RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/224
17 November 2000
(00-4901)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
WORK PROGRAMME ON ELECTRONIC COMMERCE
Communication from the European Communities and their Member States
The following communication, dated 14 November 2000, has been received from the
Permanent Delegation of the European Communities with the request that it be circulated to
Members.
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A. INTRODUCTION
1. Basic work was undertaken over the past two years on the relationship between intellectual
property rights and electronic commerce.  In the WTO, following the Declaration on Global
Electronic Commerce adopted by Ministers at the second session of the Ministerial Conference on
20 May 1998, the General Council established a comprehensive work programme for the relevant
WTO bodies, including the Council for TRIPS.
2. The European Communities and their member States contributed to the subsequent
discussions in the Council for TRIPS by submitting a communication, dated 20 April 1999
(IP/C/W/140), containing a number of observations for the future work of the Council for TRIPS inthis area.  The Council for TRIPS, in its Prog ress Report to the General Council of 30 July 1999
(IP/C/18) summarized the discussions whic h took place in the Council for TRIPS.
3. A number of other documents dealing with the relationship between electronic commerce and
intellectual property rights were prepared.  In order to assist WTO Members in their deliberations, the
WTO Secretariat prepared a general note, dated 14 July 1998 (WT/GC/W/90), discussing therelationship between WTO Agreements and global electronic commerce.  A more specific
Background Note on intellectual property rights, dated 10 February 1999 (IP/C/W/128), was prepared
by the WTO Secretariat for the Council for TRIPS.
4. In addition, a Memorandum on "Intellectual Property and Electronic Commerce", dated
31 July 1998 (WIPO doc. No. A/33/4), was prepared by the Director General of the World IntellectualProperty Organization (WIPO).  Subsequent to its  International Conference on Electronic Commerce
and Intellectual Property of September 1999, and as part of the ongoing mandate to examine the
evolving relationship between electronic comme rce and intellectual property, WIPO published, in
May 2000, a Primer on Electronic Commerce and Intellectual Property Issues (WIPO
doc. No. WIPO/OLOA/EC/PRIME R) as a starting point in a series of discussions that WIPO intends
to foster leading to better understanding of the issues at stake and consideration of new responses.IP/C/W/224
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B. GENERAL OBSERVATIONS
5. The European Communities and their member Stat es maintain the views already expressed in
their Communication of 20 April 1999.  To recall, the following observations were made in this
Communication:
• "The TRIPS Agreement, together with other international conventions, already provides
for a sound basis for the protection of intellectual property rights in the off-line world and
the on-line environment, which could be built upon, if necessary.
• In certain areas, shortcomings exist in the pr esent system for the protection of intellectual
property rights.
• In other areas, it has to be recognized that the TRIPS Agreement does provide only for
minimum standards and does not aim at harmonizing all aspects of intellectual propertyrights.  Consequently, differences in the national protection systems appear to be
inevitable.
• Some of the shortcomings might relate to issues which could go beyond those purely
related to the protection of intellectual property rights and, therefore, might have to beaddressed in a more horizontal manner.
• Work is already well under way in other international fora, notably WIPO.  These
developments will be closely followed.
• At an appropriate time in the future, and taking into account work done in other fora, it
might be desirable to adapt or clarify the provisions of the TRIPS Agreement to reflect
new technological developments in order to help foster a legal environment whereelectronic commerce can develop to the benefit of all participants."
6. Future work of the Council for TRIPS on electronic commerce should build upon these
observations and the Council for TRIPS' Progress Report to the General Council of 30 July 1999.
7. Subject-matters relating to the protection of intellectual property should be addressed in the
Council for TRIPS.
C. 
FURTHER STUDY AREAS
8. It is the understanding of the European Communities and their member States that further
study in the Council for TRIPS should first concentrate on the core issues related to electronic
commerce and intellectual property rights.  There are, however, a number of broader issues which
may need to be studied to the extent that it se ems likely they may have an impact on intellectual
property rights.  These issues include electronic contracts, jurisdiction, applicable law and
enforcement.
9. On the core intellectual property issues, one can identify a number of major areas where
further study is required (see also WIPO Primer on Electronic Commerce and Intellectual Property
Issues of May 2000):  copyright and related rights, patents, trademarks, and the link between Internet
Domain Names and trademarks and geographical indications.  In addition, the Internet offers
opportunities for improved efficiency and accessibility for the filing applications for patents,trademarks and industrial designs.  Finally, the Internet may provide additional challenges to the
enforcement of intellectual property rights.  On a more general level, the Council for TRIPS was also
asked to examine further the way electronic commerce facilitates access to technology.IP/C/W/224
Page 3
10. As already recognized in the earlier communication by the European Communities and their
member States, as well as in the Progress Report of the Council for TRIPS to the General Council,
much work was and is already being undertaken in the WIPO.  It has to be recalled that the Progress
Report of the Council for TRIPS states that "further  study is required by the international community
to better understand the issues involved" and "that a great deal of work in this connection is under wayin the WIPO".  It also needs to be recalled that duplication of work should be avoided.
D. 
DISCUSSIONS IN THE COUNCIL FOR TRIPS
11. Discussions in the Council for TRIPS should concentrate on identifying possible
shortcomings in the TRIPS Agreement resulting from new technological developments and the
emergence of electronic commerce.  This work could, inter alia , take into account the analysis
undertaken so far by the WIPO.
12. Following the identification of possible shortcomings, the Council for TRIPS should
determine whether or not answers to identified shor tcomings need to be addressed in the framework
of the TRIPS Agreement bearing in mind that a number of these shortcomings are already addressed
in and through the WIPO.
13. The TRIPS Agreement is, to a large extent, built upon conventions established under the
WIPO at the time of the Uruguay Round.  New international conventions have, since then, beenadopted by the WIPO, such as the WIPO Copy right Treaty and the WIPO Performances and
Phonograms Treaty.  The WIPO is continuing substantive work on a number of issues related to
electronic commerce and the Council for TRIPS will have to decide, on a case-by-case basis, how
much this work should be taken into consideration and how and when the results of this work should
be reflected in the TRIPS Agreement.
14. Finally, the Council for TRIPS should examine how identified shortcomings should be
addressed in the TRIPS Agreement, e.g. through an interpretation of existing provisions or through
their revision and amendment.
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