On 29 November 2005 the World Trade Organization’s (WTO) Council for TRIPS (TRIPS Council) extended the transition period accorded to least developed country (LDC) members of the WTO to implement their obligations under the TRIPS Agreement from 1 January 2006 to 1 July 2013. As the 2013 deadline looms for LDCs, this piece seeks to map out options available to LDCs to avail themselves of the flexibility afforded to them under Article 66.1 of the TRIPS Agreement, particularly in light of the wrong-headed technical advice being provided by Saana Consulting, a firm whose clients include “DFID, EC, Danida and the World Bank” (Source: http://www.saana.com/).
The language of Article 66.1 of the TRIPS Agreement which provided the original extension period for LDCs states:
In view of the special needs and requirements 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 Articles 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.
The Decision of the Council for TRIPS of 29 November 2005 (IP/C/40) provided a further extension for LDCS till 1 July 2013. Specifically, the Decision stated:
Least-developed country Members shall not be required to apply the provisions of the Agreement, other than Articles 3, 4 and 5, until 1 July 2013, or until such a date on which they cease to be a least-developed country Member, whichever date is earlier.
Logic would dictate that the LDC members of the WTO submit a duly motivated request to the TRIPS Council for a group extension of the LDC transition period applicable until a Member ceases to be an LDC (Source: NGO Letter to Least-Developed Country Members of WTO Concerning a Further Extension of the 1 July 2013 LDC Transition Period Under Article 66.1 of the TRIPS Agreement). Saana, on the other hand, propose a “divida et impera” approach to the LDC transition. Saana classifies the LDC bloc into three separate tiers based with regard to the availability of data on TRIPS implementation.
Saana offers the following arguments against a group extension:
Option 1: Group Extension
This option would entail extending the transition period for all LDCs together in the same way as the previous extension was granted. Such a solution would ensure that every LDC would be presented with the same obligations and there would be no requirements to split the group, which could prove politically sensitive. However, this option does not take individual needs of LDCs into account, and there appear to be large variations in their levels of TRIPS implementation at this stage.
Rather than advocate for a group extension, Saana recommends a hybrid system of LDC extension based on country specific extensions and thematic extensions.
Specifically, the Saana analysis states,
Option 2: Country-Specific Extensions
This option would entail some LDCs receiving an extension and others not, based on the level of modernization of their IP regimes and implementation of the TRIPS Agreement.
Option 3: Thematic Extensions
This option would prioritise some TRIPS provisions for completion before the 2013 deadline, leaving others for later. Therefore, this would entail negotiating an extension merely for some areas of the TRIPS Agreement.
Option 4: Hybrid Extension
It is also possible to envision a hybrid of Options 2 and 3. This could perhaps take the form of two-step approach where all LDCs are evaluated along the six dimensions, and as a result certain countries would not request an extension (Option 2). Out of the countries that arguably should, an analysis could be conducted of which priority areas of IP should be developed within the current deadline and which should require another extension (Option 3).
Saana conflates the flexibility of the transition period conferred by Article 66.1(Least-Developed Country Members) of the TRIPS Agreement with the obligations on developed country members on technical cooperation as articulated in Article 67 of the TRIPS Agreement. In terms of a work program for LDCs at the TRIPS Council, Saana proposes that LDCs complete technical and financial needs assessments of TRIPS implementation.
Although the 2005 Decision does instruct LDCs to provide the TRIPS Council “as much information as possible on their individual priority needs for technical and financial cooperation in order to assist them taking steps necessary to implement the TRIPS Agreement”, this activity should not hold LDC efforts to secure a transition period as a bloc hostage.
LDC efforts to submit a group extension should be viewed through the prism of Article 66 of the TRIPS Agreement which specifically articulates the need for extending flexibility to LDCs as they strive to create a “viable technological base”. Until a “sound and viable technological base” is established, LDCs should not have to implement the TRIPS Agreement (save Articles 3, 4 and 5) or until such a date on which they cease to be a least-developed country Member of the WTO.