Fahmida Hasan (East West University, Dhaka), “The pragmatic approach towards TRIPS compliance in Least Developed Countries”
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) negotiated between 1986-1994 Uruguay Round under the patronage of the General Agreement on Tariffs and Trade (GATT), the institutional predecessor of the World Trade Organization (WTO), incorporated stringent uniform worldwide protection of intellectual property rights. TRIPS became binding, at least on developed WTO members, one year after the negotiation concluded, on January 1996 and since January 2005, on expiration of the transitional period, all developing countries excluding LDCs became liable to adopt and enforce all the TRIPS patent rights standards. Despite the mandatory patent protection required from the signatory Members, least-developed countries (LDCs) have not managed to make significant progress due to economic, financial and administrative incapacities. Considering the situations of LDCs which did not pay much heed to the issue nationally, agreeing on another extension of the transition period by the WTO Member States (up to 2016) did not come as a surprise during the Doha Declaration on the TRIPS Agreement and Public Health in 2002. Thereafter, there were two more sets of extensions, one at the TRIPS Council meeting of 11-12 June 2013 for 8 years up to July 1, 2021, and another at the more recent ‘high level negotiations’ between the US and the WTO LDC Members on 6 November 2015, for an extension until January 2033 for pharmaceuticals. A body of contemporary academic literature suggests that forcing intellectual property protection on socially valuable goods such as essential medicines in poor countries give rise to a number of problems. The paper seeks to underscore, present and put into perspective, the overview of the problems and discuss how to alleviate the problems by pragmatically integrating the LDCs into the WTO system of intellectual property protection. Moreover, a comprehensive legal analysis of the various rights and obligations for LDCs, developed nations and international organizations under the transitional arrangements in the TRIPS Agreement, the TRIPS Council Decisions regarding the progressive extensions of November 2005, June 2013 and November 2015, and the overview on the underlying factors and processes that lead to the extensions of the transition period for LDCs till January 2033 will be undertaken.
The paper then focuses on the current situation following the latest Decision of the TRIPS Council on November 2015. It highlights the inadequacy of the isolated extensions and assesses the necessity of such in the implementation of the TRIPS Agreement by LDCs. In addition, the process of cooperation emphasised in the TRIPS Agreement and the Council Decisions for both LDC and developed nations to integrate LDCs into the uniform worldwide protection of intellectual property system will be examined. That is, the importance of the individual priority needs for technical and financial cooperation in order to implement TRIPS Agreement by the LDCs, the call on developed countries to provide technical and financial assistance to LDCs in accordance with Article 67 of the TRIPS Agreement, the WTO Secretariat’s need for cooperation with WIPO and other relevant international organizations to assist LDCs in the implementation, and the inclusion of the ‘no roll- back’ provisions (which makes the extension largely ineffectual for many LDCs). It is identified in the paper that greater coordination and incentives at various levels are required for all WTO Members to implement the minimum standard of intellectual property protection and hence the paper proposes some measures that should be undertaken by the Member States in order to reach the desired goal of TRIPS implementation globally.