LDC Request For Waiver Of IP Obligations Meets Conditions From Developed Countries

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The request by least developed countries (LDCs) to push back the date on which they would have to enforce intellectual property rules under the World Trade Organization is the subject of informal consultations between delegations, as the deadline is fast approaching. Particularly at stake is the time period of the extension, which developed countries would prefer to be limited. Meanwhile, well over 100 academics have voiced support for the LDCs’ request.

At the last meeting of the WTO Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS), in March, least developed countries confirmed a request formulated in November, for the extension of the transition period to enforce intellectual property protection measures (IPW, WTO/TRIPS, 6 March 2013).

LDCs asked that the transition period be extended beyond the current date of 1 July 2013 and remain active as long as a country remains an LDC. LDCs already benefit from a separate transition period for pharmaceutical patents until 1 January 2016. Although a large consensus emerged to grant the extension, developed countries voiced their preference for a time-limited extension at the March meeting.

Another problem for developing countries is the so-called “no roll-back clause,” already in the general provision of the last extension granted to LDCs in November 2005. This clause seeks to ensure that if LDCs have granted intellectual property protection to some products, they cannot go back on this decision. Developed countries are in favour of keeping such a clause in the next extension. Developing countries consider this clause as a hindrance to their ability to use policy space.

Developed countries, in particular the European Union and the United States, supportive of a time-limited extension, have argued that intellectual property is a key element in helping LDCs develop and have said a time limit would serve as an incentive.

The European Union said at the March meeting that the request by LDCs did not take into account the role of IP and the TRIPS agreement in helping LDCs build “a viable technological base,” and noted that “significant work has already been achieved in development of intellectual property systems, for which LDCs should be congratulated and encouraged.”

According to a developed country source, developed countries would like to have a clear sense of direction. Taking a “step backward” on IP measures already established in LDCs could be hindering the process of integration, the source told Intellectual Property Watch. Discussions are ongoing as LDCs have been requested to give examples of potential “rollbacks,” the source said.

A delegate from an LDC country told Intellectual Property Watch that it is important that the extension be awarded as long as a country remains an LDC because many LDCs do not have a technological base. Without that technological base, LDCs would not be able to benefit from intellectual property protection, which might actually hinder their development, according to some sources.

LDCs are, however, signatories of many intellectual property treaties, such as the World Intellectual Property Organization-administered Paris Convention for the Protection of Industrial Property, or the Berne Convention for the Protection of Literary and Artistic Works, he said, and the extension will not have any effect on those countries’ commitment to those treaties. The roll-back would not apply to already signed treaties, he said. At the last TRIPS Council, the principle of extension has already been accepted by member states, he added.

Middle-income countries have voiced their support for the LDCs’ request. An Indian diplomat told Intellectual Property Watch that the LDC request had the full support of India, whether it is on the extension as long as a country is considered an LDC, or on the no roll-back clause. Brazil also had expressed its support during the last TRIPS Council meeting.

Separately, the LDC extension has in the past had the support of developed countries and the International Federation of Pharmaceutical Manufacturers and Associations (IPW, WTO/TRIPS, 10 February 2011).

Academics Join with LDCs, Invoke TRIPS Rules

Meanwhile, as many as 130 international academics have published a letter of support for the extension and warned of pressure by developed countries to attach conditions to this extension.

The “Global Academics’ Expert Letter on LDCs’ TRIPS Extension Request,” was published on 27 April. In the letter, the signatories ask for an “unconditional extension of the time period within which LDC Members must become compliant with the WTO TRIPS Agreement,” referring to the Agreement on Trade-Related Aspects of Intellectual Property Rights.

The signers are legal and other academics from high, middle, and low income countries specialising mainly in areas such as international intellectual property and trade law, development studies, and human rights.

The authors of the letter say that “the requested extension is grounded on both the history and language of Article 66.1 of the TRIPS Agreement and on the need of LDC Members to retain policy space if they are to develop their technological base such that intellectual property protections might be helpful rather than harmful to their development processes.”

Article 66.1 of the TRIPS (Least-Developed Country Members) 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.”

On the roll-back issue, according to the letter, Article 66.1 allows LDCs to “dismantle any intellectual property legislation that they had enacted prior to the adoption of the TRIPS Agreement or even during the original LDC transition period.” This right ought to have been taken into account in the previous extension, the authors said. Consequently, paragraph 5 of the 2005 extension has therefore been “improvidently granted, and such a provision should not be incorporated into the 2013 extension,” they said.

Since 1991, “very few LDCs have been able to graduate from LDC status,” with the exception of Botswana, Cape Verde, and the Maldives, the authors said. And while “several other countries are on the threshold for graduation,” they said that “many LDC Members have not even approached eligibility for graduation.”

According to the authors, “there have been reports that certain developed country Members, particularly the U.S. and E.U., are putting pressure on LDC Members and their allies to water-down their extension request and to accept a much shorter timeframe (as little as five years); a stay-put provision locking in existing levels of intellectual property protection; differential approaches for different intellectual property rights, i.e. patents and trademarks; and/or differential treatment for different LDC Members.”

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

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