The following communication has been received by the Secretariat from the Permanent Mission of India on 8 July 1999.

1. Electronic commerce is a new and complex area for many Members, including India. The Secretariat's paper IP/C/W/128 lists out very lucidly some key issues that need to be appreciated in the context of the applicability of existing IPR standards and rules to electronic commerce. Based on the discussions held so far, it would be unrealistic to assume that all IPR related aspects of electronic commerce have been addressed, including the dynamism that underpins its growth and diversity.

2. The Work Programme on Electronic Commerce established by the General Council, mandates the examination of three issues, in particular, by the TRIPS Council. First, the protection and enforcement of copyrights and related rights. India believes that the work underway in WIPO could be considered in conjunction with the scope and applicability of the TRIPS Agreement to electronic commerce. Horizontal issues relating to jurisdiction and territoriality may be of particular relevance, in addition to the possible new dimensions on enforcement of such rights.

3. Second, the protection and enforcement of trademarks. Issues of public interest exceptions and questions relating to definition of publication and rights of reproduction may need special consideration in view of the technological differences created by electronic commerce. The issue of domain names and their status in the context of IPRs also needs special attention. At present, domain names do not have the status of trademarks. Thus, substantive elements of trademarks law would need to be examined. A key consideration in this examination would be whether the TRIPS Agreement can mutatis mutandis apply to domain names.

4. India believes that intrinsically related to both the protection and enforcement of copyrights and related rights as well as of trademarks, is the issue of control on assignment of domain names and regulations necessary for addressing all such concerns relating to IPRs including inter alia jurisdiction and territoriality. While India appreciates that electronic commerce should be free of excessive governmental interference, it would be premature to reach any conclusion in this regard. Discussions in the WTO as well as in WIPO should not suggest precluding the possibility of an alternative mechanism of assignment of domain names to the one emerging at present.

5. Third, on new technologies and access to technology, India has already flagged concerns on transfer and dissemination of technology as an unachieved objective in the TRIPS Agreement and elsewhere in the WTO. These concerns would also need to be addressed in the context of electronic commerce. Enforcing effective competition for a level playing field, especially for small and medium enterprises, may also have to be addressed. Deregulation and liberalization alone may not be the answer to transfer and dissemination of technology as has been evidenced in other areas of business. The development dimension of electronic commerce would therefore need to be integrated in the discussions in the TRIPS Council.

6. It is clear that these concerns as well as other raised by Members need time to be understood and addressed, and that the debate on electronic commerce needs to be made more intensive and wide before any views on future action can evolve. India reserves the right to revert to these issues later.