INTELLECTUAL PROPERTY: LEAST DEVELOPED COUNTRIES
Responding to least developed countries’ special needs in intellectual property
Least developed countries (LDCs) are given an extended transition period to protect intellectual property under the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This is in recognition of their special requirements, their economic, financial and administrative constraints, and the need for flexibility so that they can create a viable technological base.
Updated: 16 October 2013
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Also well-recognized are the LDCs’ needs for continuing technical and financial co-operation in order to realize the cultural, social, technological and other developmental objectives of the intellectual property (IP) system.
This section of the website supports this co-operation, by providing an overview of the process of identifying and responding to LDCs’ needs, with links to working materials, updates and tools for coordinating this on-going work.
The negotiators of the TRIPS Agreement recognized the particular concerns and needs of LDCs when it comes to the IP system.
The TRIPS Agreement’s preamble already acknowledged LDCs’ particular need for maximum flexibility in implementing laws and regulations domestically. The objective was to enable them to create a sound and viable technological base.
Consequently, the TRIPS Agreement obliged developed countries to create incentives for technology transfer to LDCs and to support their efforts to implement the Agreement through technical and financial co-operation, on request and on mutually agreed terms and conditions. Initially, it also allowed LDCs 10 years from 1995 to apply the bulk of TRIPS obligations.
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Transition period extension under TRIPS Article 66.1
This transition period has been extended twice for all LDC members in response to a specific request by the LDC Group. In its decision of 29 November 2005, the TRIPS Council extended the period until 1 July 2013, and on 11 June 2013, it extended this further until 1 July 2021 — or when a particular country ceases to be in the least developed category if that happens before 2021.
Members recognized the progress LDCs had already made towards implementing TRIPS and the LDCs expressed their determination to preserve and continue this progress. The 2013 decision does not affect LDCs’ right to fully use flexibilities in the TRIPS Agreement and to seek further extensions of the transition period.
For pharmaceuticals, the 2001 Doha Ministerial Declaration on TRIPS and Public Health had already instructed the TRIPS Council to extend the period for them to comply with provisions on pharmaceuticals until 2016. The TRIPS Council formally adopted a decision implementing this in 2002. In November 2015, it took a decision that further extends this transition period until 1 January 2033 or when a particular country ceases to be in the least developed category if that happens before 2033. To complement this decision, the General Council also decided to waive certain obligations regarding mailbox applications and exclusive marketing rights that would otherwise apply to least developed country Members pursuant to Article 70.8 and 70.9 of the TRIPS Agreement. (More on TRIPS and public health: here)
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Responding to LDC needs
The TRIPS Agreement already recognized the need for developed countries to support LDCs in their efforts to implement its provisions through technical and financial co-operation provided on request and on mutually agreed terms and conditions (Article 67).
The whole process therefore remains demand-driven, centred on the actual requirements each LDC has identified. This is in line with the general WTO policy where assistance is provided only upon request. The LDCs actively participate in steering the process, which relies on the continuing guidance of these countries individually and as a group.
The 2013 extension decision recognized the LDCs’ continuing needs for technical and financial co-operation so that they can achieve their individual developmental and other domestic objectives within a balanced IP regime. In other words, cooperation should aim for more than simply translating TRIPS provisions into national law — an overarching theme concerns how best to tailor and apply IP mechanisms judiciously to serve the development objectives, policy priorities and domestic situation of individual LDCs.
To realize this in practice requires the identification of priority needs and interests in each LDC. This is widely recognized as being vitally important — to ensure that the assistance given by co-operation partners is comprehensive, coordinated and directly relevant to the domestic circumstances of each country concerned.
Well in train now, is the process of identifying, communicating and responding to priority needs in individual LDCs, to help them implement TRIPS within their national IP systems.
The process gained momentum under the 2005 extension decision. It called on LDCs to identify their priority needs for technical and financial cooperation. Developed countries were asked to help to address the needs identified, in line with their TRIPS obligations. Finally, the decision called on the WTO to enhance its cooperation with the World Intellectual Property Organization (WIPO) and other relevant international organizations.
The two organizations are now cooperating more closely on this area, in response to the request and based on a Cooperation Agreement adopted in 1995, as well as a Joint Initiative on Technical Cooperation for Least developed Countries, launched in June 2001.
Wider initiatives to support LDCs include Aid for Trade Initiative (AfT) and the Enhanced Integrated Framework (EIF); they also provide potential avenues for an intensified, coordinated effort to respond to individual priority needs that least developed countries identify specially relating to TRIPS.
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Overview report on co-operation for LDCs
As a contribution to improving the effective delivery of technical co-operation for LDCs, the Swedish International Development Cooperation Agency has financed a factual overview on technical and financial co-operation for LDCs related to the TRIPS Agreement (through funding in the form of a Supplementary Contribution to the WTO Global Trust Fund). The overview was provided to the LDC Group and its co-operation partners in May 2013.
Designed to support LDC efforts to implement the TRIPS Agreement in a manner that is responsive to their domestic policy objectives, the overview aims to provide a more accessible base for coordinating the identification of LDC priority needs, and the technical and financial assistance available to meet those needs. To do so, it gives, among others, an overview of policies and measures related to IP in individual LDCs. It also summarizes programmes and resources relevant to identifying priority needs in LDCs and to responding to those needs already identified by LDCs.
The overview draws on the extensive information provided to the TRIPS Council and other WTO bodies by WTO members and intergovernmental co-operation partners. It also builds on a series of coordination activities convened by the WTO since 2009 in consultation with the LDC Group.
Download (pdf format):
- Full report
- Preliminaries and contents
- Executive summary
- Chapter 1 Introduction
- Chapter 2 Methodology
- Chapter 3 State of Play with IP Systems in LDCs
- Chapter 4 Identifying LDC needs
- Chapter 5 Technical and Financial Co-operation Programmes
- Chapter 6 Conclusions and Recommendations
- Annexes A to G
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Contact points for technical co-operation
Developed countries have agreed to notify contact points in their administrations for TRIPS-related technical co-operation (list of contact points and suggested request format are available here). LDCs which seek to obtain technical and financial co-operation to implement TRIPS from their developed country partners could consult with any of those contact points.
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2007/08: Uganda (documents IP/C/W/500 and IP/C/W/510) and Sierra Leone (documents IP/C/W/499 and IP/C/W/523) were the first least developed WTO members to submit their needs assessments. Others have followed: their submissions are below.
2009: A WTO Workshop on Least Developed Countries’ Priority Needs for Technical and Financial Cooperation (see key presentations), was held in Geneva on 29 October 2009, following a request from the least developed country group in the TRIPS Council in June of that year. It was part of following up on the TRIPS Council Decision of 29 November 2005. The main purpose was to enable least developed countries, developed countries, the WTO and WIPO to exchange views and share experiences. The Workshop examined ways to make use of existing mechanisms, such as the Aid for Trade Initiative (AfT) and the Enhanced Integrated Framework (EIF) (see also a Secretariat document summarizing the issues, IP/C/W/544. It also looked at how to coordinate future activities. Authorities from other countries also heard from Uganda, Sierra Leone and Bangladesh about the lessons they had learnt in practice in assessing their needs.
- 2010: Also in response to the request from the least developed country group in June 2009 (IP/C/M/60), three regional workshops on the priority needs for these countries were held in 2010 for capital-based officials from French-speaking Africa, English-speaking Africa and the Asia-Pacific region See document.
- 2011: Following the same request, a symposium on least developed countries’ needs assessment was held in Geneva on 19-21 October 2011. The purpose was to bring together key representatives from LDCs, cooperating partners in developed countries, and international and regional organizations, with a view to sharing experiences on the process so far, as well as ongoing activities and outstanding needs to complete the process. The following items have been considered during the review session:
- encouraging a more systematic use of the TA contact points to coordinate with partners
- exploring a more systematic follow-up of individual needs assessments; this would imply setting up small coordination groups which would go through all the identified needs that have not been addressed yet
- enhancing coordination with all partners, including at regional level, to make optimal use of existing resources both to support the establishment of priority needs and for fulfilling the needs already identified
- developing tools and common resources which would provide practical information and methodologies to least developed countries concerned.
- 2012: A symposium on LDCs’ needs assessment was held in Geneva on 31 October–2 November 2012 with the support of the Swedish Government. The purpose was to enhance coordination of assistance to those LDCs that have yet to identify their priority needs to implement the TRIPS Agreement in a manner supportive of their domestic policy objectives, as well as to align available resources with the individual needs that have already been identified by a number of LDCs. At the closing session, the following issues were submitted for further consideration::
- whether coordination would be best done in Geneva or in capitals and whether the TRIPS Council should monitor projects in order to ensure transparency
- whether reporting on relevant activities could be centralized on a recipient country basis
- how to prioritize IP in the process of updating Diagnostic Trade Integration Study (DTIS) action matrices
- whether a dedicated fund could be established in order to support the needs assessment process.
- Usefulness of needs assessments: while noting that the 2013 Extension Decisions departed from the earlier framework of the needs assessment process, namely by not explicitly obliging LDCs to communicate their individual priority needs anymore, participants were generally supportive of taking priority needs assessments (to be) submitted by LDCs as the basis for future work.
- Delivery of responses to individual priority needs: developed country participants pointed out that technical assistance provided to LDCs must be demand-driven and that appropriate follow-up therefore had to be given to initial needs assessments by potential beneficiary countries. In order to facilitate the response of cooperation partners to the needs identified by LDCs, there was a widespread feeling among developed countries that the initial needs assessments needed to be converted into concrete programmes or specific requests and that they should also be periodically updated;
- Flow, accessibility and relevance of the information required to match priority needs with available resources and programmes: while the objectives seemed to be shared and the resources in principle available, further efforts to improve coordination and to act upon needs were considered as indispensable. This said, some participants were sceptical about the role of mechanisms like the existing WTO-OECD GTAD); and
- Establishment of a dedicated fund managed jointly by WTO and WIPO: while a number of LDCs, as well as ARIPO and OAPI, expressed a strong interest in such a fund, seen as an efficient tool to support the identification and implementation of LDC priority needs, on the other hand, a number of developed Members, including the EU, the US and Japan, where more reluctant, pointing out that it would be preferable to use existing mechanisms. The WTO Secretariat emphasized that this was ultimately a matter for WTO Members to decide.
It was a brainstorming exercise to feed into the planning of the next phase of coordination and implementation of technical and financial cooperation to support the identification of priority needs to implement the TRIPS Agreement, where this has not yet been done, and to meet the outstanding priority needs where those have already been identified by a number of LDCs. To do so, it took, among others, account of the Factual overview on technical & financial co-operation for LDCs related to the TRIPS Agreement that was presented in May 2013, reviewed practical experiences regarding the coordination and delivery of appropriate capacity building, as well as the practical implications of the Council for TRIPS Decision IP/C/64 on the Extension of the Transition Period under Article 66.1 for LDC Members of June 2013. To assist participants in their preparations for the workshop, a concept note raising a number of key issues which could be considered at the meeting was prepared by the Secretariat.
The following topics took a prominent role in the discussions:
Official texts and documents back to top
- 2015: Decision on Least Developed Country Members — Obligations under Article 70.8 and Article 70.9 of the TRIPS Agreement with Respect to Pharmaceutical Products
- 2015 Decision on the 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
- 2013 Decision on the Extension of the Transition Period under Article 66.1 for Least Developed Country Members, adopted by the TRIPS Council on 11 June 2013 (News and explanation and official document IP/C/64).
- Request for an Extension of the Transitional Period under Article 66.1 of the TRIPS Agreement (IP/C/W/583)
- Decision on the Transition Period for Least-developed countries under Article 66.1 of the TRIPS Agreement adopted by the Eighth Ministerial Conference on 17 December 2011 (WT/L/845).
- 2005 Decision on the Extension of the Transition Period under Article 66.1 for Least-Developed Country Members, adopted by the TRIPS Council on 29 November 2005 (Press release and official document and IP/C/40).
- Submissions received from least developed country members on their individual priority needs for technical and financial cooperation under the Decision of 29 November 2005:
- Submissions received from developed country members focusing on information on technical and financial co-operation provided to least-developed country members, including in response to any priority needs identified by LDC members:
- In the TRIPS Council: minutes of meetings when this issue was discussed.
Secretariat Note on the Aid for Trade Initiative and the Enhanced
Integrated Framework (IP/C/W/544). This note compiles
information on the roles of the two initiatives in the needs assessment
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