Don't you dare blame TRIPS again - Max Planck Institute declares

Don't you dare blame TRIPS again - Max Planck Institute declares

By IPcommentator   Tuesday, April 15, 2014   1 comment:

Although this Leo has an inherent bias towards another, he must say that any IP research by Max Planck Institute (MPI) does carry enormous weight across Europe when unleashed. (Also see MPI's work on European collective rights management and here + here on European trade marks). 

You may have already seen the IPKat's post, but it seems that this blog might be the first to lead you to the actual text of the research or Declaration (as they prefer to call it). You can read the summary here or just dive straight into it here. The Declaration document is neatly laid out and would serve as a reference point for national IP policymakers or those working with developing countries (including the least-developed) on IP law reform.

To this Leo, instructive in MPI's research are as follows:

(1) IP problems are not exclusive to developing countries

(2) Make effective use of the TRIPS flexibilities (especially, compulsory licensing) but challenges posed by trade deals are recognised

(3) States must regularly revisit IP laws and are allowed to implement TRIPS taking their socio-economic interests into account (e.g. have a look at this OECD report in 2004 titled: Patents and Innovation: Trends and Policy Challenges)

Commentary

This Leo cannot remember the number of times that he has cautiously hinted on MPI's key observation, regarding the TRIPS flexibilities, in his posts (maybe, here, here, here, here or here. Other Afro-IP posts pointing to this observation include here, here, here, here and here). To his young mind, IP discourse (in relation to developing countries and like in all similar issues) have somewhat been polarised - with each group legitimately fostering their respective interests. The middle ground, albeit existing and relevant, seemed not interesting enough. (Says Afro Leo: "MPI should tread carefully before the 'IP maximalist' mark is firmly stamped on its forehead. That stamp is easily and readily available for use")

One cannot honestly say that making effective use of TRIPS flexibilities is a panacea. However, it is a meaningful step towards mitigating the identified problems we have at hand; no? Joseph E. Stiglitz (an advocate of pro-development IP regime) argues that poorly designed IPR regimes is a major problem; there should be a 're-think' of patents; and that TRIPS still remains an unbalanced global regime - with the U.S, in particular, foisting far stronger rules on others (see here, here and here). 

China and India are good examples of countries which have played the IPR regime game quite well to get to where they are today. African countries may well have woken up too late; the hope is that they can still readjust. To do so may require growing a backbone - albeit that most neither have a choice nor bargaining power. In an ideal world, it may even be better to call for the suspension of patent law in order to allow developing countries to emerge on a reasonable level playing field. That is not the world we live in and,  how can one determine what is a level playing field? Moreover, what would be the impact on creative individuals or businesses in terms of competing with one another and consequentially, creating IP? There are no easy answers or solutions.

He prefers to sit on the fence on these matters (maybe, call him an IP minimalist). This is what he believes in: the people in most, if not all, African countries are capable of creating all things which (generally speaking) the prevailing IP regimes are designed to protect.

Over to you for your thoughts.

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MPI's Proposals for Amendment of TRIPS are here

Tired of IP maximalists? See them here, here and here

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Ethiopia to join WTO in 2015?

Ethiopia to join WTO in 2015?

By IPcommentator   Wednesday, July 10, 2013   No comments:

This Leo has just learned from Reuters that Ethiopia may officially join the WTO club in 2015. According to the report, Ethiopia will 'apparently' not be signing off a lot; for example, by significantly liberalising its economy. Perhaps, this may well be as a result of the streamlined entry standards agreed last year for least-developed countries (LDCs). 

As a LDC and currently a non-WTO Member, Ethiopia would, generally, not be concerned with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) extension for LDCs last month. But a little scratch  beneath the surface reveals an already-established interest in IP.

In fact, Afro Leo feels that Ethiopia has generated tangible publicity in relation to IP (for example, see here, here, here and here) than some African countries who are current WTO Members. And, when it comes to the A-Z series, Ethiopia's IP office has a commendable web presence when compared to some - not to mention others who do not even have any.

Let's see what happens in 2015.

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Why the WTO thinks open trade is good, see here
Is Ethiopia a signatory to the Marrakesh Treaty? Yes she is!

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Update on TRIPs Extension Battle

Update on TRIPs Extension Battle

By Afro Ng'ombe   Monday, June 10, 2013   No comments:

Background: For those who haven’t been following the story, there is currently a proposal on the table to the TRIPs Council requesting a that LDC’s be permanently exempted from complying with certain provisions of TRIPs until those countries are no longer designated as Least-Developed Countries.  For more information see this post.

Afro Leo recently learned that the East African Legislative Assembly, of the East African Community, has issued a resolution expressing it’s support for the permanent transition period.  The Legislative Assembly sites the East African Treaty’s agreement to promote the quality of health in the EAC. Specifically, Article 118 (e) agrees to harmonize national health policies.  Since four of the five EAC member countries are currently LDCs, the Legislative Assembly has a strong interest in supporting a position deemed critical to most of its members.

The Legislative Assembly also cites to the TRIPs agreement itself, pointing out the acknowledged importance of technical innovation and the agreement to allow members to enact measures for the purpose of protecting public health.  The Legislative Assembly is concerned that if the extension expires, LDCs will lose their ability to access technologies, educational resources and other development tools.

The final provision of the resolution chastises the United States and European Union for attempting to limit the LDC flexibilities built into TRIPs.  What kind of effect will this resolution have on the TRIPS Council decision?  Guess we’ll have to wait and see.

Full resolution available in pdf here.

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TRIPS Extension: Press Conference in Uganda Tomorrow

TRIPS Extension: Press Conference in Uganda Tomorrow

By Afro Ng'ombe   Tuesday, June 04, 2013   No comments:

For those following the TRIPS extension request issue, there is going to be a press conference tomorrow to discuss the request made by Haiti and the current concerns and expectations with respect to the TRIPS Council’s upcoming decision on the request.  For more information on the TRIPS extension, see this previous Afro-IP post.

What: Press Conference on TRIPS Extension
Date: Tomorrow, 5 June
Time: 10:30am
Location: CEHURD Offices located on Plot 614 Tufnell Drive Kamwokya

If any of Afro-IP’s readers in Uganda are able to attend, we’d love to hear about the discussions.

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Ugandans Fight for More Time

Ugandans Fight for More Time

By Afro Ng'ombe   Friday, May 31, 2013   No comments:

Several organizations in Uganda have joined with Haiti in pressuring the WTO to extend the deadline for Least Developed Countries (LDCs) to comply with TRIPs.  The desired extension time: indefinitely.

Haiti submitted the Request for an Extension of the Transitional Period Under Article 66.1 of the TRIPS Agreement on behalf the WTO LDC Group in November of last year.  According to news(1) reports(2), several Developed Countries are pressuring the TRIPS Council to deny or limit Haiti’s request.  TRIPS-structured talks between LDCs and Developed Countries have put on the table a limited extension of 5 to 7.5 years and a “no rollback” provision that would prevent LDCs from removing TRIPS compliant provisions from their laws.

Ugandan organizations* are working to build pressure in the opposite direction.  The organizations have submitted a letter to the WTO Council Chair in support of Haiti’s request.  They have petitioned the East African Legislative Assembly to apply pressure in support of the request.  They have also written to several developed country-Ambassadors to Uganda, outlining the consequences for Uganda of not receiving an extension or introducing the suggested no-rollback provision.  A media campaign is underway to inform people of the LDCs’ concerns.  Organization representatives quoted in The Observer stressed the importance of ensuring Ugandans’ access to HIV medications and the country’s need to develop a competitive technological base, sentiments that echo Haiti’s concerns. 

Article 66.1 of TRIPS states:

In view of the special needs and requirements of least-developed country Members, their economic, financial and administrative constraints, and their need for flexibility to create a viable technological base, such Members shall not be required to apply the provisions of this Agreement, other than Articles 3, 4 and 5, for a period of 10 years from the date of application as defined under paragraph 1 of Article 65. The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period. (emphasis added.)

The TRIPS agreement was signed in 1994.  Everyone was granted an initial grace period of one year and LDCs were granted an additional 10 years.  The LDC exemptions were set to expire at the end of 2005.  Zambia made a request in 2005 for an extension as outlined in Article 66.1 on behalf of the LDC members.  The TRIPS Council granted that extension, moving the compliance deadline to 1 July 2013.

Haiti’s request differs substantially from Zambia’s request in that it asks for LDCs to be exempt from full compliance as long as they remain LDCs.  While the TRIPS provision mentions “10 years,” for the original exemption time period, it mentions nothing about time limits for extensions.  In this respect, Haiti’s request is within the bounds of the agreement.  However, Afro Leo wonders if it’s a good idea.

Least Developed Countries are designated by the United Nations, unlike Developing Countries which can designate themselves into that category.  33 of the 48 Least Developed Countries** are in Africa.  (See UN Factsheet.)  There is no set number of countries that must be LDCs, for example, LDCs are not the bottom 5% of countries.  Rather, LDC status is determined by 3 factors: per capita income, human assets and economic vulnerability.  Since the LDC status was introduced, three countries have improved enough to graduate off the list.  Two of these, Botswana and Cape Verde, are African.  This shows that a change in status is possible.  (Full LDC Report.)

Would an indefinite exemption for most TRIPS provisions provide reverse incentives to remain on the LDC list?  Once a country graduates from LDC status, it can still designate itself a Developing Country for WTO purposes.  TRIPS does provide extended deadlines for Developing Country compliance, but these deadlines have all passed by now.  The only remaining benefit to being a Developing Country under TRIPS is the technical cooperation from developed countries granted under Article 67.  Therefore, in order to not be in immediate violation of TRIPS, current LDC members need to be in full compliance with TRIPS before graduating from LDC status.

While purposeful holding back on development could be a risk of granting the indefinite extension, this Little Leo thinks it too risky to LDCs for any country to purposely pursue.  (But she has been told she gives too much benefit of the doubt in general.)   More likely is that a permanent extension would allow LDCs to focus on elements of development in the orders that best suit their individual country circumstances.  As LDCs focus on development and continue to engage in the international discussions on IP, they will begin implementing laws and regulations that comply with TRIPS provisions.  Not all at once, but piecemeal.  This Little Leo predicts there will also be some tradeoffs where certain implementations are required by the international community in exchange for progression in the areas of Traditional Knowledge, Expressions of Folklore and Genetic Resources, areas being championed by Devolving Countries.

Afro-Leo is interested to hear others’ thoughts on the extension request.

Hat tip to Primah Kwagala of CEHURD for links to several articles on this topic.

* Ugandan organizations involved in the appeals:
1. The Center for Health, Human Rights and Development (CEHURD)
2. The Aids Support Organisation (TASO)
3. Uganda Network on Law, Ethics and HIV/AIDS (UGANET)
4. Coalition for Health Promotion and Social Development (HEPS -Uganda)
5. The HIV/AIDS Alliance
6. Health GAP
7. The National Community of Women Living with AIDS (NACWOLA)
8. The Mariam Foundation
9. Health Advocates Network(HAN)
10. Community Health and Information Network (CHAIN)
11. Office of the High Commissioner for Human Rights –Uganda Country Office (OHCHR)
12. SALT –Uganda
13. Uganda Youth Against AIDS foundation (UYAF)
14. The Action Group for Health, Human Rights and HIV/AIDS (AGHA)
15. Southern and Eastern African Trade Information & Negotiations Institute Uganda

** LDCs: Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of the Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Lao People’s Democratic Republic, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Myanmar, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, Sudan, Timor-Leste, Togo, Tuvalu, Uganda, United Republic of Tanzania, Vanuatu, Yemen and Zambia.

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Book Review: The Implementation Game

Book Review: The Implementation Game

By Afro Ng'ombe   Wednesday, June 13, 2012   No comments:

In the last Afro-IP post, Kingsley wrote about Uganda’s coming ability to manufacture medicines in-country and its plans to maintain the current importation of generics from India and China.  Kingsley also mentioned that Uganda is a member of a number of international IP treaties.  Uganda is able to manufacture and import generic medicines without violating those international treaties because of the exceptions in TRIPs.  Exceptions like these are allowed for all developing countries, but Uganda remains one of the very few taking advantage of them.  Why?

This is part of the question explored in Carolyn Deere’s fabulous book The Implementation Game: The TRIPS Agreement and the Global Politics of Intellectual Property Reform in Developing Countries.  Little Leo admits she’s a bit behind as this book was published a few years ago, but it is still an excellent read and highly relevant.

Deere explores not only the different manners in which countries implemented TRIPs in their own laws, but also the reasons behind these choices.  In the book’s own words, “this book gives substance to the view that developing countries’ policies are often set by others.”

The book concludes that a number of different factors contributed to the economically-strange high level of IP protection put in many local laws when implementing TRIPs.   From national politics, to international trade, Deere shows just how many pieces of our global interactions are intertwined in determining IP laws and norms.

One of the highlights of the book is an entire chapter dedicated to Francophone Africa.  This is a region often overlooked in English IP writings and Deere does it justice.  Unlike many other IP and developing country writings, The Implementation Game doesn’t focus solely on pharmaceuticals or access to medicines.  The book covers all forms of IP in TRIPs, although the Francophone Africa chapter does only touch on copyright briefly.

Deere’s predictions in the last chapter are also very interesting to read because of the time that’s passed since the book was published.  A few of her predictions are already proving true; others look likely but we’ll have to wait and see.  The only slightly negative thing to be said about the book is that the editing isn’t great. There’s a number of typos throughout.

Oxford University Press, 2009
ISBN: 978-0-19-955061-6 (hardcover)
Pages: 342, including charts but excluding bibliography.
List Price: US$95

One benefit of Little Leo’s pokiness is that the cheaper ($35.00) and lighter paperback version is now available. Amazon.com also has a Kindle version. 

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Monday Mix

Monday Mix

By Darren Olivier   Monday, June 22, 2009   No comments:

South Africa: TVIEC response to SABC - Not surprisingly, the TVIEC remain unimpressed with the SABC who "continue to act with arrogance..." Filmaker South Africa reports on the TVIEC response "The SABC’s response to the Television Industry Emergency Coalition’s memorandum indicates that the management fails to appreciate the real need to work with the independent production sector to find solutions that can help shield the industry and our viewers from the present crisis....(click on Filmaker link for more)" . If you are new to the story on how IP rights/content creators have managed to help make a national television company accountable and force board resignations, click here.

Egypt: Pay-up or lose rights - As of 2 June 2009, it is possible to file a PCT national phase. As of 6 June 2009, the Registrar of Patents issued a Decision in which he changed the calculation of the dates of the annuities due on a PCT application. Earlier annuities were calculated as from the filing date of the national phase application in Egypt, while now, they are counted from the PCT international filing date. Accordingly, all due annuities on the national phase applications of PCT have to be paid retroactively according to the new calculation within 6 months from the date of decision - June 6, 2009 - otherwise, the application will lapse. (Source: NJQ & Associates)

Sudan: Making life tough for TM applicants - The Registrar of Trademarks issued new regulations regarding the power of attorney, requesting it now to be legalized up to a Sudanese Consulate. Earlier, it was simply signed. This will be effective as of 1 July 2009, and accordingly the new filing requirements are:
Power of attorney legalized.
Extract from Commercial register legalized.
At the time of registration, the applicant must submit, on its letterhead, an affidavit stating that there has been no change in the ownership or details of the owner. (Source: NJQ & Associates)

Developing nation threatens to counterfeit products - Thanks to an alert from Mary-Ellen Field, Afro Leo has encountered a very interesting response from a developing nation to its obligations under TRIPS which could lead to sanctions against the country. According to this article in respected Food&Drink.Europe.com, Tetra Pak has said it will seek immediate talks with the Venezuelan Government after the country’s president threatened to counterfeit its packaging goods in a bid to save money and reliance on foreign companies. The global packaging giant admitted it was taken back when Hugo Chavez declared that his country would no longer recognize patented products. Afro Leo wonders whether such a move has not tempted African countries or perhaps, how many.

....and finally no good news for folks waiting for the Servier judgement which is still, it seems, firmly stuck in the passage of decision.

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EU - East African Community EPA IP issues

EU - East African Community EPA IP issues

By Asiimwe Paul   Friday, February 06, 2009   1 comment:

Apart from the common market protocol negotiations that have been reported by Darren here, the EAC negotiations to take place in March 2009 will among other issues focus on Intellectual Property.

According to sources close to the negotiations, the draft text will consider all the areas under the TRIPS agreement such as copyright (including the copyright in computer programmes, and neighbouring rights); patents including patents for bio-technological inventions; protection for plant varieties; designs; layout-designs (topographies) of integrated circuits; geographical indications; trademarks for goods or services; protection for data bases; protection against unfair competition and protection of undisclosed confidential information on know how.

Some of the new areas to be tackled include traditional knowledge and folklore. The final text on issues such as this could determine how future negotiations on this issue under the auspices of WIPO or the WTO would turn out.

Subject to the pace of substantive negotiations, the parties (EU and the EAC) are expected to begin full implementation of the new IP regime not later than 1 January 2014. This appears to be an ambitious schedule, considering that most of the EAC member states as LDCs have failed to meet TRIPS standards which are considered by some to be less stringent than those contained in the draft EU-EAC Intellectual Property text. Should the EAC member states sign up on this text, the IP regime of the four member states that are LDCs ie Tanzania, Uganda, Rwanda and Burundi will require tremendous financial and technical support to establish functional IP registries, border and judicial measures in order to comply by 2014.

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Balancing importance of IP and Health

Balancing importance of IP and Health

By techla10   Sunday, May 25, 2008   No comments:

Following stories of widespread proliferation of fake medicines in Uganda, the New Vision Newspaper has since reported that fake drugs were impounded and destroyed by burning in Soroti, Eastern Uganda.

Meanwhile, on the global scene, IP Watch reports on the recent closing ceremony of the World Health Organization(WHO)and its global strategy on IP and health. According to this report by William New, the closing hours of the global health assembly saw the draft plan of action spark of debate on "on the role of the World Health Organization in intellectual property-related matters".

The intense debate on the direction of the WHO's program on Public Health, Innovation and Intellectual Property led representatives from Brazil and India to assert that “WHO’s primacy as the technical agency for health" and that "the mandate and its core competencies will not be allowed to be diluted".

In the broader context, how to balance health issues with commercial issues(and IP) remain areas of contention, especially for most countries in Africa. It is important that WIPO, in particular its Africa bureau take a leadership role in supporting member countries to deal with counterfeits through technical assistance to reduce the negative effect fake drugs are having on various health innitiatives. This will ensure that the WHO maintains its focus on health matters, and is not percieved to be veering into manifestly commmercial/ trade related areas which are better left to the WTO's TRIPS council.

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TRIPs amendment in favour of disclosures gathers support

TRIPs amendment in favour of disclosures gathers support

By Jeremy   Monday, May 05, 2008   2 comments:

It seems that a majority of WTO members now supports the proposal to amend the World Trade Organization's TRIPs Agreement so as to include a disclosure requirement for patent applications relating to genetic resources and traditional knowledge, according to this item in AllAfrica. The main advocates of the disclosure proposal (including India and Brazil) have reiterated their position at a regular TRIPs Council meeting at the WTO.

The proposal is for an amendment to the TRIPS Agreement so that it would be mandatory for countries to have in their national patent laws a requirement for patent applicants to disclose the countries of origin of biological materials and traditional knowledge used in their inventions, as well as evidence of prior informed consent and benefit sharing arrangements with the countries of origin and relevant local communities.

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New disclosure requirements supported: genetic resources and TD

New disclosure requirements supported: genetic resources and TD

By Darren Olivier   Tuesday, April 29, 2008   No comments:

According to Martin Khor's column in Business Daily (Nairobi), a majority of WTO members are now supporting the proposal to amend the WTO's TRIPS agreement so as to include a disclosure requirement for patent applications relating to genetic resources and traditional knowledge. It would be mandatory for countries to have in their national patent laws a requirement for patent applicants to disclose the countries of origin of biological materials and traditional knowledge used in their inventions, as well as evidence of prior informed consent and benefit sharing arrangements with the countries of origin and relevant local communities.

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