WTO: LDCs To Press For Extension For TRIPS, Plain Packaging BackPublished on 26 February 2013 @ 2:15 pm
By Catherine Saez, Intellectual Property Watch
Least developed countries next week will ask that World Trade Organization members grant them another extension of the transition period to enforce intellectual property protection measures beyond the current date of 1 July 2013. In addition, the issues of plain packaging for tobacco products and innovation will be back on the agenda of the WTO intellectual property committee.
The WTO Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is scheduled to meet on 5-6 March.
[Update: - corrected] The UNAIDS and the United Nations Development Programme (UNDP) organisations have announced their strong support for the LDC extension. Details here.
UNAIDS and UNDP launched a new issue brief entitled, “TRIPS transition period extensions for least-developed countries“. The brief “outlines that failure to extend the transition period for least-developed countries to become fully compliant with [TRIPS] could seriously impede access to lifesaving antiretroviral treatment and other essential medicines for people most in need,” they said in the release. [end update]
Informal discussions between countries have been going on about the extension in the run-up to the upcoming TRIPS Council, according to several sources. An LDC source told Intellectual Property Watch that the proposal to make the extension infinite was meeting reluctance from developed countries. This was confirmed by a developed country source who told Intellectual Property Watch that the upcoming TRIPS Council would give countries the opportunity to discuss the LDCs proposal and that a finite extension might be more appropriate.
Over 300 civil society organisations have co-signed a letter supporting a request by the Least Developed Countries to extend the transition period from which they benefit under the World Trade Organization intellectual property agreement.
The letter [pdf] dated 21 February, calls on members of the World Trade Organization to “unconditionally accord the LDC Group an extension of the transition period as requested by the LDC Group.” The group made the request at the last WTO Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which met on 6-7 November (IPW, WTO/TRIPS, 7 November 2012).
An NGO fact sheet on LDC extension is here.
Haiti, on behalf of the least developed country members, circulated a request [pdf] dated 5 November 2012 for an extension of the transitional period under Article 66.1 of the TRIPS Agreement.
The request said “The situation of LDCs has not changed significantly since the last extension decision in 2005,” and that “LDCs continue to play a very marginal role in the world economy, and their growing integration in the global market has been accompanied by very limited advances (if any) in their relative position compared with the rest of the world.”
“Least developed countries’ productive capacity is limited,” the document said, and LDCs have serious infrastructure deficits. “The least developed country Members of the WTO continue to face serious economic, financial and administrative constraints and need maximum flexibility to create a sound and viable technological base,” it said.
Moreover, “because of their extreme poverty, least developed country Members need the policy space to access various technologies, educational resources, and other tools necessary for development. Most IP protected commodities are simply priced beyond the purchasing power of least developed country Members and their nationals,” LDCs said in the request.
LDCs thus submitted a request for an extension of the transitional period ending on 1 July 2013 “for as long as the WTO Member remains a least developed country.” At the November TRIPS Council meeting, no decision on this request was taken as the item was put on the agenda late and under “other business.”
“We are of the view that Article 66.1 obliges the TRIPS Council to approve without conditions the duly motivated request submitted by the LDCs,” said the NGO letter, adding that “LDCs face ongoing resource and human constraints, widening technological gaps, and weak innovative capacities. Overcoming these problems takes contextually specific strategies, policy flexibility, greater financial resources, but it also takes time – decades not years.”
The letter also states that “LDCs are fully justified in seeking a group extension rather than individual country extensions and in seeking extensions with respect to all TRIPS obligations rather than select obligations only.” The NGOs are calling for WTO members to support and agree to the draft text presented by the LDCs so that “Least developed country Members shall not be required to apply the provisions of the Agreement, other than Articles 3, 4 and 5, until they cease to be a least developed country Member,” and that no conditions and limitations be attached to the decision that could limit the policy space and flexibility available to LDCs under Article 66.1.
Article 66.1 of the TRIPS [pdf] states:
“1. In view of the special needs and requirements of least-developed country Members, their
economic, financial and administrative constraints, and their need for flexibility to create a viable technological base, such Members shall not be required to apply the provisions of this Agreement, other than Articles 3, 4 and 5, for a period of 10 years from the date of application as defined under paragraph 1 of Article 65. The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period.
2. Developed country Members shall provide incentives to enterprises and institutions in their
territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base.”
Article 3 deals with “National Treatment,” Article 4 is on “Most-Favoured-Nation Treatment,” and Article 5 on “Multilateral Agreements on Acquisition or Maintenance of Protection.”
In June 2002, the TRIPS Council adopted a decision following the instruction of the Ministerial Conference to the Council for TRIPS contained in paragraph 7 of the Declaration of the TRIPS Agreement and Public Health [pdf], known as the Doha Declaration, according to which LDCs would not be “be obliged, with respect to pharmaceutical products, to implement or apply Sections 5 and 7 of Part II of the TRIPS Agreement or to enforce rights provided for under these Sections until 1 January 2016.”
In 2005, the TRIPS Council decided on an extension of the transition period under Article 66.1 of the agreement for LDCs members until 1 July 2013. The decision also called for enhanced technical cooperation for LDCs.
The civil society letter concludes by saying that “attempt to weaken or to refuse Least Developed Countries (LDCs) rights that they are entitled to under the TRIPS Agreement will damage the credibility of the WTO as it will show that the multilateral trading system is unable to benefit the poorest and most vulnerable segment of the international community.”
The letter is co-signed by global, inter-regional and regional, and national networks and organisations such as Consumers International, Friends of the Earth, Health Alliance International, Médecins Sans Frontières, Oxfam International, Third World Network, Health Action International in Africa, Asia Pacific and Europe, Electronic Frontier Foundation, Public Citizen, and IP Justice.
The next TRIPS Council is scheduled from 11-12 June, before the deadline of 1 July 2013.
Innovation, Plain Packaging
According to sources, Chile, South Korea, Taiwan, and the United States have asked that intellectual property and innovation in the context of small and medium-sized enterprises be discussed next week.
Also, the Dominican Republic has asked that a measure by New Zealand to introduce a plain packaging measure on tobacco products be discussed. The issue of the New Zealand plain packaging measure was discussed during the WTO Committee on Technical Barriers to Trade (TBT) in November 2012.
New Zealand notified the TBT committee about its proposal to introduce plain packaging legislation in July 2012. The New Zealand Ministry of Health website indicates that “The Government has agreed in principle to introduce a plain packaging regime for tobacco, subject to the outcome of a consultation process.”
The website says that the deadline for submission for the consultation was closed on 5 October 2012 and that over “20,000 forms and template letters, post cards and petitions” were received by the Ministry of Health.
The issue of plain packaging has already been discussed in the TRIPS Council in 2011 (IPW, WTO/TRIPS, 16 June 2011), and in July 2012, the Dominican Republic notified the WTO that it had launched a dispute settlement case against Australia its plain packaging law (IPW, IP-Watch Briefs, 18 July 2012). According to the WTO, on 9 November 2012, the Dominican Republic requested the establishment of a panel, and the WTO Dispute Settlement Body in its meeting on 17 December 2012, deferred the establishment of a panel.
Catherine Saez may be reached at email@example.com.
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