PHA-Exchange> FW: TWN Info: LDCs ask to extend TRIPS exemption

Fri Oct 28 00:32:44 PDT 2005

Dear Colleagues,

I am forwarding you a news report from Third World Network and SUNS on the
request made by Zambia to the TRIPS Council to extend the delay for
implementing the TRIPS Agreement in least developed countries (LDCs) from
1st January 2006 until 2021 (an extra 15 years).

The TRIPS Council will discuss this proposal today, Friday 28 October 2005.

Best wishes,

Davinia

Davinia Ovett

Programme Officer

3D -> Trade - Human Rights - Equitable Economy

15, Rue des Savoises

CH-1205 Genève

Switzerland

Tel: +41 22 320 21 21

Fax: +41 22 320 69 48

Email: dovett at 3dthree.org

Website: www.3dthree.org

  _____  

From: Third World Network [mailto:twnet at po.jaring.my] 
Sent: 28 October 2005 09:03
To: Third World Network-2
Subject: TWN Info: LDCs ask to extend TRIPS exemption

TWN Info Service on WTO and Trade Issues (Oct05/25)
28 October 2005
Third World Network
www.twnside.org.sg

LDCs request exemption from TRIPS for another 15 years

The least developed countries in the WTO have made a request to the TRIPS
Council to extend the transitional period for their implementing the TRIPS
Agreement for a further 15 years after the present transition period expires
at the end of this year.

At present, LDC members are not required to apply the agreement's
provisions, except for three articles.

The exemption period, which is ten years, runs out on 31 December this year.
However, Article 66 says that the TRIPS Council "shall, upon duly motivated
request by a least-developed country Member, accord extensions of this
period."

The formal request for extension was submitted by Zambia on behalf of the
LDC members on 13 October and issued as a communication by the WTO
Secretariat on 21 October (document IP/C/W/457).

Zambia, which coordinates the LDC Group, also presented the proposal at an
informal meeting of the TRIPS Council on 20 October. The request will be
discussed at the formal TRIPS Council at its meeting starting Tuesday.

Several non-LDC developing countries were supportive of the request
when it was discussed on 20 October. However, major developed countries,
especially the US, seemed to be against the extension of the transitional
period to LDC members as a whole, advocating instead that requests be made
by individual LDCs, to be considered on a "case-by-case" basis.

The issue will be discussed at the formal TRIPS Council meeting on
Friday 28 October.

Please see the full report of the LDC request below.  It was published in 
the SUNS.

With best wishes
Martin Khor
TWN

_______________________

LDCs request exemption from TRIPS for another 15 years

By Martin Khor, Geneva, 25 Oct 2005

The least developed countries in the WTO have made a request to the
TRIPS Council to extend the transitional period for their implementing
the TRIPS Agreement for a further 15 years after the present transition
period expires at the end of this year.

At present, under Article 66 of the TRIPS Agreement, LDC members are not
required to apply the agreement's provisions, except for Article 3(on
national treatment); Article 4 (on most favoured nation treatment); and
Article 5 (on multilateral agreements on acquisition or maintenance of
protection).

The exemption period, which is ten years, runs out on 31 December this year.
However, Article 66 says that the TRIPS Council "shall, upon duly motivated
request by a least-developed country Member, accord extensions of this
period."

The formal request for extension was submitted by Zambia on behalf of the
LDC members on 13 October and issued as a communication by the WTO
Secretariat on 21 October (document IP/C/W/457).

Zambia, which coordinates the LDC Group, also presented the proposal at an
informal meeting of the TRIPS Council on 20 October. The request will be
discussed at the formal TRIPS Council at its meeting starting Tuesday.

According to information obtained from trade diplomats, several non-LDC
developing countries were supportive of the request when it was discussed on
20 October. However, major developed countries, especially the US, seemed to
be against the extension of the transitional period to LDC members as a
whole, advocating instead that requests be made by individual LDCs, to be
considered on a "case-by-case" basis.

There is expected to be a continuation of this debate (whether an extension
should be given to the LDCs as a whole, or whether it should be considered
on an individual basis) when the issue is discussed at the formal TRIPS
Council.

Experts point out that there is a precedent for granting exemption (for a
period) from applying the TRIPS Agreement to the LDCs as a whole.

In the Doha Declaration on TRIPS and Public Health, adopted by Ministers in
November 2001, an extension of the transition period until 2016 for
pharmaceutical products was granted to LDCs as a group of members, under
paragraph 7 of the Declaration.

Subsequently, the TRIPS Council adopted a decision on 27 June 2002 granting
exemption to all LDC members from applying certain parts of the TRIPS
Agreement (in relation to pharmaceuticals) until 2016.

Further, the exemption was granted under Article 66.1, the same provision
which gives the LDCs their present exemption from applying the TRIPS
Agreement as a whole, and which the LDCs are now invoking in their request
for a 15-year extension of this exemption.

In its communication to the WTO, the LDC Group said that the least-developed
country WTO Members continue to face serious economic, financial and
administrative constraints as well as a need for flexibility to create a
viable technological base.

In accordance with Article 66.1 of the TRIPS Agreement, they are applying
for an extension of the transitional period accorded under that provision
for a further 15 years.

The paper said that Article 66.1 of the TRIPS Agreement accords LDC Members
a ten-year exemption from certain obligations under the TRIPS Agreement.
This exemption expires on 31 December 2005.

"As set out in Article 66.1 of the TRIPS Agreement, the exemption was
granted in recognition of the economic, financial, and administrative
constraints faced by least-developed countries that prevented them from
observing immediately all the obligations set out in the TRIPS Agreement;
and it reflected the fact that the least-developed country Members have
special needs and requirements, including the need for flexibility to create
a viable technological base," said the LDCs' paper.

"During the past ten years, the least-developed countries have taken steps
towards implementing the obligations set out in the TRIPS Agreement.
However, their economies continue to be vulnerable, and their peoples
continue to suffer poverty.

"Indeed, the most recent UNCTAD Least-Developed Country Report states that
'if past trends persist, the least-developed countries are likely to become
the major locus of extreme poverty in the world economy by 2015'".

"Consequently, those least-developed countries that remain on the United
Nations' list of least-developed countries, continue to face serious
economic, financial and administrative constraints in their efforts to bring
their domestic legal system into conformity with the provisions of the TRIPS
Agreement."

The LDCs' paper added that Article 66.2 of the TRIPS Agreement states that
"developed country Members shall provide incentives to enterprises and
institutions in their territories for the purpose of promoting and
encouraging technology transfer to least-developed country Members in order
for them to create a sound and viable technological base".

This commitment by developed countries has been reaffirmed in paragraph 11.2
of the Doha Ministerial Decision on Implementation-Related Issues and
Concerns that emphasized its importance and mandatory nature.

The LDCs said they need an extension of the transition period to enable them
to take full advantage of the technical cooperation from developed countries
in this area.

While there has been some movement in implementing this commitment with some
developed countries notifying to the Council for TRIPS the technology
transfers that they have been involved in, the commitment has not yet been
adequately fulfilled.

Furthermore, Article 67 of the TRIPS Agreement calls upon developed
countries to provide technical assistance to LDCs to assist them in
implementing the TRIPS Agreement. "Thus the least-developed country Members
need more time to take full advantage of the cooperation with developed
country Members envisaged in Articles 66.2 and 67 of the TRIPS Agreement,"
said the paper.

Introducing the LDCs' proposal at the informal TRIPS Council meeting on 20
October, Zambia said that the LDCs' request had been necessitated by the
following reasons:

* The special needs and requirements of LDCs over the past ten years have
changed very little to enable them to comply with their obligations under
the TRIPS Agreement.

* Despite the efforts that have been undertaken by most LDCs to comply with
the TRIPS Agreement, they are faced with critical human resource and
administrative constraints in the area of intellectual property rights, both
in terms of numbers and technical capabilities.

* Most LDCs have an inadequate technological base that would support an
effective system of IPR protection and have barely developed institutional
linkages that would support implementation of obligations under the TRIPS
Agreement.

* LDCs have competing needs against grave financial inadequacies and in the
past ten years of the transition period have been unable to undertake the
required assessments and other institutional capacity-building measures that
would enable effective implementation of the obligations of the Agreement.

* The underdeveloped domestic legal systems in LDCs are not able to deal
effectively with enforcement of intellectual property protection.

Zambia said that on the basis of the above, the LDCs request for the
additional time to undertake assessments, identify the gaps in national
legislation and build implementation capacities.

"It is our hope that during this transitional period of 15 years there will
be commitment by the developed country members as envisaged under Article 67
of the TRIPS Agreement in providing technical and financial assistance to
LDCs to assist in the implementation of the TRIPS Agreement," said Zambia.

According to trade diplomats, at the 20 October meeting, many other LDCs
spoke to supplement the Zambia presentation. Several other developing
countries, including Brazil, Argentina, Kenya and India voiced their support
of the request, stating that the LDCs should continue to have the
flexibility of exemption and that they should have the opportunity to make
use of it.

Kenya added that the flexibility given to LDCs in the WTO is often taken
away by other bodies such as the IMF and World Bank, through their loan
policies. There needs to be coherence so that these other bodies do not
encroach and take away the TRIPS flexibilities.

However, the major developed countries indicated that they would not support
a request made on behalf of all the LDC members, according to trade
diplomats. They apparently want requests made by individual LDC members,
which would then be examined on a case-by- case basis.

The US advocated such a case-by-case approach, saying that there is need to
know the situation on the ground in each country, and that more information
is needed. The EU also said that more information from the countries is
required.

The LDC members' request is expected to be brought up at the TRIPS Council
on Wednesday. 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://phm.phmovement.org/pipermail/phm-exchange-phmovement.org/attachments/20051028/be19766f/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 2020 bytes
Desc: not available
URL: <http://phm.phmovement.org/pipermail/phm-exchange-phmovement.org/attachments/20051028/be19766f/attachment-0001.jpg>