Seventh WTO Ministerial will take decision on IPR ‘non-violation’ violations and ‘ecommerce’

The Seventh WTO Ministerial Conference is taking place in Geneva, Switzerland from November 30, 2009 to December 2, 2009. Unlike previous Ministerial Conferences in Seattle (1999), Doha (2001), Cancun (2003) and Hong Kong (2005), the Geneva Ministerial is a non-negotiation. This hum drum affair is being held only because of the obligations of Article IV, paragraph 1 of the WTO Agreement which states that

[t]here shall be a Ministerial Conference composed of representatives of all the Members, which shall meet at least once every two years. The Ministerial Conference shall carry out the functions of the WTO and take actions necessary to this effect. The Ministerial Conference shall have the authority to take decisions on all matters under any of the Multilateral Trade Agreements, if so requested by a Member, in accordance with the specific requirements for decision-making in this Agreement and in the relevant Multilateral Trade Agreement.

Two draft texts for decision by Ministers include a recommendation by the WTO TRIPS Council to to extend the moratorium on “non-violation and situation complaints” till 2011 and a recommendation by the WTO General Council to extend the moratorium on customs duties on e-commerce till 2011. Both of these decisions have been described by WTO insiders as mere formalities.

Draft decision (IP/C/52/Add.1) of the TRIPS Council on Non-Violation and Situation Complaints which can be found on this link states the following:

“We take note of the work done by the Council for Trade-Related Aspects of Intellectual Property Rights pursuant to paragraph 11.1 of the Doha Decision on Implementation-Related Issues and Concerns and paragraph 45 of the Hong Kong Ministerial Declaration, and direct it to continue its examination of the scope and modalities for complaints of the types provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 and make recommendations to our next Session, which we have decided to hold in 2011. It is agreed that, in the meantime, Members will not initiate such complaints under the TRIPS Agreement.”

According to the WTO briefing note on non-violation complaints, in certain situations (for goods and services but not for intellectual property), a WTO Member can use the WTO dispute settlement mechanism even if an agreement has not been violated. The WTO briefing note states that a non-violation complaint is permitted if a Member “can show that it has been deprived of an expected benefit because of another government’s action, or because of any other situation that exists. At least two countries (the US and Switzerland) say non-violation cases should be allowed in order to discourage members from engaging in “creative legislative activity” that would allow them to get around their TRIPS commitments.” If and when the moratorium on non-violation complains is lifted, one wonders what “creative legislative activity” related to intellectual property, the governments of the United States and Switzerland would target.