The Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) — which comprises all WTO members —was discussing a proposal from the least developed countries for their transition period to continue until each of them develops enough economically to be lifted out of the UN-defined least developed category. The group argues that its members still lack the financial and technological capacity to protect intellectual property (details below).
The council also debated New Zealand’s plan to introduce plain packaging for tobacco products as part of its anti-smoking campaign, broadly echoing previous discussions on a similar plan in Australia, now the subject of three formal disputes, disputes DS434, DS435, and DS441). New Zealand said it would go ahead with drafting the law but might wait to see the outcome of the disputes before implementing it (details below).
The council continued to look at the links between intellectual property and innovation, this time with a focus on small and medium-sized enterprises — and a glance at square fruit and a surfboard sling (details below).
On two regular agenda items, members’ positions were broadly unchanged. They continued to disagree on whether the TRIPS Agreement should be amended to require inventors to disclose the source of genetic resources they have used, when they apply for patent protection. Some members called for consultations chaired by the director-general to be revived, with the aim of trying to reach agreement by the December Ministerial Conference in Bali.
And they repeated their positions on “non-violation” complaints — whether countries should be allowed to bring dispute cases against each other if one feels that another government’s action or a specific situation has deprived it of an expected benefit, even if no agreement has been violated.
Members have agreed not to bring “non-violation” disputes against each other on intellectual property for a period, the latest extension being until the Bali Ministerial Conference in December. As on previous occasions, some want this to become permanent, others want a further extension, and some argue that “non-violation” disputes should be allowed in intellectual property, just as it is for trade in goods and services. No decision was reached.
The council also completed its reviews of the intellectual property laws of Maldives — which graduated from least developed country status on 1 January 2011 — and Cuba. Later this year, it will review the legislation of two countries which recently became WTO members. Russia’s will be reviewed in June, and Montenegro’s in October.
Least developed countries’ transition period
No decision was reached, and the new chairperson will consult members before the next meeting in June, before the transition period expires.
The transition period does NOT exempt least developed countries entirely from applying the TRIPS Agreement. It does give them the freedom to choose whether or not to protect trademarks, patents, copyright, industrial designs, geographical indications or any other form of intellectual property.
If they do protect it — and several do have some intellectual property laws — then they have to apply provisions on non-discrimination. (Technically, the provisions on national treatment and most-favoured nation treatment in Articles 3, 4 and 5 of the TRIPS Agreement always apply; see Art.66.1).
The transition period originally lasted for 10 years until 2005 (Art.66.1). It was extended another seven and a half years until 1 July 2013. The December 2011 Ministerial Conference in Geneva “invited” the TRIPS Council “to give full consideration” to a further extension. Haiti and Nepal have now formally proposed the extension on behalf of the least developed countries (document IP/C/W/583).
The 1 July 2013 deadline does not apply to pharmaceutical patents, which currently have a longer transition period for least developed countries — until 1 January 2016.
The discussion. Broadly members are willing to accept an extension — or to consider it. But they differ on whether another deadline should be set or whether the transition should apply to each country until it graduates from least-developed country status.
Underlying this is a difference of opinion about the purpose of the transition. Least developed countries see it as a flexibility (or “policy space”) that is necessary because they lack the resources and knowhow to protect intellectual property. They also say they need the policy space in order to build up a sound technological base in their countries, which is what the TRIPS provision envisages.
Developed countries generally see it as extra time for the least developed countries to build up the ability to comply with the TRIPS Agreement. For that reason the 2005 extension included requirements for developed countries to provide assistance and for least developed countries to identify their priority needs.
However, in this meeting, the least developed countries said the link was a mistake and that technical assistance and technology transfer are obligations for developed countries that are separate from the transition period. They also pointed out that Art.66.1 obliges the TRIPS Council to extend the transition period when there is a “duly motivated request” by a least developed country. (The article says nothing about how long the extension should last.)
Developing countries that are not least-developed supported extending the transition period. Some specifically also supported extending it until the country graduates. Others did not say how long the extension should be, some merely calling for a pragmatic or constructive outcome to the consultations.
Speaking in this meeting were: Nepal (making the proposal for the least developed countries), Cambodia, Solomon Islands, African Group (Morocco speaking), Brazil, Bolivia, the African-Caribbean-Pacific group (ACP, Jamaica speaking), Angola, China, Zambia, Saudi Arabia, South Africa, the Association of Southeast Asian Nations (ASEAN, Singapore speaking), Tanzania, Sri Lanka, Haiti (which first submitted the proposal in November), India, El Salvador, Cuba, Norway, Canada, Argentina, Bangladesh, Australia, Rwanda, Mexico, Switzerland, Hong Kong China, US, Turkey, EU, Japan, Chile.
New Zealand’s planned plain packaging for cigarettes
Responding to objections from a number of developing countries, New Zealand defended its plan to introduce a plain packaging law for tobacco products and assured members it would abide by its international obligations, including, if necessary, waiting for the outcome of the WTO dispute cases against Australia before implementing its own law.
The debate largely followed previous debates in the TRIPS Council when Australia started preparing its bill.
The Dominican Republic asked for this topic to be put on the agenda. It said requiring tobacco products to be in plain packaging, without trademarks, would devastate employment in developing countries and prevent them from using their brands to inform consumers that the products are of a high quality. Its own cigars, which have acquired a reputation, would be in jeopardy, it said.
The planned law would violate New Zealand’s international obligations on intellectual property, such as trademarks and geographical indications, the Dominican Republic said. It accepted that smoking brought health concerns but argued that alternative methods would be more effective. Support came from Cuba, Nicaragua, Honduras, Ukraine, Zambia, Zimbabwe and Mexico.
New Zealand described smoking as the single largest cause of preventable death in the country, affecting particularly the indigenous Māori population. It said it has received numerous comments on its plan, including from its trading partners, and is now starting to draft the legislation. It said it will comply with its international obligations, adding that all WTO ministers had affirmed in the 2001 Doha Ministerial Declaration on TRIPS and Public Health that:
“We agree that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health ….”
Supporting New Zealand were Uruguay, Australia, Canada, Brazil and Norway. China and Switzerland were sympathetic and urged New Zealand to stick to its international commitments in the WTO and elsewhere. The World Health Organization, an observer in the TRIPS Council, also supported the legislation, which it said is necessary for public health and conforms to the Framework Convention on Tobacco Control.
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Innovation and small to medium-sized enterprises
This is the second time the TRIPS council has discussed innovation, this time with the focus on small to medium-sized enterprises, at the request of the US, Chile, Rep Korea and Chinese Taipei.
They and a number of other speakers described how these companies are essential for their economies, providing employment for up to two thirds of the workforce. Protecting innovation and ideas through intellectual property is important for the companies, they said.
But governments need to support them in order increase their awareness of intellectual property systems, help them move their products on from development to the market, encourage domestic and international collaboration in innovation, make registering trademarks and patents simpler and cheaper, and help them protect their intellectual property domestically and abroad, speakers said.
Chile and some other developing countries described how they have introduced programmes to move their economies away from dependence on natural resources to activities based on knowledge.
Some countries gave examples of government helping companies protect their new ideas. Japan cited the case of a company that developed a technique for making round fruit square. Australia spoke of a surfer who invented a sling for carrying surfboards.
Some less developed countries agreed that smaller companies are important for their economies but added that they are still far from being able to innovate and make money from their ideas. Therefore the importance of intellectual property to these companies differs in countries at different levels of development, they said
The World Intellectual Property Organization (WIPO), an observer in the TRIPS Council, described some of the organization’s programmes and the findings in economic research on the relationship between the size of enterprise and innovation.
(A full account of the discussion will be available in the meeting’s minutes, when they are available in a few months’ time.)
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Chairperson: Amb. Federico A González of Paraguay
(handing over to Amb. Alfredo Suescum of Panama at the end of the meeting)
TRIPS Council (regular) meetings (could change):
- Tuesday-Wednesday 11–12 June
- Thursday-Friday 10–11 October (changed from November)