WTO Members Agree On Draft Extension Of TRIPS Transition For LDCs

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World Trade Organization members today reached a draft decision on a request put forward by least-developed countries to extend the period during which they do not have to comply with international rules of intellectual property rights protection, according to sources. Under the terms of the hard-fought decision, LDCs can benefit from an extension of eight more years.

The draft decision is expected to be confirmed during the WTO Council on the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), taking place on 11-12 June.

Also on the agenda of the TRIPS Council is a request from Ecuador to discuss the issue of IP in relation to the transfer of environmentally-sound technology, and a discussion on IP and innovation requested by a group of developed countries.

During the November 2012 TRIPS Council meeting, Haiti on behalf of the least-developed country members, circulated a request [pdf] for an extension of the transitional period under Article 66.1 of the TRIPS Agreement (IPW, WTO, 7 November 2011). This request to extend the period to enforce intellectual property protection measures was confirmed at the last TRIPS Council in March (IPW, WTO/TRIPS, 6 March 2013).

LDCs, which are under a transition period until 1 July 2013, and for pharmaceutical patents until 2016, asked that the transition period ending in 2013 be extended and remain active as long as a country remains an LDC.

If most WTO member countries agreed on the principle of an extension, developed countries were reluctant from the start regarding the open timeframe of the extension, favouring a time-limited extension. According to some sources, developed countries suggested the same extension period as the previous extension in 2005, some seven and a half years.

Since March, informal meetings have been held by TRIPS Council Chair Alfredo Suescum, the ambassador of Panama, in order to find common ground for the extension (IPW, WTO, 24 May 2013).

According to the draft decision, the deadline to protect IP under TRIPS will be extended by eight more years, until 1 July 2021. An LDC source told Intellectual Property Watch that the draft decision met the general approval of member states, although it is not an optimal result for LDCs.

Another issue was the so-called “no roll-back clause,” which is contained in the general provision of the first extension granted to LDCs in November 2005, and insures that during the additional transition period, no changes in laws of LDCs would result in lesser IP protection. LCDs had requested that this clause not be included in the new extension but came under pressure from developed countries.

The European Union published its position [pdf] on 27 May, recommending that the same extension period be granted to LDCs as the last extension, or until a country ceases to be an LDCs, whichever comes first. They also supported the no roll-back clause, with technical assistance to help LDCs in their current TRIPS implementation stage.

The draft decision states that: “Recognizing the progress that least developed country Members have already made towards implementing the TRIPS Agreement, including in accordance with paragraph 5 of IP/C/40,[last extension] least developed country Members express their determination to preserve and continue the progress towards implementation of the TRIPS Agreement.”

“Nothing in this decision shall prevent least developed country Members from making full use of the flexibilities provided by the Agreement to address their needs, including to create a sound and viable technological base and to overcome their capacity constraints supported by, among other steps, implementation of Article 66.2 by developed country Members,” the draft decision says.

It is also noted that the decision will not prejudice the extension of the transition period that LDCs have been granted on pharmaceutical products, and that LDCs can seek further extensions of the period that they are being awarded this month.

Paragraph 5 of the previous extension, which was the no-roll back clause, does not appear as such in the draft decision. It stated: “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.”

Strong Support for LDCs in Civil Society, Academia

Civil society and academics have voiced support for the LDCs extension, on the terms they had requested (IPW, WTO, 9 May 2013). Arjun Karki, international coordinator of non-governmental organisation LDC Watch, recently published an article in República in which he said, “It is a given that the 49 LDCs spreading over Sub-Saharan Africa, the Caribbean and the Asia-Pacific are poor and vulnerable – more than 75 percent of around 900 million population in these countries live in poverty; one fourth are under-nourished..”

On the reluctance of some developed countries to oppose the unlimited time frame, he said. “It is sheer hypocrisy that these countries themselves blatantly copied, imitated and borrowed each other’s intellectual property for their technological advancement in the pre-IP era and now they are imposing the false notion that IP is essential for development, which basically guides their current opposition to LDCs’ request,” he concluded.

Prof. Fred Abbott of Florida State University law school, in a paper [pdf] published by the International Centre for Trade and Sustainable Development entitled, “The LDC TRIPS Transition Extension and the Question of Rollback,” wrote that “The assumption for the developed country Members may be that by providing an extended relief from TRIPS Agreement compliance requirements, LDC Members (and their citizens) may have or develop reduced respect for IP and/or IP obligations.”

“If a robust intellectual property system is important to the development and maintenance of a technologically developed economy, the prospects that LDCs either as a group or individually would use an extended transition as the long-term basis for avoiding the implementation of TRIPS-compatible IP systems appears rather remote,” he wrote.

Green Technologies and Flexibilities

Other items on the upcoming TRIPS Council are a discussion on intellectual property, climate change and development. This has been requested by Ecuador. The document titled, “Contribution of intellectual property to facilitating the transfer of environmentally rational technology,” touts the importance of technology and its transfer for the adaptation to climate change and the mitigation of its effects.

IP rights, the paper says, can create a monopolistic situation leading to high prices and a restriction of the dissemination of knowledge for adaptation and use of environmentally-sound technology.

Several objectives are served by the paper, among which is a reaffirmation of the existing TRIPS flexibilities that can be used for environmentally-sound technology, and an invitation to review TRIPS Article 31 (Other Use Without Authorization of the Right Holder) “to determine which of its provisions may excessively restrict access to and dissemination” of such technologies.

The paper also lists the evaluation of the regulation of voluntary licensing, the recognition that in the context of climate change mitigation and adaptation should be considered as “public interest” providing for an exemption from patentability “on a case-by-case basis,” and an evaluation of Article 33 (Term of Protection) of TRIPS “to establish a special reduction in the term of protection for a patent to facilitate free access to specific patented environmentally-sound technology.

Discussions on IP and Innovation

A group of members, including Canada, Chile, the EU, South Korea, Switzerland, Taiwan and the US, have asked that a discussion be held on intellectual property and innovation, with a particular focus on cost-effective innovation, according to a source.

IP and innovation have already been discussed twice during previous TRIPS Council meetings (IPW, WTO, 7 November 2012), (IPW, WIPO, 26 February 2013).

Other items on the agenda are recurring and have not shown progress for a number of sessions, such as the review of the provision of TRIPS Article 27.3(b) (Patentable subject-matter, plants and animals), the relationship between the TRIPS and the United Nations Convention on Biological Diversity, and the protection of traditional knowledge and folklore (IPW, WTO, 7 November 2013).

Also on the agenda is the review of the provision of the section on geographical indications under article 24.2, which has been stuck for a number of years (IPW, IP-Watch Briefs, 7 December 2012).

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

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  1. […] A draft decision issued on 7 June proposed an eight year extension, a long way from the initial request by LDCs that the extension remains open until a country is no longer considered to be an LDC. But after resistance from developed countries (which own the majority of IP rights), a compromise was reached last week, though LDCs found it to be a suboptimal result (IPW, WTO/TRIPS, 7 June 2013). […]

  2. […] The strategy adopted by Bangladesh is partly linked to the current intellectual property conditions benefitting the country. Under the 1994 World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), LDCs are exempted from enforcing IP rights on pharmaceutical products until 2016. A parallel exemption for other products ended in 2013 and an additional extension was granted to LDCs until 2021 (IPW, WTO/TRIPS, 7 June 2013). […]

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