Nov 082012
 

Brook Baker

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] .   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 new 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  Very few if any had actually repealed their IP laws, except with respect to pharmaceuticals and then often only informally.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.

 

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