KEI comment on WTO decision to extend TRIPS deadline for LDCs to July 1, 2021

The WTO TRIPS Council has just approved an extension of TRIPS Obligations for Least Developed Countries until July 1, 2021, a new eight year extension. The new extension comes with some restrictions, but provides more freedom than the previous extension, which had a widely criticized and now eliminated “no rollback” clause. The decision stops well short of what the LDCs had proposed.

The decision to extend the period of years before very poor countries have to implement tough patent and copyright laws is welcome, but it was surprisingly difficult to reach. What should happen next is greater experimentation regarding they types of laws that are in the best interest of least developed countries. Unfortunately, with less than a decade before the extension runs out, the opportunity to experiment will be burdened with uncertainty about the longer term future. What is needed, from technical assistance agencies and LDCs themselves is more boldness as regards innovation in laws that govern innovation. We should not focus on when LDCs comply with TRIPS, but rather what LDCs should do that is different.

The full decision is attached as a PDF file. The operational language follows:

Decides as follows:

1. 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 2021, or until such a date on which they cease to be a least developed country Member, whichever date is earlier.

2. Recognizing the progress that least developed country Members have already made towards implementing the TRIPS Agreement, including in accordance with paragraph 5 of IP/C/40, least developed country Members express their determination to preserve and continue the progress towards implementation of the TRIPS Agreement. Nothing in this decision shall prevent least developed country Members from making full use of the flexibilities provided by the
Agreement to address their needs, including to create a sound and viable technological base and to overcome their capacity constraints supported by, among other steps, implementation of Article 66.2 by developed country Members.

3. This Decision is without prejudice to the Decision of the Council for TRIPS of 27 June 2002 on “Extension of the Transition Period under Article 66.1 of the TRIPS Agreement for Least-Developed Country Members for Certain Obligations with respect to Pharmaceutical Products” (IP/C/25), and to the right of least developed country Members to seek further extensions of the period provided for in paragraph 1 of Article 66 of the Agreement.