LDC and Civil Society Coalition Win a Partial Victory in Extending LDCs Freedom from Oppressive Intellectual Property Rights

LDCs stood together and won a partial victory at the World Trade Organization delaying the time within which they must become fully compliant with global minimums for protecting patents, copyrights, trademarks, and other forms of intellectual property.  Although they committed to deliberate carefully, they won back policy space to reduce existing levels of intellectual property protection if appropriate in order to develop a viable technological base and to overcome severe and lingering capacity constraints.  This same policy space will permit them to access more affordable medicines and medical technologies, educational resources, agricultural inputs, and green and climate control technologies.

Europe and the US, home of powerful intellectual property industries including pharmaceuticals, publishing, movie and recording, information technology and other, tried to force LDCs, the poorest countries in the world, to open their weak economies to monopoly protections for IP-based multinational corporations.  At first the US and EU wanted to split up the LDCs coalition and speed up implementation of select IPRs, but LDCs held firm in demanding what they are fully entitled to under international law - an unconditional extension of the time period within which to become compliant with the WTO TRIPS Agreement until any particular country is no longer an LDC with no guarantee that they would maintain even existing levels of IP if it were not in their interest to do so.

At the same time that the US and EU were exerting massive backroom pressure on LDCs, often with the assistance of the TRIPS Council Chair, civil society organizations, health activists, academics, international organizations, and others rallied to support the LDCs.  They exposed the intellectual dishonesty of the big powers' position and demonstrated global solidarity in support of poor people in the world's poorest countries.

In the end, the US and EU did enforce some compromises, including a duration of this extension for only 8 years (though LDCs will be entitled to further extensions in the future) and LDCs expressed their unenforceable "determination to preserve and continue progress towards implementation of the TRIPS Agreement."  But 8 years is a victory in light of the US endgame insistence on only a 5 year extension, and the expression of "determination" is modified by a separate sentence entitling LDCs to make "full use of the flexibilities in the TRIPS Agreement to address their needs including to create a sound and viable technological base and to overcome their capacity constraints," which in this case would include the flexibility under Article 66.1 to rollback existing levels of TRIPS compliance.

Countries now have to use the policy space they have fought for and won.  Many LDCs still need to enact IP reforms that allows unrestricted access to essential public goods.  They can be selected, but they shouldn't simply maintain the colonial IP systems that they inherited, nor should the follow the siren song of WIPO and other IP fundamentalistic who claim that IP is good for you - just close your eyes and swallow.  To the contrary, virtually all the theoretical and empirical evidence on this questions finds that IP impedes rather than helps the development project in low income countries.

In addition, LDCs and their allies will have to begin early to win an even better extension of the pharmaceutical product transition period which will expire in 2016.  Here too the LDC should insist on an unconditional extension (like the one they won in 2002) and it should last as long as a WTO member is an LDC.  The fight against HIV/AIDS, tuberculosis and malaria and the simultaneous fights against neglected tropical diseases and non-communicable diseases depends on affordable access to generic medicines of assured quality.

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