[Ip-health] Sci-DevNet: Rich and poorest nations face off over TRIPS extension

Sangeeta Shashikant ssangeeta at myjaring.net
Tue May 21 09:04:42 PDT 2013


Rich and poorest nations face off over TRIPS extension
Yojana Sharma
21 May 2013 |

Poorer nations may struggle to develop key technologies if IP protection
is required
 Albert González Farran - UNAMID

The world's poorest countries are in a dispute with developed
nations, including the United States and European Union members, over
their special rights to bypass intellectual property rights when
accessing key technologies.

The least developed countries (LDCs) are asking members of the World
Trade Organization (WTO) to allow them to retain their exemption from
having to provide legal protection for trademarks, copyright and
intellectual property (IP) when the current exemption expires on 1 July.

Currently, the LDCs do not have to provide enhanced IP protection, as
 required by WTO's Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS), within their national laws ‹ most of which date
 back to colonial times and lack such provisions.

This allows them easier access to medicines , textbooks, green
technologies, and other public goods and cultural creations.

They are arguing for an unlimited extension to this exemption as long as
 nations remain LDCs to give them access to key resources and
technologies that can help them to develop their industries.

Without an extension of the exemption, the poorest countries say they
would need to amend their IP laws to become TRIPS-compliant even if this
 would put their development at risk. In a submission made late last
year to the WTO on behalf of the LDCs, Haiti argued these countries
would have to adopt high levels of IP protection despite having little
domestic technological capacity or even the ability to enforce IP

Lack of governance capacity

"The LDCs do not have the institutional set-up or capacity to enforce
TRIPS-compliant laws," an LDC delegate to the WTO tells SciDev.Net.
 Without an extension agreement, the "LDCs will have to comply with the
law but if they cannot do that, what will happen? Are you going to
prosecute the LDCs in a dispute?"

Moses Mulumba, executive director of the Center for Health, Human Rights
 & Development, a non-profit research and health rights organisation
 for East Africa based in Uganda, says: "The situation is quite

The Ugandan patent office "is concerned that it would need a police
force to ensure compliance and to seize non-TRIPS-compliant goods", he

"If the exception is not provided, we would not be able to import
[patent-protected drugs]. All our efforts on the ground will be
affected," Mulumba tells SciDev.Net, pointing out that 70 per cent of the
country's drugs are imported.

"Because we don't have our own primary research in Uganda, we rely on
the import of a number of patented drugs, particularly for HIV/AIDS"

In a statement in February, Michel Sidibé, executive director of the
Joint UN programme on HIV/AIDS (UNAIDS), said that the UN Development
Programme, on behalf of UNAIDS, supports an indefinite exemption to
ensure the LDCs have "sustained access to medicines, build up viable
technology bases and manufacture or import the medicines they need".

"This has become a battle of development versus compliance. The EU and
US see this as a compliance issue," says Sangeeta Shashikant,
coordinator of the Third World Network, one of the NGO signatories.

Moving forward

Informal discussions have been ongoing in the run-up to the
June meeting of the TRIPS Council ‹ the body that administers the TRIPS

The United States and the EU are resisting the calls for an open-ended
extension and are pressing for a five-year extension for the exemption.

During a TRIPS Council meeting in early March, however, the Solomon
Islands delegate described this five-year time frame as "arbitrary".

The current exemption for the LDCs was extended in 2005 for
seven-and-a-half years. One LDC delegate tells SciDev.Net that "this in
itself was a compromise", as the LDCs were after an unlimited extension.

The fact that they are in line for another extension suggests that
seven-and-a-half years was too short if the aim of the exemption is to
help the LDCs gain time to develop their own industries, rather than
simply enact TRIPS, says the LDC delegate.

It meant that the extension "had little bearing on [changing] the
situation in poor countries", says the LDC delegate.

Development threat 

The United States and EU are also demanding a 'no rollback
clause' that would prevent the LDCs from reducing the amount of legal
protection they provide to IP even if it harms their development.

 Brook Baker, a law professor from Northeastern University, United States,
tells SciDev.Net
 that "granting monopolies to transnational IP companies in the poorest
countries in the world is guaranteed to slow development in both
technology and human capacity".

In a submission to WTO in support of an open-ended extension for LDCs,
the non-profit EIFL (Electronic Information for Libraries), which
supports access to digital resources in developing nations' libraries,
said that the LDCs should be allowed to draft their national copyright

This should include "exemptions and limitations to suit their own
conditions" and "without the threat of trade sanctions used by trading
partners to enforce TRIPS obligations".

They need this to protect scientific databases, EIFL said, adding that
research and development
depends on access to global information resources and services provided by
academic and research libraries.

According to a letter to WTO members, signed by a global network of more
 than 375 NGOs and other organisations in February, civil society
maintains that foreign individuals and companies are the main
beneficiaries of expanded IP protection "and these foreign right holders
 tend to set high monopoly prices that are unaffordable to most of the
population" in LDCs.

Nepal's delegate told a TRIPS meeting earlier this year that most
IP-protected goods and services "are simply beyond the purchasing power
of the least developed countries and their people".

The LDCs are being supported by developing countries including Brazil,
China, India and the African Group, a UN grouping of African countries,
mainly African Union member states. 

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