TRIPS Council Extends Health Amendment; Targets Poor Nations’ Needs

By William New
The World Trade Organization committee on intellectual property rights on Tuesday gave a two-year extension for countries to ratify a public health agreement easing countries’ ability to import cheap medicines. It also addressed needs assessments for least-developed countries, which are to implement WTO rules on IP rights by 2013.

The WTO Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreed to extend the deadline for ratifying a 2005 TRIPS amendment for public health after only 11 of the necessary 100 WTO members ratified it. The deadline for ratification was the end of 2007 and was moved to 2009. The amendment makes permanent a TRIPS waiver allowing countries lacking production capabilities to import drugs made under compulsory licence. [Clarification: the waiver allows the export of drugs made under compulsory licence to countries lacking production capabilities – the change is to the export rules not the import.] Currently the waiver is available temporarily under an August 2003 agreement.

The 11 countries ratifying the health amendment could be described as developed or friendly to developed-country approaches to IP policy. None of the smaller economies in the WTO apart from El Salvador have ratified.

Separately, a look at the documents circulated at the meeting showed that all of the usual international organisations had submitted their reports on related issues to the TRIPS Council except the World Health Organization. The WHO has submitted reports for several years but did not appear to be among the usual list that includes the UN Conference on Trade and Development, International Union for the Protection of New Varieties of Plants, and World Intellectual Property Organization (which filed its paper at the last minute). There have been tensions at WHO in recent months on issues related to trade.

Technical Assistance on the Rise

Developed countries were called upon to explain their efforts in encouraging their companies to promote technology transfer, as called for under TRIPS Article 66.2. The WTO secretariat also submitted a brief explanation of its activities in this area.

On the LDC needs assessments related to their TRIPS implementation, the TRIPS Council addressed papers submitted to the 23-24 October meeting by Sierra Leone and Uganda on needs for technical and financial cooperation (documents IP/C/W/499 and IP/C/W500 respectively). The Council will continue work on the topic on Wednesday, participants said.

In 2005, least developed countries were given an extension of the deadline for TRIPS implementation to 2013 (2016 for some patent issues), and it was suggested that they provide information on needs for implementation. Developed countries say they expect to see signs of progress within countries in exchange for the extension.

The LDCs were asked to provide information on their “priority needs” for assistance, according to sources. The International Centre for Trade and Sustainable Development worked with LDCs on this, and Uganda and Sierra Leone presented their list of needs on Tuesday.

Other LDCs might consider the two papers as models for their own needs assessments, but some LDC officials told Intellectual Property Watch they were concerned about being held to commitments as a result of this. However, an official from Uganda said they have stated that the list is subject to change.

In the government’s statement to the Council, the Ugandan official expressed hope that “developed partners will also live [up] to their expectations of responding positively” and provide the needed assistance and technology transfer. In particular, the government said it wishes to be on a path to developing a domestic creative and innovative industry and technological base. It also stressed the importance of its special and differential treatment as an LDC, “especially in terms of its explicit entitlement to maximum policy flexibility.”

Needs identified by Uganda include building an IP policy and legal framework, administration, enforcement, innovation, technology transfer and using IP for development. It laid out a plan for long-term capacity building.

Uganda highlighted the need to implement TRIPS coherently with other international arrangements such as the Convention on Biological Diversity, the Food and Agriculture Organization treaty on Plant Genetic Resources, conventions at the World Intellectual Property Organization, treaties and resolutions at the World Health Organization, and other mechanisms such as regional agreements.

Sierra Leone’s needs assessment ran along similar lines to Uganda’s, but provided more detail.

First Notification of TRIPS Waiver

Another issue addressed on Tuesday was the first-ever notification by governments of the use of paragraph 6 of the 2001 Doha Declaration on TRIPS and Public Health. Rwanda and Canada have informed the WTO of their plan to use the TRIPS waiver allowing countries lacking production capabilities to import drugs made under compulsory licence. Several participants said the notifications may help to address concern that the paragraph 6 provision is too complex to be used by least-developed countries as evidenced by the years that passed before a member used it.

Also on Tuesday China was asked a series of questions about its IP regime as part of its annual review of its 2001 accession, and a separate discussion was held on a proposed amendment to TRIPS to require the disclosure of the origin of genetic materials in patent applications.

Japan tabled a paper, IP/C/W/504, previously circulated at WIPO proposing a database on genetic resources, and suggesting the WTO consider the work being done at WIPO. Developed countries are seen as generally seeking to move the genetic resources debate to WIPO where agreements are not subject to dispute settlement procedures. The back and forth between institutions also can slow down the process toward agreement. But sources on all sides agree that little real result can come on the proposed TRIPS amendment on disclosure until progress is made on the bigger WTO negotiations, particularly on agriculture and non-agricultural market access.

On Wednesday, the biodiversity issue will be discussed in consultations with Deputy Director General Rufus Yerxa. Also on Wednesday, the contentious issue of enforcement will be addressed.

William New may be reached at wnew@ip-watch.ch