Least-developed members of the World Trade Organization on 29 November agreed to extend the transition period for implementing the WTO agreement on intellectual property rights by seven and a half years, a reduction by half of their original request.

In addition, least developed countries agreed not to roll back on their commitments, and to individual reporting on their progress along the way.

Under the 1994 WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), least-developed countries (LDCs) were given a transition period to implement the agreement that was due to expire by 1 January 2006. They collectively sought a 15-year extension but met with opposition from developed countries and ultimately agreed to 7.5 years in a 29 November meeting of the TRIPS Council.

Also at the TRIPS Council meeting, discussions on TRIPS and public health were suspended, and an agreement was reached to continue talks on the relationship of the Convention of Biological Diversity (CBD) with the TRIPS agreement.

For the LDCs, the shorter extension period was a “painful compromise,” according to a statement made in the TRIPS Council by Rwanda obtained by Intellectual Property Watch. It said that it would generally compromise “in the spirit of wanting to move ahead.” Rwanda said all the LDCs present in the room, including Bangladesh, Uganda and Zambia, supported its statement.

Rwanda also noted that it had tried unsuccessfully to communicate LDCs’ dissatisfaction with certain provisions in the draft to the United States, the European Union, Switzerland and other countries of the Organisation for Economic Co-operation and Development (OECD) with which the LDCs met in informal consultations in recent weeks.

The United States countered the LDC request with a proposal for five years, later raising the figure to six years before settling on the final number, according to delegates.

The extension applies to intellectual property rights other than pharmaceutical patents (which have an deadline of 2016), such as copyrights, trademarks, other patents, geographical indications, integrated circuits, industrial designs and undisclosed information.

There was a mandate in Article 66.1 of the TRIPS agreement to extend the period. The article says that the TRIPS Council has to provide an extension but only if LDCs have made a “duly motivated request.”

The TRIPS Council meeting was a continuation of a suspended meeting held on 26-28 October.

Extension With Conditions

The decision on the extension period states that these member countries shall not be required to apply the provisions of the TRIPS agreement until 1 July 2013, other than articles three, four and five, which ensure no other WTO members’ companies are treated less fairly and applying World Intellectual Property Organisation agreements that they have previously signed.

There are 32 least developed countries at the WTO. Developed countries had previously suggested that extensions be granted on a case-by-case basis, with a review of progress in each country.

The decision states in paragraph two that all least-developed countries will provide the TRIPS Council “preferably by 1 January 2008 as much information as possible on their individual priority needs for technical and financial co-operation in order to assist them taking steps necessary to implement the TRIPS agreement.”

Rwanda took issue with this in the council meeting. It noted that it did not see a direct link between Article 66.1 (providing the extension) and technical assistance, which it said was dealt with in Article 67 on technical co-operation. It said that if a link had to be made, Article 66.2 on technology transfer should be included, saying it is a fundamental provision as well.

A least developed country official said that the reason why the extension had been introduced in the first place was that the LDCs did not have a viable technological base created by transfers of technology from developed countries.

Highest TRIPS Standards Apply to LDCs

Another sticking point in the proposal was that under paragraph five, during the transition period, LDCs are required to ensure that any changes in their laws, regulations and practice should not result “in a lesser degree of consistency with the provisions of the TRIPS agreement.”

Rwanda notes in its statement that this “standstill” provision “reduces the spirit of granting an extension of the transition period to LDCs.” This could mean that countries that have already implemented parts of the TRIPS agreement do not have any chance of rolling back, a source said.

In addition, some critics said that while these provisions appear in TRIPS Article 65.5, they are not intended to apply to LDCs, which have their own provision under Article 66. That would mean the new extension raises the standard for the least developed countries above the TRIPS. But paragraph six of the new decision states that the decision is “without prejudice” to a 2002 decision extending LDCs implementation related to pharmaceuticals, and to “the right of least-developed country members to seek further extensions of the period provided for” in Article 66.1.

The new decision also calls for co-operation with the World Intellectual Property Organisation and other international organizations.

TRIPS and CBD Issues Advance

TRIPS Council Chairman Choi Hyuck of Korea will report on the meeting to the WTO General Council, which is expected to meet before the 13-18 December ministerial in Hong Kong.

Key developing countries such as Brazil and India have sought negotiations in Hong Kong on the so-called CBD issues. These include the mandated review of TRIPS Article 27.3(b) on the patenting of life forms, disclosure in patent applications of genetic resources, and protection of traditional knowledge.

India at the meeting presented a proposal on the inclusion of CBD issues in the TRIPS Council report. The proposal references TRIPS Article 19 Doha ministerial declaration, which sets out the mandate for reviewing the relationship between TRIPS and CBD.

The agreed Indian proposal states that “further work is required” on the CBD issues. But under pressure from developed countries, the phrase was changed from “further work may be required for the council to make a recommendation.”

This proposal is less controversial than an earlier proposal that indicated that ministers should discuss the issue of disclosure of origin, sources said. In the latest proposal, India suggested that the TRIPS council should report this to the General Council, but this does not presuppose anything in terms of what will be discussed in Hong Kong, sources said.

The CBD issue will come up in some form in Hong Kong as the draft ministerial text presented on 26 November by the WTO director general made reference to the relationship between TRIPS and CBD. A developed country official expressed concern about the reference.

TRIPS and Public Health Ties to Hong Kong Still Unclear

The issue of TRIPS and public health was suspended again but as no progress was made, it was decided that it should be discussed further.

WTO members are under mandate to make a permanent waiver to TRIPS for countries without pharmaceutical production capabilities to import inexpensive drugs made under compulsory licence. A temporary waiver was agreed on 30 August 2003. The issue may come up in Hong Kong, but sides remain far apart on how to handle the General Council chairman’s oral statement at the 2003 agreement. The statement includes mention of countries that have opted-out of import under the waiver plus 11 advanced developing countries with a “partial opt-out” to only use it in case of national emergency.

African countries remain firm on allowing only that the statement could be read out again, with no discussion and nothing in writing. Some developed countries are seeking to include the chair’s statement in a written form. The 11 advanced developing countries mentioned in the statement oppose writing their commitment into the TRIPS text.

Sources say that the weakest possible outcome on TRIPS and public health is that members agree to continue discussing the issue further. A paragraph will be added to the draft ministerial text, but it is not required to be part of the single undertaking in Hong Kong, in which nothing can be agreed until everything is agreed (IPW, WTO/TRIPS, 28 November).

A developing country official said that TRIPS and public health would be an important part of Hong Kong and that there had been pressure from the United States and the European Union on the African ministers who met in Arusha, Tanzania, last week to emphasise the importance of finding a solution before Hong Kong.

“The issue of TRIPS and public health is of crucial importance for African countries,” states the declaration from Arusha. “We are committed to finding an expeditious and appropriate permanent solution based on paragraph 11 of the General Council decision of 30th August 2003, while maintaining the balance therein. The solution should be put in place before the Hong Kong-China ministerial conference.”