Minutes of meeting
|
|  Yüklə 309.5 Kb.
|
DD.electronic commerce1.The Chairperson recalled that the General Council, when it had discussed the issue of electronic commerce on 8-9 May 2001, had invited the various subsidiary bodies concerned, including the Council for TRIPS, to continue their work and report back to the General Council.6 Given that a dedicated discussion on electronic commerce had been held on 15 June 20017 under the auspices of the General Council, for the purpose of examining cross-cutting issues related to electronic commerce identified by delegations, he suggested that the TRIPS Council focus more on the TRIPS-specific issues. Since the previous meeting, the TRIPS Council had received two communications on electronic commerce from Cuba and Switzerland (documents IP/C/W/264 and IP/C/W/286, respectively). 2.The representative of Cuba introduced her delegation's paper titled "Need for Unrestricted Global Commerce" (document IP/C/W/264). The Work Programme on Electronic Commerce established by the General Council on 25 September 19988, paragraph 4.1, raised the issue of "new technologies and access to technology", taking into account the objectives of the promotion of technological innovation and transfer and diffusion of technology as set out in Article 7 of the TRIPS Agreement. Practices which restrained competition and which could have prejudicial effects on trade and impede the transfer and diffusion of technology were contrary to the objectives and principles of the multilateral framework among Members, including non-discrimination and MFN treatment. Her delegation reiterated the need to eliminate all types of restrictions, both commercial and technological, adopted for political reasons, including those related to the spread and free use of encryption technology and hardware available in the market which limited the development of global electronic commerce and the full inclusion of all developing countries. 3.The representative of Switzerland introduced his delegation's paper on the Work Programme on Electronic Commerce (IP/C/W/286). The TRIPS Council had been dealing with the subject of electronic commerce for some time. Those Members which had made written submissions agreed basically on the need for the TRIPS Council to agree on questions regarding intellectual property rights which arose from communications via the Internet and other networks. There was also general agreement that electronic commerce did not necessitate re invention of the wheel as regards the application of intellectual property law in this new field of technology nor did it necessitate a re evaluation of the interests at stake. The preliminary conclusion was that what was valid off-line was also valid on-line. This conclusion had been extended to the provisions of the TRIPS Agreement but, in his delegation's view, it was not sufficient to say that the provisions of the TRIPS Agreement could be applied to the field of electronic commerce. One had to ask to what extent the provisions of the TRIPS Agreement "must" be applied to electronic commerce and, more importantly, what level of protection was offered by this agreement in that context and whether it was sufficient. The Swiss paper gave examples of subjects which could be looked at more closely by Members in this regard. He highlighted, by way of example, one of these. In the field of copyright, the Internet created new ways of exploiting a protected work, such as the communication to the public, including the making available of the work in such a way that members of the public may access the work from a place and at a time individually chosen by them. The question was whether the TRIPS Agreement provided minimum protection at the multilateral level in all fields of intellectual property, including copyright, protecting these new ways of exploiting copyright works as part of the right of the author, even though the TRIPS Agreement was negotiated before the Internet revolution. In order to enable the Council to answer questions like this, Switzerland suggested that the Council ask the Secretariat to prepare a paper on the manner in which the TRIPS Agreement operated in the context of electronic commerce. On the basis of this paper, the Council could discuss the issue and whether there was a need for action and, if so, which measures would be appropriate to reach the desired result. 4.The representative of the United States appreciated the recognition in the papers presented by Australia and Switzerland that the TRIPS Agreement applied to the on line environment. His delegation hoped to submit a paper of its own before the next meeting which would reflect on the issues that had been raised by those two delegations. 5.The representative of Japan said that, in order to ensure appropriate and secure circulation of content through electronic commerce, whether tangible or intangible, appropriate protection was a key factor. The language of the relevant provisions of the TRIPS Agreement was generally technology-neutral, so that the rights and exceptions already provided should continue to be applicable in the new digital networked environment. The networking technology would continue to develop so that the IP-related issues that would arise in this context should also continue to be discussed. Turning to more specific issues, the proposed "WIPO Joint Recommendation concerning provisions on the protection of marks, and other industrial property rights in signs, on the internet"9 would very likely be adopted in September 2001. It could be contemplated that the same type of policy be built into the TRIPS Agreement to accommodate the conflict between the use of trademarks in cyberspace and the existing framework of sovereign states which independently granted different trademark rights based on territoriality. The proposed WIPO joint recommendation would not be legally binding but Japan intended to work actively towards solutions to the trademark problems arising from transactions in cyberspace taking into account this recommendation, and would push for consideration of the implications for the TRIPS Agreement. Regarding copyright and related rights, Japan believed that the WIPO Copyright Treaty ("WCT") and WIPO Performances and Phonograms Treaty ("WPPT"), adopted in 1996, were key instruments relating to the digital networked environment. Japan had ratified the WCT in 2000 and had almost completed the development of domestic legislation in response to the WPPT. In addition, a couple of new treaties, such as the audiovisual performances treaty, were under discussion at WIPO, and it could be useful for the Council to watch closely this discussion in order to consider its own future work. Regarding international jurisdiction and applicable law, whilst this subject was being debated in the Hague Conference on Private International Law, WIPO and various other fora, this issue should also be actively discussed as part of the WTO effort to develop the TRIPS Agreement a step further, given that the expansion of electronic commerce was expected to increase the number of IP-related lawsuits in the years ahead. The Hague Conference had been considering a preliminary draft convention on jurisdiction and foreign judgements in civil and commercial matters. Diplomatic conferences would be held in June 2001 and early 2002 to adopt the convention. Depending on whether or not it was successfully adopted, the TRIPS Council could actively consider the issue and go on to discuss applicable law, which had not been adequately explored to date. Although IP-related issues should be examined primarily by the TRIPS Council, a close communication was needed with other WTO fora which examined the issues from a general and broader perspective. He drew attention to Japan's proposal in the General Council to set up a forum under the General Council to discuss electronic commerce issues from a general and broader perspective. His delegation believed that the TRIPS Council should closely communicate with this body, if established. 6.The representative of the European Communities said that his delegation was still reflecting on the suggestion by Switzerland that the Council request the Secretariat to prepare a study. 7.The representative of Uruguay drew attention to a submission by MERCOSUR to the General Council's work programme on electronic commerce titled "Horizontal and sectoral issues which require further analysis" (WT/GC/W/434). MERCOSUR members had tried to propose a work methodology, distinguishing sectoral issues of the subsidiary organs from those which could be considered horizontal issues. In the case of intellectual property, they had identified two current issues on the basis of documents submitted to this Council: one was the question of so-called technological neutrality and the other was following work in WIPO on the relationship between electronic commerce and intellectual property. These had been identified in the TRIPS Council's report to the General Council (document IP/C/18). These issues had been identified without prejudice to the views of MERCOSUR members on them, but with the objective of introducing some order and methodology in the work programme. Subsequently, in the General Council on 8 March 2001, other Members had also identified horizontal issues and on 15 June 2001 there had been a special session on electronic commerce and horizontal issues under the auspices of the General Council. Various horizontal issues were now being analysed in the General Council, in which could be grouped, for example, the issue of classification and technological neutrality. He wished to convey that, without prejudice to whether this Council continued to analyse these issues, they should also be analysed in the General Council as horizontal issues, i.e. they also covered other agreements that were being analysed in other subsidiary bodies. Regarding the Swiss proposal, he understood that any such Secretariat paper would be factual, but in any case, another delegation had indicated that it wished to reflect on the proposal. Regarding Japan's comments on jurisdiction and applicable law, this was without doubt an important subject which would be of interest to analyse. It had also been considered in the General Council meeting on 15 June 2001. It was of interest but also exceeded the scope of the WTO. As noted by Japan, it was being considered in the Hague Conference on Private International Law and in other international fora. Without prejudice to this, it would perhaps be interesting to maintain a discussion and analysis of this issue. Without prejudice to the analysis being conducted by the TRIPS Council on the issues under this agenda item specifically related to intellectual property, there was now a process which had identified horizontal issues which were also relevant to intellectual property, and of which the TRIPS Council should not loose sight. The special session of the General Council had decided that the Secretariat would prepare a report on those discussions on horizontal issues which his delegation looked forward to. He also believed that it was important for the General Council to decide how it would pursue its work at the horizontal level, given that some of these issues were also relevant to intellectual property. 8.The Council took note of the statements made and agreed to revert to this matter at its next meeting. EE.intellectual property and access to medicines1.Statements made under this agenda item have been circulated separately in document IP/C/M/31, as agreed by the Council. FF.information on relevant developments elsewhere in the wto(i) Accessions 1.The Chairperson informed the Council that, on 31 May 2001, Lithuania had become the 141st Member of the WTO. Lithuania had committed itself to apply fully the provisions of the TRIPS Agreement by the date of its accession to the WTO without recourse to a transitional period. In accordance with the procedures for the review of national implementing TRIPS legislation which the Council had applied thus far in respect of newly acceded Members, he suggested that Lithuania be added to the list of Members whose national implementing legislation was scheduled to be reviewed in November 2001. 2.The Council so agreed.
3.The Chairperson informed the Council that, by means of a communication dated 7 June 2001, the United States, Denmark and the European Communities had jointly submitted a mutually agreed solution reached in the dispute settlement proceedings that the United States had initiated on 14 May 1997 on a matter concerning the obligations of the European Communities and Denmark under the TRIPS Agreement to make available prompt and effective provisional measures inaudita altera parte in civil proceedings involving intellectual property rights (IP/D/9). This mutually agreed solution had been circulated in document IP/D/9/Add.1. GG.observer status for international intergovernmental organizations1.The Chairperson informed the Council that a specific request had been received from UNAIDS to be admitted as an observer to the present meeting of the Council only for the discussion under agenda item N. He proposed that the Council agree to this request. 2.The Council so agreed. 3.The Chairperson recalled that the Council had before it 15 outstanding requests from intergovernmental organizations for observer status. An up-to-date list of the pending requests was available in document IP/C/W/52/Rev.9. He recalled the suggestion that his predecessor as Chairperson had made to the Council as a way of making headway on this matter. This was that the Council might consider, as a first step, accepting the requests from: (i) multilateral organizations which already have observer status elsewhere in the WTO, i.e. the International Plant Genetic Resources Institute (IPGRI); the Secretariat of the Convention on Biological Diversity (CBD); and the United Nations Environment Program (UNEP); and (ii) organizations running regional industrial property offices, i.e. the African Regional Industrial Property Office (ARIPO) and the Cooperation Council for the Arab States of the Gulf (GCC). He said that it seemed particularly important to respond to the requests from these Organizations (ARIPO and the GCC), in the light of the fact that they were directly concerned with implementing the TRIPS Agreement. He also recalled that the Council had been urged by the Special Session of the General Council held on 18 October 2000, inter alia, to give positive consideration to granting observer status to the CBD Secretariat on an ad hoc basis pending the conclusion of the wider discussions on observer status for intergovernmental organizations in the General Council, but that the TRIPS Council had been unable to reach a consensus on this point. 4.The representative of the United States informed the Council that his delegation's position on this matter had not changed since the last discussion that the Council had had on this agenda item. His delegation was anxious that the General Council complete its work on this matter so as to give the TRIPS Council guidance on granting ad hoc requests for observer status. 5.The representative of Brazil supported the proposal to extend observer status to those intergovernmental organizations that already had observer status elsewhere in the WTO. He said that the situation regarding requests for observer status was most regrettable. It was not positive for the WTO to deny observer status to some organizations that were critical to its discussions. Earlier in the meeting, the Council had had a positive discussion on public health but it was not able to do so on requests for observer status, which was a simple issue. It was not a complex question to allow representatives of other organizations to attend the Council's meetings. This question should not be politicized. If Members were concerned about public opinion and a positive view of the WTO, they should reach a conclusion on this matter as soon as possible, extending observer status to other intergovernmental organizations, in particular the Secretariat of the CBD. 6.The representative of the European Communities reiterated his delegation's position that it would welcome the grant of observer status to ARIPO, the CBD Secretariat, IPGRI and the OIV. 7.The Chairperson concluded that there was no consensus regarding his suggestion. 8.The Council took note of the statements made and agreed to revert to the matter at its next meeting. HH.other business1.No other business was raised under this agenda item. __________ 1 Namibia's responses to these initial questions have been circulated in document IP/C/W/248/Add.2. 2 Namibia's responses to the Checklist of Issues on Enforcement have been circulated in document IP/N/6/NAM/1. 3 Bolivia and Namibia supplied the outstanding responses to follow-up questions later in the meeting. These have been circulated in documents IP/C/W/251/Add.1 and IP/C/W/248/Add.2, respectively. 4 The Chairperson referred to the accession of Lithuania under agenda item O(i). 5 This notification will be circulated in document IP/N/1/OMN/1. 6 WT/GC/M/65. 7 A summary by the Secretariat of issues raised in that discussion has been circulated in document WT/GC/W/436. 8 WT/L/274. 9 WIPO document A/36/8. |