LDCs, TRIPS and Justice

In the run-up to the WTO decision about whether to extend the TRIPS waiver to LDCs we are printing a series of articles explaining the importance of the waiver for LDCs. The first article is by LDC International Coordinator Arjun Karki, which lays out the arguments for maintaining the waiver.

Dr Arjun Karki

Dr Arjun Karki

Civil society organisations have been working strenuously to persuade developed countries to extend the WTO’s Trade-Related Aspects of the Intellectual Property Rights (TRIPS) Agreement
TRIPS exemption. LDC Watch in particular has been lobbying countries and organisations, such as the European Parliament, to agree. In this article, which originally appeared in MyRepublica.com, Dr Arjun Karki, International Coordinator of LDC Watch explains the background and the arguments behind the call for the extension.

I have been closely following the on-going trade negotiations in Geneva between the LDCs and developed countries, in relation to the World Trade Organization (WTO)’s Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement. The negotiations are increasingly turning into a battle for justice for the LDCs.

The ‘renewable transition period’ of TRIPS exemption granted to the LDCs expires on July 1 this year. On behalf of the LDCs, Haiti (an LDC) submitted a group request to the TRIPS Council in November 2012 for an unconditional ‘indefinite transition period’ exemption until LDCs graduate from being LDCs.

Article 66.1 of the Agreement mandates all WTO Members to approve the LDCs’ request once it is submitted. However, this is a bone of contention between the LDCs and the developed countries. The latter are offering a very impractical short transition period (5 to 7.5 years) and attaching a ‘no-roll-back clause’ to prevent LDCs from reducing intellectual property (IP) protection, even for their development needs. The current trade battle is one of justice and the LDCs and their peoples’ right to development.

The WTO TRIPS Agreement enacted on January 1, 2005 established universal minimum standards on patents, copyrights, trademarks and industrial designs, among others. The TRIPS rules call on WTO member countries to introduce stronger levels of protection for intellectual property. In order to facilitate the implementation of the TRIPS Agreement, developing countries were given five years to comply, i.e. until January 1, 2010.

The UN defines LDCs on the basis of low income, weak human assets and economic vulnerability, and they were treated differently under Article 66, “recognizing the special needs and requirements of least-developed country Members, the economic, financial and administrative constraints that they continue to face and their need for flexibility to create a sound and viable technological base” as well as “recognizing the continuing needs of least-developed country Members for technical and financial cooperation to enable them to realize the cultural, social, technological and other developmental objectives of intellectual property protection.”

LDCs currently enjoy a flexible renewable transition period until they graduate from the LDC status, before which they need not implement most TRIPS. Article 66.1 states that “The Council for TRIPS shall, upon …. request by a least-developed country Member, accord extensions of this period.” On this basis, LDCs were given an initial transition period of 10 years which expired in 2005, which, on request, was extended for a further 7.5 years and expires on 1 July 2013.

The 49 LDCs from Sub-Saharan Africa, the Caribbean and the Asia-Pacific are poor and vulnerable— more than 75% of around a total 900 million population live in poverty; 25% are under-nourished; only 63% have access to improved water supply sources; only 36% use improved sanitation; and LDCs are at the bottom of all technological and innovation indices.

LDCs are at the receiving end of the climate change catastrophe even though LDC greenhouse gas emissions per capita are a negligible 0.2%, Increasing sea-level rise, desertification, glacial melting, floods, earthquakes, droughts, cyclones and heat stress are already having an effect, and are increasing climate migrants. The number of people in LDCs affected by extreme events has almost doubled from 100 million during 1970-1979 to 193 million over 2000-2010. And, politically, most LDCs are characterised by conflict, post-conflict and politically unstable situations, with 24 categorised as fragile states.

Given such a grim reality, LDCs have not been able to effectively benefit from the international trading system, with their share of global trade remaining below 1%. LDCs need a continuing TRIPS exemption to enable knowledge production and to build a sound, viable technological base for development. The current exemption allows LDCs to produce the much-needed affordable medicines and medical products, educational materials and other essential public goods including climate-friendly technologies.

On the flip side, if this exemption expires and LDCs have to abide by stronger IP standards, they will have to pay a much higher price to access essential products and technologies, stifling their productive and absorptive capacities. Hence, the TRIPS exemption is a matter of life and death for them and their peoples, while it is solely a case of business and profit for the developed countries, and their corporate lobbies.

Additionally, LDCs have requested an unconditional indefinite transition period of TRIPS exemption as it takes decades to develop a sound and viable technological base that can then benefit from stronger IP protection standards.

The on-going negotiations in Geneva in the run up to a final decision by the TRIPS Council meeting on June 11-12 must deliver on the WTO members’ legal obligation to grant LDCs their request to realise the development objectives of intellectual property protection.

The LDCs’ request is supported by the majority of developing countries, UN agencies such as the UNDP and UNAIDS, the Global Commission on HIV and the Law, the Computer and Communications Industry Association (CCIA) whose members include Microsoft, Google, eBay, Facebook and Yahoo!, the global academia and by LDC- and non-LDC civil society in the global North and South. Instead of putting pressure on the LDCs to give in, pressure should be put on the developed countries to deliver on their legal obligation.

It is sheer hypocrisy that the key countries that are opposing an extension to the TRIPS exemption: the United States, the European Union, Japan, Canada, Australia, New Zealand and Switzerland in the past blatantly copied, imitated and borrowed each other’s intellectual property for their own technological advancement in the pre-IP era. Now they reject LDCs requests to develop their own intellectual property.

Simply put WTO members have a legal obligation to approve the LDCs’ request: the ‘rules-based’ WTO should comply with its own rules and prove it is a credible organisation.


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