WTO members agree to extend TRIPS transition period for LDCs

 The global trade regime members agreed to extend until 2034, July 1 the deadline for least developed countries (LDCs) to protect intellectual property under the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The members reached consensus on the 13-year extension of the current transition period, which was set to expire on 2021, July 1, at a formal meeting of the TRIPS Council on June 29, acording to a press note issued by the WTO.

Since the inception of the TRIPS Agreement, LDCs have benefitted from an extended transition period to apply provisions of the TRIPS Agreement, in recognition of their special requirements, their economic, financial and administrative constraints, and their need for flexibility in order to create a viable technological base, it reads, adding that the transition period for LDC members under Article 66.1 of the TRIPS Agreement had been extended twice before (in 2005 and 2013). "The he decision adopted was the result of intensive consultations over several months."

The members were broadly in agreement on the principle of the extension but were unable to reach a decision due to their differences on the additional request that members graduating from LDC status should be accorded additional flexibilities under the TRIPS Agreement after their graduation.

LDCs favoured extending the transition period for as long as the member remains categorised as an LDC, and for an additional period of 12 years from the date of graduation of a member from the LDC category. A group of delegations expressed a preference for extending the period for a limited time, while others argued that a transition period for members that have graduated from LDC status went beyond the TRIPS Council's mandate under Article 66.1, the press note adds.

Given the lack of consensus on this latter issue, and the urgency to agree on the transition period extension, members agreed that the post-graduation element of the request would best be pursued under an LDC proposal already on the agenda of the General Council.

Under the agreed decision, LDC country members shall not be required to apply the provisions of the TRIPS Agreement, other than Articles 3, 4 and 5, until 2034, July 1 or until the date when they  cease to be a least developed country, whichever date is earlier.

"The important decision proves that finding consensus is still within reach for members of this organisation,” said the chair of the TRIPS Council ambassador Dagfinn Sørli of Norway. The chair commended all delegations involved in this effort “for their sense of responsibility in finding a timely solution, for their commitment in pursuing their respective objectives, and for the flexibility and pragmatism they showed when this was necessary to close the deal.

"It is thanks to the hard work and diplomatic acumen of these delegations that we have a draft decision before us, agreed by those most directly affected by this matter, that can once again extend the transition period for LDCs before the current period expires in just over 24 hours' time,” he added.

On behalf of the LDC Group, Chad noted this is a compromise solution they accept with the understanding that members have also expressed their readiness to continue discussions in good faith at the General Council on the post-graduation transition period for LDCs.

In expressing their support for the extension, developed members acknowledged the unique challenges facing LDCs, which in many cases have been exacerbated by the Covid-19 pandemic. They encouraged LDCs to use the transition period to build reasonable and balanced IP systems for themselves, including by availing themselves of technical assistance available from the WTO and other international organisations.

Several members expressed their satisfaction at the fact that members have demonstrated they can work together constructively to reach consensus and deliver important results. The work done by the delegations of Chad and Bangladesh, who led the LDC effort in bringing the discussion to a successful and multilateral outcome, was also commended by a large number of delegations.

Experts stress policy regime to reward farmers

Experts emphasised on the need for a policy regime that can ensure that the communities which spend generations preserving and innovating plant genetic resources are rewarded. Such a regime should be able to provide due recognition to the farmers and breeders through intellectual property rights, and offer them a share in benefits derived from the use of their traditional knowledge which they have honed for generations.
Stating that research and development in agriculture is not limited to scientists and laboratories but takes place in the field by farmers, executive director of Enhanced Integrated Framework (EIF) at World Trade Organisation (WTO) Ratnakar Adhikari said, Addressing a two-day workshop ‘Reimagining the Governance of Genetic Resources and Intellectual Property for Agriculture and Food Security in Asia’ that started here today he said that it is critically important that communities that have spent generations preserving and innovating the genetic resources are rewarded. "Balancing breeders’ right with rights of farmers is a challenge."
Organised by South Asia Watch on Trade, Economics and Environment (SAWTEE), together with ARC Laureate Project on Intellectual Property and Food Security at the University of Queensland and Fridtjof Nansen Institute (FNI) the workshop aims at critically assessing the arrangements related to plant genetic resources in national laws and international agreements like the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the WTO, the Convention on Biodiversity, and the International Union for the Protection of New Varieties of Plants (UPOV).
This issue is highly relevant to Nepal as the country is currently exploring options to create policy and legal space for the rights of farmers and breeders, for example, in its draft law on plant variety protection and the existing Seed Act and Seed Regulations, according to the experts.
Among the developing countries, India is the only country that has adopted sui generis system to govern plant genetic resources.
Sharing India’s experience, registrar general at India’s Protection of Plant Varieties and Farmers’ Rights Authority, Rakesh Chandra Agrawal said that registration of plant genetic varieties had a slow start but now two-thirds of the total registrations are coming from the farmers. Discussing the Indian plant variety protection law, he pointed out that India even protects farmers from prosecution in cases of innocent infringement. India has legislated the Plant Variety Protection and Farmers’ Rights Act (PPVFR Act) in 2001, implementing a plant variety protection regime that protects the rights of both breeders and farmers.
Another research fellow at TC Beirne School of Law, University of Queensland Australia, Kamalesh Adhikari, on the occasion, pointed out that protecting the interests of plant breeders and farmers offers opportunities in areas of agriculture, food security and the use of plant genetic resources.
Papers on the experience of different countries, including Nepal, India, Bangladesh, Pakistan, Sri Lanka, Timor-Leste, Thailand and Ecuador regarding the governance of genetic resources and intellectual property will be present during the workshop.

WTO IP rules amended to ease poor countries’ access to affordable medicines

An amendment to the agreement on intellectual property (IP) entered into force today securing for developing countries a legal pathway to access affordable medicines under World Trade Organisation (WTO) rules.
The amendment to the WTO Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement marks the first time since the organization opened its doors in 1995 that WTO accords have been amended.
The WTO secretariat has received in recent days notifications from five members that they have ratified the protocol amending the WTO TRIPS Agreement. These notifications — from Burkina Faso, Nigeria, Liechtenstein, the United Arab Emirates and Viet Nam — brought to two-thirds the number of WTO members which have now ratified the amendment. The two-thirds threshold was needed to formally bring the amendment into the TRIPS Agreement.  
Members took the decision to amend the TRIPS Agreement specifically to adapt the rules of the global trading system to the public health needs of people in poor countries. This action follows repeated calls from the multilateral system for acceptance of the amendment, most recently by the United Nations General Assembly High-Level Meeting on Ending AIDS in June 2016.
"This is an extremely important amendment," said WTO Director-General Roberto Azevêdo "It gives legal certainty that generic medicines can be exported at reasonable prices to satisfy the needs of countries with no pharmaceutical production capacity, or those with limited capacity," he said, adding, "By doing so, it helps the most vulnerable access the drugs that meet their needs, helping to deal with diseases such as HIV/AIDS, tuberculosis or malaria, as well as other epidemics. I am delighted that WTO members have now followed through on their commitment and brought this important measure into force."
In video statements, some of the key players also shared their thoughts on the TRIPS amendment.
Unanimously adopted by WTO members in 2005, the protocol amending the TRIPS Agreement makes permanent a mechanism to ease poorer WTO members’ access to affordable generic medicines produced in other countries. The amendment empowers importing developing and least-developed countries (LDC) facing public health problems and lacking the capacity to produce drugs generically to seek such medicines from third country producers under 'compulsory licensing' arrangements.
Normally, most medicines produced under compulsory licences can only be provided to the domestic market in the country where they are produced. This amendment allows exporting countries to grant compulsory licences to generic suppliers exclusively for the purpose of manufacturing and exporting needed medicines to countries lacking production capacity.
"As important as trade policy is, health and well-being must take precedence,” said Kenya’s foreign minister, who chaired the WTO General Council at the time when the amendment was approved in December 2005, Amina Mohamed. “WTO members recognise this and have proven how seriously they take health issues by ratifying and putting into force an amendment to WTO rules which will facilitate access to essential medicines in low income countries.”
The amendment provides a secure and sustained legal basis for both potential exporters and importers to adopt legislation and establish the means needed to allow countries with limited or no production capacity to import affordable generics from countries where pharmaceuticals are patented. More and more WTO members are taking practical steps to implement the system in their laws. The bulk of global medicine exports is covered by laws enabling exports under this system, opening up new options for potential beneficiaries to access a wider range of potential suppliers and enabling new, innovative procurement strategies.
Flexibilities such as compulsory licensing are written into the TRIPS Agreement, governments can issue compulsory licences to allow companies to make a patented product or use a patented process under licence without the consent of the patent owner, but only under certain conditions aimed at safeguarding the legitimate interests of the patent holder.
Some governments were unsure of how these flexibilities would be interpreted, and how far their right to use them would be respected. At the Doha Ministerial Conference in November 2001, WTO members struck a deal which clarified the accords and provided governments in the developing world with greater clarity and certainty that protection of patents does not and should not prevent members from taking measures to protect public health.
But one more element was needed, how to guarantee that countries lacking the capacity to produce generic drugs could still procure them affordably. Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health recognised that "WTO members with insufficient or no manufacturing capacities in the pharmaceutical sector could face difficulties in making effective use of compulsory licensing under the TRIPS Agreement”, and instructed the Council for TRIPS to find an expeditious solution to this problem.
In August 2003, WTO members decided to remove an important obstacle to affordable drug imports by waiving the limitation in the TRIPS Agreement to predominantly supply the local market. The decision says that if the importing country could not secure access to needed medicines at affordable prices, these medicines could be produced under compulsory licence by drug makers in third countries, and be imported to poorer countries unable to manufacture the medicines themselves.
Two years later, WTO members agreed on December 6, 2005 to permanently incorporate the 2003 waiver decision into the TRIPS Agreement subject to the acceptance of two-thirds of WTO members. Through the entry into force of the amendment, the flexibility to protect public health becomes an integral part of the TRIPS Agreement.

Innovation: Key to Nepal’s Entrepreneurial Future

Four young men – Sajag Shrestha, Rajesh Sharma, Sanjay C K and Kailash Gyawali – dreamt of cashing on advertising on mobile phones. As the mobile penetration rate has been increasing in the country, they thought of linking advertisements to the mobile and making people watch ads directly while receiving their call.

They got a platform to realise their dream when F1 Soft saw potential in their idea and supported them.  Their innovation CashOnAd became popular in the market with highest downloads from the Google store in a short span of time. The application that helps people en-cash their incoming calls by watching ads on their mobile has taken the market by storm – it’s a new concept!

However, not all the young entrepreneurs are as lucky and many struggle to be given the opportunity to realize their potential.  Their dream projects die an immature death due to lack of institutional and legal support. In the country where cheap duplicate products flood the market, it's more difficult to be original and innovative.

The Nepali private sector claims that despite the obstacles and lack of opportunities where innovation is encouraged, however few in numbers, there is a breeding group of young and innovative ideas waiting to break ice. "Depending on the type of sector one is engaged in, the private sector is innovative," claims Sr. Vice President of the Confederation of Nepalese Industries (CNI), Hari Bhakta Sharma.

But, there are more copy cats and less innovation in the Nepal Inc.

"As the country is still in its initial phase of industrial and economic development, there are more copy cats”, he says, adding that imitation is a worldwide trend but it has to go beyond that and graduate to innovation and then invention. But does Nepal encourage such environment – after all, the mantra to remain in the market is innovation. Nepal Inc's focus on research and development is far too less to be innovative. Likewise, lack of institutional and legal support – that could have guaranteed intellectual property rights – is another hurdle why Nepal may not see the likes of a Bill Gates or Steve Jobs.

Though the country has Patent Design and Trademark Act 1965, which is in the process of amendment and Industrial Property Act that is also being amended soon to make it compatible with Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, they have not been able to guarantee and protect innovation and intellectual property rights. An almost four decade old legal mechanism definitely fails to safeguard the present needs of the industry making it least innovative.

The private sector must take into concern that without innovation, industry cannot survive for long. Lack of innovation not only damages a brand or an industry but bleeds the whole economy white. A once thriving garment industry – that used to be one of the largest foreign currency earners – is on its death bed due to lack of innovation and legal support mechanism. Had the garment industry been more innovative and able to diversify its products and markets, it could have survived. Innovation needs hard work, consumes more time, capital and knowledge also.

But it's easier to copy and make money overnight. Some fly-by-the-night operators have contributed to this extensively.  Lack of education and social awareness is also known to encourage copy cats. The education system should be innovation friendly unlike the current system that is more exam-oriented. "Education and society, both, should support entrepreneurship and innovation," the CNI vice president thinks, also suggesting the government filter approvals for setting up industry giving impetus to those who promote the culture of innovation.

After 1990, the country embraced free market economy to ensure a competitive market and smooth supply of quality goods and services at affordable rates. But it failed to promote fair competition. The Nepali private sector in this period has seen an increase in unhealthy competition, cartels and syndicates in the name of free market.

Despite the odds, there are young and aspiring entrepreneurs at every corner of the country. Agrees social entrepreneur Dr Bishal Dhakal, "There is enough innovation among our young entrepreneurs but they lack institutional and legal support," he says, adding "they require marketability of their product."

The decade long insurgency has not helped. The private sector has focused more on trading instead of growing sectors like information and technology, health, education and energy that supports innovation. "There are enough sectors, where entrepreneurs can be innovative and make money too," social entrepreneur Anil Chitrakar opines.

"Off grid energy, health and education are some of the areas where we see good innovations," he says, adding that these sectors have been driven by a small handful of entrepreneurs, which needs to be multiplied. Suggesting to look towards young start ups, he asks to feature them and support them with enough institutional and legal mechanism. "Business schools need to take the lead and more venture funds need to support their dreams," he adds. "Young people will take over, it's just a matter of time," states Chitrakar. The country is waiting!

(Published in Business 360 magazine February 2014 issue)

Knowledge-based industry needs protection for economic development

As the country is moving towards the knowledge-based economy, the experts called for the protection of Intellectual Property Rights.

Promotion and protection of innovations and the knowledge in the country will eventually contribute to the development of the country and reduction of poverty in the country in the long run, said trade, commerce and supplies, and finance minister Shankar Prasad Koirala, at a seminar 'General Awareness Building on IPRs and its Role in Economic Development', organised by the World Intellectual Property Organisation (WIPO) in cooperation with the Department of Industry and Confederation of Nepalese Industries (CNI), in the Valley today.

Stressing on scientific and technological capacity building in the industrial sector that could be the base for the sustainable development of the country, he asked to encourage innovations, research and development in appropriate technologies, industrial information and communication, biotechnology, as stated in the Industrial Policy 2010 that could lead the country towards economic development, growth and a better quality of life through its proper utilisation.

He also informed that the government has established a Rs 20 million-Technology Development Fund to make use of appropriate technology in different industries.

Unlike in the past when people used to about the development of infrastructure, enhanced production, efficient manufacturing, the present world is much more focused on the knowledge-based economy, he said, adding that knowledge has been now recognised as the driver of productivity and economic growth.

Strengthening the regulatory regime in Nepal on the protection of Trade Related Intellectual Property Rights (TRIPS) was one of the four outstanding commitments of our accession to the WTO in 2004.

However Nepal has still to do a lot to bring the regulatory and enforcement aspects of Intellectual Property, Industrial Property and other related areas, up to their desirable levels. 

He also reminded that the government is committed to promote, protect and regulate the Intellectual Property, which has been translated in the Industrial Policy 2010.

Industrial Policy 2010 has spelt protection and promotion of the industrial Intellectual Property Rights as one of its objectives. It has also envisioned an IP office to promote, regulate and administer all the aspects of Intellectual Property, apart from National IP Policy that will look into the IP issues and help establish an IP regime more effectively.

The new Industrial Enterprises Act will also help promote the IPR, the minister said, adding that the IPR protection will help attract more investments to the country.

If the country protects IPR, the foreign investment will flow in, said CNI president Narendra Kumar Basnyat. "However, level of protection is far behind in Nepal compared to our neighbours," he added.

The IPR is an essential tool to promote, protect and reward the creators of the intellectual property and make sure the use of the property for public benefit and welfare, trade secretary Krishna Gyawali said, on the occasion.

"Although the country has some 48 years old Patent Design Trademark law, the Department of Industry is doing its homework to bring a new IPR law," he added.

SAARC should unitedly raise voice during 9th WTO ministerial: Regional think tanks

The regional think tanks have suggested South Asian governments to seek effective market access on items of export interest to developing countries and least-developed countries (LDCs); market access in services, especially for Mode 4; financial and technical assistance from developed country members for infrastructure upgradation in developing countries and LDCs during the WTO’s ninth Ministerial Conference scheduled to be held in Bali on December 3-6.

Amid growing scepticism regarding the future of the multilateral trading system and the conclusion of the Doha Development Agenda, a Kathmandu-based South Asia Watch on Trade, Economics and Environment (SAWTEE) and Colombo-based Institute of Policy Studies of Sri Lanka (IPS) jointly organised a two-day regional consultation on ‘Road to Bali: South Asian Priorities for the Ninth WTO Ministerial’ in Marawila, Sri Lanka on July 2-3 and prepared a gamut of recommendations for the South Asian government to take maximum advantages from the multilateral agreement.

The consultation also adopted a resolution that is to be submitted to all SAARC countries that are WTO members, and to the SAARC Secretariat, so that they have a common voice on some of the WTO issues to take to the nineth WTO Ministerial in Bali.

SAWTEE submitted the resolution – today to commerce and supplies minister Shankar Koirala at his office in Kathmandu – that is expected to help negotiate policy outcomes that will be beneficial for all South Asian economies. It is important for SAARC ministers to present a united front and push for the resolution of major issues concerning the region in the Ministerial Conference in Bali, suggested SAWTEE that has also reiterated the need for effective utilisation of flexibilities available to developing countries under the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) – especially in the context of public health – and putting in place effective monitoring mechanism for technology transfer.

The resolution also focused on the provision of additional Aid for Trade (AfT) funding for regional projects in South Asia, and preferential AfT for LDCs, along with putting in place a robust AfT monitoring and evaluation mechanism with full participation of recipient countries; and enforcement of the duty-free and quota-free (DFQF) market access to LDCs on all products of their export interest, in line with Annex F of the Hong Kong Ministerial Declaration of 2005.

Presenting the resolution to the minister executive chairman of SAWTEE Dr Posh Raj Pandey urged him to take the lead and discuss the issues –suggested by the regional think tanks – of common interest to South Asia when they meet in Colombo, and prepare their negotiating positions for the ninth WTO Ministerial.

“Considering the fact that Nepal is currently the chair of the LDCs group in the WTO, we should also utilise the SAARC platform to support to causes espoused by the Group to benefit from the multilateral trading system,” he added.