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    WTO Members Agree On Draft Extension Of TRIPS Transition For LDCs

    Published on 7 June 2013 @ 10:59 pm

    By , Intellectual Property Watch

    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.

     

    Comments

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

      [...] 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. WTO TRIPS Council: Discussion Of Innovation Shows Divergent Views; Tobacco Back On Agenda | Intellectual Property Watch says:

      [...] The paper called for a number of actions to be taken, in particular a review of Article 31 of TRIPS, on “Other Use Without Authorization of the Right Holder,” and an evaluation of Article 33 of the TRIPS on the term of protection (IPW, WTO/TRIPS, 7 June 2013). [...]

    3. UPOV Approves ARIPO Draft Legislation Spreading Plant Variety Protection To Africa | Intellectual Property Watch says:

      […] countries, which benefit from an exemption to the implementation of TRIPS running until 2021 (IPW, WTO, 7 June 2013). The UPOV convention represents a sui generis system to protect new varieties of plants, such as […]


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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.

    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.

    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.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    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.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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