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November 29, 2005

WTO extends deadline for poor countries to implement TRIPS by seven years

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In advance of December's much-anticipated WTO ministerial meeting in Hong Kong, the WTO has given least developed countries (LDCs) an additional seven years to bring their national IP laws into compliance with international TRIPS standards.

This is important, and strategic.

It is widely anticipated that there is no possibility of progress on the major purpose of the WTO ministerial: namely, relief to developing countries on agriculture policy by reforming the agriculture subsidy policies of the U.S. and the E.U.  It was a failure to achieve such a policy at the last WTO ministerial in Cancun that lead to the "Cancun collapse," and a "Hong Kong collapse" on those very same agriculture policy issues is widely anticipated.

(The reason for such low expectations is that the EU has not risen to the challenge/offer from the U.S. to substantially reduce agriculture subsidies. So, given the U.S. offer, the culprit behind the unfavorable agriculture policies that are holding down the poor countries of the world is now clearly the E.U.)

Because no one really expects a breakthrough on agriculture in Hong Kong, the expectation is that "secondary" issues will provide a substitute for attendees and the WTO itself, which will be looking for something, anything, to justify the meeting and to point to as a success.

Enter the TRIPS agreement (Trade Related aspects of Intellectual Property rights). The two biggest gripes of poor and developing countries around the world are agriculture subsidies and TRIPS, and if agriculture is off the table, the concern is that TRIPS will be on the table.

Oversimplified, countries that signed on to TRIPS have to have IP laws in their countries that meet TRIPS standards. That is not to say that they have to have IP polices matching those of the U.S.; in fact, TRIPS has loads of flexibilities for countries based on their particular situation. But agreeing to TRIPS means that you have to protect intellectual property in some predictable, consistent manner.

The worldwide anti-capitalist, anti-corporate, neoMarxist movement has been looking for an opportunity to weaken TRIPS protections, because the perception is that the IP industries of the developed world "forced" TRIPS onto poor countries, and that TRIPS-compliant IP laws hinder development. They base these arguments on their erroneous assumption that IP protection itself hinders development because countries MUST steal in order to learn and develop. This is, of course, nonsense.

So these guys have been planning for months to use the avian flu issue to argue at the WTO that the TRIPS agreement sets up a situation where poor countries cannot possibly protect the health of their citizens while also respecting the intellectual property of companies like Gilead and Roche, which they are required to do under TRIPS (although TRIPS itself allows compulsory licensing of critical medicines in legitimate health emergencies.)

That was all background. In summary, the expectation was that agriculture policy would slide off the table in Hong Kong and that the activists and poor countries would push weakening of TRIPS onto the agenda, using avian flu concerns as moral cover.

This is why the announcement on the seven-year extension for poor countries to comply with TRIPS is of strategic importance. It takes a lot of the hot air out of the activists balloon. This lessens the risk of a disastrous weakening of TRIPS in Hong Kong, and it might even make it more likely that the important matter of agriculture subsidies may remain on the table in Hong Kong long enough for the E.U. to feel the pressure and cave in, which would be the good and right and constructive thing for the E.U. to do.

Update: There is some additional background available at William New's IP Watch website, and their reporting is pretty good on this particular news item.

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