[A2k] Bridges Weekly: E-Commerce Proposals in Focus at WTO’s TRIPS Council

Thiru Balasubramaniam thiru at keionline.org
Fri Mar 10 04:45:39 PST 2017



E-Commerce Proposals in Focus at WTO’s TRIPS Council

9 March 2017

World Trade Organization (WTO) members met last week to discuss a series of
communications involving the intellectual property (IP) aspects of
electronic commerce, along with continuing their past discussions on a UN
report regarding access to medicines and health technologies.

The discussions were held from 1-2 March under the WTO’s Council for
Trade-Related Aspects of Intellectual Property Rights (TRIPS) at Geneva

Preparing for Buenos Aires

Ambassador Alfredo Suescum of Panama, who is currently serving as the TRIPS
Council’s interim chairperson, commented that meeting on the subject of
electronic commerce represents an opportunity to “create a clearer, more
inclusive factual picture of the current state of affairs as the foundation
for informed dialogue between members," according to a WTO news item.

"The debate would constitute a sound basis to provide input for the General
Council report to the next ministerial conference" to take place in Buenos
Aires in December 2017, he added.

WTO members are currently working to see which issues could potentially
yield agreed outcomes for the upcoming ministerial meet, which is the
global trade body’s highest level gathering. E-commerce is one of the areas
which has drawn significant interest to date, along with possible measures
on disciplining fisheries subsidies, addressing domestic agricultural
support, and services facilitation and domestic regulation.

At the last such ministerial meeting, held in Nairobi, Kenya, in December
2015, trade ministers committed members to continuing the work programme on
electronic commerce based on the existing mandate, among various other
decisions. Electronic commerce returned to the TRIPS Council agenda in June
2016 for the first time since 2003. (See Bridges Weekly, 16 June 2016)

Under the 2015 Nairobi decision on e-commerce, the WTO’s General Council
was also instructed to review periodically the work in this area, based on
reports from the relevant WTO bodies: the Council for Trade in Services,
the Council for Trade in Goods, the TRIPS Council, and the Committee for
Trade and Development. The next of these reviews is due for July, with the
General Council instructed to then “report to the next session of the
ministerial conference.”

Documents on the table

To facilitate discussions, Brazil produced a paper ahead of the meeting on
electronic commerce and copyright, seeking “shared understandings” among
member states on transparency in the remuneration of copyright, balancing
the interests of rightholders and users of protected works, and
territoriality of copyright, proposing to make national copyright laws
applicable to trade that occurs across borders, as three areas from which
“the development of national copyright systems in the digital environment
would greatly benefit.”

Citing the value of transparency in the digital management of copyright,
Brazil expressed concern that rightholders may not be able to benefit
sufficiently from the royalties of their works.

Furthermore, Brazil referred to “a growing concern” that technological
protection measures risk limiting legitimate copyright limitations and
exceptions, damaging the interests of users and follow-on creators.

The third section on “territoriality of copyright” discusses the
relationship between national copyright laws and the international nature
of the digital space, including what this means for the business

A revised version of the communication was circulated by Brazil and
Argentina after the meeting.

Another document prepared by Argentina, Brazil, and Paraguay detailed the
Mercosur experience with electronic signatures and authentication in order
to advance discussions on this aspect of the work programme. Along with
those three countries, Uruguay and Venezuela are also Mercosur members.

According to trade sources, Brazil highlighted that a mutually recognised
electronic signature could serve to facilitate cross-border trade,
particularly for trade in services.

A non-paper issued by the EU, Canada, Chile, Colombia, Côte d’Ivoire,
Mexico, Montenegro, Paraguay, Singapore, South Korea, and Turkey, considers
the role of the WTO in relation to other international organisations in the
digital economy, including the International Telecommunications Union
(IUT), the World Intellectual Property Organization (WIPO), the World Bank,
and the UN Conference on Trade and Development (UNCTAD). Some members
reportedly cautioned against the duplication of work.

It also looks at the trade-related elements they say are relevant for
e-commerce, in terms of regulatory frameworks, measure to ensure open
markets, initiatives facilitating the development of e-commerce, and
enhanced information-exchange and transparency at the multilateral level.
The document represented a revised version of an earlier paper presented in
August 2016.

Singapore also introduced a non-paper underlining the opportunities
presented by e-commerce to SMEs and examining the e-commerce issues
relevant to developing countries.

UN report on access to medicines sparks interest, debate

The TRIPS Council also discussed the recommendations put forward in the UN
High-Level Panel report last year on improving access to medicines and
health technologies, an item which was put on the agenda by Brazil, China,
India, and South Africa.

The report, issued by the high-level panel in September 2016, includes
policy recommendations on TRIPS flexibilities; new innovation models for
development of pharmaceuticals including criteria for granting patents; and
inter-agency coherence. Discussions at the WTO regarding the report began
at the November session of the TRIPS Council. (See Bridges Weekly, 18
November 2016 and 22 September 2016)
Many representatives were supportive of the recommendations and expressed
interest in continuing discussions at the next Council meeting in June,
including Bangladesh, Brazil, China, India, Indonesia, Nigeria, and South
Africa. Several delegations reportedly indicated support for the
recommendation to prevent bilateral pressure to commit countries into
“TRIPS-plus” obligations under free trade agreements.

Egypt also reportedly referred to a recommendation regarding the capacity
of the UN Conference on Trade and Development (UNCTAD) and other
international organisations to furnish governments with technical advice on
patentability criteria and training to patent examiners.
On the other hand, concerns were raised on the narrowness of the scope of
the report, focusing too closely on policy incoherence and IP-related
aspects of access to medicines, suggesting taking a more holistic approach.
Australia, the EU, Japan, Switzerland, and the US were among those who
reportedly took the floor to express those views, according to IP-Watch.

Certain delegations, including Canada, indicated that more time was needed
to consider the recommendations, as did South Korea.

Another related issue raised was on supporting the implementation of the
amendment to the TRIPS Agreement, which entered into force on 31 January
2017 after two thirds of the WTO’s membership ratified the protocol
domestically. (see Bridges Weekly, 26 January 2017)

The amendment aims to allow developing country members to have better, less
expensive access for buying generic medicines produced by other trading

"It is now important to look into how to make this new procurement tool
work effectively so that it delivers concrete results in practice," said
former Council Chair, Ambassador Modest Jonathan Mero of Tanzania,
following the amendment’s entry into force. Oman has since deposited its
instrument of acceptance on 1 March, becoming the first member to accept
the protocol since January.

ICTSD reporting; “TRIPS Council To Consider The Two Sides Of IP –
Innovation Booster and Barrier,” INTELLECTUAL PROPERTY WATCH, 21 February
2017; “E-Commerce, Access To Medicines Catching On At WTO TRIPS Council,”

Volume 21 - Number 8

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