Ministers are now expected to ask the council to consider extending the mid-2013 deadline for least developed countries to implement intellectual property protection under the WTO agreement. They are also expected to agree that their countries will continue to refrain from bringing “non-violation” cases to the WTO dispute settlement system for another two years.
Least developed countries’ transition
The least developed countries are seeking more time in order to identify their needs for assistance, to use the assistance to beef up their ability to protect intellectual property, and ultimately to protect it. They were represented in the discussions by their general coordinator, Bangladesh, and their TRIPS coordinator, Angola, who want ministers to make a political statement, and noted that only six countries have submitted their priority needs (Sierra Leone, Uganda, Bangladesh, Rwanda, Tanzania and Senegal).
A number of countries have said they support extending the deadline, some adding that this would be in order to help least developed countries eventually protect intellectual property fully, which in turn will encourage economic activity.
The least developed countries’ original 2005 deadline for protecting intellectual property under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement was extended in that year until 1 July 2013.
The 2005 decision also required the least developed countries to identify their priorities for technical assistance in intellectual property protection, for developed countries to respond effectively, and for the WTO, World Intellectual Property Organization (WIPO) and other agencies to strengthen their co-operation on technical assistance and other issues.
(The deadline does not apply to pharmaceutical patents. The 2001 Doha Declaration on TRIPS and Public Health extended the period for least developed countries to comply with provisions on pharmaceuticals to 2016.)
The draft. Informal consultations among a small group of countries led to a shorter draft for the Ministerial Conference: “Ministers invite the TRIPS Council to give full consideration to a duly motivated request from Least Developed Country Members for an extension of their transition period under Article 66.1 of the TRIPS Agreement, and report thereon to the WTO Ninth Ministerial Conference.”
Assuming ministers adopt the decision, the issue will return to the TRIPS Council.
What the transition means. Least developed countries, like all WTO members are bound by the TRIPS Agreement. But the agreement includes transition periods for countries to delay protecting intellectual property.
This means that as far as the WTO is concerned, least developed countries still do not have to protect trademarks, patents, copyright, geographical indications and other types of intellectual property. But if they do — and several do provide at least some kind of protection — then they have to comply with the TRIPS Agreement’s non-discrimination clauses.
WTO agreements allow countries to bring cases against each other if one feels that another government’s action or a specific situation has deprived it of an expected benefit, even if no agreement has been violated.
But opinions differ among WTO members on whether non-violation cases are feasible in intellectual property. The TRIPS Agreement contains a temporary restraint (a “moratorium”) on bringing non-violation complaints. This has been extended several times, more recently from one Ministerial Conference to the next.
The TRIPS Council has now agreed to propose that ministers agree to a further extension until the ninth Ministerial Conference in 2013.
The US and Switzerland in particular continue to argue that there is a place for non-violation complaints in TRIPS, but they are also not blocking consensus on the moratorium.
The draft on “TRIPS non-violation and situation complaints” for the Ministerial Conference says: “We take note of the work done by the Council for Trade-Related Aspects of Intellectual Property Rights pursuant to our Decision of 2 December 2009 on ‘TRIPS Non-Violation and Situation Complaints’ (WT/L/783), and direct it to continue its examination of the scope and modalities for complaints of the types provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 and make recommendations to our next Session, which we have decided to hold in 2013. It is agreed that, in the meantime, Members will not initiate such complaints under the TRIPS Agreement.”
Chairperson: Mr Martin Glass, standing in for Ambassador Federico A González of Paraguay
TRIPS Council regular meetings (could change):
- Tuesday-Wednesday 28–29 February
- Tuesday-Wednesday 5–6 June
- Tuesday-Wednesday 6–7 November