Legal Academics’ Expert Letter on LDCs’ TRIPS Extension Request

Brook Baker

Several of IP justice academics are soliciting signatures from legal and other academics around the world who focus on human rights, intellectual property, trade, and development and who are in favor of the request by WTO least developed country Members that they be granted  an extension of the time period within which they must become compliant with the TRIPS Agreement.  WTO LDC Members were initially given an extension with respect to all TRIPS requirements except national and most favored nation treatment until 2006.  That transition period was further extended until June 30, 2013 in 2005 (a separate extension was granted on pharmaceutical products only until 2016) but with some unfortunate conditions (beyond the unreasonably short term), such as a requirement that LDCs must keep their current level of IP protections, something that was not required by TRIPS Article 66.1.  The  current request from LDC Members is for an unconditional extension of the transition period so long as an LDC Member is an LDC.  It is hoped that a longer and unconditional extension permitting rollback of improvidently adopted IP standards will allow LDCs to build their technological base and improve limiting domestic capacities.  This request has received support from 350 civil society organizations, from some industry groups, from several multilateral organizations, and from many developing country members of the WTO.

We are seeking signatures to the letter appended below beyond those who focus primarily on access to medicine, to academics who are also concerned about IP impacts in LDCs on access to information (especially IT, educational, and scientific resources), agricultural resources, green and climate control/mitigation technologies, and development more generally.  We already have 30 signers, including several leading international IP and trade experts.

There is some urgency since the US and EU are ramping up their pressure on LDCs to impose a short and highly conditionalized extension and the final TRIPS Council meeting will happen soon.  Therefore, we will be collecting signatures until April 26.  Please send your sign-ons to me:  b.baker@neu.edu.

Legal Academics’ Expert Letter on LDCs’ TRIPS Extension Request

To WTO Members:

We are legal and other academics from high-, middle-, and low-income countries who specialize in international intellectual property and trade law, development studies, human rights, and other disciplines.  We are writing in unequivocal support of the extension requested by Least Developed Country Members of the World Trade Organization (LDC Members) for an unconditional extension of the time period within which LDC Members must become compliant with the WTO TRIPS Agreement. Pursuant to the properly motivated requested from Haiti on behalf of LDC Members, the extension for any particular country could last as long as that country was still an LDC.[1] LDC Members would retain freedom to amend national legislation to change or modify any existing intellectual property legislation subject only to compliance with national treatment and most favoured nation treatment requirements.

Our support for the requested extension is grounded on both the history and language of Article 66.1 of the TRIPS Agreement[2] and on the need of LDC Members to retain policy space if they are to develop their technological base such that intellectual property protections might be helpful rather than harmful to their development processes.  In particular, our expert analysis is grounded on the following:

(1) Article 66.1 was explicitly premised on a collective understanding at the WTO that LDC Members needed flexibility “to create a viable technological base” and that they had additional “special needs and requirements” with respect to “their economic, financial and administrative constraints”.   This understanding was also fully captured in the Preamble to the TRIPS Agreement.[3]

(2) This Article 66.1 consensus in turn reflected an understanding that the premature adoption of TRIPS-compliant intellectual property protections by LDC Members could impede the development of a viable technological base and other needed capacities or alternatively, at the very least, that countries needed to retain policy space to make their own decisions in this regard. Existing empirical evidence does not support the proposition that heightened intellectual property protections have had positive impacts on foreign direct investment, local innovation, technological capacity-building, or even development more broadly in LDCs.[4]

(3) Article 66.1 expressly permitted LDC Members to dismantle any intellectual property legislation that they had enacted prior to the adoption of the TRIPS Agreement or even during the original LDC transition period. This same right should have been granted in any further extensions thereof, meaning that the paragraph 5 stay-put provision in the 2005 extension[5] was improvidently granted and it should not be incorporated into the 2013 extension.[6]

(4) Pursuant to Article 66.1, WTO Members expressed an understanding that LDC Members needed a significant time period during which to develop their technological and other capacities and that the initial ten-year transition period – until 2006 – might be too short, thus directly allowing for one or more further “extensions” thereof.

(5) Experience has shown that very few LDCs have been able to graduate from LDC status since 1991 (only Botswana, Cape Verde, and the Maldives) and that those that have graduated have done so primarily on the basis of improved GDP rather than technological development per se.   Admittedly, several other countries are on the threshold of graduation,[7] but many LDC Members have not even approached eligibility for graduation.

(6) Experience under Article 66.1 also shows that a series of time-limited transition periods and extensions, such as the initial ten-year transition period and the six and a half year extension granted in 2005, has been insufficient for technological transformation and capacity building for the vast majority of LDC Members, especially in light of developed countries having failed to facilitate meaningful technology transfer as required by Article 66.2.[8]  Thus, a much longer extension is needed during which LDC Members can devote their entire attention to development objectives.  There is WTO precedent for extensions that last as long as a Member is an LDC.[9]

(7) Technical assistance for LDC Members to date has ill-advisedly focused on capacity building for TRIPS-compliance pursuant to Article 67[10] rather than on capacity building and technology transfer for development pursuant to Article 66, diverting the attention of both LDC Members and their development partners.  Thus, it would be inappropriate to include requirements with respect to reporting priority needs for TRIPS compliance in the current LDC extension request.[11]

(8) Premature adoption of TRIPS-compliant intellectual property regimes in LDC Members will adversely affect their ability to fulfill human rights obligations with respect to the provision of essential public goods including medicines, educational and scientific resources, food security, and technologies for environmental protection, energy conservation, and climate control/mitigation.  Intellectual property protections on key commodities and resources can lead to supra-competitive pricing and thus to unaffordability for LDCs Members and their citizens.

(9) Pursuant to Article 66.1, the TRIPS Council “shall … accord extensions” upon duly motivated requests, meaning that extensions are mandatory – a matter of right – rather than something that can be negotiated downward by developed country members.  Such extensions are to be granted by the TRIPS Council and therefore should not be postponed until the WTO general meeting in Bali in December of 2013.

(10) The adoption of the extension would not impede efforts of some LDC Members, if desired, to adopt certain forms of intellectual property, e.g., utility models or trademarks, or to experiment with early introduction of limited rights in other areas.  In other words, such differentiation will certainly be a possibility but not a requirement.

There have been reports that certain developed country Members, particularly the U.S. and E.U., are putting pressure on LDC Members and their allies to water-down their extension request and to accept a much shorter timeframe (as little as five years); a stay-put provision locking in existing levels of intellectual property protection; differential approaches for different intellectual property rights, i.e. patents and trademarks; and/or differential treatment for different LDC Members.

In our opinion, all of these downward demands are unjustified and contrary to the language and spirit of Article 66.1.  On the other hand, we note that many organizations have expressed support for the LDC extension request, including UNDP and UNAIDS,[12] the Global Commission on HIV and the Law,[13] a consortium of 300 civil society organizations,[14] developing country Members,[15] and others.[16]

In conclusion, we repeat our unreserved support for the requested extension of the transition period for LDC Members to implement TRIPS so long as they remain an LDC and our conviction that this request is fully justified under Article 66.1 of the TRIPS Agreement and that arguments and efforts opposing it are unfounded.