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

    Published on 9 May 2013 @ 6:04 pm

    By , Intellectual Property Watch

    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.

     

    Comments

    1. Allow TRIPS waiver for LDCs until they are developed | Don't trade our lives away says:

      [...] Source: IP Health [...]

    2. LDCs Obtain New Waiver On IP Obligations At WTO, Take It As A Limited Victory | Intellectual Property Watch says:

      [...] The no roll-back clause was vehemently fought by LDCs, civil society and a number of academics, as hindering the ability of LDCs to use the policy space given them by Article 66.1 of the TRIPS (IPW, WTO/TRIPS, 9 May 2013). [...]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

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    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

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    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

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