LDCs Obtain New Waiver On IP Obligations At WTO, Take It As A Limited Victory
World Trade Organization members this week agreed to give least-developed countries an extra eight years to implement international intellectual property protection rules. The decision received a broad support among countries, with some voicing reservations about the negotiation process.
The decision [was reached through a series of informal meetings, most held by the chair of the WTO Council on Trade-Related Intellectual Property Rights (TRIPS), Alfredo Suescum, the ambassador of Panama, to breach differences between countries.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 ).Two major issues were at stake in the discussion. The first was the timeframe of the extension, and the other was the so-called “no roll-back clause” (IPW, WTO/TRIPS, 6 March 2013 ). This clause, which appeared in the 2005 extension , stated that “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.”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 ).The European Union, in a press release  yesterday, said, “The agreement sends a strong signal of intent in light of the 2011 United Nations Conference on the Least-Developed Countries in Istanbul, Turkey.” It added, “The Istanbul Programme of Action seeks to halve (from 48 to 24) the number of LDCs by 2020. It is also a positive result ahead of the ninth WTO Ministerial Conference in Bali in December this year.”Meanwhile, according to sources, India said the extension is far removed from the original request of LDCs, and the negotiated outcome is “a derogation from the provisions of Article 66.1.” Article 66.1  deals with the possibility of extending the transition period for LDCs. The delegate said the decision still represents a step forward from the 2005 decision, and India would join the consensus on the adoption of the decision.However, the delegate said he wanted to “point out our systemic concern about the process adopted in reaching this decision which was negotiated between a small group of countries, to the exclusion of the larger membership.” During the closed-door informal negotiations, LDC representatives faced off with developed countries but no larger developing countries were in the negotiations until it was brought before other members for comment (IPW, WTO/TRIPS, 24 May 2013) . For the Swiss nongovernmental organisation Berne Declaration, LDCs have relented to the pressure applied by developed countries, in particular Switzerland, which, according to a Berne Declaration press release  [pdf in French], opposed the request for a limitless extension. This extension, it said, is crucial for the everyday life of people living in LDCs and their human rights, including access to health, seeds or education, adding that several decades would be necessary before LDCs can benefit from binding intellectual property rules.A senior policy officer for Both ENDS , an NGO working with civil society organisations in developing countries, said “The big risk is that now more money of the shrinking budgets for development cooperation will be allocated to make least developed countries to comply with the IPR agenda of donors like the US and EU.”
“The agreement reached by members makes very clear that we can come together and get things done,” said WTO Director-General Pascal Lamy. “This is the spirit we will need to see in full display over the coming months in order to produce a meaningful outcome to the Bali Ministerial Conference in December.”
Paragraph 2 of the decision now calls on LDCs to “express their determination to preserve and continue the progress towards implementation of the TRIPS Agreement.” But the same paragraph also states that “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…”
The decision does not mean LDCs are exempt from the provision of the TRIPS agreement, according to a WTO source. They are allowed to not protect IP rights, but if they do, they have to apply the TRIPS provisions and in particular the principle of non-discrimination, the source said.
Most countries praised the overall outcome and some gave it as an example of a positive outcome reached through flexibility, adding that this could be applied to other areas of the WTO, according to sources. A WTO source said “there was never any doubt” that the extension would be granted to LDCs. LDCs have a built-in right to request extension under TRIPS Article 66.1, which states that “The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period.”
The only issue for this week’s TRIPS Council was the terms of the extension.
The delegate of Lesotho praised the decision and said “LDC Members of the WTO have expressly declared their determination to move towards TRIPs compliance.” “While a much longer timeframe would have been desirable, Lesotho delegation nonetheless welcomes the 8 years extension we have just adopted,” he said, according to his statement.
He also said, “The reference to LDCs flexibilities in the Decision is a resounding reassurance by Members that quells any doubt concerning the ability of LDCs to use the available policy space provided by such flexibilities.” [Update:] And he offered praise the chair for “the crucial role he played in steering the consultations between the LDC group and the partners to their successful conclusion.”
“Ambassador Alfredo [Suescum]`s intellectual prowess and the ability to push delegations to the end of their limits and also to tease out flexibility from their entrenched positions are highly admired, at least, by the Lesotho delegations. [end]
“Where least-developed countries voluntarily provide some kinds of intellectual property protection even though they are not required to do so under the TRIPS Agreement, they have committed themselves not to reduce or withdraw the current protection that they give,” the EU release said.
According to some sources, LDCs were more organised and more supportive of each other in their 2012 request and negotiations than in 2005. Currently, 34 countries which are categorised as “least developed” are WTO members, according to a WTO official.
No Mention of Technical Assistance
Out of the decision is also the mention of technical assistance, which appeared in the 2005 extension. The link that was made between the extension and the requirement for developed countries to provide technical assistance for LDCs was considered by LDCs and some developing countries as erroneous since they estimate the transition period to be part of flexibilities in the TRIPS, according to developing country sources.
It was decided during the informal discussions that this topic would be handled in the Council’s other work on technical co-operation and capacity building, according to a WTO source.
In its statement to the TRIPS Council in the context of technical cooperation and capacity building, the EU said in the discussion on the LDCs extension they have agreed “not to maintain any language or provision on technical cooperation,” according to the EU statement.
However, the delegate said, technical cooperation “remains an important tool to helping LDCs implement the TRIPS,” reaffirming the EU commitment to such technical cooperation, following TRIPS Article 67.
The EU proposed that the WTO secretariat start working on a report that would consider the progress LDC members have made in implementing the TRIPS and consider outstanding difficulties in that implementation. This report, which would be submitted in the TRIPS Council in 2014, “could use available information, both from the WTO’s own assistance and monitoring work as well as that of other organisations, in particular WIPO pursuant to the Agreement between WIPO and WTO,” the EU said.
This follows, it said, the previous extension which invited LDC members to provide information on their needs for technical and financial cooperation to implement the TRIPS. According to a source, the topic will be further discussed at the next session of the TRIPS Council.
The Indian delegate also mentioned the upcoming deadline of the transition period for pharmaceuticals expiring on 1 January 2016, and said India hopes that any future request for further extension would be “looked at in a positive manner without any conditionalities being imposed on them.”
LDCs have a separate waiver to implement TRIPS provisions on pharmaceutical products until 1January 2016. The decision taken yesterday by the TRIPS Council states that it does not prejudice the waiver on pharmaceutical products, according to the WTO, which will run its course until the deadline. An extension can be required by LDCs on that particular waiver, sources said.
China also agreed with the systemic concern, while welcoming the decision. Brazil too said it shared the systemic concern voiced by India. China and Brazil told Intellectual Property Watch that in future negotiations, consultations should include a broader membership.
According to a WTO source, the negotiations leading to the decision were first undertaken by “both sides” with Nepal for the LDCs and Australia for developed countries coordinating the meetings. Then Suescum, on 14 May, was asked to chair the meetings, according to the source. Suescum “kept the whole membership informed” during informal sessions on 21, 30 May, and 7 June, giving the membership opportunities to comment, the source said.
Civil Society between Enthusiasm and Scepticism
Primah Kwagala, program manager, policy advocacy for the Center for Health, Human Rights & Development (CEHURD) in Kampala, Uganda, praised the decision. “We appreciate the council’s decision to give LDCs an extension that will offer us living in LDCs an opportunity to develop our indigenous capacities to manage IPRs,” he told Intellectual Property Watch.
“The decision is impressive because it has not attached conditionalities such the dreadful ‘no roll back’ clause earlier proposed by the EU,” he said.
“This decision will enable East African countries like Uganda and Tanzania to amend their already existing laws on copyright and seed respectively to include flexibilities that ensure access to essential commodities such as seed, education materials among others,” Kwagala said. “East African civil society capacity and ability to influence decisions at the WTO TRIPS Council through their legislative Assembly has also been demonstrated through the pressure they have unanimously asserted on the EU, US and the TRIPS Council.”
“This is a victory we all must celebrate but also a good precedent to efforts to start early to prepare for a push for an indefinite extension to the forth coming expiry of the 2016 extension on pharmaceutical products,” Kwagala said.
A source from the Electronic Information for Libraries said “the decision gives LDCs more breathing space. By all accounts, it was an extraordinarily hard won gain. LDCs should now review their policy options for how best to maximise access to knowledge resources for education, research and development in order to make effective use of the transition period.”
Knowledge Ecology International commenting on the decision said the new extension comes with some restrictions, but provides more freedom than the previous extension. However, the group said, “The decision to extend the period of years before very poor countries have to implement tough patent and copyright laws is welcome, but it was surprisingly difficult to reach.”
“What should happen next is greater experimentation regarding the types of laws that are in the best interest of least developed countries,” KEI said. “Unfortunately, with less than a decade before the extension runs out, the opportunity to experiment will be burdened with uncertainty about the longer term future.”
For Professor Brook Baker of Health GAP, at the Northeastern University School of Law Program on Human Rights and the Global Economy, “LDCs started strong and stayed strong, winning a substantially better extension of the transition period to become compliant with WTO standards for intellectual property protection than they won in 2005.”
“LDCs asked for an extension that would directly allow them to rollback IPRs if it were in their interest to do so and one that would last as long as a country was an LDC giving them much more time to pursue their development objectives unburdened by IP monopolies,” he said, adding “Of course, the US and the EU carried the water for multinationals once again and coerced some concessions – but much smaller concessions than they wanted or thought they would get.”
“Now LDCs have to use their policy space and take off their IP shackles,” Baker said. “They also have to fight even harder to preserve their unconditional extension of the transition period for medicines and diagnostics when a separate extension expires in 2016.”