PHM-Exch> [PHM News] -- PHM co-signed urgent NGO letter on an extension of TRIPS for LDCs:

[Claudio Schuftan]

From: Amit Sengupta <asengupta at phmovement.org>
  From: Sangeeta Shashikant  TWN

  The letter below will be sent to all WTO missions in Geneva. It can also
be useful for lobbying national governments.

   *If you organisation is able to support this joint NGO letter, please
send an email to  to sangeeta at twnetwork.org **with the name of your
organisation and the country where it is based. *

Third World Network

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* *

*NGO LETTER TO WTO MEMBERS CONCERNING A FURTHER EXTENSION OF THE LDC
TRANSITION PERIOD UNDER ARTICLE 66.1 OF THE TRIPS AGREEMENT*

*Dear WTO Members,*

As civil society organisations concerned with access to medicines, to
educational resources, to environmentally sound technologies (ESTs), and to
other public goods and cultural creations and further concerned with
farmers’ rights, food security, human flourishing, sustainable and
equitable technological and industrial development in LDC countries, *we
call on WTO Members tounconditionally accord the LDC Group an extension of
the transition period as requested by the LDC Group in their duly motivated
request to the TRIPs Council (IP/C/W/583).*

Article 66.1 of the TRIPS Agreement accorded LDC Members a renewable
ten-year exemption from most obligations under the TRIPS Agreement in view
of the special needs and requirements of the LDC Members, their economic,
financial and administrative constraints and their need for flexibility to
create a viable technological base[1].****

This exemption was originally due to expire on 31 December 2005. However, a
TRIPS Council decision of 27 June 2002 (IP/C/25), exempted LDCs from having
to implement or enforce patents and test data obligations with regard to
pharmaceutical products until 1 January 2016. Without prejudice to this
extension, the TRIPS Council, through its decision IP/C/40, extended the
general TRIPS compliance transition period for LDC Members for all
obligations under the TRIPS Agreement, other than Articles 3, 4 and 5,
until 1 July 2013 or until such date on which a Member ceases to be an LDC,
whichever date is earlier.****

*On 5 November 2012 the Delegation of Haiti on behalf of the LDC Group
submited a duly motivated request to the WTO TRIPS Council for an extension
of the LDC transition period, until a Member ceases to be a LDC
(IP/C/W/583).  Annexed to the request is a draft decision text for the
consideration of the TRIPS Council. The draft decision states: “**Least
developed country Members shall not be required to apply the provisions of
the Agreement, other than Articles 3, 4 and 5, until they cease to be a
least developed country Member”.*

*We are of the view that Article 66.1 obliges the TRIPS Council to approve
without conditions the duly motivated request submitted by the LDCs. Thus
we strongly urge all WTO Members to urgently support the LDC Group request
and to approve the LDC request and proposed draft decision.*

LDCs are fully justified in seeking an unlimited extension for so long as
any LDC Member is so classified because shorter extensions, even sequential
extensions, will not give LDCs adequate time to overcome capacity
constraints and to develop a viable and competitive technological base. By
definition, LDCs face ongoing resource and human constraints, widening
technological gaps, and weak innovative capacities.  Overcoming these
problems takes contextually specific strategies, policy flexibility,
greater financial resources, but it also takes time – decades not years.****

Similarly, LDCs are fully justified in seeking a group extension rather
than individual country extensions and in seeking extensions with respect
to all TRIPS obligations rather than select obligations only.  LDCs, by
definition, are similarly situated with respect to development challenges
and they should have full flexibility as a group. ****

LDCs are also fully justified in not promising to maintain current levels
of IP protections.  LDCs must not be asked to undertake additional
obligations such as those contained in paragraph 5 of IP/C/40. This
paragraph is based on Article 65 of TRIPS but it only applies to developing
countries and not to LDCs. Conditions such as paragraph 5 of IP/C/40
narrows the policy space available to LDCs by cementing colonial era IP
rules and ill-advised IP reforms.  LDCs should have full flexibility and
policy space as permitted under Article 66.1 of TRIPS including the option
to undo existing IP protections. Article 66.1 of TRIPS does not permit the
TRIPS Council to attach conditions when granting an extension as per the
duly motivated request of LDCs.****

We are of the view that failure by the TRIPS Council to grant LDCs an
extension would be disastrous for LDC Members and their citizens. LDCs
would immediately need to amend their intellectual property laws to become
TRIPS-compliant and would be under extreme time pressures to do so. Much
worse, they would be adopting high standards of intellectual property
protection and enforcement before they have had any real domestic
technological capacity and before a significant body of local inventors,
authors, and creators could leverage a domestic intellectual property
system to their advantage.****

It is a fact that in LDC countries foreign individuals and companies are
the main beneficiaries of expanded IP protection and these foreign right
holders tend to set high monopoly prices, which are unaffordable to most of
the population. Moreover, historically most technological development in
developing and even in developed countries has come through a period of
copying and adapting advanced technologies initially invented elsewhere.[2]*
***

Many LDC Members, pursuant to misguided advice, have been focusing on
becoming TRIPS compliant. We believe that this is the wrong focus as
generally LDCs are not in a position to benefit from full TRIPS compliance.
In any case, the TRIPS transition period provides LDCs ample flexibility to
implement the level of intellectual property protection suitable for
individual interests and needs.****

Finally approving the LDC group request would also effectively extend the
waiver issued to LDCs with regard to pharmaceutical products (due to expire
in 2016). LDCs suffer from multiple disease burdens. For instance most LDCs
are from sub-Saharan Africa, which has a high concentration of AIDS
epidemic. Thus the request is important to the continued ability of LDC to
access affordable generic medicines of assured quality for HIV/AIDS, TB,
malaria and other infectious, neglected, and non-communicable diseases and
to allow LDCs to develop local pharmaceutical capacity. Indeed, LDC
Members, could fill an important pharmaceutical niche by manufacturing
newer medicines now patented in key producer countries like India, all of
which were required to become TRIPS-compliant in 2000 or 2005.

The crucial issue of an LDC extension with respect to pharmaceuticals has
been raised by the the Global Commission on HIV and the Law made up of
former heads of state and leading legal, human rights and HIV experts, and
supported by the UN Development Programme (UNDP) on behalf of the Joint
United Nations Programme on HIV/AIDS (UNAIDS).  In its final report, the
Commission states that "When the product is pharmaceuticals, the outcome
[of TRIPS regulation] for poor countries with overwhelming HIV epidemics
and other health challenges has been catastrophic. It is an indictment of
the current international IP regime that it has not resulted in increased
innovation for medicines to treat HIV co-infections such as tuberculosis,
hepatitis C or related diseases that predominantly affect the poor.”[3] The
Commission therefore recommended that "The WTO members must indefinitely
extend the exemption for LDCs from the application of TRIPS provisions in
the case of pharmaceutical products. The UN and its member states must
mobilise adequate resources to support LDCs to retain this policy latitude."
[4]****

*In conclusion we request that:*

·     *All WTO Members honor their obligation under Article 66.1 and
unconditionally accord to the Least Developed Countries the requested
extension. Accordingly all WTO Members should support and agree at the
upcoming meetings of the TRIPS Council to the draft decision text presented
by the LDC Group that: “**Least developed country Members shall not be
required to apply the provisions of the Agreement, other than Articles 3, 4
and 5, until they cease to be a least developed country Member”***

·     *WTO Members do NOT attach to the extension decision any conditions
and limitations that limit the policy space and flexibility available to
LDCs under Article 66.1 of TRIPS, such as those contained in paragraph 5 of
IP/C/40. ***

*In conclusion, **we stress that any attempt to weaken or to refuse Least
Developed Countries (LDCs) rights that they are entitled to under the TRIPS
Agreement will damage the credibility of the WTO as it will show that the
multilateral trading system is unable to benefit the poorest and most
vulnerable segment of the international community.*

  **[1]Article 66.1 of the TRIPS Agreement states: “In view of the special
needs andrequirements of least-developed country Members, their economic,
financial and administrative constraints, and their need for flexibility to
create a viable technological base, such

Members shall not be required to apply the provisions of this Agreement,
other than Article 3, 4, and 5, for a period of 10 years from the date of
application as defined under paragraph 1 of Article 65. The Council for
TRIPS shall, upon duly motivated request by a

least-developed country Member, accord extensions of this period.”****

[2] This trend is aptly captured by Ha-Joon Chang: “....when they were
backward themselves in terms of knowledge, all of today’s rich countries
blithely violated other people’s patents, trademarks and copyrights. The
Swiss “borrowed” German chemical inventions, while the Germans “borrowed”
English trademarks” and the Americans “borrowed” British copyrighted
materials – all without paying what would today be considered “just”
compensation” ; Ha-Joon Chang (2007), “Bad Samaritans The Guilty Secrets of
Rich Nations & the Threat to Global Prosperity”****

[3]   « HIV and the Law : Risks, Rights & Health », final report of the
Global Commission on HIV and the Law, p. 80.

[4]   Idem. p. 87.
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