Technical Assistance A Key Point Of Discussion At TRIPS Council

By Kaitlin Mara
Uganda this week submitted a plan for addressing its priority needs on trade and intellectual property to the World Trade Organization committee on IP, making the nation the first least-developed country to lay out a detailed strategy for implementing its obligations under WTO rules.

Update: Uganda’s document on trade and intellectual property is available here: Final UTIP doc 4 June 08 [doc].

Brazil also submitted a communication to the 17-18 June Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) meeting, reminding assembled delegates that the intellectual property system is “based on a balance between rights and obligations,” and suggesting that the debate at the WTO on TRIPS compliance would be enriched with more attention to the World Intellectual Property Organization Development Agenda, in particular its elements on technical assistance to developing countries.

Ambassador Gail Marie Mathurin of Jamaica, who oversaw the TRIPS Council meeting for the first time since her appointment as chair, has been called back to Kingston to work for the Ministry of Foreign Affairs and Foreign Trade, said a WTO official.

Discussions on the rest of the TRIPS Council agenda went quickly, as expected, with discussions on the three oft-discussed TRIPS issues “the most discussed topic” in the meeting, despite being “only tenuously on the agenda,” according to a WTO official.
Positions on these matters remained unchanged from prior negotiations. A delegate prediction on the way into the meeting was that “certainly nothing of substance is going to take place” on these issues. This seemed a largely accurate assessment.

The three issues are the creation of a registry for geographical indications (GIs; product names associated with a specific location and characteristics) on wines and spirits, the possibility of extending high-level GI protection currently enjoyed by wines and spirits to other goods, and a proposal to amend the TRIPS agreement to bring it in line with biodiversity protection obligations under the UN Convention on Biological Diversity. Recent discussion at the WTO has seen attempts to unite efforts to have these issues discussed in broader WTO negotiations, despite the fact that member states supporting one issue do not necessarily support the others.

Also discussed were: the possibility of observer status for intergovernmental organisations, and answers from Vietnam to questions about their intellectual property system posed to them at the last TRIPS Council (IPW, WTO/TRIPS, 14 March 2008).

On the status or intergovernmental organisations, the main debate is whether the Convention on Biological Diversity secretariat should be allowed observer status at all. Brazil and India, among others, have called it “absurd” that the organisation is not in the room, when several standing agenda items directly involve it, according to a supporter of the CBD amendment. However, consensus was not reached by the assembled parties, so there is no change, said a WTO official.

Technical Cooperation: More Effective Than Enforcement?

Enforcement again did not come up at this meeting, though a United States official said the nation “continues to consider that enforcement is an important subject for discussion in the TRIPS Council” and that the country will “look forward to returning to this topic at future meetings.”

Separately, a developing country official said that a focus on enforcement and on compliance was unlikely to win developing country support for strong intellectual property regimes.

“Our idea,” the source said, “is that IP should be an incentive.” For that to work, developing countries need to be able to see benefit from the IP system, for example in encouraging niche (localised) innovation or in attracting more foreign investment.

Brazil’s communication expressed a similar point: technical assistance provided to developing countries for the development of IP systems needs to be assessed to ensure it is “contribut[ing] to a balanced implementation of the TRIPS agreement” it said. Effective technical assistance, the communication continued, should teach intellectual property flexibilities, including the “prevention and mitigation of abuse.”

It is important that developing countries are able “not only to fulfil their obligations, but also to benefit from their rights,” Brazil’s paper added.

Implementing Technical Assistance in Uganda

The TRIPS agreement in November 2005 agreed to extend a flexibility contained in Article 66 for least developed countries – allowing them extra time to “create a viable technological base” before they are required to address TRIPS obligations – until July 2013 (IPW, WTO/TRIPS, 29 November 2005). The same article requires developed countries to provide incentives to encourage technology transfer to LDCs, and the following article 67 obligates the wealthier nations to provide technical and financial assistance to facilitate the work of LDC governments in developing intellectual property systems.

As a precursor to asking for technical assistance, both Uganda and Sierra Leone became the first LDCs to submit priority needs assessments to the TRIPS Council in October 2007, listing the most critical issues needing to be addressed to improve the IP-handling capacity of both nations (IPW, WTO/TRIPS, 20 October 2007). They were assisted in the process by think-tank the International Centre for Trade and Sustainable Development (ICTSD), which programme officer Fleur Claessens said is planning to extend its IP needs assessment programme to other countries, beginning with Rwanda.

The assessments called for: training intellectual property specialists and improving human capacity in IP offices; modernising the IP infrastructure, including digitising patent and trademark data; educating consumers as well as police and customs officers on IP matters; and access to networks containing national and international intellectual property agreements. Sierra Leone also asked for the provision of travel funding to participate in WTO and WIPO meetings, and that access to existing technology be available to stimulate local innovation.

Delays due to a key election and subsequent government changeover in Sierra Leone mean that their project document, which lays out steps, a schedule, and a budget for meeting priority needs, is not yet finished. Officials from Sierra Leone told Intellectual Property Watch they are committed to developing the document, most likely by the next TRIPS Council meeting in October.

Uganda’s newly released project document, the first agenda set forth by an LDC to meet its 2013 TRIPS obligations, sets up steps for improving four “clusters” of intellectual property issues: IP regulation, IP administration, IP enforcement, and IP diffusion. A “logical framework” for implementation of the steps details “objectively verifiable indicators” for measuring success, including sources where such indicators could be found. For example, to assess increases in home-grown intellectual property, the document suggests monitoring the percent increase in registration of industrial property rights, commercialisation of IP, and licensing of trademarks in the country, statistics kept by the Uganda Registration Services Bureau.

The document also lays out a strategy for finding managers, for ensuring accountability via audits, monitoring and reporting, and for coping with risks. Implementation of the first phase has an overall projected cost of US$3 million and is expected to begin in September 2008 and end in December 2011.

The document was well-received, according to a Ugandan official, a view echoed by several other delegates. While solid offers of funding or in-kind support have yet to come, many member states expressed approval of the plan and seem likely to provide support, several sources said.

Kaitlin Mara may be reached at kmara@ip-watch.ch.