RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/M/24
17 August 1999
(99-3455)
Council for Trade-Related Aspects
of Intellectual Property Rights
MINUTES OF MEETING
Held in the Centre William Rappard
on 7-8 July 1999
Chairperson:  Ambassador Carlos Pérez del Castillo (Uruguay)
Subjects discussed:
A. OBSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS
B. NOTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT
C. REVIEW OF LEGISLATION :
(i) Arrangements for the reviews of the Kyrgyz Republic and Latvia scheduled to be
taken up at the end of 1999
(ii) Arrangements for reviews after 1 January 2000
D. SECTION 211 OF THE UNITED STATES OMNIBUS CONSOLIDATED AND EMERGENCY
SUPPLEMENTAL APPROPRIATIONS ACT OF 1998
E. IMPLEMENTATION OF ARTICLE 70.8 AND 70.9
F. IMPLEMENTATION OF ARTICLE 66.2
G. TECHNICAL COOPERATION
H. REVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL
INDICATIONS UNDER ARTICLE 24.2
I. IMPLEMENTATION OF ARTICLE 23.4
J. ELECTRONIC COMMERCE
K. REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
L. ARTICLE 64.3
M. INFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
N. OTHER BUSINESSIP/C/M/24
Page 2
A. O BSERVER STATUS FOR INTERNATIONAL INTERGOVERNMENTAL ORGANIZATIONS
1. The Chairperson recalled that the Council had before it 12 outstanding requests from
intergovernmental organizations for observer status, some of which had already been pending for a
long time.  The organizations in question were listed in document IP/C/W/52/Rev.5.  The Council had
asked the 12 organizations in question to provide information relevant to the criteria contained inparagraphs 3 and 4 of the procedures relating to the grant of observer status (document WT/L/161,
Annex 3).  Responses to this request had been received, to date, from ARIPO, EFTA, the International
Vaccine Institute, the IPGRI, the OIV, the CBD Secretariat and the South Centre.  The other five
organizations had been reminded of the Council's request, but no responses had been received as yet.
On the basis of the informal consultations he had held, he suggested, while recalling that, at the last
meeting, Members had stressed the importance of finding a solution to the issue of the pending
requests as soon as possible, that the Council revert to the matter at its next meeting.
2. The Council so agreed.
B. N OTIFICATIONS UNDER PROVISIONS OF THE AGREEMENT
(i) Notifications under Article 63.2
3. The Chairperson informed the Council that new notifications of legislation had been received
from Denmark, Germany, the Kyrgyz Republic, Latvia, South Africa, Spain and the United States.
All these notifications would be made available in the IP/N/1/- document series as soon as possible.
The Kyrgyz Republic and Latvia had also notified their responses to the Checklist of Questions on
Enforcement.  These notifications could be found in the IP/N/6/- document series.
(ii) Notifications under Article 69
4. The Chairperson informed the Council that new notifications under Article 69 had been
received from Fiji, Ghana and Madagascar, which brought the number of Members that had notified
contact points under this provision to 93.  Germany, Poland and Romania had notified updated
information concerning their contact points under Article 69.  Information on these contact points hadbeen made available in the IP/N/3/- series of documents.
C. R
EVIEW OF LEGISLATION
(i) Arrangements for the reviews of the Kyrgyz Republic and Latvia scheduled to be
taken up at the end of 1999
5. The Chairperson recalled that, in February, the Council had agreed that the review of the
TRIPS implementing legislation of the Kyrgyz Republic and Latvia should be taken up at the end of
1999.  Both these Members had made comprehensive notifications of their legislation, which were
available in the IP/N/1/- and IP/N/6/- series of documents.  As agreed at the Council's meeting in
April 1999, questions on the legislation of these two Members should be submitted by 30 July 1999,both to the Member concerned and to the Secretariat. In the light of informal consultations that he had
held on the Council's meeting schedule for the autumn
1, he suggested that the responses to such
questions should be submitted by 8 October.
6. The Council so agreed.
                                                     
1 See under agenda item N below.IP/C/M/24
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(ii) Arrangements for reviews after 1 January 2000
7. The Chairperson said that, since the last meetin g, he had continued his consultations with the
aim of putting forward a concrete proposal in order to facilitate a decision by the Council at its present
meeting, in particular with regard to delegations that might volunteer to have their legislation
reviewed either in the first or second part of 2000.  He had been consulting on the basis that Membersshould think in terms of setting off the process in th e year 2000 with two review meetings in that year,
for each of which a week would be allocated an d at which the legislation of 12 Members would be
addressed.  To date, the following 12 Members had volunteered to have their legislation reviewed in
the first part of the year 2000 (June or July):  Cyprus;  El Salvador;  Hong Kong, China;  Indonesia;
Israel;  Korea;  Macau;  Malta;  Mexico;  Poland (in respect of areas for which its legislation had not
yet been reviewed);  Singapore;  and Trinidad a nd Tobago.  For the second part of 2000 (November or
December), the following 12 Members had volunteered:  Chile;  Colombia;  Egypt;  Ghana;Guatemala;  Kuwait;  Paraguay;  Peru;  Qatar;  Saint Lucia;  Turkey;  and the United Arab Emirates.
It therefore seemed that the Council could go ah ead with its review programme for 2000 on the basis
of the voluntary approach.
8. The Council so agreed.
D. S ECTION 211 OF THE UNITED STATES OMNIBUS CONSOLIDATED AND EMERGENCY
SUPPLEMENTAL APPROPRIATIONS ACT OF 1998
9. The Chairperson recalled that, at the Council's meetings in December 1998 and
February 1999, the delegation of Cuba had informed the Council of a request that it had sent to the
delegation of the United States, in accordance with Article 63.3 of the TRIPS Agreement, for detailed
information concerning Section 211 of the Unit ed States Omnibus Consolidated and Emergency
Supplemental Appropriations Act of 1998.  At the Council's meeting in February 1999, the delegation
of Cuba had reiterated this request on the floor of the Council.  The European Communities had
informed the Council that they had also approached  the United States with a request for information
on this matter.  By means of communications, dated 15 and 20 April 1999, the United States had
responded to the request from Cuba.2
10. The representative of Cuba said that the response received was not satisfactory as it was
limited to providing a copy of the legislation in question and a court decision related to it rather than
on the compatibility of Section 211  of the United States Omnibus Consolidated and Emergency
Supplemental Appropriations Act of 1998 with the TRIPS Agreement.
11. The representative of the United States said that his delegation had nothing to add to the
response it had given and was of the view that the law of the United States was perfectly consistent
with its obligations.  It had endeavoured to provide information to the delegations of Cuba and theEuropean Communities as was required of it under Article 63.3 of the TRIPS Agreement.  In
providing the legislation and the relevant court decision, it had complied with these obligations.
12. The representative of Cuba said that Cuba had repeatedly requested information on the
compatibility of Section 211 with the TRIPS Agreement under Article 63, but had not yet received a
satisfactory response from the United States.  At  the previous meeting of the Council, Cuba had
drawn attention to the time that had elapsed since the first formal request for information made by
Cuba on 2 December 1998.  To date, he emphasized, seven months had gone by and the situation, for
reasons unexplained, had remained unchanged.   The TRIPS Agreement was an integral part of the
system of basic legal rules of international trade, binding on all Members and contained an
appropriate mechanism to facilitate transparency in  the multilateral trading system. If this mechanism
was not applied, one of the pillars on which the system was built was considerably weakened, with all
                                                     
2 Documents IP/C/W/139 and IP/C/W/139/Add.1IP/C/M/24
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the consequences which it entailed, above all on the confidence which Members of this Organization
had in its rules.  No country, however powerful and wealthy, could simply ignore disciplines that had
been agreed on a multilateral basis and certainly not the norms of an agreement which, he reiterated,
did not allow for reservations, and the only exceptions permitted, those stipulated in Article 73, were
not applicable to Section 211.  Many times and in many fora, including in the UN General Assemblyand in the Association of Caribbean States, the international community had expressed its rejection of
unilateral coercive measures.  At the recently concluded summit in Rio de Janeiro, which brought
together leaders from Latin America and the European Union, participants had once again rejected
unilateral measures which had extraterritorial effect, considering that they ran counter to international
law and constituted an infringement of universally accepted rules of free trade and that they
represented a serious threat to multilateralism as a whole.  Cuba was not willing to accept arbitrary
action which constituted an infringement of multila terally agreed rules.  By bringing into force
Section 211, the United States had consciously viol ated the provisions of the TRIPS Agreement.  It
had subsequently violated the Agreement by failin g to provide detailed and accurate information on
the consistency of this new legislative provision with the TRIPS Agreement.  Cuba's request could not
be met by simply sending legal texts, sent incidentally at the last minute, approximately five months
after the first request for information had been made.  In addition, these texts could easily be found inother ways and, at any rate, provided no clarity and shed no light on the reasons why the United States
authorities had acted in the way they had by bringing into force Section 211 of the United States
Omnibus Consolidated and Emergency Supplementa l Appropriations Act of 1998.  The purpose of
Article 63 was to illustrate and show the quality and good faith of Members' implementation of the
Agreement.  That went for all Members of the Organization in relation to all other Members.Section 211 impeded access to protection in the Unite d States for applicants and owners of trademarks
and trade names, excluding them from the benefits available under existing treaties and United States
legislation itself.  The retroactive application of Section 211 had also raised issues that were difficult
to solve or understand and it hampered the exercise and maintenance of intellectual property rights.
According to Cuban experts, Section 211 was inco nsistent with the obligation undertaken by the
United States to apply the TRIPS Agreement as from January 1996, in accordance with Article 65 of
the Agreement.  At the same time, it violated such important clauses as those contained in Article 3 on
national treatment, Article 2 on intellectual property conventions, particularly with respect to the
Stockholm Act of the Paris Convention for the Protection of Industrial Property, Part III on
enforcement of intellectual property rights, in particular Article 41 on general obligations, and
Article 62 of Part IV on acquisition and maintenance of intellectual property rights and related
procedures.  Section 211 was also a further step in  the direction taken by the Helms-Burton Law.  It
seemed that now it was not only investments in property alleged to have been illegally confiscated
after the triumph of the revolution in 1959 that were subject to sanction, but also the use, assignment
or renewal of a trademark or trade name which were in exactly the same situation.  Cuba had serious
doubts regarding the provisions of Section 211, because its implications would not only have an
impact on intellectual property rights as such, but would also create obstacles to trade and foreigninvestment in Cuba.  The competent authorities in Cuba were studying the possibility of taking other
actions in pursuance of the rights which Cuba had as a Member of the WTO.  He repeated his
delegation's request to the United States to provide it with detailed information concerning the
compatibility of Section 211 with the TRIPS Agreement.  At the same time, he once again insisted on
strict and unconditional respect for the principles of the multilateral system, whose rules should applywithout discrimination and in a fair and equitable manner.  He requested the Secretariat to ensure that
this statement was included in the minutes of this Council meeting and distributed to the Members of
the Organization.
3
13. The representative of the United States said that Article 63.3 of the TRIPS Agreement
required Members to supply, in response to written requests from other Members, laws and
regulations and final judicial decisions and administrative rulings of general application pertaining to
the subject-matter of the TRIPS Agreement.  The United States had provided that information to the
                                                     
3 Subsequently distributed in document IP/C/W/146IP/C/M/24
Page 5
delegation of Cuba and to that of the European Communities, in response to the written request
submitted by Cuba, and had therefore responded in full accordance with that provision.
14. The representative of the European Communities recalled that his delegation had, on several
occasions, expressed concerns regarding Section 211 of the United States Omnibus Consolidated and
Emergency Supplemental Appropriations Act of 1998.  It had not proven to be possible to getclarification on a number of his delegation's concerns from the Government of the United States.
Therefore, the European Communities and their member States had decided to request consultations
with the United States Government under the DSU.
15. The representative of Peru said that his delega tion had been following this issue with interest
since the request made by the Cuban authorities in December 1998 to the Government of the
United States to provide detailed information about the compatibility of Section 211 of the
United States Omnibus Consolidated and Emerge ncy Supplemental Appropriations Act of 1998 with
the provisions of the TRIPS Agreement.  His delegation had analysed the communications which had
been provided by the parties and also the various statements made on the issue in the Council.  It had
come to a view that coincided with the statement made by the representative of the EC and also with
those made by the representatives of the Dominican Republic, Indonesia, Malaysia, Haiti, India,
Honduras and Venezuela at the previous meeting.  These delegations' concerns about the nature,scope and effect  of Section 211 were justified.  His delegation was particularly concerned about the
fact that Section 211 reduced the protection accorded to trade names and trademarks in the United
States for Cuban right holders and for any enterprise or business which might have relations, of any
nature, with them.  As in practical terms no protection was offered to trademarks and trade names of
the right holders concerned, their interests were affected as well as the principles of national andmost-favoured-nation treatment.
16. The representative of the United States, responding to the statement of the European
Communities, said that his delegation was of course prepared to hold formal consultations with the
European Communities on their concerns on this issue, as it had always been prepared to do
informally.
17. The Council took note of the statements made and agreed  to revert to the matter at its next
meeting.
E. I MPLEMENTATION OF ARTICLE 70.8 AND 70.9
18. The Chairperson said that answers to questions posed by the United States4 had now been
received from all four Members concerned, i.e. Uruguay5, Argentina6, Egypt7 and Paraguay.8
Uruguay had also submitted responses to the follow-up questions asked by the European
Communities and their member States9, as well as a complementary notification concerning its
implementation of Article 70.8 and 70.9.10
19. The representative of the United States thanked the delegations in question and said that, after
reviewing the answers, his delegation would be consulting the delegations individually about their
responses.
                                                     
4 Document IP/C/W/113
5 Document IP/C/W/121
6 Document IP/C/W/135
7 Document IP/C/W/136
8 Document IP/C/W/143
9 Document IP/C/W/137
10 Document IP/N/1/URY/2/Add.1IP/C/M/24
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20. The representative of the European Communities said that his delegation was glad to hear that
additional information had been received.  It would study it carefully and, if need be, get in touch with
the countries concerned.
21. The Council took note of the statements made.
F. I MPLEMENTATION OF ARTICLE 66.2
22. The Chairperson recalled that, at the Council's meeting of 1 and 2 December 1998, the
delegation of Haiti had requested information from developed country Members on their
implementation of Article 66.2 of the TRIPS Agreement.  The Council had agreed that this question
be circulated in an informal document of the TRIPS Council to all Members and that developed
country Members be invited to supply information in response.  To date, the Council had received
information on the implementation of Article 66.2 from New Zealand, the United States, Japan and
Australia (documents IP/C/W/132 and Addenda 1 to 3, respectively).
23. The representative of the European Communities announced that his delegation had been in
the process of collecting information concerning a number of incentives and instruments on the basis
of which cooperation envisaged in Article 66.2 was possible between the European Communities and,
in particular, least developed countries.  In addition to a number of programmes which his delegation
had identified, and in respect of which it would shortly provide detailed information, it had also listedinformation put together on the basis of programmes and incentives which had been made available
by a number of EC member States.
11  The information was not yet complete and after the summer
break he would be providing a complementary document, which would cover a number of
programmes provided for by all EC member States.
24. The representative of Norway said that changes at the global and national levels required new
approaches to supporting private sector development in developing countries.  The Norwegian
Government had therefore launched a comprehensive strategy for supporting such private sector
development.  The point of departure for the strategy had been the needs of the developing countries
themselves and its aim had been to forge a basis for cooperation on a developing country's own terms
and with the most efficient use of resources.  The new strategy embraced efforts for more activeparticipation in the global economy via stimulation of improved macroeconomic and legal conditions
to incentive schemes at the micro level.  An in tegrated approach implied regarding efforts at  these
levels in relation to one another and achieving better integration of bilateral and multilateral efforts.
Globalization also implied closer integration of trade policy and development cooperation policy.
Improvement of a developing country's potential for taking advantage of the WTO system in relation
to globalization was one of the objectives of the new strategy.  Improvement of legal, institutional and
political framework conditions for private sector development played a central role in the strategy.Neither national initiatives nor foreign assistance would function efficiently unless a minimum of
such framework conditions were in place.  In many developing countries, inadequate framework
conditions were perhaps the greatest bottleneck to sustainable economic development and caused
foreign capital to flow to other, more predictable markets.  The strategy for support for private sector
development defined the frameworks both for supporting authorities in establishing satisfactoryframework conditions for economic development and for more direct support for the activities of
various players in promoting productive activities in developing countries. However, it had to be
borne in mind that Norway and other donors could play only a limited role in relation to achieving
private sector development in developing countries. The most decisive factors for the potential for
private sector development in developing countries were the policies of the countries themselves, theframework conditions for local commercial and industrial activities, and international framework
conditions for private sector development.  As well as working to improve the general framework
conditions, the Norwegian Government found it necessary to support more direct measures in the
                                                     
11 Subsequently received and distri buted in document IP/C/W/132/Add.4IP/C/M/24
Page 7
form of trade-related technical assistance to the poorest countries so that they could make full use of
the current schemes.  In this connection, the WT O, in cooperation with five other international
organizations, had established what was known as th e integrated framework for trade-related technical
assistance to the least developed countries.  No rway had given its support to the joint integrated
technical assistance programme for selected Sub-Saharan African countries, which was a part of theintegrated framework.  It would be natural to continue and extend these types of measures.  Norway
had also supported the establishment of an independent legal advisory centre to assist the poorest
developing countries and others in trade disputes, so that they could better utilize the WTO dispute
settlement mechanism.  Efforts to motivate and stimulate Norwegian enterprises to involve
themselves in developing countries belonged mainly in the Norwegian Agency for Development
Cooperation (NORAD) and NORFUND.  The guarantee scheme of the Norwegian Guarantee Institute
for Export Credits (GIEK) for export to and investment in developing countries would also be animportant instrument for reducing the risk involved for Norwegian enterprises.  A publication created
to give an overview of the different channels for support from NORAD could be obtained from his
delegation.
25. The representative of Switzerland, while recalling her delegation's statement at the meeting of
the Council in December 1998 on the incentive measures offered to Swiss enterprises to encourage
them to export and encourage transfer of technology, said that the Swiss authorities were preparing a
structured document on the assistance offered and proposed to be offered to least developed and
developing countries.  This document was being drawn up and would be sent to the Secretariat for
distribution before the next meeting of the Council.
26. The Chairperson urged the developed country Members that had not yet provided information
to do so rapidly.
27. The Council took note of the statements made and agreed  to revert to the matter at its next
meeting.
G. T ECHNICAL COOPERATION
(i) Updated information on technical cooperation activities
28. The Chairperson recalled that, at the Council's meetings in February and May 1996, it was
agreed that developed country Members would annually update information on their technical
cooperation activities relevant to the implementation of the TRIPS Agreement.  In the previous years,
this updating was done in time for the Council's meeting in September.  He suggested that this year
the developed country Members update this information in time for the Council's meeting scheduled
for October.12  In addition, he suggested that the Council invite the intergovernmental organizations
observers to the Council to provide information on th eir technical cooperation activities, as they had
done in previous years.  Furthermore, the WTO Secretariat might provide information on its activities.
This would enable the Council to focus on technical cooperation at its next meeting.
29. The Council so agreed.
(ii) WIPO-WTO Joint Initiative on Technical Cooperation
30. The Chairperson recalled that the WIPO and WTO Secretariats, in July 1998, had launched a
Joint Initiative on Technical Cooperation to assist developing countries to meet their commitments
under the TRIPS Agreement by the year 2000, and that the Council had agreed, at its meeting in
December1998, to request the Secretariat to report on a regular basis on this matter.
                                                     
12 See under agenda item N below.IP/C/M/24
Page 8
31. The representative of the Secretariat said th at, since the Council's meeting in April, the
emphasis on the Joint Initiative had, of course, been on providing the technical cooperation sought.
However, a request from one additional country had also been received.  Following the general
approach agreed between the two Organizations on  how to respond to the requests under the Joint
Initiative, the International Bureau of WIPO had continued to take the lead in organizing andproviding the bulk of the assistance requested.  The WTO Secretariat had contributed to these
activities to the extent that its resources permitted.  Since the beginning of the current year, WTO staff
members had participated in seven events organized by WIPO and had committed themselves to
provide resource persons for a further six events in the coming months.  In addition, a number of
events jointly organized by the two Organizations ha d been held in order to respond to matters raised
under the Joint Initiative.  Two joint national seminars had been held recently in Latin America and a
further two joint WIPO/WTO TRIPS national seminars would take place in the autumn.  Alsorelevant for the Joint Initiative were two joint UPOV-WIPO-WTO regional workshops on the
protection of plant varieties, held in Egypt and Kenya during May 1999;  these workshops were part
of the follow-up to the Joint UPOV-WIPO-WTO Symposium on the protection of plant varieties held
in February 1999 in Geneva.  A similar joint workshop had been held in Thailand in March 1999. One
final point that he mentioned was that the technical cooperation activities of the WTO Secretariat,including in the field of TRIPS, had been increasingly constrained by a shortage of funds.  The
Secretariat was faced with virtually no funds to meet any new requests for the remainder of the
current year.  In addition to this, the fact that 90 per cent of the Secretariat's technical assistance
funding was extra-budgetary made it difficult to plan future events in an efficient manner.  These
issues had been raised by the Chair of the Committee on Trade and Development and an extraordinarysession of the Budget Committee would be held in September to discuss this matter.
32. The representative of WIPO, recalling that the International Bureau of WIPO had stated in the
past two TRIPS Council meetings that a full report  of the WIPO’s activities on TRIPS implementation
from January 1996 to March 1999 would be made available to the Council, announced that a draft had
been completed and had been submitted to the WIPO Permanent Committee on Cooperation forDevelopment for discussion.  The Permanent Committee had met from 31 May to 4 June 1999.  The
draft document, made available under WIPO symbol PCIPD/1/3, was to be revised on the basis of the
discussions at the Committee meeting and updated by the end of June, whereafter it would be
submitted to the next WIPO Assemblies in September.  The document would be available in three
languages and, some time before the Assemblies, automatically distributed to the member states of
WIPO as well as sent to the TRIPS Council.  Theref ore, she suggested, it would be more appropriate
to present the results of the document at the next TRIPS Council meeting.  For the present, sheinformed the Council that, in the area of legislative assistance, 78 developing countries and regional
offices had been provided by WIPO with draft laws on various forms of intellectual property and
84 countries and offices had received comments and suggestions on their draft legislation in the last
three years.  In total, 129 developing and least developed countries benefited from the WIPO
Cooperation for Development programmes.  She noted that the assistance provided by WIPO wasbased on requests from member states and that the adoption of comments and suggestions remained
solely at the discretion of the member states.
33. The representative of Norway wished to take the opportunity to express his delegation's
appreciation for the work that was being carried out by WIPO in the context of technical assistance
for the implementation of the TRIPS Agreement.  WIPO's efforts were impressive and its roleessential as it represented a body of competence and a pool of resources which was crucial for this
work.  He was in favour of strengthening the cooperation between the WTO and WIPO in providing
technical assistance to developing countries and believed such cooperation would provide useful
synergies.  Cooperation as under the Joint Initiative should continue between the two bodies.  He
looked forward to receiving the report from WIPO on the technical cooperation provided from
January1996 to March 1999.IP/C/M/24
Page 9
34. The representative of Venezuela thanked the Secretariat for the information provided and
expressed his Government's gratitude to the WTO and WIPO for all the assistance provided in the
organization of the seminar on intellectual property, investment and competition rules, held in Caracas
a month previously.  Commenting on the statement by the representative of WIPO, he said that
Venezuela had, at the beginning of 1999, presented to the Director General of WIPO a comprehensiveplan and programme concerning the technical cooperation that it would need.  In Caracas, a meeting
had been organized where experts from the WTO and WIPO had met with members of the
Venezuelan Congress, which had been very useful for the process of implementation of the necessary
legislative reforms.
35. The representative of Korea recalled that, at the previous meeting, his delegation had
informed the Council about plans to hold a technical cooperation symposium for developing country
members of APEC.  He reported that the Symposium had been held with success from 14 to18 June 1999 in Korea with the cooperation of the WTO and WIPO.  He believed that it had provided
good assistance to the developing country members in question in their implementation of the TRIPS
Agreement.
36. The representative of Switzerland said that her delegation wished to emphasize the
importance of the cooperation that existed between the WTO and WIPO, in particular its synergistic
effect, and suggested that it should be taken as a model for how technical cooperation should be
provided, i.e. also in other organizations.
37. The representative of Paraguay, while also expressing his delegation's appreciation for the
reports provided by the representatives of the WTO and WIPO, informed the Council that a WIPO
mission was, at present, in his country to provide assistance in explaining to the National Congress theimplications and the need for transforming the present legislation and to bring it in line with the
TRIPS Agreement.  He stressed the importance of the Agreement Between the WTO and WIPO
concluded in 1995.  He also wished to underline that the countries which had volunteered to have
their TRIPS implementing legislation reviewed in  the year 2000 would need even more technical
assistance and that both Organizations should consider this when designing their cooperation
programmes or schedules.
38. The Council took note of the statements made.
H. R EVIEW OF THE APPLICATION OF THE PROVISIONS OF THE SECTION ON GEOGRAPHICAL
INDICATIONS UNDER ARTICLE 24.2
39. The Chairperson said that, in the informal consultations that he had held, there had been
general support for requesting the Secretariat to prepare a paper summarizing the responses to the
Checklist of Questions (IP/C/13 and Add.1) on the basis of the outline contained in informaldocument No. 2104, dated 13 April 1999, on the understanding that it would be made explicit that the
paper would be without prejudice to the rights a nd obligations of Members and that its purpose was
merely to facilitate an understanding of the more detailed information that had been provided in
national responses to the Checklist.  He proposed that the Council request the Secretariat to prepare
the document on this basis.
40. The Council so agreed.
I. I MPLEMENTATION OF ARTICLE 23.4
41. The Chairperson recalled that, at the last meeting, the Council had continued its discussion of
the proposals tabled, one from the EC and their member States (IP/C/W/107) and another joint
proposal from Japan and the United States (IP/C/W/133).  Some of the questions posed to thesedelegations, or comments made on their proposals, were still outstanding.  Further, as a result of theIP/C/M/24
Page 10
Council's discussions at its meeting in February, the Secretariat had been asked to see what additional
information it could provide on national and international systems for the protection of geographical
indications relating to products other than wines and spirits.  The Secretariat had circulated such
information in document IP/C/W/85/Add.1.
42. The representative of the United States said  that, following on the interesting and helpful
suggestion made at the previous meeting that the discussion on the system to be established for the
registration and notification of geographical indications be separated from that concerning the list of
products that would actually be covered by the system, his delegation had prepared a revision of the
proposal that it had jointly tabled with Japan, so that it would only address the issue of what the
appropriate system for registration and notification should be without specifying what the product
coverage  was.  He noted that, while the proposed system would lend itself to facilitating the
protection of geographical indications of any product without creating an undue burden for either theSecretariat or for Members, the United States was not prepared at the present moment to consider
expansion of the scope and coverage beyond wines and spirits.  With a modification of the proposal
substituting the language referring to wines and spirits with language referring to covered products,
there would appear to be scope for other Members to become sponsors of the proposal.
13
43. The representative of Japan said that, as long as the proposal remained within the scope of
Article 23.4,  his delegation would be sponsoring it.  Any extension of the product coverage, he
believed, should be discussed under Article 24.2.  He invited other Members to co-sponsor the
proposal.
44. The representative of the European Communities said that his delegation continued to favour
working on both aspects, i.e. on elements that should be part of a multilateral register, including
elements of an opposition procedure and their relationship with the dispute settlement system, as well
as on the appropriateness of providing a wider coverage than wines and spirits.  On an earlier
occasion, his delegation had indicated that it was open to suggestions from delegations on the product
coverage and, at some point in the future, that issue should be addressed.  Members who considered it
important to extend the product coverage were invited to discuss this with his delegation.
45. The representative of Canada said that the amendment of the proposal from the United States
and Japan was a useful one, as it was useful to separate the issue of coverage from the creation of the
registry.  He reiterated his delegation's view that the United States/Japanese proposal warranted
support due to the fact that it was voluntary, facilitative, simple and low-cost.  These were all
important elements.  Thus, Canada would now join the proposal from the United States and Japan.
With respect to coverage, he said that, within th e context of the existing TRIPS obligations, it was
Canada's view that the only products that were currently covered were wines and spirits and the issueof whether or not such coverage should be extended to include other products was something to be
addressed later.  For the time being, the focus should be on wines and spirits.
46. The representative of Chile said that, first of all, his delegation recognized that, in accordance
with Article 23.4 and with the objective of facilitating the protection of geographical indications for
wines , there should be undertaken in the Council "negotiations … concerning the establishment of a
multilateral system of notification and registration of geographical indications for wines  eligible for
protection in those Members participating in the syst em".  In previous discussions in the Council on
this issue, the scope of a system for the notification and registration of this kind had been examined,
there being a clear divergence in the views of Member s on the type of products to be included in the
system.  To be constructive, to make headway and to build consensus on the mandate contained inArticle 23.4 and despite the fact that it had mainta ined that such a system for the notification and
registration of geographical indications should apply only to wines, his delegation would accept
                                                     
13 Subsequent to the meeting, the revised proposal was jointly tabled by Canada, Chile, Japan and the
United States and distributed as document IP/C/W/133/Rev.1.IP/C/M/24
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discussing the scope of products to be covered so as to concentrate on the establishment of the system
as such, its characteristics and its applicability to Members.  In this connection, he said that his
delegation was in a position to support the proposal that had been made by the United States and
Japan to set up a system of notification and registration for "products" - which the competent authority
would determine at a suitable time - based on the desire of each Member to participate, i.e. non-mandatory.  The purpose should be to simply facilitate the granting of protection to geographical
indications, but registration should not require protection.  It should make known the geographical
indications protected by each of the participants in the system and take into account the various
systems of protection that existed in Members and be simple and inexpensive.  Protection for
geographical indications, for his delegation, was an issue which was absolutely new, particularly with
respect to the effective scope of the provisions of the Agreement over a set of expressions relevant to
territories, regions or localities, not only with respect to exclusive rights but also with respect toaspects related to market access.  This was why his delegation would give priority to a step-by-step
approach as being a way of making progress on this su bject.  A system such as that proposed by Japan
and the United States - simple, voluntary, merely informative in nature and that would enable the
coexistence of all the different systems of protection and that constituted neither an additional
obligation for the Members nor a burden for the Me mbers or the Secretariat - was totally compatible
with the approach his country would like to adopt on  the subject.  Lastly, he said that accepting the
inclusion of the "products" concept in the study of  a proposal on the establishment of a notification
and registration system for geographical indications would in no way mean that his delegation was
supporting or promoting the extension of additional protection of geographical indications as laid
down in Article 23 of the Agreement to products other than those expressly indicated in its provisions,as had been proposed by delegations in the General Council.
47. The representative of Mexico said that for his delegation it was clear that Article 23.4,
referring to wines, accompanied by the decision taken by the Ministerial Conference in 1996 in
Singapore, based on Article 24.1, to embark on certain exercises relating to spirits, required work on
only those two types of products in the context of geographical indications.  There was no suchobligation under Section 3 of Part II of the TRIPS Agreement, as far as his delegation could see, in
respect of other products.  The Mexican delegation was interested in meeting the obligations under
Article 23.4 and the decision taken in Singapore concerning the establishment of a multilateral system
for the notification and registration of geographical indications for wines and spirits.  He therefore
believed that, before the Council proceeded to discuss what could be done regarding products other
than wines and spirits, Members would first need to comply with what was already provided for in the
Marrakesh Agreement and the Singapore Ministerial Declaration with respect to wines and spirits.When that had been done, the Council could move on to discuss whether or not it was suitable and
appropriate to consider a similar system for other products.  Mexico did not share the idea that the
Council should work on the basis of a lack of definition of the coverage of Article 23.  Apart from
that, the multilateral systems for the notification and registration of geographical indications would
vary depending on the products covered.  It was unlikely that a single system could cover all types ofproducts in the same way.  One should not assume that, one day, Members would decide to extend the
protection under Article 23 to geographical indications for products other than wines and spirits.
48. The representative of Switzerland was of the opinion that the Council was in a process of
reflection as well as working on an effective and operational system, i.e. a system which would ensure
the best possible security for rights and for business.  There was nothing against a two-track approachand these tracks need not be mutually exclusive.
49. The representative of Korea said, as a preliminary reaction, that the proposal to separate the
product coverage from the other issues under discussion seemed a practical one, which could
contribute to moving the discussion forward.  Basically, his delegation was in favour of a system that
was simple and voluntary in nature.  Conversely, this meant that it could not agree to a system thatdemanded protection of geographical indications of those Members which did not wish to participate
in the multilateral system of registration.  As far as product coverage was concerned, he reiterated hisIP/C/M/24
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opposition to any attempt to extend product coverage, as it definitely went against the present
mandate of Article 23.4.
50. The representative of Hong Kong, China welcomed the revised proposal announced by the
United States as explained verbally, but would comment on it once it was available in writing and had
been studied carefully.  At the present stage, his delegation could not support any proposal for thework relating to Article 23.4 to be extended to any product other than wines, not even spirits.  He
reiterated that the wording and coverage of Article 23.4 of the TRIPS Agreement referred only to
wines, which meant that, notwithstanding the Report of the TRIPS Council to the Singapore
Ministerial Conference, any work on spirits had to be dealt with on a separate track, i.e. different from
the work mandated under Article 23.4.  Moreover, in respect of geographical indications for wines,
there was a legal obligation under Article 23.4 to create a rules-based system with rights and
obligations and his delegation had a strong objection, in principle, to such rights and obligations beingextended to spirits.  However, it had an open mind and looked forward to receiving the revised
proposal announced by the United States on the matter.  He considered it practical and constructive to
separate the issue of scope from the work to be done under Article 23.4.
51. The representative of the Czech Republic said that, as for the implementation of Article 23.4,
which required the establishment of a multilateral system of notification and registration of
geographical indications, her delegation supported the proposal from the European Communities,
which went in the same direction favoured by her delegation.  This proposal provided an appropriate
balance between the costs and benefits of a registration system and the procedure for its operation was
simple.  One registration, say in the TRIPS Council, should suffice to provide the basis for a title of
protection in all WTO Members.   The registration system for appellations of origin or geographical
indications for wines would create the much-needed legal framework for the protection of
geographical indications in WTO Members.  Another advantage of this system was that it would also
enable the registration of other commodities, in  accordance with Article 22, without any special
modifications.
52. She also informed the Council that the Czech Republic had tabled, at the special session of
the General Council of 17 June 1999, a proposal on the issue of the scope of additional protection for
geographical indications.14  She hoped that Ministers at the Seattle Conference would agree on a clear
mandate to continue and complete the work on the extension of the scope of Article 23.  She recalled
that Ministers in Singapore had endorsed inputs from delegations on the issue of scope to be made in
the framework of the application of the provisions of the Section on geographical indications, as
provided for in Article 24.2 of the TRIPS Agreement.  Since then, i.e. for more than two years, the
TRIPS Council had been discussing the issue of expanding the additional protection to products otherthan wines and spirits and an increasing number of countries had expressed interest in expanding this
additional protection.  Some had presented similar proposals on this subject to the General Council.
However, no formal decision had been taken as yet, one of the reasons being the difference of view as
to whether the existing provisions of the TRIPS Agreement and the Singapore Ministerial Declaration
provided a sufficient legal basis for extending th e ongoing work in the Council for TRIPS to other
products.  It was for this reason that the Czech Republic had tabled its proposal, which was motivated
by the necessity to provide adequate standards concerning the availability, scope and use of
intellectual property rights in the area of geographical indications and to contribute, in this way, to
attaining the objectives of the Section on geographical indications of the TRIPS Agreement.  At the
Council's meeting in December 1998, as well as in her delegation's written submission (informaldocument No. 4486 of August 1997), a detailed position had been provided concerning the
implementation of the provisions on geographical indications and the issue of the scope of additional
protection under Article 23. She believed that the Section on geographical indications of the TRIPS
Agreement and the Singapore Ministerial Declaration provided a sufficient legal basis for continuing
                                                     
14 The proposal has been circulated as document WT/GC/W/206.IP/C/M/24
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this work with a view to expanding the scope of Article 23 of the TRIPS Agreement to products other
than wines and spirits.
53. The representative of Hungary said that his delegation would like to put forward further
arguments in favour of establishing a genuinely multilateral registration system for geographical
indications as, basically, proposed by the European Communities and their member States.  Firstly,his delegation strongly believed that the legal effects of the registration system to be set up under
Article 23.4 should not vary from Member to Member depending on their national legislation.  This
would render the whole system of multilateral registration extremely complex, if not practically
meaningless.  Secondly, as several delegations had observed, the multilateral registration system must
not impose undue administrative burdens and costs on the WTO Secretariat.  Therefore, he proposed
that the Council should consider whether it would be appropriate to involve the International Bureau
of WIPO in the management of the new system.  He noted that a precedent for such involvement,although in another area of activity, already existe d.  Under Article 3 of the 1995 Agreement Between
the World Intellectual Property Organization and the World Trade Organization, the procedures
relating to the communication of State emblems under Article 6 ter of the Paris Convention as
applicable under the TRIPS Agreement through its Article 2.1, and transmittal of objections under the
same Article, was administered by the International Bureau of WIPO. The different membership ofWIPO and the WTO had not proved to be an obstacle to the establishment, operation and
implementation of that scheme and this had led to a considerable saving of resources.  He therefore
suggested that perhaps the Council for TRIPS should ask the Secretariat to carry out an analysis of
WIPO's possible involvement in operating the multilateral register of geographical indications under
Article 23.4.  The International Bureau could also be invited to contribute to the preparation of suchan analysis. Furthermore, his delegation was interested in a thorough examination of  the relationship
between the multilateral registration system to be established under Article 23.4 of the TRIPS
Agreement and the Lisbon Agreement for the Protection of Appellations of Origin and their
International Registration.  Thirdly, he could go along with the proposals made by several delegations
that the additional protection for geographical indications under Article 23.1 and 23.2 be extended toproducts other than wines and spirits, in particular to agricultural products and foodstuffs.  On the
other hand, it was important that a multilateral system for the notification and registration of
geographical indications be established as soon as possible, because the absence of such a system
would make the reliable and consistent application of paragraphs 1, 2 and 3 of Article 23 difficult,
even if additional protection under those provisions was not dependent on notification and
registration.
54. The representative of Venezuela firstly endorsed the comments made by Mexico about wines
and spirits.  Secondly, for Venezuela, the proposal from the European Communities seemed to be a
good proposal.  Venezuela was a part of the Andean Community which had a regional system for the
protection of geographical indications, including for some spirits and possibly for wines in the future.
The proposals made by some Members to extend the level of protection in respect of other products to
the level currently enjoyed under the TRIPS Agreement by wines and spirits would be more coherentif the exception contained in Article 24.4, which currently referred to wines and spirits, was also
extended to other products.  This would make it easier for many Members, including Venezuela, to
accept the proposal from the European Communities.
55. The representative of India reserved her position on the revised proposal announced by the
United States until it was received in writing.  She reiterated that India had an interest in products
other than wines and spirits and informed the Council that India had tabled a proposal on this issue in
the General Council.  She said that India did not be lieve that the two aspects, i.e. the system to be
established under Article 23.4 and expansion of the product coverage, should necessarily be dealt with
separately.  She expressed support for the arguments presented by Hungary.
56. The representative of New Zealand wished to make a few observations in relation to some of
the previous interventions.  Before doing so, he noted that Article 23 was the result of the negotiationsIP/C/M/24
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during the Uruguay Round and that, in the context of the Uruguay Round, it had had to be recognized
that for many countries the notion of geographical indications and their protection as a form of
intellectual property was rather a novel one, and, as shown by the review under Article 24.2, was
something Members were still getting used to.  His delegation's reasons for supporting the United
States/Japanese proposal as opposed to the EC proposal, as explained at previous meetings, could besummed up best by a reference to this learning process.  Consequently, the United States/Japanese
proposal was preferable:  it was voluntary in nature and it did not attempt to add any further
obligations to those stipulated in the TRIPS Agreement.  The EC proposal constituted a WTO-plus
proposal, since it purported to add an additional layer to the already existing obligations, which were
not even five years old.  It also did not recognize the distinctness of how Members could implement
those obligations.  As some of the Members had already indicated, it was a compulsory system and
not voluntary;  one could not just opt out in order to gauge the potential scope and nature of whatsome other countries regarded to be geographical indications.  He expressed doubts about the idea of
the WTO dispute settlement system applying to the registration system and also having an opposition
procedure in place, given the resource burden, both financial and human, this would place on
Members.  Moreover, he was not sure that Members were in a position to take on board the prospect
of being taken to dispute settlement on these issues, given the state of thinking on geographicalindications. On Hungary's suggestions, he believed the proposal that the Secretariat be given the task
of carrying out some analysis and to liaise with WIPO in doing so was rather premature, certainly as
long as there was no consensus among Members on the type of system to be established.  Hungary
had indicated that the system could be along the lines of the EC proposal, but interventions earlier in
the meeting had shown that a number of Members were not comfortable with that.  Similarconsiderations applied to the proposal to involve WIPO in the administration of the notification and
registration system.  On extended coverage, he reiterated the views of New Zealand that Article 23
was limited as to the scope of products and Article 23.4 was even more limited to wines.  It was,
therefore, outside the scope and mandate of the TRIPS Council to start discussions on extending the
scope of these provisions to other products.  If Members wanted to see the coverage extended to otherproducts, they could make a proposal to this effect in the General Council, as a number of countries
had indeed done.  Discussion in the TRIPS Council could only be on issues mandated by the TRIPS
Agreement.  He disagreed with what Hungary had said in relation to the first three provisions of
Article 23.  New Zealand had fully implemented these provisions as had been illustrated in the
Council's review of national implementing legislation.
57. The representative of the Slovak Republic said that, after examination of the two proposals
tabled, the joint proposal from the United States and Japan and the proposal from the European
Communities, his delegation appreciated that both proposals were based on voluntariness and
simplicity and would not require substantial changes in Members' national legislation.  On
comparison, the proposal of the European Communities seemed to be more effective and attractive to
his delegation because it allowed the extension of th e scope of protection to products other than wines
and spirits.  His delegation was not attracted by the proposal to use systems for the protection ofcollective or certification marks to provide protection to geographical indications, given the
distinctness in his country's domestic legislation between these two forms of industrial property,
i.e. geographical indications on the one hand and collective and certification marks on the other.
58. The representative of Egypt reiterated that his delegation favoured a simple and voluntary
system without burdens or costs or further obligations on both Members and the Secretariat.  Egypt
was also in favour of additional protection under Article 23.4 being extended to other products and
had tabled a proposal, jointly with other Member s, to the General Council for extension of the
coverage of this Article to other products (document WT/GC/W/208).
59. The representative of Singapore said that Article 23.4 referred basically to wines and that, if a
case had to be made for expansion, it had to be done under Article 22.2.  He found the argument put
forth by New Zealand to be persuasive that, before one could establish a system, the Council first had
to agree on the kind of system Members wanted to have.  In his delegation's view, this should be aIP/C/M/24
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simple system which would have the least amount of burden.  As to who was to administer the
system, he expressed doubts as to whether it would be appropriate to entrust this to the WTO
Secretariat, since the WTO Secretariat was not set up to carry out this kind of administration.  As
suggested by others, WIPO was so set up, but one first had to carefully examine what was needed in
terms of administration and how this could best be achieved.  As to the system for protection, hisdelegation's experience, when working on his country's geographical indications legislation, was that
the trademark area was not really appropriate to protect geographical indications.
60. The representative of Australia believed that there was an information deficiency in this area
and there was a lot of learning to be done about existing national systems and about existing
international/regional systems.  His delegation had found the Article 24.2 review very useful in this
regard as well as the papers produced by the Secretariat.  What the review process had underlined was
the existing diversity of approaches to the protection of geographical indications and he believed thatthat was consistent with the letter of the TRIPS Agreement, which referred to legal means for the
protection of geographical indications as well as the general principles which Members were free to
choose, appropriate to their own national systems.  Some amount of concern about some proposals
relating to the multilateral register approach was, th erefore, quite fundamental in that it suggested that
a national registration scheme was, in effect, mandatory.  He pointed at problems of principle andpractical problems, especially for some of the developing countries in the Pacific region with whom
Australia was in a dialogue, who needed to implem ent their TRIPS obligations but would not be in a
position to put resources into establishing independent registers for geographical indications.  Neither
would these countries be in a position to work th rough such registration systems within the time-
frame envisaged to decide whether or not a geographical indication notified at the multilateral levelshould be given absolute protection or not.  Of course these problems should not detract from the
fundamental common interest, which was the effective protection of geographical indications at the
national level.  In discussing the multilateral arrangement, it had to be borne in mind that the ultimate
objective was to facilitate effective protection at the national level.  Effectiveness also included an
appropriate use of resources and this was the reason why an unduly burdensome approach would beunacceptable and inappropriate.  The most difficult matter in determining the scope of protection of
geographical indications at the national level wa s simply obtaining information about geographical
indications in other jurisdictions.  It was difficult to determine what geographical indications were
considered protected in other jurisdictions and the very basis of protection of geographical indications
under the TRIPS Agreement was the original protection in the country of origin.  As a facilitating
step, he supported the use of the mechanism to generate a much-needed flow of information about the
content and range of the protection of geographical indications in other jurisdictions for the guidanceand the information of authorities, especially those who were introducing systems ab initio .
61. Regarding the suggestions made by Hungary, another representative of Australia said that
Australia entirely supported the comments of New Z ealand that it seemed premature to be suggesting
a role for WIPO when Members themselves had not agreed on what registration system there should
be and that it was inappropriate to ask the two Secretariats to do any work, at the present stage, onhow the system should be administered.  Any sugge stions for going down a particular path could
prejudice the debate Members were currently having.  As regards the suggestion that, somehow,
Article 23 was not being reliably and consistently implemented by certain Members, she said that the
Article 24.2 review might help elucidate the unclear point made by Hungary.  The idea of separating
the issue of product coverage and what type of sy stem should be established was really just a kind of
administrative tool for the Council's work, allowing Members to focus on the types of obligations
being put forward under respective systems.  It did not mean that Article 23.4 had suddenly changed
and suddenly included other products.  Such a significant change to the existing TRIPS obligations
could not be simply introduced by the TRIPS Council.  Some delegations had proposed an extension
of the product coverage elsewhere in the context of future negotiations and that was where thediscussion should take place.  Australia remained opposed to an extension of Article 23 so that it
would cover products other than those it currently did.  Her delegation's preference was to have a
simple and voluntary system that provided vital information and it wished to reiterate its concernsIP/C/M/24
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about any system that required Members to lodge i ndividual objections to specific terms.  Although it
was not clear how detailed such an objection should be, if there was going to be an opposition
procedure as proposed, it could be assumed that opposition would require detailed cases to be made
out, i.e. Members would not only have to go through a resource-intensive exercise for every single
term but would also only have a year to do it, it remaining unclear what the liability or vulnerabilityunder the DSU would be if a Member would not prot ect a wide range of terms.  From Australia's
point of view, she said, Members should focus on the establishment of a system that both represented
the current TRIPS obligations and a truly workable solution.
62. The representative of the European Commun ities, commenting on the statement by Hungary,
said that a number of important issues had been raised which needed careful reflection so as to allow
the multilateral register, which Members would agree to at some stage, to provide for adequate legal
effects and to represent a system that was meaningful.  For the time being, the proposal made byJapan and the United States did not correspond to this requirement.  All Members agreed that a
system should be developed with the least possible administrative burdens and, in that respect, he
thought that it was an interesting idea to examin e whether or not WIPO could play a role in the
management of the future system, even if at the present stage Members did not have a consensus as to
how the register should look.  The reference to Article 3 of the Agreement Between WIPO and theWTO showed that there was an area where both Organizations, despite different memberships, were
working together.  It would be interesting to obtain  more information and to have an analysis of such
a possibility.  Of course, Members might wish to have a system in the WTO, as they were discussing
the issue in the TRIPS Council, but since Members were also keen to avoid duplication of work and to
put in place a system which was administratively not costly, examining Hungary's proposal might beworth considering.
63. The Chairperson, summing up, said that he thought the discussion had been an interesting and
useful one.  Whilst, in many cases, Members had repeated their views, various arguments had been
developed further and certain new points had been introduced.  The United States had announced that
a revised version of the proposal that it had tabled with Japan would be submitted shortly and itappeared that this revised proposal had four spons ors:  Canada, Chile, Japan and the United States.
Further, the idea that greater progress could be made if the Council, at this stage, were to concentrate
on the issue of the nature of the system separately from the issue of product coverage seemed to have
gained support and would seem to represent a usef ul and pragmatic avenue.  He suggested that the
Council  take note of the statements made and revert to the matter at the next meeting.
64. The Council so agreed.
J. E LECTRONIC COMMERCE
65. The Chairperson recalled that the Council had agreed, at its meeting in April, to continue its
substantive discussions on electronic commerce at the present meeting and to request the International
Bureau of WIPO to present to the Council the results of the WIPO domain name process and
information about any other relevant developments in WIPO's work of relevance to issues of
electronic commerce.  Papers on the matter received from the European Communities and theirmember States and from Australia had been circulated in documents IP/C/W/140 and 144
respectively.  Papers announced by Japan, India and the United States would be circulated in
documents IP/C/W/145, 147 and 149 respectively.  He also referred to an informal note, No. 3359 of
14 June 1999, which he had circulated and which had been discussed with Members in informal
consultations.
66. The representative of the United States said that her delegation felt very strongly that
adequate and effective protection and enforcement of intellectual property rights were key elements of
certainty in the legal environment necessary to foster the continued growth of electronic commerce.
Electronic commerce promoted growth of cultural g oods and services.  That growth was important forIP/C/M/24
Page 17
economic development of enterprises, including small- and medium-sized enterprises.  The Internet
gave those same enterprises access to a wealth of technology available from the websites of national
patent offices.  The Internet would soon make acquisi tion of rights easier as more national patent and
trademark offices would adopt electronic filing.  She believed that work in the WTO and WIPO had
already made an extensive contribution to the development and expansion of electronic commerce.The Secretariat's paper had identified relevant provisions of the TRIPS Agreement and had greatly
aided the work of the TRIPS Council on electronic commerce.  She expressed surprise about some of
the reactions, during the informal consultations, to the Chair's list of possible points for the TRIPS
Council's report on electronic commerce.  Her delegation believed that the list faithfully reflected the
discussions that had taken place at the Council's meetings.  Particularly puzzling were the
interventions concerning the point that referenc ed the TRIPS Agreement's general neutrality in
relation to technology.  That point reflected comments made by a number of Members, includingAustralia;  the European Communities;  Hong Kong, China;  and the United States.  These delegations
had supported the observations in the Secretariat's paper (IP/C/W/128) that basic notions, principles
and objectives of intellectual property had conti nued to apply throughout a century of rapid economic,
social and technological change.  In addition, her delegation and others had noted in the TRIPS
Council that the traditional objectives of intellectual property systems, as reflected in currentinternational norms, including in the TRIPS Agr eement, continued to be valid in the digital
environment.  Given the numerous instances in which the neutrality of intellectual property in relation
to technology had been commented upon in the TR IPS Council, she rejected the notion that this
concept was being imported from contexts other than intellectual property.  In her delegation's view,
the reference to neutrality merely represented a recognition that basic notions of intellectual propertycontinued to apply equally as technologies changed.  Just because the concept might exist as a
"principle" in a plurilateral agreement elsewhere, that did not mean that the general application of
other agreements could not be recognized when another medium was involved.  Given this reality, she
believed that proper and timely implementation of the TRIPS Agreement, including the enforcement
provisions, was important to ensuring that the potential benefits of electronic commerce were realized.The paper that her delegation would submit would highlight additional factors essential for the growth
of electronic commerce.  Her delegation considered it important for the TRIPS Council to continue
monitoring developments on the matter in other fora , including WIPO, and to discuss relevant issues.
67. The representative of India, while referring to  her delegation's paper on the matter, said that
electronic commerce was a new and complex area for many Members, including India.  The
Secretariat's paper (IP/C/W/128) listed very lucidly some key issues that needed to be appreciated in
the context of the applicability of existing intellectual property standards and rules to electroniccommerce.  On the basis of the paper and the discussions on the matter that had been held, she
concluded that it would be unrealistic to assume that all intellectual property-related aspects of
electronic commerce had been addressed, including the dynamism that underpinned its growth and
diversity.  Her delegation would appreciate comments from Members on its paper.  India believed that
time was needed to understand and address the concerns that had been raised in its paper and in thepast discussions, and that the debate on electronic commerce needed to be made more intensive and
wide before any views on future action could evolve.  Referring to the informal consultations held on
the matter, she hoped that, while there had been a virtual absence of consideration of the
developmental dimension in relation to intellectu al property rights and electronic commerce, the
Council would be able to take up the issue in a full  and integrated manner.  She reserved the right to
revert to any issue at a later time.
68. The representative of Australia referred to the paper his delegation had submitted on the
matter, which outlined some of the questions relating to new technologies and access to technology
and the valuable role of electronic commerce in this regard.  On the issue of technological neutrality
and some of the developmental concerns that had been raised, he emphasized that technologicalneutrality was a shorthand for recalling that the introduction of a new technology did not subvert or
overturn the existing intellectual property framework, which had been the abiding value of the
intellectual property system.  He underlined two key areas where the recognition of technologicalIP/C/M/24
Page 18
neutrality was important for his delegation.  One of them was the domain name issue and its linkage
to trademarks and geographical indications as well as names of international organizations.  This was
an area where the technologically neutral nature of intellectual property had been highlighted.  The
advent of the Internet as a means of communication and the invention of the domain name system as a
means of facilitating contact between computers did not abolish trademark law or the systems forprotecting geographical indications and names of international organizations.  There had been an
upsurge of misconceptions about this that had followed in the wake of the development of the Internet
as a global communications tool.  These misconceptions had been gradually explored and his
delegation was still in the process of determining the relevant implications.  As a general principle, it
was clear that to misuse a trademark or a geographical indication remained an infringement of the
relevant intellectual property right regardless of the technological environment in which the use took
place.  As regards geographical indications, the principles remained the same regardless of whethertheir misuse took place on a bottle or on a website.
69. Continuing, he said that the second major area his delegation wished to underscore was the
balance between holders and users of intellectual property rights.  This was an important balance that
had been struck in the copyright domain.  He referred to the valuable statements that had been made
in association with the conclusion of the WIPO copyright treaties.  He recalled that there wereimportant exceptions to copyright that allowed for limited educational use and limited use in research
institutions and the like.  The issue of technological neutrality came before the Council because of the
need to ensure that the same balance was preserve d in the digital environment.  By way of example,
he referred to the right of libraries to make limited copies of portions of literary works for educational
purposes, which applied whether copies were made by using a photocopying machine, transcribing byhand, digital scanning or by downloading from the Internet.  Consequently, recognition of the
technological neutrality of intellectual property rights was an important issue for his delegation.
70. The representative of the United States thanked the delegation of India for its paper and
wished to underline the developmental benefits of electronic commerce to which she had referred in
her intervention.  Electronic commerce promoted the gr owth of services and goods in the cultural area
and was important for any enterprise, including small-and medium-sized enterprises.  She also
associated herself with many of the remarks made by Australia, in particular on the issue of
technological neutrality.
71. The representative of WIPO thanked the Counci l for the opportunity to provide information
on the activities that WIPO had undertaken in the area of electronic commerce.  He divided his
remarks into two parts: first, the present status of the WIPO Internet Domain Name Process and,
second, the other activities that WIPO was undert aking in relation to the impact of electronic
commerce on intellectual property.  As far as the domain name process was concerned, he recalled
that the mandate for WIPO originated in the so-called White Paper of the United States Government
as published in June 1998.  The White Paper had also given birth to a process for the formation of a
new corporation to manage the technical aspects of the Internet domain name system.  The request
addressed to WIPO in the White Paper had subsequently been endorsed by the member states ofWIPO in September 1998.  Since that time, WIPO had conducted an intensive process internationally,
both through Internet-based consultations and 17 physical meetings in 15 countries.  WIPO had
received, in all, comments from 40 governments, four international organizations, 74 professional and
industrial organizations, 181 corporations and law fi rms and 183 individuals.  The final report had
been published on 30 April 1999.  Briefly outlining the findings, he said that, first of all, as a generalmatter, WIPO had found that a significant problem had been created by the intersection of two very
different systems, namely, on the one hand, the publicly managed, territorially based intellectual
property rights system and, on the other hand, the larg ely privately administered and globally present
domain names system.  WIPO had found that conflict or tension between the two systems had given
rise to a significant and wasteful diversion of economic resources through litigation and negotiation ofconflicts between intellectual property rights and domain names.  WIPO had proposed, in its Report,
four sets of measures to deal with this tension.  The first proposal was that a number of registrationIP/C/M/24
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practices ought to be introduced which would reduce the likelihood of conflict between domain
names, on the one hand, and intellectual property rights, on the other.  Without going into the details
of the recommendations, he said that, from the point of view of intellectual property, perhaps the most
important was the one that concerned the availability and the accessibility of accurate and reliable
contact details of domain name holders.  This was a matter that WIPO had found to be of concern not
only to trademark holders, who might wish to esta blish contact with the owner of a domain name in
order to discuss a possible conflict, but also of great importance to the copyright industries, as their
only means of identifying the operator of a website on which infringing content had been found was
to have reliable contact details available.  The second set of recommendations concerned the
establishment of a uniform dispute resolution system for the generic top-level domains.  WIPO had
recommended that domain name holders be required to submit, in the domain name application, to an
administrative procedure at the request of any third party which alleged that the domain name hadbeen registered and was being used deliberately and in bad faith in abuse of trademark rights.  The
third set of measures concerned famous marks, where it was recommended that a procedure be
introduced pursuant to which the owners of mark s that were famous on a widespread geographical
basis, and across classes of goods, could obtain an exclusion which would prohibit any third party
from registering the mark as a domain name.  The final recommendation concerned the possibility ofthe addition of new, generic top-level domains.  WIPO had been asked to evaluate that possibility
from the perspective only of intellectual property and there were many other perspectives that one
could bring to bear on the question.  As far as intellectual property was concerned, WIPO had
recommended that, if the recommended improved registration practices, uniform dispute resolution
procedure and exclusion mechanism for famous marks were introduced, it would be unlikely thatundue harm would be done to the interests of intell ectual property by the addition of new generic top-
level domains, provided that any such new generic top-level domains were added in a controlled
manner.  Finally, on the general subject-matter of the report, it had been noted that there were a
number of outstanding issues that WIPO considered needed to be addressed in the future.  Some of
these had already been mentioned in the Council by  Members.  Very briefly, they related to the
protection of the names of the United Nations and other international organizations, which were
already protected against trademark registration under Article 6 ter of the Paris Convention, the
protection of geographical indications and persona lity rights against violation through domain name
registrations, and the development of a consensus against the appropriation as domain names of
international non-proprietary names for medical subs tances ("INNs") , similar to the consensus that
existed against the registration of such names as trademarks.  The INN system was administered by
the World Health Organization and, under it, in order to facilitate the identification of medicines bypatients when they crossed national borders, these names were preserved from proprietary
appropriation.  The Report of the WIPO Internet Domain Name Process had been submitted, as
mandated, to the Board of the Internet Corporation for Assigned Names and Numbers ("ICANN"),
and had been considered by that Board at its first meeting in Berlin at the end of May 1999.  The
action the Board had taken in respect of it was, first, to note that, as a result of the publication of theInterim Report of the WIPO Process, most of the WIPO recommendations in respect of registration
practices had already been adopted;  secondly, the question of a uniform dispute resolution policy had
been referred to what was called the Domain Name Supporting Organization, an organization
reporting to the ICANN Board, for consideration and recommendations to the Board by 31 July 1999.
The Board would then take a decision on a policy for a uniform dispute resolution procedure at itsmeeting to be held in Santiago, Chile from 24 to 26 August 1999.  WIPO regarded this question as
urgent because ICANN was, at the same time, accrediting new registrars to provide registration
services on a wider geographical basis and these registrars were being asked to formulate a dispute
resolution policy.  WIPO considered that it would be a missed opportunity if these registrars came on-
line without a uniform dispute resolution policy, since at a later stage it would be very difficult toestablish uniformity.  WIPO was working with a number of those registrars, with a view to their
voluntary adoption of the WIPO recommendations on this question.  The recommendations
concerning famous marks and the new generic top-level domains assumed operational importance
only when the ICANN Board started to consider whether to add new generic top-level domains,
which it was not considering for the moment. The Board had referred these recommendations to theIP/C/M/24
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Domain Names Supporting Organization, to report back after the August meeting of the Board in
Santiago.
72. Moving on to other issues besides domain names, he indicated four areas of activity of WIPO
in relation to electronic commerce.  The first area concerned activities that WIPO was undertaking in
order to broaden participation in discussion on electronic commerce issues in the intellectual propertyarea and to define the issues that needed, or that were appropriate, to be addressed internationally.  In
this respect, WIPO had conducted regional consultations and was planning to conduct further such
consultations in the coming months.  WIPO planned to hold an international conference in Geneva
from 14 to 16 September 1999 which would deal, it hoped, with many of the issues of intellectual
property in the electronic commerce area and would assist in the further definition of those that
needed to be considered.  The second area was the area of completed work.  This concerned the two
copyright treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty,
which had been concluded in December 1996.  As was known, 30 accessions or ratifications were
required to bring those two treaties into force and, at the present time, there were seven for the WIPO
Copyright Treaty and five for the WIPO Performances and Phonograms Treaty.  One of the areas of
WIPO's activities was putting in place a plan to encourage accession to those two treaties to bring
them into operation.  The third area of work was wh at he would call work in progress.  This had two
components:  a legislative or normative side and a project side.  As far as the legislative or normative
side was concerned, there were three sets of activities.  The first was the extension of the framework
established by the two WIPO copyright treaties to audiovisual works and, eventually, to broadcasters'
rights.  Several meetings had already taken place and the next would take place in the middle of
November 1999.  There was also the outstanding que stion, which had been under discussion generally
at WIPO for several years, of a multilateral instrument for the sui generis  protection of databases.  At
the moment, the general attitude that seemed to be favoured by member states was simply to watch
what developments took place on the national level before proceeding to resuscitate any debate on the
international level.  The final area, which again was a watching area, concerned the area of on-line
service provider liability, where legislation had been introduced, as was known, in the form of theDigital Millennium Copyright Act in the United States and which was under discussion in several
other countries or regions.  Again, WIPO was watc hing to see whether member states wished the
debate to be translated onto the international le vel. Leaving the legislative or normative work in
progress, he briefly mentioned three project areas of work in progress.  The first was the provision of
services for on-line dispute resolution, which initially had been addressed as a result of the Internet
Domain Name Process, but which WIPO later felt was also applicable in a number of other areas.
This was because, under the general policy of private sector lead in many electronic commercedevelopments, WIPO felt that there was a growing gap and need for a dispute resolution system that
was simple and that dealt with some of the aspects of the digital consumer economy, where the value
of transactions certainly did not justify recourse to litigation.  The second project area, which was
only just commencing, concerned the digital exploitation of museum images or cultural heritage,
which WIPO felt to be of great value, in particular to the developing countries as a means of using the
intellectual property system and electronic commerce, to receive a return on the exploitation of
cultural heritage.  The third area of project activity concerned the interoperability and interconnection
of the collective management systems of the real world in a digital environment.  Discussion in this
area, too, had only just got under way.  The final area that was being watched at WIPO concerned a
number of horizontal issues that had an impact on intellectual property in the context of the digitalenvironment, but which were not necessarily best dealt with specifically in the intellectual property
area or even by WIPO.  One of these issues, for example, was the question of the validity of electronic
contracts, which was of fundamental importance for on-line licensing of intellectual property rights.
Considerable work had been done within UNCITRAL on the subject and a model law on electronic
commerce had been developed by it.  It nevertheless had a great impact on intellectual property, aselectronic commerce in software, music, printed texts and films took root.  A second such example
was the whole question of jurisdiction or, more particularly, applicable law and forum.  This was,
obviously, a question which was much larger than intellectual property alone, but of vital significance
to intellectual property.  A third such issue had be en the issue of enforcement, where certain specificIP/C/M/24
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measures had been dealt with in the intellectual property context, in particular in the WIPO copyright
treaties, but where, more generally, there was still a problem that needed at least to be monitored.
73. As regards the Council's report to the General Council, due by 30 July 1999, the Chairperson
said that, following the informal consultations th at he had held on the matter, the Secretariat had
circulated a draft report in informal document No. 4012 of 8 July 1999.  He suggested, after adiscussion on the draft, that a revised version of it would be circulated, reflecting the comments made
in the course of the discussion.  This revised draft would, if necessary, be further fine-tuned on the
basis of further comments that might be received and would then be forwarded as a progress report
from the Council for TRIPS to the General Council by 30 July 1999.15
74. The Council so agreed.
K. R EVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
75. The Chairperson recalled that the Council had se t in motion an information-gathering process
on the matter of Article 27.3(b) at its meeting in December 1998.  As a result, information as
requested by the Council had been received from some 30 Members as well as from the FAO, UPOV
and the Secretariat of the Convention on Biological Diversity.  At its meeting in February 1999, the
Council had agreed that the Secretariat be asked to  compile, in an informal note, the information
received from Members in the form of a structured summary overview.  This note had been circulated
in informal document No. 2689 of 7 May 1999.
76. The representative of the United States said that the synoptic table circulated by the
Secretariat was a useful tool for this review and it could serve as the basis on which Members would
organize their discussion of the provisions of the Article.  His delegation was pleased to see that the
information submitted revealed that there was a high degree of consistency in the nature of intellectual
property protection for subject-matter identified in Article 27.3(b) and, in particular, forbiotechnological innovation.  This indicated that one of the principal objectives of the TRIPS
Agreement was being achieved, i.e. the reduction of distortions to trade caused by significantly
different levels of protection for intellectual property in WTO Members.  The table facilitated direct
comparison of the manner in which WTO Members had implemented Article 27.3(b), since it
provided a picture first of what, if any, exceptions from patentability Members had included in theirpatent laws in relation to plants and animals.  Second, the table enabled Members to see the nature of
the protection provided for microorganisms and for non-biological and microbiological processes.
Finally, the table enabled Members to determine the protection provided for plant varieties, including
sui generis  systems, that were being used to provide such protection.  Using the table, Members could
draw a number of conclusions. Reviewing the responses to questions 1 and 2(a), for example,indicated that, while approximately half of the respondents to the survey had exceptions in their laws
for plant and animal varieties, nearly every Member that had responded provided some form of patent
protection for plant and animal inventions. Every responding Member provided patents for
microorganisms that were novel, involved an invent ive step and were industrially applicable. The
table also provided useful insights into systems used for the protection of plant varieties, which was
required under Article 27.3(b). His delegation noted that responding WTO Members provided
protection for plant varieties primarily through a system that was based upon the InternationalConvention for the Protection of New Varieties of Plants ("UPOV"), while some responding
Members, including the United States, also provided protection for plant varieties through their patent
systems.  The majority of those responding had indicated that their plant variety protection system
complied with the 1991 Act of UPOV.  He also noted that the majority of those following the
1991 Act had elected to implement the permitted limitations on the scope of the plant variety right to
                                                     
15 A revised draft was circulated on 20 July 1999 (informal document No. 4289) and a text with further
modifications on 28 July 1999 (informal document No. 4527).  The agreed progress report was circulated on30 July 1999 as document IP/C/18 .IP/C/M/24
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allow farmers to harvest seed from crops grown on  their own holdings for reseeding on those holdings
and to allow others to use protected varieties fo r experimental and plant breeding purposes.  His
delegation also wished to point out that the United States regarded properly implemented plant variety
protection systems consistent with the 1991 text of UPOV to be effective in the TRIPS context.
77. Continuing, he said that, in earlier meetings, some Members had suggested that the discussion
of Article 27.3(b) should also include the implications of patenting life forms.  His country's
experience illustrated the benefits that could in fact be derived from patenting life forms.  In the
nearly two decades since the United States had provided patent protection for life forms, a new
industry had grown up that could provide innova tive solutions to long-standing and unmet health
needs, to a wide range of industrial capacity, and to promotion of improvements in agriculture.  The
most striking thing about this industry was that  the innovations were coming from many different
sectors of the United States economy.  Nearly 5 per cent of all patents granted by the United StatesPatent and Trademark Office last year, for example, had been granted to universities and a
disproportionate percentage of those patents were  for biotechnological inventions.  These patents
enabled universities and small biotechnological start-up companies to leverage their innovative
competence to join with commercial partners to br ing advances in biotechnology to the market.  The
result was a revenue stream in the form of royalties that could be reinvested in further research anddevelopment.  The biotechnology industry had produced hundreds of highly accurate tools for
diagnosing and treating diseases and other physical afflictions.  Over 350 new biotechnological
pharmaceuticals and vaccines were in clinical trials today in the United States and there were
hundreds more in the early development stage.  The biotechnology industry was making huge strides
towards reducing the dependence of farming on chem ical pesticides and herbicides and, along with
plant breeders, was helping to develop new crops with higher productivity and yields.  His delegation
firmly believed that effective and comprehensive protection for biotechnological innovation had been
a crucial factor in the development and success of this industry.  He saw the same prospect for such
economically and socially beneficial development in all WTO Members.
78. The representative of the European Communities said that his delegation had also looked
carefully at the synoptic tables that the Secretariat had put together, summarizing the many responses
that had been provided by WTO Members in the context of the exercise of reviewing Article 27.3(b)
of the Agreement.  His delegation's general assessment of  the synoptic tables was that they showed a
large degree of similarity with regard to the actu al implementation of Article 27.3(b) in national law
by WTO Members.  He wished to highlight this degree of similarity or consistency with a few
examples.  First, in the area of patents, the majority of the responding Members had legislation that
provided for patent protection of entire plants and animals if they fulfilled the requirements ofpatentability.  Secondly, still in the area of patents, the replies also indicated that the use of
exclusions, such as for ordre public , had been very limited and had never been the basis for justifying
broad exclusions from patentability.  The third point on patents was that all responding Members
appeared to have legislation providing for patent protection of microorganisms.  Fourth, all
responding Members excluded essentially biological processes from patentability as they did not fulfilthe patentability requirements, in particular the novelty requirement.  The last point on patents was
that all responding Members required the disclosure of the inventions.  On plant varieties, a few
examples could also be given.  For example, almost all responding Members provided for a
sui generis  system of protection.  The only exception wa s Zambia, but it was in the process of doing
so.  Most Members had acted upon UPOV 1991 provisions.  In practice, this meant that all Membersagreed that plant variety rights were not an obstacle to further research and development.  It also
meant that responding Members considered that the optional exception for farmers to use, for
propagating purposes on their own holdings, products of their harvest was attractive and sufficient to
create a balance between users and owners of rights in new plant varieties.  These were a few
examples that showed how useful this exercise had been.
79. The representative of Switzerland, on behalf of all the Ministries in her country concerned
with this exercise, said that the work of the Secr etariat deserved a special compliment because of theIP/C/M/24
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complexity of the subject.  In fact, to convey such  vast information in a digestible manner so that it
could be consulted easily, yet without changing  the answers provided by Members, was a very
difficult task.  The reading of the document revealed some differences among Members but that was
not surprising, even for the so-called developed country Members, because the subject was still
relatively new.  However, it was remarkable that a trend of consistency was developing in a greatnumber of Members and with regard to a great number of points.  She did not wish to repeat the
points made by the two preceding delegations.  As to the effective sui generis  system of protection,
mentioned in Article 27.3(b), the table revealed that the effective sui generis  system was the one
established by UPOV.  Most responding Members had adopted the 1991 Act.  Some were still linked
to the 1978 Act but these were in the process of ratifying the 1991 Act.  She added that, her country
being particularly pro-active in the field of biotechnology, the document was of great importance.
80. The representative of India, while thanking the Secretariat for the synoptic tables, wished to
address the question of patenting life forms, especial ly two dimensions thereof.  First, there was the
ethical question of the extension of private ownership to life forms.  It was not denied that a certain
level of protection for the development of new and improved versions of plants might be necessary to
spur research for the benefit of mankind and to address food availability concerns.  This might be
taken care of by plant variety protection.  To extend this logic beyond plant varieties was fraught withethical, moral, social and even economic conseq uences, which could not be addressed through the
existing intellectual property system.  She wondere d what would happen, for example, if a firm were
to patent a particular tribe for having discovered and isolated genes responsible for strength, immunity
from disease, ability to withstand natural climatic pressures or any other characteristic.  Patenting of
life forms marked a significant further step in the larger process of the commodification of life and thereduction of the value of life and nature to the merely economic.  Intellectual property regimes
generally made no allowances for the protection of communal rights and intergenerational innovation
which were the hallmark of many developing country cultural traditions.  Patenting also resulted in
increasing privatization which shifted scientific research away from its traditional values of openness
and discussion towards confidentiality and secrecy resulting in strengthening the power of corporateinterests while marginalizing questions of human welfare and social justice.  Technological
development in this area was moving at an unprecedented pace and it might be necessary to stem any
privatization of such knowledge for the larger benefit of mankind.  Patents also had the danger of
economic motives superseding ecological motives.  Already there were fears of environmental harm
being caused by biotechnology growth without establis hing the appropriate biosafety rules and control
systems.  Ideally, it might be argued that patents should not be granted on life forms under national as
well as international laws.  If, however, a case was made for certain economic advantages of suchpatents and the exceptions available in Article 27.2 were considered adequate to deal with ethical and
moral issues, the same needed to be examined fully.  Even then, the question of a forum for such
permission to grant patents in national laws had to be addressed and the WTO as a forum might be
appropriate only if significant trade effects were adduced.  The second dimension related to the use of
the concept of intellectual property protection as understood in the industrialized world and itsappropriateness in the face of the larger dimension of rights on knowledge, their ownership, use,
transfer and dissemination.  International intellectual property regimes recognized formal systems of
knowledge only.  Informal systems, such as the shrutis  and smritis  in the Indian tradition, and
grandmothers' potions all over the world got scant recognition.  Of course, there was a problem in
identifying or assessing these latter forms of intellectual property.  There was also a problem in givingvalue to wealth that was not tangible, not documented, and not generally commercially exploited.
Although intangibles were protected in legal regimes, including patents, and even goodwill, that was
possible only because they were found assessable as to their commercial value.  As to natural wealth
in biodiversity, as acquired through traditional knowledge of indigenous communities, such an
assessment was very difficult.  In addition, there was the problem that traditional knowledge systemswere not reward-oriented.  In ancient India, t eachers did not demand fees.  A grandmother did not
demand a reward for her potions.  The tribal knowledge of the benefits of a herb travelled within a
community by word of mouth or by practice.  No pr operty right was sought on it.  All such knowledge
was alien to the existing intellectual property regime s.  To create systems that failed to address thisIP/C/M/24
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issue could have severe adverse consequences on mankind and, some said, even lead to its extinction.
She said that clearly there was a case for re-examining the need to grant patents on life forms
anywhere in the world.
81. Continuing, she also wished to briefly men tion that it should be borne in mind that the
provisions of Article 27.3(b) themselves must be reviewed according to the plain reading of the text inthe TRIPS Agreement and that it might be useful to have a discussion on how the Council would
address this issue.  Her delegation would like to submit a proposal considering biodiversity aspects.
The Preamble to the TRIPS Agreemen t recognized intellectual property rights to be private rights.
Article 27.3 incorporated specific obligations on the issu e of patenting life forms to the extent that it
obliged Members to provide product patents for microorganisms and for non-biological and
microbiological processes.  In addition, Article 27.3(b) stipulated that all Members should provide for
the protection of plant varieties either by patents or by an effective sui generis  system or by a
combination thereof.  The Convention on Biological Diversity ("CBD"), on the other hand, in its
Preamble, categorically reaffirmed that States had sovereign rights over their biological resources,
recognized the desirability of sharing equitably th e benefits arising from the use of those resources as
well as traditional knowledge, innovations and practices relevant to the conservation of biological
diversity and its sustainable use and acknowledged that special provisions were required to meet theneeds of developing countries.  These two internatio nal agreements were intrinsically linked with one
another.  It was important to study the relationship between the provisions of the CBD and those of
the TRIPS Agreement and suggest reconciliation of any contradictions therein within the overall
objective of conservation of biological reso urces with sustainable development.  The CBD
unambiguously stated that the authority to determine access to genetic resources rested with nationalgovernments and was subject to national legislation.  It also stated that access, where granted, should
be on mutually agreed terms and should be subject to the prior informed consent of the resource
provider.  It also enjoined the international comm unity to respect, preserve, and maintain knowledge,
innovations and practices of indigenous and local communities and encouraged the equitable sharing
of benefits arising from their utilization.  The Co nference of the Parties to the CBD had initiated a
work programme to give effect to these provisions.  Sustainable development being an objective of
the WTO also, it became incumbent upon Members to examine ways and means to harmonize the
approaches to utilization of living resources in the CBD and in the TRIPS Agreement.  It was
proposed that this objective could be operationalized if an obligation was imposed in the TRIPS
Agreement to share benefits through material tr ansfer agreements and transfer of information
agreements.  A material transfer agreement would be necessary where the inventor wished to use the
biological material and a transfer of informati on agreement would be necessary where the inventor
based himself on indigenous or traditional knowledge.  Such an obligation could be incorporated
through inclusion of provisions in Article 29 of the TRIPS Agreement, which dealt with conditions on
patent applicants, requiring a clear mention of the biological source material and the country of origin.
This part of the patent application should be open to full public scrutiny upon filing of the application.
This would permit countries with possible opposition claims to examine the application and state theirclaims well in time.  At the same time, domestic laws on biodiversity could ensure that the prior
informed consent of the country of origin and the knowledge holder of the biological raw material
meant for usage in a patentable invention would enable the signing of material transfer agreements or
transfer of information agreements as the case might be.  Such a provision in domestic law should be
considered compatible with the TRIPS Agreement.  She said that this proposal would be circulated byway of a paper so that Members could have time to react to it as well as to reflect upon how the
Council could consider such a proposal in the context of the review of Article 27.3(b).
82. The representative of Singapore said that it was interesting that the list of responding
Members included developing as well as developed countries.  The area to which the information
provided related was a difficult one and, obviously, gave rise to a variety of controversial issues. Inhis delegation's view, the work done by the Secretariat was extremely useful because it gave an
indication as to how Members with different  levels of development had tried to address these issues.
Of course, this did not mean that what Members had done was the perfect solution. But the synopticIP/C/M/24
Page 25
table was important because it helped to see how to move forward. As regards the conclusions made
by the delegations of the United States and the European Communities, obviously there could be
different viewpoints since there were different dimensions to the problems involved.  There were the
economic dimensions, the ethical dimensions, the dimensions about sovereignty over natural
resources, the dimensions about traditions in regard to areas of medicines and natural resources, andso forth. The information contained in the tables would help Members in their attempts to see the
middle point between the steps taken by countries that saw this as the area of the future and other
countries which viewed this development in a different perspective.  No one could deny that research
and development in the area of microorganisms, genetically modified organisms and genes had
moved and was still moving forward a great deal . The question was how one would deal with the
difficulties that had arisen.  In many parts of the world, crops were being produced at a much more
productive rate as a result of research done in relation to genetically modified organisms.  Illnesseswere being diagnosed, treatments were being prescribed, again as a result of research.  It would be
difficult to take the line that one could stop this movement forward, in terms of human development.
However, these developments challenged strong beliefs and had an important impact in other areas of
great importance to countries, such as those defined by India.
83. The representative of Australia said that his delegation had found the process of collecting
and analysing differing national experiences very productive and very useful.  Article 27.3(b) was a
negotiating compromise and contained some flexibility as a result of that. It was clear that Members
had chosen to exercise that flexibility and his delegation fully respected that.  At the same time, as
expected, there was a certain convergence of practices, which was to the benefit of all Members.
Australia was, at best, a middle-ranking economic player and in some areas of technology it waseffectively a developing country.  His country was and remained dependent on imported technology,
especially biotechnology.  At the same time, Australia was rich in biodiversity and it had been blessed
with the heritage of a rich store of indigenous knowledge.  Therefore, his delegation was confronted
by many of the policy concerns that were often highlighted in discussions of this nature.  There was
an active process of review of biotechnology policy in a very general sense with a concern for thesocial and economic benefits and environmental consequences as well.  This had involved a careful
look at the intellectual property system and, as the Secretariat's compilation demonstrated, Australia
had a reasonably broad scope of protection of biotechnology in its patent system.  Furthermore,
Australia had recently introduced a plant variety system in conformity with the latest UPOV version.
The result of this review process, which was taking place at many levels, had been a conclusion that
an intellectual property system was indispensable in deriving the expected benefits from the growth of
biotechnology as a key enabling technology that would be applied in sectors as diverse as informatics,mining and agriculture.  But there had been concerns raised about the capacity of Australia to use the
system effectively as well as whether the system could be used to ensure equity.  There were also
concerns about the possible anti-competitive use of intellectual property rights.  All these were policy
concerns that needed to be addressed squarely.  But they would not be addressed by adjusting the
scope of patentable subject-matter.  This was one very clear conclusion his delegation could draw.Those concerns would be addressed by a concerted domestic and international effort to upgrade the
sort of practical skills and awareness that were necessary to derive the expected benefits from
intellectual property rights in this area.  Those skills extended to the practical skills required to enter
into, for example, negotiations on licences or material transfer agreements.  This was an important
area where concerted international effort could only yield dividends for all parties concerned.However, that sort of activity, as important as it was, was not catered for by the subject-matter of the
specific Article Members had under review.  Concerns about the potential misuse of intellectual
property rights to achieve monopolistic outcomes we re of concern to Australia, but were already
catered for in a different section of the TRIPS Agreement.  There was a clear signal that countries
were at liberty to take appropriate steps to address potential abuses of the intellectual property system.His delegation would also stress the limited impact of the patent system in the broader areas of
concern that had been identified in this regard.  Members would have to bear in mind, firstly, that
patenting was generally only available for novel and non-obvious inventions.  It did not give access to
existing bio-genetic resources.  It did not allow re-monopolization of material in the public domain.IP/C/M/24
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Moreover, the patent system had worked undeniably effectively also in the biotechnological area, in
disseminating technology, in moving people away from confidentiality and trade secret arrangements,
forcing the publication of the state-of-the-art research in this area on a global basis.  Most inventions
were only covered by patents in a handful of countries, a small minority of WTO Members, but the
technology in question was available to researchers in all Members.  If a patent applicationillegitimately claimed existing public domain material, then it could be successfully opposed.  But
more than that, the benefits of research, i.e. the benefits of technological development in this area
reflected in a patent application, were available to all.  If Members did not like some aspects of
bioengineering, for example if they did not like human cloning, the appropriate approach was to
control that directly.  If an analogy could be drawn, no Member engaged in arms control by discussing
whether the scope of patentability should include weapons or not;  it was done by controlling
armaments.  Equally, if there were concerns about the environmental impact of certain technologies,then the direct approach was having the appropriate environmental controls.  The most important
aspect of the domestic considerations of these issues, in his country, had been skills promotion. His
delegation was committed to working with WTO Members, and especially with Australia's partners in
its region, to develop the sort of practical skills that were necessary to derive the expected benefits
from the system.  His delegation acknowledged that not all countries were able to take full advantageof the system, as Australia was not able to do so.  In a recent regional training programme on
biotechnology and intellectual property rights that his country had conducted, Australia had reassured
its regional partners that Australia itself had a long way to go to make this system effective, but took
the view that there was no reason for it not to make an  energetic start in the process and not to pull out
its resources as far as possible.
84. The representative of the Philippines, while agreeing that the synoptic table provided a
valuable compilation of factual information, reiterated that the work under Article 27.3(b) was not just
limited to gathering information on what existed.  The review concerned policy issues and, to that
end, various delegations had expressed certain policy co ncerns.  It was, as India had said, a review of
the substance of Article 27.3(b), and not just a review of how it had been implemented.  Hisdelegation manifested its hope and expectation that, at the end of the day, Members would be able to
decide on the modalities for the submission of possible amendments to Article 27.3(b).
85. The representative of Malaysia said that his delegation looked forward to studying the paper
announced by India. He urged the TRIPS Council to use India's paper as a basis for all further
discussions on the review of the provisions of Article 27.3(b) regarding substance and policy issues.
86. The representative of Pakistan said that his delegation was amongst those which believed that
there were two aspects of the review exercise.  The first aspect was how the Article was being
implemented.  This aspect was partly covered by the note prepared by the Secretariat, which note was
being examined by his authorities and promised to be very useful when his country was ready to
undertake the implementation of the Article.  Secondly, like many others, his delegation considered
that the review entailed an examination of the broader aspects of Article 27.3(b).  Two such aspects
with which his delegation was concerned had been highlighted by the Indian delegation, i.e. theethical dimensions of patenting life forms and the relationship of Article 27.3(b) and the Convention
on Biological Diversity.  These aspects had to be considered further. A few other aspects had been
pointed out by the delegation of Singapore and his delegation would study them.  He proposed that,
once Members had had the chance to consider the detailed submission by India and to reflect on the
comments made by Singapore and Australia, the Council should consider these matters in furtherinformal consultations and see how it could address the issues and proceed to incorporate some of the
concerns in a Council decision.
87. The representative of Egypt recalled his dele gation's statement at the previous meeting that
Article 27.3(b) contained a larger issue than merely information gathering.  He thanked the Indian
delegation for its useful proposal, which contained important elements on the reconciliation betweenthe provisions of the TRIPS Agreement and those of the Convention on Biological Diversity toIP/C/M/24
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achieve the equitable sharing of benefits and prior informed consent.  His delegation believed that the
review of Article 27.3(b) provided the opportunity to address the elements of the Indian proposal.
Therefore, the TRIPS Council should allocate enough time to analyse and discuss this issue in order to
reach a decision on the amendment of this Article.
88. The representative of Bolivia, thanking India for its proposal, said that her country was also
rich in biodiversity and had recently joined the 1978 UPOV Act.  With regard to the patenting of life
forms, great concern had been expressed in several WTO Members. She stressed the need for
examination of the relationship between the Convention on Biological Diversity and the TRIPS
Agreement.
89. The representative of Kenya noted that most responding countries were from the developed
world.  He thanked the Indian delegation for its useful proposal and looked forward to receiving a
copy of the paper.  He supported those delegations which had stated that the review of Article 27.3(b)should not cover the implementation of the Article only, but had to go beyond that.  The Council
would have to analyse the provision's link to other issues, such as those relating to biodiversity,
farmers' rights and communities' rights.
90. The representative of Brazil expressed his interest in the proposal announced by India.  His
delegation thought that, in the negotiations leading to the review of Article 27.3(b), the relationship
between the Convention on Biological Diversity and the TRIPS Agreement had to be analysed
further. The interest of Brazil in this negotiation was clear.  It had recently acceded to the 1978 Act of
UPOV and there was intense legislative activity on the access to resources of biodiversity as well as
regarding traditional knowledge.
91. The representative of Australia underlined that his delegation had an open mind as to the
scope of the review and that a broader debate on the matter would be useful.  However, he wished to
stress that the discussion should not be founded on the assumption that there were conflicts to be
solved, or that there was a need for reconciliation between the TRIPS Agreement as it stood and other
international agreements.  On the contrary, his delegation saw, at a practical level, a great potential for
important synergies.  Its experience with the issues was that effective use of the intellectual propertysystem was potentially a most important tool for benefit sharing.  After all, the intellectual property
system generated the benefits that needed to be shared fairly, including for the protection of
biodiversity.
92. The representative of Honduras said that the Indian proposal was of vital importance in many
respects and suggested that the Council take it as a basis for its further discussions.
93. The representative of Costa Rica said that the Committee on Trade and Environment had
requested the Secretariat to produce a paper on the synergies and the interrelation between the
Convention on Biological Diversity and Article 27.3(b) of the TRIPS Agreement.  She suggested that
the Council take that document into consideration once it was ready.
94. The representative of the United States said that, while he assumed that it would not come as
a surprise to other delegations that his delegation could not associate itself with some of the
conclusions contained in India's statement, it was us eful that India had put the issues concerned on the
table. His delegation would examine India's proposal in detail and would provide a written reply.
There were specific issues referred to by Indi a, such as those regarding the impact of patent
protection, ownership of life forms and the rela tionship between the TRIPS Agreement and the
Convention on Biological Diversity, on which he would like to associate himself with the statements
made by Australia.
95. The representative of Japan said that the proposal from India required thorough study.  With
respect to traditional and indigenous knowledge, while his delegation recognized the largeIP/C/M/24
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contribution made for the conservation and development of biodiversity, the concept of traditional
knowledge and indigenous peoples' rights seemed to be too unclear to be protectable on the basis of
currently existing forms of intellectual property.  There was also a question as to whether establishing
such rights would not undermine existing intellectual property rights which were the subject of the
TRIPS Agreement.  Moreover, Article 27.3(b) of the TRIPS Agreement provided that Members of theWTO should protect plant varieties either by patents or by an effective sui generis  system or by any
combination thereof, but did not provide for the protection of traditional knowledge of indigenous
peoples.  Therefore, his delegation could not agree to the proposal to link a system of protection of
traditional knowledge or indigenous peoples' rights to intellectual property rights covered by the
TRIPS Agreement.
96. The representative of Singapore said that no-one should be adverse to discussing the problems
raised by several delegations. At the same time, that should be done without trying to lower
intellectual property protection because, as stated before, biotechnology had brought benefits to
different areas of the economy.
97. The representative of Canada agreed that there were many dimensions to the issues that had
been reflected in previous interventions.  He associated himself with the comments made by
Australia.  The tables prepared by the Secretariat demonstrated not only the flexibility that wascurrently contained in Article 27.3(b), but also that there was a good deal of convergence in how
different countries had implemented its provisions.  He also agreed that Members should not shy
away from the complex issues referred to and stressed the need for information and better
understanding.  Another point made by Australia that deserved consideration was that Members
should not confuse dimensions.  For example, some of the particular concerns expressed by variousdelegations could be addressed through existing or alternative environmental measures;  the patent
system was not the appropriate tool for addressing those concerns.  His delegation was in the process
of examining the issues concerning the patenting of higher life forms and, as it went through that
domestic process, looked forward to discussing these issues, at the same time, at the international
level.
98. The representative of the European Communities,  referring to the synergy of the system for
the protection of intellectual property with other international systems, agreed with previous speakers
that the Council should not start its discussions from the wrong assumption that there was necessarily
a conflict between the TRIPS Agreement and the Convention on Biological Diversity.  In his
delegation's view, these instruments were mutually supportive.  Whether or not work on indigenous
knowledge was to be covered by the TRIPS Agreement and, if so, how and what type of protection
should be available, were issues that required careful examination and reflection.  His delegation waslooking forward to receiving more details with rega rd to some of the proposals put forward by India.
99. The representative of Hong Kong, China said that his delegation had not yet had the benefit of
experience from implementation of the TRIPS Agreement in full.  The synoptic tables, in this respect,
would be useful as reference material.  He than ked India for its intervention and looked forward to
studying its proposal.  His delegation was interested in an examination of the relationship of theTRIPS Agreement with the Convention on Biological Diversity, including aspects of the protection of
traditional and indigenous knowledge.  Given that  Members were mandated, under Article 27.3(b), to
conduct a review of its provisions, they should have an open mind and not exclude a priori any
particular aspects.  Therefore, he could not go along with Japan that traditional and indigenous
knowledge was not to be addressed in this review.
100. The Chairperson said that the debate on this complex issue had been very interesting.
Delegations had welcomed the note in informal document No. 2689 with the synoptic tables prepared
by the Secretariat.  It would be an important point of reference for further discussions on the matter.
Some delegations had commented on the degree of uniformity in the way Article 27.3(b) was being
implemented by those Members already under an obligation to do so, despite the flexibility availableIP/C/M/24
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in that provision.  Important interventions had been made.  India had addressed concerns it had with
the patenting of life forms and proposing amendments to Article 27.3(b).  Several delegations had
agreed that the issues in question needed to be ad dressed in greater detail, including the biodiversity
aspects.  He suggested that the Council take note of the statements made and that, before the next
meeting, substantive contributions should be made by Members in writing, either discussing thepoints made by India or presenting new elements.  At that meeting, the matter would be covered to its
full extent and scope, both in informal and formal sessions.
101. The Council so agreed.
102. Referring to the statement made by the representative of Costa Rica about the request by the
Committee on Trade and Environment that the Secretariat prepare a background note on the
relationship between Article 27.3(b) and the Convention on Biological Diversity, the Chairperson
suggested that, despite the present informal status of informal document No. 2689, the Council agree
that the Secretariat could make use of the information provided by Members as contained in that
informal document.
103. The Council so agreed.
L. A RTICLE 64.3
104. The Chairperson said that, under this provision, the Council was required to examine the
scope and modalities for complaints of the type provided for under Article XXIII:1(b) and (c) of
GATT 1994 ("non-violation" disputes) made pursuant to the TRIPS Agreement.  He recalled that just
prior to the Council's last meeting the Secretariat had circulated a factual background note on the
experience with disputes so far under the TRIPS Agreement, including any references made to non-
violation issues, the negotiating history of paragra phs 2 and 3 of Article 64, the experience with non-
violation complaints under the GATT/WTO, and any information available on the use of the non-
violation concept in disputes on intellectual property matters elsewhere.  This Secretariat note had
been circulated in document IP/C/W/124.  A paper on the matter from the delegation of Canada was
circulated in document IP/C/W/127.  At the last meeting, the Council had received a joint proposal
from Cuba, the Dominican Republic, Egypt, Indonesia, Malaysia and Pakistan, which had beencirculated in document IP/C/W/141.  Many other delegations had also expressed their views on the
matter, while others had indicated that they were still studying the matter.
105. The representative of Hungary, speaking on behalf of the CEFTA countries and Latvia, fully
agreed with the Chair's summary after the discussion at the previous meeting of the Council;  the
discussion held at that meeting on the subject had been extremely useful and there clearly was need
for a more in-depth analysis of this important matter.  The delegations on behalf of which he spoke
had made a statement during that meeting expressing  their concerns with respect to the applicability
and desirability of the non-violation remedy under the TRIPS Agreement.  Instead of repeating all the
arguments made earlier, which were of course uphel d, he wished to react to some of the comments
made by other delegations and make some further suggestions.  He tended to share the view of a
majority of delegations that, as far as benefits and reasonable expectations were concerned, the TRIPS
Agreement seemed to be different from the GA TT and GATS.  In his understanding, under the GATT
and GATS, the non-violation remedy was introduced with the intention to protect reciprocal market
access and national treatment-type concessions, be they tariff concessions or specific commitments,
against being negated by non-tariff barriers or other measures adopted by a Member.  However, the
TRIPS Agreement was a minimum standards agreement which provided for minimum rights which
could be acquired by nationals of all WTO Members in all other WTO Members to protect theirintellectual property.  Following this line of thought it was difficult to see the analogy on the basis of
which some Members argued that the non-violat ion remedy should unconditionally, immediately and
without limitations be made available under the TRIPS Agreement.  He acknowledged that the views
expressed with respect to the definition of benefits and reasonable expectations as well as the scopeIP/C/M/24
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and essential elements of the non-violation remedy under the TRIPS Agreement differed
considerably.  Taking this into account, he offered some comments on the argument that the
introduction of the possibility of non-violation disputes under the TRIPS Agreement would increase
security and predictability.  Given the divergence in views and the lack of clarity as to the concept of
the non-violation disputes in the TRIPS context, the effect of introducing the concept in the TRIPSarea could be exactly the opposite and could bring a hi gh degree of uncertainty.  He believed that such
a result would not correspond with the aims of the TRIPS Agreement.  He found the suggestion made
by Japan, at the last meeting, that the TRIPS Council should consider carrying out case studies on the
kinds or types of possible non-violation claims us eful.  Perhaps those delegations convinced of the
need for and applicability of the non-violation remedy could bring practical examples or offer detailed
explanations that the Council could analyse in its future meetings in order to deepen understanding of
the issue. The argument had been made, at the previous meeting of the Council, that Article 26 of theDSU provided all the necessary assurances and safeguards for Members to handle any disputes that
might arise alleging non-violation nullification and impairment under the TRIPS Agreement and to
prevent any abuse of the dispute settlement mechanism.  It had also been argued that the small
number of actual non-violation cases under the GATT/WTO dispute settlement mechanism should
alleviate some of the fears and concerns Members had regarding the potentially high number of non-violation disputes under the TRIPS Agreement.  He  understood that Article 26 of the DSU set out
special procedures for non-violation complaints.  The complaining party had to present a detailed
justification in support of any complaint;  there wa s no obligation to withdraw the measure if it had
been found to nullify or impair benefits;  the arbitrator, upon request by a party, could suggest ways
and means of reaching a mutually satisfactory adjustment;  and compensation could be a part of suchan adjustment as final settlement of the dispute.  He acknowledged that there had been a limited
number of actual non-violation disputes.  However, he wished to point out that neither the special
safeguards in Article 26 of the DSU, nor the nu mber of actual non-violation cases, could convince
him of the need for, or the applicability of, the non-violation remedy in the TRIPS context.  These
factors could be, but not necessarily were, indicators of the scope of the problem.  However, by nomeans could they be regarded as relevant to th e question of whether non-violation complaints should
be admissible in the TRIPS context and, if so, upon what conditions and within what limits.  The first
sentence of Article 64.3, as all knew, mandated the TRIPS Council to examine before 1 January 2000
the scope and modalities for complaints of the type provided for under Article XXIII:1(b) and (c) of
GATT 1994 made pursuant to the TRIPS Agreement and to submit its recommendations to the
Ministerial Conference for approval.  He shar ed the view that, for the adoption of the
recommendations, consensus was needed in the Council for TRIPS.  Furthermore, in hisunderstanding of Article 64.3, the approval by the Ministerial Conference of the recommendations on
the scope and modalities for non-violation complaints made pursuant to the TRIPS Agreement was a
pre-condition for the application of Article XXIII: 1(b) and (c) of GATT 1994 in the TRIPS context.
In other words, irrespective of the expiration of the five-year period provided for by Article 64.2, non-
violation complaints would remain inadmissible under the TRIPS Agreement until a decision wastaken by consensus at the Ministerial Conference on the approval of the TRIPS Council's
recommendation on the scope and modalities of those complaints.  In light of the lack of clarity
regarding even the relevant basic notions with respect to non-violation complaints under the TRIPS
Agreement, the genuine complexity of the issue and the divergence of views as to this remedy's
applicability and desirability, further in-depth analysis was needed to forge a consensus on therecommendations.  Such an examination was likely to be time-consuming and the original deadline
fixed in the Agreement was unlikely to be met.  Taking all the above into account, he would see merit
in setting a new, realistic deadline for the Council by which the needed analytical work and the
necessary consensus-building could be done.  Finally, he stressed that the Members, on whose behalf
he spoke were, at the present stage, not at all convinced of the need for and applicability of the non-violation remedy under the TRIPS Agreement.  Like many other delegations, they were of the view
that the TRIPS Agreement contained a very fine and fragile balance of rights and obligations, and
were concerned that the introduction of the non-violation remedy under the TRIPS Agreement,
particularly without a proper understanding of the issue, might unsettle this delicate balance.
Nevertheless, they respected the views expressed by those advocating the admissibility of non-IP/C/M/24
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violation complaints upon expiration of the moratorium and were ready to consider any substantive
arguments made in support of these other views.
106. The representative of Singapore, agreeing with most of the points made by Hungary, added
that, when the TRIPS Agreement was being drafted, there had obviously been problems regarding the
application of dispute settlement.  The dispute settlement mechanism that was being considered wasbasically the one that had applied in the area of goods, tariffs and other GATT subjects and there had
been uncertainty as to how this mechanism could apply in the area of intellectual property where
private rights were being given.  It was easier to withdraw concessions than to take back a private
right.  Similarly, when the issue of non-violation was being discussed, there had been a lot of soul-
searching as to whether this was a mode of dispute settlement applicable in the TRIPS area, and, in
their wisdom, the negotiators had agreed that this issue should be deferred.  In the interim period, no
conclusive arguments had been heard that this situation had changed and there was no critical reasonwhy the situation under Article 64.3 should change.  In fact, the moratorium should be extended as,
unlike in the area of concessions and goods, the non-violation remedy would not sit well in the area of
TRIPS.  Therefore, the Council should act with caution and meanwhile the moratorium should
continue.
107. The representative of the United States welcomed the full debate and review of the scope and
modalities of non-violation nullification and impairment disputes under the TRIPS Agreement.
However, his delegation's overall position had not changed.  It believed that it was appropriate that the
moratorium provided by Article 64.2 expire on 1 January 2000 and was not prepared to agree to its
extension.  To facilitate the discussion in the Council, his delegation had put its viewpoint in
writing.16  The possibility of non-violation nullification and impairment disputes had been part of the
GATT dispute settlement system since the beginning. Failure to allow the possibility for such
complaints in connection with the TRIPS Agreement would ultimately invite creative legislative
activity by any Member that might be dissatisfied by particular provisions of the TRIPS Agreement
and wished to avoid compliance with its obligations.  The TRIPS Agreement was negotiated as part of
the Uruguay Round of Multilateral Trade Negotiations and the results of the Uruguay Round werepart of an overall package in which concessions in one area under negotiation had been made in
exchange for benefits in another.  Delaying further the application of GATT Article XXIII:1(b)
and (c) to the TRIPS Agreement would upset the equilibrium of concessions reached during the
Uruguay Round.  His delegation believed that the "benefits" accruing to Members under the TRIPS
Agreement were just as clear as those deriving from the GATT and other agreements that were part of
the WTO system.  The United States believed that Article 26 of the Dispute Settlement Understanding
provided all the necessary assurances and safeguards for Members to handle any dispute that mightarise alleging non-violation nullification and impairment under the TRIPS Agreement and to prevent
any abuse of the dispute settlement process.  He reiterated that his delegation was ready to discuss
further the scope and modalities for non-violation complaints and to determine whether
recommendations to the Ministerial Conference w ould be appropriate at the conclusion of that
discussion, but could not agree to any proposal th at would diminish the rights of WTO Members
under the TRIPS Agreement.  He did not think that a series of case studies would be the most
effective way to structure the discussion;  such an exercise would, in fact, engender a fair amount of
confusion and speculation about possible fact patterns.  It would not help the debate or make the
discussion any clearer.  By contrast, the Secretariat's paper on the issue (document IP/C/W/124) fully
described the practice of dispute settlement through actual cases, not hypothetical ones, and laid downclearly the general criteria for non-violation cases.  It provided the best basis for further discussion.
With respect to the proper interpretation of Article 64.3, he said that, under the clear language of
Article 64.3, the moratorium would expire, without a consensus otherwise, on 1 January 2000.  After
it had expired, non-violation dispute settlement could be initiated and, in the absence of guidance
from Ministers, dispute settlement panels themselves would have to interpret the provision in thecontext of a particular case.
                                                     
16 The non-paper in question was circulated in informal document No. 4437 of 26 July 1999.IP/C/M/24
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108. The representative of Canada expressed his appreciation for the contribution of Hungary on
behalf of the CEFTA countries and Latvia.  He agreed with the United States that it was important to
engage in a debate and a discussion on the application of this remedy to the area of intellectual
property, but took the view that one should go beyond that.  Debate and discussion was not going to
be sufficient to fully understand how the remedy w ould apply in the context of the TRIPS Agreement.
A beginning had been made by identifying some of the issues that needed to be studied and analysed
and he agreed with the suggestion that had been made that it would be useful to look at some concrete
examples.  Members understood, instinctively, that there were differences between the TRIPS
Agreement and the other agreements in the WTO, in particular those agreements with which there
was some experience in the application of the non-violation remedy.  Hence, he said, it would help to
look at some concrete examples involving intellectual property rights to understand how the remedy
designed for other types of agreements would apply in the context of intellectual property rights.Engaging in a detailed and comprehensive examina tion of the scope and modalities of the application
of this remedy was something, he thought, mo st Members would agree would be a very useful
exercise.  Therefore, he looked forward to cont inuing to engage in that kind of a review and
discussion of ideas on how best to do this.  In his delegation's own proposal, an attempt had been
made to identify some of the specific issues which needed to be looked at:  definition of benefits,reasonable expectations and concrete examples.  However, this was not the kind of exercise that could
be completed within the time-frame currently envisaged.  He agreed that a reasonable time-period to
continue the work on scope and modalities had to be decided upon and, in the meantime, the remedy
should not be applicable in the area of intellectual property rights.  Finally, he said, one of the major
obligations in negotiating agreements, particularly in the WTO, was to ensure that such agreements
led to greater certainty.  After all, Members were trying to create rules and apply them in ways that
did not elicit further uncertainty or lead to further disputes.  This was the overriding concern that
Canada had and he believed that further work on Article 64.3 was required to meet this prerequisite
level of certainty.
109. The representative of the European Communities recalled that, at a previous meeting, his
delegation had indicated that Members should further examine the implications of the provision,
i.e. carefully examine the scope and the modalities of non-violation disputes in the TRIPS area.  The
suggestion made by Hungary that Members really needed to embark on more substantive work,
analysing the provisions of the TRIPS Agreement, was a positive one, which his delegation wished to
encourage.
110. The Council took note of the statements made and agreed  to revert to this item at its next
meeting.
M. I NFORMATION ON RELEVANT DEVELOPMENTS ELSEWHERE IN THE WTO
(i) Accession
111. The Chairperson informed the Council that, on 21 May 1999, the Government of Estonia had
accepted, subject to ratification, the Protocol of Accession of Estonia to the Marrakesh Agreement
Establishing the World Trade Organization, done at Geneva on 21 May 1999 (WT/Let/300).Paragraph 2 of the Protocol of Accession of Est onia (to be circulated in document WT/ACC/EST/30)
incorporated the commitment given by Estonia in relation to intellectual property as reproduced in
paragraph 126 of the report of the Working Party on the Accession of Estonia.  According to this
paragraph, the representative of Estonia had stated that Estonia would fully apply all the provisions of
the Agreement on Trade-Related Aspects of Intellectual Property Rights from the date of its accessionto the WTO, without recourse to any transitional period.IP/C/M/24
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(ii) Dispute settlement
112. The Chairperson informed the Council that, sin ce its meeting in April, three new dispute
settlement proceedings had been initiated under the DSU.  The United States had requested
consultations with Canada concerning the term of patent protection (document IP/D/17), and with
Argentina concerning patent protection for pharmaceuticals and test data protection for agriculturalchemicals;  Switzerland had requested to join in these consultations (documents IP/D/18 and
WT/DS171/2).  The United States had also reque sted consultations with the European Communities
concerning the protection of trademarks and geographical indications for agricultural products and
foodstuffs;  Canada had requested to join in these consultations (IP/D/19 and WT/174/3).  On
15 April 1999, the DSB had agreed to establish a panel to examine the complaint by the European
Communities and their member States concerning Section 110(5) of the United States Copyright Act.
Australia, Brazil, Canada, Japan and Switzerland had reserved their third-party rights to participate inthe panel's proceedings.
N. O
THER BUSINESS
Dates of future meetings
113. The Chairperson recalled that, at its meeting in December 1998, the Council had established
dates for its first three meetings in 1999 and would consider further its autumn schedule at the present
meeting.  In the light of informal discussions that  he had held on the matter, he suggested that the
Council hold a single meeting in the autumn of 1999, from 20 to 22 October.
114. The Council so agreed.
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