[Ip-health] NGO letter LDC extension

Baker, Brook b.baker at neu.edu
Tue Oct 16 06:20:00 PDT 2012

Below is a priority request concerning the need to advocate for an extension of least-developed countries transition period (freedom from having to adopt TRIPS intellectual property protections) beyond the current expiration in 2013.  LDCs are currently getting Trojan Horse technical assistance advice from Sanaa Consulting, which is in turn funded by UK DfID, recommending that they prematurely adopt TRIPS-compliant legislation rather than seek the TRIPS extension to which they have an automatic right under Article 66.1 (dependent only on a properly motivated request).  Haiti currently leads the LDC country group and is also not playing a proactive role at present with respect to the proposed extension, presumably because of US pressure.

Activists, particularly in LDCs, are urgently requested to raise this issue with their governments as there is an important LDC meeting next week.  Academics should also pitch in and express their support for the extended transition period.  Solidarity actions in the UK targeting DfID would also be useful at this point in time.

If LDCs do not get an extended transition period, they will have to adopt stringent IP protections in all sector (excepting pharmaceuticals) by mid-2013.  Similarly, failure to obtain this extension will undermine efforts to obtain a further extension of the pharmaceutical transition period set to expire on Jan. 1, 2016.  If this were to lapse, LDCs would suffer under the tyranny of patent monopoly pricing for ARVs and other essential life-saving medicines.  They would also be realistically foreclosed from developing local/regional pharmaceutical manufacturing capacity to file new niche markets for drugs now widely patented in key producer countries like India.

Professor Brook K. Baker

Health GAP (Global Access Project)
Northeastern U. School of Law
Program on Human Rights and the Global Economy
400 Huntington Ave.
Boston, MA 02115 USA
Honorary Research Fellow, University of KwaZulu Natal, Durban, S. Africa
(w) 617-373-3217
(cell) 617-259-0760
(fax) 617-373-5056
b.baker at neu.edu

Dear All,

Please find attached the final versions of the NGO letter (in English & in French) signed by more than 150 organisations and networks worldwide

We hope you are able to use these letters to reach out to the relevant ministries and IP offices and to urge them to submit a request as per the NGO appeal attached.

It would also be good if NGOs/academics/others in LDC countries can reach out to their Ambassadors in Geneva to take the right decision on this as outlined in the NGO letter.
I would be happy to provide details of the missions in Geneva.

Do note that a LDC retreat will take place on 19-21st October and LDC extension is on the agenda.
Unfortunately LDCs are being guided by Sanaa Consulting, which has flawed views on LDC extension and is directing LDCs towards TRIPS compliance.


Sangeeta Shashikant <sangeeta at twnetwork.org<mailto:sangeeta at twnetwork.org>>

NGO Letter to Least-Developed Country Members of WTO Concerning a Further Extension of the 1 July 2013 LDC Transition Period Under Article 66.1 of the TRIPS Agreement
15th october 2012
Dear WTO LDC Members,
As civil society organizations 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, human flourishing, sustainable and equitable technological and industrial development in LDC countries, we write to least-developed country Members of the World Trade Organization (WTO) with respect to the pending request for a further extension of the 1 July 2013 LDC transition period under Article 66.1 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).  It is urgent that LDC Members of the WTO act collectively to immediately submit a duly motivated request to the WTO TRIPS Council for an indefinite extension (i.e. for as long as a WTO member remains a LDC) of the soon-to-lapse LDC transition period.
Article 66.1 of the TRIPS Agreement accorded LDC Members a renewable ten-year exemption from most obligations under the TRIPS Agreement in view of the special needs and requirements of the LDC Members,their economic, financial and administrative constraints and their need forflexibility to create a viable technological base.[1]
This exemption was originally due to expire on 31 December 2005. However, a TRIPS Council decision of 27 June 2002 (IP/C/25),extended the 2005 transition period until 1 January 2016 in relation to pharmaceutical patents and test data protection. A separate 8 July 2002 General Council’s decision (WT/L/478) suspended the obligations of LDC Members under Article 70.9 of the TRIPS Agreement with respect to pharmaceutical productsuntil 1 January 2016.  Without prejudice to this extension, the TRIPS Council, through its decision IP/C/40, extended the general TRIPS compliance transition period for LDC Members for all obligations under the TRIPS Agreement, other than Articles 3, 4 and 5, until 1 July 2013 or until such date on which a Member ceases to be an LDC, whichever date is earlier.
As the expiry of the exemption, I July 2013 is fast approaching, we believe it is urgent for all least-developed countries (LDC) to act collectively to submit a duly motivated request to the WTO TRIPS Council for an extension of the LDC transition period, until a Member ceases to be a LDC.
According to the United Nations Conference on Trade and Development Least Developed Country Report (2007), “The domestic knowledge systems in the LDCs are very weak and the level of technological capabilities of domestic enterprises is very low.”  In general, LDCs are at an enormous technological disadvantage compared to other countries and have yet to reap the benefits of the knowledge/ technology economy. At the same time LDCs face enormous economic, financial, and administrative constraints as well as human and technological capacity shortfalls.
Failure to seek and obtain a further extension of the 2013 LDC transition period could be disastrous for LDC Members and their citizens.  LDCs would immediately need to amend their intellectual property laws to become TRIPS-compliant and would be under extreme time pressures to do so. Much worse, they would be adopting high standards of intellectual property protection and enforcement before they had any real domestic technological capacity and before a significant body of local inventors, authors, and creators could leverage a domestic intellectual property system to their advantage.  It is a fact that in LDC countries foreign individuals and companies are the main beneficiaries of expanded IP protection and these foreign right holders tend to set high monopoly prices, which are unaffordable to most of the population.
Moreover, historically most technological development in developing and even in developed countries has come through a period of copying and adapting advanced technologies initially invented elsewhere.  This trend is aptly captured by Ha-Joon Chang: “….when they were backward themselves in terms of knowledge, all of today’s rich countries blithely violated other people’s patents, trademarks and copyrights. The Swiss “borrowed” German chemical inventions, while the Germans “borrowed” English trademarks” and the Americans “borrowed” British copyrighted materials – all without paying what would today be considered “just” compensation”[2].
Many LDC Members, pursuant to misguided advice,have been focusing on assessing their TRIPS compliance and their technical needs for TRIPS-compliant law reform.  We are of the view that this is the wrong focus as generally LDCs are not in aposition to benefit from full TRIPS compliance at this time.
Even if a LDC Member believes it can benefit from a certain form of intellectual property protection (e.g. trademarks for localtraders), an extended transition period provides ample flexibility to allowLDCs to implement the level of intellectual property protection suitable for individual interests and needs. Thus LDCs should not prematurely tie their hands to full implementation of the TRIPS Agreement by focusing on needs assessment, when an extension is a right that LDCs have under Article 66.1.
In addition, to the extent that LDC Members do want to incentivize and protect their local innovators and creators, even with an extension of the transition period, this remains possible as local innovators and creators will still be able to benefit economically from the protection of IPRs in non-LDC Members, a market much more robust than the domestic marketalone.
An extension of the 2013 LDC transition period is further desirable because it will set the stage for a future extension of the 2016 LDC pharmaceutical extension period.  This extension is vitally important to the continued ability of LDC to access affordable generic medicines of assured quality for HIV/AIDS, TB, malaria and other infectious, neglected, and non-communicable diseases and to allow LDCs to develop local pharmaceutical capacity.  Indeed, LDC Members, could fill an important pharmaceutical niche by manufacturing newer medicines now patented in key producer countries like India, all of which were required to become TRIPS-compliant in 2000 or 2005.
In conclusion, we request urgently that:

·       LDC Members collaborate and offer a joint request for an indefinite extension of the TRIPS transition period under Article 66.1.  Attached is a proposed draft of such an extension.  Civil society and supporters of this letter will be eager to offer advocacy support to LDC Members for the passage of the needed extension at the WTO.
The extension sought should be one that is indefinite – in other words, it should not end until a Member ceases to be an LDC.  The arc of technological development is long, especially since LDC members have both to catch up andkeep pace with the rapid development and expansion of technological capacity in other developing and developed countries.

·       The transition period extension must also NOT have conditions such as those contained in paragraph 5 of IP/C/40. Article 66.1 of the TRIPS Agreement contains no requirement that there be any conditions on the grant of a properly motivated extension request.  Article 66.1 states that the Council “shall upon duly motivated request … accord” extensions of the transition period.  To the same effect, the 2013 extension decision (IP/C/40) was “without prejudice” with respect “to the right of least-developed Country Members to seek further extensions of the period provided for in paragraph 1 of Article 66 of the Agreement.”

This issue is critical, as many LDC Members have prematurely provided for patents and other intellectual property rights andprotections prior to the extension granted in 2005 of the Article 66.1 transition period, often as a legacy of colonial rule.  Conditions such as paragraph 5 of IP/C/40 narrows the policy space available to LDCs by cementing colonial era IP rules and even more recent ill-advised IP reforms championed by WIPO, European and US Patent Offices and other technical advisors. Such conditions are aimed at preventing LDCs from fully enjoying the flexibility and policy space available during the transition period and which are crucial to enable LDCs to engage in technology catch-up and at the same time ensure access to more affordable commodities and public goods both for their citizens.


Article 66.1 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) granted least-developed country (LDC) Members a ten-year transition period from most obligations under the TRIPS Agreement in view of their special needs and requirements, including their economic, financial and administrative constraints and their need for flexibility to create a viable technological base.
This LDC transition period was originally set to expire on 31 December 2005. However, a TRIPS Council decision of 27 June 2002 (IP/C/25) extended the 2005 transition period until 1 January 2016 in relation to pharmaceutical patents and test data protection. A separate 8 July 2002 General Council’s decision (WT/L/478) suspended the obligation of LDC Members under Article 70.9 of the TRIPS Agreement with respect to pharmaceutical products until 1 January 2016.
Without prejudice to this pharmaceutical related extension, the TRIPS Council, through its decision IP/C/40, extended the general TRIPS compliance transition period for LDC Members for all obligations under the TRIPS Agreement, other than Articles 3, 4 and 5, until 1 July 2013 or until such date on which a Member ceases to be an LDC, whichever date is earlier.
LDC Members of the WTO continue to face serious economic, financial and administrative constraints and for the most part have failed to create a viable technological base.  Moreover, they lag in all indicators concerning concentrated poverty, illiteracy, poor health and a failure to realize sustainable and equitable human and economic development. LDC Members also have very low levels of innovative activity currently or commercial creative activity and are net importers of expensive IP-related commodities including medicines, information technology, educational resources, and environmentally sound technologies, most of which are not affordable tomost of the LDC population.
LDC Members therefore need to keep maximum flexibility to delay implementation of intellectual property right protections in accordance with Article 66.1 as long as they remain severely and comparatively disadvantaged in knowledge-based economic activity.  A further extension of the TRIPS transition period would give LDCs an opportunity to imitate and translate existing technologies and informational resources for local use at the same time that they build their technological resources and human capacities.
Developing a viable technological base does not happen overnight, especially as LDC Members will not only have to catch up but then keep pace with the global rate of technological development. Thus LDCs need a long-lasting transition period from TRIPS compliance in order to be able to grow economically viable industrial and technological sectors, to consolidate capacity, and to work their way up the technological value chain.
Article 66.1 provides that the Council for TRIPS “shall, upon duly motivated request by a least developed country Member, accord extensions of this period [emphasis added].”  At the Eighth WTO Ministerial Conference of December 2011, the Ministers invited the TRIPS Council to give full consideration to a duly motivated request from LDCs for a further extension.
Since it is impossible to determine when individual LDCs will be able to overcome their economic, financial and administrative constraints and create a viable technological base, a further extension of the Article 66.1 transition period should not be limited to an artificial, pre-defined time period but insteadshould remain in force so long a particular LDC Member is considered a LDC as defined by the WTO.  Moreover, an extension should be granted to LDCs as a group, given their common delays in development and should be granted with respect to all TRIPS intellectual property rights.
LDC Members of the WTO hereby submit this duly motivated request for an extension of the transitional period (that ends on 1 July 2013) for as long as any particular WTO Member remains an LDC.  Thisextension should not have conditions such as those contained in paragraph 5 of IP/C/40.
This request shall not derogate from the rights of LDC Members available under Article 66.1 to request further extensions of transition period with respect to pharmaceutical products which is due to expire on 1 January 2016.

Global, Inter-regional and Regional Networks

1.      Act-Up Basel

2.      Africa Biodiversity Network (ABN)

3.      Africa Europe Faith and Justice Network (AEFJN)

4.      Africa Network for Animal Welfare (ANAW)

5.      Asia Pacific Network of People living with HIV/AIDS (APN+)

6.      Consumers International

7.      Eastern &Southern Africa Small Scale Farmers' Forum (ESAFF)

8.      European AIDS Treatment Group (EATG)

9.      Health Action International Africa (HAIA)

10.   International Association of Peace Messenger Cities (IAPMC)

11.   International Treatment Preparedness Coalition (ITPC)

12.   International Treatment Preparedness Coalition Middle Eastern & North Africa

13.   Latin American Coordination Network for Fair Trade (Mesa de Coordinación Latinoamericana de Comercio Justo), Latin America

14.   LDC Watch

15.   Nord-Sud XXI

16.   Pan African Animal Welfare Alliance (PAAWA)

17.   Pacific Network on Globalisation (PANG)

18.   Pacific Islands Association of Non-Governmental Organisations (PIANGO)

19.   Participatory Ecological Land Use Management (PELUM)

20.   Office Africain pour le Developpement et la Cooperation (OFADEC)

21.   Oxfam International

22.   Southern and Eastern African Trade Information and Negotiations Institute (SEATINI)

23.   Social Watch

24.   South Asia Alliance for Poverty Eradication (SAAPE)

25.   The Global Forum on MSM & HIV (MSMGF)

26.   Third World Network

27.   Treatment Access Watch, Africa

28.   Women for a New era (DAWN)
National & Other Organizations & Networks

29.   S.O.S - Crianca E Desenvolvimento Integral De Angola, Angola

30.   Citizen Participation Forum for Justice and Human Rights (FOCO) Argentina

31.   Encuentro de Entidades No Gubernamentales para el Desarrollo, Argentina

32.   Fundación SES, Argentina

33.   Mujeres Activas, Argentina

34.   Center for Encounters and Active Non-Violence, Austria

35.   Bahrain Transparency Society, Bahrain

36.   Bangladesh Krishok Federation, Bangladesh

37.   Center for Participatory Research and Development (CPRD), Bangladesh

38.   Equity BD, Bangladesh

39.   Coastal Association for Social Transformation Trust (COAST), Bangladesh

40.   Plate forme des Organisations de la Société Civile du Bénin (PASCiB), Benin

41.   Dynamique des Organisatioins de la Société Civile d’ Afrique Fancophone (OSCAF), Benin

42.   Groupe de Recherche et d'Action pour la Promotion de l'Agriculture et du Développement (GRAPAD) Bénin

43.   Brazilian Insitute of Consumer Protection (IDEC), Brazil,

44.   Association pour le Droit à la Santé et au Développement (ODSAD Faso), Burkina Faso

45.   French Forum Against TB, Burkina Faso

46.   Coalition 15%, Cameroon

47.   Cameroon TB group, Cameroon

48.   Positive-Generation, Cameroon

49.   Mouvement camerounais pour le plaidoyer à l'accès aux traitements (MOCPAT) Cameroon

50.   Groupe d’Action, de Paix et de Formation pour la Transformation (GAPAFOT), Central African Republic

51.   Planetary Association for Clean Energy, Canada

52.   Polaris Institute, Canada

53.   Tchad Agir Pour L'Environnement, (TCHAPE), Chad

54.   ONG Derechos Digitales, Chile

55.   Fundación Karisma, Colombia

56.   Comité d'Appui au Travail Social de Rue (CATSR), Democratic Republic of Congo

57.   Jeunesse Avenir, Democratic Republic of Congo

58.   Citizens’ Action Network on Free Trade andInvestment - Sinti Techan (Red de Acción Ciudadana frente al Libre Comercio e Inversión Sinti Techan), El Salvador

59.   Fiji Women's Rights Movement, Fiji

60.   Act Up-Paris, France

61.   Sidaction, France

62.   Worldview, Gambia

63.   Action Against AIDS, Germany

64.   Centre du Commerce international pour le développement (CECIDE), Guinée

65.   Plateforme Haitienne de Plaidoyer pour un Developpement Alternatif (PAPDA), Haiti

66.   All India Drug Action Network, India

67.   Bharatiya Krishak Samaj, India

68.   Center for Internet and Society, India

69.   Diverse Women for Diversity, India

70.   Initiative for Health & Equity in Society, India

71.   Research Foundation for Science Technology &Ecology, India

72.   Presentation Justice Network, Ireland

73.   AIDS Law Project - Kenya

74.   Inades Formation Kenya

75.   Kenya Biodiversity Coalition, (KbioC), Kenya

76.   Kenya Debt Relief Network (KENDREN), Kenya

77.   Catholic Commission for Justice and Peace, Lesotho

78.   Consumers Protection Association, Lesotho

79.   Junior Chamber International, Lesotho

80.   Policy Analysis and Research Institute of Lesotho, Lesotho

81.   Plate Forme Société Civile pour l'Enfance, Madagascar

82.   Forum Pour L’Autre (FORAM), Mali

83.   Association de lutte contre le sida (ALCS), Morocco

84.   All National Women’s Association (ANWA), Nepal

85.   Jagaran Nepal, Nepal

86.   Nepal NGO Federation of Nepal (NFN), Nepal

87.   Rural Reconstruction Nepal (RRN), Nepal

88.   Both ENDS, the Netherlands

89.   Platform Aarde Boer consument, the Netherlands,

90.   Alternative Espaces Citoyens, Niger

91.   Labour, Health and Human Rights Development Centre, Nigeria

92.   Vision Spring Initiatives, Nigeria

93.   The Norwegian Trade Campaign (Handelskampanjen), Norway

94.   ACTNOWpng!, Papua New Guinea

95.   Peruvian Network for Fair Trade and Ethical Consumption (Red Peruana de Comercio Justo y Consumo Ético), Peru

96.   Réseau Dynamiques Africaines, Rwanda

97.   Africaine de Researche et de Cooperation pour l’Appui au Developpement Endogene (ARCADE), Senegal

98.   African Forum for Alternatives, Senegal

99.   Network Movement for Justice and Development (NMJD), Sierra Leone

100.Artisanal Fishers Association, South Africa

101.Surplus People Project, South Africa

102.African Biosafety Centre (ACB), South Africa

103.Social Watch coalition, Spain

104.World Democratic Governance project association, Spain

105.National Civic Forum, Sudan

106.Alliance Sud, Swiss Alliance of Development Organizations, Switzerland

107.Berne Declaration, Switzerland

108.Institute for Planetary Synthesis , Switzerland

109.International-Lawyers.Org, Switzerland

110.Organisation for the Communication in Africa and the Promotion of the International Economique Cooperation. (OCAPROCE International), Switzerland

111.Envirocare, Tanzania

112.Tanzania Alliance for Biodiversity, Tanzania

113.Tanzania Organic Agriculture Movement, Tanzania

114.AIDS ACCESS Foundation, Thailand

115.Alternative Agricultural Network, Thailand

116.Drug Study Group, Thailand

117.Drug System Monitoring and Development Program, Thailand

118.Ecological Alert and Recovery – Thailand (EARTH), Thailand

119.Foundation for AIDS Rights, Thailand

120.Foundation for Consumers, Thailand

121.FTA Watch, Thailand

122.Health and Development Foundation, Thailand

123.Health Consumers Protection Program, Thailand

124.Social Pharmacy Research Unit, Chulalongkorn University, Thailand

125.Rural Doctors Foundation, Thailand

126.Rural Doctor Society, Thailand

127.Rural Pharmacists Foundation, Thailand

128.Thai NGO Coalition on AIDS, Thailand

129.Thai Holistic Health Foundation, Thailand

130.The Thai Network of People living with HIV/AIDS (TNP+), Thailand

131.La' o Hamutuk, Timor-Leste

132.Peace and Conflict Studies Centre, Timor-Leste

133.Actionaid Uganda, Uganda

134.Advocates Coalition for Development and Environment (Acode), Uganda

135.Center for Health, Human Rights and Development (CEHURD), Uganda

136.Coalition for Health Promotion and Social Development (HEPS), Uganda

137.Participatory Ecological Land Use Management (PELUM), Uganda

138.Mariam Foundation Centre, Uganda

139.National Organic Agricultural Movement of Uganda (NOGAMU), Uganda

140.Foundation for GAIA, UK

141.War on Want, UK

142.African Services Committee, USA.

143.Global Exchange, USA

144.Health GAP (Global Access Project), USA

145.Initiative for Medicines, Access & Knowledge (I-MAK), USA

146.International Forum on Globalization, USA

147.Knowledge Ecology International, USA

148.Moana Nui (Action Alliance), USA

149.Association for the Prevention of HIV and TB (ZAPHIT) Support Program, Zambia

150.Community Based TB Action Group (COBTAG), Zambia

151.Community BasedTB/HIV Organization (CBTO), Zambia

152.Treatment Advocacy and Literacy Campaign (TALC), Zambia

153.Youth Hope Network, Zambia

154.Community Technology Development Trust (CTDT), Zimbabwe

155.Health Poverty Action, International

[1] Article 66.1 of the TRIPS Agreement 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 thanArticle 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.”

[2]Ha-Joon Chang (2007), “Bad Samaritans The Guilty Secrets of Rich Nations & the Threat to Global Prosperity”

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