[Ip-health] LDCs collectively request an indefinite extension of their TRIPS-compliance transition periods

Bryan MERCURIO (Faculty of Law) b.mercurio at cuhk.edu.hk
Fri Nov 9 06:06:29 PST 2012

Dear IP-health:

In light of Prof Baker's very useful post, I thought I would share a recent working paper of mine on this subject: 'Transitioning to Intellectual Property: How Can the WTO Integrate Least-Developed Countries into TRIPS?' (with Arno Hold), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2169352. 

This is very much a working paper, completed in time for and in order to inform the current negotiations. Thus, the development Prof Baker referenced is not yet included. Arno and I welcome all comments, suggestions and feedback.

Kind regards

Bryan Mercurio
Professor of Law and Associate Dean (Research)
The Chinese University of Hong Kong
Tel: +852 3943 1139
Email: b.mercurio at cuhk.edu.hk
Faculty webpage: http://www.law.cuhk.edu.hk/people/mercurio-bryan.php
SSRN author page: http://ssrn.com/author=346439


Message: 2
Date: Wed, 7 Nov 2012 20:54:37 +0000
From: "Baker, Brook" <b.baker at neu.edu>
To: "healthgap at lists.critpath.org" <healthgap at lists.critpath.org>,
	ITPC	<internationaltreatmentpreparedness at yahoogroups.com>,
	"Ip-health at lists.keionline.org" <Ip-health at lists.keionline.org>
Subject: [Ip-health] LDCs collectively request an indefinite extension
	of their TRIPS-compliance transition periods
	<859DB52ABF210445AD96A66E031BA30B2E489F at BOS8023.nunet.neu.edu>
Content-Type: text/plain; charset="iso-8859-1"

Led by Haiti, least developed country Members of the WTO have on November 5 filed a so-called "properly motivated" request under Art. 66.1 of the TRIPS Agreement for a collective extension of the transition period within which they must become TRIPS compliant.  See, WTO IP/C/W/583 http://www.wtocenter.org.tw/SmartKMS/do/www/readDoc?document_id=126260<http://www.wtocenter.org.tw/SmartKMS/do/www/readDoc?document_id=126260.> .   The request specifically averts that LDCs have not developed technologically and that they need continuing and future freedom from IP rules and the high prices associated with IP rights if they are to develop economically and technologically.

LDCs had previously been granted two pharmaceutical-related extensions of their original 11-year TRIPS transition period (1995-2006) following the adoption of the Doha Declaration on the TRIPS Agreement and Public Health. Those limited extensions are not set to expire until Jan. 1, 2016.  However, shortly before the original broader 2006 transition period was set to expire, LDCs also requested an extension of all of their TRIPS compliance obligations with respect to patents, copyright, industrial designs, and trademark more broadly, as they were permitted to do. Although a short 7 1/2 year extension was granted (set to expire June 30, 2013), it came with undesirable strings attached.  This main condition, not required by TRIPS, was that LDCs had to lock-in any existing IP legislation they had previously passed, at least with respect to its TRiPS-compliant terms.  Unfortunately, many LDCs by that point still had vestiges of colonial era IP rules and they had further enacted ne
 w IP legislation based on poor advice from the World Intellectual Property Office and other IP advisors.  Very few if any had actually repealed their IP laws, except with respect to pharmaceuticals and then often only informally.

The proposal from LDCs rejects earlier extension approaches and seeks an indefinite extension that would last until a particular member was no longer an LDC.  This would give each LDC member long-term flexibility to develop a technological base and other threshold capacities and infrastructure without being burdened by unaffordable monopoly protections.  Free of IP, new indigenous industries would have more opportunity to develop and expand and could do so through the traditional methods of industrial development that US and other countries had followed decades ago - copying technologies invented elsewhere and adapting them to local needs and conditions.  (This is the route that the Indian generic industry followed between 1972 and 2005 to become so powerful.)

In addition to seeking an indefinite extension, the LDC request will also renew the freedom LDCs had from 1995-2006 to actually repeal any existing IP legislation.  This is a very useful request because most LDC still have old IP legislation on the books, including some that is actually TRIPS-plus.

Finally, this extension is broadly enough to cover both pharmaceuticals and other fields of technology and thus, if granted, would alleviate the need to LDCs to seek a further extension of their 2016 pharmaceutical extensions.

LDCs will have a fight on their hands because developed countries that harbor IP-based industries will try to water down the LDC proposal.  Accordingly, other developing countries, especially those middle-income countries in Africa, Asia, and Latin America will have to come to the aid of the LDC neighbors.  In addition, health, environmental, and agricultural/food security activists should also rally in support of the LDC proposal since it will eliminate enforcement of costly monopolies on medicines/medical devices, green-and-climate control technologies, and on agricultural products like seeds and fertilizers.

This request did not just fall out of the sky.  Health and human rights activists had recently written to LDC country negotiators asking that they band together to write a formal request.  Those activists tried to divert LDCs from their focus on prematurely becoming TRIPS compliant to their collective interest in avoiding the false promise that enhanced IP spurs development.

LDCs have fallen behind developmentally and need policy space and time to catch up.  Instead of answering the false siren call that more IP cures all developmental ills, LDCs have awakened to the benefits of growing their technological bases strategically through the old-fashioned process of copying, adapting, and incrementally improving existing technologies, and developing skills and capacities in the process.

Professor Brook K. Baker
Health GAP (Global Access Project) &
Northeastern U. School of Law, Program on Human Rights and the Global Economy
Honorary Research Fellow, Faculty of Law, Univ. of KwaZulu Natal, SA
400 Huntington Ave.
Boston, MA 02115 USA
(w) 617-373-3217
(c) 617-259-0760
(f) 617-373-5056
b.baker at neu.edu


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