IP/C/W/712  
 
15 April 2024  
(24-3122) Page: 1/4 
Council for Trade -Related Aspects of  
Intellectual Property Rights  Original: English/Spanish* 
 
REVIEW OF THE IMPLEMENTATION OF THE TRIPS AGREEMENT : 
ARTICLE 71.1  
COMMUNICATION FROM COLOMBIA  
 
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1  ARTICLE 71 AS AN OPPORTUNITY FOR DIALOGUE  
1.  A comprehensive review of the implementation of the Agreement on Trade -Related Aspects of 
Intellectual Property Rights (TRIPS Agreement) is both an unfulfilled commitment and a necessity. 
Carrying out the review mandated in Article 711, along with the 30th anniversary of the 
TRIPS  Agreement, will provide an opportunity  to: i) increase dialogue and transparency on the 
impact of international rules on Intellectual Property (IP) issues; ii) start overcoming the existing 
impasse of the TRIPS discussions and negotiations at the TRIPS Council; iii) support political and 
techn ical discussions that are taking place in other forums and settings; iv) identify/produce relevant 
metrics to inform better implementation in the future.  
2.  Colombia considers that after 30 years of the TRIPS Agreement implementation, a Member driven 
policy discussion, supported by metrics and data, should provide the basis for a review on best 
practices, identification of obstacles, potential implementation improvements, among other 
elements. The discussions will provide added clarity and transparency, offer  learning experiences for 
every Member to enhance their strategies within the general balance among the policy goals 
underlying the TRIPS agreement.  
3.  The World Trade Organization is a relevant forum for these discussions, as the host of the strictest 
framew ork that binds intellectual property laws worldwide. The valuable experience accumulated by 
other International Organizations, primarily WIPO, WHO and UNCTAD should inform the 
WTO discussion.  
2  THE CONTEXT: 30 YEARS OF THE TRIPS AGREEMENT  
4.  The TRIPS agreemen t entered into force on 1 January  1996. Since then, it generated significant 
changes in domestic legal systems worldwide, especially but not limited to the developing world. 
New legislations were enacted or updated to comply with the requirements of the n ew agreement. 
This happened at varying speeds, depending on accession processes or transition times, but the 
 
* Document republished on 22 April 2024  to reflect original languages.  
1 The review provision of TRIPS reads as follows:  
Art.71. Review and Amendment: (1). The Council for TRIPS shall review the implementation of this 
Agreement after the expiration of the transitional period referred to in paragraph 2 of Article 65. The Council 
shall, having regard to the experience gained in its implementation, review it two years after that date, and at 
identical intervals thereafter.  The Council may also undertake reviews in the light of any relevant new 
developments which might warrant modification or amendment of this Agreement.  
(2). Amendments merely serving the purpose of adjusting 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 may be referred to the Ministerial Conference for action in accordance with 
paragraph 6 of Article X of the WTO Agreement o n the basis of a consensus proposal from the Council for 
TRIPS.  IP/C/W/712  
 
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  process of harmonizing domestic laws to the degree required by the TRIPS Agreement (with the 
agreed transition periods), thirty years from its entr y into force, is now mostly completed.  
5.  The TRIPS Agreement is both a menu of options and a minimum standards treaty. Domestic 
legislations must choose among the alternatives provided for by the Agreement, as long as they 
conform with minimum provisions. Despite offering options, the TRIPS Agreement provides a floor 
of norm -setting markedly stricter than previous multilateral Intellectual Property Agreements in 
force at WIPO (and than most domestic legislations at the time of entry into force).  
6.  The TRIPS Agreement has an important cumulative character: subsequent trade agreements 
(whether regional or bilateral) may have increased the level of protection of IP globally; that is, not 
only among the contracting parties of such FTAs but also regardi ng everyone else. Further, 
subsequent accession processes to the WTO elevated such minimum standards for acceding 
countries (or curtailed parts of the menu of options) vis -à-vis everyone else. As a result, the real 
level of protection standards today may b e quite higher in average than what the Agreement 
provisions entail.  
7.  The TRIPS Agreement included by reference (Art. 2, 9) the substantive provisions of the WIPO 
Substantive Conventions (Paris, Berne, Rome Conventions, now administered by WIPO), which for m 
an integral part of the TRIPS Agreement. The TRIPS Agreement then builds on top of those 
provisions. Colombia would like to highlight among the most relevant changes introduced by the 
WTO agreement in 1996, and that required significant changes in domest ic norm -setting, the 
following aspects:  
- Minimum protection periods for intellectual property rights protection (Term of 
protection): e.g., such term shall be no less than 50 years from the end of the calendar 
year of authorized publication, or, failing su ch authorized publication within 50 years from 
the making of the work, 50 years from the end of the calendar year of making. (Art.12); 
no less than 7 years for trademarks (Art.18); no less than a period of twenty years counted 
from the filing date (Art.33) . The option to provide for a longer term is allowed by the 
Agreement.  
- No discrimination between productive sectors: TRIPS included a general rule in the sense 
that patents shall be available and patent rights enjoyable without discrimination as to 
(…) the  field of technology (Art. 27.1). This means that in principle all industrial/productive 
sectors must have the same IP protection regime. Unlike before TRIPS, it appears not 
possible to have differentiated IP regimes for different types of contexts in rega rd to 
different technologies and knowledge innovations.  
- A special Most -Favoured -Nation Treatment Clause (MFN): the TRIPS Agreement MFN 
treatment clause (Art.4) suggests that bilateral disciplines related to IP that are part of a 
Free Trade Agreement normal ly become multilateral (i.e., the usual exceptions to MFN 
provided for by Article XXIV of the GATT, or by Article V of the GATS, do not apply to the 
TRIPS Agreement2). In the case of intellectual property rights (IP), what a country gives 
to its treaty pa rtner in an FTA is normally extended to everyone else, with no exception. 
This is an unusual and much stricter feature of TRIPS than common trade rules.  
- The regulatory space for compulsory licences is maintained, but under new conditions: 
Under TRIPS, the regulatory space for compulsory licences as provided for example in the 
WIPO -Paris Agreement on Industrial Property Art 5. Section A was constricted with new 
conditions (Art. 31). In the WIPO treaties, the provision that allowed for compulsory 
licencing wa s relatively unrestricted3. 
 
2 With some exceptions to the exception, as for example  "pre-dating " FTAs, when fully notified. 
Footnote 3 to Article 4 of TRIPS.  
3 WIPO -Paris Convention on Industrial Property, ARTICLE 5, Se ction A  
(2) Each country of the Union shall have the right to take legislative measures providing for the grant of 
compulsory licenses to prevent the abuses which might result from the exercise of the exclusive rights 
conferred by the patent, for example, failure to work.  
(3) Forfeiture of the patent shall not be provided for except in cases where the grant of compulsory 
licenses would not have been sufficient to prevent the said abuses. No proceedings for the forfeiture or IP/C/W/712  
 
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  - Compliance and enforcement of IP rights entailed significant changes at the domestic 
level: Members were required to introduce changes to their criminal, civil, administrative 
and customs systems. Under WIPO rules, Parties are allowed to freely determine the 
structure and proceedings of administrative and judicial remedies.  
- The WTO Dispute Settlement Mechanism: under TRIPS, the DSM applies to Member -to-
Member disputes regarding IP rights.  
- No general public policy exception in th e TRIPS Agreement: The potential justifications for 
departure from compliance are much more limited in TRIPS than in other WTO  Agreements 
and WIPO rules. There is no ´mirror´ exception in TRIPS for public policy goals, as Art  XX 
of GATT, and Article XIV of  the GATS provide for goods and services trade.  
- The review clause in article 71.1 of the TRIPS Agreement: the Agreement includes a review 
clause. This type of implementation review is quite common in WTO Agreements (other 
examples include Article 15.3 of t he Technical Barriers to Trade (TBT) Agreement, 
Article  12.7 of the Sanitary and Phytosanitary (SPS) Measures Agreement, Article  23.1.6 
of the Trade Facilitation Agreement, and Article 18 of the Agreement on Agriculture). The 
TRIPS review shall be conducte d by the WTO every two years (starting on the year 1998), 
but as of yet, none has been accomplished.  
8.  In summary, the TRIPS Agreement norms provide a significantly stricter framework than what 
existed under the WIPO substantive agreements, despite its impor tant menu of options. Moreover, 
TRIPS exhibits important differences or peculiarities when compared with other WTO  Agreements. 
The Agreement entailed a new institutional framework, both at the international and domestic levels, 
which has been described as a "watershed event ".4 
9.  These provisions entailed a change of paradigm: A different version of the balance of the triangle 
of policy goals associated with intellectual property protection was achieved: i.e., the promotion of 
innovation on one side; the broad access to technologies on another, and the promotion of national 
competitiveness -industrial policy on the third. It must be underscored that the TRIPS Agreement 's 
balance is a set of normative choices that reflects the ideas, experiences, and conditi ons prevalent 
in the early 1990s. The whole notion of including a review clause hints at the negotiators 
acknowledgement that contexts might change in time and that the permanent and periodic review 
of the implementation of the agreement should remain an i ntegral part of the Members actions at 
the WTO. However, the review mechanism has not been carried out since the TRIPS adoption. Now, 
after 30 years of implementation, it is just the right time to do so.  
3  PROPOSAL  
10.  Colombia supports to formally start the re view on the implementation of this Agreement of 
TRIPS.  
11.  We request the Secretariat to propose a Procedure for the review process (following common 
practice at the TBT or SPS Committees, or other relevant committees), to be accepted by the 
 
revocation of a patent may be ins tituted before the expiration of two years from the grant of the first 
compulsory license.  
(4) A compulsory license may not be applied for on the ground of failure to work or insufficient working 
before the expiration of a period of four years from the dat e of filing of the patent application or three years 
from the date of the grant of the patent, whichever period expires last; it shall be refused if the patentee 
justifies his inaction by legitimate reasons. Such a compulsory license shall be non -exclusive  and shall not be 
transferable, even in the form of the grant of a sub -license, except with that part of the enterprise or goodwill 
which exploits such license.  
4 "The inclusion of IP rules in the international trading system was a watershed event. Negotia ted during 
the Uruguay Round, the 1994 Agreement on TRIPS significantly broadened the reach of the trading regime. 
Prior to TRIPS, trade rules generally focused on ´don 'ts´- telling countries which practices to avoid or scale 
back. […] Provided that countr ies respected these don 'ts, they remained free to adopt or reject any domestic 
policies they wished. For example, many countries chose not to enforce IP rights - a perfectly acceptable policy 
under the GATT [and/or WIPO] system. By contrast, the TRIPS Agre ement requires countries to "do" 
something. WTO Members are obliged to adopt policies that protect IPRs in areas such as patents, trademarks, 
and copyrights ".  Case Studies in US Trade Negotiations, Vol.1, Chapter3, Charan Devereaux, Robert Z. 
Lawrence, and Michael D. Watkins, 2006  IP/C/W/712  
 
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  Members in the ne xt Council session, and to assist them to start their work. As a member -driven 
process and supported on data, Colombia strongly encourages others to propose information, 
metrics and/or parameters related to implementation for brainstorming in informal sess ions and 
suggests a final compilation document prepared by the Secretariat summarizing the information, 
proposals, and convergences, in time for the anniversary of the TRIPS Agreement.  
12.  Regarding the substantive content, Colombia aims to engage in collabora tive discussions at the 
WTO to identify (or produce) relevant analytical metrics and data, which are currently non -existent, 
incomplete, or not appropriately used, to better assess the implementation of the TRIPS  Agreement 
over the years, and better guide the discussions and domestic policymaking process of Members. 
These new metrics could become part of a permanent source of information at the TRIPS  Council, 
at Trade Policy Reviews of individual Members, or at the Trade Monitoring exercise by the Secretari at, 
among others. For the attainment of these objectives, Colombia proposes to address discussions on 
the following implementation aspects:  
a. To analyse both domestic and international concentration of production in knowledge 
intensive sectors over the year s, based on relevant metrics.  
b. A global stocktake on royalties paid in and out by country for the use of Intellectual 
Property Rights, as expressed in the Balance of Payments of countries.  
c. c. A global stocktake on the use of Compulsory Licences since 1996, with a focus on the 
problem of export limitations faced by ´sandwich´ countries (not too small, not too large).  
d. A global stocktake on the residency/nationality of innovators across Members, coupled 
with an examination of Patenting activity by Office of Sub sequent Filing -OSF- (to better 
understand who is patenting internationally and domestically, and the incentive 
mechanisms that exist for innovators to go abroad) .5 
e. A related discussion on the exploitation of ´disclosures´ after IPRs finish their terms of  
protection. As an implementation matter, are these innovations/creations publicly 
available? Are they used by Members (especially developing ones)? Are they available for 
training of artificial intelligence models? (optional trigger questions).  
f. The utiliz ation of Article 44(2) of TRIPS by WTO Members.6 
13.  These above listed items are some ideas for informal discussions. It is our belief that these 
(and other) metrics, parameters and aspects proposed by Members on the implementation of the 
TRIPS  Agreement since 1996 will provide a rich opportunity to brainstorm. They will also provide 
everyone with relevant information and learning experiences for better future discussions at the 
WTO, and for better policies at home.  
__________  
 
5 Given its territorial nature, patent protection only provides exclusive rights for a patented invention 
within the country that grants the patent. Thus, a patent applicant must file its patent application in each of 
the countries or regions where it wishes to  gain patent protection. Typically, patent applicants would choose to 
first file a local application in their country of residence. But afterwards, the great majority of applicants choose 
not to go elsewhere. The Office of Subsequent Filing -OST- provides a very useful metric to better understand 
the reasons and mechanisms that promote resident innovators to "go abroad ".  For a good discussion related 
to the COVID19 landscape of technologies, see "Innovation and patenting activities of covid -19 vaccines in 
WTO members: Analytical review of medicines patent pool (MPP) covid -19 vaccines patent Landscape 
(VAXPAL) ", WTO Staff Working Paper ERSD -2022-01, February 2022, Section 5.5.  
6 TRIPS Article 44.2 – Injunctions:  
Notwithstanding the other provisions of this P art and provided that the provisions of Part II specifically 
addressing use by governments, or by third parties authorized by a government, without the authorization of 
the right holder are complied with, Members may limit the remedies available against su ch use to payment of 
remuneration in accordance with subparagraph (h) of Article 31. In other cases, the remedies under this Part 
shall apply or, where these remedies are inconsistent with a Member's law, declaratory judgments and 
adequate compensation sha ll be available.