Monday, 17 June 2013

Hurray! LDCs offered 8 years TRIPS extension: Enough or not enough?

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This blog has followed the TRIPS extension debate and development this year here and here since over 70% (25 out of 34) of WTO member countries categorised as least-developed countries (LDCs) are in Africa. Today, this Leo learns from the WTO press release (dated 11 and 12 June 2013), that a decision has been reached on TRIPS extension for WTO LDC members. 



The WTO Council for TRIPS have agreed to extend the transition period for LDCs to implement the TRIPS Agreement until 1st July 2021 - with an option to seek further extension beyond 2021 ('The 2013 transition period agreement') or until such a date on which they cease to be LDC, whichever date is earlier. Without this extension, LDCs would have been expected to provide for intellectual property rights protection stipulated under the TRIPS Agreement from 1st July 2013 pursuant to the initial extension in 2005.



This Leo highlights these key points although 2 and 3 are closely linked:

  1. Patents for pharmaceuticals intact: The 2013 transition period extension agreement does not apply to the current expectation on LDCs to provide for patent protection for pharmaceutical products from 1st January 2016 ('The 2002 transition period agreement'). (Afro Leo notes that LDCs have the right, like they have successfully done this month, to seek for a further extension of the 2002 agreement)
  2. Non roll-back provision: Unlike the stronger wording in the 2005 transition period extension agreement, LDCs have now only expressed a willingness not to reduce or do away with their current IPRs protection if they have already voluntarily implemented TRIPS. (Afro Leo thinks that most have voluntarily done so or probably coerced to do so by trading partners). 
  3. May continue to implement and/or apply TRIPS: LDCs may continue with their progress in TRIPS implementation and fully utilise its flexibilities such as introducing compulsory licensing to get around patent rights and this does not count as rollback. Developed countries are also expected to offer incentives to support LDCs' technological base.

Comment
Basically, the 2013 extension agreement does not entirely exempt LDCs from implementing and/or applying TRIPS. They are free to implement TRIPS if they wish to do so and as a gesture of goodwill, have expressed an intention to take necessary steps in readiness for the 2021 implementation deadline. In addition to this kindness, they have also agreed to act in good faith by not reducing or scrapping the protection they already provide for under TRIPS.

Obviously, this news will not be all that positive or encouraging for some while others may well think it is a fair compromise. (Whichever side you sit on, even WTO's news headline 'The least developed get eight years more leeway on protecting intellectual property' sounds as if the extension is somewhat not enough or fair, says chuckling Afro Leo). 

Fikremarkos Merso argues, as reported by this blog here, that "...Extending the transition period under TRIPS is just one step. There is also a need to address the underlying issues beyond extension such as helping LDCs build their technological base and better integrating IP and development, rather than focusing on mere implementation and compliance. Comprehensive work is required to identify trends, gaps, successes and challenges facing African LDCs in this area. Finally, the issue of the LDC TRIPS extension should be considered in the context of LDCs that are in the process of WTO accession."

Considering that this Leo is not a development expert, he currently takes no firm view on whether an eight (8) year extension or an indefinite extension is the right or wrong solution. What he is eager to see is more transparent and useful IP technical assistance and capacity building initiatives which would enable both developing countries and LDCs develop sustainably and navigate TRIPS for their respective socio-economic development and needs. (Afro Leo finds it interesting that the enhanced technical cooperation provision has been dropped this time around. So back in 2005, developed countries were expected and eager to assist developing countries and LDCs in need of TRIPS implementation but this is now irrelevant or not needed in the 2013 extension agreement. How come and why? And, what about those LDCs who have been assisted to implement TRIPS considering that they agree not to reduce or scrap whatever IP regime they have put in place. Essentially, the lucky ones are those who have not put anything in place to begin with)

We welcome your general comments on WTO's decision, including on the following:
(a) Do you think 8 years is enough?
(b) Do you agree with Fikremarkos Merso's view? 
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For a history on TRIPS and LDCs, see here
For global academics's expert support for unconditional extension of TRIPS, see here
For ICTSD's commentary on this, see here and for IP-Watch, see here

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