[Ip-health] Tripping Up: LDCs, TRIPS and justice

Mickey Davis michael.davis at law.csuohio.edu
Wed Jun 5 17:22:14 PDT 2013

“ IP is essential for development?" Who says that? Economists and patent experts have always said that development is necessary, a prerequisite, for IP. Perhaps it's time to repeal TRIPS. It's obviously being led by clowns and charlatans.

Prof. Michael H. Davis
Professor of Law
Cleveland State University
Cleveland, OH 44115
216-687-2228 Office
917-771-0235 Mobile

-----Original Message-----
From: Sangeeta Shashikant <ssangeeta at myjaring.net>
To: "a2k at lists.keionline.org" <a2k at lists.keionline.org>, ip-health at lists.keionline.org
Sent: Wed, 05 Jun 2013 7:07 PM
Subject: [Ip-health] Tripping Up: LDCs, TRIPS and justice

Tripping Up
TRIPS and justice
Dr Arjun Karki

I have been closely following the ongoing trade negotiations in Geneva
between the least developed countries (LDCs) and developed countries, in
relation to the Agreement on Trade-Related Aspects of Intellectual
Rights (TRIPs) of the World Trade Organization (WTO). The negotiations are
increasingly turning into a battle for justice for the LDCs which is very
disturbing for me and my colleagues who have been defending the interests
of the 

The ?renewable transition period? of TRIPS exemption granted to the LDCs
expiring on July 1. LDCs submitted a group request to the TRIPS Council in
November 2012 for an unconditional ?indefinite transition period? until
graduate from the LDC status. Article 66.1 of the Agreement mandates all
Members to approve the LDCs? request once it is submitted. However, this
turning out to be a bone of great contention between the LDCs and the
countries with the latter offering a very impractical short transition
period (5 
to 7.5 years) as well as attaching the no-roll-back clause which prevents
from reducing intellectual property (IP) protection, even for their
needs. The current trade battle is, therefore, of justice and the right to
development of LDCs and its peoples.

The WTO TRIPS Agreement enacted on January 1, 2005 established universal
minimum standards on patents, copyrights, trademarks and industrial
among others. The TRIPS rules call on WTO member countries to amend their
domestic laws and regulations to introduce stronger levels of protection
intellectual property. In order to facilitate the implementation of the
Agreement, developing countries were given five years for compliance, i.e.
January 1, 2010. The LDCs defined by the United Nations (UN) on the basis
of low 
income, weak human assets and economic vulnerability were however treated
differently under Article 66, ?recognizing the special needs and
requirements of 
least-developed country Members, the economic, financial and
constraints that they continue to face and their need for flexibility to
a sound and viable technological base? as well as ?recognizing the
needs of least-developed country Members for technical and financial
so as to enable them to realize the cultural, social, technological and
developmental objectives of intellectual property protection.?

LDCs thus enjoy the flexibility of a renewable transition period until
graduate from the LDC status, before which they need not implement most
Agreement provisions. Article 66.1 states that ?The Council for TRIPS
upon duly motivated request by a least-developed country Member, accord
extensions of this period.? On this basis, LDCs were given an initial
period of 10 years which expired in 2005 and upon request, it was again
for another 7.5 years which expires on 1 July 2013.

It is a given that the 49 LDCs spreading over Sub-Saharan Africa, the
Caribbean and the Asia-Pacific are poor and vulnerable?more than 75
percent of 
around 900 million population in these countries live in poverty; one
fourth are 
under-nourished; only 63 percent have access to improved water supply
only 36 percent use improved sanitation; and LDCs are at the bottom of all
technological and innovation indices.

Out of the 49 LDCs, 17 are
landlocked developing countries (LLDCs) and 10 are small island developing
states (SIDS), while 20 are mountain countries where geographical and
environmental constraints pose further hindrance to development. Even
though LDC 
greenhouse gas emission per capita is a negligible 0.2 percent, they are
at the 
receiving end of the climate change catastrophe. Increasing sea-level
desertification, glacial melting, floods, earthquakes, droughts, cyclones
heat stress are already resulting in frequent loss and damage while also
increasing climate migrants. The number of people in LDCs affected by
events has almost doubled, rising from 100 million during 1970-1979 to 193
million over 2000-2010. And, talking about political climate, most LDCs
characterised by conflict, post-conflict and politically unstable
with 24 of them categorised as fragile states.

Given such a grim reality, LDCs have not been able to effectively benefit
from the international trading system and transform their development
with their share of global trade below 1 percent. LDCs thus need continued
flexibility of policy space provided by the TRIPS exemption for further
knowledge production and building of sound and viable technological base
development. For instance, the current exemption allows LDCs to easily
and produce the much-needed affordable medicines and medical products,
educational materials and other essential public goods including
climate-friendly technologies. On the flip side, expiry of this exemption
subsequent adoption of stronger IP standards by LDCs mean that they have
to pay 
a much higher price to access essential products and technologies while
stifling their own productive and absorptive capacities. Hence, the TRIPS
exemption is a matter of life and death for the LDCs and its peoples while
it is 
solely business and profit for the developed countries backed by their
corporate lobby.

Additionally, the unconditional indefinite transition period of TRIPS
exemption as requested by the LDCs is premised upon the fact that it takes
decades to develop sound and viable technological base to benefit from
standards of IP protection. This fact is clearly reflected in the 2012 UN
Secretary-General?s Report on the Implementation of the Istanbul Programme
Action for the LDCs for the Decade 2011-2020 which states that ?Least
countries did not fare well compared to other developing countries both in
of resources allocated to science, technology and innovation and the
of knowledge production... In addition, these countries were not able to
the existing flexibilities in intellectual property right regimes and the
Trade Organization... in order to gain access to essential technologies
that are 
used to produce essential goods and services for their populations?.

The ongoing negotiations in Geneva which is building up towards a final
decision by the forthcoming TRIPS Council meeting on June 11-12 must
deliver on the legal obligation of WTO members to grant LDCs their request
enables the realisation of the development objectives of intellectual
protection. It must be noted that the LDCs? request is supported by the
of developing countries, UN agencies such as the UNDP and UNAIDS, the
Commission on HIV and the Law, the Computer and Communications Industry
Association (CCIA) whose members include Microsoft, Google, eBay, Facebook
Yahoo!, the global academia and needless to say, by LDC and non-LDC civil
society in the global North and South. Nepal in its capacity as the Chair
of the 
LDCs in the WTO is providing strong leadership and should continue to
stand firm 
to defend the interests of the LDC peoples, by rejecting any compromise on
duration and inclusion of the no-roll-back clause. The pressure should not
be on 
the LDCs to give in as the developed countries are legally bound to grant
request; the pressure should instead be on the developed countries to
deliver on 
their legal obligation.

The key opposing bloc comprising the United States, the European Union,
Japan, Canada, Australia, New Zealand and Switzerland are simply making a
mockery of the much touted ?policy coherence? on international development
cooperation. It is sheer hypocrisy that these countries themselves
copied, imitated and borrowed each other?s intellectual property for their
technological advancement in the pre-IP era and now they are imposing the
notion that IP is essential for development, which basically guides their
current opposition to LDCs? request. Simply put, the current dispute is
uncalled-for due to the legal obligation of WTO members to approve the
of the LDCs. Therefore, the so-called rules-based WTO should comply with
rules and prove its credibility to the international community.

The author is the International
Coordinator of LDC Watch
(C) Nepal Republic Media Pvt. Ltd. Kathmandu Nepal. 

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