[Ip-health] CIVIL SOCIETY LETTER TO COUNTRIES NEGOTIATING REGIONAL COMPREHENSIVE ECONOMIC PARTNERSHIP (RCEP) BEFORE THE AUCKLAND ROUND OF NEGOTIATIONS

leena menghaney leenamenghaney at gmail.com
Thu Jun 9 09:14:51 PDT 2016


CIVIL SOCIETY LETTER TO COUNTRIES NEGOTIATING REGIONAL COMPREHENSIVE
ECONOMIC PARTNERSHIP (RCEP) BEFORE THE AUCKLAND ROUND OF NEGOTIATIONS

 Letter sent to India, Indonesia, Myanmar, Thailand, Malaysia, New Zealand,
Lao, Philippines, Vietnam, Australia, Brunei, Singapore, Cambodia, Japan,
South Korea




Re: Intellectual Property and Least Developed Countries (LDCs) - Protect
Transition Period for LDCs


As civil society organisations concerned with access to medicines, to
educational resources, to environmentally sound technologies (ESTs), and to
other public goods and cultural creations and further concerned with
farmers’ rights, food security and industrial development, we call on
countries negotiating the RCEP agreement and to protect the flexibilities
available under the WTO TRIPS agreement for Least Developed Countries
(LDCs).

In terms of impact, RCEP will cover nearly 50% of the world’s population -
including the most vulnerable, marginalised and impoverished - such as
people living in Least Developed Countries (LDCs).

LDCs are given an extended transition period vis-a-vis intellectual
property (IP) under the WTO’s Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) during which period LDCs are under no
obligation to implement the provisions of the TRIPS Agreement. This is in
recognition of their special requirements, their economic, financial and
administrative constraints, and the need for flexibility so that they can
create a viable technological base and protect their capacity to make or
procure low cost generic medicines.

We would like to draw your attention to the current negotiating text of the
draft IP chapter, which proposes the premature adoption of intellectual
property obligations by LDCs.  (Please see Annex 1 for detailed analysis).

We request IP negotiators designated by your government in RCEP to
recognise specific concerns and needs of LDCs when it comes to IP and their
need to retain policy space in defining their domestic IP system.

Any attempt to weaken in any way LDCs’ right to transition periods or the
utilization of the flexibilities vis-a-vis intellectual property will be
disastrous for LDCs Members and their citizens.  It would also damage the
credibility of ASEAN and it trading partners, revealing their total
disregard for the socio-economic constraints and needs of the poorest and
most vulnerable segment of the international community.

Please do not hesitate to contact Ms. Sangeeta Shashikant (
sangeeta at twnetwork.org) and/or Ms. Leena Menghaney (leena.menghaney at msf.org)
for any additional information.



SIGNATORIES



Global Networks & Organizations

LDC Watch

Third World Network

Médecins Sans Frontières - Access Campaign

International Treatment Preparedness Coalition -South Asia

International Trade Union Confederation (ITUC)

Electronic Frontier Foundation



Inter-regional and Regional Networks

Asia Pacific Network (APN+)

Asian Network of People who Use Drugs (ANPUD)

The South East Asia Regional Initiatives for Community Empowerment (SEARICE)

TREAT Asia/amfAR - The Foundation for AIDS Research



National Organizations and Networks

FTA Watch, Thailand

Indonesian AIDS Coalition, Indonesia

Positive Malaysian Treatment Access & Advocacy Group (MTAAG+), Malaysia

All India Drug Action Network (AIDAN), India

Initiative for Health & Equity in Society, India

Thai Treatment Action Group (TTAG), Thailand

S Srinivasan, LOCOST, India

Thai Network of People Living with HIV/AIDS (TNP+), Thailand

AIDS Access Foundation, Thailand

Education International, Belgium

Research Foundation for Science Technology & Ecology, India

UNION C, Nepal

Lawyers Collective, India

Shalini Bhutani, Legal Researcher & Policy Analyst, India

AIDS Care China, China

Indian Drug User’s Forum (IDUF), India

Public Health Association of Australia, Australia

Delhi Network of Positive People (DNP+), India

Vietnam network of people living with HIV (VNP+), Vietnam

National Association of People Living with HIV/AIDS in Nepal (NAP+N), Nepal

Italian Labour Union (UIL), Italy

Positive Women Network  (PWN+), Sri Lanka

Myanmar Positive Group (MPG), Myanmar

Lanka Plus Organization, Sri Lanka

Lhak-Sam (Bhutan Positive Network), Bhutan

Association of people living with HIV in Pakistan, Pakistan

Cambodian Network of People Living with HIV (CPN+), Cambodia

Professor Brook Baker, Health GAP, USA





Annexure 1 - LDCs AND INTELLECTUAL PROPERTY OBLIGATIONS IN COMPREHENSIVE
ECONOMIC PARTNERSHIP (RCEP) NEGOTIATIONS – CRITIQUE



In terms of impact, RCEP will cover nearly 50% of the world’s population -
including the most vulnerable, marginalised and impoverished - such as
people living in Least Developed Countries (LDCs).

The negotiating text of the IP chapter was leaked online on 19 April 2016
and is now available http://keionline.org/node/2472. The leaked text
reveals that the draft IP chapter proposes the premature adoption of
intellectual property obligations by LDCs.

Article 5.7 (Footnote 1) of the draft RCEP IP chapter undermines the
transition period LDCs are entitled to under the TRIPS Agreement, as the
exemption is limited only to patentable subject matter and electronic
registration regime and does not apply to all intellectual property.
Article 12.1 contains some elements supporting the LDCs’ transition
periods, though a footnote suggests that LDCs may still be required to
implement some provisions in the draft RCEP IP Chapter.

Article 66.1 of the TRIPS Agreement guarantees (footnote 2) LDC Members of
the WTO a renewable exemption from TRIPS obligations (except for Articles
3, 4 and 5 of the TRIPS Agreement) in view of their special needs and
requirements (for e.g public health), economic, financial and
administrative constraints and their need for flexibility to create a
viable technological base. The TRIPS Agreement in its preamble also
recognizes the need for LDCs to enjoy “maximum flexibility in the domestic
implementation of laws and regulations in order to enable them to create a
sound and viable technological base”.

In view of the above, we stress that countries negotiating RCEP should
recognize and uphold the current transition periods and waivers granted to
LDCs as well as any further extensions of the same by the WTO, and to adapt
below proposed amendments to RCEP text:

Article 5.7 should be amended to read:  “The Parties agree that the
least-developed country parties will not be obligated to implement
intellectual property protections as provided for by TRIPS Council Decision
(IP/C/64) dated 11th June 2013 until 2021 or any further extension thereof,
whichever occurs later nor to implement intellectual property protections
on pharmaceutical products as provided in TRIPS Council Decision (IP/C/73)
dated 6th November 2015 and WTO General Council Decision WT/L/971 dated 2nd
December 2015 until 2033 or any further extension thereof, whichever occurs
later.”

Article 12.1 of the draft text should be amended accordingly and provisions
that undermine LDCs’ flexibilities or that obligate or locks-in LDCs’
implementation of intellectual property should be deleted.

In accordance with Article 66.1 of the TRIPS Agreement, LDCs enjoy a number
of exemptions and waivers to the implementation of TRIPS Agreement which
are listed below for reference:

1. Pursuant to extension of transition period granted to LDCs in accordance
with Article 66.1 of the TRIPS Agreement, LDCs are exempted from applying
all TRIPS standards until 1 July 2021 (Footnote 3). This period must be
extended by the TRIPS Council on LDCs submitting a duly motivated request.
(Footnote 4) Thus far this transition period has been extended twice.

2. Further, LDCs have been granted a specific pharmaceutical transition
period wherein LDCs do not have to apply or enforce TRIPS provisions
concerning patents (footnote 5) as well as test data protection (footnote
6) in relation to pharmaceutical products until 1 January 2033(footnote 7).
This period must also be extended pursuant to a duly motivated requested.

3. In addition, the WTO General Council has granted LDCs waivers until 1
January 2033 from obligations to make available a mechanism for filing
patent applications for pharmaceutical products (mailbox) or to grant
exclusive marketing rights to such applications (Footnote 8)



In view of the above, we stress that countries and their negotiators should
recognize and uphold the current transition periods and waivers vis-a-vis
intellectual property granted to LDCs as well as any further extensions of
the same by the WTO. In fact, the text should encourage LDCs to fully
utilize these transition periods. In addition, countries negotiating RCEP
should not impose TRIPS-plus obligations on LDCs.

Footnotes:

1. [ASN/IN/NZ/CN propose: The Parties agree that the least-developed
country Parties will not be obliged, with respect to pharmaceutical
products, to implement or apply Paragraphs 1(a) of Article 4 (Patentable
Subject Matter) and Paragraph 4 of Article 4 (Electronic Registration
Regime) or to enforce rights provided for under these Paragraphs until 1
July 2021, without prejudice to the right of least-developed country
Parties to seek other extensions of the transition periods as provided for
in Article 66.1 of the TRIPS Agreement.]

 2. Pursuant to Article 66.1, such duly motivated requests “shall” be
accorded.

 3. TRIPS Council Decision (IP/C/64) dated 11th June 2013. This exemption
has been extended twice so far upon LDCs submission of requests.

 4. Article 66.1 of the TRIPS Agreement

 5. Section 5 of the TRIPS Agreement

 6. Section 7 of the TRIPS Agreement

 7. TRIPS Council Decision (IP/C/73) dated 6th November 2015

 8. WTO General Council Decision WT/L/971







-- 
Leena Menghaney
Mobile: 9811365412



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