WT/GC/W/884  
IP/C/W/701  
WT/COMTD/W/278  
 
5 July 2023  
(23-4563) Page: 1/3 
General Council  
Council for Trade -Related Aspects of  
Intellectual Property Rights  
Committee on Trade and Development  Original: English  
 
THE ROLE OF TRANSFER OF TECHNOLOGY IN RESILIENCE BUILDING:  
THE TRIPS AGREEMENT  
 
COMMUNICATION FROM THE AFRICA N GROUP (ANGOLA; BENIN; BOTSWANA; BURKINA FASO; 
BURUNDI; CABO VERDE; CAMEROON; CENTRAL AFRICAN REPUBLIC; CHAD; CONGO; CÔTE 
D'IVOIRE; DEMOCRATIC REPUBLIC OF CONGO; DJIBOUTI; EGYPT; ESWATINI; GABON;  THE 
GAMBIA; GHANA; GUINEA; GUINEA -BISSAU; KENYA; LESOTHO; LI BERIA; MADAGASCAR; 
MALAWI; MALI; MAURITANIA; MAURITIUS; MOROCCO; MOZAMBIQUE; NAMIBIA; NIGER;  
NIGERIA; RWANDA; SENEGAL; SEYCHELLES; SIERRA LEONE; SOUTH AFRICA;  
 TANZANIA; TOGO; TUNISIA; UGANDA; ZAMBIA AND ZIMBABWE)  
The following communication, dated 3 July  2023, is being circulated at the request of the Africa n 
Group.  
 
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1  CONTEXT  
1.1.  This communication should be read in conjunction with the paper  WT/GC/W/883, 
WT/WGTTT/W/34/Rev.1, WT/COMTD/W/277, IP/C/W/700  "The Role of Transfer of Technology in 
resilience Building: Reinvigorating the discussions in the WTO on trade and transfer of technology", 
as submitted to the General Council, the Working Group on Trade and Transfer of Technology , the 
Committee on Trade and Development  and the Council for Trade -Related Aspects of Intellectual 
Property Rights  and document WT/GC/W/868 "Policy space for industrial development - a case for 
rebalancing trade rules to promote industrialisation and to address emerging challenges such as 
climate change, concentration of production and digital industrialisation". These latter two 
submissions set out the design and parameters for discussions on Agreement -specific issues as 
pertain to industrial development in general, including the role, towards that that end, of transfer o f 
technology and trade.  
1.2.  The preamble and Articles 7 and 8 of the TRIPS Agreement set out the general goals, objectives 
and principles of the Agreement. Article 7 entitled "OBJECTIVES" reflects the search for a balanced 
approach to IP protection in the soc ietal interest since IP protection is expected to contribute not 
only to the promotion of technology, but also to the transfer and dissemination of technology in a 
way that benefits both its producers and users and that respects a balance of rights and obl igations, 
with the overall goal of promoting social and economic welfare. Article 8, entitled "Principles", 
recognizes the rights of Members to adopt measures for public health and other public interest 
reasons and to prevent the abuse of IPRs, provided th at such measures are consistent with the 
provisions of the TRIPS Agreement .1  
1.3.  As recognized by WTO dispute settlement Panels, those articles are to be borne in mind when 
the substantive rules of the Agreement are being examined .2 The 2001 Doha Declaration on TRIPS 
 
1 https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm  
2 Panel Reports, Australia – Tobacco Plain Packaging, para. 7.2402, "Articles 7 and 8, together with the 
preamble of the TRIPS Agreement, set out general goals and principles underlying the TRIPS Agreement, which 
are to be borne in mind when specific provisions of the Agreement are being interpreted in their context and in 
light of the object and purpose of the Agreement."  WT/GC/W/884 • IP/C/W/701 • WT/COMTD/W/278  
 
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  and Public Health provides, in paragraph 5(a) that "… in applying the customary rules of  
interpretation of public international law, each provision of the TRIPS Agreement shall be read in 
light of the objective and purpo se of the Agreement" .3  
1.4.  Paragraph 15 of the MC12 Declaration on the WTO Response to the COVID -19 Pandemic and 
Preparedness for Future Pandemics (WT/MIN(22)/31)4  recognizes that "increasing the level of global 
preparedness to COVID -19 and future pandemic s requires strengthened productive, scientific and 
technological capacity across the world. We also recognize that such capacity is instrumental for 
developing solutions to public health crises beyond COVID -19, including those relating to HIV/AIDS, 
tubercu losis, malaria and other epidemics, as well as neglected tropical diseases, and for diversifying 
manufacturing locations. In line with WTO rules, we underscore the importance of promoting 
technology transfer that contributes to building capacity in related  sectors".  
1.5.  Paragraph 23 further underscores the importance of understanding how WTO rules have 
supported Members during the COVID -19 pandemic, and their role in future pandemics. This 
paragraph affirms "the need to review and build on all the lessons learn ed and the challenges 
experienced during the COVID -19 pandemic, to build effective solutions in case of future pandemics 
including on balance of payments, development, export restrictions, food security, intellectual 
property, regulatory cooperation, servi ces, tariff classification, technology transfer, trade facilitation, 
and transparency, in an expeditious manner."  
2  CHALLENGES RELATED TO MECHANISMS FOR TECHNOLOGY TRANSFER  
2.1.  There are numerous market -related channels through which technology may be transferre d 
across international boundaries and these must be encouraged. One major channel is trade in goods, 
especially capital goods and technological inputs. A second is foreign direct investment (FDI), which 
may be expected generally to transfer technological i nformation that is newer or more productive 
than that of local firms. A third is technology licensing, which may be done either within firms or 
between firms. Licenses typically involve the purchase of production or distribution rights (protected 
by some i ntellectual property right) and the technical information and know -how required to make 
effective the exercise of those rights. In this regard various intellectual property rights play a role in 
knowledge transfer. However, such market -related channels are  at times insufficient to address 
issues of global commons.  
2.2.  There are also important non -market channels for technology transfer. Perhaps most significant 
is the process of imitation through product inspection, reverse engineering, decompilation of 
softwar e, and even simple trial and error. Imitation can be a time consuming and a costly process 
but at times is the only means available to developing countries to access the requisite technologies. 
Another means is to study available information about those te chnologies. Patent applications are 
available for this purpose. In exchange for a state backed monopoly, patent disclosure provides both 
a direct source of technology transfer, through FDI and licensing, and an indirect form through 
inspection. However, th ere is much debate over whether such patent disclosures provide sufficient 
information for persons skilled in the art to understand the technologies.  
2.3.  Existing mechanisms of technology transfer have not adequately boosted the productive 
capacities of develo ping countries in a broad -based fashion. This is particularly true of African 
countries which severely hampered the continent 's ability to respond to the COVID -19 pandemic and 
other health emergencies, as well as other pressing challenges such as food insecurity and the 
impact of climate change. Shortcomings of existing mechanisms for technology transfer include, 
among others: restrictive contractual terms in licensing agreements; information asymmetries 
related to R&D and pricing; and market concentrat ion. 
2.4.  Pricing strategies are based on determinants such as, inter alia the cost of R&D, costs of 
production or financial returns to incentivize future R&D programmes. The true costs of R&D, 
especially for pharmaceuticals are often unknown and highly variabl e, while the contribution made 
by public and non -profit -making sectors is not always accounted for. The lack of transparency in the 
 
 
3 https://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm  
4 https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/MIN22/31.pdf&Open=True  
 
 WT/GC/W/884 • IP/C/W/701 • WT/COMTD/W/278  
 
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  true cost of technologies, how public funding is taken into account and determinants of the market 
price contributes to conc erns about inaccessibility of key technologies, especially those that 
contribute to the global commons. Members need to engage on the role of the private sector and 
mechanisms that need to be put in place to ensure better accountability by the private sect or in 
relation to technology transfer, especially in promoting affordable access to key technologies 
required to address global commons such as public health  and green technologies to fight climate 
change.  
3  ISSUES TO BE DISCUSSED WITH A VIEW TO MAKING RECO MMENDATIONS FOR 
ADOPTION AT MC13  
3.1.  The key objective of the discussions would be to harness the potential of WTO instruments to 
render technologies accessible and affordable on fair and reasonable terms. The reinvigoration of 
the discussions could be centere d around the following issues and questions. It is expected that each 
theme or sub -theme will be thoroughly analysed and discussed among Members, with a view to 
making recommendations to Trade Ministers for adoption at MC13.  
a. How have the flexibilities con tained in the TRIPS Agreement contributed to technology 
transfer to developing countries and in particular to LDCs? How developed countries have 
allowed for compulsory licensing in their national legislations?  
b. In light of the Paragraph 6 system, following the Doha Declaration on TRIPS and Public 
Health, how have members countries addressed the problem of countries with insufficient 
or no manufacturing capacities in the pharmaceutical sector?  
c. How have compulsory licensing and the Paragraph 6 system contribut ed to the issue of 
technology transfer in the pharmaceutical sector?  
d. What kind of flexibilities are needed to promote the transfer of technology in the industrial 
sector more generally, and in particular for the benefit of Small and Medium Sized 
Enterprise s in developing countries, including LDCs?  
e. How can TRIPS provisions be utilized to boost industrial development and productive 
capacities?  
f. What kind of flexibilities are required, and which TRIPS provisions are relevant to support 
climate change mitigatio n and adaptation efforts, green industrialization and integration 
of developing countries, including LDCs in global value chains in the green economy?  
g. How can existing mechanisms of technology transfer be improved within the context of 
the multilateral tra ding system and the TRIPS Agreement in particular to ensure equitable 
and affordable access?  
h. The participation of developing countries in R&D takes many forms, including clinical trials  
- how can this be leveraged to ensure better terms of accessibility an d affordability to 
medical products from this contribution?  
i. What are the mechanisms that can be put in place to encourage greater transparency on 
the true cost of R&D with a view to ensure affordable access to key technologies?  
4  WAY FORWARD  
4.1.  It is proposed t hat the reinvigoration of work on trade and transfer of technology commence 
as soon as possible in the TRIPS Council.  
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