RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/210
3 October 2000
(00-4027)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF THE IMPLEMENTATION OF THE AGREEMENT
UNDER ARTICLE 71.1
Communication from Australia
By means of a communication, dated 20 September 2000, the attached paper has been
received from the Permanent Mission of Australia with the request that it be circulated to Members.
_______________IP/C/W/210
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TRIPS:  ARTICLE 71.1 REVIEW
DISCUSSION PAPER BY AUSTRALIA
1. Introduction
Article 71.1 requires the TRIPS Council to "review the implementation" of the TRIPS
Agreement once the Article 65.2 transitional period expires:  that is to say, after January 2000.  This
mandated implementation review is one of the most important tasks entrusted to the TRIPS Council
for the year 2000.
The TRIPS Council is yet to determine the exact nature and procedure of this review.  This
paper is intended to promote discussion in accordance with the Chairperson's invitation at the21 March 2000 meeting of the Council
1, and to suggest how the Article 71.1 review could be most
productively undertaken in 2000 and 2001.  This paper seeks to take into account comments by
Members on a non-paper circulated by Australia at the Council meeting of 26-30 June 2000.
2. Background
Since the entry into force of the TRIPS Agreement, many WTO Members have undertaken
extensive legislative and administrative action to give effect to their obligations under the Agreement.
Implementation has been a complex and diverse process in many jurisdictions:  this has engendered
debate and analysis of a number of aspects of intellectual property rights (IPRs) within a public policy
framework, but has also led to many practical responses to the challenges of implementing intellectual
property laws in a way that promotes social and economic interests.
The range of substantive issues that were cited under the rubric of "implementation" in the
draft documentation for the Seattle Ministerial Conference is one indication of the scope of questions
that have arisen at a national level in the implementation process.  There is widespread interest in
increasing the range of beneficiaries from IPR protection, and in improving the general contribution
of the intellectual property system to overall national development and well-being.  Each WTOMember faces the challenge of optimizing the economic, social and technological benefits of the
intellectual property system within the framework of the TRIPS Agreement.  There is a potential
common advantage in having a more structured exchange of the practical experience accruing from
the implementation process.
It was agreed by the General Council, in February 2000, that agreements subject to mandated
reviews should address the trade and development impact on developing countries of the agreement
concerned.
2  This important task could be undertaken by the TRIPS Council under the auspices of the
Article 71.1 review.
The TRIPS Agreement - in the form it was drafted and agreed - offers considerable scope and
opportunity for all WTO Members to derive tangible benefits from the intellectual property system.
The review of TRIPS implementation should help shed light on how the practical application of
existing TRIPS standards can serve the economic and technological objectives which are embedded inthe text of the TRIPS Agreement and which the Agreement itself acknowledges, with a particular
focus on economic and social development.
                                                     
1 Paragraph 99 of IP/C/M/26.
2 WT/GC/M/53, paragraph 39.IP/C/W/210
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Proposal:  It would be appropriate at this stage to concentrate on a review of
implementation as such, rather than on a pre-emptive approach to negotiating new
TRIPS text.  The TRIPS Agreement is at an early stage in its implementation in many
Members, and the practical lessons of this approach remain to be shared and
collectively analysed.  That analysis, in turn, will make any later development ofrecommendations for modifications or amendments more focused and practical.
3. The nature of the TRIPS review mandate
The underlying sequential logic of the TRIPS Agreement is clear and practical:  for the
general TRIPS review process, as for issue-specific reviews, the following logical sequence is to be
followed:
• Implementation of existing TRIPS standards at a national level;
• notification of relevant laws by Members implementing TRIPS, and review of their
intellectual property systems;
• collective review of the implementation of the Agreement;
• consideration of possible amendments and modifications in the light of the experience of
implementation and other developments;
• formulation of recommendations for modification or amendment.
Article 71.1 exemplifies this approach, limiting the general review of the TRIPS Agreement
mandated for 2000 to implementation only, and laying down a clear sequence for future work:
• Initially, the TRIPS Council "shall review the implementation of this Agreement" after
January 2000;
• from 2002, and every two years thereafter, the Council "shall, having regard to the
experience gained in its implementation, review [TRIPS]";
• the Council is also required to "undertake reviews in the light of any relevant new
developments which might warrant modification or amendment of [TRIPS]".
A review of "implementation" should cover th e implementation of existing standards and
policy options, rather than considering the imposition of new or modified standards.  As the TRIPSAgreement makes clear, the best basis for reviewing its provisions is the "experience gained in its
implementation", rather than a priori debate about textual amendments.  While it may be a
cooperative process, implementation of TRIPS is carried out through domestic law, as TRIPS needs to
be given effect at a national level, in accordance with Article 71.1.  With some limited exceptions,
intellectual property rights (IPRs) are still defined, bounded, administered, enforced and exploitedwithin national legal systems:  any positive or negative effects of particular approaches to intellectual
property policy will therefore be felt at that level.  It is therefore impossible to conduct an accurate
and informative review of TRIPS implementation without regard to individual national approaches.
To be complete, a review of implementation needs to draw on the experiences of a wide cross-section
of Members.
This progressive, structured approach is the most likely to deliver a balanced, comprehensive
and inclusive understanding of the operations and impact of the TRIPS Agreement for the full range
of WTO Members.  It corresponds both to common sense, and to the formal requirements of theIP/C/W/210
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TRIPS Agreement.  It is noteworthy that the TR IPS Agreement refers to the need for the TRIPS
Council "to have regard to the experience gained in [the] implementation of [TRIPS]" as a preparation
for future substantive reviews.
Two issue-specific reviews - the Article 27.3(b) review of biotechnology patenting and plant
variety protection under Article 27.3(b), and the Article 24.2 review of geographical indication
laws - have followed this sequence, and have explored in some technical depth the approach taken at a
national level to give effect to these key provisions.3  The wealth of detailed material that has been
tabled in the course of these reviews has yet to be discussed or analysed by the TRIPS Council,
despite the strong practical imperative to do so.
Hence, where the TRIPS Agreement is claimed to have shortcomings or lack of clarity, the
preferred approach should be to make use of established transparency and consultative processes,
aimed at consolidating collective understanding of the actual requirements and impact of currentTRIPS standards.  Only practical application of TR IPS rules, not a priori or theoretical judgements,
can demonstrate any gaps or flaws in those rules that would warrant a collective response on the part
of WTO Members.  Ideally, the approach should be a combined problem-solving approach, whereby
Members share information about the distinct ways in which each of their TRIPS-consistent
IP systems have been developed and applied in such a way as to promote the development objectivesof the TRIPS Agreement.
4. Inclusiveness of approach
Many WTO Members are still in the process of the initial implementation, introducing new
legal and administrative measures at a domestic level, particularly those WTO Members who made
use of the Article 65 transitional arrangements (the developing countries and economies in transitionwhich have begun the notification and review of laws from January this year) and newly acceding
Members.  A review of implementation should also ensure that attention be given to the national
approaches taken by these Members as well, so that it is based on a broad spectrum of WTO
membership.
This would ensure that the collective review of TRIPS implementation is based on an
inclusive understanding of how various Members have chosen to implement TRIPS standards in
practice, rather than the current body of informa tion which is inevitably tilted towards the 30 or so
Members who were first required to implement and notify TRIPS-consistent laws.  Initial emphasis
should therefore be laid on redressing this imbalance in information.  It is presumably no coincidence
that the negotiators of the TRIPS Agreement set the timing of the implementation review at the
precise point (the expiry of the transitional period of Article 65.2 and 65.3) when many Members
would be notifying their intellectual property la ws and would be able to draw on their domestic
experience with implementation.
Proposal:  In the period from 2000/2001, the TRIPS Council should conduct an
inclusive review of implementation of the TRIPS Agreement by facilitating an
exchange of implementation experiences at  a domestic level, including by those
Members making use of the Article 65.2 and 65.3 transition periods.  This will yieldthe necessary information about "the experie nce gained in the implementation of the
TRIPS Agreement" that the TRIPS Council is required to  draw on in its subsequent
reviews of the TRIP S Agreement from 2002.
                                                     
3 See documents in the series IP/C/W/117 for answers in response to the checklist on geographical
indications (IP/C/13 and Add.1), and in the series IP/C/W/125 for answers in response to questions suggested inIP/C/W/122 and IP/C/W/126 on protection of plant and animal innovations.IP/C/W/210
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5. Structure and scope of the review
The 2000 review under Article 71.1 need not be limited to the notification and documentation
of domestic intellectual property laws, and greater use could be made of this opportunity to promote a
common understanding about policy options and prac tical administrative options under the TRIPS
Agreement.  It may be possible to consider th e implementation of the TRIPS Agreement in key
sectors of concern.  For the sake of illustration only (these are not formal proposals for consideration),
the following aspects of TRIPS implementation at a national level have been the subject of
widespread policy discussion:
• Measures to counter anti-competitive abuse of IPRs under Article 40:  despite the importance
given to this issue in policy debate, specific notifications of national laws giving effect to this
Article have been very few.4  A number of Members have provided very useful accounts of
such measures in the context of the work of the Working Group on the Interaction between
Trade and Competition Policy.5  Given the continuing interest in this area, a review could
include a more comprehensive exchange of information on practical experience in the
operations of such measures.
• Implementation of existing TRIPS standards in  the digital environment.  Existing TRIPS
standards can apply to certain activities in the digital network environment, such as
unauthorised reproduction of copyright works on the Internet or the conduct of electroniccommerce under an unauthorized trademark or geographical indication.  The TRIPS Council
progress report on electronic commerce
6 gives some indication of the range of issues raised
by the interaction between existing TRIPS standards and the digital network environment.
An implementation review could consider how national laws deal with digital issues within
the framework of existing TRIPS standards.
• IPRs in traditional and indigenous contexts.  There is increasing attention on how intellectual
property systems that are TRIPS-consistent can be used more effectively to meet the needs of
traditional and indigenous communities, and this has been identified as a key concern of a
number of countries.  A range of practical options exist for better use and extended
application of intellectual property systems within the TRIPS framework, as WIPOdocumentation based on its current work programme illustrates.
7  The TRIPS Council could
consider the practical solutions that have been highlighted in this work in order to assess the
range of options that may be available to Members within the TRIPS framework, and work
towards a common understanding of an optimal approach to policymaking and practical IPR
management in this area.
• Relationship of the TRIPS Agreement with other international standards, and national
implementation strategies which enhance this relationship.  Questions have been raised about
the linkage of the TRIPS Agreement with othe r international agreements, such as those
concerning the environment (including access to genetic resources), human rights and health,
and indeed there are claims in some quarters th at these standards are in fundamental conflict.
One way of addressing perceptions of conflict would be to look at practical options for
implementation that maximize positive interaction between various legal regimes.  Clearly,
the TRIPS Council could serve a useful role in highlighting ways of implementing the TRIPS
                                                     
4 See chapter 3 in "An Informal Survey of the Notification & Review of National Intellectual Property
Laws under the WTO TRIPS Agreement", distributed by Australia in October 1999 (www.dfat.gov.au/trips).
5 For example, see papers WT/WGTCP/W/106 (Japan), WT/WGTCP/W/105 (Korea), and
WT/WGTCP/W/101 (United States) which provide information on relevant domestic legal mechanisms.
6 See document IP/C/18.
7 See the nine fact-finding mission reports and the general analytical report posted at
http://www.wipo.int/traditionalknowledge.IP/C/W/210
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Agreement that promote the complementary objectives of other international agreements.
This has been done in an ad hoc fashion so fa r, within the comparatively limited scope of the
Article 27.3(b) review.  It is unlikely that optimal interaction between these international
agreements would be achieved just by adjusting the scope of patentable subject-matter.  It
may be more fruitful to address these linkages in a structured, inclusive way, in the hope ofgaining practical information about how Members have implemented these international
standards in their domestic law.  For example, how has the intellectual property system
functioned in conjunction with access regimes for genetic resources?  What approaches have
been taken to deal with the patent system's interaction with the health sector?
A model for this approach is the procedure adopted concerning implementation of
Articles 66.2 (technology transfer to least developed countries (LDCs)) and 67 (technical assistance).At the request of several delegations, a number of Members have tabled detailed lists of incentives for
transfer of technology to LDCs relevant to Article 66.2
8, and the Secretariat has compiled this
information.9  Members have annually updated information on technical cooperation activities
relevant to Article 67;  other international organizations have also provided input.  These are
examples of early reviews of implementation of these key provisions, an approach that may beapplicable to other TRIPS provisions in the context of Article 71.1.
The approach suggested in this paper is not in tended to result in a duplication of information
provided during the reviews of Members' impl ementing legislation.  Members would be free to
present information on their national approaches to  TRIPS implementation in any way that they see
fit, for example by setting out the rationale or objectives behind the chosen approach and anyexperience gained in practical application.  Exchange of this type of information would aim to
maximize the "value-added" nature of the Article 71.1 review.
6. Focus on existing TRIPS standards
Whatever its exact scope and structure, the Article 71.1 review process should at this initial
stage focus on how existing TRIPS standards are implemented by various Members in these varioussectors, and not consider proposals for new standards.  This is both for practical and legal reasons.
Immediate practical benefits can be achieved through more effective use of the existing standards,
particularly if the full range of legal and administrative options is better known through an
implementation review.  In many cases, the process of renegotiating standards would simply defer the
more difficult and rewarding task of determining which practical arrangements work better at a
national level to produce the expected benefits of the intellectual property system.  It would benefit all
concerned for this practical experience to be exchanged, and for greater understanding of "bestpractice" forms of intellectual property policymaking and management to be encouraged.  Not least, it
would serve as a form of useful guidance options for least developed countries due to implement the
Agreement in 2006 on the various available policy, administrative and legislative options.  Countries
in the process of accession to the WTO could also benefit from information on how Members have
implemented existing TRIPS provisions.  There is no agreed legal basis for a mandate to undertakeconsideration of new TRIPS provisions, other than the negotiations under Article 23.4 and the
recommendations required under Article 64.3.  The resource limitations confronting both the TRIPS
Council and WTO Members taking part in its wo rk also preclude too broad a range of review
activities, and it would be most productive to give priority to a review of the range and effect of
implementation of existing standards.
                                                     
8 See documents in the series IP/C/W/132.
9 In document IP/C/W/169.IP/C/W/210
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Article 71.1 clearly envisages the subsequent development of recommendations concerning
TRIPS standards - which presumably may be to clarify, extend, or amend existing standards - both in
the light of experience gained in implementation, and in the light of technological developments.  This
suggested approach does not seek to preclude any such work - to the contrary, it would facilitate it by
creating a greater collective understanding of the true contours of the TRIPS Agreement as it interactswith national legal systems, the scope of options under the TRIPS Agreement, and the areas in most
need of attention.
At the same time, any review must be cognisant of the fact that intellectual property
protection under the TRIPS Agreement is not an end in itself, but is aimed at broader public policy
objectives.  The TRIPS Agreement's own objectives provision (Article 7) provides that protection and
enforcement of IPRs should "contribute to the promotion of technological innovation and to the
transfer and dissemination of technology, to the mutual advantage of producers and users oftechnological knowledge and in a manner conducive to social and economic welfare, and to a balance
of rights and obligations".  A review of the implementation of existing TRIPS standards will
inevitably raise questions about the extent to which the TRIPS Agreement has been implemented in a
way that meets its broader public policy objectives, including in relation to development issues.  An
overview of national implementation will highlight a range of different approaches to meeting theobjectives of the TRIPS Agreement, and differing experiences in achieving successful use of the
intellectual property system in serving social and economic development objectives.
In some cases, the intellectual property system will fall short of expectations due to
implementation or resource problems and, in other cases, the TRIPS Agreement may not be meeting
its objectives because of inadequate implementation of existing standards by Members;  in othercases, national experiences may shed light on areas where the balancing of the evidence may point to
the need for some substantive rebalancing of rights and obligations to be recalibrated or clarified in
the TRIPS Agreement.  It would also help focus on areas of particular need in relation to technical
cooperation.  Either way, the starting point for any review should be a comprehensive assessment of
how existing standards have been implemented by Members.  A focus on existing standards at thispoint in time will provide a solid foundation for any future work on the recalibration or extension of
the reconsideration of TRIPS provisions in future should such a mandate be conferred on the Council.
Proposal:  If it is agreed to cover general issues similar to those cited above, the
Article 71.1 review process should concentrate on the implementation options of
existing TRIPS standards and practical experiences within the existing TRIPS
framework.
Proposal:  Where well-established policy processes are already under way in other
multilateral fora, notably the relevant programmes of WIPO, the TRIPS Council
should acknowledge this work, avoid duplication of effort, and follow these processes
closely with a view to better informed an d structured future consideration of their
implications for the TRIPS Agreement.
7. New intellectual property standards:  Article 71.2
For the sake of completeness, it is necessary  to consider the simplified mechanism under
Article 71.2 for amending the TRIPS Agreement so as to adjust "to higher levels of protection of
intellectual property rights achieved, and in force, in other multilateral agreements and accepted under
those agreements by all Members of the WTO".  Currently, it appears that no such agreement exists
that would strictly conform to this provision, and it may be unlikely that the precise criteria will bemet in the foreseeable future.  Nonetheless, it ma y be valuable for the TRIPS Council to keep this
situation under review.  Some recent multilateral agreements could in time become relevant to this
provision:  for instance, the WIPO Copyright Treaty, which is attracting an increasingly wide
geographical range of adherence among WTO Members.  The TRIPS Council could also consider theIP/C/W/210
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implications of the phrase "accepted under those agreements", and in particular whether this entails
formal adherence to the agreement in question.  Given the likelihood of a long delay before any
agreement meets this criterion, it would equally be worthwhile keeping under consideration other
ways of taking into account the emergence of new international intellectual property norms.
Proposal:  The TRIPS Council should keep under review multilateral agreements
which may become eligible for consideration under the Article 71.2 process.
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