WTO: Wide Support For LDC TRIPS Extension, With A Hitch

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The World Trade Organization committee on intellectual property rights met this week and addressed a request by least developed countries for an extension of the period to enforce WTO intellectual property rules. LDCs want that the extension be extinguishable only after a country ceases to be considered as ‘least developed’, which developing countries largely supported. Developed countries, however, were hesitant about the terms of the proposed extension.

The WTO Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) met from 5-6 March. Following a first request in November 2012, least developed countries (LDCs) asked that the transition period to enforce intellectual property protection measures be extended beyond the current date of 1 July 2013, and as long as a country remains an LDC. LDCs already benefit from a separate transition period for pharmaceutical patents until 1 January 2016.

According to several sources, this request was met with broad support for the principle of the extension, but with different positions, as most developing countries who took the floor backed the LDC request as developed in the request [pdf] originally circulated in November, while developed countries took a more precautionary approach and raised concerns about the lack of time frame of the considered extension of the transition period.

The transition period does not exempt LDCs from applying TRIPS, according to a WTO source, but gives them flexibility in choosing whether or not to protect trademarks, patents, copyrights, industrial designs, or any other type of IP.

One of the issues at stake is the so-called “no roll-back clause,” which appears in the general provision of the first extension granted to LDCs in November 2005. The provision states the following: “Least-developed country Members will ensure that any changes in their laws, regulations and practice made during the additional transitional period do not result in a lesser degree of consistency with the provisions of the TRIPS Agreement.”

This clause, according to developing country sources, requests that if LDCs have granted some intellectual property protection to some products, they cannot go back on this decision, thus hindering their ability to use the policy space given them by Article 66.1 of the TRIPS.

Another issue is the link that was made in the first extension of November 2005 between the extension and the requirement for developed countries to provide technical assistance for least developing countries. Some developing countries and LDCs see the link as erroneous and consider the transition period as flexibility in the TRIPS providing LDCs with policy space. Developed countries, on the other hand, according to several sources, consider the transition period as extra time to comply with TRIPS obligations.

New TRIPS Council Chair Alfredo Suescum of Panama will conduct informal consultations on the matter before the next TRIPS Council meeting expected to take place from 11-12 June, according to sources.

Developing Countries in Support of the LDC Request

Brazil said in its statement that it supports the request for three reasons. First, special and differential treatment provisions are an important systemic component of various WTO agreements. Also, Brazil supports the principle that the international IP system should have policy space for “countries to adjust and calibrate their national legislation in accordance with their respective stages of social and economic development.” And finally it said, “the incorporation of developing countries, in particular the least developed ones, into the so-called knowledge economy has proved to be a daunting challenge, the complexity of which could barely be assessed almost twenty years ago, when the Uruguay Round was completed.”

Zambia said LDC economies are faced with economic, financial and administrative constraints, special needs and requirements, which called for “maximum flexibilities” under the TRIPS agreement, which the delegate said was acknowledged in the TRIPS preamble, according to sources. IP, the delegate said, is a “highly complex” subject, interlinked with many sectors and “requires careful planning,” expertise and the strengthening of institutional capacities.

Nepal, which presented the request yesterday, said in its statement that the fact that LDCs could ask for an extension of their transition period was an important flexibility available for LDC under the TRIPS agreement, according to sources. He said LDCs are home to more than 50 percent of people living in extreme poverty and that LDCs’ economic indicators have not changed since 2005, with no possible spare government money to spend on research and development.

India concurred and, according to sources, said that the 2005 extension required an obligation from LDCs to submit priority needs to meet the objectives of Article 67 of TRIPS (on technical cooperation). Article 67 requests that developed countries provide technical and financial cooperation in favour of developing and least-developed country members. India said the link between articles has created confusion since there is no relation between the requirements of Article 67 and Article 66.1. A no roll back provision in the 2005 extension “has no place in the TRIPS Agreement,” and had reduced the policy space for LDCs, he said.

Cambodia, China, the African Group, Bolivia, Jamaica and South Africa also supported the LDC request.

An LDC delegate told Intellectual Property Watch that developed countries were broadly supporting the extension but were at the same time trying to trifle it with conditions.

Developed Countries Cautious

According to a source, the United States said many LDCs have IP laws and have taken steps to implement TRIPS, and it was essential to preserve the accomplishments made. According to a US trade official, “the United States supported the December 2011 decision by WTO ministers to give full consideration to a duly motivated request from LDC members for an extension of the TRIPS Agreement transition period. We look forward to continuing to work with WTO members on this matter.”

The European Union, in its statement, said it is “willing to consider an extension beyond the current deadline of July 2013.” But the EU expressed some discomfort.”The most important concern the EU has with the proposal we received is that it lacks both a clear and predictable perspective and it remains silent on how IP and the TRIPS Agreement could specifically help LDCs in building a viable technological base,” it said.

The EU recalled the extensive technical assistance efforts made by its member states, other members and international organisations like the World Intellectual Property Organization. “Proper consideration should be given to how technical assistance can be targeted to help LDCs, potentially focusing primarily on areas of most immediate utility, and with realistic timeframes in place,” the delegate said. According to the statement, “a study that considers the progress made by LDCs in introducing IP systems in their jurisdictions is being conducted, financed by one of our Member States and facilitated by the WTO Secretariat.”

Civil Society Backs LDC Request

According to Sangeeta Shashikant of the Third World Network, “the reason developed countries are pushing for a short transition period is to make sure LDCs do not use the policy space intended by Article 66.1. Developed countries are ignoring what is the legal basis of the transition period clearly stated in Article 66.1 and keep stressing TRIPS Compliance.”

“Just because LDCs have implemented certain aspects of TRIPS, they should not be bound by it. The whole rationale of the transition period was to give them flexibility. If they realise that certain provision are not working in their development interest they should have the option of rolling back,” she told Intellectual Property Watch.

“LDCs are very clearly on solid legal ground with their request and developed countries have decided they are going to backtrack on their legal commitments under Article 66.1, which states that ‘the Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period’, and they are ignoring the promises they have made to LDCs in terms of supporting them and giving them policy space,” she said.

Stakeholder Support for Extension

In the run-up to the TRIPS Council, a number of organisations voiced their support for the extension of the transitional period for LDCs. Over 300 civil society organisations co-signed a letter of support on 21 February (IPW, WTO/TRIPS, 26 February 2013). The UNAIDS and the United Nations Development Programme (UNDP) organisations published an issue brief entitled, “TRIPS transition period extensions for least-developed countries“ in support of the extension on 26 February.

The Computer & Communications Industry Association (CCIA) published an op-ed piece in support of the LDCs in the Intellectual Property Watch Inside Views column (IPW, Inside Views, 4 March 2013). In a release, CCIA said it “endorsed a bid by the world’s Least Developed Countries (LDC’s) to remove any specific deadline for full compliance” with TRIPS.

“As a technology trade organization, CCIA believes premature implementation of stepped up protections would be counterproductive, adding costs to public health systems and other administrative burdens at a moment when these countries are contending with human and technological barriers to modernization,” it said.

“These countries will eventually benefit from implementing a balanced intellectual property system, but they need to be free to do this when they judge themselves ready, not on an arbitrary timeline set by others, ” CCIA President and CEO Ed Black said in the release.

Electronic Information for Libraries (EIFL) joined in with a statement in support of the LDCs’ request. EIFL is an international nonprofit organisation aiming to facilitate access “to knowledge for education, learning, research and sustainable community development through libraries in more than 60 developing and transition countries.”

EIFL calls for WTO members to grant the request of the LDCs “without pre-condition.” In particular, they said the request that the transition period apply until a member ceases to be a LDC is “reasonable and fair, as it will serve to quicken the emergence from LDC status.”

They also added that they “believe that it is counter-intuitive to place conditions or to exclude certain areas, such as copyright, from the request. Placing a constraint on one element of a nascent domestic IP system that is inter-connected will hinder development.”

Other organisations also came out in support of the LDCs request, such as Northeastern University law Professor Brook Baker from US-based Health Gap, who said, “There’s no excuse for the TRIPS Council having failed at its March meeting to grant what is a mandatory extension of the LDC transition period pursuant to LDC’s proper motivation.”

“Granting monopolies to transnational IP companies in the poorest countries in the world is guaranteed to slow development in both technology and human capacity,” he said. “Access to medicines, educational, informational, and cultural resources, agricultural inputs, and green technologies is critical to human rights and survival in these countries. The efforts of the US and EU to pare down and conditionalize this extension-of-right must be condemned.”

Romain Benicchio, policy adviser for Oxfam, and Mulumba Moses from the Center for Health, Human Rights and Development (CEHURD) in Uganda, also supported the request.

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

Creative Commons License"WTO: Wide Support For LDC TRIPS Extension, With A Hitch" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.

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  1. [...] Four of the five EAC countries are LDCs, with only Kenya being classified as a Developing Country by the United Nations. Therefore, the transition period under TRIPS exempting LDCs from the obligation to protect patents on pharmaceutical products or clinical test data until 1 January 2016 – or later – is of particular importance. The policy calls on EAC LDCs to “take advantage” of this transition period and to allow for an eventual extension (IPW, WTO/TRIPS, 6 March 2013). [...]

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