IP/C/W/665  
 
17 July 2020  
(20-4955) Page: 1/3 
Council for Trade -Related Aspects of  
Intellectual Property Rights  Original: English  
 
INTELLECTUAL PROPERT Y AND THE 1998 WORK PROGRAMME ON  
ELECTRONIC COMMERCE  
OPERATIONALIZING TEC HNOLOGY TRANSFER IN THE CONTEXT OF ARTIC LES 7, 8, 40 AND 66. 2 
OF THE TRIPS AGREEME NT 
COMMUNICATION FROM SOUTH  AFRICA 
1  INTRODUCTION  
1.  The Work Programme on Electronic Commerce (WT/L/274) in paragraph 4.1 provides that "the 
Council for TRIPS shall examine and report on the intellectual property issues arising in connection 
with electronic commerce. The issues to be examined shall include:  
• protection and enforcement of copyright and related rights;  
• protection and enforcement of trademarks;  and 
• new technologies and access to technology. " 
2.  In order to reinvigorate the 1998 Work Programme on Electronic Commerce in line with the 
General Council Decision of December 2019, this delegation proposes an intensification of 
discussions under paragraph 4.1 of the Work Programme. Since this area of engagement is 
mandated, the TRIPS Council should inscribe this item as a standing items on the agenda.  
3.  This will facilitate a deeper discussion of issues that could be based on a catalogue of themes 
that could be agreed by Members. Initially the issue of electronic commerce was a standing item on 
the TRIPS Council Agenda, Members should return to this practice.1 Members are encouraged to 
submit further proposals, share information and national experiences, pointing out how the 2030 
SDGs may be achieved through an effective framework for technology transfer.  
4.  Intellectual property can have an impact on development  so the link between intellectual 
property  (IP) and development, as well as the relationship with the various Sustainable Development 
Goals (SDGs) need to be mainstreamed into the discussion of the TRIPS Council. In order to meet 
the SDGs, new technology n eeds to be harnessed and accessed by developing countries and LDCs.  
5.  The UNCTAD Digital Economy Report of 20192 captures the transformative effect of digital 
technologies as follows: "The world economy is transforming fast as a result of the rapid spread o f 
new digital technologies, with major implications for Agenda 2030 on Sustainable Development. 
Greater levels of digitalisation of both economies and societies are creating new means for tackling 
global development challenges; however, there are risks tha t digital disruptions will favour mainly 
those that are already well prepared to create and capture value in the digital era, rather than 
contribute to more inclusive development. " At the cusp of this digital revolution are technologies 
such as key softwar e-oriented technologies such as blockchain, data analytics and Artificial 
intelligence.  
6.  The rapid deployment of smart devices and digital interfaces to 3D printing, wearables, 
automation, robotics and cloud computing are all contributions to a notable digitisation of the world 
 
1 WTO Secretariat Background Secretariat Note: The Work Programme on Electronic Commerce 
Addendum IP/C/W/128/Add.1 of 15 May 2003, ad par. 8.  
2 UNCTAD/DER/2019 ad p. 1.  IP/C/W/665  
 
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  economy, a trend which has been accelerated by COVID -19. In this c ontext the digital divide impedes 
the participation of developing countries in digital value chains, while digital transformation is 
disrupting traditional sectors with severe socio -economic consequences.  
7.  On this basis UNCTAD concludes that: "The current trends of new technologies being 
concentrated in a few countries and controlled by relatively few companies have implications for the 
ability of both developing and developed countries to participate in the technological learning 
processes needed to catch up and thrive in the digital economy.3  
2  DISCUSSION  
8.  The preamble of the TRIPs  Agreement emphasizes the underlying policy objectives of national 
systems of the protection of intellectual property, including developmental and technological 
objectives. These objectives should be read in conjunction with Article 7 and 8 of the 
TRIPS  Agreement. The Secretariat in its Background Note on the Work Programme on Electronic 
Commerce4 recognises that "… [T]he traditional objectives of the system as reflected in the current 
international norms, including in the TRIPS Agreement, would appear to r emain valid even in 
"cyberspace ".5 
9.  Article 7 of the TRIPS Agreement provides a context to interpret the access to technology by 
emphasizing that the protection and enforcement of IPRs should contribute to the promotion of 
technological innovation and to th e transfer and dissemination of technology, to the mutual 
advantage of producers and users of technological knowledge and in a manner that is conducive to 
social and economic welfare, and to balance rights and obligations.  
10.  In order to industrialize, it is  clear that developing countries would need more access to 
technology, however, it is also clear that as many developing countries pursue industrialisation, they 
do so in the context of an international IP regime that is more constrained than it was in the  
19th century. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) 
establishes extensive standards of IP protection that are almost without exception legally binding on 
all WTO Members.  
11.  Furthermore, Article 8 recognises the righ t of WTO Members to adopt national measures to 
promote public interest in sectors of vital importance to their socio -economic and technological 
development subject that such measures are ‘consistent’ with the TRIPS Agreement. When 
considering consistency o f measures, the inbuilt TRIPS flexibilities need to be taken into account 
across the entire spectrum of the TRIPS Agreement. It is also important to take account of the 
crosscutting impact of proposals in other WTO bodies or plurilateral initiatives that m ay impact 
intellectual property rights.  
12.  Some members have proposed disciplines to prohibit national localization requirements and 
government's access to data, this may have unintended consequences for settled practices in 
Members IP regimes and affect exc eptions and limitations that are well established under the 
TRIPS  Agreement. The link between localization and IP is not clear and since it is silent on the 
implications for trade secrets on transparency of algorithms and access to copyright work in the 
digital economy, these issues should be approached with caution.  
13.  A South Centre paper6 posits that "…localization requirement policies, which are in full 
compliance with WTO provisions and which may also have national security implications, are seen 
as a tra de barrier per se, they may substantially impede the development of certain data -intensive 
industries and also favour those who already hold large amounts of data. "  
3  SUMMARY  
14.  Article 7 broadly captures the need for balance between private property right and  public 
interest in respect of socio -economic and technological development. This links the TRIPS Agreement 
 
3 UNCTAD (2019) ad p. 21.  
4 IP/C/W/128 of 10 February 1999.  
5 Ibid ad  par.13, p. 3.  
6 Policy Brief No.62: Intellectual Property and Electronic Commerce: Proposals in the WTO and Policy 
Implications for Developing Countries (June 2019), p. 5 et seq . IP/C/W/665  
 
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  directly with the 2030 SDG Goals and requires the promotion of technological innovation, transfer 
and dissemination in a manner that will achieve th e SDG goals.  
15.  Further bolstered by Article 8 and Article 66.2 of the TRIPS Agreement, technology transfer is 
central to address development issues, including the digital divide. Both demand and supply side 
issues are covered in these provisions, with Artic le 66.2 imposing a mandatory obligation on 
developed Members to provide a favourable environment and incentives to their enterprises and 
institutions to promote transfer of technology to LDCs.  
16.  On the other hand, Article 8 recognises demand side imperative s that allow Members to promote 
public interest in sectors of vital importance to their socio -economic and technological development.  
4  QUESTIONS  
17.  Questions that can frame the discussion under this agenda  item include:  
1. How can exceptions and limitations, including compulsory licenses in the IP system, be used as 
tools to ensure that the patent system contributes to the promotion of innovation in a competitive 
environment and to the dissemination and transfer of technology, meeting the objectives of the 
system and responding to the public interest at large? What are Members’ experiences in this regard?  
 
2. Article 40.1 of the TRIPS Agreement, recognises that some licensing practices or conditions  
pertaining to intellectual property rights, which restrain com petition, may have adverse effects on 
trade and may impede the transfer and dissemination of technology. Read with Article 40.2, 
Members may address adverse effects of anti -competitive practices through appropriate measures. 
Such measures may also be appli ed to digital platforms that could potentially use their dominant 
position to restrain competition, including through the use of intellectual property rights. How can 
more effective access to technologies especially in the digital economy be secured for de veloping 
and least developed countries in an inclusive way?  
 
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