[Ecommerce] TRIPS Council reaches decision on extending LDC transition period

[Thiru Balasubramaniam]

29 November, 2005

Today the WTO TRIPS Council agreed to provide least-developed country
Members (LDCs) of the WTO an extension of the transition period.  The
transition period for the application of the TRIPS Agreement for LDCs
was set to expire on 1 January 2006.  On 13 October 2005, Zambia, on
behalf of the LDCs submitted a proposal IP/C/W/457 which requested that
the transition period be extended for 15 years.

Today the TRIPS Council agreed to a 7 and a half  year extension; thus
LDCs are not required to apply the provisions of the TRIPS Agreement
till 1 July 2013 (except Articles 3, 4 and 5 of the Agreement).  Thus
LDCs have until 1 July 2013 to provide patent, copyright, trademark and
other intellectual property protection.  Paragraph 6 of today's Decision
states

"[t]his 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."

However, paragraph 5 of this Decision below is deleterious to the policy
space objectives of LDCs in securing access to knowledge and access to
medicines.   This commits LDCs NOT to make changes in their laws during
the transitional period that will result in a lesser degree of
consistency with the provisions of the TRIPS Agreement. Although this is
prescribed by Article 65.5 of TRIPS, it does NOT apply to LDC Members.
Some legal experts have noted that the TRIPS Council does not have the
authority to make a Decision that limits or restricts LDC
flexibilities.  As a result TRIPS plus pressures in accession to the WTO
or TRIPS plus commitments to regional patent organizations, many LDCs
have already implemented TRIPS or TRIPS plus legislation.    Thus, the
limitation in paragraph 5 will render the Decision to extend the
transition period till 1 July 2013 meaningless for many LDCs as they
cannot make changes in their legislation that would result in a lesser
degree of consistency with the TRIPS Agreement during the transition
period till 2013.

Paragraph 4 of this Decision calls for WTO to "enhance its cooperation
with the World Intellectual Property Organization and with other
relevant international organizations" in providing technical assistance
to LDCs.


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EXTENSION OF THE TRANSITION PERIOD UNDER ARTICLE 66.1
FOR LEAST-DEVELOPED COUNTRY MEMBERS

DECISION OF THE COUNCIL FOR TRIPS OF 29 NOVEMBER 2005


The Council for Trade-Related Aspects of Intellectual Property Rights
(the "Council for TRIPS"),

Having regard to paragraph 1 of Article 66 of the TRIPS Agreement (the
"Agreement");

Recalling that, unless extended, the transition period granted to
least-developed country Members under Article 66.1 of the Agreement will
expire on 1 January 2006;

Having regard to the request from least-developed country Members of the
World Trade Organization (the "WTO"), dated 13 October 2005, for an
extension of their transition period under Article 66.1 of the Agreement
contained in document IP/C/W/457;

Recognizing the special needs and requirements of least-developed
country Members, the economic, financial and administrative constraints
that they continue to face, and their need for flexibility to create a
viable technological base;

Recognizing the continuing needs of least-developed country Members for
technical and financial cooperation so as to enable them to realize the
cultural, social, technological and other developmental objectives of
intellectual property protection;

Decides as follows:

I. EXTENSION OF THE TRANSITION PERIOD UNDER ARTICLE 66.1 OF THE
AGREEMENT FOR LEAST-DEVELOPED COUNTRY MEMBERS

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 2013, or until such a date on which they cease to be a
least-developed country Member, whichever date is earlier.

II. ENHANCED TECHNICAL COOPERATION FOR LEAST-DEVELOPED COUNTRY MEMBERS

2.      With a view to facilitating targeted technical and financial
cooperation programmes, all the least-developed country Members will
provide to the Council for TRIPS, preferably by 1 January 2008, 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.

3.      Developed country Members shall provide technical and financial
cooperation in favour of least-developed country Members in accordance
with Article 67 of the Agreement in order to effectively address the
needs identified in accordance with paragraph 2.

4.      In order to assist least-developed country Members to draw up
the information to be presented in accordance with paragraph 2, and with
a view to making technical assistance and capacity building as effective
and operational as possible, the WTO shall seek to enhance its
cooperation with the World Intellectual Property Organization and with
other relevant international organizations.

III. GENERAL PROVISIONS

5.      Least-developed country Members will ensure that any changes in
their laws, regulations and practice made during the additional
transitional period do not result in a lesser degree of consistency with
the provisions of the TRIPS Agreement.

6.      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.