RESTRICTED  WORLD TRADE  
ORGANIZATION  IP/C/M/52 
15 January 2007 
 
 (07-0177) 
Council for Trade-Related Aspects 
of Intellectual Property Rights  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard on 25-26 October 2006  
 
 
Chairman:  Ambassador C. Trevor Clarke (Barbados) 
 
 The present document contains the record of  the discussion which took place during the 
TRIPS Council meeting held on 25-26 October 2006. 
 
 Subjects discussed
         P a g e  n o s .  
 
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT .........................................................2  
B. REVIEWS OF NATIONAL IMPLEMENTING LEGISLATION ..............................................................2  
C. TRANSITIONAL REVIEW UNDER SECTION 18 OF THE PROTOCOL ON THE ACCESSION 
OF THE PEOPLE 'S REPUBLIC OF CHINA ........................................................................................3  
D. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(B) ...................................................................14  
E. RELATIONSHIP BETWEEN THE TRIPS  AGREEMENT AND THE CONVENTION ON 
BIOLOGICAL DIVERSITY ...........................................................................................................14  
F. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE .................................................14  
G. REVIEW UNDER PARAGRAPH  8 OF THE DECISION ON THE IMPLEMENTATION OF 
PARAGRAPH  6 OF THE DOHA DECLARATION ON THE TRIPS  AGREEMENT AND PUBLIC 
HEALTH ............................................................................................................................... ......25  
H. NON-VIOLATION AND SITUATION COMPLAINTS ......................................................................27  
I. REVIEW OF THE IMPLEMENTATION OF THE AGREEMENT UNDER ARTICLE 71.1 ......................27  
J. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON 
GEOGRAPHICAL INDICATIONS UNDER ARTICLE 24.2 ...............................................................27  
K. FOURTH ANNUAL REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE 
IMPLEMENTATION OF ARTICLE 66.2  OF THE TRIPS  AGREEMENT ............................................27  
L. TECHNICAL COOPERATION AND CAPACITY -BUILDING ............................................................29  
M. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS – COMMUNICATION FROM THE 
EUROPEAN COMMUNITIES ........................................................................................................30  
N. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO ..............................44  
O. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS ...............45  
P. ANNUAL REPORT TO THE GENERAL COUNCIL ..........................................................................45  
Q. OTHER BUSINESS ......................................................................................................................47  
 IP/C/M/52 
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  1. In proposing the agenda for adoption, the Chairman
 said that item M on "Enforcement of 
Intellectual Property Rights – Communication from the European Communities" had been put on the proposed agenda at the written request of th e delegation of the European Communities, 
dated 21 September 2006.  He proposed that the Council adopt the agenda as proposed. 
2. The Council so agreed
. 
A. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT  
3. The Chairman  informed the Council that, since its meeting in March, it had received a 
notification of laws and regulations from Saudi Arabia.  Among the Members whose transitional 
periods under Article 65.2 or 65.3 had expired on 1 January 2000 or  who have acceded to the WTO 
after that date, there still remained two who had not yet submitted any notification concerning their 
implementing legislation, namely Saint Kitts and Ne vis;  and Saint Vincent and the Grenadines.   
4. He said that the Council had also received a number of supplements and updates to earlier 
notifications of laws and regula tions notified under Article 63.2 of the Agreement.  Mexico had 
notified a number of amendments to its Industria l Property Law as well as to its Copyright Law and 
Regulations;  Hong Kong, China had notified amendm ents to its trademark rules and the Copyright 
Ordinance of 2001;  Japan had provided an updated text of its Unfair Competition Act;  Japan had 
also provided a complete update of its initial notif ication;  and Australia had provided information 
regarding amendments to its laws and regulations made prior to 31  October 2004.  These notifications 
were being circulated in the IP/N/1/- series of  documents.  In addition,  Switzerland had notified 
statistical information on the enforcement of in tellectual property rights in Switzerland for the 
years 2002 and 2003 (document IP/N/6/CHE/1/Add.2).   
5. He urged those Members whose initial notifi cations remained incomplete to submit the 
outstanding material without delay, and reminded other Members of their obligation to notify any 
subsequent amendments of their la ws and regulations without delay after their entry into force.  In 
particular, he reminded those Members who had made any changes to their laws and/or regulations to 
implement the decision on "Implementation of Paragraph 6 of the Doha Declaration on the 
TRIPS Agreement and Public Health " and who had not yet notified such  changes to the Council to do 
so. 
6. With regard to notifications of contact points under Article 69, he said that, since the 
Council's meeting in June, a notification of a new c ontact point had been received from Saudi Arabia.  
Furthermore, updates to contact points notified earlie r had been received from Guatemala and Latvia.  
These notifications were being circulated in an addendum to document IP/N/3/Rev.9.  To 
date, 122 Members had notified c ontact points under Article 69. 
7. The Council took note  of the information provided. 
B. REVIEWS OF NATIONAL IMPLEMENTING LEGISLATION  
(i) Follow-up to reviews already undertaken  
8. The Chairman  said that, with regard to the reviews of national implementing legislation that 
had been initiated at the Council's meetings sin ce April 2001, eight reviews still remained on the 
Council's agenda.  These reviews concerned Cuba;  Fiji;  Grenada;  Mauritius;  Saint Kitts and Nevis;  
Saint Vincent and the Grenadines;  Suriname;  and Swaziland. 
  IP/C/M/52 
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  9. He added that a number of questions had also been raised with regard to the implementing 
legislation of certain Members whose reviews had already been deleted from the Council's agenda on 
the understanding that any delegation should feel fr ee to revert to any matter stemming from the 
review at any time.  These Members were Dominica, Gabon, Ghana and Guyana. 
10. He urged the delegations con cerned to provide the outstanding material as soon as possible, 
so as to allow the Council to complete the follow-up to these reviews. 
11. The Council took note  of the information provided and agreed  to revert to the matter at its 
next meeting. 
(ii) Arrangements for the review of national  implementing legislation of Saudi Arabia 
12. The Chairman  recalled that, at its meeting in March, the Council had agreed that it would take 
up the review of TRIPS implementing legislation of Saudi Arabia, a newly acceded Member, at its 
first meeting in 2007.  At its m eeting in June, the Council had set the following target dates for the 
submission of questions and answers in this review :  questions should be su bmitted to Saudi Arabia, 
with a copy to the Secretariat, by 27 November 2006;  and responses to questions posed within that 
deadline should be submitted by 8 January 2007.  As indicated under item A, the Council had recently 
received the notification of Saudi Arabia's implem enting legislation.  However, the Council had not 
yet received responses to the Checklist of Issues on En forcement.  He urged Saudi Arabia to provide 
its responses as soon as possible so as to facilit ate the Council's review.  He said that, under 
"Other Business", it was his intention to suggest th at the Council's first meeting in 2007 be held 
on 13-14 February.  Given that Saudi Arabia's notif ication was still being circulated and that there 
was still plenty of time before the Council's next meeting, he suggested that the Council postpone by 
two weeks the target dates for the submission of qu estions and answers in this review, namely that: 
- questions should be submitted to Saudi Ar abia, with a copy to the Secretariat, 
by 11 December 2006;  and 
- responses to questions posed within that deadline should be submitted 
by 22 January 2007. 
13. The Council so agreed . 
C. TRANSITIONAL REVIEW UNDER SECTION 18 OF THE PROTOCOL ON THE ACCESSION OF THE 
PEOPLE 'S REPUBLIC OF CHINA  
14. The Chairman  recalled that paragraph 18 of Chin a's Protocol on Accession required the 
TRIPS Council to review the implementation by China of the TRIPS Agreement each year for 
eight years and report the results of such review pr omptly to the General Council.  He further recalled 
that paragraph 18 required China to provide relevant  information, including information specified in 
Annex 1A, to the TRIPS Council in advance of th e review.  He informed the Council that the 
information submitted by China pursuant to the requirement, dated 23 October 2006, had been 
circulated as document IP/C/W/483. Questions an d comments in connection with the transitional 
review had been submitted by the European Comm unities, Japan and the United States (documents 
IP/C/W/481, 479 and 482, respectively).  
15. The representative of China , briefing the Council on China's progress in the implementation 
of its TRIPS-related commitments since the last tran sitional review, said that as regards legislation, a 
number of new regulations and judici al interpretations relating to IPRs  had been issued or were being 
drafted.  Among these were the Interim Regulation concerning Intensified Interlinking and 
Coordination in the Combat against C opyright Infringing Criminal Offences  which had been brought IP/C/M/52 
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  into effect on 13 January 2006, the Measures on Protecting the IPR of Exhibition  which had been 
brought into effect on 1 March 2006, and the Regulations on the Protection of the Right of 
Communication through Information Network  which had entered into force on 1 July 2006.  By the 
end of 2005, the process for obtaining public comments through the Internet for four further draft judicial interpretations had been completed.  These were:  one on Civil Dispute Concerning Unfair 
Competition , one on Infringement Disputes Regarding New Plant Varieties , one on Conflicts of 
Intellectual Property Rights , and the last one on Dispute of MTV Copyright .  More information was 
contained in the document submitted pursuant to Annex 1A. 
16. Regarding enforcement, he said that China had already stated previous ly that it regarded a 
good system of enforcement and transparency as essen tial to bring into full play its excellently 
constructed legal system of IPR protection.  In  this regard, the national working group for IPR 
protection that had been set up in 2005 and comprised  all relevant judicial and administrative agencies 
had taken new important steps this year to strengthen law enforcement.  At the heart of this effort was 
the creation of service centres all over China in orde r to facilitate the reception of complaints on IPR 
infringement.  So far, the Ministry of Commerce had set up 50 such centres in large- and medium-
sized cities across China and these centres were functioni ng well.  In order to bring a complaint or to 
report an IPR infringement case to China's enforcemen t agencies, one could simply dial 12312 or log 
on to the website www.ipr.gov.cn and a quick res ponse would be assured.  Another important step 
was the issuance of the Circular on the Transfer of Suspectable Criminal Offences by Administrative 
Organs for Law Enforcement  and the subsequent release of three further Circulars by the Ministry of 
Public Security in conjunction with other competent authorities, concerning accelerated transfer of 
IPR infringement cases by customs authorities fro m administrative to criminal enforcement. 
17. With regard to transparency, he said that in March 2006 the Supreme People's Court had set 
up a website through which judicial decisions on IPR infringement cases were accessible to the 
general public free of charge.  The Supreme Peopl e's Court and local high courts had begun to 
establish a spokesman system, through which impor tant IPR issues were publicized regularly.  
Comprehensive up-to-date information on the protecti on of IPRs in China was also available from the 
website www.ipr.gov.cn.  One very important deve lopment in China's protection of IPRs in the 
year 2006 was the adoption of the National Action Programme on the Protection of IPR (2006-2007) , 
which specified guidelines, objectives, priorities and the main measures regarding the strengthening 
of IPR protection in China.  China's Action Plan on IPR Protection (2006) , which had been adopted at 
the same time, promoted the protection of IPRs  through the improvement of legislation and 
enforcement, institutional development, educa tion and training, international exchange, and 
cooperation.  The protection of intellectual property rights was also regarded as an important strategy 
to transform China into a nation with strong innovative capabilities.   
18. He said that it was clear that  China had made tremendous effo rts to promote better protection 
of IPRs in line with its economic development leve l and had made remarkable achievements, namely 
that five years after joining the WTO, China' s IPR system was fully consistent with the 
TRIPS Agreement and China had fully implemented its accession commitments.  When talking about 
IPR issues in the WTO, it had to be kept in mi nd that firstly, one was talking about trade-related 
aspects of IPRs, and secondly, that the objective of the TRIPS Agreement was to promote the development of trade and technology transfer through  appropriate rules on protection and use of IPRs.  
19. Before responding to the specific issues and questions raised by Members, he said his 
delegation would want to make a number of comment s.  Firstly, his delegation had made available 
several documents for this meeting.  One was the document containing the information requested in 
Annex 1A, which had been circulated as documen t IP/C/W/483 and which provided information on 
the development of legislation and enforcement,  as well as some detailed statistics and data on 
enforcement.  Furthermore, the following room doc uments had been made available for Members:  
the White Paper on China's Intellectual Property Rights Protection for 2005 , China's Action Plan for  IP/C/M/52 
 Page 5 
 
 
  the Protection of Intellectual Property Rights for 2006 , and a book of approximately 200 pages on 
how to protect intellectual property rights in China. 
20. Secondly, he said that his delegation had summa rized Members' questions and divided them 
into six parts which would be addressed by the answer s, namely Part 1 on general issues;  Part 2 on 
copyright;  Part 3 on trademarks and geographical indications;  Part 4 on patents;  Part 5 on 
enforcement;  and Part 6 on other issues.   
21. Thirdly, he pointed out that, although the tim e available to translate the questions into 
Chinese, obtain answers from the numerous competen t authorities in China and translate the replies 
back into English was very short, his delegati on was still making every effort to answer as many 
questions as possible.  However, if a delegation fe lt that an issue had not been sufficiently addressed, 
this could be dealt with after the TRM meeting, but would not merit an extension of the TRM process.   
22. Fourthly, he said that Members, in their qu estions, had requested very detailed figures 
concerning China's enforcement data, organized, fo r example, by subject-matter, by country, by 
different authorities or even by different local cour ts or local administrative agencies.  The document 
provided pursuant to Annex 1A had basically provided  this information, but further accessible sources 
for detailed information would be indicated in answers to specific questions.  As the time in 
TRIPS Council meetings was very limited, no-one c ould expect to resolve all issues under the TRM 
process in just one meeting.   
23. He said that the importance the Chinese G overnment attached to the TRM process was 
reflected in the size of the delegation at the pr esent meeting, which included members from the WTO 
mission based in Geneva;  from the Supreme People' s Court;  from the copyright bureaux;  from the 
Legislative Affairs Office of the State Council, an d also from the State Intellectual Property Offices 
and Trademark Offices, as well as representatives from the Ministry of Commerce. 
24. In responding to the specific questions by Memb ers, the representative of China turned to his 
delegation's answers concerning general issues (Part 1) .  He said that with regard to the drafting of 
new or revised judicial interpreta tions, new laws, regulations or judi cial interpretations relating to 
IPRs since the last review, his delegation had alre ady mentioned the preparation of the four draft 
judicial interpretations on Civil Disputes concerning Unfair Competition , on Infringement Disputes 
regarding New Plant Varieties , on Conflicts  of Intellectual Property Rights , and on Dispute of MTV 
Copyright , which were in preparation.  Furthermore, th e following regulations had come into effect 
since the last review:  Interim Regulation concerning Intensified Interlinking and Coordination in the 
Combat against Copyright Infringing Criminal Offences,  Measures on Protecting the IPR of 
Exhibition , and the Regulations on the Protection of the Right of Communication through Information 
Network .  The document submitted pursuant to Anne x 1A provided more information on these 
instruments. 
25. Regarding the number of administrative cases in the areas of trademarks, copyright and IP-
related customs matters undertaken on an ex officio basis and on the basis of right holders' 
complaints, he informed the Council that the i ndustry and commerce administrative authorities had 
investigated and dealt with 39,107 trademark infringement cases in 2005 and 15,493 cases during the 
first six months of 2006.  In 2005, China cu stoms had dealt with 1,210 IPR infringement cases 
involving the import or export of goods.  No separat e statistics were available on the number of cases 
dealt with on the basis of right holders' complaints.  
26. No data was yet available on the number and percentage of cases referred from administrative 
enforcement to criminal enforcement under the revi sed transfer mechanisms that had been developed 
by the Supreme People's Court, Supreme People's Proc uratorate, Ministry of Public Security (MPS), 
and General Administration of Customs.  IP/C/M/52 
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  27. He confirmed that the treatme nt of trademark infringement under the current Trademark Law 
would also be applicable to the unauthorized use of  copyright and trademarks on the Internet and the 
provision of counterfeit/pirated products on Internet  sites in the .cn domain.  Right holders could 
complain to the local Industry and Commerce Admi nistrations as well as directly bring a case to the 
court.  The Regulations on the Protection of the Right of Communication through Information 
Network , which had come into effect on 1 July 2006, would further contribute to the regulation of the 
spread of works on the Internet, to  the enhancement of the copyright protection on the Internet, and to 
further development of the internet industry. 
28. The representative then turned to his delegation's answers concerning copyright (Part 2) .  
With respect to the availability of statistical da ta on prosecutions under Article 225 of the Criminal 
Law on "illegal business operations" that involved copy right infringement, he said that China did not 
distinguish cases involving copyright infringement from illegal business operations.  With regard to 
the results of the "Number 2 Sunshine Action to Im prove the Operation of A udio and Video Markets" 
and the "100-day Anti-Piracy Activity" campaign, he said that no data was available yet as these 
actions had only been staged very recently. 
29. Regarding Article 43 of the C opyright Law of China on fees charged for broadcasting of 
copyrighted works, a separate regulation was being drafted by competent authorities of the 
State Council, but there was no timetable as to when the regulation would be issued. 
30. Regarding the effectiveness of enforcement in the case of infringements of multiple 
intellectual property rights, he said that the State Office of Intellectual Property Protection, the 
Ministry of Public Security and the Ministry of Supervision had jointly issued the Provisions on the Transfer of Suspectable Criminal Cases by Admi nistrative Organs for Law Enforcement in 2006, in 
order to enhance the coordination and coopera tion among law enforcement bodies in cracking down 
on IPR criminal offences. 
31. The representative then turned to his delegation's answers concerning trademarks and 
geographical indications (Part 3) .  With regard to the information required for a trademark 
application and the classification system used by the China Trademark Office, he said that if the name 
of a product or service was identical to the name of  a product or service in the Nice Agreement on the 
International Classification of Goods and Services for the Purpose of Registration of 
Marks (8
th edition), then the applicant was not required to  provide additional information.  Otherwise, 
the applicant was required to provide a descripti on of the product or service which would then be 
classified according to the Nice Classification.   
32. He said that the China Trademark Bureau  was adopting only the Nice International 
Classification System, not two different systems.  The groups referred to as "sub-groups" were groups 
of similar goods or services on the basis of the Nice Agreement.  Goods  included in the same similar 
group were regarded as similar goods.  Therefore, th e similar group was the reference standard for the 
purpose of establishing whether there was confusion be tween a trademark applied for and a registered 
trademark or a prior application.  More information on this question was provided at 
www.ctmo.gov.cn.  With regard to the specific cases  of a glove and a scarf mentioned in Members' 
questions, he said that the glove fell under th e similar group of 2510 and the scarf fell under the 
similar group of 2511.  
33. Regarding a minimum amount of damages stipulat ed for trademark infringement, he said that 
neither the Implementing Regulations on trad emark law before 2002 nor the Implementing 
Regulations on trademark law revised in 2002 co ntained any provisions on minimum amounts of 
damages.    IP/C/M/52 
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  34. With regard to the issue of local Administrations of Industry and Commerce (AICs) 
publishing their decisions, he said that local AICs published the penalties for major infringement 
cases and the transfer of cases to public security bodi es, in order to improve transparency and deliver 
a strong message against counterfeiting.  
35. Concerning data on the rate of affirmance or reversal of appeals from the Trademark Review 
and Adjudication Board (TRAB) to the Beijing High Court of final decisions regarding trademark 
validity, he said that, in 2005, a total of 128 a ppeal cases had been decided, of which 105 had been 
maintained and 23 had been withdrawn.  No data was yet available for the first six months of 2006. 
36. With regard to the grounds on which the Chin ese Trademark Office could refuse protection of 
a geographical indication and the independent qualif ication documentation required in an application 
for GI protection, he said that the registration of a GI needed to pass the material review governed by 
Articles 10, 11, 12, 28 and 29 of the Trademark Law. 
37. With regard to China's measures and proce dures for designating so-called "famous brands" 
and "famous trademarks”, he said that the proce dures for designating both these items were basically 
the same.  More information could also be found in his delegation's answer to that question during last 
year's review.  
38. On the issue of counterfeiting in retail markets, he said that the Administrations of Industry 
and Commerce (AICs) encouraged the inclusion of  anti-counterfeiting provisions in lease contracts 
between market operators and market sponsors.  U nder the provisions of the trademark law, the AICs 
were able to investigate and deal with action infri nging exclusive rights to registered trademarks, both 
on an ex officio basis and in response to a complaint or report.  
39. Concerning the length of the time period currently necessary for the review of trademark 
applications, he said that the number of applicati ons had been increasing at an annual rate of 100,000 
in recent years.  The current time span from the subm ission of an application to the first action by the 
trademark administration office was approximately 24 months, or more in cases of disagreement or 
dispute.  China was taking proactive measures to tr y to shorten the time length of the registration 
cycle. 
40. On the issue of opposition without substantive reasons, he said that any opposition document 
had to be accompanied by clear claims and fact ual evidence. China would consider the issue of 
"vicious opposition" during the future  revision of the trademark law.   
41. With regard to the treatment of foreign and domestic applications for well-known trademarks, 
he said that there was no discrimination at all. 
42. The representative then turned to his delegation's answers concerning patents (Part 4) . With 
regard to the question on the future revision of the Patent Law, he said his delegation regarded this 
question as being outside the scope of the transitional review mechanism. 
43. Regarding the issue of linkage between pate nt approval and drug approval processes, he 
reported that the ongoing study by the State Food and Drug Administration was not yet completed. 
44. Regarding approval procedures for patent or t echnology transfer, he said that the main 
provisions relating to this issue were in the Re gulation on the Administration of Technology Import 
and Export.  According to that Regulation, patent ap plications for transfer that involved a restricted 
technology were prohibited from being transferred, while technology that fell within the free category 
only had to go through an export approval procedure.  This procedure was already quite simplified.  IP/C/M/52 
Page 8  
 
  45. Regarding the protection of test data fo r pharmaceutical products, Article 35 of the 
Implementation Regulations of the Pharmaceutical Administration Law provided that the non-disclosure test data or other data required for an application on distribution permission using new 
chemical components would be protected.  The Measures on Pharmaceutical Registration 
Administration provided further that, during the six years since the State Food and Drug 
Administration had approved a pharmaceutical pr oduct containing new chemical components, other 
applicants could not use the exclusive data and materials of the original applicant without the 
permission of the original applicant.  
46. On the question of additional protection for products that are subject to marketing 
authorization, he said that Article 42 of China's Patent Law concerning the time-period for patent 
protection was already consistent with the TRI PS Agreement and China had no plans to grant any 
additional protection at present.   
47. He clarified that "business talks" at exhibitions  about products that exploit a design for which 
a patent right had been granted did not constitute a "sale" under Article 11 of China's Patent Law.  
48. The representative then turned to his delegation's answers concerning enforcement (Part 5) .  
With regard to the procedures for the destruc tion of goods and materials used in producing 
counterfeit, pirated and other infringing goods, he said that according to Article 53 of the 
Trademark Law the objects to be detained or confi scated were the infringing products and instruments 
specially used for the manufacturing of infringing products and did not include  products and materials 
not involved in infringing activities.  All infringi ng goods that had been confiscated were being 
destroyed and not put up for auction.  In 2005, the AICs had seized and destroyed more 
than 18,400 pieces of infringing goods, amounting to 7000 metric tonnes. 
49. Regarding the procedures for obtaining a preliminary injunction, especially procedures to 
"establish" a case before the request for a preliminar y injunction was considered , he said that the right 
holders or interested parties who required the c ourt to place the case on the docket had to submit a 
written application to the court that had jurisdic tion over the case.  The court then had to decide 
within 48 hours whether the application met the relevant requirements, in which case its execution 
would begin immediately.  The court had to info rm the person against whom the application was 
made within five days.  Parties not satisfied with  the court's verdict could apply for review within 
ten days of issuance, but execution or implementa tion would not be stopped during such a review.  
Regarding statistical data on pr eliminary injunction requests and evidence preservation order requests, 
and the rate of their grant of denial, he said that  since the inception of the three major laws until 
October 2005, local courts across the country had accepted 301 preliminary injunction cases and had 
closed 299, of which 177 had been sustained and 24 had been withdrawn.  
50. Concerning the results of the 50 new IPR Serv ice Centres established as part of the 2006 IPR 
Action Plan, he said that, by September 2006, the 50 centres had accepted about 15,600 reports, 
complaints and enquiries, among which had been 198 reports;  15,000 enquiries, and 307 complaints.  
Many of the 500 cases reported had gone through to judicial procedures, but no specific data was 
available on how many had trigge red criminal proceedings.   
51. He said that the combat against text book pira cy on university campuses was already part of 
the 100-day anti-piracy activity.  
52. Regarding the question of which other localities,  apart from Beijing, had initiated "trademark 
authorization systems", he said that to his knowle dge these were in Zhejiang Province and in some 
parts of Guangdong Province.    IP/C/M/52 
 Page 9 
 
 
  53. Regarding the question of legalization of power s of attorneys and documentary evidence, his 
delegation believed that the current procedures we re normal procedures to ensure the legality of 
important documents. 
54. He said that the question regarding the differe nce in criminal prosecution between individual 
and unit crime had already been answered dur ing the April trade policy review process. 
55. With regard to criminal thresholds for the prosecution of manufacturi ng and/or supply of 
dangerous counterfeit goods, he said that China ha d no plans to abolish the criminal threshold. 
56. On the question of the participation by right holders in enforcement, he said that under 
Chinese laws, right holders were granted the right to complain to the IPR administrative agencies, 
provide evidence, participate in hearings, and request administrative review proceedings. They 
therefore enjoyed a high level of participation in IPR enforcement activities.  
57. He said that statistics concerning administ rative penalties in 2005 were contained in the 
document provided pursuant to Annex 1A. 
58. Regarding the proportion of IPR infringement case s in the criminal cases, in respect of the 
crime of production, sale of counterfeit and inferi or products and illegal business operations, he said 
that this data could not be singled ou t under the current statistical method. 
59. Regarding data on trademark infringements in al coholic beverages, he said that no separate 
statistics for alcoholic beverage trademark infringement were available. 
60. With respect to the understanding that, in Chin a, criminal penalties were not imposed on an 
infringement by "similar" trademarks, he said th at this understanding was incorrect and referred 
Members to Article 8 of the Interpretation of th e Supreme People's Court and the Supreme People's 
Procuratorate Concerning Some Issues on the Speci fic Application of Law for Handling Criminal 
Cases of Infringement upon Intellectual Property Rights.  
61. He confirmed that administrative as well as cr iminal penalties were imposed on services mark 
infringement and said that the same law applie d to goods trademarks and services marks.  
62. He confirmed that, in trademark infringement, heavier administrative penalties were imposed 
on repeat offenders. 
63. With respect to the development of clearer or up-to-date judicial interpretations regarding the 
calculation of illegal business operation and unit crim e, stated in the "2006 Action Plan for the 
Protection of IPR", he said that this was subject to fu rther study in light of results of the application of 
relevant judicial interpretations.   
64. With regard to whether China was planning to reduce the burden of right holders in customs 
actions against alleged infringement, he said that the implementation measures of the Regulations of 
the General Customs Administration on Customs Protec tion of IPRs had already helped alleviate this 
burden in that they obliged all customs offices to conclude an investigati on within 30 working days 
from the date of detaining the goods.  This shor tened case-handling time at the customs offices and 
consequently reduced storage time and costs.  Furthe rmore, right holders did not bear storage costs of 
confiscated goods beyond three months from the date  of confiscation.  Regarding data on the number 
of customs seizures, he said that the number of c ases investigated and dealt with by customs was 700 
in 2003, 1,000 in 2004, and 1,100 in 2005.  This data was not broken down by country.    IP/C/M/52 
Page 10  
 
  65. With respect to measures to enhance the protectio n of IPRs at the local level, he said that 
some provinces had promulgated local administrative regulations to strengthen IPR protection, encourage innovation and counter IPR infringement  activities.  A regional cooperative mechanism 
had been established amongst some provinces and citi es, for example the inter-provincial agreement 
for administrative protection of patents among six provinces and cities, including Beijing, Shanghai 
and Guangzhou.  The Action Programme for IP R Protection 2006-2007 by the State Council 
specifically required local governments of all levels to include IPR protection as an important agenda 
in their work and to incorporate it in thei r respective overall socio-economic development 
programmes.  The Action Programme also included a training programme for local officials and 
managerial personnel at the enterprise level.  
66. The representative then turned to his delegation's answers concerning other issues (Part 6) .  
Regarding the issue of the protection of trade name s in the revision of the "Law to Counter Unfair 
Competition", he said that the relevant authorities in China were looking into the issue of conflict 
between trade names and trademarks.  As the la w was still in the process of being revised, his 
delegation was not in a position to prejudge the results.   
67. Concerning the licensing regulations contained in the Regulations on the Administration of 
Import and Export Technology, he said that the pr ovision "where the exploitation of a technology 
given by a transferee in accordan ce with the terms of the contract infringes upon the legitimate right 
and interests of others, the transferor shall be he ld liable" was compulsory, not discretional.  China 
had no plans to revise the provision on liability of third parties' infringement.   
68. The representative of Japan
 thanked China for its comprehensive responses.  He said that 
question 26 of his delegation's document, regard ing the statement by Prime Minister Wen on the 
lowering of prosecution thresholds, had not been dir ectly addressed and he requested China to address 
this question.  His delegation had continuously raised  the issue of "further improvement of criminal 
enforcement" at the TRMs from 2002 to 2005.  He  appreciated that the Chinese Government had 
recognized the importance of IPR protection and had made considerable efforts to improve 
enforcement including, for example, the new j udicial interpretation in December 2004 and "The 
China Action Plan on the Protection of Intellectual Property Rights" which stated that "clearer or 
more advanced interpretations will be presented on the problem recognized through treatment of 
concrete cases" based on an assessment of the situa tion after the new interpretation had been enacted. 
69. Despite these efforts, however, a survey cond ucted by the Japanese Government in 2006 had 
illustrated Japanese industry's concerns that the actual administrative sanctions applied to IPR 
infringement in China were still insufficient and that enforcement by Chinese governmental 
authorities was not satisfactory.  About 30% of Japanese companies that ha d used the remedial 
procedures in China had continued to suffer repeated  infringement.  Therefore, his delegation had to 
conclude that IPR enforcement in China was in sufficient to deter further infringements, which 
continued to cause serious damage to the Japanese i ndustry.  He emphasized that it was important to 
improve the deterrent effect by strengthening admi nistrative punishment and criminal prosecution, 
and improving sanctions against repeat offenders.  Japan was looking forward to China enhancing IPR 
protection and taking further steps to provide effec tive enforcement against any act of infringement of 
IPRs, including through the lowering of the criminal thresholds for prosecuting IPR-related offences. 
70. The representative of the United States  said that his delegation appreciated China's efforts to 
improve its IPR enforcement and protection environm ent, and had welcomed that China's leadership 
at the highest levels, including President Hu, Prem ier Wen, and Vice Premier Wu Yi, had continued 
to publicly recognize the importance of IPR protect ion and enforcement over the past year.  China 
also deserved credit for a number of concrete, pos itive developments:  China had conducted several 
special enforcement campaigns, such as the "Mountain Eagle" campaign.  It had issued a 2006 Action 
Plan on IPR Protection, which among other things ca lled for "special crackdown efforts" with respect  IP/C/M/52 
 Page 11 
 
 
  to various IPR infringement problems.  It had adopted revised rules governing transfer of 
administrative and customs cases to criminal author ities. Although these rules were not a complete 
solution and did not address the problem of thres holds, they were nonetheless a welcome step.  
Authorities in a few parts of China, notably Shangha i, appeared to show greater willingness to take 
ex officio  enforcement action on behalf of US right holder s.  And, notably, authorities in some parts 
of China had started to take enforcem ent actions against Internet piracy. 
71. Unfortunately, however, the IPR situation in Ch ina remained critical.  Infringement levels 
remained unacceptably high and continued to aff ect products, brands and technologies from a wide 
range of industries, including films, music and sound recordings, pu blishing, business and 
entertainment software, pharmaceuticals, chemical s, information technology, apparel, athletic 
footwear, textile fabrics and floor coverings, cons umer goods, electrical equipment, automotive parts 
and industrial products, among many others.  China' s share of infringing go ods seized at the US 
border in 2005 had been more than ten times greate r than that of any other US trading partner. 
72. He said that the key problems were well known and had been repeated many times in this 
forum:  China suffered from chronic over-relianc e on toothless administrative enforcement and 
underutilization of criminal remedies. Its ow n 2004 data showed that it channelled more 
than 99 per cent of copyright and trademark cases in to its administrative systems, rather than its 
criminal system.  China's high thresholds for criminal liability, i.e. the minimum values or volumes required to initiate criminal prosecu tion, continued to be a major reas on for the lack of an effective 
criminal deterrent.  Right holders had pointed to a number of other deficiencies that highlighted the 
need for reform of criminal IPR laws. For inst ance, Article 217 of the Criminal Law provided for 
prosecution of the unauthorized "reproducing and dist ributing" of certain copyrighted works. Thus, it 
appeared that unauthorized reproduction was subj ect to prosecution only when accompanied by 
unauthorized distribution, and vice versa.  Enforcemen t efforts, particularly at the local level, were 
hampered by poor coordination, local protectionism  and corruption, high thresholds for initiating 
investigations and prosecuting criminal cases, lack  of training, and inadequate and non-transparent 
processes.  In the copyright area,  trade in pirated optical discs continued to thrive, and China 
continued to maintain market access restrictions th at artificially limited the availability of foreign 
content and thus led consumers to the black market. 
73. His delegation also remained concerned about various aspects of China's 2004 customs 
regulations and implementing rules.  One exampl e was that these rules established a hierarchy of 
requirements for the disposal of infringing goods that had been confiscated by Chinese customs 
authorities, following the removal of their infringing features.  This hierarchy required such goods to 
re-enter channels of commerce unless the right owner paid for these goods. 
74. He said that many Members, including the US , had worked hard to address these concerns 
through a constructive bilateral dialogue with Chin a, which had often yielded positive results. One 
example was the bilateral discussions on the issue of  software infringement in 2006 that had led to 
China's decision to require computers to be pre-inst alled with licensed operating system software.  His 
delegation believed such bilateral di scussions to be indispensable to a healthy trade relationship, and 
intended to continue these on a wide range of IPR issues.  At the same time, the multilateral WTO forum and its tools, such as the TRM and the tran sparency provisions under Article 63.3 of the 
TRIPS Agreement, were equally indispensable to  a healthy international trade environment.  
75. Unfortunately, China had shown a disappointing relu ctance to use these tool s to clarify issues 
and explore possible solutions.  While the United St ates appreciated China's responses today, it also 
noted that once again this year, as in the past, not  all questions had been fully answered.  These 
unanswered questions fell in three categories:  Th e questions to which no answers had been provided 
at all included question 5, paragraphs (b), (c ) and (d);  question 19, paragraphs (b) and 
(c);  question 22 paragraph (b);  question 23;  and question 28.  Ques tions that China had regarded as IP/C/M/52 
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  lying outside the scope of this Council included ques tions 24, 25 and 26 concerning the Patent Law.  
It was his delegation's view that, as this review was a transparency exercise, taking a broad rather than 
a narrow perspective would help to avoid the use of other mechanisms to resolve disputes in the 
future.  The third category of unanswered questions in cluded questions 2, 4, 11, 15, 16, 17 and 27, and 
concerned various requests for data, which China ha d said were not yet available.  His delegation 
would appreciate receiving that data once they were available. 
76. He noted China's response that no new or revised  judicial interpretations were contemplated 
regarding the possibility of lowering thresholds fo r criminal liability.  The United States and other 
Members had repeatedly raised serious concerns  about these thresholds in the past, and would 
continue to explore every possible avenue for resolv ing this issue.  He also expressed his delegation's 
disappointment that China had not provided substan tive responses to the ques tions posed a year ago 
by the United States and other Members under the pr ovisions of Article 63.3, and thereby had not 
seized the opportunity to enhance mutual understandi ng and work towards concrete solutions.  He 
said that the TRM process and transparency request s under Article 63.3 were valuable tools, as they 
could help Members solve particular problems wit hout resorting to other mechanisms, such as the 
WTO dispute settlement process, and he urged China to  take fuller advantage of such opportunities in 
the future. 
77. The problem of IPR infringement in China w as multifaceted and complex and required broad 
engagement and cooperation.  Addressing these c oncerns might require bilateral discussions, 
multilateral tools like today's TRM, or the use of other avenues, and his de legation hoped to engage 
fully and constructively with China in all these efforts.  
78. The representative of the European Communities
 thanked China for its responses to the 
questions posed by the European Communities in doc ument IP/C/W/481.  As it was not clear whether 
China had addressed the issue of legalization of  powers of attorneys and documentary evidence 
referred to in paragraphs 13 a nd 14 of the EC communication, he said that his delegation would 
appreciate it if China could explain how it intended to solve this issue.  He also enquired whether the 
information on service centres, judicial decisions and spokesman system, provided on the numerous 
websites mentioned in China's presentation, was available in languages other than Chinese.   
79. He said that, while his delegation noted with  satisfaction China's progress so far and the 
ongoing initiatives to tackle the remaining problems, his delegation remained concerned by the high 
level of counterfeiting and piracy and urged China to  actively pursue its efforts towards an effective 
IP enforcement system.  His delegation's continuing commitment to bilateral efforts to improve the 
situation was illustrated by the establishment of the joint IP Working Group under the EC-China 
Structured Dialogue on Intellectual Property, whic h would hold its third meeting in November 2006 
in Beijing.  He expressed his hope that this Di alogue, which had the purpose of solving IP problems 
that European companies were facing in China,  would lead to concrete and tangible results. 
80. The representative of Canada thanked China for its responses to Members' questions and the 
documents it had provided, giving details of some  of the measures and legislation that had been 
implemented by China.  Canada and China were e ngaged in continuous bilateral exchanges of best 
practices and other experiences by their respective in tellectual property agencies and IP experts.  In 
the course of this exchange, Canada was welcoming a Chinese delegation from the Yunnan 
Intellectual Property Office in the same week a nd, as part of the Canada-China WTO Capacity 
Building Project, a study tour the following month of senior officials from the provincial offices of the 
Chinese Ministry of Commerce. 
81. Canada followed China's work on its legal frame work for the protection and enforcement of 
IPRs with great interest and, while recognizing progr ess in relation to trademark protection in the last 
couple of years, remained concerned by some of th e key issues with respect to enforcement.  These  IP/C/M/52 
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  concerns were confirmed in a recent survey of  Canadian businesses, industry groups, right holders 
and other interested stakeholders, which had been conducted in order to identify the countries where 
stakeholders were encountering problems with enforcement and how these problems were affecting 
them commercially.  Almost two thirds of the subm issions had raised concer ns with China, covering 
equally the infringement of patents, trademarks, copyr ight, and industrial designs in products ranging 
from building materials, circuit breakers, electrical devices and electronics to batteries, toys, apparel, 
luxury goods, Inuit themed gift items, and works of art.  Disconcertingly, almost all of the 
submissions that had raised concerns with Chin a noted that they had not initiated enforcement 
procedures in China, citing a variety of reasons including the difficulty of pursuing remedies, the 
unlikelihood of a satisfactory result, extensive bur eaucracy, the absence of effective sanctions, high 
costs with slim chances of success, and difficulti es in gaining support and action from the Chinese 
authorities.  In addition, increasing concerns about co pyright enforcement in China had been raised by 
a number of Canadian groups, including recording artis ts, film companies and video game developers.   
82. In this respect, Canada was particularly inter ested in the indications by China's Premier that 
China would improve mechanisms for IPR protecti on and strengthen law enforcement, and shared 
other Members' concerns regarding the thresholds for criminal prosecution that had been established 
by China's Supreme People's Court in 2004.  Canada was further interested to hear that one of the 
activities of the State Working Group on IPR Protection established in August 2004 was to conduct public awareness and education campaigns.  Canada w ould be interested in any further examples of 
recent IP public awareness campaigns that China coul d provide.  Canada also shared the interest of 
other Members who had raised detailed questions , and was looking forward to continuing this 
dialogue. 
83. The representative of Switzerland
 thanked China for its responses and efforts in the context of 
the TRM.  He said that Switzerland shared the c oncerns of other delegations that deficiencies 
remained in the field of intellectual property and pa rticularly with regard to civil, administrative and 
criminal enforcement.  His delegation was committed to continuing and intens ifying the dialogue with 
China, not only in this multilateral forum where his delegation had last year submitted requests to 
China under Article 63.3, but also bilaterally, and hoped for a positive response from China in this 
regard.    
84. In responding to Members' comments, the representative of China  said that some of the 
unanswered questions would require detailed studies and breakdowns of data.  He confirmed that the 
websites mentioned in his presentation were also ava ilable in English.  His delegation had taken note 
of the other issues mentioned and would study them further in its capital.  As Members had 
mentioned, the bilateral channel of communication was a very effective tool to deal with concerns not 
only of other Members but also China's concerns.  Regarding the Members who had raised the issue 
of transparency under Article 63.3, he said that China had already clearly expressed its position that it 
had no obligation to provide specific information under this provision.  However, China would 
discuss this issue with interested Members through bilateral channels. 
85. The Chairman  thanked China for all the information it had provided, as well as other 
Members for their contributions.  Turning to the Council's reporting obligation to the 
General Council, he suggested that the Council follow the same procedure as in the past years, namely 
that the Chairman, acting on his own responsibility, would again prepare a factual report.  The content 
of the cover page to the report would be similar to that of the report submitted by the Council in 2005 
and the part of the minutes reflecting the discussions  held under this agenda item would be attached. 
86. The Council took note  of the statements made and agreed  to proceed as suggested by the 
Chair. IP/C/M/52 
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  D. R
EVIEW OF THE PROVISIONS OF ARTICLE 27.3(B) 
E. RELATIONSHIP BETWEEN THE TRIPS  AGREEMENT AND THE CONVENTION ON BIOLOGICAL 
DIVERSITY  
F. PROTECTION OF TRADITIONAL KNOWLEDGE AND FOLKLORE  
87. The Chairman  recalled that, at its meeting in March 2006, the Council had agreed to maintain 
its present method of work on these matters at this stage and to keep this method under review in 
order to assess whether any change might prove appr opriate in the light of developments.  He said 
that, at its meeting in June 2006, the Council had received three new communications:  from Japan on 
the patent system and genetic resources (IP/C/W/472);  from Norway on amending the TRIPS Agreement to introduce an obligation to discl ose the origin of genetic resources and traditional 
knowledge in patent applicati ons (IP/C/W/473, WT/GC/W/566 and TN/C/W/42);  and from Brazil, 
China, Colombia, Cuba, India, Pakistan, Peru, Thailand and Tanzania on a disclosure proposal 
(IP/C/W/474, WT/GC/W/564/Rev.2 and TN/C/W/41/Rev. 2).  Since that meeting, South Africa had 
requested to be added to the list of co-sponsors of this document and an addendum had been issued to 
this effect.  At that meeting, the delegation of  Brazil, on behalf of the co-sponsors of the latter 
document, had provided responses to certain questions  raised by other delegations on the disclosure 
proposal.  Based on a written version since provided by Brazil, these responses ha d been circulated in 
document IP/C/W/475.  He informed Members that the Council had just received a new communication from Peru that provided comments in relation to an earlier communication from the 
United States in document IP/C/W/469 (advance copy of IP/C/W/484). 
88. Introducing document IP/C/W/484, the representative of Peru
 said that the document was 
intended to answer the questions raised by the United States regarding Peru's earlier submission in 
document IP/C/W/458.  The United States questioned how the mere fact that a patent application or a 
patent referred to genetic resources or involved an invention that might have some relation to these 
resources could lead to a conclusion that the gene tic resource or the knowledge at issue had been 
obtained illegally, irregularly or questionably.  He said that document IP/C/W/458 presented an 
analysis of potential cases of biopiracy.  There was no implication that all the cases contained in that 
document were, at this stage, already instances of bi opiracy or that all patent applications or granted 
patents involving genetic resources or traditional know ledge had been obtained illegally or irregularly.  
Peru and other Members had provided the Council w ith a number of cases which raised the concerns 
of developing countries regarding the ef fectiveness of patent systems.    
89. He said that, since the CBD had entered into fo rce, it had been recognized that, in accordance 
with the UN Charter and international law, countries had sovereign rights over their natural resources 
and had the power to regulate access to their genetic  resources.  This legal obligation was enforceable 
erga omnes  and the legal right was the resource itself.  The requirement to disclose the source and/or 
the origin of genetic resources and traditional kn owledge would make it possible to identify those 
cases in which genetic resources had b een used outside their jurisdiction and to verify the legality of 
access to such resources.  As there was no such discl osure obligation at the international level so far, 
each country had to meet its obligation under th e CBD by its own means, which entailed huge 
expenditure, including for the setting up of competen t institutions such as the National Anti-Biopiracy 
Commission in Peru.  The disclosure requirement would also make it possible for the country of 
origin to review the compliance with patentability criteria, especially novelty and inventive step, and 
to make sure that the invention was not covered by  prior art, including genetic resources or traditional 
knowledge, which might be unknown to patent examiners.   
90. He said that Peru shared the view of the Un ited States regarding the usefulness of databases 
and public information systems and had recognized the possibility of using such systems in the Memorandum of Understanding ne gotiated under the Free Trade Agreement between the two  IP/C/M/52 
 Page 15 
 
 
  countries.  However, such systems would be of no value if the provenance or origin of genetic 
resources was not identified.  He said that the disclosure requirement would make it possible for Members to check compliance with the CBD's prin ciple of prior informed consent and fair and 
equitable benefit sharing in national laws.  He said th at, contrary to the US statement, the majority of 
patent applications or patents did not disclose the or igin or source of genetic resources.  Therefore, 
there was a need to have a legally binding universal  rule on the disclosure requirement in the patent 
system.  The disclosure requirement would make it possible to eliminate the doubt on the legal provenance of genetic resources and to determine whether genetic resources were obtained through 
legal commercial channels.  He also said that Peru  had difficulty in marketing and commercializing its 
organic and natural products, inter alia  maca, in the European Communities because of the EC 
Regulation on Novel Foods (EC Regulation 258/97), wh ich blocked the entry of a group of biological 
resources regarded as novel foods.   
91. He said that the above-mentioned initiatives were  supplemented by Peru's national regulations 
relating to the promotion and pr otection of genetic resources and traditional knowledge, which were 
aimed at establishing a balance between the sust ainable use of such resources and the proper 
implementation of the patent system.  They were also supplemented by the implementation of a new 
database system for the registration of traditional kn owledge of indigenous peoples for the purpose of 
determining whether the traditional knowledge originat ed in Peru.  He gave an on-line demonstration 
using overhead facilities of the website for the re gistration of traditional knowledge of indigenous 
peoples hosted by Peru's National Institute for the Defence of Competition and Protection of 
Intellectual Property, which could be found at http ://www.indecopi.gob.pe.  Despite all these efforts, 
he said that biopiracy still existed in Peru.  Theref ore, there was a need for an international binding 
requirement to disclose the country of origin and/or source of genetic resources in the patent system.   
92. The representative of Ecuador
 supported Peru's submission IP/C/W/484 and asked to be 
added to the list of co-sponsors of document IP/C/W/474.    
93. The representative of Brazil  supported Peru's submission IP/C/W/484 and said that, although 
the Doha Round had been suspended, the issue of  the relationship between the Agreement and the 
CBD was still of the utmost importance and shoul d be given priority in the TRIPS Council in 
accordance with the mandate given by Ministers.  He said that, in addition to the mandate contained in 
paragraph 12 of the Doha Ministerial Declara tion, the Council had another mandate stemming from 
paragraph 19, which instructed the Council to cont inue its work regarding the relationship between 
the TRIPS Agreement and the CBD and the protecti on of traditional knowledge and folklore, which 
should be guided by the objectives and principles se t out in Articles 7 and 8 of the Agreement and 
take fully into account the development dimension.  He recalled the content of Article 7 and Article 8 
of the Agreement.  He said that Members should move forward with the de bate on the amendment of 
the Agreement for a disclosure requirement.  Th e proposal for the amendment of the Agreement 
sought to enhance the mutual supportiveness of th e Agreement and the CBD.  The amendment would 
be the most practical and efficient means of endowing the patent system with an instrument to deal 
with the issues of misappropriation and biopiracy.  It would also facilitate tracking illegitimate use of 
genetic resources or traditional know ledge in patented inventions.  The patent system needed to 
address the issue of legitimacy and should not undermine the pursuit of the objectives of the CBD by 
granting patents to the invention that had b een made through illegitimate access to traditional 
knowledge and genetic resources. 
94. He recalled that his delegation, on behalf of  the co-sponsors of document IP/C/W/474, had 
provided responses to certain questions raised by ot her Members on the disclosure proposal at the last 
TRIPS Council meeting, which had been circul ated as document IP/C/W/475.  This document 
responded to some questions raised by the United States in its submission IP/C/W/469.  In order to have a concrete and useful debate  on this issue, he said that the Council should focus its discussion on 
the amendment proposal.  He noted that many of the US concerns and questions had been given an IP/C/M/52 
Page 16  
 
  adequate response or were self-evident.  In some cases they did not specifically address the 
amendment proposal as such but were more theoreti cal in nature.  Therefore, he would encourage 
delegations to raise more specific questions on th e amendment proposal to which he would like to 
provide further information after coor dinating with the other co-sponsors.  
95. The representative of India
 said that Peru's national experience illustrated the concern of the 
co-sponsors of the disclosure proposal that the problem of biopiracy was still present in the country 
which had had national legislation on access and bene fit sharing and database systems on traditional 
knowledge.  He said that the mandatory disclosure requirement would facilitate tracking the illegal 
use of or the illegal access to traditional knowledge and biological resources.  He supported the 
Brazilian statement regarding the importance of con tinuing the technical work on the issue of the 
relationship between the TRIPS Agreement and the CBD , and noted that the Director-General of the 
WTO had spoken about a "window of opport unity" between mid November 2006 and 
mid March 2007, so that Members would not lose time  once negotiations were resumed.  He further 
said that as the proposal for the amendment of the Agreement had been also circulated as a 
TRIPS Council document, there was a clear mandate  to discuss it.  He said that Members should 
address not only the issue of erroneously granted patents but also the mutual supportiveness between 
the TRIPS Agreement and the CBD.   
96. The representative of Venezuela  said that the issue of the relationship between the 
TRIPS Agreement and the CBD was important for de veloping countries, particularly those rich in 
biodiversity.  He said that it was urgent for Memb ers to set up norms in this  regard.  He supported the 
statements of the delegations of Brazil and I ndia regarding the importance of work in the 
TRIPS Council.   
97. The representative of Malaysia  said that it was important to implement the TRIPS Agreement 
and the CBD in a mutually supportive manner, a nd that one possible way might be to amend the 
Agreement.  His delegation was interested in furt her understanding the proposal for the amendment of 
the Agreement.  He raised the following questions  regarding the draft amendment:  how would the 
disclosure requirement help to implement the TRIPS Agreement and the CBD in a mutually 
supportive manner?  Did the terms "biological resources", "country providing the resource" and 
"country of origin" referred to in paragraph 2 of the draft amendment have the same meaning as they 
did in the CBD?  How would the requirement for th e publication of the disclosed information and the 
requirement for the effective enforcement procedur es mentioned in paragraphs 4 and 5 of the draft 
amendment work in practice?  Did the requirement  for administrative and/or judicial procedures go 
beyond the requirement for the effective enforcement procedures?  He said that his delegation would 
discuss these technical issues with the proponents of  the disclosure requirement through bilateral 
consultations.   
98. The representative of China  said that, as a co-sponsor of document IP/C/W/474, his 
delegation attached great importance to the issue of the relationship between the TRIPS Agreement 
and the CBD.  He said that document IP/C/W/474,  which had increasing support from developing 
country Members, was fully compatible with th e Doha mandate and should be developed as an 
essential outcome of the Doha Development Round.  He said that many developing countries 
possessed plenty of genetic resources and related tr aditional knowledge, but due to some constraints 
on their technical capacities, most of them were  unable to make full use of these resources and 
knowledge for patented innovation.  The CBD had a dopted the principles of national sovereignty, 
prior informed consent and benefit sharing, whic h were far from being sufficient to guarantee the 
interest of developing countries.  Therefore, Ch ina, together with many other developing countries, 
believed that the work in the WTO should be inte nsified, aiming at including the CBD principles in 
the TRIPS Agreement and ensuring that the source of genetic resources and the traditional knowledge 
obtained from developing countries be di sclosed in patent applications.   IP/C/M/52 
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  99. He said that the draft amendment of the TRIPS Agreement contained in document 
WT/GC/W/564/Rev.2 faithfully reflected the Doha mandate and served as a sound basis for moving 
to the next stage of text-based negotiations.  The delegation of Brazil had already addressed the 
questions raised on the draft amendment.  Among th e outstanding implementati on issues, the issue of 
the relationship between the CBD and the TRIPS Agreement had gathered the clearest and the 
broadest support of the developing countries as a whole and had matured both politically and 
technically.  Therefore, the negotiation on this issu e should be intensified upon the resumption of the 
Doha Development Round, and the outc ome should be an integral part of the final single undertaking.   
100. The representative of Norway  said that his delegation was encouraged by the positive 
responses to its proposal contained in document IP /C/W/473 and would remain open to answering any 
questions raised by other Members.  He said that there was a general consensus among WTO 
Members that the TRIPS Agreement and the CBD c ould and should be implemented in a mutually 
supportive manner.  His delegation stood ready to engage in discussions on this subject, while 
realising that the prevailing circumstances might make it difficult for Members to engage more actively in discussions.   
101. The representative of the United States
 appreciated the clarification made by Peru that the 
reference to the camu-camu case was intended as a hypothetical illustration of a potential case of 
biopiracy.  This had reinforced his conviction that it was important for Members to remain as focused 
as possible on truly fact-based instan ces so that they could, through the exploration of specific facts, 
consider the best way forward to achieve what seem ed to be a fair degree of shared objectives.  
Responding to Brazil's comment on the various att achments to different mandates regarding the 
agenda items, he said that his delegation would rather  not, and saw no particular need to, engage in a 
debate on these various mandates;  nor did it r eally see it as adding significantly to the current 
discussions, which in general were proceeding in a u seful technical manner.  He reiterated that his 
delegation would continue operating in that sense. 
102. He said that, as one of several Members that saw no conflict between the TRIPS Agreement 
and the CBD, the United States considered that these agreements could and should be implemented in 
a mutually supportive manner and that no amendm ent to the TRIPS Agreement was needed or 
warranted.  Over the course of recent meetings of the TRIPS Council, numerous written submissions 
had been offered for discussion.  Members had ge nerally confirmed a wide divergence of views on 
how to address these issues.  In light of this, he said that it was premature to engage in text-based 
discussions.  Instead, Members' work should, consiste nt with their mandate, continue with fact-based 
discussions, which could analyse actual examples that illustrate the perceived concerns.  This work 
should include, in particular, examination of existing access and benefit-sharing regimes, as this 
appeared to be directly related to perceptions of what constituted misappropriation.  Members' work 
would facilitate progress in this ar ea and continue to clar ify points of disagreement while helping to 
reduce differences among Members. 
103. He said that it remained important to focu s on intended shared objectives, which included 
providing for appropriate access and equitable sharing of benefits and the minimization of mistakenly 
granted patents.  In its proposal, the United St ates sought to demonstrate that these objectives were 
achievable within the framework of nationally based laws and systems and that new patent disclosure 
requirements were not an appropriate  or indeed effective solution to meet the concerns raised by some 
Members.  In order to achieve the objectives of prio r informed consent and equitable benefit sharing, 
national laws outside the patent system that dire ctly and effectively regulated such conduct were 
critical.  He said that there seemed to be a unive rsal recognition in the TRIPS Council that at least a 
national access and benefit-sharing regime was neces sary for the proper running of the benefit-sharing 
aspects of any such system.  Indeed, the United States had long observed that concerns about misappropriation arose more broadly than in the co ntext of products under patent protection.  The 
more appropriate solution for any kind of misapprop riation would be to strengthen national regimes IP/C/M/52 
Page 18  
 
  outside the patent system in order to address all instances of commercialization or misappropriated 
resources and/or traditional knowledge that needed  to be addressed, regardless of whether these 
instances involved patenting or not.  His delegati on was convinced that add itional consideration by 
the TRIPS Council of fact-based examples and nati onal experience of access and benefit-sharing 
systems could lead to useful conclusions about th e extent of alleged misappropriation and about how 
existing systems could be implemented most successf ully.  A resolution of the issues being discussed 
should more fully and directly address the objec tive sought, and should avoid the negative effects 
inherent in the proposed patent disclosure requireme nts.  The most recent fact-based discussions had 
raised a number of issues regarding genetic res ources, their trade as commodities, perceptions of 
illegality of access, the relationship of these goods to national access and benefit-sharing regimes in 
place, as well as the relationship of such goods to star ting materials that might be used for research or 
innovative purposes, among other major questions.  An alysis of these issues could bear greatly on 
perceptions of misappropriation and perceived solutions to the concerns raised, thereby allowing 
progress on these issues. 
104. He said that his delegation supported further cons ideration of Japan's proposal of databases, 
including its identification of issues, such as u se of languages, assessment and identification of 
compilation of the databases, and the notion of a "o ne-stop shop" characteristic for the database.  He 
said that the proposal was important in analysing dir ect, pragmatic solutions for the concerns that had 
been raised.  This was also a nother example where the ongoing work  in intellectual property offices 
could continue to inform Members' discussion in th e TRIPS Council.  In conclusion, he said that his 
delegation looked forward to remaining actively a nd constructively engaged in discussions at the 
TRIPS Council. 
105. The representative of Sri Lanka
 said that his delegation attached great importance to this 
agenda item.  The presentation made by Peru indi cated that the more research Members undertook in 
this area, the more empirical evidence they found regarding the illegal use of traditional knowledge 
and genetic resources.  Such illegal use should be ad dressed within the patent system.  The disclosure 
requirement would be a useful tool not only for monitoring and tracking the use of biological 
resources but also for preventing the misappropriation of biological resources and traditional knowledge.  National regimes would not be sufficient to address a problem which had an 
international dimension.  Therefore, his dele gation supported the proposal for amendment of the 
TRIPS Agreement, which had been submitted to both the General Council and the TRIPS Council by 
a group of developing countries.    
106. The representative of Thailand
 said that, although national contract-based access and benefit-
sharing systems were important, they would not ensure effective and mandatory international 
enforcement because of their voluntary nature and unequal bargaining power of the parties involved.  
This was why although some developing countri es, including Thailand, had implemented national 
access and benefit-sharing systems, bio-piracy s till continued.  Thus, national access and benefit-
sharing systems would be an important and necessary  complement to, but not a substitute for, the 
proposed disclosure requirement.  The proposal of am endment of the TRIPS Agreement to include the 
disclosure requirement would adequately and effec tively respond to existing limitations or loopholes 
in the international system.  Accordingly, he supported moving to text-b ased negotiations on this 
issue.   
107. The representative of Japan  said that the discussion of the relationship between the 
TRIPS Agreement and the CBD involved two issues:   avoiding erroneously granted patents and 
securing compliance with the CBD provisions concerning prior informed consent and benefit sharing.  
He said that the first issue could be addressed thr ough improved database system s of genetic resources 
and traditional knowledge, information provision sy stems and invalidation trials as indicated in 
Section III.C of document IP/C/W/472.  He said that the discussion of biopiracy cases had shown that 
some factors, such as languages or lack of other f acilities, constrained patent examiners' capacities to  IP/C/M/52 
 Page 19 
 
 
  access prior art.  Therefore, his delegation had ma de a proposal of one-stop database systems, which 
would allow patent examiners to access prior art easily  and to effectively prevent erroneously granted 
patents.  Japan had also put forward this propo sal in the WIPO Intergovernmental Committee on 
Intellectual Property, Genetic Resources, Traditiona l Knowledge and Folklore (IGC) for discussion.  
Responding to some Members' concern that the da tabase system might make it easier for the third 
party to access genetic resources and associated tr aditional knowledge and therefore to facilitate 
misappropriation, he said that access to such databas es could be restricted to patent examiners.  He 
further said that tracking patent applications was aimed at securing compliance with the CBD rather than preventing erroneously granted patents.  Patent  applications could be tracked by contractually 
requiring the user of genetic resource to repor t information such as subsequent research and 
development or by retrieving the name of genetic r esources or the name of patent applications through 
existing patent databases, such as WIPO's internat ional patent application search system and each 
country's patent application databases.  He noted  the concern of some Members that knowledge of 
genetic resources and traditional knowledge was disper sed and that some of the traditional knowledge 
existed in oral form, and therefore the establishmen t or improvement of such database would be costly 
and time consuming.  He encouraged Members to take full advantage of the discussion in the WIPO 
IGC in order to establish and improve such database sy stems.  He also said that it would be difficult to 
effectively prevent erroneously granted patents wi thout improving patent examiners' access to the 
information on genetic resources and associated traditional knowledge.   
108. Regarding the disclosure proposal, he said that  although the problem of erroneously granted 
patents was within the patent system, information on the providing country or the country of origin of 
genetic resources was not directly relevant to novelt y and inventive step.  Therefore the provision of 
such information to patent examiners would not he lp to prevent erroneously granted patents.  He 
indicated that as some fundamental concepts in th e disclosure proposal, such as "genetic resources", 
"biological resources" and "derivative of genetic resources", were still not clear to Members, the 
introduction of such requirements in the patent system would place an unreasonable burden on the 
user of the patent system.   
109. Regarding the issue of securing the compliance with the CBD provisions of prior informed 
consent and benefit sharing, he said that this i ssue should be addressed in a broader perspective and 
should not be associated with the patent system.  He said that the use of genetic resources should not 
be limited to research and development, but should in clude direct consumption, sale, and cultivation.  
He indicated that not all the research would result in  patent applications being filed.  Some results of 
the research could be kept as trade secrets or never be commercially exploited even if patented.     
110. In conclusion, he said that the introduction of  the disclosure proposal would not effectively 
and sufficiently secure the compliance with the CB D.  As there had been insufficient fact-based 
discussions, it was necessary for Members to furthe r analyse their national experiences and identify 
problems in their national regimes. 
111. The representative of the European Communities
 clarified some terminologies used in the EC 
Directive on the legal protection of biotechnological  inventions (Directive 98/44/EC) referred to in 
document IP/C/W/475.  He said that Article 2(1)(a) of the EC Directive used and defined the term 
"biological material" instead of "biological resource ".  Under the EC Directive, the invention should 
concern a product consisting of or  containing biological material or a process by means of which 
biological material was produced, processed or used .  The term "biological resource" used in the 
developing countries' proposal of the amendment of the TRIPS Agreement was broader than the term 
"biological material" as biological materials with different technical characteristics could be obtained from one biological resource.  He said that the EC Directive was not relevant to the debate on the 
relationship between the TRIPS Agreement and th e CBD as the Directive applied to a different 
context.  WTO Members should adhere to the mandate given and confir med by the Doha and 
Hong Kong Ministerial Conferences. IP/C/M/52 
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  112. Regarding Japan's proposal of database systems contained in document IP/C/W/472, he noted 
that the discussion on the paper had taken place and would continue in WIPO , which should be taken 
into account appropriately by the TRIPS Council in  order to avoid duplication of efforts.  As 
suggested by Japan, such database systems could be  used by patent examiners in all countries on a 
one-stop-research basis.  It would help patent ex aminers determine prior art and therefore reduce the 
risk of erroneously granted patents.   
113. He said that the CBD and the patent system, in particular the TRIPS Agreement, did not 
conflict with each other and were mutually suppo rtive.  In many cases, the flexibility of the 
TRIPS Agreement and the availability of other inte rnational instruments, such as the CBD, allowed 
Members to address the biodiversity issue in a satisfa ctory manner.  Nevertheless, when necessary, his 
delegation was prepared to look into other appropriate  solutions to ensure a more effective interplay 
between the TRIPS Agreement and the CBD.  He then recalled several key points of the EC 
disclosure proposal contained in document WIPO/GRT KF/IC/8/11:  a mandatory requirement should 
be introduced to disclose the country of origin or source of genetic resources in patent applications;  
the disclosure requirement should apply to all interna tional, regional and natio nal patent applications 
at the earliest stage possible;  the patent applicant should declare the country of origin or, if unknown, 
the source of the specific genetic resource to whic h the inventor had had physical access and which 
was still known to him;  the invention had to be dir ectly based on the specific genetic resource;  there 
could be a requirement for the patent applicant to  declare the specific source of traditional knowledge 
which was associated with genetic resources if he w as aware that the invention was directly based on 
such traditional knowledge;  in this context, a furthe r in-depth discussion of the concept of "traditional 
knowledge" was necessary;  if the patent appli cant failed or refused to declare the required 
information despite being given the opportunity to  remedy that omission, the patent application 
should not be further processed;  if the information provided was incorrect or incomplete, effective, 
proportionate and dissuasive sanctions should be envisaged outside the field of patent law;  a simple 
notification procedure to be followed by patent o ffices every time they received declarations should 
be introduced;  and it would be adequate to identif y in particular the Clearing House Mechanism of 
the CBD as the central body to which the patent office should send available information.  He said 
that the EC disclosure proposal was intended to formulate a way forward which would ensure an 
effective, balanced and realistic disclosure system at the global level. 
114. The representative of Korea
 said that his delegation was still of the view that there was little 
possibility of a conflict between the TRIPS Agreem ent and the CBD, and that the two instruments 
could be implemented in a mutually supportive manner.  While recognizing the importance of 
avoiding biopiracy and misappropriation of genetic resources, he said that the disclosure requirement 
was not an appropriate solution.  He encouraged Members to continue fact-based discussions on this 
issue in order to enhance their understanding of othe rs' concerns and to find a way to address those 
concerns.  
115. The representative of Switzerland  said that, considering the suspension of the Doha Round, 
his delegation would approach the discussion on th ese three agenda items in a purely technical 
manner.  He said that Switzerland had been activel y participating in the discussion on the disclosure 
requirement in the TRIPS Council by submitting a number of written communications.  These communications described Switzerland's disclosure proposals submitted to the WIPO Working Group on Reform of the Patent Co-operation Treaty (P CT), which would explicitly enable national 
legislators to require patent applicants to disclose source of genetic resources and traditional 
knowledge in patent applications.  He said that th e TRIPS Agreement was adequately flexible with 
regard to the disclosure requirement and therefore did not need to be amended.  For legal and practical 
reasons, Switzerland opposed the requirement which oblig ed patent applicants to provide the evidence 
of prior informed consent and benefit sharing in th eir patent applications.  Solutions to these issues 
needed to be found outside the patent system, such  as in the CBD.  Accordingly, his delegation could  IP/C/M/52 
 Page 21 
 
 
  not support Norway's proposal of the introduction of a disclosure requirement provision immediately 
following Article 29 of the TRIPS Agreement. 
116. Nevertheless, he agreed with several points made in Norway's proposal.  First, the sanction of 
invalidating a patent should not be applied to any new disclosure requirement as the invalidation 
would create unnecessary uncertainty in the patent sy stem and would be detrimental to fair and 
equitable benefit sharing.  Second, any invention that did not satisfy the substantive patentability 
criteria should be revoked.  Third, a simple notific ation system should be established.  He recalled 
that, in 2003, his delegation had proposed to est ablish a list of government agencies competent to 
receive information about patent applications containing the declar ation of source.  When patent 
offices received such patent applications, they c ould inform the competent government agency that 
the respective State was declared as source.  This information could be provided in a standardized 
letter sent to the competent government agency.  For easy reference, this list could be made accessible 
on the Internet.  The list and the provided inform ation would prevent States from having to monitor 
all patent applications submitte d worldwide to find out whether they were declared as source. 
117. He posed several questions to Norway regardi ng its disclosure proposal.  First, given that 
Norway proposed to apply the disclosure requirement to all patent applications, i.e. international, 
regional and national patent applica tions, he was interested in additional information on how Norway 
foresaw that the proposed amendment of the TRIPS Agreement could also apply to international and 
regional patent applications.  Second, noting that Norway proposed to require the disclosure of the 
supplier country of genetic resources, he asked how the concept of "the supplier country" as used in 
Norway's proposal was different from "the country pr oviding genetic resources" used by Article 15 of 
the CBD.  Third, noting that Norway proposed to require the disclosure of the supplier country and 
the country of origin of traditional knowledge, he  asked how the "supplier country" and the "country 
of origin" of traditional knowledge w ould be determined, concepts that were not foreseen in the CBD.  
What would be the role of the holders of tr aditional knowledge, that is  indigenous and local 
communities?  If a patent applicant received gene tic resources from gene banks and the supplier 
country was unknown to him, what should be discl osed?  Would it not be preferable to use the 
concept "source"?  Fourth, noting that Norway proposed that "[i]f the applicant is unable or refuses to give information despite having had an opportunity to  do so, the application should not be allowed to 
proceed", he asked whether this sanction would al so apply if the patent applicant was unable to 
provide the required information for reasons beyond his control.  Last, noting that footnote 1 of 
document IP/C/W/473 stated that "[t] he specific pr ovision of the disclosure obligation should be fully 
compatible with the International Treaty on Plant Genetic Resources for Food and Agriculture and the 
Multilateral System established under it", he asked how this compatibility could be achieved if the 
patent applicant would be required to disclose the "supplier country" and the "country of origin", two 
concepts unknown to the ITPGRFA. 
118. The representative of Australia
 said that the proposal of amendment of the TRIPS Agreement 
to implement the disclosure requirement was prematur e.  She recalled that, at the Council's meeting in 
June 2006, Members had had fact-based di scussions on the relationship between the 
TRIPS Agreement and the CBD, on alleged cases of biopira cy, and on the role of the patent system in 
this context.  However, despite the amount of information presented and the useful exchange, it was 
clear that Members came to different conclusions bot h in relation to the existence and extent of the 
problem or conflict and the role, if any, of the pate nt system and in particular the TRIPS Agreement, 
in addressing the problem.  She noted that Peru's latest submission acknowledged that the camu-camu 
case was not necessarily a proven case of biopiracy but a potential case, which at least resolved one 
factual disagreement, although others remained, such  as the turmeric case.  As Members had reached 
different conclusions, the disclosure proposals did not attract consensus.  
119. She said that Brazil's submission IP/C/W/475 was useful in revealing the complexity of the 
issue and the fundamental differences in approach even between those who were willing to consider IP/C/M/52 
Page 22  
 
  mandatory disclosure requirements.  If Members st arted with the position that the TRIPS Agreement 
must be changed and papered over the very sign ificant disagreements by moving to text-based 
discussions, they would not be able to get very far in  this regard.  Therefore, her delegation disagreed 
with the proposal of Brazil and others to start te xt-based discussions.  She said that there was a need 
for a more thorough consideration of Members' access and benefit-sharing regimes.  In light of this, 
her delegation had provided the Council with inform ation about Australia's own regime set up under 
the Environment Protection and Biodiversity Conser vation Act 1999, which had entered into force in 
December 2005.   
120. Finally, she referred to the letter addressed to Members of the TRIPS Council from the 
representatives of biotechnology industries in th e United States, Europe and Canada, which, inter alia , 
acknowledged the concerns over the effectiveness of contract-based systems and the value of looking 
more closely at these systems.  She said that the letter might guide Members in their future work. 
121. The representative of New Zealand
 said that it was necessary for the Council to focus on a 
close examination of the problem at hand, namely whether there was a need to amend the current TRIPS disclosure requirements for the patenting of genetic resources, traditional knowledge and 
folklore.  The answer to this fundamental question lay in focusing on national systems, in particular 
access and benefit-sharing regimes.  Before Members contemplated amending the TRIPS Agreement, there were two questions to be answered.  Firstly,  at the national level, was there a problem with 
erroneously granted patents or compliance with access  and benefit-sharing regimes?  Secondly, if so, 
what would the appropriate solution be?  Was an amendment to the TRIPS Agreement necessary, or 
would better implementation at nati onal level be more effective?  He recalled that, at the Council's 
meeting in June 2006, his delega tion had outlined its national system governing access to genetic 
resources and informed the Council that New Zeala nd was still in the process of developing a bio-
prospecting regime.  Given the domestic context, it was too soon for his delegation to conclude 
whether or not the patent disclosure requirement was necessary.  Since there was still uncertainty 
about whether the patent disclosure requirement was th e best solution to the problem relating to use of 
genetic resources, traditional knowledge and folk lore, he encouraged Members to share their 
experience on how their national access and benefit-sharing regimes worked.  Once Members had a collective sense of the problem, they could begin to develop appropriate solutions. 
122. The representative of the Dominican Republic
 said that her delegation attached great 
importance to this agenda item.  As a co-sponsor  of several documents submitted by a group of 
developing countries, her delegation was in fa vour of the proposal of amendment to the 
TRIPS Agreement.  She said that the draft amendment would resolve the problems of 
misappropriation and biopiracy which many developi ng countries faced to some degree, which could 
not be solved by their national regimes.  Therefore, she supported moving to text-based discussions in order to comply with the Doha mandate and to ma ke the TRIPS Agreement compatible with the CBD. 
123. The representative of Kenya
 said that although some Members had established national laws 
on access and benefit sharing, they were faced with  the problem of enforcement.  While the CBD 
required Members to facilitate the acquisition of ge netic materials on mutually agreed terms through 
prior informed consent, the patent system had no pr ovision for prior informed consent.  Based on the 
cases of biopiracy and misappropriation as presented by Peru and other Members and the problem of erroneously granted patents, he said that there was a case for improving the existing patent system.  In order to make the TRIPS Agreement and the CBD  co-exist in a mutually supportive manner, 
Members needed to discuss this issue with a view  to introducing the disclosure requirement as a 
substantive formality requirement in patent applications.  Finally, he  said that his delegation remained 
open and ready to engage in further discussions on this issue.   
124. The representative of Canada
 said that her delegation shared the concerns of developed and 
developing countries about misappropriation of ge netic resources and traditional knowledge, of   IP/C/M/52 
 Page 23 
 
 
  finding appropriate ways to strengthen the method  of preventing erroneously granted patents and 
achieving appropriate and equitable access and benefit-sharing agreements.  She said that Canada had 
been, and would remain, engaged in the discussion in the TRIPS Council and in other international 
forums, which had established expertise and capaci ty.  She stressed that any work done in the 
TRIPS Council should build upon rather than duplicate the work in other forums.   
125. She said that a fact-based discussion was a meani ngful way to advance the technical work as 
it was a necessary step in allowing for a full scoping of the issue before proceeding further.  The 
nature and operation of Members' national access a nd benefit-sharing regimes - with particular focus 
on those who either had best practices to share or who had experienced problem s - were of particular 
interest to Members as were database systems me ant to improve prior art searches such as those 
presented by Japan.  She reiterated that her dele gation had not yet seen evidence on a need for 
amending the TRIPS Agreement and continued to be  of the mind that the Agreement and the CBD 
could and should be implemented in a mutually supportive manner.  The proposal regarding a new 
disclosure requirement was not an appropriate solu tion to the concerns and objectives that had been 
raised thus far and the lack of consensus on many elements of this discussion made it clear that it 
would be premature to move to text-based discussions at this time.   
126. Responding to Switzerland's question about the te rm "the supplier country", the representative 
of Norway  clarified that "the supplier country" corres ponded to "the country of source", which was 
the country which, according to Article 15.5 of th e CBD, gave its prior informed consent before 
granting access to genetic resources.  Under Article 15.3 of the CBD, the country providing the resource might not necessarily be the country of origin, that is, the country possessing the genetic 
resource in situ  conditions.  Where the country supplying th e genetic resource was different from the 
country of origin, both countries should be disclosed under Norway's proposal. 
127. The representative of Brazil
 said that while a number of developing countries supported the 
proposal of amendment of the TRIPS Agreemen t in order to make it supportive of the CBD 
objectives, many Members, especially the develope d country Members, were not open to discussing 
the proposal.  While referring to the shared objec tives of the CBD, these developed countries insisted 
on describing the debate as a reflection of a wide di vergence of views.  He said that Members should 
not describe the debate this way if the objectives of th e CBD were truly shared by them, and if they all 
agreed that misappropriation and biopiracy should be dealt with in a way that was consistent with the 
CBD objectives.  He said that, while his delegation was not against fact-based discussions on national 
laws, it believed that it was not within the purview of the TRIPS Council.  Members should 
concentrate their discussion on the TRIPS Agreement as such and on the issue that was within their 
mandate.  Members' mandate was to discuss the relationship between the TRIPS Agreement and the CBD, which should not be narrowed down to fact-b ased discussions or prejudge the outcome of the 
discussion.  He further said that the disclosure requirement would reduce the opportunity for illegality 
of access to genetic resources and traditional knowledge, which we re now condoned or rewarded by 
the granting of patents in some cases.  The patent system needed to respond to the moral issue of the 
illegality of access, which raised more concerns in developing countries than in developed countries 
as developing countries were usually the victims of misappropriation and biopiracy.  He said that the 
international dimension of this issue required an international solution in the TRIPS Agreement, and 
that national measures did not fall within the purview of the Council, which would not be able to deal 
with this issue adequately by itself.  
128. He asked Switzerland and the European Commun ities whether they intended to request the 
TRIPS Council to circulate their disclosure proposal s submitted to WIPO as formal documents for 
Members' discussions.  He also asked whether the European Communities had the flexibility to 
discuss the disclosure requirement based on the para meters contained in its WIPO proposal in the 
TRIPS Council.  He said that his delegation woul d be interested in debating proposals by the 
European Communities and Switzerland in the TRIPS Council as the discussion on the amendment of IP/C/M/52 
Page 24  
 
  the TRIPS Agreement should be carried out in th e TRIPS Council.  He noted that while the EC 
Directive used the term "biological material", the European Communities referred  to the term "genetic 
resources" in its disclosure proposal to WIPO.     
129. Regarding Japan's proposal on database systems,  he said that a centralized database system 
was not an adequate solution to misappropriation as patent examiners might simply ignore whether 
there had been an illegal access to genetic r esources and associated traditional knowledge.  
Meanwhile, the database system would place trad itional knowledge at the disposal of patent 
examiners without ensuring local  communities that the internati onal community would provide the 
disclosure requirement to discourage misappropriation and biopiracy.  He said that the proposal to amend the TRIPS Agreement was not necessarily in c ontradiction with the database system and could 
be discussed on its own merit and separately.   
130. The representative of Switzerland
 said that the Swiss proposal to WIPO addressed the 
requirement of disclosure of source at the interna tional level.  In his view, the proposal was more 
feasible and open to consensus than the disclosur e proposal put forward by a group of developing 
countries in the TRIPS Council.  As his delegation' s proposal was relevant to the discussion in the 
TRIPS Council, it had been submitted to th e TRIPS Council as annexes to documents 
IP/C/W/400/Rev.1 in June 2003, IP/C/W/423 in June 2004, and IP/C/W/433 in November 2004.   
131. The representative of the European Communities  clarified that the EC proposal to WIPO had 
not been submitted to the TRIPS Council.  He recalle d that, at the June meeting, some delegations had 
asked for information about the EC member States' implementation of the disclosure requirement.  He 
informed the Council that the provisions on the di sclosure of origin which existed in some EC 
member States were based on Recital 27 of the EC Directive, which was not binding.  None of these 
States had introduced the requirement of disclosure of  evidence of prior inform ed consent or of fair 
and equitable benefit sharing.  The disclosure require ment only related to the origin or source of the 
genetic resource used in the invention.  Among theses States, some, such as Germany and Sweden, 
had introduced it as a voluntary requirement, while  others, such as Denmark and Belgium, had 
introduced it as a mandatory requirement.  He no ted that none of these States provided for the 
invalidation of the patent in case of non-compliance and that all sanctions lay outside the sphere of the 
patent law.  None of the patent offices had kept  a record of the patent applications involving the 
disclosure requirement, but it was estimated that the num ber of such applications was low.  Therefore, 
the disclosure requirement seemed to have little impact either on patent applicants or on patent offices 
in the European Communities.  
132. The representative of Peru  shared the view of Brazil re garding Members' mandate on the 
issue of the relationship between the TRIPS Agreemen t and the CBD.  He said that the analysis of 
potential cases of biopiracy showed the difficulty f aced by Members in examining all the cases of 
biopiracy.  He could not share the conclusions of a group of biotechnology industries in their letter to 
the TRIPS Council regarding the disclosure requirement as it would not result in high cost to the 
industry.  He further said that the database system  was an insufficient solution to the problem of 
biopiracy.  Regarding the discussion of the disclosure requirement in WIPO, he said that WIPO members had no clear mandate to negotiate an intern ational instrument on the issue of protection of 
genetic resources and traditional knowledge.  The WIPO IGC had not made any progress in its 
discussion, and the WIPO Working Group on Reform of the PCT had suspended its discussion on the 
disclosure proposal.  Therefore, it was his view th at the WTO was the only international forum where 
the issue of the disclosure requirement could be discussed.   
133. The representative of Switzerland
 said that the disclosure proposal made by Switzerland had 
been discussed substantively in the WIPO Work ing Group on Reform of the PCT, where members 
had a mandate.  Unfortunately, at the last meeti ng of WIPO Working Group on Reform of the PCT, 
one of the key demandeurs  in the TRIPS Council had tried to undo the mandate.  IP/C/M/52 
 Page 25 
 
 
  134. The Council took note  of the statements made under these three agenda items and agreed  to 
revert to them at its next meeting. 
G. REVIEW UNDER PARAGRAPH  8 OF THE DECISION ON THE IMPLEMENTATION OF PARAGRAPH  6 
OF THE DOHA DECLARATION ON THE TRIPS  AGREEMENT AND PUBLIC HEALTH  
135. The Chairman  recalled that paragraph 8 of the Decisi on on the Implementation of Paragraph 6 
of the Doha Declaration on the TRIPS Agreement a nd Public Health provided that the Council for 
TRIPS should review annually the functioning of the system set out in the Decision with a view to 
ensuring its effective operation and should annuall y report on its operation to the General Council.  
Furthermore, the paragraph provided that this review should be deemed to fulfil the review 
requirements of Article IX:4 of the WTO Agreement. 
136. He said that the Secretariat had prepared a draft cover note to the Council's report modelled 
on that of last year's report, which had been ci rculated as JOB(06)/244.  The draft cover page 
contained factual information on the implementa tion and use of the system established under the 
Decision and on the work on the preparation of an  amendment to the TRIPS Agreement pursuant to 
paragraph 11 of the Decision.  He proposed that the part of the minutes of the meeting reflecting the 
discussions held under this agenda item be attached to the cover note.  This format would follow the 
way that the Council prepared its report last year. 
137. As regards the status of acceptances of the Protocol Amending the TRIPS Agreement that 
was done at Geneva on 6 December 2005, he said th at Switzerland and El Salvador had notified, 
respectively, their acceptance of the Protocol on  13 and 19 September 2006 (documents WT/Let/547 
and 548).  He also recalled that the United Stat es had notified its acceptance on 17 December 2005.  
Therefore, to date, three Members had accepted the Protocol, which would enter into force for these 
Members upon acceptance of the Protocol by two thirds of the Members. 
138. The Chairman recalled that the Protoc ol was open for acceptance by Members 
until 1 December 2007 or such later date as may be decided by the Ministerial Conference.  As this 
date was only a little over a year away, he encourag ed Members to ensure th at necessary measures 
were being taken in capitals to allow the considera tion of the acceptance in a timely fashion.  With a 
view to regularly updating the Council on the state of play in regard to accepta nces, he suggested that 
the Secretariat be requested to prepare a note setting out the status of acceptances, which would be updated for each meeting of the Council. 
139. The representative of El Salvador
 considered that the Protocol represented a triumph in the 
WTO negotiations on public hea lth, which was unprecedented and highl y beneficial for developing 
countries and least-developed countries.  The Decision adopted in December 2005 would establish 
additional flexibilities under the TRIPS Agreement as it related to public health.  Countries with no or 
insufficient domestic manufacturing capacities would have the right to import patented medicines 
produced abroad by making use of compulsory li cences under the paragraph 6 system.  This already 
formed an integral part of her country's intellect ual property legislation.  The system would make it 
possible for a country with manufacturing and export capacities to authorize the use of a compulsory 
licence to permit the production of medicines for expor t to countries in need of such medicines which 
have no or insufficient supply capacity. 
140. The representative of Canada  updated Members on the Canadian Access to Medicine Regime, 
which had come into effect on 14 May 2005.  He r delegation was committed to ensuring that the 
regime was effective, responsive, transparent and accessible to countries that had an interest in using 
it in their efforts to combat HIV/AIDS, tuberculos is, malaria and other epidemics.  In August 2006, 
Canada's Minister of Health had announced an immediate and comprehensive review of the Access to Medicine Regime in consultation with stakeholders .  The review had been built into the legislation IP/C/M/52 
Page 26  
 
  because Canada was one of the first WTO Member s to implement the August 2003 Decision and had 
had to address many key legal and policy issues fo r the first time.  The review would provide an 
opportunity to identify ways in which a regime c ould better meet its human itarian objectives without 
derogating from international trade obligations and to compare the Canadian legislation with that of 
other WTO Members which had now implemented the Decision. 
141. She recalled that, under the Access to Medicine Regime, Canada had started with an initial 
list of drugs recognized by the WHO as being essen tial to the health needs of citizens around the 
world.  The list would minimize the discretion of Canada's Commissioner of Patents in deciding 
whether to issue a compulsory licence and could be  amended to reflect the evolving public health 
needs of developing and least-developed countries.  It had already been amended twice.  The first 
amendment was in response to a request from a non- governmental organization and a Canadian drug 
manufacturer to add a fixed-dose co mbination HIV/AIDS therapy.  It had passed Health Canada's 
regulatory review and was now listed on the WHO's pr equalification list.  Also at the request of a 
local manufacturer and a non-governmental or ganization, the second amendment had added 
Osteltamivir, an antiretroviral drug for the preven tion and treatment of the influenza virus.  The 
system was in place and the fixed-dose combination HI V/AIDS therapy was available.  All that would 
remain was for an eligible importing country to request it.   
142. To provide information on the regime, her government had developed a CD-Rom that 
explained the system, the procedures and the documentation.  The same information was also available at a special website created for th e Access to Medicines Regime (www.camr.gc.ca).  
Canada's experts stood to provide further information.   If potential users did not find the regime to be 
a feasible option, or did not consider it to be the right choice, her dele gation would welcome their 
feedback.  Her delegation would keep Members inform ed of the results of the domestic review, which 
was due to be completed by May 2007.    
143. The representative of Benin, speak ing on behalf of the African Group
, said that the 
implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health 
was of vital importance for the African Group, a nd particularly for the least developed countries 
belonging to that group.  The process under way fo r the amendment of the Agreement would enable 
countries having insufficient or no capacities for the production of medicines to benefit from 
flexibilities in the form of licences to be grante d by WTO Members possessing infrastructure for the 
production of medicines for export to countries la cking such capacities.  African countries would 
work with their trading partners to implement the Decision. 
144. The representative of Switzerland  agreed with the Chairman that Members should be 
encouraged to proceed swiftly to  the acceptance of the Protocol Amending the TRIPS Agreement. 
145. The representative of Kenya  said that his delegation was in the process of depositing its 
instrument of acceptance of the Protocol.  His delegation was seeking assistance from the 
Commonwealth Secretariat to implement the Decision. 
146. The representative of the European Communities  informed the Council that his delegation 
was in the process of accepting the Protocol. 
147. The Council agreed  on the draft cover note to the report and that the record of the discussion 
be attached to it, and that the Secretariat be requ ested to prepare a note on the status of acceptances of 
the Protocol Amending the TRIPS Agreement, wh ich would be updated for each meeting of the 
Council.  IP/C/M/52 
 Page 27 
 
 
  H. NON-VIOLATION AND SITUATION COMPLAINTS  
148. The Chairman  recalled that paragraph 45 of the Hong Kong Ministerial Declaration directed 
the TRIPS Council to continue its examination of th e scope and modalities for complaints of the types 
provided for under subparagraphs  1(b) and 1(c) of Article XXIII of GATT 1994 and make 
recommendations to the next session of the Minister ial Conference.  It was agreed that, in the 
meantime, Members would not initiate such  complaints under the TRIPS Agreement. 
149. He further recalled that, at its meeting in Marc h 2006, the Council had agreed to keep this 
item on the agenda as a regular item so as to allow Members who had new thinking to share it, and 
also enable the Council to consider improved ways of organizing its work on this matter. 
150. The Council agreed  to revert to the matter at its next meeting. 
I. REVIEW OF THE IMPLEMENTATION OF THE AGREEMENT UNDER ARTICLE 71.1   
151. No statements were made  under this agenda item. 
152. The Council agreed  to revert to the matter at its next meeting. 
J. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL 
INDICATIONS UNDER ARTICLE 24.2 
153. The Chairman  recalled that Article 24.2 provides that  the Council should keep under review 
the application of the provisions of the GI Section of  the Agreement.  He info rmed the Council that he 
had held consultations on how the Council should or ganize its future work on this review.  These 
consultations had shown that dele gations' views were still divided,  although there had been some 
indications of common thinking.  Questions had been  raised as regards the purpose of the review.  In 
the light of these consultations, it seemed that Me mbers still needed more time to reflect on the 
matter.  He therefore suggested that he hold furt her consultations on the matter before the Council's 
next meeting. 
154. He urged those delegations that had not yet pr ovided responses to the Checklist of Questions 
(document IP/C/13 and Add.1) to do so.  He also  said that those Members that had already provided 
responses could provide updates to the extent to wh ich there had been any significant changes to the 
way they provided protection to geographical indications. 
155. The Council agreed  to proceed as suggested by the Chair. 
K. FOURTH ANNUAL REVIEW UNDER PARAGRAPH 2 OF THE DECISION ON THE IMPLEMENTATION 
OF ARTICLE 66.2  OF THE TRIPS  AGREEMENT  
156. The Chairman  recalled that, at its meeting in February 2003, the Council had adopted a 
decision on the "Implementation of Article 66.2 of  the TRIPS Agreement".  Paragraph 1 of the 
Decision provided that developed country Members shall submit annually reports on actions taken or 
planned in pursuance of their commitments under Article 66.2.  To this end, they were to provide new 
detailed reports every third year and, in the interv ening years, provide updates to their most recent 
reports.  These reports were to be submitted prior to the last Council meeting scheduled for the year in 
question.  The Council had taken up its first annual review of devel oped country Members' reports on 
their implementation of Article 66.2 at its meeting in November 2003.  At its meeting in June 2006, 
the Council had agreed to request developed coun try Members to submit new detailed reports on 
actions they had taken or pla nned in pursuance of their commitm ents for the present meeting.  IP/C/M/52 
Page 28  
 
  On 29 August, the Secretariat had issued ai rgram WTO/AIR/2881 to remind developed country 
Members of this request. 
157. The Council had received new detailed repor ts from the following developed country 
Members:  Japan;  New Zealand;  Australia;  Switzerland;  Norway;  the European Communities and individual member States (namely Austria, Belgiu m, the Czech Republic, Denmark, Finland, France, 
Germany, the Slovak Republic, Spain, Sweden a nd the United Kingdom);  the United States;  and 
Canada (being circulated in doc ument IP/C/W/480 and addenda). 
158. As regards the purpose and conduct of the revi ew of this information, he recalled that 
paragraph 2 of the Decision explained that the a nnual review meetings should provide Members with 
an opportunity to pose questions in relation to the information submitted and request additional 
information, discuss the effectiveness of the in centives provided in promoting and encouraging 
technology transfer to least-devel oped country Members in order to enable them to create a sound and 
viable technological base, and consider any points re lating to the operation of the reporting procedure 
established by the Decision. 
159. The representative of Bangladesh, speaking on behalf of the LDC Group in the WTO
 said that 
his Group was yet to review the reports and requested  that the item be retained on the agenda of the 
Council's next meeting.  It would be appreciated  if those developed country Members that had 
submitted reports could clarify how the technical assi stance they had provided had led to transfer of 
technology, as required under Article 66.2.  Specific ex amples of this would be immensely valuable to 
LDCs, who had great difficulties in acquiring technolog y.  It might be possible to replicate successful 
examples from one country in another country, if circ umstances were right.  He said that this subject 
was most important for LDCs a nd urged developed country Member s to bring out this practical 
element clearly.   
160. The representative of Brazil  said that his delegation attached great importance to transfer of 
technology and that it intended to comment on th e reports at the next session.  He supported 
Bangladesh with regard to the need to assess to what extent developed country Members were 
transferring technology and to what extent they we re providing technical assistance, stressing the need 
to differentiate between these two concepts.   
161. The representative of China , associating himself with the statement made by Bangladesh, said 
that it was important for devel oped country Members to provide incentives to promote technology 
transfer to LDC Members in order to enable them to create a sound and viable technological base.  He 
called upon developed country Member s to implement more measures to  enable their enterprises to 
engage in effective technology transfer.   
162. The representative of India , supporting the statements made by  earlier speakers, said that the 
reports appeared to be ve ry general in nature and that he failed to see how the listed measures were 
different from those provided as technical assistan ce.  Details should be provided on specific cases 
from the last year in which technology had been transferred to a least-developed country, including 
how the technology had been transferred and what incentives the Member concerned had provided to 
its enterprises.  Training programmes for LDCs on how to implement the TRIPS Agreement did not 
amount to transfer of technology. 
163. The Chairman  urged those developed country Members that had not yet provided reports to 
do so, and said that they might wish to take into  consideration some of the comments made at the 
present meeting.  As requested by Bangladesh, it was his intention to provide delegations with an 
opportunity at the Council's next meeting to make further comments on the information submitted for 
the present meeting that they might not yet have been able to study.  IP/C/M/52 
 Page 29 
 
 
  164. The Council took note  of the statements made. 
L. TECHNICAL COOPERATION AND CAPACITY -BUILDING  
165. The Chairman  recalled that the Council had agreed, at its meeting in June 2006, to hold its 
annual review of technical cooperation at the present meeting.  In preparation for this annual review, 
developed country Members had been requested to u pdate information on their technical and financial 
cooperation activities relevant to the implementati on of the TRIPS Agreement.  Other Members who 
had also made available technical cooperation we re encouraged to share information on these 
activities if they so wished.  On 29 August 2006,  the Secretariat had i ssued airgram WTO/AIR/2880 
reminding Members of this request.  Intergovernment al organization observers to the Council as well 
as the WTO Secretariat had also been invited to provide information.   
166. The Council had received information from th e following developed country Members:  
Switzerland;  Japan;  New Zealand;  Norway;  Au stralia;  the European Communities and individual 
member States and agencies (namely Austria, th e Czech Republic, Denmark, Finland, France, 
Germany, Lithuania, Poland, Portugal, Spain, Sweden, the United Kingdom and the Office for Harmonization in the Internal Market);  the United St ates;  and Canada (being circulated in documents 
IP/C/W/476 and addenda).  Updated inform ation had been obtained from the following 
intergovernmental organizations:  the OECD, UP OV, UNCTAD, WIPO and WHO (being circulated 
in document IP/C/W/478 and addenda).  In additi on, the IMF had informed the Chairman, by means 
of a letter dated 13 September 2006, that it did not carry out any TRIPS-related technical assistance and, hence, did not have any useful information to  provide to the Council.  Updated information on 
the WTO Secretariat's technical cooperation activiti es in the TRIPS area could be found in document 
IP/C/W/477. 
167. The representative of Bangladesh, speaking on behalf of the LDC Group in the WTO
, 
welcomed the Council's Decision of 29 November  2005 (IP/C/40) extending LDCs' transition period 
until 1 July 2013, or until such a date on which they  ceased to be an LDC.  Given that the economic, 
financial and administrative constraints faced by LDCs had not changed to date, the need for 
flexibility to create a viable technological base was even more necessary than previously.   
168. He said that LDCs were committed to the multilateral trading system and the 
TRIPS Agreement.  It was hoped that, during this ex tended transition period, LDCs would be able to 
build up capacity to implement the Agreement.  Built into this process w as technical assistance and 
capacity building that was to be offered to LDCs.  Without such assistance, the transition period could 
not be utilized effectively.  This relationship be tween the extended transition period and the building 
up of implementation capacity was very important.  Given that the expected targeted technical and 
financial assistance had not been delivered in the past, his delegation requested that a clear plan be 
drawn up detailing the nature and type of technical and financial assistance to be provided to LDCs.  
To facilitate targeted technical and financial c ooperation programmes, paragraph 2 of the Decision 
called on LDCs to provide as much information as possible on their individual priority needs for 
technical and financial cooperation, preferably by  1 January 2008.  In some cases, LDCs might 
require technical assistance to identify and prior itize such needs.  Arrangements had to be made 
accordingly in the WTO for LDCs to be ab le to undertake such needs assessments. 
169. The LDCs were still reviewing the inform ation submitted to the Council on technical 
cooperation activities related to the TRIPS Agreemen t.  The implementation of the Agreement had 
development implications.  The provision of technical assistance and capacity building should not be 
conditional on compliance with the Agreement.  Th e Agreement contained both  rights and obligations 
with built-in flexibilities to allow countries, especi ally LDCs, to promote their social policies, 
development goals and interests. IP/C/M/52 
Page 30  
 
  170. The representative of Brazil
 recalled the position of developing country Members in the 
TRIPS Council and also in WIPO according to wh ich technical assistance should not only focus on 
teaching developing countries how to implement ob ligations.  While recognizing that this was an 
important component, he said that technical assistance should not be reduced to it.  This was why his delegation had presented a developmen t agenda at WIPO, which clearly stated the broader nature of 
technical assistance, also encompassing how to ma ke full use of the flexibilities and the provisions 
related to transfer of technology.  The IP system was based on a balance between rights and obligations.  Technical assistance should fully respec t this balance and enable developing countries to 
not only respect the obligations, but also to make use of and to benefit from the rights. 
171. The Chairman
 urged those Members that had not yet provided updated information to do so.  
Given that some of the information had been received only recently, and most of it was still only 
available in its original language, he said that it was his intention to provide Members with an 
opportunity, at the Council's next meeting, to ma ke further comments on the information submitted 
for the present meeting that they might not yet have been able to study. 
172. The Council took note  of the statements made. 
M. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS – COMMUNICATION FROM THE 
EUROPEAN COMMUNITIES  
173. The Chairman  said that this item had been put on the Council's proposed agenda at the request 
of the delegation of the European Communities, dated 21 September 2006.  He recalled that the 
Council had discussed this topic at its last three me etings on the basis of three communications from 
the European Communities, circulated in documen ts IP/C/W/448, 468 and 471.  Furthermore, the 
Council had just received a new communication from the European Communities, Japan, Switzerland 
and the United States on "Enforcement of Inte llectual Property Rights" (advance copy of 
IP/C/W/485). 
174. The representative of the European Communities  said that, in the year 2005, his delegation 
had initiated a debate in the Council about the worr ying status of IPR enforcement worldwide and the 
negative consequences of counterfeiting and piracy, in  particular for the health and safety of EC 
citizens and the economic viability of legiti mate companies and right holders from the 
European Communities.  His delegation had been  supported by several Members who had expressed 
similar concerns and the willingness to continue di scussing in the Council the nature of the problem 
and appropriate solutions to address it.  The Jo int Communication in document IP/C/W/485 followed 
on from this debate. 
175. He believed that it would be important that Members engage in a constructive discussion on 
two issues:  firstly, on how to implement the en forcement provisions of the TRIPS Agreement in a 
more effective manner;  and secondly, on the accompanying measures wh ich could enhance the 
effectiveness of national implem enting legislation and enforcement efforts, such as promoting 
interagency co-operation, fostering higher public aw areness, and reinforcing institutional frameworks.  
Additionally, technical assistance had an important role  to play in ensuring effective IP enforcement.  
In this respect, the European Communities was read y, in co-operation with recipients of technical 
assistance and with relevant international organiza tions, to better focus its technical assistance in 
favour of developing countries in order to facilita te the implementation of enforcement provisions. 
176. In the past, Members had already provided a va luable contribution on IP enforcement in the 
form of their replies to the Checklist of Issues on Enforcement (IP/C/5).  He reiterated his earlier 
suggestion that the Secretariat be requested to pr epare a synopsis of Members' contributions to the 
Checklist that could serve as a basis for the a bove-mentioned discussion.  Such a summary would 
constitute a useful reference for future discussions.  IP/C/M/52 
 Page 31 
 
 
  177. He emphasized, firstly, that the intention was not to dispute the freedom of Members to 
determine the appropriate method of implementing enforcement provisions as provided for in the 
TRIPS Agreement and, secondly, that the objective of this exercise did not consist of finger-pointing 
but, on the contrary, of a constructive discussion based  on an exchange of best practices that had 
produced concrete results. 
178. The representative of the United States  said that his delegation supported a dialogue in the 
Council on the implementation of the enforcem ent obligations under the Agreement and the 
identification of solutions to defici encies in this area.  It was pleased  to advance this concept through 
document IP/C/W/485, which it had co-sponsored with the European Communities, Japan and 
Switzerland.  The paper reflected the growing preoccu pation on the part of the United States and other 
co-sponsors with regard to the increasing scale of global counterfeiting and piracy activity, which had 
caused profound negative commercial and developmenta l consequences, not just for the co-sponsors, 
but for all Members.  Addressing these problems effe ctively would require a multifaceted approach at 
the national level and through international coope ration.  Additional fact- and experience-based 
discussions of enforcement within the Council could be a useful part of such efforts.  Focusing on best 
practices might be a particularly useful appro ach.  The Council's discussions should focus on the 
enforcement aspects of the Agreement itself and not  extend beyond the scope of the TRIPS rights and 
obligations.  His delegation looked forward to cont inuing to remain engaged in discussions on this 
issue, including through a reflection of its experience in the enforcement area. 
179. The representative of Argentina  said that, in her view, the Council was still at an early stage 
regarding this issue, given that her delegation and others had requested, since it had first been 
introduced, that it not be a regular item on the age nda.  She asked whether the European Communities 
had again requested that the item be put on the agenda of the present meeting. 
180. As a preliminary reaction to the new Joint Communication in document IP/C/W/485, she said 
that the focus, proposals and objectives that were  being sought through the successive proposals were 
outside the functions of the Council and the mandate  under the TRIPS Agreement.  In paragraph 7 of 
the document, it was suggested that Members engage in a discussion of how to implement the 
enforcement provisions of the Agreement in a more effective manner.  This was not the responsibility 
of the Council, since there was no mandate under the Agreement to undertake such an examination or 
to revise its provisions to make them more effectiv e.  The Agreement remained as negotiated.  If any 
delegation had questions or con cerns about how specific Members had implemented it, appropriate 
mechanisms were already availabl e, such as reviews of implementing legislation under Article 63 or 
the dispute settlement system. 
181. The second indent of paragraph 7 invited Members to engage in a discussion of, inter alia , 
measures which could enhance the effectiveness of national implementing legislation and cooperation 
with other institutions.  She said that such work was already being undertaken by other organizations, 
such as the World Customs Organizations (WCO), WIPO and Interpol, which had the mandates to do 
this. 
182. She said that her delegation did not agree with the request for the Secretariat to prepare a 
synopsis of Members' contributions to the Check list of Issues on Enforcement.  The Checklist had 
been prepared for and was pertinent merely in re gard to the notification exercise as agreed by 
Members.  While other checklists such as the ones on geographical indications or the CBD, were voluntary, this Checklist was a mandatory part of  notification of implem enting legislation under 
Article 63.2 of the Agreement.  It was not acceptable that the responses given within the scope of this 
mandatory exercise would be utilized for other purposes. IP/C/M/52 
Page 32  
 
  183. She regretted that the focus of the last indent  of paragraph 7 was on developing countries as if 
they were the only countries in which piracy occurre d and that the technical cooperation aspect of the 
paper was reduced to this preoccupation. 
184. Paragraph 5 of the paper read that "such impl ementation must ensure adequate achievement 
of the objective of the TRIPS Agreement".  She said that she had believed that  this language referred 
to Article 7 of the Agreement, according to wh ich enforcement should be undertaken to increase 
social benefits and development of  developing countries.  She woul d have hoped that the paper would 
have included something to that effect.  However, she had realized that this language was in fact 
referring to technical cooperation a nd developing countries as if they were the only source of piracy.  
The only preoccupation was to facilitate the implem entation of "enforcement provisions" and there 
was nothing referring to the objectives of Article 7 of the Agreement.  The Council should not spend 
time on this issue even in the context of tec hnical cooperation, because enforcement was being 
addressed by other organizations at the international level.  For example, as indicated in paragraph 63 
of document IP/C/W/478/Add.3 containing informati on on its technical cooperation activities, WIPO 
had undertaken, alone or in cooperation with other intergovernmental organizations and governments, 
many activities related to enforcement.   
185. She felt that it was not the right time to contin ue discussing this topic.  There were other 
topics of greater importance to developing and least-developed countries, such as the issue of 
technology transfer under Article 66.2, on which she suggested the Council should focus.  Enforcement should not continue to be put on the ag enda, because there was no consensus to debate it 
on the bases on which the proposals had been presented.  
186. Responding to the question posed by the re presentative of Argentina, the Chairman
 said that, 
as he had indicated in introducing this agenda item,  this item had been put on the Council's proposed 
agenda at the request of the delegation of th e European Communities, dated 21 September 2006. 
187. The representative of Japan , associating himself with the statements made by the 
European Communities and the United States, said  that counterfeiting and piracy were growing 
globally.  This was shown in a report by the Worl d Customs Organization and Interpol, according to 
which the value of counterfeit goods traded annua lly worldwide had already reached 500 billion 
Euros.  Taking into account the adverse effects of  counterfeiting and piracy, such as the impediments 
to legitimate economic activities and the threat to consumers' safety, all WTO Members should 
cooperate to solve this global problem.  For th is purpose it was important to appropriately and 
effectively enforce IPRs.  Therefore, Japan, as one  of the co-sponsors of the Joint Communication, 
was in favour of the Council addressing this issue,  with all Members engaging in a constructive 
discussion on how to more effectively and cooperatively implement the TRIPS enforcement provisions with a view to combating counterfeiting and piracy. 
188. The representative of Switzerland
 said that the fact that his delegation had co-sponsored the 
Joint Communication reflected the importance it att ached to having this subject discussed in the 
Council.  This was the appropriate body to ex amine the subject and to assist Members in the 
implementation of the enforcement provisions of the Agre ement, as contained in its Part III.  In fact, it 
was the only appropriate forum to do so, since one of the Council's key responsibilities was to monitor 
the operation of the Agreement.  Considering that the TRIPS Agreement was the first international IP 
agreement to contain a chapter on enforcement, the Council should dedicate particular attention to the 
workability of its provisions on this matter. 
189. The discussion proposed by the Joint Communication was not about amending the relevant 
provisions of the Agreement.  Neither was it a bout finger-pointing, nor about systematically 
reviewing the relevant legislation of individual Members, as had been done in the context of the 
overall review of Members' implementing legislation at the time they were obliged to start to apply its  IP/C/M/52 
 Page 33 
 
 
  provisions.  Furthermore, the objective of the proposed discussion should not be to enforce the TRIPS 
provision in WTO Members, nor to duplicate the work that had been done in other forums.   
190. Considering the devastating impact of counterfe iting and piracy on nati onal and international 
economies as well as on the well-being of consumers a nd public health globally, he believed that the 
Council had the duty to deal with this matter within the limits of its responsibilities, i.e. the provisions 
of Part III of the Agreement.  By doing that, the Council would ensure that IPR protection and 
enforcement, in accordance with the Agreement, could make a contribution to the social and 
economic welfare of Members.  
191. Members should consider the difficulties they were having in effectively implementing the 
enforcement provisions at the national level, a nd discuss measures and mechanisms through which 
these difficulties could be addressed so as to allow the Council to assist them in fulfilling their 
obligations under the Agreement.  He also inv ited Members to share their experiences – whether 
positive or negative – with the Council, as well as their efforts in this area during the last ten years, so 
that other Members might benefit from them and learn about new ways and means to address the 
problems they were facing.  That could allow joint work towards solutions to enhance the 
effectiveness of Members' efforts to address IP en forcement and to combat counterfeiting and piracy - 
problems that had become prevalent and negatively impacted on all Members. 
192. The representative of China  reiterated his delegation's view that the issue of enforcement 
should never become a regular item of the Council's agenda.  As the minutes of previous meetings 
showed, this item was opposed by many developing c ountries.  He therefore expressed concern about 
the new Joint Communication.  Article 1.1 of the Ag reement provided that "Members shall be free to 
determine the appropriate method of  implementing the provisions of th is Agreement within their own 
legal system and practice".  Accordingly, enfor cement measures should be adopted mainly at the 
national level.  Most developing country Members had devoted enormous administrative and judicial 
resources to IPR enforcement with significant progress in this field;  and such efforts were continuing.  
The proposals on enforcement went beyond the provisions of the Agreement. 
193. With its mandate for the exchange of inform ation, awareness raising and coordination of 
technical assistance programmes, WIPO's Advisory Committee on Enforcement was well equipped to address and discuss the issue of enforcement.  Th ere was no reason for the Council to duplicate the 
work done by other international organizations.  Th e inclusion of this item on the Council's agenda 
and any substantial discussion arising from the Jo int Communication would not only repeat the work 
that had been carried out in other relevant intern ational organizations such as WIPO but would also 
waste the resources of the WTO and divert Members'  attention away from the work they should be 
focusing on.  As a consequence, this would fu rther expand the imbalance of interests between 
developed and developing Members al ready present under the Agreement. 
194. His delegation maintained its view that this issue should not appear on the agenda of the 
Council's next meeting.  Furthermore, it did not ag ree with the request made by the co-sponsors of the 
Joint Communication that the Secretariat prepare a synopsis of Members' contributions to the 
Checklist of Issues on Enforcement.  He was concer ned that the co-sponsors would attempt to judge 
and examine the status of the implementation of IPRs in other Members and make conclusions on a 
non-factual basis.  He saw no reason for Members to  consider any substan tial initiatives in such 
proposals.  He said that, therefore, China would not  participate in any detailed technical discussions 
and asked for the deletion of the item from the Council's agenda. 
195. The representative of Canada
 said that her delegation saw counterfeiting and piracy as an 
increasing global problem with implications for all WTO Members that would go well beyond economic effects.  Canada was concerned about the increasing role played by organized crime in this 
matter and with its effects on safety and public h ealth.  Canada had found counterfeited electrical IP/C/M/52 
Page 34  
 
  devices, automobile parts and pharmaceuticals in its market.  This was one of the reasons why it was 
currently examining its approach to the enforcement of IPRs at the borders, an important element in 
the fight against piracy and counterfeiting. 
196. Counterfeiting and piracy was a phenomenon that c ould not be ignored and one in regard to 
which the WTO had a role to play.  Therefore, it  was both appropriate and timely to discuss IP 
enforcement issues in the TRIPS Council.  Canada looked forward to the debate on the issues raised 
in communication IP/C/W/485 and thanked its co-s ponsors for raising them.  Canada saw many 
positive elements in this paper, such as its call for inter-agency cooperation,  higher public awareness 
and a better focus on technical assistance.  IP enforc ement had indeed been addressed in a variety of 
contexts, including in WIPO, APEC and the OECD.  This indicated the need to coordinate these 
approaches and work together.  Canada therefor e urged all WTO Members to take a constructive 
approach to this matter.  For example, it would be  very helpful if they could share best practices and 
experiences, as many of the most troublesome challe nges were issues that were common to many, if 
not most, Members.  A discussion in the TRIPS Council would not represent the whole solution to this problem, but it would certainly be an important contribution to this work. 
197. The representative of Chile
 said that the topic of enforcemen t was of fundamental importance, 
which his country took very seriously.  Chile believe d that intellectual property was a useful tool for 
development if utilized in a way that was balanced and did not unnecessarily hamper trade.  Chile had 
high standards of intellectual prope rty and a good rating re garding enforcement.  Nevertheless, the 
proposal by the European Communities, now acc ompanied by other Members, presented some 
uncertainties. 
198. Apart from the duplication of activities with othe r international organizations, the imprecise 
language used in the various documents tabled on this matter also raised other concerns.  They 
referred principally to counterfeit and pirated goods that, under the Agre ement, related to trademarks 
and copyrights.  The documents then referred to fraudulent goods and later on to infringing goods.  
Furthermore, some of the documents set out a met hodology which was imprecise.  For instance, as to 
the references to the goods that had been suspended at the border, it was not clear whether they were 
infringing or grey-market goods.  It was not clear whether the perceived problem was insufficient TRIPS norms, inadequate implemen tation, or ineffective enforcement.  He said that he would 
appreciate a clarification from the Swiss delegati on on whether the intention was to modify the 
Agreement.  Some of the documents tabled by the European Communities implied that the Council 
should modify the Agreement.  
199. The Checklist on Enforcement served a particular purpose and, if it were to be used in the 
way proposed by the European Co mmunities, it could give the impressi on that certain questions in it 
reflected obligations that went beyond the TRIPS requirements.  Noting that the last indent of 
paragraph 7 of the Joint Communication limited tec hnical cooperation to enforcement, he said that 
technical cooperation should  be undertaken in all areas of the Agreement. 
200. The representative of Australia
 said that effective enforcement of IPRs was becoming an 
increasingly important issue.  In Australia, a cohere nt national strategy on enforcement of IPRs had 
become a national priority.  She saw value in fostering a dialogue in the Council on national experiences in combating piracy and counterfeiting.  The experience that Members would share could 
assist other Members' own considerations of the issues.  Such a dialogue could also be a useful complement to the work being undertaken elsewhere.  The Council needed to keep in mind that this 
was a sensitive issue in considering how to ensure  that its discussions would be constructive.  A 
dialogue, as proposed by the European Communities, the United States, Japan and Switzerland, would 
not necessarily exclude the consideration of approaches and concerns of all Members.  IP/C/M/52 
 Page 35 
 
 
  201. The representative of Brazil  said that his delegation was increasingly concerned with the 
proposals from developed countries in the Council th at would in practice lead to a partial and 
unbalanced implementation of the Agreement to th e detriment of developing countries.  Members' 
rights and obligations under the Ag reement could not be fulfilled or  considered on a piecemeal or 
selective basis.  The TRIPS obligations on enfor cement already imposed a relatively higher burden 
and challenges for developing countries vis-à-vis  developed ones.  Nationa l enforcement measures 
taken by developing countries had resulted in high costs, both economic and social. 
202. The new paper tabled by the European Comm unities with the support of Japan, Switzerland 
and the United States purported to examine the impl ementation of the TRIPS provisions, understand 
the difficulties regarding their implementation,  and make recommendations by laying down 
benchmarks and best practices on enforcement.  In his view, it was incompatible with Article 1.1 of 
the Agreement, which stated clearly that "Members shall be free to determin e the appropriate method 
of implementing the provisions of this Agreement within their own legal system and practice."  The 
proposal seemed to be intended to identify the approp riate mechanisms to deal with the difficulties of 
implementing the Agreement.  However, the evalua tion of what these appropriate mechanisms should 
be was a subject left entirely to the discretion of  national governments accord ing to the provisions of 
Article 1.1.  Therefore, the proposal ran counter  to the Agreement by eroding Members' rights 
under Article 1.1. 
203. The exchange of information on national laws  and measures concerning the enforcement of 
IPRs were issues that were currently under discu ssion in other forums, such as WIPO's Advisory 
Committee on Enforcement, and in the WCO.  This work should not be duplicated in the Council, 
which already faced more important tasks.  Ma ny countries had their own national strategies for 
combating piracy or implementing the enforcemen t provisions of the Agreement, as indicated by 
Canada, Australia and others.  Br azil also had its own programme, wh ich was very effective and had 
been the object of priority action through the national committee for combating piracy.  Brazil, as well as other developing countries, had been active in  WIPO's Advisory Committee on Enforcement in 
exchanging information on their national activities in this field.  This Committee was the appropriate 
forum for this discussion and Brazil supported th e continuation of its activities, including the 
exchange of information on national initiatives. 
204. Despite the pause in the Doha Round, it was Brazil's strong belief that outstanding 
implementation issues, which were referred to unde r a mandate within those negotiations, remained 
an issue of utmost importance for the TRIPS Council.  This issue still required the full attention of the 
Council, which should not be detracted from it because of  work with other issues that were not within 
its mandate.  He said that the original idea of the implementation issues agenda derived from the 
perception of many Members that the agreemen ts negotiated during the Uruguay Round were not 
being adequately implemented, or  were not being implemented in a balanced way that would fully 
respect the rights and obligations of developing co untry Members.  He saw the present agenda item as 
an initiative that would only enhance that unbala nced approach to the implementation of those 
agreements.  This was precisely what developing countries were questioning when they put forward 
the idea of having an implementation agenda. 
205. For the above reasons, he said that the recommenda tions that were contained in the new paper 
were detrimental to the delicate balance of rights a nd obligations established in  the Agreement.  Brazil 
did not agree to hold in-depth discussions on en forcement of IPRs.  Specific difficulties in 
implementing the so-called relevant TRIPS provisions should be addressed on a case-by-case basis by 
those Members seeking technical cooperation individually or in the DSB.  An examination of appropriate mechanisms to address these difficulti es should not become a permanent item of the 
Council's agenda.  He agreed with those Members, in particular Argentina, who had argued that the 
new proposal seemed to place developing countries as the focus of enforcement concerns.  This was 
unacceptable, as developing countries were not necessar ily the ones that were most responsible for IP/C/M/52 
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  counterfeiting and piracy, neither in global nor in qu antitative terms.  As these were global issues, he 
saw no reason for working under the premise that developing countries were a major object of concern regarding enforcement. 
206. He drew Members' attention to the developmen t agenda presented by a group of developing 
countries at WIPO, which contained a large section on technical assistance.  In this context, his 
delegation had emphasized that technical assist ance provided by WIPO on TRIPS implementation 
should be balanced.  It should not only focus on cer tain or selective commitments of Members, but 
assist them towards a full and complete implementation of both obligations and rights under the Agreement.  Such rights included the flexibility unde r Article 1.1 of the Agreement.  Other examples 
of flexibility were issues related to the transfer  of technology, promotion of economic and social 
development and many others that were spread throughout the Agreement.  He wished that the 
Agreement be read by all Members in its en tirety and not on a selective, piecemeal basis. 
207. The representative of Venezuela
 associated himself with the statements by Argentina, Brazil, 
China and Chile concerning the imprecision of the pr oposals in IP/C/W/485.  At this time, the Council 
did not need this new topic or the reformulati on of its mandate.  The inclusion of technical 
cooperation would overburden deve loping country Members with a responsibility in the area of 
enforcement at a time when efforts at the national level were already being made.  Venezuela's own programme against infringing goods was quite succ essful and improving continuously.  Efforts and 
initiatives were needed on topics of greater im portance for developing countries, such as the 
protection of traditional knowledge  and folklore, and the relations hip between the TRIPS Agreement 
and the CBD. 
208. The representative of India
 said that he was uncomfortable with the idea of singling out just 
one section of the TRIPS Agreement for discussion in the manner that had been proposed.  The Agreement represented a delicate balance of rights and obligations and had to be seen in its entirety.  
The focus, therefore, could not be only on its obligations. 
209. Article 1.1 of the Agreement provided Members with the freedom to determine the 
appropriate method of implementing its provisions w ithin their own legal system and practice.  He 
was afraid that, once Members started discussi ng appropriate methods of implementing the 
enforcement provisions, they would consider the adequate achievement of the objectives of the 
Agreement only from the point of view of its oblig ations.  This would tread on the policy space and 
national flexibility provided under that Article.  Ther efore, he could not support the proposal that the 
Council search for a coordinated response to enforcem ent, including the promotion of best practices. 
210. The WIPO Advisory Committee on Enforcement,  which had been discussing this issue at 
great length, was the appropriate forum to take up the discussion.  In addition, Members that wished 
to raise any specific issue relate d to enforcement could do so under the existing review mechanism in 
the TRIPS Agreement, or could use the WTO disput e settlement mechanism.  As to the proposal on 
technical cooperation in the new communication, he said that such activities were not needed only in 
terms of discharging the obligations but also for ensuring that the rights that had accrued to Members 
really flowed to them.  In this regard, he cal led Members' attention to a proposal on technical 
cooperation at WIPO, which had been tabled by de veloping countries and should be taken forward.  
He said that his delegation did not feel that the item should be kept as a permanent item on the 
Council's agenda or that it should be discussed in the Council in its present form at all. 
211. The representative of the European Communities
 said that he wished to address some of the 
comments made on the Joint Communication in document IP/C/W/485.  He thanked Australia for 
having noted that the Joint Proposal was sensitive to  the criticisms raised by some Members.  It 
pointed towards a positive approach to a debate th at should be constructive and not based on finger-
pointing or accusations vis-à-vis  other Members.  He also thanked Members for reminding the  IP/C/M/52 
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  Council that there existed other mechanisms to d eal with the issue such as the dispute settlement 
system which, however, was not the approach that his delegation would wish to take. 
212. He said that, on one hand, several Members had mentioned that enforcement imposed a 
burden on their legal systems and that they were maki ng efforts to tackle this issue.  On the other 
hand, they had also said that they would refuse to discuss this issue or even share their best practices 
with other Members, despite references to succe ssful programmes in some countries.  He would 
certainly appreciate seeing examples of the ways  in which Members had promoted enforcement in 
their territories within the freedom gran ted by Article 1.1 of the Agreement. 
213. He noted that some Members had stated that the Council should look at the implementation of 
the Agreement in a balanced manner.  He said th at his delegation had participated in and made 
contributions to the Council's debates on issues like biodiversity, technical assistance and transfer of 
technology.  However, when it came to enforcem ent, some Members simply refused to have it 
discussed and proposed that the Council spend its time on something else.  He, therefore, failed to see 
where the balance mentioned by these Members was. 
214. He noted that some Members had mentioned that piracy and counterfeiting were a global 
problem, as had also been acknowledged in the firs t paragraph of the Joint Communication.  It was 
precisely for this reason that the Council would be  the best forum to discuss it.  He failed to 
understand how Members could say, on one hand, that  this was a global problem and, on the other 
hand, accuse the new paper of pointing the finger at de veloping countries.  In fact, the only reference 
to developing countries was at the end of the pa per, where the co-sponsors expressed their readiness 
to look, together with recipient countries of techni cal assistance, at how best to address this problem.  
The reason for this reference was that the recipien ts of technical cooperati on were usually developing 
countries. 
215. Responding to the criticism that the Joint Comm unication did not refer to Article 7 of the 
Agreement, he said that this Article was reflected throughout the proposal.  To say the contrary might 
imply that some would consider that piracy, c ounterfeiting or trafficki ng in dangerous products 
related to development.  Tackling IPR infringements  that were often undertaken by organized crime 
and presented risks to health and safety would prom ote development, innovation and progress.  As to 
the comments on duplication of work, he referred to the responses by Switzerland. 
216. He recalled that, at the Council's meeting in  March 2006, his delegation had introduced a 
Communication (IP/C/W/471) aiming at initiating a debate on the use of customs measures as a 
means to fight the global traffic in IPR infringing goods.  Customs' prime role in stopping the 
international movement of fake  goods was shown by the fact that they were responsible for 
approximately 70% of all seizures of counterfeits  made globally.  At the present meeting, his 
delegation wished to continue this  process on EC best practices.  A colleague from the department in 
charge of the Internal Market within the Commission would presen t the main features of the EC 
Directive on the enforcement of IPRs within the EU Single Market. 
217. The representative of Argentina  asked, as a procedural question, whether the 
European Communities had notified the Directive in  question to the Council as national implementing 
legislation. 
218. The representative of the European Communities  responded that he would have to verify 
whether or not the Directive had been notified. 
219. The representative of Argentina  said that there was a specifi c item on the Council's agenda 
concerning notifications of national laws and re gulations, under which the said regulations were 
examined.  There was no agreement to discuss this topic under the present agenda item.  Neither was IP/C/M/52 
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  there agreement on any of the specific proposals in  the various documents presented, including on 
presentations of national experiences and best practices.  Although her delegation was open to 
listening to the EC presentation under agenda item B,  it was not willing to do so under the current 
agenda item due to this lack of agreement. 
220. The representatives of China
, Brazil  and Venezuela  associated themselves with the statement 
made by Argentina. 
221. The representative of the European Communities , referring to its introduction of its 
communication IP/C/W/471 at the Council's meeting in March 2006, said that it was his delegation's intention to continue this process on its best practices and present the main features of the 
EC Directive on the enforcement of IPRs within the EU single market.  He said that, with the Chair's 
permission, his colleague would like to take the floor. 
222. The Chairman
 said that, in his experience in the WTO, Members had always been able to 
compromise on matters like these.  The delegati on of the European Communities had made a written 
request that the item to be put on the agenda.  It had also indicated to the Secretariat and to him that it 
would like to make a presentation as part of addressing the issue.  He recalled that, at an earlier 
Council meeting, an EC representative from its cu stoms administration had made a presentation on 
this subject.  It did not seem to him that a pr esentation outlining the EC experience would cause any 
injury to those Members who were not inclined to  go along with a discussion on the issue.  He added 
that Members still had the facility whereby the Eu ropean Communities would have to make a written 
request for this item to be pursued at a future mee ting.  However, in his view, once such a request had 
been made at the appropriate time  and the agenda had been adopted on the basis of that request, it was 
not unreasonable for the European Communities to be  heard.  He therefore asked whether Members 
could agree to hear the presentation. 
223. The representative of Brazil  said that the inclusion of this item on the agenda had not given 
Members a forewarning that there would be a PowerPoint presentation on this subject by the European Communities.  The problem was that he di d not wish that the presentation would imply that 
Brazil was accepting that enforcement should be discu ssed as an item of the Council.  The appropriate 
agenda item to put forward this kind of pr esentation was "Reviews of National Implementing 
Legislation", but not the present item, since Member s had not agreed to in-depth discussions under it, 
be it through national experience, best practices,  or the like. There were many Members who 
disagreed with the idea of holding these kinds of di scussions.  He believed that this was a substantive 
rather than only a procedural matter.  The position of some Members that the Council did not have a 
mandate for this kind of discussion also had to be respected.  He wondered whether a compromise 
could lie in the nature of the agenda ite m under which this presentation would be made. 
224. The representative of China
, associating himself with the statement made by Brazil, said that 
the EC request had not been communicated to Member s and that the presentation of EC best practices 
had not been reflected in the agenda item, wh ich merely referred to a "Communication from the 
European Communities".  Neither had he seen any ad vance copy of the presentation.  Therefore, there 
was no reason for the Council to waste time listening to the presentation.   
225. The representative of Venezuela  said that there was an imbalance regarding the amount of 
time dedicated to different topics.  The previous day, only little time had been spent on agenda items 
D, E and F, which were of greater importance to developing countries. 
226. Responding to the comments made by Venezuela, the Chairman  clarified that the amount of 
time that an agenda item took depended on how mu ch time Members wished to spend on it.  The 
items in question had not been closed until there were no more requests for the floor.  IP/C/M/52 
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  227. The representative of Venezuela  said that he was not questioning the Chair's actions, but was 
merely pointing out how much time was spent on cert ain discussions that had recently appeared on 
the agenda, while there were other pending issues on the agenda.  
228. The representative of the United States  said, as a point of order, that the adopted agenda 
clearly indicated that the European Communities was the requester of the item under discussion.  
Certain deference should be shown to a requesting Member with respect to an item that they had 
requested and that such a Member should be allo wed to make whatever presentations it deemed 
appropriate under that agenda item.  Members woul d expect the same deference to apply in many 
other circumstances. 
229. The Chairman  said that there seemed to be two opti ons, namely to hear the EC presentation 
under item M or to reopen item B.  These two op tions would respect the WTO practice under which 
Members were willing to respectfully hear each other out, whether they agreed or not.  He therefore 
asked whether there was any objection to hear ing the EC presentation under agenda item M or 
whether there was any objection to reopening agenda item B, as suggested by some Members.  
230. The representative of the United States , as a point of order, said that he objected to reopening 
the previous agenda item.  Members were dealing with a subject-matter on the basis of a request from 
a Member.  It was extremely important, as a systemic  matter for this body and for other bodies of the 
WTO, that Members who had requested discussion w ould be free to present whatever material they 
deemed appropriate under that item.  His delegatio n would certainly expect to follow that practice 
with respect to any similar request from any other WTO Member. 
231. The representative of th e European Communities , associating himself with  the US statement, 
said that the purpose of the presentation, as had been  indicated in the earlier EC communications, was 
to provide information on how it was tackling th e issue of enforcement, as one possible way to 
address this problem.  This had nothing to do with  review of legislation.  The Directive provided 
guidelines for EC member States, which were to impl ement it in their own national legislations.  The 
purpose was not to discuss it under any another agenda  item.  The presentation fell entirely under the 
agenda item that his delegation had requested. 
232. The Chairman  said that, as Brazil had mentioned, this was an issue of both substance and 
procedure.  Procedurally, the Council was dealing wi th it at the EC's request.  The custom was that 
Members respectfully hear each other, whether they disagree or not.  At the end of the day, all still 
had to work together for the rest of the session a nd in future sessions.  As a compromise, he suggested 
that the European Communities make a brief presen tation summarizing the issues on the basis of its 
experience, and submit in writing an y additional detail contained in th e presentation to be circulated 
to Members. 
233. The representative of Argentina  said that her delegation had ma de a compromise and showed 
flexibility in accepting the item on the agenda.  The fo cus of her concerns about the proposals was the 
exchange of national experiences and best prac tices, precisely what the European Communities 
wished to do under this agenda item.  This  was perhaps the fourth session in which the 
European Communities and other de legations had had the opportunity to present the issue.  Her 
delegation had respectfully listened to these presen tations, even though it did not agree with the EC 
point of view.  For that reason the compromise should be mutual.  A possible compromise might be that the European Communities give its presentation on the Directive at the Council's next meeting, 
once it had notified it as implementing legislation.  If  it were to be agreed that, under the present item, 
Members would exchange information on their national experiences or best practices, then all 
Members should have an opportunity to do so.  At present, there was no such agreement, which would 
be neither timely nor appropriate. IP/C/M/52 
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  234. The Chairman
 said that he understood the concerns a bout the substance, which would always 
remain in the hands of Members.  As far as the pr ocedure was concerned, he maintained that the item 
was on the agenda, and that he was still not satisfi ed that there was a valid argument against hearing 
the presentation.  The compromise he had suggest ed was in response to those Members who had 
concerns about the subject-matter. 
235. The representative of Brazil  said that, while this item posed a great deal of problems for 
Brazil and other Members, his delega tion had tried to deal with it constructively by avoiding the use 
of words such as "objecting".  He wished to find a solution that was adequate and respectful, not only 
of the position of the Member who wished to make the presentation, but also of the position of the 
many Members who believed that making the presen tation would substantivel y harm their positions 
regarding this subject.  This was not a procedural issue on which a ruling could be made.  It was an 
issue of substance and part of the agenda item that his and other delegations, in good faith, had 
accepted to discuss. 
236. He said that, if this was the way that mee tings on this issue would be carried out, his 
delegation would object to a proposed agenda for th e Council's next meeting that would contain this 
item.  While he believed that all Members should be h eard, he also believed that they should have an 
understanding of the positions of others.  This was not a Council just for one Member to put forth its 
own national experience in a manner that could prejudge the position of other Members regarding 
whether this was an adequate place to discuss its particular national experi ence or not.  This was a 
very delicate subject, and if it appeared in the report that the European Communities had made a 
presentation on its Directive under an item on enforcem ent of IPRs, next time this could become the 
precedent and prejudge the position of others who belie ved that this should not have occurred and that 
the Council was not the appropriate forum for ma king these presentations.  This was therefore a 
substantive rather than procedural  issue.  There should be respect also for those who had already 
listened to the European Communities on four o ccasions and had even responded at length to its 
proposals.  Nowhere in this agenda item had there been any forewarning as to the 
European Communities wanting to make a detaile d PowerPoint presentation on its Directive, and 
nowhere had Members been forewarned that the EC Directive would be the substantive issue to be 
debated as enforcement or as best practices of inte llectual property.  The Council should be more 
balanced in its decisions and more respectful of the position of all Members, and not only of a few 
Members. 
237. The representative of the United States  said that the Council did not need to decide at the 
present meeting on the methodology for considering en forcement.  There were a number of items on 
extremely significant issues that were regularly di scussed in this Council, including possibilities for 
amending the Agreement.  Members had carefully lis tened to each other and exchanged questions and 
answers in a constructive manner as a means of mo ving forward the discussion.  He saw no reason 
why Members could not follow a similar procedure in the discussion under this agenda item.  He 
reiterated that the agenda had been adopted with this item, which was being dealt with as an item 
under which the European Communities had put fo rward a proposal.  If Members were to be 
concerned with the creation of precedents, then they should be concerned about the precedent in 
which once an agenda had been adopted, one saw possibilities for blocking the freedom of expression 
of Members of the Council to bring forward proposals.  
238. The representative of China , associating himself with the statements by Brazil and Argentina, 
said that, although the agenda had been adopted with  this item, there had been no advance indication 
that there would be a presentation on this item, wh ich therefore had been a total surprise to all 
Members.  This was a very important substantive issue, rather than a procedural issue, and the 
Council should avoid setting a bad precedent.  Hi s delegation had already shown respect to the 
European Communities in respect of this item, but  the European Communities should not go too far 
on this item in the absence of agreemen t on the important substantive issues.  IP/C/M/52 
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  239. The representative of Costa Rica  said that, while a Member had the right to bring a topic on 
the agenda and the right to be heard, the other Members had the right to know in advance what was the content of the topic on the agenda.  Some Me mbers had been surprised that there would be a 
presentation on the EC legislation.  There was no con sensus to discuss the substance.  He said that a 
possible way for moving forward might be that the European Communities make its presentation 
under "Other Business" with the understanding th at it would notify the Directive as implementing 
legislation for the Council's next meeting. 
240. The representative of the European Communities
 said that the item had been put on the 
proposed agenda at its request, and the Council had adopted the agenda.  It was his understanding that 
several Members were interested in discussing en forcement and hearing the EC presentation on its 
best practices.  It was important for the Council to have this discussion and the presentation on the 
EC Directive on Enforcement.  Members were free,  once an agenda item had been accepted, to say 
what they wanted within the available time. 
241. The Chairman  suspended the meeting so as to allow him to consult with those delegations 
who had spoken on the matter. 
242. Resuming the meeting, the Chairman  said that, as he had indicated when he had suspended 
the meeting, he had consulted on how to proceed  with those delegations  who had spoken on this 
matter and, as a result of the consultations, he would offer the floor to the delegation of the 
European Communities. 
243. The representative of the European Communities  said that the EC had taken initiatives in its 
fight against counterfeiting and piracy at three levels: within the internal market of the 
European Union;  in the field of its customs regi me, which had been modernized in 2004;  and in 
terms of a policy vis-à-vis  the respect of IPRs in third countries.   The initiatives within the internal 
market included two pieces of legislation.  Dir ective 2004/48/EC on the enforcement of intellectual 
property rights ("Enforcement Directive") contained me asures, procedures and remedies that courts in 
the EC member States should apply to IPR in fringement cases.  Another initiative, still under 
discussion within the EU, dealt with criminal sanc tions to combat intellectual property offences. 
244. In general, a directive defined obligations fo r the EC member States but left it to each 
individual member State to choose the means to tran spose these obligations into its national law.  
Directives were adopted to harmonize the laws  of the 25, or soon 27, member States.  The 
Enforcement Directive had been adopted on 29 April 2004, and member States had had 
until 29 April 2006 to transpose it into their nationa l law.  The Directive had been proposed by the 
European Commission and had been formally adop ted by the Council of the European Union, in 
which the member States were represented, as well as by the European Parliament. 
245. The Enforcement Directive was intended to co mplement substantive IP provisions, and did 
not create new, substantive IP laws or modify or extend existing ones.  It dealt exclusively with the 
enforcement of these IPRs.  All EC member St ates and the European Communities itself were 
Members of the WTO, and the TRIPS Agreement was th e basis of the Directive.  It also built on the 
best practices of EC member States.  It took th e best practices that were already being applied 
effectively in one or more member States, and th en harmonized them throughout the European Union.  
The Directive contained only minimum standards,  which meant that any member State could 
introduce measures that gave more protection to right  holders.  In that respect, the approach in the 
Directive was similar to that used in the TRIPS Agreement.   
246. He stressed that enforcement issues were now subj ect to the review by the European Court of 
Justice (ECJ).  As a consequen ce, any court in the European Union that had doubts about the proper 
interpretation of the Directive could ask the ECJ's opinion.  Therefore, member States would not only IP/C/M/52 
Page 42  
 
  have the same legal text but also a uniform interp retation of the wording of the Directive.  It was 
important that the ECJ had the final say in all these ma tters in the context of infringement procedures.  
This meant that any member State that was not resp ecting the obligations of the Directive because, for 
example, it had not transposed it in time or had done  so incorrectly, or did not apply it in the proper 
way, could be subjected to an action brought by the Commission before the ECJ.  In order to assist 
member States to implement the Directive, the European Commission had convened some meetings 
to discuss practical matters of transposition and to  exchange experiences, respecting the fact that 
finally every single member State could transpose it in a way that best fitted it. 
247. Regarding the scope of the Directive, he said that  the Directive applied to infringements of all 
IPRs.  This was a horizontal approach, which coul d also be found in the TRIPS Agreement.  More 
specifically, the Directive applied to the infringement of IPRs "as provided for by Community law 
and/or by the law of the member States concerne d".  The European Commission had published a list 
of IPRs that it believed were govern ed by this language of the Dir ective in order to enhance legal 
certainty and give some interpretative guidan ce to member States.  The Directive covered, 
for example, copyright, trademarks and industrial designs, but also geographical indications, plant 
variety rights and even trade names, insofar as pr otected as an exclusive IPR in the member State 
concerned.  Those member States that provided protection for utility models should also apply the 
Directive to infringements of utility models. 
248. Turning to the substantive provisions of the Di rective, he said that its general obligations 
reflected those of Article 41 of the TRIPS Agreement.   Paragraphs 1 and 2 of  Article 41 stated that 
measures, procedures and remedies shall be fair and equitable, not unnecessarily complicated or 
costly, and applied in such a manner as to avoid barriers to legitimate trade and to provide for 
safeguards against their abuse.  This kind of termi nology was also found in the Directive.  There were 
also some other general obligations that were typica l of EC legislation, for instance, the fact that 
remedies and the procedures should be ef fective, proportionate and dissuasive. 
249. The issue of evidence was very important.  No rmally in IPR infringem ent cases evidence was 
mainly in the hands of the infringer himself.  For this reason, the Directive reflected the language of 
Article 43 of the TRIPS Agreement by providing th at the right holder submit reasonably available 
evidence.  Then the court could order the production of  that evidence if that was in the control of the 
opposing party, for example, by means of sampling.  In addition to this TR IPS language, the Directive 
contained the possibility for a court to oblige th e infringer to communicate banking, financial or 
commercial documents that were under the control of the opposing party, provided that alleged 
infringements took place on a commercial scale.  The Directive foresaw, under provisional measures, 
the need to preserve relevant evidence, particularly  when there was a likelihood of irreparable harm or 
the destruction of evidence.  Obviously, if that  were the case, some safeguards should be included 
and, in fact, the Directive contained several safeguard s for the parties affected by such a measure.  For 
example, for provisional measures inaudita altera parte , i.e. without prior hearing of the other party, 
there was a list of safeguards for the opposing party. 
250. The Directive contained a provision on the right of information.  This was a familiar concept 
from Article 47 of the TRIPS Agreement, under whic h the right was optional.  However, under the 
Directive, the right of information was made compulsory in order to trace the origin and the distribution networks of the count erfeited products.  A court could or der the submission of the names, 
addresses and the quantities in question and the pr ices of the counterfeited products.  The measure 
could be addressed not only to the infringer, as under Article 47 of the TRIPS Agreement, but also to 
any other person who had been involved in the di stribution or manufacturing of the counterfeited 
products.  It foresaw the possibility of including measures taken vis-à-vis
 intermediaries, like Internet 
service providers.  Obviously, the right of informa tion, as set out in the Directive, was a strong 
measure, and the Directive also contained many rela ted safeguards, for instance, on rules on the use of  IP/C/M/52 
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  the information in civil and criminal proceedings, rules on self incrimination, and very importantly, 
also rules on the protection of confidential information or personal data. 
251. The provisional measures mirrored the provisions  of Article 50 of the TRIPS Agreement.  
But, also in this regard, the Directive went some what further.  For example, provisional measures 
could also be taken against intermediaries whose ser vices were being used by third parties to infringe 
a right. 
252. Regarding corrective measures, which partly refl ected Article 46 of the TRIPS Agreement, he 
explained they were measures taken on the merits of a case.  They could take the following forms:  recall from the channels of commerce;  and defin itive removal from the channe ls of commerce or the 
destruction, not only of the infringed goods, but also  of the materials and the implements which were 
principally used in the creation or the manufacture of these goods. 
253. Another set of provisions of the Directive rela ted to damages and legal costs.  Damages, 
which were also provided for in Article 45 of the TRIPS Agreement, guaranteed adequate damages to 
compensate for the injury to the ri ght holder.  The Directive, however, was much more detailed than 
the TRIPS Agreement.  First, it provided that the ri ght holder had the right to damages appropriate to 
the actual prejudice suffered by him as a result of the infringement, which was more or less equivalent 
to the language of Article 45 of the TRIPS Agreemen t.  However, the Directive went further to also 
include some guidelines for the courts on how to ca lculate these damages.  The EC member States' 
courts had two possibilities:  one option was to calcu late the damages on the basis of all appropriate 
aspects, such as the negative economic consequences for the right holder (e.g. lost profits and unfair 
profits made by the infringer) and other than economic  factors (e.g. moral prejudice).  In other words, 
this option would be to calculate on the basis of the real damages.  Another option was to impose a 
lump sum, to be paid on the basis of elements such  as "at least" the amount of royalties or fees, which 
would have been due if the infringer had requested authorization to use the intellectual property right 
in question.  However, it had not been the intenti on to introduce punitive damages.  That did not mean 
that punitive damages were not possible within the European Union and its member States, but only 
that this was a choice left to each individual member State to decide.  There was no obligation to do 
so, but member States could, if they so wi shed, impose punitive damages for IPR infringement. 
254. As to legal costs, which were also reflected  in the second paragraph of Article 45 of the 
TRIPS Agreement, he said that the Directive took a "the-loser-bears-it-all approach" rather than a 
"the-winner-takes-it-all approach".  This meant that  anyone who was successful in a litigation could 
claim all legal costs and other expe nses, provided they were reasonabl e and proportionate.  Similarly, 
another provision which would lead to a change in practices in several EC member States was to 
publish decisions to serve as a "name-and-shame" sa nction.  This was a compulsory regime that 
would have to be implemented by those members wh ich did not already have it.  It basically meant 
that courts could order appropriate measures for the dissemination of the information concerning the 
decision through the publication of the decision in whol e or in part in certain specified magazines or 
on the Internet.  The publication of decisions was at the request of the right holder and at the expense 
of the infringer. 
255. There was an optional provision on access to c ourts, which determined persons who were 
entitled to go to court and apply for these measures,  procedures and remedies.  This was an optional 
system and the Commission hoped that this would be  an incentive for member States to e.g. provide 
access to right management bodies.  There was anothe r provision on the presumption of authorship or 
ownership, which echoed the second paragraph of Article 15 of the Berne Convention.  There was 
also a provision that required member States to promote the conclusion of codes of conduct by private businesses, e.g. SID codes.  A further provision cr eated a correspondence network between member 
States and the Commission.  After three years there would be an evaluation on the application of the 
Directive. IP/C/M/52 
Page 44  
 
  256. He concluded by saying that the European Communities took the fight against counterfeiting 
and piracy seriously.  It was a joint responsibility shared by the Communities and its member States.  
It was also the responsibility of the civil societ y.  He believed that the Enforcement Directive 
provided an appropriate balance between all the interests involve d, the right holders, alleged 
infringers and intermediaries, and consumers. 
257. The representative of the European Communiti es reiterated that his delegation saw this 
exercise in a very constructive spirit of sharing expe riences and looking for bala nced solutions to very 
important problems like infringements.  As he had indicated before, the presentation had not 
contained any finger pointing or naming of countri es. He said he would be ready to answer any 
questions or comments in the Council's next me eting and encouraged Members who also had 
enforcement experiences, whether good or bad,  to share them with the membership.  
258. The representative of Brazil
 said that the rules of Directive 2004/48/EC might not necessarily 
represent the best solution in the area of enforcement for the whol e international community.  He 
failed to understand the compatibility of the EC prop osals with the Council's mandate as contained in 
Article 68 of the TRIPS Agreement, according to which the Council should monitor the operation of 
the Agreement, and in particular, Members' comp liance with their obligations under it, and should 
afford Members the opportunity of consulting on matter s relating to the trade-related aspects of IPRs.  
The powers to interpret and recommend actions, as pr oposed in the EC documents, could also involve 
a conflict of mandate between the Council and the Dispute Settlement Body, which was responsible, 
according to the TRIPS Agreement, for judging a llegations of non-compliance with the rules on 
enforcement of IPRs. 
259. He said that other delegations had raised th e point of whether the EC Directive had been 
notified to the TRIPS Council.  This was an extr emely important issue because Article 41 of the 
Agreement clearly stated that en forcement measures, in themselves, should not create barriers to 
legitimate trade and should provid e safeguards against their abuse.  Although the EC representative 
had said that there was no finger pointing or menti oning of Member countries, such acts had happened 
within the context of the European Communities' broader actions related to intellectual property 
rights.  Finger pointing on a unilateral basis, outside the framework of the Agreement, could be equated with creating barriers to le gitimate trade, in particular of  developing countries.  This was a 
point that should be adequately considered under the appropriate agenda item of the Council, the item 
on notifications, reviews of national implementi ng legislation, and not under the current one. 
260. The Council took note
 of the statements made. 
N. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO   
261. The Chairman  said that, at its meeting of 12 Octobe r 2006, the General Council had agreed to 
the recommendations and understandings contained in  paragraph 6 of a report from the Dedicated 
Session of the Committee on Trade and Development (WT/COMTD/SE/5) under which small economies would be allowed to use regional bodies to assist them in the implementation of their 
obligations under the TRIPS Agreement, as we ll as under SPS and TBT Agreements, and Members 
and the WTO – when providing technical and fi nancial assistance to support small, vulnerable 
economies in fulfilling their rights and obligations  under these agreements – would consider the 
advantages of providing that assistance to a regional body where one existed. 
262. The Council took note
 of the information provided.  IP/C/M/52 
 Page 45 
 
 
  O. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS  
263. The Chairman  said that the list of the 17 pending requests for observer status in the 
TRIPS Council by other intergovernmental organizations was contained in document 
IP/C/W/52/Rev.11.  He recalled that the Council had discussed these pending requests at its previous meetings, but had not been able to reach consensu s on any of them.  He suggested that the Council 
take note of this information and agree to re vert to this matter at its next meeting. 
264. The Council so agreed
. 
P. ANNUAL REPORT TO THE GENERAL COUNCIL  
265. The Chairman  said that the draft Annual Report of the Council had been circulated in 
document JOB(06)/246.  It still needed to be update d so as to reflect the discussions at the present 
meeting. 
266. The representative of Argentina  said that her delegation did not have any problems with the 
draft Annual Report, except for with the way section XIV, consisting of paragraph 17, was presented.  
In her view, section XIV incorrectly gave the impres sion that the topic was, like the other topics, a 
regular item of the agenda.  She wondered whether the heading of section XIV could be changed into 
"Other Business", under which this topic of enfo rcement of intellectual property rights would be 
inserted.  Furthermore, she did not believe that pa ragraph 17 gave a factual presentation of the status 
of the discussions on this topic.  It should reflect the fact that there was no agreement as to whether 
the topic should be a permanent item of the agenda , as well as the views expressed by the two sides on 
this matter. 
267. The representative of the European Communities  said that, in his view, paragraph 17 reflected 
the situation in a clear, precise and careful manner.  While he was aware of the differences relating to 
the matter, it was factual that the Council had take n up the item.  Given that the paragraph was purely 
factual, no conclusions should be drawn from it. 
268. The representative of Brazil , associating himself with the statement by Argentina, said that 
this item was not part of the regular agenda of  the Council and had been the object of several 
statements during the course of the present and ear lier meetings.  These statements had to be duly 
reflected in this report to the Ge neral Council.  He therefore strongly supported the idea of moving the 
item into a different section to make it clear that it had a different standing.  The proposal by Argentina to put it under "Other Business" would serve that purpose.  Additionally, it would be 
necessary for an effectual reflection of what actua lly occurred under this item to indicate the absence 
of agreement by Members regarding the continua tion of discussions on it as a TRIPS Council agenda 
item.  This disagreement needed to be reflected in  the report to the General Council in the same way 
that had happened with other non-consensual el ements that had also been reported to the 
General Council.  It was important to state that  there were divergences of views regarding the 
continuation of discussion of this item in the TRIPS Council. 
269. The representative of India
, associating himself with the statements by Argentina and Brazil, 
said that it was clear that this topic was not a regular  agenda item of the Council.  Therefore, it should 
be mentioned separately under "Other Business".  Given the discussions that Members had had on it 
not only in the present but also in previous mee tings, any factual representation should make it clear 
that there was no consensus on keeping the item on the agenda in the future. 
270. The representative of China , associating himself with the statements by Argentina, Brazil and 
India, said that enforcement issues should not en joy the same standing as other issues, because the IP/C/M/52 
Page 46  
 
  topic was not a regular item on the agenda.  Paragr aph 17 should therefore reflect the objection to the 
inclusion of this topic as a regular item on the Council's agenda. 
271. The representative of Switzerland
 said that, in his view, paragraph 17 was factual.  As to the 
concern that the topic had not been a standing ite m on the Council's agenda, he said that the first 
sentence of the paragraph made this clear by statin g that this item has been put on the agenda at the 
request of the European Communities.  He theref ore believed that its current wording should be 
acceptable to Members, considering that the report s hould remain purely factual.  He would be very 
hesitant to recommend the inclusion under this ite m of Members' substantive positions, since this 
would require that Members' positions be reflected  also under other items covered by the report. 
272. The Chairman  suggested that the Secretariat, when updating the draft, take into consideration 
the points raised in the discussions at the present meeting.  The revised draft would be faxed to 
Members, who would have one week to co mment on the revised and updated parts. 
273. The representative of th e European Communities  said that he understood that all Members 
agreed that the function of the Annual Report was to look at what had been done in the past and not 
what should be done, or what Members wished to be done, in the future.  He asked how any possible 
disagreements concerning the updated report would be solved. 
274. The representative of the Philippines  said that his delegation's views on the topic covered by 
paragraph 17 were well borne out by the records.  He was sympathetic towards the comments made 
by Argentina, Brazil and India.  The Secretaria t and the Chairman should draft the Annual Report, 
bearing in mind the compromise language suggested by some delegations and the concerns expressed 
by the European Communities.  In addition, he sugg ested that the revised draft report reflect clearly 
that, at each meeting, this item had been taken up by the Council at the request of the 
European Communities.  In his view, the current language did not sufficiently clearly reflect this fact. 
275. The Chairman  said that the revised draft would take into consideration the views expressed.  
If there were conflicting views, the challenge was to find appropriate compromise language.  If such 
language would not meet with the satisfaction of both sides, then he would need to consult on the 
matter. 
276. The representative of Argentina  said that, since this was an annual report, Members were 
faced with the challenge of making it as factual as po ssible.  She agreed with the procedure proposed 
by the Chair that the Secretariat send a revised version of the draft report, and give Members a time-limit for comments, otherwise the re port would be considered as approved. 
277. She suggested adding, after the first sentence of paragraph 17, that "some delegations had 
mentioned that there were different opinions regardin g whether this issue should be a standing item on 
the agenda".  The second sentence should be made  factual, since the language "continued its 
discussion" gave the impression that the only thing under discussion was the EC contribution.  The same applied to the language in the last senten ce "had further exchanges" .  In fact, there were 
different opinions regarding whether or not th e topic should be included on the agenda.  The 
paragraph should indicate that there was no agreemen t on the substance of the EC communications.  
The fact that other communications were also submitted should be reflected. 
278. The representative of the European Communities
 said that the paragraph consisted of four 
short factual sentences.  The first stated that this  item had been taken up by the TRIPS Council at the 
request of the European Communities.  He did not be lieve that any delegation could disagree with this 
or the other sentences.  The second stated that, at its meeting in March 2006, the Council had 
continued its discussion of the EC communication.  This did not mean that Members should continue 
such discussion.  The third indicated that, at that meeting, the Council had ha d before it two additional  IP/C/M/52 
 Page 47 
 
 
  communications, with a reference to the relevant doc uments.  This did not imply that his delegation 
should put forward more communications or that other Members should agree with them.  The last sentence merely indicated that Members had had fu rther exchanges in June 2006 and at the present 
meeting. 
279. The representative of Brazil
 said that, in fact, Members could disagree with all four sentences.  
Members could not consider sentences agreed to by  all the other Members merely because they liked 
them.  The wording "taken up" seemed to indicate a decision by the Council that this item had become 
an integral part of the Council's agenda and work  programme.  He asked the Secretariat to provide a 
more factual wording to reflect the fact that  the item was included on the Council's agenda at 
meetings in question and, at each case, this had o ccurred at the request of the EC delegation.  No 
decision had ever been taken to "take up" the issue.   Similarly, the language "continued its discussions 
of earlier communications from the European Commun ities", did not reflect the full picture of what 
had actually happened.  In fact, there had been lengthy discussions on whether this subject should 
constitute an issue for the Council on its own right.  This matter had taken most of the debate and his 
delegation had made lengthy interven tions on it.  He said that it would be useful if the Secretariat 
could read the minutes of the meeting, and the interventions made, not only by those who had 
proposed the issue, but also by those who had oppo sed discussing this issue in the Council.  Referring 
to the wording "the Council had further exchanges", he said that it was important not to mislead the 
General Council, which might get the impression that  all Members were in agreement, there was no 
opposition, the issue was "taken up", and all Members agreed that it should become a permanent part 
of the TRIPS Council's debate, since that would not be factual. 
280. The representative of South Africa , associating himself with the statements by Brazil, India 
and Argentina, agreed with the European Communi ties that paragraph 17 consisted of four simple 
sentences.  But taking them together amounted to a to tal misrepresentation of the factual situation.  If 
a clear reflection of the factual situation required adding more sentences and changing wordings, then 
it should be done. 
281. The representative of Kenya  said that, while it was true that paragraph 17 consisted of four 
short and clear statements, it would be  useful to add four or five furt her sentences in order to make the 
report more factual.  He agreed with the procedur e proposed by the Chair on how to proceed with the 
approval of the Annual Report. 
282. The Chairman  reiterated his suggestion that that the Secretariat revise the draft 
Annual Report, taking into account the comments made at the present meeting.  If there were further 
differences, he would consult with Members with the view of having them resolved so that the report 
could be circulated in time for the next General Council meeting. 
283. The Council so agreed .1 
Q. OTHER BUSINESS  
284. The Chairman  suggested that the Council agree on the following dates for the Council's 
meetings in 2007:  13-14 February ;  5-6 June;  and 23-24 October. 
285. The Council so agreed . 
__________ 
                                                      
1 The Annual Report (2006) of the Council for TRIPS was subsequently circulated in document 
IP/C/44.