanAfrican countries.  In certain instances, the WTO Secretariat had taken the lead in providing
assistance, in particular when it came to matters relating to WTO mechanisms.  Some of these
activities had been undertaken in response to specific requests under the Joint Initiative, but many of
the Secretariat's ongoing activities also benefited countries that were in the process of implementing
the TRIPS Agreement.  For example, the WTO Secretariat had organized regional and national tradepolicy seminars that had focused on, among other areas of the WTO, the TRIPS Agreement.  In the
recent past, such seminars had been held in Singapore and Ghana, in March, and in Pakistan, in April.
To help Members with notification procedures and documentation, the Secretariat had continued to
establish WTO reference centres in many developing countries, the number of which was now 47.
Further, the WTO Secretariat had responded to requests under the Joint Initiative by providing
information and advice through its regular contacts with delegations in Geneva and experts in capitals.
42. The representative of the WIPO added that 20 developing and least-developed countries had
participated in the seminar in the Central African Republic which had been jointly organized by
WIPO and the WTO.  In addition, in the regions of Africa, the Arab countries, Asia and the Pacific,
Latin America and the Caribbean, there had been an increase in the nationally-focused activities
specifically designed to assist countries to comply with the TRIPS Agreement by the year 2000.  She
referred specifically to three joint WIPO-WTO national seminars to be held in Latin America shortlyand to numerous WIPO national training programmes th at had taken place in the first part of 1999 and
would continue throughout the year.  In the area of legislation, during the first three months of 1999,
18 countries had received assistance from WIPO in the form of draft laws, comments or legislative
advice.  As announced at the last meeting, a full report of WIPO's activities on TRIPS implementation
from January 1996 to January 1999 would be made available later in the year.
43. The representative of Brazil asked whether a regional workshop on plant variety protection
was also envisaged in Latin America and the Caribbean.
44. The representative of the Secretariat said that the regional workshops he had referred to,
which had been jointly organized by UPOV, WIPO and the WTO, did not include one for Latin
America, largely because of the belief that Latin American countries were relatively well advanced in
that area.  If there were an interest, the Secretar iat would of course look into the matter with its
colleagues in UPOV and WIPO.IP/C/M/23
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45. The Council took note of the statements made.
G. R EVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL
INDICATIONS UNDER ARTICLE 24.2
46. The Chairperson said that, by the time of the la st meeting, the Council had received responses
to the Council's Checklist of Questions on Article 24.25 from 29 Members, namely Bulgaria, Canada,
the Czech Republic, Ecuador, the European Communities and eleven of their member States,
Hungary, Iceland, Japan, Liechtenstein, Mexico, New Zealand, Norway, Peru, Romania, the Slovak
Republic, Switzerland, Turkey and the United States.  Several other Members had indicated at the last
meeting that they were still preparing their respon ses.  Since that meeting, Venezuela had submitted
its responses while revised responses had been received from Liechtenstein.  These had been
circulated in documents IP/C/W/117/Add.18 and IP/C /W/117/Add.11/Rev.1.  At its last meeting, the
Council had requested the Secretariat to prepare an outline of a possible summary paper of theresponses provided by Members, which would have as its aim the facilitation of Members'
understanding of the information provided to the Council in response to the Checklist.  In response to
this request, the Secretariat had circulated such an outline in an informal document, No. 2104 of
13 April 1999.  In light of the informal consultations that he had held prior to the meeting, it was his
appraisal that delegations had generally expressed support for the proposed outline, which presentedthe structure that a summary document could have, in that the outline represented an appropriate and
useful format that would enable the Secretariat to prepare the summary document allowing it to take
into account the diversity of national approaches reflected in the responses to the Checklist.  However,
he believed that delegations needed more time to study the proposed outline in detail.
47. He suggested that the Council revert to the matter at its next meeting.
48. The Council so agreed.
H. I MPLEMENTATION OF ARTICLE 23.4
49. 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 on the matter received from
the European Communities and their member States had been discussed at the meetings of the
Council in September and December 1998 (document IP/C/W/107).  At the previous meeting, a joint
proposal had been received from the United States and Japan (document IP/C/W/133), on which many
delegations had made preliminary comments, as well as a separate paper from the United States
(document IP/C/W/134).  India had informed the Coun cil that an earlier informal paper that it had
submitted to Members in the context of Article 24.2 was also relevant to the discussions onArticle 23.4 (informal document N o. 5023 of 18 September 1997).  As a result of the Council's
discussions at the previous meeting, the Secretariat had been asked to see what additional information
it could provide on national and international systems for the protection of geographical indications
relating to products other than wines and spirits.  At informal consultations prior to the meeting, the
Secretariat had explained that it was still in the process of assembling information concerning the twointernational systems it had been able to find in addition to those already dealt with in
document IP/C/W/85, one relating to cheese and the other to olive oil.
50. The representative of the United States, responding to questions put to it at the previous
meeting, recalled that the purpose of negotiations under Article 23.4 was to facilitate protection.  In
fulfilling that purpose, new obligations or burdens were not to be created for WTO Members.  Theproposal put forward by Japan and the United Stat es did not create new obligations or impose undue
                                                     
5 Documents IP/C/13 and IP/C/13/Add.1.IP/C/M/23
Page 11
burdens.  This proposal called for notifications to the WTO Secretariat, by Members choosing to
participate, of the domestic geographical indications eligible for protection in their territories.  Any
challenges to notified geographical indications would take place at the national level through
Members' domestic legislation and procedures for opposition and cancellation.  A participating
Member would have to withdraw any geographical indication that it had notified and which had beensuccessfully challenged in its territory.  In order to facilitate the protection of geographical indications
for wines and spirits, participating Members would undertake to consider the information provided by
the WTO registration database in making decisions related to the protection of geographical
indications.  Her delegation believed that the proposal satisfied each of the criteria that it and others
had identified during the last three meetings of the Council as appropriate for any system of
notification and registration for geographical indications that might be established under Article 23.4.
Specifically, she noted that the proposed system would facilitate protection of geographicalindications for participating Members.  It would not impose substantive obligations regarding the
protection of geographical indications beyond those currently set out in Section 3 of Part II of the
Agreement.  The proposed system would allow voluntary participation as reflected by the wording of
Article 23.4 "in those Members participating in the system".  A WTO Member was not required to
participate in this system in order to obtain full protection for its geographical indications for winesand spirits.  The proposed system would recognize and accommodate the variety of regimes in WTO
Members for the protection of geographical indications.  It would be simple and not be costly for
those choosing to participate.  It would not impose undue administrative burdens and costs on the
WTO Secretariat.
51. She, then, responded to a number of points raised by the European Communities during the
previous meeting.  The European Communities had expressed the view that the US/Japanese proposal
appeared not to fulfil the objective of Article 23.4, since the element of registration was missing.  Her
delegation noted again that the clearly stated objective of Article 23.4 was simply to facilitate the
protection of geographical indications.  The system proposed by Japan and the United States would
achieve that objective by creating a source of information not currently available regardinggeographical indications for wines and spirits eligible for protection in those WTO Members that
wanted to participate in the system.  The fact that a particular geographical indication was registered
would not automatically obligate a Member to protect that geographical indication if it were not
entitled to such protection under that Member's TRIPS-consistent national law.  To do otherwise
would be to create additional obligations under the TRIPS Agreement.  The European Communities
had also expressed the view that the system proposed by the United States and Japan did not contain a
means for resolving disputes.  Her delegation disagr eed.  The system would resolve disputes in the
same way that disputes regarding protection of, say, copyright, or the patentability of a particular
invention, were now resolved.  Rather than creating an extensive opposition procedure within the
WTO, the US/Japanese proposal specified that disputes were to be resolved under the national laws of
Members.  Finally, the European Communities had expressed the view that transparency alone did not
justify the additional cost of the system proposed by Japan and the United States.  Firstly, this was notsimply an exercise in transparency and, secondly, the cost to WTO Members and to the WTO of the
US/Japanese proposal would be minimal.  No additional resources would be needed by the WTO to
compile the notifications submitted, particularly if that information were submitted electronically.
Participating WTO Members would only need to submit the lists of geographical indications for
wines and spirits eligible for protection in their territ ories and keep that list up-to-date.  Therefore, the
cost would be very slight.
52. The representative of Chile said that his delegation liked the proposal presented by the
United States and Japan.  Its nature as a voluntary system was indeed one of the requisites stipulated
in Article 23.4.  Other plusses of the proposed system were that it was not mandatory, that it was
simple, that it provided for an administrative register of geographical indications and that it wascheap.  He reiterated that his delegation's reading of Article 23.4 was that the register to be negotiated
was limited to wines.IP/C/M/23
Page 12
53. The representative of Japan, reacting to comments on the legal effect of the system proposed
by his delegation and the United States, said that his delegation believed that the legal effect of entry
in a database satisfied the requirements of Article 23.4 in regard to registration of geographical
indications.  Protection of registered geographical indications should be in accordance with domestic
laws which were compliant with the TRIPS Agreement.
54. The representative of Canada reiterated his delegation's support for the joint proposal of the
United States and Japan.  His delegation considered voluntariness to be a fundamental characteristic
of any system established under Article 23.4.  As well, this proposal would not be as burdensome or
costly for Members as the EC proposal.  Further, Canada considered that any consideration of
extending the coverage of a multilateral register of geographical indications to other products should
be left to the planning of a pos sible next round of negotiations.
55. The representative of the European Communities did not agree that the US/Japanese proposal
met the criteria identified during the previous meetings of the Council.  He did not believe that the
Council had reached any agreement on which would be the essential criteria for a future multilateral
register.  The Council had discussed a number of characteristics of such a possible multilateral
register but there were clearly different views on these.  After having listened to the explanations
provided by the United States and Japan, he remained of the opinion that there were strongdivergences between the approaches of different Members.  He would reflect carefully on the
interventions made during the present meeting.  His delegation believed that the US/Japanese
proposal did not provide for a system with a real multilateral character.  It seemed to be no more than
an information system where national geographical indications were notified and automatically listed
on a future database to be established by the WTO.  Therefore, his delegation did not understand whatwould be the added value of the system proposed by the United States and Japan.  Several delegations
had indicated that the burden on the WTO would be limited but, in his delegation's view, it would still
entail some costs which would not be compensated by any benefits other than those already existing
at the national level and partially under notifications made on the basis of Article 63.2.  For these
reasons, his delegation believed that the US/Japanese proposal did not meet the objectives of theTRIPS Agreement.  For his delegation, a multilatera l register clearly implied multilateral protection
and this was the key word and key element in the approach to such a register.  The US/Japanese
proposal was limited to creating a record rather than a real registration, as it only referred to legal
effects under national legislation, as clearly stated in its section 3.  This proposal was silent on the
need for elements of proof, for a mechanism for the assessment of eligibility or for an opposition
procedure - elements which his delegation considered to be indispensable and important to a future
multilateral register.  A listing in a database fell far short of the objectives of Article 23.4 and was notconsistent with the purpose of a real registration.  As to the voluntary nature of the system on which
both the United States and Japan had insisted, his delegation had also underlined the voluntary
character of its proposed system.  However, the Council should be careful not to establish an overly
flexible system.  What would be the status of a geographical indication listed on the database when a
Member decided to withdraw from the system, as the US/Japanese system would allow?  Would suchregistrations become invalid?  Although based on a voluntary system, the system proposed by the EC
would provide that, once a geographical indication was registered, it would be binding on all WTO
Members.  This would be counterbalanced by rights to oppose registration.  It should not be
understood as creating new obligations, as indeed any Member would have the opportunity to oppose
a registration under the EC proposal.
56. Continuing, he repeated his delegation's concern about the possible confusion between
trademark and geographical indication systems.  The specific nature of the protection of geographical
indications was embodied in the reference made to the quality and particular characteristics of a
product coming from a specific area;  a link with production in a specific area was alien to the
trademark system.  In addition, a trademark was limited in time, although renewable, while no suchdisposition existed for geographical indications.  His delegation believed that giving priority to the
trademark system would simply deny the specificity and the interests of having an ad hoc regime,IP/C/M/23
Page 13
such as that embodied in Section 3 of Part II of the TRIPS Agreement.  His delegation would examine
carefully what the representative of the United Stat es had said earlier with regard to some of the
specific components of her delegation's proposal.
57. Lastly, he wished to return to a point raised by a number of delegations, concerning the
possible extension of the system to products other than wines and spirits.  His delegation hadindicated at previous meetings that this question did not need to be decided yet, but the EC proposal
would certainly allow for such an extension at th e appropriate time.  However, in his delegation's
view, it was fairly clear that the present negotiating mandate was limited to wines and spirits and,
therefore, did not include other products.  The extension to other products would require prior
adoption of a clear mandate which the Council did not yet have.  The European Communities and
their member States were prepared to work in  a positive spirit in the Council on both issues in
parallel, but work on the built-in agenda should not be unnecessarily delayed by discussions of themandate.
58. The representative of the Czech Republic thanked the United States and Japan for having
presented their proposal for a multilateral system for the notification and registration of geographical
indications for wines and spirits.  Her delegation had been pleased to find some similarities with the
EC proposal, especially that both proposed systems were voluntary, quite simple, did not imposeundue administrative burdens and costs and facilitated the protection of geographical indications.
However, her delegation continued to be of the op inion that the additional protection for geographical
indications envisaged under Article 23 required a more complex and legally ambitious multilateral
system, as set out in the EC proposal.  When co mparing the two proposals, her delegation had found
the EC proposal more effective and truly multilateral.  Furthermore, her delegation appreciated that itallowed for the extension of the scope of protection to products other than wines and spirits, which
permitted Members to avoid duplication of efforts later during the review provided for under
Article 24.2.  Creating a database of geographical indications for wines and spirits protected under
national legislation and by multilateral agreements could be a first useful step towards a multilateral
registration system, but it did not meet the objective under Article 23.4.  An opposition procedure andlegal effects at the international level were missing in the US/Japanese proposal.  In addition, her
delegation was not attracted by the suggestion to use collective or certification marks to provide
protection for geographical indications.  In her delegation's opinion, geographical indications and
collective and certification marks – having other attributes – belonged to different systems of
protection.  The conditions applied to their use were basically different.  Her delegation did not think
it was possible to integrate the protection of geographical indications into a trademark system, nor
could it agree with a methodology which allowed the protection of geographical indications as
collective and certification marks in the multilateral system of registration of geographical indications
as a rule.
59. The representative of Australia said that her delegation continued to favour the approach
outlined in the US/Japanese proposal for reasons similar to those already outlined by other
delegations:  it was voluntary, it was not burdensome, it genuinely facilitated the protection ofgeographical indications at the level that was currently required by the TRIPS Agreement.  Her
delegation saw a real benefit in the kind of proposal that Japan and the United States had put forward
and considered the information that geographical indications conveyed, as well as anything else that
could be put on a label, especially for industry, to be genuinely trade-facilitating.  There seemed to be
some confusion in the Council between two issues which, like the European Communities and theirmember States, her delegation saw as quite separate:  on the one hand there was the question of the
type of register to be agreed upon, and on the other hand there was the question of the product
coverage of that register.  The question of coverage could best be dealt with separately.  There were a
number of issues involved:  there was clearly a mandate for wines, differing views existed regarding a
mandate for spirits, and there was clearly no mandate for other products, as the representative of theEuropean Communities had acknowledged.  In her delegation's view, extending the product coverage
would require a change to the TRIPS Agreement and could, if delegations so wished, be put on theIP/C/M/23
Page 14
table for consideration in future negotiations.  However, at present, the main task of the Council was
the consideration of the type of register to be agreed upon.  Her delegation believed that any such
register should be based on the current mandate, should be workable and inexpensive for all
Members, and it should be in line with current obligations, without creating any new obligations or
undermining existing obligations.  Her delegation remained concerned that the EC proposal alteredexisting obligations in a number of ways.  Firstly, current TRIPS obligations required Members to
provide the legal means to protect geographical indications, but did not specify any specific terms that
had to be protected.  This was a matter currently decided in Members' domestic jurisdictions.
Members currently had differing views on whether specific terms qualified as geographical
indications, were semi-generic or were generic.  It  seemed that the possible effect of the EC proposal
would be to take the choice of treatment of specific terms out of the domestic jurisdiction of Members
and place it in a system where the onus was reversed, so that, once on the register, a term must beprotected by Members unless an objection were made in a certain period of time.  Bearing in mind the
very large number of terms involved, her delegation had some concerns about how exactly Members
would be able to cope with lodging what could be  very labour-intensive objections, within the set
period of time.  One effect of this model would be that those Members who had the least resources to
lodge appeals against numerous individual terms would be those most likely to end up having toprotect them, and that those same Members were likely to be those who were also least well-equipped
to protect a large number of specific terms.  Sec ondly, she noted a certain tension in the EC proposal
between the voluntary nature of the register, clearly stipulated, and the meaning it attached to the
notion "multilateral".  Further, the proposal lacked some clarity as to what objections should be based
upon.  For example, the current provisions in Section 3 of Part II of the Agreement relating totrademarks were not reflected in the current EC proposal.  She expressed her delegation's interest in
knowing how, in practice or in detail, objections co uld be compared given the different systems that
Members had.  Thirdly, her delegation also had a concern regarding possible disputes.  Members were
currently open to challenge, or dispute settlement proceedings, if they were not providing the legal
means required by the TRIPS Agreement.  Would the effect of the system proposed by the EC be thatspecific terms would be "codified", making Member governments open to challenges for failing to
protect a specific term.  There were two related issues.  First, it would presumably not be a
permissible defence for a Member to argue that a particular term was not a geographical indication if
an objection had not been lodged within the one year time-frame. Second, there was a difference
between systems where geographical indications were protected or asserted more as an individual
right and those where they were protected by the state.  Her delegation shared the concerns raised by
other Members at previous meetings regarding the relationship between the proposed system and theexisting dispute settlement requirements and also wished to flag concerns relating to the TRIPS
obligations to grant national treatment and most-favoured-nation treatment.  In conclusion, her
delegation remained concerned that the EC had proposed a system that would seem to add
considerably to the work of both Members and the Secretariat and that, despite being burdensome,
labour-intensive and potentially expensive, was still imprecise.  For those reasons, her delegation wasinclined to follow a model which it believed achieved the aims of being genuinely facilitative of
protection, but did not raise problematic issues of additional burdens on Members in terms of the kind
of protection that they must provide to specific geographical indications or terms.
60. The representative of New Zealand said that his delegation believed that the joint proposal put
forward by Japan and the United States accorded with the system of registration and notification
envisaged by Article 23.4 of the TRIPS Agreement.   His delegation's support for this proposal was
based on a number of factors.  Firstly, the proposal did not introduce a further layer of obligations for
Members.  It was primarily an information register for Members.  It would require participating
Members to agree to refer to WTO lists of notified geographical indications when making decisions to
register or otherwise protect geographical indications through their national legislation, a processwhich was consistent with the objectives of Article 23.4.  Second, the proposal fully recognized
Article 23.1 of the TRIPS Agreement, in which Me mbers were entitled to implement, and had
implemented, the obligations contained in the Agreement in relation to geographical indications in a
variety of ways, all of which were entirely consistent with the TRIPS Agreement.  Third, the proposalIP/C/M/23
Page 15
was entirely voluntary with no implications for those Members who decided not to participate in the
system.  Fourth, the proposal did not appear to impose any undue burdens, in terms of finances and
resources, on the Secretariat or Members.  Finally, it recognized that, if a participating Member had
an objection to the listing of a geographical indication, any such objection would need to be pursued
via the domestic jurisdiction of the Member which had listed the purported geographical indication.With regard to the EC view that  the system to be established under Article 23.4 must, by necessity, be
a multilateral register, he noted that the final line of Article 23.4 referred to "those Members
participating in the system".  He understood this to mean that the system did not by necessity have to
apply across the board.  The EC representative had insisted that the system had to add value and yet
the first line of Article 23.4 read "In order to facilitate the protection of geographical indications for
wines …"  The word "facilitate" did not indicate that there was a necessity to add value or add extra
obligations and rights to Members.  He queried the EC representative's comment that its system wasvoluntary in nature and, in particular, he drew atte ntion to Part V of the EC proposal entitled "Legal
Implications".  Whilst a Member's right to lodge a geographical indication in the proposed scheme
was possibly voluntary, the voluntary nature ceased after one year, because one year after its
notification, a geographical indication would become "fully and indefinitely protected in all WTO
Members".  That seemed to go beyond the voluntary nature of the scheme and beyond whatArticle 23.4 envisaged.  He echoed the concerns of the representative of Australia about the resource
implications of the EC proposal, given the fact th at not only would Members have to be prepared to
look at all notifications in the first year period a nd lodge objections, but also there would be resource
implications in relation to potential disputes between opposing Members regarding geographical
indications.  He noted that the EC proposal referred to an appropriate mechanism that needed to bedevised in this regard, but did not provide guidance as to what such a mechanism might entail.
61. The representative of Hungary, while thanking the delegations of the United States and Japan
for their written proposal, said that his delegation was strongly attracted by the EC proposal which, in
its view, could constitute the foundation for the Council's work on Article 23.4.  Nevertheless, his
delegation had found the US/Japanese proposal interesting and could endorse some of its elements.As a general remark, Article 23.4 called for more ambitious action than the US/Japanese proposal
envisaged.  It provided for negotiations on the establishment of a multilateral system of notification
and registration for wines.  It seemed that the US/Japanese proposal concentrated on the first part of
the job, namely the establishment of a notification system, and the registry would simply compile
information provided by Members who wished to pa rticipate in the system.  In industrial property
jargon, a system of registration was by definition something that was expected to produce some sort
of legal effect.  The word "registration" was used in this sense in other parts of the TRIPS Agreement,most notably in Section 2 of Part II.  A database to which national authorities might or might not be
required to refer might not necessarily constitute a registration system in the industrial property
context.  His delegation believed that the US/Japanese proposal stopped short of providing for a
system that would settle potential disputes either  through an opposition or a consultation procedure.
This mechanism would be the heart of the system and would provide its major contribution to thefacilitation of the protection of geographical indications.  As far as the opposition procedure was
concerned, the EC proposal could be a solid basis and a starting-point for the Council's discussions.
The inclusion of an opposition or consultation proced ure in the system would not in any way question
national systems currently in place that were consistent with the obligations of Members under the
TRIPS Agreement with respect to geographical in dications.  The costs of the establishment and
operation of such a system should be measured not in absolute terms but in relation to the benefit
offered by the system.  He tended to agree with those who had said that transparency alone, if this was
the only advantage offered by the system, might not be sufficient to justify the costs apparently
involved.  His delegation, at this stage, had no problem with a system covering spirits, as well as
wines, and would find it useful if the system left open the possibility of extending the scope of theproduct coverage.IP/C/M/23
Page 16
62. The representative of Korea said that his delegation wished to endorse the joint proposal from
Japan and the United States, as it contained many elements with which his delegation could agree.  He
wished to put on record his delegation's preliminary opposition to extension of the product coverage.
63. The representative of Switzerland referred to the comments she had made at the previous
meeting concerning the fundamental principles of the Council's approach, which did not allow the
replacement of the system for the protection of geographical indications with a system for the
protection of collective or certification marks.  She agreed with the representative of the
Czech Republic that the functions of these systems were different.  Her delegation had difficulty
understanding the problems expressed by some delegations with the EC proposal.  Article 23.4
required specification of the commitments already accepted under Articles 23.1, 23.2 and 23.3;  this
was how her delegation understood the term "facilitate".  She would revert to the EC proposal at the
next meeting to clarify her comments further.  As to the US/Japanese proposal, at this stage, besidesthe general comments which she had already made, she wished to pose some questions.  She referred
to the last paragraph under point 2 where it was stated that WTO Members might decide to participate
in, and withdraw from, the system at any time.  What would be the legal effect of such withdrawal for
those Members who withdrew and for other Member s?  Would other Members be free no longer to
protect any geographical indication of a Member wh ich had withdrawn from the system?  Referring to
point 2 headed "Registration", she said that this system basically concerned a database.  However, it
did require recognition of similar systems by other Members, as well as administrative steps for
recognition of certain geographical indications including administrative work such as exchanges of
communications, arguments and objections. The appa rent simplicity of the proposed system was
misleading.  She would revert to this point at the next meeting.  Referring to point 3 headed "Legaleffects under national legislation", she sought cl arification of the meaning of the obligation that
Members would agree to refer to lists of notified geographical indications.  For example, what would
happen if an examiner did not take into account these geographical indications?
64. The representative of Morocco, while noting that the French version of the US/Japanese
proposal was not yet available, sought clarification on two points.  First, he recalled that, at the
previous meeting, the representative of the United States had stated that the proposed system could
include products other than wines and spirits and that his delegation was ready to discuss a possible
list of products.  Had the United States' delegation made a final decision on the extension of the
system to other products, and was it in favour of a closed list of products or a system open to all
products likely to be identified by their geographical origin?  These questions were important for his
delegation, which would not be in favour of a system which excluded its extension to other products
which could be identified by their geographical origin.  Second, his delegation wondered whetherthere would be a difference in the level of protection between a geographical indication
notified/registered under the system proposed by Japan and the United States and another not so
notified/registered and, if so, what would be that difference.  If there was no difference, what would
be the added value of the proposed system that might encourage Members to participate in the system.
65. The representative of Mexico said that her delegation continued to plan to submit a proposal
to the Council.
66. The representative of Argentina said that, as her delegation understood it, the register of
notifications should aim at facilitating the protection of geographical indications without generating
new obligations.  In achieving this objective, which was fundamental for her country, the register
should be voluntary and should be based on the definition of geographical indications under theTRIPS Agreement.  Her delegation had no problem with a notification system/register located in the
WTO Secretariat which would be automatic and simple.  Her delegation did not agree that the register
should include spirits and believed that the fact that spirits were part of the preliminary work of the
Council did not mean that there was consensus to create an international system of registering
geographical indications for spirits.  She agreed with others that the inclusion of other products wasIP/C/M/23
Page 17
not part of the mandate of the Council.  Her delegation believed that it was not an item of the built-in
agenda either.
67. The representative of the United States, responding to some of the questions raised and
comments made during the meeting, agreed with  the European Communities and Australia that it
might be wise to separate the Council's discussions on issues relating to the type of registration systemfrom those on the scope of the product coverage.  Although both concerned important issues, they
were not necessarily linked and could be discussed independently.  The US/Japanese proposal
circulated at the previous meeting was currently limited to wines and spirits.  As regards the
suggestion by the representative of the European Communities that there was no value-added in this
proposal, she expressed her delegation's concern, since the concept of additional value, as used by the
representative of the European Communities, seemed synonymous with additional obligations to
protect geographical indications.  For example, obligations to protect specific geographical indicationsor to take certain actions within certain time periods were not found in the TRIPS Agreement.  There
were no additional obligations under the US/Japanese proposal, but there was added value.  Currently,
there was no single list of geographical indications protected by WTO Members.  National authorities
had no single place to turn for this information.  With respect to the legal effect of ending
participation in the system in the US/Japanese pro posal, withdrawal from participation in the system
certainly would not lead to a lapse of protection for geographical indications.  This proposal neither
added to, nor detracted from, the TRIPS obligations to protect geographical indications.  The system
was entirely voluntary;  Members did not have to participate, nor to continue to participate in it, and
their decision to do or not to do so would not affect their rights or obligations under the TRIPS
Agreement.  With respect to the concern expressed arising from the additional United States papercirculated at the previous meeting (document IP/C/W/134), on the protection of geographical
indications through collective or certification marks, she said that in her delegation's view such a
system was certainly consistent with the TRIPS Agreement and was already in use in some Members,
representing one way in which they met their obligations under Section 3 of Part II of the Agreement.
She certainly did not suggest that such a system was the only one acceptable under the Agreement.The paper on this matter had only been put forward as a suggestion to be considered, particularly by
Members that might not currently protect geographical indications but had a trademark system in
place and were considering non-burdensome methods to implement their obligation to protect
geographical indications.
68. The representative of the European Communitie s recalled that many of the issues raised
concerning the EC proposal had already been raised at previous meetings.  His delegation was
working on responses to clarify those issues and, given that some Members had requested furtherclarification, his delegation would further reflect on these questions and revert to them at the next
meeting.
69. The Chairperson said that the matters raised deserved further thought and study.  Perhaps,
swifter progress could be made if the Council separated in its discussions the matter of the nature of
the system to be established from the matter of the product coverage.  Different models could bediscussed without prejudging whether the system w ould be extended to products other than wines and,
possibly, spirits.
70. The Council took note of the statements made and agreed
 to revert to the matter at its next
meeting.
I. E LECTRONIC COMMERCE
71. The Chairperson said that, as agreed by the Council at its meeting in February, he had
conveyed to the Chairman of the General Council, information on the steps taken by the
TRIPS Council to carry out that part of the Work Programme on Electronic Commerce that concerned
it, so as to facilitate the interim review that the General Council was to conduct on the implementationIP/C/M/23
Page 18
of the Work Programme as a whole.  This letter had subsequently been circulated as General Council
document WT/GC/21.  At the Council's meeting in February, the issue of electronic commerce had
been discussed on the basis of a factual background note that the Secretariat had prepared as requested
by the Council (document IP/C/W/128).  Delegations which had spoken had generally indicated that
their views were preliminary in nature and that they needed more time to study the matter before
providing comments on which aspects, if any, should be the subject of further work in the WTO
context, having regard to the work under way in ot her international fora.  The Council had agreed that
it would reserve enough time for a detailed discussion of the issue at the present meeting.  Finally, he
drew attention to a submission concerning the Work Programme by the European Communities and
their member States that had just been received.6
72. The representative of the European Communities said that, since the Council's previous
meeting, his delegation had reflected on those questions concerning electronic commerce that might
be relevant to the work of the TRIPS Council.  The submission that his delegation had just tabled
contained some general observations, including the fact that the technology neutral language of the
TRIPS Agreement was suitable to cover both on-lin e and off-line transmissions.  The document also
attempted to identify a number of specific issues.  The first was linked to the fact that intellectual
property rights, and the exceptions thereto, were territorially based.  It was appropriate to reflect onpossible implications, in particular in the area of industrial property, notably trademarks.  The
question of choice of law and proper forum to grant relief for infringements was a key issue, already
under discussion in WIPO.  The document also raised the question of whether or not there was a need
for additional protection, which might result from the current shortcomings of national and
international rules.  Another important question con cerned whether or not there was a need to clarify
certain basic concepts, such as the definition of publication, the country of origin, the right holder and
the treatment of transient copies.  He noted that the Secretariat background note had helped the
reflections of his delegation in this regard.  With regard to all these matters, the Council should be
aware of the results of the work done or underway in other fora.  He also referred to the issue of
Internet domain names, which was being discussed in WIPO, and to a document that the EuropeanCommunities had recently tabled in that context.  He concluded by noting that, while the submission
of his delegation identified a number of relevant matters, it did not contain, at this stage, precise
proposals as to whether or not it was indispensable or appropriate to look at these matters in the
TRIPS Council.  He would welcome questions, comments and submissions by other delegations.
73. The representative of Australia believed that, given the short time-frame left for discussion on
these matters, it would be useful to focus on some substantive issues, and that the Work Programme
provided an opportunity for Members to consider a general common position on the operation ofTRIPS provisions in the digital environment.  It might also create avenues by which to pursue, if
necessary, clarification or amendment of, or addition to, specific existing provisions in order to create
certainty regarding their application.  Welcoming the Secretariat's factual background paper on
TRIPS-related electronic commerce issues, she felt that the note's comprehensive outline of the issues,
and detailed account of relevant existing provisions and their possible limitations in the digitalenvironment, provided an excellent basis for Members to assess where the current rules applied, and
where the gaps and limits to those rules arose.  Her comments were intended to indicate some areas
where Australia believed there was potential for the Work Programme to lead to outcomes which
contributed to clarification of how TRIPS provisions applied in the digital environment.  In addition
to suggestions on general principles, her comments in tended to highlight specific points of substance
on which Australia placed priority, and where further discussion would be useful.  Such discussion
could focus first on Members' views on the substantive issues involved, in the context of national
experience to date, and second on the options available to deal with them.
74. She supported the Secretariat's statements regarding the applicability to electronic commerce
of the traditional objectives of the intellectual property system, and the relevance of TRIPS provisions
                                                     
6 Subsequently circulated as document IP/C/W/140.IP/C/M/23
Page 19
in the digital network environment.  This was in line with the Work Programme's general premise that
electronic commerce was simply another means of transacting commerce: it was not different in kind
from other forms of international commerce.  The corollary was that all WTO commitments relating
to trade, including rights and obligations under the TRIPS Agreement, applied regardless of whether
trade was conducted electronically or otherwise.  In particular, her delegation emphasized thefundamental importance of the WTO principle of non-discrimination, and its role as a ready-made
facilitator of electronic commerce.  From the perspective of both intellectual property and other WTO
disciplines, non-discrimination established the basic framework by which to ensure that borderless
commercial exchanges were conducted fairly and fr eely.  So too did the technology-neutral character
of the rules.  In addition to this general principle, it was also important to acknowledge that trade
conducted electronically generally had a high intellectual property content.  The high level of
engagement of intellectual property rules by electronic commerce, and the increasing magnitude ofthis means of conducting trade, placed greater emphasis on ensuring the effective implementation and
enforcement of the existing TRIPS provisions.  Developing effective enforcement measures for the
digital environment in turn created significant challenges.  Some of these had been addressed in the
1996 WIPO treaties on Copyright (WCT) and Performances and Phonograms (WPPT).  There was,
however, an ongoing need for Members further to explore available options, in the context of practicalexperience.  In this regard, she submitted that the terms of Article 69 of the Agreement, relating to
international cooperation to eliminate internationa l trade in goods infringing intellectual property
rights, should be interpreted to include infrin gements occurring in the electronic environment.
Australia believed there was much to be gained fr om the exchange of information on electronic trade
in infringing goods, and invited other delegations to come forward with national experiences in this
regard.  The creation of an informal database of the practical problems experienced by Members
would be a useful basis for ongoing discussions on how best to tackle the issues.  As electronic
commerce would grow in magnitude, and if countries were fully to take advantage of the potential
benefits of trade conducted electronically, there would be an increasing need to gain the benefits of
moving towards technology convergence.  This kind of environment had the potential to create moredilemmas over jurisdiction-based arguments, such as exhaustion of rights.
75. As regards new technologies and access to technology, she said that electronic commerce
technologies had vastly improved global access to technological information in patent documentation.
The whole fee structure with regard to access to patent documentation had been revolutionized by its
availability on the Internet.  Researchers and other interested parties in any part of the world were
now able to access patent documentation free, 24 hours a day.  The TRIPS-style system of facilitating
the flow of technological information had been vastly enhanced by electronic commerce.  Thechanges brought by electronic commerce were partic ularly beneficial to, for example, SMEs and
developing countries.  Further, the fact that the patent system might, under the TRIPS Agreement,
extend to new technologies, for example computer software, had led to increased accessibility to
state-of-the-art technologies in rapidly advancing ar eas.  This quality of the patent system represented
a considerable improvement over the now quite outdated trade secrets framework.  It had shifted thebalance between the protection of rights and disclosure of information in favour of the user.
76. On copyright, she said that her country was well advanced in the development of legislation to
implement the provisions of the 1996 WIPO Copyri ght Treaty (WCT).  She noted that the support for
the new WIPO treaties, as measured by signature and ratification/accession, was not confined to any
one economic or geographic group, suggesting that there could in time be broad support.  This, andthe need under the Work Programme to avoid duplication of work that was being or had been done in
other bodies, provided compelling reasons seriously to consider how the provisions of the two treaties
related to the TRIPS Agreement and how they might be used further to enhance the relevance of the
Agreement in the digital environment.  As regards the right of reproduction, the Secretariat's paper
included a reference to the agreed statement concerning Article 1(4) of the WCT, which clarified thatstorage of a protected work in digital form in an electronic medium constituted a reproduction within
the meaning of Article 9 of the Berne Convention.  She submitted that this was a useful clarification,
of relevance to the interpretation of the TRIPS Ag reement in the digital environment.  She urgedIP/C/M/23
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Members to consider options as to how the substance of this agreed statement might be extended to
the Agreement.  On collective management of copyright, she noted that electronic commerce
technologies might provide more cost-effective means of organizing rights clearance.  This was an
area where Australia considered that further discussion could be particularly beneficial.
77. As regards trademarks, Australia considered that there was a need to clarify what constituted
use of a trademark on the Internet.  This was relevant in the context of both defining trademark
infringement in the digital environment, and determ ining what would qualify as "use" for the purposes
of the requirement that a trademark be used in order to preserve its rights.  She also considered that
there might be a trademark use issue related to the classification of goods and services in the digital
environment, namely whether a trademark had been used (in the relevant sense) in respect of goods or
services, or both.  While the obligation to protect trademarks, especially well-known marks, applied in
the digital environment, she submitted that the obligation should not be applied in a way that extendedthe effective scope of protection available in the conventional commercial sphere.  An appropriate
balance must be struck between the interests of the trademark owner and those of other traders.  She
noted the current WIPO international process on do main names.  If the outcomes of this process,
which had been both geographically inclusive and had canvassed the views of all interested parties,
attracted widespread support, she would submit that this could serve as a useful basis forconsideration of trademark/domain name issues by the Council.
78. The representative of Hong Kong, China broa dly shared the assessment contained in the
Secretariat background note that the traditional principles of copyright were sufficiently flexible to
accommodate issues rising from electronic commerce.  At the previous meeting of the Council, her
delegation had highlighted three priority areas, namely the definition of publication, determination ofthe right holders eligible for protection, and enforcement of rights and remedies.  She noted that some
of these elements had been referred to in the submission by the EC, for example in the context of
clarification of certain basic concepts.  Her delegation would study that submission, and reserve
further comments until the next meeting.
79. The representative of Uruguay said that it was important that the General Council should carry
out its interim review, which it unfortunately had not been able to do at its meeting of 14 April 1999,
and study the interim reports of the four bodies concerned.  In the meantime, and without prejudice to
the outcome of the interim review, the TRIPS Council should continue to work towards as complete a
report as possible.  While his delegation was still analysing the Secretariat's background note, he
wished to make certain preliminary comments.  This note, as well as the Secretariat's note submitted
to the General Council on 14 July 1998 (document WT/GC/W/90), referred to a number of important
issues that needed to be analysed.  First, given the borderless nature of the Internet, it was difficult todetermine how territorially based laws should be applied.  Activities carried out on a worldwide net
gave rise to problems as to applicable law.  Secondly, as regards copyright and related rights, he said
that, while the Internet and other electronic networks provided new means of distributing protected
material, having secure conditions for the distribution was important for the full expansion and
exploitation of this new medium.  Thirdly, as regards trademarks, it should be asked, as was done inthe Secretariat's background note (document IP/C/W/128 ), whether the present system of registering
trademarks on a territorial basis sufficed for the new borderless electronic marketplace.  Fourthly, as
regards domain names, as had been indicated by several delegations, he felt that it was necessary to
have the final report of the WIPO domain name pro cess, which was expected to be published shortly
and wondered whether the Council should consider the possibility of requesting WIPO to make a
summary presentation of the report, once it was available.  Lastly, he underlined the importance of the
international conference WIPO was convening on electronic commerce and intellectual property that
would take place from 14 to 16 September 1999.
80. The representative of the United States said that her delegation hoped to submit a paper on
electronic commerce and intellectual property in the near future, and urged other Members also to
submit their views in writing.  Electronic commerce could play an enormous role in facilitating theIP/C/M/23
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global creation, transmission and exchange of intellectual property.  Given this potential, all Members
had a great stake in the environment for the protection of intellectual property that could be
transmitted electronically.  Without such protection the potential that electronic commerce could
provide in stimulating creativity worldwide would be greatly restricted.
81. The representative of Mexico reiterated that it was important to avoid duplication of efforts
with respect to activities concerning electronic commerce and intellectual property that were carried
out in other fora.
82. The representative of Argentina said that the Secretariat background note was the first
comprehensive document on the intellectual property aspects of electronic commerce, and that the
Council should continue its discussion and in-depth analysis of this issue.
83. The representatives of Canada, Egypt , Japan  and India  said that they would study the
submission by the EC and wished to continue the discussion in the Council.  The representatives of
Egypt and Japan  added that the Council should closel y follow the developments in WIPO.
84. The representative of Brazil expressed his support for Uruguay's suggestion to invite a
representative of WIPO to present the results of the report of the WIPO domain name process to the
Council.
85. The representative of Korea referred to the work in WIPO by the Standing Committee on the
Law of Trademarks, Industrial Designs and Geographic al Indications and in the context of the domain
name process, and supported the suggestion that th e Council should keep itself informed as to how
this work was progressing.
86. The representative of Turkey informed the Council that an Electronic Commerce Coordination
Committee, formed in his country in early 1998, had been working in the framework of a pilot
project.  As regards electronic commerce and intellectual property, the Committee had underlined two
basic objectives in its Executive Report, which had been officially adopted by the Government.  These
two objectives could be summarized as follows.  Firs t, instead of introducing new exclusive rights for
the electronic environment, it was considered important to develop new technologies to prevent
intellectual property infringements.  Secondly, Turkey was in favour of becoming a party to the newWIPO Copyright Treaty and WIPO Performances and Phonograms Treaty, and meeting the
requirements in these treaties concerning rights management information.
87. The Chairperson proposed, as suggested by the representatives of Uruguay and Brazil, that the
Council would invite the International Bureau of WIPO to present the results of the WIPO domain
name process at its next meeting.  The Council could take this opportunity to request the International
Bureau to inform it also about other relevant developments in WIPO's work of relevance to issues of
electronic commerce.  He also proposed that the Council continue its substantive discussions of thematter at its next meeting, and at that meeting decide on its report to the General Council, which was
due by 30 July 1999.
88. The Council took note of the statements made and agreed
 to proceed as proposed by the
Chairperson.
J. R EVIEW OF THE PROVISIONS OF ARTICLE 27.3( B)
89. The Chairperson recalled that, at its meeting in December 1998, the Council had had an initial
exchange of views on how the review of the provisions of Article 27.3(b) of the Agreement should be
carried out.  In the light of informal consultations on the matter, it had been agreed to initiate the
review process through an information-gathering exercise.  First, those Members that were already
under an obligation to apply Article 27.3(b) had been invited to provide, by 1 February 1999,IP/C/M/23
Page 22
information on how the matters addressed in this provision were presently treated in their national
law.  Other Members had been invited to provide such information on a best endeavours basis.  The
FAO, the Secretariat of the Convention on Biological Diversity ("CBD") and UPOV had been invited
to provide factual information on their activities of relevance.  This information-gathering was
understood to be without prejudice to the nature of the review provided for in Article 27.3(b) and,once information had been received, the Council woul d revert to the question of whether any further
information might be requested from the Secretar iat.  By the time of the Council's meeting in
February, information had been received from the following Members in response to the Council's
request:  Bulgaria, Canada, the Czech Republic, the European Communities and their member States,
Hungary, Japan, Korea, New Zealand, Poland, Roma nia, Slovenia, the United States and Zambia.
The contributions from these Members were available in documents IP/C/W/125 and addenda.
Information had also been provided by UPOV and the CBD Secretariat;  this information wasavailable in documents IP/C/W/130 and Add.1. Since that meeting, contributions had been received
from Australia, Morocco, Switzerland, South Africa and the FAO.  These would also be available as
addenda to documents IP/C/W/125 and IP/C/W/130 respectively.
90. He further recalled that the Council had agreed, at the last meeting, that the Secretariat be
asked to compile, in an informal note, the information received from Members in the form of astructured summary overview.  At the informal consultations held prior to the meeting, the Secretariat
had indicated that it was finalizing its work on this paper and had informed Members that the paper
would be available within two weeks.  Many de legations had emphasized the need to pursue this
element of the agenda with urgency and the importance of setting aside sufficient time for a thorough
discussion of this matter at the Council's July session.  Given that additional effort would be requiredso that the work on the review could be finalized by  the end of the year, the Council should discuss at
that time how it should be carried forward in an expedite manner.
91. The representative of India said that his delegation was looking forward to discussing the
Secretariat's note.  However, in his delegation's view , the urgency also related to something larger and
more substantive, provided for in Article 27.3(b).  Since the word employed by this provision was"shall", there was an obligation for the TRIPS Counc il to review the provisions of the subparagraph.
His delegation was not opposed to the information-gathering exercise that the Council was engaged
in, but wished to indicate to the TRIPS Council, formally, that there were much larger issues which
needed to be addressed by the Council if Members were to remain faithful to the language of
Article 27.3(b).  The provisions themselves had to be reviewed and, in that context, the patenting of
life forms and the implications thereof were, for instance, important issues to be addressed.  The
relationship with the Convention on Biological Diversity was another important issue.  India hoped topresent, at the July meeting, a proposal on this matter.  His delegation would welcome comments on
his statement.
92. The Chairperson clarified that the sense of urgency he had mentioned concerned all issues to
be addressed in the review of the provisions of Article 27.3(b) by the end of the year.  Therefore, at
the July meeting, the Council should decide on the modalities, both formal and informal, to beadopted with a view to the completion of its task.
93. The representative of the Philippines agreed with India that the review of Article 27.3(b)
should not be limited to how WTO Members had implemented Article 27.3(b).  However useful that
was, doing only that would not be in compliance with the mandate of this provision.  Like India, his
delegation reserved its right to submit proposals aiming at possible changes in the text ofArticle 27.3(b), which, in his view, were contemplated by the provision.
94. The representative of the European Communities said that, in his delegation's view, the
exercise should be limited to the examination of the implementation of Article 27.3(b) through
national laws.  His delegation had accepted to have a broad discussion on the matter at the next
Council's meeting, but the French version of Article 27.3(b) said very clearly that the exercise shouldIP/C/M/23
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consist of réexaminer , and not réviser  or changer  the provisions in question.  Therefore, it was not
clear for his delegation that the Council, by the end of the year, should have received concrete
proposals aiming at amending the provisions of Article 27.3(b).  Nonetheless, he had an open mind
with respect to the discussion to be entertained in July and he agreed that, based on that discussion,
the Council should agree on how th e work would be carried forward.
95. The representative of Turkey said that his delegation would provide information concerning
legislation implementing Article 27.3(b) soon, in response to the questionnaire prepared under the
review procedure.  Regarding the protection of plant varieties, the Turkish Ministry of Agriculture
had completed the preparation of a draft law called "Protection of Breeders' Rights on New Plant
Varieties" in February 1999 and expected to introduce this draft, which would establish a sui generis
system, to the new Parliament in 1999.  He also informed the Council that Turkey had met all the
criteria provided for by the UPOV Convention of 1991.
96. The representative of Pakistan, addressing the issue of the scope of the review exercise, said
that, even though, in French, the text of Article 27.3(b) might call for a mere "revisiting" and not a
"reviewing", the English text was fairly clear.  Therefore, he supported the statements made by the
delegates of India and the Philippines.  For his delegation, the exercise consisted of a substantive
review of the provisions.  Secondly, he realized that there would be a need for further discussions atthe July meeting, but it was premature for Memb ers to commit themselves to entertain informal
discussions after July.  First, it would be necessary to take stock of how Members would wish to
structure the discussions to be held after the July meeting.
97. The Chairperson said that it was his intention to  keep this topic on the agenda of the informal
and the formal meetings in July, so that the C ouncil could decide then how future work would be
organized.
98. The representative of India welcomed the statement by the delegation of the European
Communities that it would keep an open mind, which he expected all delegations to have, at the very
least.  As regards the word "reexamine", this was, in his understanding, even stronger than the word
"review".  If the Council were to "reexamine" the provisions of Article 27.3(b), it should not just doinformation-gathering, it should also look at the whole provision again and see if its words had the
same meaning as when the provisions were drafted.
99. The representative of the United States noted that the material contained in the submissions
received to date from various Members was extremely complex, despite attempts to express it in
relatively simple terms.  In addition, each submission had to be referred to experts in capitals for their
consideration and comment.  She looked forward to receiving soon the final version of the structured
summary in preparation by the Secretariat and believed it would be a very useful tool in simplifyingthe study and providing a point of comparison for the information received relevant to Article 27.3(b).
Her delegation recommended that all TRIPS Council Members review the documents submitted to
date on the basis of the structured summary and that the Council discuss the information presented by
the submissions at its July meeting.  She had listened with interest to the comments that other
delegations had made, expressing their wish to discuss larger issues.  She had heard the suggestionthat additional meetings in the fall might be needed for that purpose.  Her delegation would agree with
the interpretation, expressed by the European Comm unities, that it was not obvious that this was
required by Article 27.3(b), but it also had an open mind and certainly did not oppose discussions of
issues that Members wished to raise.  She agreed with the statement by Pakistan that Members first
needed to take stock of how Members would wish to structure the discussions.  It had been suggestedin the past that perhaps the meetings previously  scheduled for the TRIPS Council for the fall might
not be necessary.  Did the present discussions not show the opposite?  She suggested that, at the July
meeting, Members proceed with an in-depth examin ation of the structured summary to be received
shortly from the Secretariat and also take stock of other issues that Members might wish to raise.  IfIP/C/M/23
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the Council would consider such necessary, these issues could be pursued further at the meetings
currently scheduled for September and November, if the Council deemed them necessary.
100. The representative of Brazil reconfirmed his delegation's view that the review of
Article 27.3(b) entailed more than only an information-gathering exercise.  His delegation reserved its
right to submit specific proposals on this matter.  He strongly supported the statements of India,Pakistan and the Philippines in this regard.
101. The representative of Malaysia said that his delegation, like other delegations, understood that
what Article 27.3(b) essentially called for was a review of the provisions and not a review of their
implementation.  As far as his delegation was concerned, it would go by the English version of the
TRIPS Agreement, even though he accepted that both the English and the French versions were
equally genuine.  He recalled that, at the meeting in December 1998, when the Council had agreed to
the information-gathering exercise, several delegations had stated that the exercise would be withoutprejudice as to how the review would proceed.  This would be just a first step in the review, because
Members needed to know what had been done regarding the implementation of Article 27.3(b).  As
for the need for informal meetings to discuss this matter, a decision should not be made before the
July meeting.
102. The representative of Egypt supported the views expressed by India and other delegations that
Article 27.3(b) contained a larger issue than merely information-gathering.  His delegation welcomed
and appreciated the gathering of information, in or der to help Members know how national experience
had developed in this field.  But it was looking forward to receiving further submissions and proposals
from other Members in order to see how the Council could revise the provisions of Article 27.3(b)
and see whether any amendments could be introduced.
103. The representative of the Philippines welcomed the open minds of those delegations who had
believed that the review of Article 27.3(b) was lim ited to a review of its implementation.  He wished
to point out that there were differences in language between Article 71.1 and Article 27.3(b).
Article 71.1 said that the Council for TRIPS shall review the implementation of the Agreement.
Article 27.3(b) said that the provisions of this paragr aph shall be reviewed after four years.  Therefore,
his delegation submitted that, if the intention had been just to review the implementation of
Article 27.3(b), then Article 71.1 and Article 27.3(b) would have had the same language.  Since their
language was different, they could not have the same meaning.
104. The representative of Venezuela said that his delegation had the same view as India, Brazil,
Malaysia and some other delegations as regards the interpretation of the last sentence of
Article 27.3(b).  Moreover, reviewing the provisions of subparagraph (b), which contained exceptions
to patentability and exceptions to such exceptions, would necessarily entail a review of the whole ofparagraph 3 of Article 27.  Reviewing these provisions encompassed their possible amendment.  Since
this implied that Members were entitled to presen t proposals for amendment of these provisions, i.e.
to add to the rights conferred under them, widen the exceptions or complement the provisions, he
compared Article 27.3(b) and its review to Pandora's box.
105. The representative of Switzerland said that it was important that Members proceed first with
the gathering of information.  The material provided by Members that were already under an
obligation to apply Article 27.3(b) was so rich and complex that some time would be required for
Members to digest it.  However, her delegation was open to discuss any proposals that might be
submitted in the future.
106. The Chairperson said the document in preparati on by the Secretariat would constitute a basis
for future debates.  He said that a considerable amount of time would be necessary for a substantive
discussion at the July meeting.  He noted that there was a debate over the mandate contained in
Article 27.3(b), some Members understanding that the review called for in that provision should notIP/C/M/23
Page 25
be limited to gathering information on its implementation, but also for a review of the provisions
themselves.  The difference seemed to relate to how the word "review" should be interpreted.  He
suggested that the Council have a substantive discussion on the matter in July, both in the informal
and formal sessions, and also decide, at that time, on how to carry the work forward.
107. The Council took note of the statements made and agreed  to proceed as suggested by the
Chair.
K. A RTICLE 64.3
108. 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 ("non-violation" disputes) made pursuant to the TRIPS Agreement.  Just prior to the
Council's previous meeting, the Secretariat had circulated a factual background note
(document IP/C/W/124) on experience with disputes so far under the TRIPS Agreement, includingany references made to non-violation issues, the negotiating history of paragraphs 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.  A paper on the matter from the delegation of Canada had been circulated in document
IP/C/W/127.  At the previous meeting, several delegations had indicated that they were still studyingthe matter and the Council had agreed to revert to the matter at the present meeting.  He drew
attention to a joint proposal that had just been received from Cuba, the Dominican Republic, Egypt,
Indonesia, Malaysia and Pakistan.
7
109. The representative of Egypt, speaking on behalf of the six delegations that had tabled a joint
proposal,7 introduced the proposal by summarizing the main elements of the paper.  He first stressed
that the TRIPS Agreement exempted the applicability of non-violation complaints for a period of five
years (Article 64.2) and that the scope and modalities for such complaints were currently under
consideration by the Council (Article 64.3).  It was also a fact that the non-violation remedy was
designed under GATT to protect agreed tariff reductions and reciprocal tariff concessions in the area
of trade in goods.  It was a complicated issue to assess the implications of the application of the non-violation remedy to obligations under the TRIPS Agreement;  this required a careful and detailed
consideration due to the limited experience in this field.  In this context, he welcomed both the
Secretariat's and Canada's contributions in this regard, sharing Canada's concern that the application
of the non-violation remedy in the area of intellectual property might constrain Members' ability to
introduce new and perhaps vital social, economic, developmental, health, environmental and cultural
measures and might have an impact on existing policies in these areas.  Taking into consideration that
developing countries were currently enjoying transitional periods, most of them were not in a positionto assess the implications of the application of the non-violation remedy in the area of intellectual
property.  Therefore, the six delegations on whose behalf he spoke proposed an extension of the time-
period referred to in Article 64.2 for an adequate time until the implications of such a remedy in the
area of intellectual property were better understood and the possible scope and modalities had been
adequately addressed in accordance with Article 64.3 of the TRIPS Agreement.
110. The representative of Hungary, also speaking on behalf of Bulgaria, the Czech Republic,
Romania, the Slovak Republic and Slovenia, thanked the Secretariat for its informative background
document (document IP/C/W/124) and especially the delegation of Canada for its valuable written
contribution (document IP/C/W/127).  He welcomed that, in accordance with Article 64.3 of the
TRIPS Agreement, the Council had started the examination of the scope and modalities of non-violation disputes in the TRIPS context.  He believed that the issue at hand was a very complex one
and deserved substantive and in-depth analysis and discussion.  He thought that the work was at its
preliminary stages and, since the Council was exploring uncharted waters, he believed that it should
                                                     
7 Subsequently distributed as document IP/C/W/141.IP/C/M/23
Page 26
start by trying to understand fully the concept of non-violation in the TRIPS context, and its
applicability to intellectual property issues.  The delegations on whose behalf he spoke were still
examining the issue and the documents circulated with  respect to it but, as a preliminary view, they
were not convinced of the need for, and the applicability of, the non-violation remedy under the
TRIPS Agreement.  These delegations shared the view expressed in paragraph 41 of the AppellateBody Report on India – Patent Protection for Pharmaceutical and Agricultural Chemical Products
(document WT/DS50/AB/R) that " non-violation complaints are rooted in the GATT's origins as an
agreement intended to protect the reciprocal tariff concessions negotiated among the contracting
parties under Article II".  Therefore, "the non-violation provision of Article XXIII:1(b) was aimed at
preventing contracting parties from using non-tariff barriers or other policy measures to negate the
benefits of negotiated tariff concessions".  It was difficult to see the analogy between tariff
concessions or specific concessions under the GATS, on the one hand, and the minimum rights ofnationals to be provided for by a WTO Member on the basis of the TRIPS Agreement, on the other
hand.  The delegations on whose behalf he spoke collectively thought that the scope of the non-
violation remedy in the TRIPS context was very unclear and uncertain (especially bearing in mind the
different views as to the content of benefits/reaso nable expectations).  They also feared that the
introduction of non-violation remedies in the TRIPS c ontext, as elaborated eloquently in the Canadian
paper, might take away government regulatory options with respect to the protection of life, health
and the environment.  While understanding that Article 26 of the DSU set out special procedures for
non-violation complaints, these special safeguards did not convince them of the need for, or
applicability of, the non-violation remedy in the TRIPS context.  The CEFTA countries were
beginning this exercise with an open mind and looked forward to the arguments and comments thatwould be made by other delegations.
111. The representative of India lent his delegation's strong support to the thrust of the joint
proposal that had just been introduced by Egypt and said that India had not co-sponsored it because it
did not go far enough:  it proposed an extension of the moratorium, whilst his delegation believed that
the non-violation remedy should never apply to disputes under the TRIPS Agreement.  His delegationdid not believe that the moratorium should be extended but, rather, the Council should recommend to
the Ministerial Conference that non-violation should henceforth cease to apply in the context of the
TRIPS Agreement.  He did not believe that any additional arguments could be made besides those
which had already been made by the representative of Hungary on behalf of the CEFTA countries,
and in the paper which had been presented by Canada (document IP/C/W/127).  Nevertheless, he
wished to repeat some of their comments.  First,  the non-violation provision of the GATT was aimed
at preventing contracting parties from using non-tariff barriers and other policy measures to negate thebenefits of negotiated tariff concessions.  In other words, it was intended to protect reciprocal tariff
concessions and that was simply inapplicable in the context of the TRIPS Agreement.  The
fundamental objectives of the GATT or GATS were totally different from those of the TRIPS
Agreement.  On the one hand, the GATT, as his delegation saw it, was about regulating competitive
relationships.  On the other hand, the TRIPS Agreement, was not about competition.  Indeed, it couldbe argued that the TRIPS Agreement was, in a sense, anti-competitive in nature where it sought to
reward inventors.  The TRIPS Agreement was about minimum standards of treatment, not about equal
treatment of competitors.  This was the fundamental difference between the GATT and GATS on the
one hand, and the TRIPS Agreement on the other.  He suggested that, if delegations wished to enter
into this exercise with an open mind, he would be interested to hear those delegations which had acontrary view rebutting the legal arguments that had been put by others.  Lastly, his delegation
believed that, if the Council allowed non-violation to apply to the TRIPS Agreement, the balance of
rights and obligations in the WTO would undergo a significant change and his delegation was not
prepared for that.
112. The representative of Hong Kong, China also in dicated his delegation's strong support for the
proposal that had been introduced by Egypt, and thanked the representatives of Hungary and India for
their comments, and the delegation of Canada for its paper.  His delegation shared many of the views
which these delegations had expressed.  He also expressed his delegation's appreciation for theIP/C/M/23
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detailed and thorough research by the Secretariat in producing the comprehensive background note
(document IP/C/W/124), which his delegation had given careful consideration.  He wished to
highlight the following important points in the Secr etariat note.  First, he referred to paragraph 4,
which quoted paragraph 41 of the Appellate Body Report on India – Patent Protection for
Pharmaceutical and Agricultural Chemical Products  (document WT/DS50/AB/R), and emphasized
that non-violation complaints were rooted in the GA TT's origins as an agreement intended to protect
reciprocal tariff concessions negotiated among the contracting parties under GATT Article II.  Then,
he referred to paragraph 14 and said that the relevant drafting history concerning Article 8 of the
TRIPS Agreement showed that there had been a comprehensive debate during the Uruguay Round on
issues relating to non-violation cases.  Some Members had said before, in this and other fora, that the
TRIPS Agreement represented a delicate balance of all Members' interests at the end of the Uruguay
Round.  The Council needed to tread carefully on Article 64.3, which was a built-in agenda item, thathad the potential to affect the rights and obligations of Members under the TRIPS Agreement.  His
delegation's reading of Article XXIII:1(b) was that the term "benefit" in that context had traditionally
been a negotiated reciprocal trade concession, which later proved to have been negated by non-tariff
barriers or other policy measures adopted by another contracting party.  On the other hand, the TRIPS
Agreement protected the intellectual property rights  of the nationals of all WTO Members.  It was
difficult to see the analogy between a tariff concession negotiated and accepted by all WTO Members
with the multilateral recognition of rights of nationals under the TRIPS Agreement, where it could be
said that nothing had been given away.  Much had been said recently in another WTO body about the
danger of individual Members resorting to unilateralism.  There was a concern that non-violation
complaints might belong to the same "generic variety".  The Council needed to be further educated toallay that particular concern.  His delegation therefore shared the serious concerns of many Members
about the use of the non-violation remedy in th e context of the TRIPS Agreement.  That said,
Article 64.3 was an important built-in agenda item per se .  The Council needed to ask itself what were
the possible systemic and practical implications of allowing such a remedy.  Like other developing
Members, Hong Kong, China did not yet have the benefit of having formally implemented the TRIPSAgreement.  His delegation would therefore appr eciate more education and understanding of this
provision before the Council would come to any conclusion.  Many of the points made by the
representative of India needed to be answered.
113. The representative of Malaysia, speaking on behalf of the ASEAN countries Members of the
WTO, recalled that Malaysia had co-sponsored the paper introduced by the representative of Egypt.
Other ASEAN member countries had been unable to co-sponsor the paper due to logistical reasons
but they fully supported the proposal it contained.  He re-emphasized the fact that this subject was ofextreme importance to the delegations on behalf of which he spoke for all the reasons that had been
stated by several delegations in the meeting.  The time-frame referred to in Article 64.2 should be
extended for an adequate time until the complexity of the implications of not doing so were fully
understood.  Having heard the intervention by the representative of India, he was very tempted to
recommend to his capital that his delegation should adopt the same position as India.
114. The representative of the United States commended the Secretariat for its excellent and
thorough background note tracing the history of non- violation disputes in the GATT and the WTO.
This scholarly work highlighted the high standards and limitations of this type of remedy and the
safeguards associated with it and should eliminate many of the concerns that had been expressed
regarding non-violation nullification and impairment disputes, particularly the concern that expirationof the moratorium would result in a large number of  disputes claiming non-violation nullification and
impairment.  As stated at the previous meeting, the United States believed that it was appropriate for
the moratorium provided by Article 64.2 of the TRIPS Agreement to expire on 1 January 2000.  Prior
to that time, her delegation welcomed a full discussion of the scope and modalities of non-violation
complaints.  The possibility of non-violation nulli fication and impairment disputes had been part of
the GATT dispute settlement system since its beginning.  Failure to allow the possibility in
connection with the TRIPS Agreement would ultimately invite creative law- and regulation-writing
by any Member that might be dissatisfied by particular provisions of the TRIPS Agreement and whichIP/C/M/23
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wished to avoid obligations.  The TRIPS Agreement was part of the multilateral trading system and
should provide Members with the same security and predictability that was available in relation to
other WTO agreements.  Her delegation believed that the benefits accruing to Members under the
TRIPS Agreement could be determined as those deriving from the GATT were determined.  These
benefits would include national treatment and most-favoured-nation treatment accorded to eachMember's nationals;  the level of protection provided to each Member's nationals to each form of
intellectual property covered by the TRIPS Agreemen t;  the extension of the obligations to subject-
matter existing on the date of application of the TRIPS Agreement;  as well as other benefits.  Some
Members had expressed concern that the possibility of non-violation nullification and impairment
cases had the potential to undermine Members' regulatory authority, in particular in relation to areas
where governments exercised regulatory authority in support of policy objectives such as health and
environmental protection.  Her delegation believed that this concern was unfounded.  The TRIPSAgreement was carefully negotiated to be sufficiently flexible to recognize different legal regimes and
to accommodate Members' needs to achieve different policy objectives.  The availability of non-
violation nullification and impairment cases would merely provide security and predictability and
help ensure that the TRIPS Agreement's flexibil ity was not misused in order to avoid legitimate
obligations.  The United States believed that Article 26 of the DSU provided all of the necessaryassurances and safeguards for Members to handle any disputes that might arise alleging non-violation
nullification and impairment under the TRIPS Agreement and to prevent any abuse of the dispute
settlement process.  She reiterated her delegation's strong view that the United States could not agree
to the proposal that had been put forward, which would diminish the rights of Members under the
TRIPS Agreement and weaken the obligations under it.
115. The representative of Mexico said that, on the basis of a preliminary consideration of the
Secretariat note, her delegation had two observations.  First, there was very little experience in the use
of Article XXIII:1(b) and (c) under the GATT and the WTO.  Second, in the GATS context, the scope
of the remedy of non-violation nullification and impairment had been reduced.  In view of the
possible implications of Article XXIII:1(b) and (c) in the area of the TRIPS Agreement, herdelegation considered it necessary for the Council to continue detailed study to define the scope and
modalities of the application of these provisions in the sphere of the TRIPS Agreement, bearing in
mind the specific characteristics of the provisions of this Agreement.  Her delegation was grateful for
the contribution made by Egypt and other Members, which she would send to her capital for study.
Her capital was also analysing the paper by Canada.
116. The representative of Korea wished to put on record his delegation's strong support for those
delegations that had expressed their concern about this issue.  Experience from the past showed that
very few non-violation complaints had been reported.  In his delegation's view, this was proof of the
complexity of its definition and concept, especially with regard to its scope and modalities.
Moreover, under the present circumstances, where there was very limited experience, the
unconditional introduction of the non-violation remedy would only cause uncertainty in the area of
intellectual property.  Therefore, his delegation believed that the transitional period should beextended or, preferably, the remedy should be excluded from application in the area of intellectual
property.
117. The representative of Japan said that the lack of a common view on the essential elements of
the remedy made the application of the non-violation clause unpredictable.  In this sense, his
delegation sympathized with the concern expressed by  previous speakers and would be favourable to
carrying out case studies on the kinds or types of possible non-violation claims.  This sort of study
would be practical and pragmatic.  If WTO Members shared the view that certain types of
governmental measures were covered by non-violation claims under the TRIPS Agreement, any
Member could ascertain that such measures were to be avoided.  On the other hand, if Members
agreed that certain measures were not intended to be covered by non-violation claims, Members
would be permitted to take such measures.  Even if Members did not share the same view, eachIP/C/M/23
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Member could ascertain the views of other Members and could judge whether or not to implement
such measures and run the risk of dispute settlement procedures being initiated against them.
118. The representative of New Zealand said that, whilst his delegation was still studying this issue,
it had a number of preliminary comments, which largely echoed comments made by other
delegations.  He thanked the Secretariat for its background note and, in particular, its review of thejurisprudence in this area.  When one looked at the Secretariat's background note and reviewed
jurisprudence from the GATT and the WTO, one realized that a finding of nullification and
impairment of a benefit pursuant to Article XXIII: 1(b) of the GATT ultimately depended on whether
the complainant party, at the time of tariff negotiations, could be assumed to have had a reasonable
expectation that the other party would not introduce a measure upsetting a benefit invariably
established by a tariff concession.  In contrast, the notion of a benefit in the TRIPS context would
appear to be quite different.  The TRIPS Agreement did not provide for reciprocal tariff bindings orcommitments in addition to the general rights and obligations under the Agreement itself;  it was
simply an agreement which sought to protect intellectual property rights at the multilateral level
through minimum standards, whilst at the same tim e recognizing that there might well be differences
in the forms of protection and in the nature of enforcement of intellectual property rights among
Members.  In some respects, one could say that such benefits were of a more intangible nature whenthey stood beside the benefits that flowed from tariff concessions.  In such circumstances, his
delegation believed that Canada's paper and the interventions of Egypt and Hungary, on behalf of a
number of Members, and other interventions by Members, highlighted that there were differences
between the GATT environment and the TRIPS envi ronment.  This was something with which
Members needed to grapple as part of the review process under Article 64.
119. The representative of Sri Lanka said that most delegations which had made written
submissions or oral interventions on this issue had favoured the view that the non-application of non-
violation to disputes under the TRIPS Agreement for a period of only five years would not be to the
benefit of developing countries.  Her delegation agreed with the arguments put forward by these
delegations.  Even in situations where benefits had been nullified or impaired due to non-violatingmeasures in the past, the development perspective of a country should be taken into consideration,
especially in the context of the TRIPS Agreement.  The limited number of non-violation cases to date
showed that non-violation should apply only in a very limited way.
120. The representative of the Philippines  first wished to address the textual implications of the
provision under discussion.  There was a proposal on the floor of the Council to extend the period of
five years.  Whilst Article 64.3 said that consensus was required to extend this period, it also said that
the Council was supposed to discuss the scope and modalities, the outcome of which also requiredconsensus.  He submitted that, if ever the Council continued discussing this issue, and it could not
achieve a consensus on extension or a consensus on scope and modalities, there was no way in which
Article XXIII:1(b) and (c) would apply under the TRIPS Agreement.  That was his delegation's
reading of the provision.  He had hoped to hear from the proponents of the application of
Article XXIII:1(b) and (c) to disputes under the TRIPS Agreement, what arguments they had for theintrinsic legitimacy of those provisions as such an d in relation to the TRIPS Agreement.  So far, he
had only heard arguments that these provisions should apply because they were already there.  He
would have preferred some exercise in apologetics to establish its legitimacy.  Some had said that
non-violation nullification and impairment was applicab le in the GATT in respect of reciprocal tariff
concessions, but this did not take account of the fact that in the GATT, prior to the establishment ofthe WTO, no panel recommendation was binding without the consent of the party that was the subject
of  the complaint.  That safeguard no longer exis ted in the WTO, because a panel or Appellate Body
report was inevitably adopted.  This made it imperative that the Council analyse the legitimacy of the
liability of Members for non-violation and situation nullification and impairment.  Whilst it was true
that the WTO was a contractual organization, it also had to subscribe to the general principles of lawand, as far as his delegation was aware, international law had not evolved in such a way that states or
Members could be penalized for acts or omissions for which they were not otherwise responsible.  InIP/C/M/23
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international law, the rule still was that one was liable for the consequences of breaches of contract or
acts which constituted a tort.  The concept of non-violation and situation complaints went further than
this.  It sought to render a Member liable for situations in which it had not violated any agreement and
even for situations over which it had no control.  When Members had entered into the WTO
Agreement, they thought they had agreed to comply with certain obligations and to be responsible forcompliance and to accept the consequences of any violation.  They had never thought that, by entering
into the WTO Agreement, they had placed themselves in the position of "insurers" of benefits
vis-à-vis  the nationals of other Members.  This was essentially what non-violation and situation
complaints sought to establish.  He believed that Members had not intended and did not intend to
assume such an obligation.  In the discussions on electronic commerce, it had been said that one did
not know the implications of technology for intellectual property.  The advanced technology which
disseminated information today was the same which subverted intellectual property over whichMember governments had no control.  In such a situ ation, he saw no wisdom or equity in establishing
that Members should also be responsible in situations when intellectual property rights were subverted
by technology over which Members, particularly de veloping country Members, had no control.  He
proposed that the Council attempt to discuss the scope and modalities and that, if a consensus could
not be achieved, Article XXIII:1(b) and (c) would never be applicable to disputes under the TRIPSAgreement.
121. The representative of Argentina said that her delegation had followed with great interest the
interventions on this agenda item.  Her delegation was grateful for the new proposal which had been
put forward, and hoped that it could be made available in Spanish soon, so as to facilitate its
consideration by her authorities.
122. The representative of the European Communities said that it was the understanding of his
delegation that, pursuant to Article 64.3 of the TRIPS Agreement, the provisions of Article XX III:1(b)
and (c) of GATT 1994 would automatically apply to disputes under the TRIPS Agreement as from
1 January 2000, unless a consensus was reached beforehand that established otherwise.  However,
Article 64.3 also invited the Council to determine the scope and modalities for such types ofcomplaints by that date.  He thanked the Secretariat for its background note, which provided relevant
information on the history of Article 64.2 and 64.3 a nd gave examples of non-violation cases.  It had
to be underlined that these examples showed the specificity of these types of complaints, which did
not require any violation of an obligation but, in stead, could be based on nullification or impairment
of a benefit afforded by an agreement to a Member of that agreement without a violation of that
agreement.  Although the TRIPS Agreement was set up as part of the results of the Uruguay Round,
his delegation believed that it was not the result of negotiations on market access or tariffs on goodsor services, but had established minimum standards of protection of intellectual property rights and
procedures and remedies allowing right holders to enforce these rights in all Members.  Everybody
knew that the area of intellectual property rights was very different from other WTO areas, which was
an important aspect to be taken into account during the Council's debates.  One of the specific aspects
of non-violation disputes was the applicable re medy;  as there was no violation, there was no
obligation to withdraw or modify the disputed measure.  Any measure taken by a Member which was
consistent with its TRIPS obligations did not need to be withdrawn.  However, if the measure had the
effect of nullifying or impairing benefits, a re medy should be found under the DSU rules through a
mutually satisfactory adjustment.  In its background note, the Secretariat had indicated that under a
number of regional free trade agreements, that had similar non-violation dispute settlementprovisions, not many cases had been reported of this type of dispute in respect of intellectual property.
Therefore, the Council needed to look very carefully at the notion of benefits or objectives in this
context.  His delegation had taken note of the first comments on this concept in the debate at the
present meeting and in the paper tabled by the delegations of Cuba, the Dominican Republic, Egypt,
Indonesia, Malaysia and Pakistan.  It had also studied carefully the paper submitted by Canada inwhich it was argued that the non-violation remedy was not suitable in the context of the TRIPS
Agreement, as the Agreement was not principally concerned with questions of market access and did
not include a commitment to a certain level of market access.  However, in the view of his delegation,IP/C/M/23
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he wished to make clear that well-developed intell ectual property legislation, and strong protection of
intellectual property rights, as provided by the TRIPS Agreement, was a means of ensuring market
access.  In the light of this remark, the introduction of non-violation to disputes under the TRIPS
Agreement was a matter that deserved very careful consideration, because it would allow any Member
to lodge a complaint against any other Member whom it considered as nullifying or impairing abenefit afforded by the TRIPS Agreement without ac tually violating the Agreement.  However, it was
important to avoid any abuse of such a possibility by Members using it in circumstances substantially
different from those seen on the tariff side.  His delegation had taken note of the concerns raised that
the development of non-violation cases might be used to extend the law under the WTO regime.  The
Council should not allow this to happen.  Although non-violation complaints had arisen in other areas
of the WTO, careful consideration should be given to their applicability under the TRIPS Agreement,
as long as it was not clear how the provisions of Article XXIII:1(b) and (c) would apply in thiscontext.  Therefore, the European Communities and th eir member States were ready to examine in the
Council in much greater detail the scope and modalities of complaints of this type, as required by
Article 64.3.
123. The representative of Canada expressed support for the proposal introduced by Egypt.  For his
delegation, the proposal had two parts.  The first part recognized that there were many issues that had
to be considered before Members could have a full understanding of what they were getting into by
the lifting of the moratorium.  Like the European Communities, he believed that careful consideration
had to be given to these issues.  His delegation's paper outlined some of its concerns in this respect, as
had others at the present meeting.  All these concerns required more work before one could be
confident about the meaning of this type of complaint under the TRIPS Agreement.  Whilst mostMembers were trying to work through these issues and understand the full impact of the removal of
the moratorium, there were a few delegations which did not have an open mind, but had fixed
positions with respect to these issues.  He hoped that the Council could go through this review with an
open mind, because Members had to work together.  He did not believe that anyone was completely
confident about what non-violation nullification a nd impairment meant in the TRIPS context.  The
second part of the proposal introduced by Egypt recognized that the Council would not get through
this agenda item in time, and his delegation was coming to the conclusion that it would not be
possible for it to do so.  He did not want to prejudge the outcome of this review but had a good idea
that it would take more than one or two meetings .  On that basis, his delegation agreed with the
proposal with respect to an extension of the mo ratorium.  On the specific issues, it would be
preferable to hear a defence of why Members shoul d not be concerned.  His delegation would provide
more input into this process on the issues that had been raised already and any other issues thatdelegations might wish to raise in the coming months and would give very careful consideration to all
of them.  He appealed to all Members to maintain an open mind, so that the discussions could be
fruitful and the result could be of benefit to all Members in the operation of the TRIPS Agreement.
124. The representative of Pakistan recalled that the proposal, which his delegation had co-
sponsored and which was a moderate proposal, had already been introduced by Egypt, but the
discussions held so far compelled him to make two points, both of them procedural.  First, while his
delegation believed that the application of non-violation complaints was not relevant to the TRIPS
Agreement, it was aware of the fact that there was an opposing view.  Therefore, the matter should be
examined in an open-minded manner, which would require an extension of the moratorium.  Second,
if the moratorium was allowed to lapse, his delegation was unclear whether the Council wouldachieve consensus on the scope and modalities within the time-period available and, in the absence of
a consensus on the scope and modalities, how would Members apply this provision?  His delegation
was puzzled by the effectiveness of such a provisio n in the absence of such a consensus on the scope
and modalities.  Hence, he urged the demandeurs  of the expiry of the moratorium to be willing to
consider seriously the proposal his and other delegations had made.
125. The representative of Egypt expressed his gratitude to those Members which had supported
his delegation's proposal.  Like Pakistan, his delega tion would prefer the applicability of non-violationIP/C/M/23
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complaints to be taken out of the TRIPS Agreemen t.  However, it had tried to find a compromise so
that the complexity of this issue could be seriously addressed.  He urged Members who did not
support this proposal to reconsider their positions, in order for a consensus on this issue to be
achieved in the near future.
126. The representative of Venezuela referred to the work of the International Law Commission
relating to the issue of the international liability of  states for acts not contrary to law, in particular
those resulting in transboundary damage.  In his understanding, this work had not sufficiently
developed to justify any conclusions as yet.  In other words, even in fora established by the
international community to deal sp ecifically with these types of matters, it was not yet clear what
responsibility or liability of a state for acts that were not contrary to international law should amount
to.  The TRIPS Agreement established minimum in ternational standards to protect trade-related
intellectual property rights.  It was a particular element of the Agreement that it protected privaterights in the national sphere, and these private rights could be ascertained under the enforcement
provisions of the TRIPS Agreement.  Non-violation nullification or impairment was a concept in
international law relevant to economic and trade aspects.  The minimum standards at the national
level had sufficient guarantees under the TRIPS enforcement provisions.  Should Members allow their
nationals, as a result of losses suffered in their territories, to use the nullification and impairmentremedy, which was intended to protect Members' trade and economic rights.  In his authorities'
perception, there was not sufficient GATT jurisprudence or knowledge under public international law
as to how to manage this concept of non-violation nullification and impairment in the area of private
rights.  There was a considerable lack of information on the legal side and it could be a task that
would take three or four meetings or even years to consider.  Moreover, practical examples werelacking.  His delegation fully supported the proposal introduced by Egypt and felt that the moratorium
should be extended for at least another five years.
127. The Chairperson believed that the discussion under this agenda item had been extremely
useful.  Very interesting and valid points had been made that deserved the attention of all Members.
Some proposals had been made by groups of Members pointing in a certain direction and there hadbeen responses and considerable support from some delegations.  Clearly, there was a need for a more
in-depth analysis.  There had been mention of a possible extension of the moratorium.  Other
Members had expressed a different opinion.  There had been mention of a possible study to clarify
legal and practical issues.  Japan had suggested that case studies be conducted.  The Council had the
task to deal with the question of scope and modalities and this task would require considerable time.
He suggested that the Council take note of the statements that had been made, including the specific
proposals, and revert to the matter at its next meeting for a substantive debate on this subject.
128. The representative of the United States was interested in further discussion of the scope and
modalities and in further analysis of this question.  Her delegation would continue to study the issue
and would have further substantive comments at the next meeting.
129. The Council took note of the statements made and agreed  to proceed as suggested by the
Chair.
L. I NFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
Dispute Settlement
130. The Chairperson recalled that he had informed  the Council at its previous meeting that, on
26 January 1999, the European Communities and their member States had requested consultations
with the United States concerning Section 110(5) of the US Copyright Act and that Australia, Canada
and Switzerland had expressed their interest to be joined in these consultations.  On 15 April 1999, the
EC had requested the establishment of a panel in this dispute.IP/C/M/23
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M. O BSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS
131. The Chairperson said that a new request for observer status had been received from the
International Vaccine Institute, based in Seoul.
132. The Chairperson, reporting on his informal cons ultations on the matter, said that the Council
had now before it 12 requests for observer status from intergovernmental organizations, some of
which had been pending for quite long already.  Members had agreed on the importance of finding a
solution to this problem as soon as possible.  While it was clear from those informal discussions that it
would not be possible to make a decision on the requests at the present meeting, there was a widely-
shared view amongst those who had spoken that th e Council should make every effort to take action
on these requests at its next meeting.  The point had been made that some of these organizations were
specifically concerned with matters covered by the TRIPS Agreement and not only could they benefit
from observer status, but they could also be of value to the TRIPS Council in its work and toMembers in implementing their TRIPS obligations.  He would therefore be consulting with
delegations prior to the next meeting on this matter and would look to them to adopt at that time as
flexible a position as possible, taking into account the specific needs of the TRIPS Council.
133. The representative of Hungary said that his delegation agreed with the view expressed by the
Chairperson at the previous meeting that "While appreciating the existence of horizontal issues, 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".  His delegation believed that there were at least a number of
international organizations with pending requests for observer status whose participation and special
knowledge could help the Council in its current work  in the Council.  For example, he believed that
the participation of the Office International de la Vigne et du Vin  ("OIV") could be beneficial and
helpful in the work under Article 24.2 and especially the work under Article 23.4.  His delegation
could also support positive decisions on the requests of intergovernmental organizations devoting
their activities mainly or exclusively to the protection of intellectual property rights, irrespective of
whether those organizations were regional or had un iversal membership.  His delegation believed that,
taking into account the objective of non-interference in, or not prejudging, the debate of horizontalissues involved, the Council for TRIPS could take decisions on ad hoc observer status independently
of consultations in other WTO bodies.  This was becoming more and more the prevailing practice in
the WTO, followed by other bodies, such as the Committee on Trade and Development and the
Committee on Technical Barriers to Trade.  He urged the Chairperson to continue his informal
consultations along these lines.
134. The Council took note of the statements made and agreed
 to revert to this matter at its next
meeting.
N. O THER BUSINESS
135. The representative of El Salvador said that his government, consistently with its tradition of
strict implementation of its international obligations, especially those related to the WTO agreements,
wished to reiterate to the Council, its firm comm itment to put into practice all the obligations under
the TRIPS Agreement as from 1 January 2000.  He requested the Secretariat to record this statementin the minutes of the meeting.
136. The Council took note of this statement.
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