Members discuss future pandemics preparedness, way forward on TRIPS implementation review

Members agreed to rename the agenda item on "IP and COVID-19" to "IP, COVID-19, and Pandemic Preparedness". The decision responded to the need to better reflect that work on pandemic preparedness is likely to be the dominant activity under this agenda item going forward.

As requested in the Abu Dhabi Ministerial Declaration (WT/MIN(24)/DEC), delegations continued work under paragraph 24 of the Ministerial Declaration on the WTO Response to the COVID-19 Pandemic and Preparedness for Future Pandemics (WT/L/1142),  adopted at the 12th Ministerial Conference in June 2022.

Under this provision, the Council was mandated to continue or initiate work to analyze lessons learned and challenges experienced during the COVID-19 pandemic, including on the basis of proposals by members.

Members also discussed a communication from Bangladesh, Colombia, Egypt and India entitled "TRIPS for Development: Post MC13 Work on TRIPS-Related Issues" (IP/C/W/708), which was circulated to the TRIPS Council and General Council on 8 March 2024. They were also updated on IP-related domestic measures taken during the COVID-19 pandemic.

Compiled by the WTO Secretariat, the document COVID-19: Measures Regarding Trade-Related Intellectual Property Rights contains a non-exhaustive list of such measures extracted from official sources and verified by members. Delegations were encouraged to inform the Secretariat of any measures that should be included or updated in the document, which is available on the WTO website.

TRIPS implementation review

TRIPS Article 71.1 requires the Council to conduct a review of the implementation of the TRIPS Agreement every two years. While no review has been held since 1999, members seemed interested in resuming the review function in more concrete terms and were willing to consider possible areas of focus in a first two-year cycle.

Positive feedback had been received from members. The new Council Chair, Ambassador Sofía Boza of Chile, will hold consultations in the coming weeks to explore the process and potential topics for the review. The aim is to revisit the issue at the next meeting, with a view to making a concrete decision on launching a new review cycle in July 2024.

Non-violation and situation complaints

Delegations exchanged views on how to organize their work in relation to non-violation and situation complaints (NVSCs). This follows the renewed mandate under the Ministerial Decision of 2 March 2024 (WT/L/1194) to examine the scope and modalities for such complaints under the TRIPS Agreement, and to make recommendations to the 14th WTO Ministerial Conference. Until then, members agreed to refrain from initiating such complaints under the TRIPS Agreement.

Non-violation and situation complaints (NVSCs) refer to whether and under what conditions members should be able to bring WTO dispute complaints where they consider that another member's action, or a particular situation, has deprived them of an expected advantage under the TRIPS Agreement, even though no obligation under the Agreement has been violated.

Members have historically differed on whether such non-violation cases are feasible in intellectual property. Some delegations consider NVSCs essential to maintaining the proper balance of rights and obligations within the TRIPS Agreement while helping to ensure that legitimate obligations are not circumvented or avoided. Others believe there is no place for the application of non-violation complaints in the area of intellectual property because of the legal insecurity and curtailment of flexibilities that could ensue and favour their complete ban in the TRIPS area.

The outgoing Chair of the Council, Ambassador Pimchanok Pitfield, noted that as the moratorium now has a new "lease of life", members should follow the instructions given by ministers and return to substantive discussions on the matter, with a view to finding a permanent solution.

IP and innovation

The Council discussed a paper titled "IP awareness and creators", submitted by the so-called "Friends of IP and Innovation" consisting of Australia, Canada, the European Union, Hong Kong China, Japan, the Republic of Korea, Singapore, Switzerland, Chinese Taipei, the United Kingdom and the United States.

Introduced by the United States, the paper explores some of the IP considerations that may arise for creators, including social media content creators. It looks at potential difficulties creators may face in protecting their IP rights, and how WTO members can raise awareness about IP in the creative fields through various fora.

The document highlights the importance of IP for artists and other creators to protect their unique and valuable contributions to society through their work, film, music, or other creations. However, creators often face many of the same challenges as small businesses when it comes to protecting their IP. These challenges include lack of awareness, resources, legal knowledge, or experience protecting their IP and harnessing its benefits. The paper also notes that the lack of legal knowledge about how to enforce IP internationally, and in particular copyright, is also challenging for many creators.

Other issues

The Secretariat presented the fourth "Annual Report on Notifications and other Information Flows" (IP/C/W/709). This indicates that notifications to the Council are not keeping up with the actual development of laws and regulations relating to TRIPS.

The Chair recalled that TRIPS Article 63.2 is not a one-off requirement, but a core element of the TRIPS transparency arrangements and a central part of the Council's substantive work as it obliges members to notify any new or amended laws. She urged delegations to complete any outstanding initial notifications, and to keep up to date with notifications on subsequent amendments.

The same applies to the Checklist of Issues on Enforcement, which was established by the Council as an element of members' notification obligations, the Chair said. She emphasized that the e-TRIPS platform now makes it much easier to fulfil these transparency obligations.

Ambassador Pitfield especially encouraged delegations to notify legislative changes made to implement the special compulsory licensing system to export medicines covered by Article 31bis of the TRIPS Agreement. More than 50 WTO members, including most of the world's major exporters of medicines, have adopted implementing legislation that allows them to use the system as exporters and/or importers. But only 21 members have formally notified such measures.

Coinciding with the TRIPS Council meeting, the WTO Secretariat once again organized a Workshop on the Implementation of Article 66.2 of the TRIPS Agreement, which took place on 23-25 April. Some of the capital-based delegates who participated in the Workshop attended the TRIPS Council and participated in the discussions under this agenda item.

The event provided a platform for dialogue on the technological needs and priorities of LDCs, while allowing for an in-depth analysis of technology transfer programmes reported by developed members in furtherance of their commitments under Article 66.2.

TRIPS at 30

On 25 April, members commemorated 30 years of the TRIPS Agreement. A High-level Dialogue with the participation of the Directors-General of the World Intellectual Property Organization (WIPO) Daren Tang and the WTO Ngozi Okonjo-Iweala marked this anniversary.

The event provided the opportunity for representatives from international organizations, non-governmental organizations, academia and the private sector to discuss the impact of the TRIPS Agreement and the future challenges for IP policy at a time of dramatic technological change.

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