[A2k] NGOs Condemn the EU Press Release on TRIPS Extension for LDCs

Sangeeta Shashikant ssangeeta at myjaring.net
Fri Jun 21 09:15:42 PDT 2013

NGOs Condemn the EU Press Release on TRIPS Extension for LDCs
21st June 2013

On 11th June 2013, the WTO TRIPS Council took a decision (IP/C/64) to
extend for a further 8 years, the flexibility of least developed country
(LDC) Members under Article 66.1 to not apply the provisions of the
<#_ftn1> Agreement except for Articles 3, 4 and 5 (which concern national
and most-favored nation treatment). This decision was taken in response to
³duly motivated request² submitted by Haiti on behalf of the LDC Group last
November, seeking an unconditional extension for as long as a WTO Member
remains a LDC.  

This decision was a compromise deal as the EU and US exerted intense
pressure on the LDCs to accept conditionalities that are not in favour of
the people in the

The European Union in its press release on 11 June 2013 (³the release²),
Welcomes the TRIPS Council Decision, but it also makes several inaccurate
Misleading statements.

1.  The release claims that the EU: ³From the outset of discussions has
recognized the importance of flexibility for least developed countries
(LDCs) and supported an extension to the transition period².

Contrary to its claim of support, throughout months of behind-the-scenes
negotiations, the EU consistently sought to undermine both the requested
length of the
transition period and LDCs¹ freedom to determine the level of IP
protection, if any,
that was optimal in light of their special circumstances.

Article 66.1 of TRIPS explicitly permits LDCs not to apply TRIPS
provisions in recognition of their special needs and requirements, their
financial and administrative constraints and their need for flexibility to
develop a
viable technological base. However, throughout the negotiations, the EU
prioritized accelerated TRIPS compliance over the development needs of
LDCs. The EU persistently viewed the transition period as merely giving
LDCs a little
more time to become TRIPS compliant, irrespective of whether the basic
conditions exists in LDCs to benefit from high levels of intellectual
property protection and enforcement. Consequently the EU opposed duration
requested by LDCs
(i.e.of as long as they remain LDCs) and attempted to limit the policy
space/freedom LDCs are legally entitled to under Article 66.1 of TRIPS.

2.  The EU release also states that where LDCs
voluntarily provide some kinds of IP protection, ³they have committed
themselves not to reduce or withdraw the current
protection that they give² (no-rollback). This is a disingenuous reading of
the recently adopted TRIPS Council Decision and of the negotiating history,
where the EU clearly lost its efforts to secure a no-rollback clause.

The no-rollback clause, included in the previous extension decision
adopted in 2005,is not included in the current extension. The LDC Group
rightly objected
to its inclusion in the new decision, though the developed countries
The US and the EU continued to demand it.
As a compromise, the new decision replaces the obligatory no-rollback
clause with a sentence whereby LDCs only ³express their determination to
preserve and
continue the progress towards implementation of the TRIPS Agreement". To
remove any doubt, the decision further clarifies, that ³Nothing in this
decision shall prevent least developed country Members from making full
use of the flexibilities provided by the Agreement to address their needs

Clearly, the new extension decision does not prevent LDCs from rolling
back (i.e. reducing or withdrawing) existing IP protections (even if less
consistent than the
TRIPS Agreement), if appropriate, in their own judgment, to meet their
needs. This is supported by the exclusion of the previous obligatory
no-rollback clause from the new extension decision and the reaffirmation
of the right of LDCs
to use the flexibilities provided by the TRIPS Agreement, which includes
flexibility under Article 66.1 (to not apply TRIPS provisions), which now
has been extended. Therefore, the EU¹s interpretation of the new extension
decision is fundamentally flawed and purposefully misleading, and is just
another attempt to undermine rights
of the poorest nations granted under Article 66.1 of TRIPS.

3.   The release states that: ³LDCs will not have to
protect these patents [pharmaceutical product] until 2016², giving the
impression that the transition period for pharmaceutical products
Unequivocally ends by 2016.
In 2002, the TRIPS Council Decision of 27 June
2002 (IP/C/25) specifically exempted LDCs from applying TRIPS provisions on
patents and on undisclosed information, to pharmaceutical products, until
2016, without prejudice to the right of LDCs to seek further extensions
The 11 June 2013 decision text is applicable to all provisions of the
TRIPS Agreement
(except for Articles 3, 4 and 5). The decision does not prevent LDCs from
seeking a
further extension of the 2002 TRIPS Council Decision concerning
pharmaceutical products (IP/C/25).

In this regard we urge the LDCs Group to submit a ³duly motivated request²
pursuant to Article 66.1 of the TRIPS
Agreement to seek an unconditional extension of the 2002 TRIPS Council
Decision concerning pharmaceutical products (IP/C/25) until a WTO member
>From the LDC status.

In conclusion, we call on the EU to abandon its efforts to
force LDCs to prematurely adopt stringent standards of intellectual
Property protection and to unreservedly support any future requests by LDCs
pursuant to Article 66.1 of the TRIPS Agreement.

Act Up Paris
Asociacion Ambiente y Sociedad, Colombia
Berne Declaration, Switzerland
Both ENDS, The Netherlands
Centre For Climate Change and Environmental Studies
Center for Encounter and Active Non-Violence, Austria
Center for Information Policy in Africa
Coalition for Health Promotion and Social Development (HEPS), Uganda
East African Health Platform
Ecologistas en Acción, Spain
Electronic Information for Libraries (EIFL)
Food Rights Alliance
Health Action International
Health GAP, USA
Labour, Health and Human Rights Development Centre,Nigeria
Mariam Foundation, Uganda
Southern and Eastern Africa Trade Information and Negotiations Institute
Stop AIDS Campaign, United Kingdom
The Center for Health, Human Rights and Development (CEHURD), Uganda
The Development Fund, Norway
Third World Network
Uganda Network on Law Ethics & HIV/AIDS
Oxfam International

[1] <#_ftnref1> Trade Related Aspects on Intellectual Property Rights
which is part of
the World Trade organisation (WTO) membership

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