The relentless expansion of intellectual property from the developed world to the developing world is rooted in a key international agreement: it’s called the Trade-Related Aspects of Intellectual Property Rights (colloquially, “TRIPS”), and it was enacted in 1994 by the World Trade Organization (WTO). TRIPS was envisioned as a means for expanding markets for intellectual property (IP), and of reducing barriers to international trade in intellectual property, through the effective protection of intellectual property rights. For some, effective protection of intellectual property is associated with high standards of protection and enforcement.
TRIPS, for all its IP maximalism, encoded the concept of special and differential treatment to country members. That means that developing countries and least developed countries have different levels of obligation. Developing nations have special needs and requirements emerging from their economic, financial and administrative constraints and they require more flexibility to create a viable technological base. Now there’s a deadline to force the world’s least developed nations to get full TRIPS implementation as fast as possible—to remove the flexibility specifically encoded in TRIPS to protect them as they figure out the best ways to implement IP in a modern, network society.
In the area of copyright and digital freedoms, high levels of protection—including longer terms of protection, which enclose the public domain, and creates higher access barriers—create economic barriers to the use of works and unduly restrict access to copyrighted information. Today, developing nations are pressured by developed nations in multilateral, regional, and bilateral fora, to adopt higher and more rigid standards of protection than would best serve them domestically, and are urged not to take advantage of flexibilities available in the IP system that would ease their transition into the global information society. They often comply in order to keep their markets open for other types of trade, mainly in commodities.
That’s why 183 civil society organizations and networks worldwide are calling on policy makers to advocate to members of the WTO for an extended-deadline for least-developed countries to implement the TRIPS Agreement beyond the current expiration in 2013.
The poorest part of the world community is the Least Developed Countries (LDCs). According to the United Nations, the LDCs are composed of 49 countries of which 32 are members of the WTO and 12 are in the process of acceding to the WTO. More than 880 million people (about 12 per cent of world population) live in those countries, but they account for less than 2 per cent of world GDP and about 1 per cent of global trade in goods.
TRIPS was concluded in 1994 and went into effect immediately on 1 January, 1995 for developed countries. Least-developed countries had a transition period of 10 years until 2005, to comply with its terms. Despite resistance from some developed countries in 2005, the WTO extended the date that least-developed countries would become obligated to become TRIPS compliant, to 2013. It had previously been extended until 2016 for pharmaceutical products.
For the signatories of this letter, failure to seek and obtain a further extension of the 2013 LDC transition period could be disastrous for LDC Members and their citizens. LDCs would be under extreme pressure to immediately amend their intellectual property laws to become TRIPS-compliant. Much worse, they would be adopting high standards of IP protection and enforcement before they had any real domestic technological capacity and before a significant body of local inventors, authors, and creators could leverage a domestic IP system to their advantage.
The letter urges:
“As the expiry of the exemption, 1 July 2013 is fast approaching, we believe it is urgent for all least-developed countries (LDC) to act collectively to submit a duly motivated request to the WTO TRIPS Council for an extension of the LDC transition period, until a Member ceases to be a LDC.”
The international copyright system, tempered by the needs of Human Rights and digital inclusion, allows for considerable flexibility for LDCs to formulate national copyright laws that are in their best interest. Flexibilities include shorter copyright terms, in order to maintain a substantial public domain as we mentioned above; use of ample limitations and exceptions to fulfill crucial needs in education, research, learning, creativity, library and archival activity, access to information for disabled persons, personal and private uses; defining the scope of protected works; and setting the scope of exclusive rights.
This welfare concern is particularly significant with respect to developing and LDCs, whose capacity to access knowledge goods on reasonable terms is defined primarily by the limitations and exceptions to the copyright owner’s proprietary interest. In copyright parlance, limitations and exceptions are coextensive with promoting public welfare.
Read the NGOs’ letter here.
Limitations, Exceptions and Public Interest Considerations for Developing Countries, by Ruth L. Okediji , ICTSD and UNCTAD
The WIPO Development Agenda and LDC, Janice T. Pilch, ARL