Final agreement of WTO TRIPS council on the obligations of Least Developed Countries to protect intellectual property rights, puts

EU and US in a bad light

Burghard Ilge, Both ENDS, 12/06/2013

Yesterday the World Trade Organization (WTO) officially decided that the country grouping of Least Developed Counties (LDCs) remain excluded from the most far reaching WTO obligations on intellectual property rights (IPR) until 1 July 2021 [1]. This 8 year period may again be extended upon a duly motivated request. This outcome falls short of the original request [2] of the LDCs for a general waiver from the controversial WTO obligations of the TRIPS agreement. Least Developed Countries, until now were not bound by the strict WTO rules related to the protection of Intellectual Property Rights. This WTO exception for the poorest countries in the world had been one of the few positive results of the tedious negotiations of the Doha development round. To grant the original LDC request would have been an important sign that richer countries of the WTO member ship are in deed serious about their stated commitment to adjust the existing WTO rules to make them more development friendly.

The struggle behind closed doors at the WTO in Geneva

If the WTO would have followed its own procedures properly the request by the LDC countries should have been granted automatically. However a group of developed countries (in particular US, EU, Canada, Australia, Switzerland, New Zealand, and Japan) [3], opposed the request and instead demanded to open negotiations on this text. These rich countries insisted on a limited extension period and the inclusion of a so called "non-role back clause". Such a non-rollback clause would have banned LDCs to make revisions from existing IPR law [4] if the former would have granted higher rights and if the modified new rules would be "less compliant" with the TRIPS agreement. The original LDC request for a general waiver from obligations of the TRIPS agreement received broad based support from a huge verity of stakeholders, reaching from non-LDC developing countries [5] to members of the US Congress [6] and the EU parliament [7] to civil society [8] , industry [9] , academics [10], and UN agencies [11] . While all these efforts in the end have been futile they at least helped to prevent the worth. The now agreed new deadline is longer than demanded by the developed countries grouping- the US for example demanded a 3 year shorter deadline - and the proposed "non-rollback clause" has not been included.

What is the problem with the TRIPS agreement?

The rules of the TRIPS agreement have not only been criticized because of the far reaching requirements it puts on countries to recognize and enforce intellectual property rights (like e.g. intellectual property rights on seeds and plant materials or the

requirement to allow patents on micro organisms) but also because of the enforcement mechanism the WTO provides . The TRIPS agreement is unique since it not only defined minimum level for the protection of intellectual property rights (IPR) for WTO member countries, but it also enables complaining countries to enforce these intellectual property rights via the disputes settlement mechanism of the WTO, which then can allow countries to apply trade sanctions against those who failed to full fill their IPR obligations under TRIPS. Until today there have been already 33 cases citing the TRIPS agreement which have been brought to the Dispute Settlement Mechanisms at the WTO [12] Based on the decision take yesterday any WTO member country will now also be able to sue a least developed country if it does not comply with these WTO rules after the expiration of the agreed 2012 deadline. Apparently this is something the US and EU want to be able to do. If not, their ruthless behavior at the WTO would be difficult to explain [13] The permanent mission of the European Union to the World Trade Organization called yesterday's decision a positive result ahead of the ninth WTO Ministerial Conference in Bali in December this year. While it might be understandable that the trade department of rich countries, like USTR in the US and DG-trade in the EU want to defend the interests of their "knowledge based" industries, it must be seen as highly unethical to do this at the expense of those most in need in the poorest countries of the world, who already now lack the affordable access to medical care and education. LDCs are the most vulnerable segment of the international community with more than half of the population living on less than US$1,25 (PPP) per day; they have an average adult literacy rate of 60,7%, and a gross enrolment in tertiary education of under 7%

Who will pay for it?

Another negative effect we will have to expect because of yesterdays decision is that more of the already scares finical resources for development aid will have to be allocated to make LDCs compliant with the rules of the TRIPS agreement by 1 July 2021. Already now efforts are ongoing to ensure that new WTO texts gets agreed which would ensure that part of the development assistance from developed countries will have to be reserved and used to change the national laws of Least Developed Countries to bring them into conformity with the in 2012 applicable WTO law. The increased prices which in the future will have to be paid in LDCs for the goods and services protected by such new IPR law, like medicine, educations material or agricultural materials will neither lead to economic growth in these poorest countries of the world nor to sustainable development but instead flow back to the "rights holders" in the developed world So while those who were fighting for the rights of LDCs in this battle at the WTO TRIPS council should be congratulated with their hard work and that they managed to prevent worth, there is nothing what the country grouping around the US and EU should be proud of, quite the contrary. ***

References
[1] http://www.scribd.com/doc/147391544/WTO-Decision-on-LDC-TRIPS-Waiver [2] http://www.scribd.com/doc/145834932/LDC-request-for-extension-of-WTO-TRIPS-waiver [3] The same country grouping failed in the past to amend the TRIPS agreement in away which would have made it go even beyond the current level of IPR protection and to further strengthen its enforcement mechanisms. Reason for this failure was the wide opposition from the majority of WTO member countries. As a consequence they started the negotiation of a new separate multinational treaty for the purpose of establishing international standards for intellectual property rights enforcement. This so called Anti-Counterfeiting Trade Agreement (ACTA) aimed to establish an international legal framework for targeting counterfeit goods, generic medicines and copyright infringement on the Internet, and would create a new governing body outside of the WTO [4] IPR law not only covers patents and copyrights, but also "test data exclusivity", breeders rights and trademarks. http://en.wikipedia.org/wiki/Intellectual_property [5] See e.g. http://www.twnside.org.sg/title2/intellectual_property/info.service/2013/ipr.info.130301.htm and http://www.ip-watch.org/2013/03/06/wto-wide-support-for-ldc-trips-transition-extension-with-ahitch/ [6] http://www.scribd.com/doc/141688395/LDC-IPR-Waiver-Letter-to-USTR-5-14-13 [7] http://www.scribd.com/doc/142741593/LDC-Letter-to-Commissioner-de-Gucht-20-May-2013 [8] See Civil Society Letter at http://www.scribd.com/doc/127226202/CSO-Letter-SupportingLDCs-TRIPS-Waiver and See Statement of Electronic Information for Libraries (EIFL) at http://www.eifl.net/eifl-statement-support-lcd-trips-waive r [9] See statement by Computer & Communications Industry Association (CCIA) at http://www.ccianet.org/?sid=5&artid=363&evtflg=False [10] See Global Academics Letter to WTO Members on TRIPS Extension at http://infojustice.org/archives/29370 [11] UNAID and UNDP: http://www.unaids.org/en/resources/presscentre/pressreleaseandstatementarchive/2013/february/ 20130226prtrips/ and http://www.unaids.org/en/media/unaids/contentassets/documents/unaidspublication/2013/JC2474 _TRIPS-transition-period-extensions_en.pdf [12] See for a full overview on the WTO website http://bit.ly/14xs4vu [13] This issue was not only discussed in the TRIPS council meeting as it should have been, a report from the TRIPS council meeting from march can be found here http://www.twnside.org.sg/title2/intellectual_property/info.service/2013/ipr.info.130301. htm but also behind closed doors between a small group of countries. India also pointed out their systemic concern that "despite overwhelming support from developing countries and a few developed countries, an outcome has been negotiated which is a derogation from the provisions of Article 66.1. " [14]http://eeas.europa.eu/delegations/wto/press_corner/all_news/news/2013/eu_welcomes_trips_ extension_for_ldcs_en.htm