By Catherine Saez
There are considerable differences in developing countries’ implementation of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and their use of flexibilities in it, according to speakers at a recent South Centre event.

Although developing countries have strong concerns about the TRIPS agreement, a significant number of them have implemented even higher IP standards than those required by TRIPS, according to research on 107 countries presented by Carolyn Deere, director of the Global Trade Governance Project at the University of Oxford.

The 5 December panel entitled “The Implementation Game: Developing Countries; the TRIPS Agreement and the Global Politics of Intellectual Property” was part of a seminar series at the South Centre.

Deere classified the countries studied into three groups: the TRIPS-plus countries (countries that went beyond their TRIPS obligations); countries which made mixed use of TRIPS flexibilities; and countries that are still in the process of reforms to meet TRIPS commitments.

Based on analysis of TRIPS-based legislative reforms, the TRIPS-plus countries range from Mali and Cambodia to the Dominican Republic, Mexico and Peru. There were 14 least-developed countries in the list. Deere’s survey showed that there is no clear correlation between the strength of IP standards and the Gross Domestic Product per capita. Some of the poorest countries in the world, like Niger, are among the TRIPS-plus countries, Deere said.

The explanation for the variation between developing countries seems to lie in the interplay of domestic politics and international pressure, Deere said. Developing countries are influenced by the degree of pressure applied by international donors, investors and trading partners, she said, but added that this does not explain the range of variation. Some countries, such as Brazil, which have been subject to pressures from the United States are not in the TRIPS-plus cluster, but rather make mixed use of flexibilities, she said.

The Implementation Game: A Battle for Influence

Two sides have been debating on TRIPS implementation: one in favour of swift compliance and limited use of flexibilities, and the other advocating a more flexible approach tailored to specific national development priorities. The first group uses coercive pressures such as trade deals and threats, WTO disputes and diplomatic demands, she said. To foster a “pro-IP climate”, this group also used the “power of ideas”, turning to the media, public outreach, research, monitoring and capacity building. The second group lacks the means to exert coercive pressure, Deere said, but nonetheless harnesses “ideational” power, including for example by running campaigns for an end to “TRIPS-plus” pressures that impact health and access to knowledge. To win over developing country decision-makers, the two groups engaged in a “research war” and a “competition” in the area of capacity building, she said.

According to Deere, politics at the national level contribute to the variation, either amplifying or filtering the influence of external pressures. In most developing countries, a lack of expertise and consultation within government, and the small number of active local interest groups limit national debate about TRIPS implementation. Instead, most governments defer to national IP offices for direction, she said, which in turn are strongly influenced by the largest donors, such as the World Intellectual Property Organization (WIPO). There also is lack of coordination between the national capitals and international government representatives, she said.

Deere’s research is expected to be published in a book in 2008.

TRIPS Flexibilities Difficult to Implement

Boumediene Mahi from the permanent mission of Algeria to the UN and coordinator of the African Group to WIPO, invited to comment on Deere’s presentation, added that most African countries had inherited colonial IP systems and had joined the TRIPS Agreement without having participated in negotiations. Moreover, he said, “there was big pressure on the developing countries during the TRIPS negotiations and it is still the case.”

Ignorance of the flexibilities and the way to use them has prevented countries from benefiting from them. Sometimes, “sub-regional offices such as the African Intellectual Property Organization made a decision that was applied in individual countries without them having the possibility to discuss the decision at national level,” said Mahi.

He also noted that the technical assistance to use flexibilities was essential. “It is only over the last two years that WIPO has started to deliver technical assistance” that refers to the flexibilities but there is still a number of least developed countries that do not know how to use them. Mahi said that the new WIPO Development Agenda promotes the idea of balanced protection: encourage innovation while protecting the public interest, which he said is an encouraging first step toward more fairness.

For Christoph Spennemann, legal expert of the intellectual property team at UN Conference on Trade and Development, there is a strong link between the degree of expertise and the use of flexibilities in developing countries. The countries which participated in the Uruguay Round of WTO negotiations that led to TRIPS make use of flexibilities and are aware of their implications while in developing countries that played little role in the negotiations there is a higher protection level.

The TRIPS-plus countries are sometimes more familiar with the potential benefits of IP than the challenges it can present, Spennemann said. He cited the example of local producers in West African countries who are keen on pharmaceutical patents, but lack awareness of the impact of IP on the public domain. Spennemann noted these producers believe that stronger IP protection can attract foreign investment but ignore the importance of flexibilities as a potential attraction for investors in generic industries. As a result, the pre-TRIPS colonial laws remain untouched or are modified into TRIPS-plus, Spennemann said. Those countries also have to face a “race of technical assistance providers to win the game,” he said. To attain better results in the use of flexibilities, he stressed the importance of IP capacity building that takes into account both development objectives and flexibilities.

Catherine Saez may be reached at csaez@ip-watch.ch.