WT/GC/W/878  
IP/C/W/698  
 
17 May 2023  
(23-3439) Page: 1/3 
General Council  
Council for Trade -Related Aspects of  
Intellectual Property Rights  Original: English  
 
INTELLECTUAL PROPERTY AND THE 1998 WORK PROGRAMME ON  
ELECTRONIC COMMERCE* 
OPERATIONALIZING TECHNOLOGY TRANSFER IN THE CONTEXT OF ARTICLES 7, 8, 40 AND 66.2 
OF THE TRIPS AGREEMENT  
COMMUNICATION FROM SOUTH AFRICA  
The following communication , dated 15 May 2023 , is being circulated at the request of the delegation 
of South Africa.  
 
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1  INTRODUCTION  
1. The Work Programme on Electronic Commerce (WT/L/274) in paragraph 4.1 provides that 
"the Council for TRIPS shall exa mine 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 (WPEC) in line 
with the General Council Decision of December 2019 as well as the WTO Ministerial Decision on the 
WPEC reached at MC12 in Jun e 2022, this delegation proposes an intensification of discussions under 
paragraph 4.1 of the WPEC.  
 
3. Since this area of engagement is mandated, the TRIPS Council should inscribe this item as a 
standing item on the agenda. 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.  
 
4. The relationship between intellectual property (IP) and development and the various 
Sustainable Development  Goals (SDGs) needs to be mainstreamed into the discussion of the TRIP S 
Council. In order to meet the SDGs, new technology needs to be harnessed and accessed by 
developing countries and LDCs, supported by an effective framework for technology transfer.  
 
5. The UNCTAD Digital Economy Report of 20212 captures the transformat ive effect of digital 
technologies as follows: "Increasing digitalization of the economy and society is changing the ways 
people act and interact. One of the distinguishing features of various digital transformations has 
 
* This document is a Revision of document IP/C/W/665.  
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/2021 ad p. 1 .  
 WT/GC/W/878 • IP/C/W/698  
 
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  been the exponential growth in mach ine-readable information, or digital data, over the Internet 
(UNCTAD, 2019a). Such data are core to all fast -emerging digital technologies, such as data 
analytics, artificial intelligence (AI), blockchain, internet of Things (IoT), cloud computing and all 
Internet -based services – and they have become a fundamental economic resource. The COVID -19 
pandemic has accelerated digitalization processes, as more and more people have continued, to the 
extent possible, with their activities through online channels – for example, for working, studying, 
communicating, selling and buying, or entertainment (UNCTAD, 2021a). " At the cusp of this digital 
revolution are technologies such as key software -oriented technologies such as blockchain, data 
analytics and Artificial i ntelligence.  
 
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  
economy, a trend which has been accelerated by CO VID-19. In this context 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. On this basis UNCTAD 
concludes tha t: "The current trends of new technologies being concentrated in a few countries and 
controlled by relatively few companies have implications for the ability of countries to participate in 
the technological learning processes needed to catch up and thrive in the digital economy ".3 
 
2  DISCUSSION  
7. The preamble of the TRIPS Agreement emphasizes the underlying policy objectives of national 
systems f or the protection of intellectual property, including developmental and technological 
objectives. These objective s should be read in conjunction with Article 7 and 8 of the TRIPS 
Agreement.  
 
8. 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 the 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.  
 
9. In order to industrialise, 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 constraining than it was in the 19th 
century when today 's advanced economies were pursuing their industrialisation.  
 
10. Furthermore, Article 8 recognises the right of WTO Members to adopt national measures to 
promote public interest i n sectors of vital importance to their socio -economic and technological 
development as long as such measures are 'consistent ' with the TRIPS Agreement. When considering 
consistency of measures, the inbuilt TRIPS flexibilities need to be taken into account across the 
entire spectrum of the TRIPS Agreement, including in relation to discussions that are taking place in 
other fora that may impact intellectual property rights.  
 
11. Data is a valuable resource from which information and knowledge can be extracted, and 
economic value created enabling the transformation of traditional sectors (i.e., the digitalization of 
trade via e -commerce). It can facilitate the creation of new business models (i.e., platform economy) 
and new opportunities for industrial ization. Preserving policy space to utilize data for digital 
industrialization is therefore important.  
 
12. Electronic commerce has clear implications for developing countries ' traditional means for 
protecting intellectual property rights, and for the prot ection and dissemination of indigenous 
intellectual property in e -commerce. Members need to identify the intellectual property issues arising 
from e -commerce, and discuss appropriate policy responses that address the development concerns, 
including in rela tion to the protection of the rights of indigenous artists, creators and small 
businesses, while also providing an appropriate balance to promote economic development and 
investment and achieve the objectives that are set out in the TRIPS Agreement, includ ing in Article 
7, 8 and 66.2.  
 
 
3 UNCTAD (2019) ad p. 21.  WT/GC/W/878 • IP/C/W/698  
 
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  3  SUMMARY  
13. Article 7 of the TRIPS Agreement broadly captures the need for balance between private 
property rights and public interest in respect of socio -economic and technological development. This 
links the TRIPS Agreement  directly with the 2030 SDGs and requires the promotion of technological 
innovation, transfer and dissemination of technology in a manner that advances the SDG goals.  
 
14. Further bolstered by Article 8 and Article 66.2 of the TRIPS Agreement, technology t ransfer is 
central to addressing development issues, including the digital divide. Both demand and supply side 
issues are covered in these provisions, with Article 66.2 imposing a mandatory obligation on 
developed Members to provide a favorable environment  and incentives to their enterprises and 
institutions to promote transfer of technology to LDCs.  
 
15. On the other hand, Article 8 recognizes demand side imperatives that allow Members to 
promote public interest in sectors of vital importance to their soci o-economic and technological 
development.  
 
4  QUESTIONS  
16. Questions that can frame the discussion under this agenda item include:  
 
1. How can exceptions and limitations, in the IP system, be used as tools to ensure that the 
copyright and patent systems contrib ute to the promotion of innovation and to the 
dissemination and transfer of technology?  
2. What are Members ' experiences in applying limitations and exceptions in the digital 
environment?                                                                    
3. Article 40.1 and 40.2 of the TRIPS Agreement deal with anti -competitive licensing 
practices. How have countries addressed anti -competitive conduct and structures with 
respect to e -commerce, including abuse of IPRs?  
4. There is a rapid expansion in the number of p atent applications related to AI technologies, 
including AI -assisted inventions and these may also be protected through trade secrets. 
What are countries adopting to improve access to such technologies?  
5. What IP related policies have Members implemented in  the area of source code protection, 
software and algorithms? What lessons have been learned in this regard in relation to 
competition, technology transfer and public interest?  
6. Countries may establish in their national laws and regulations a series of liab ilities for 
internet service providers (ISPs) & digital platforms. How are these issues addressed to 
balance IP enforcement with facilitating online use and digital content creation?  
7. What are Members' experiences with regards to regulating indigenous peop le's rights and 
protections over data, indigenous data privacy, indigenous data sovereignty and 
indigenous data governance?   
8. What are Members' experiences with regulating data that is derived from vulnerable 
populations, including rights and protections o f those populations. What are the policy 
rationales for this approach to regulation and the implications for trade rules on  
e-commerce?'  
9. What are the implications of new business models – such as streaming services,  
e-commerce retailing platforms, machine learning companies, among others – on the IP 
system?  
 
 
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