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Policy Space in Intellectual Property Rights and Technology Transfer: A New Economic Research Agenda Read chapter Read first chapter

2019 | OriginalPaper | Chapter

Least-Developed Countries, Transfer of Technology and the TRIPS Agreement

Authors : Jayashree Watal, Leticia Caminero

Published in: Intellectual Property and Development: Understanding the Interfaces

Publisher: Springer Singapore

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Abstract

The Agreement on Trade-Related Aspects of Intellectual Property Rights includes a number of provisions on technology transfer. Developed countries have a positive, legal obligation to provide incentives to enterprises and institutions in their territories to promote and encourage technology transfer to least-developed countries, which is in Article 66.2 of the Agreement. At the Doha Ministerial Conference in 2001, ministers agreed that the TRIPS Council would “put in place a mechanism for ensuring the monitoring and full implementation of the obligations.” The Council adopted a decision setting up this mechanism in February 2003. It details the information developed countries are to supply by the end of the year, on how their incentives are functioning in practice. This decision is now being implemented, and submissions made and discussions held in the Council are available as formal documents that can be found online. This chapter outlines in more detail how this decision was negotiated in the WTO and how this provision in Article 66.2 is being monitored in the Council.

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previous chapter The Twenty-First Century Intellectual Property Office
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Footnotes
1
See Declaration on the TRIPS Agreement and Public Health, 20 November 2001, WT/MIN(01)/DEC/2 (hereinafter Doha Declaration); WTO General Council (2003), WTO General Council (2005).
 
3
See Committee for Development Policy and UN Department of Economic and Social Affairs (2015).
 
6
See Committee for Development Policy and UN Department of Economic and Social Affairs (2015).
 
7
See, for example, Drahos (2002).
 
8
See Watal and Taubman (2015), and particularly the chapter on patents, Watal (2015).
 
9
See Watal (2015), p. 308.
 
10
See GATT document MTN.GNG/NG11/W/50, 16 November 1989.
 
11
See WTO document IP/C/W/583, submitted by Haiti on behalf of the LDC group.
 
12
See GATT document MTN.GNG/NG11/W/57, 11 December 1989.
 
13
Indeed, at the time of writing, the USTR has begun action under the so-called Section 301 process against China for forced technology transfer. Inside US Trade’s (2017). This report states that the April 2017 Special 301 report finds that “China imposes requirements that U.S. firms develop their IP in China or transfer their IP to Chinese entities as a condition to accessing the Chinese market. China also requires that mandatory adverse terms be applied to foreign IP licensors, and requires that U.S. firms localize research and development activities.” More details can be found in Office of the United States Trade Representative (2017).
 
14
This obligation may well include grants or subsidies to entities located in developed country members. In this context TRIPS promotes subsidies, while other WTO agreements try to reduce and discipline them. Kennedy (2016) refers to this paradox in his book, p. 275.
 
16
It may be easy to understand, given the context, object and purpose of TRIPS, why LDCs questioned whether the technology whose transfer was to be promoted or encouraged to their territories would be covered by IPR. This is discussed later in this chapter.
 
17
See IP/C/M/15, para. 59.
 
18
See IP/C/M/21, paras. 36–44.
 
19
See IP/C/M/21, para. 43. WTO informal documents are not publicly available.
 
20
See IP/C/W/132 Add. 1–7.
 
21
See IP/C/W/169 on 3 May 2000. This summary excluded the submissions of Norway and Canada, as these came towards the end of 2000.
 
22
This is recorded in IP/C/M/27.
 
23
The US delegate personally thanked Edward Chisanga of Zambia in the Council of February 2003 after the adoption of the Decision and said he had been reflecting about the implementation of Article 66.2 since 1999. See IP/C/M/39, para. 165.
 
24
Edward Chisanga’s statement was later circulated as IP/C/W/200.
 
25
See WT/MIN(01)/DEC/1, para. 37.
 
26
See IP/C/M/27, para. 54.
 
27
See IP/C/M/28, para. 36.
 
28
In the WTO structure, the General Council is the highest decision making body outside the ministerial conference.
 
29
See WT/GC/M/59, para. 46.
 
30
See IP/C/M/30, paras. 34–25. In 2001, the focus of both LDC and developing country delegations had shifted to negotiations on TRIPS and public health that finally resulted in the adoption of the Doha Declaration on the TRIPS Agreement and Public Health.
 
31
IP/C/W/298 reproduced Zambia’s statement.
 
32
See the latest extensions of transition periods granted to LDCs in IP/C/64 that gave LDCs up to 1 July 2021 and IP/C/73 that extended the transition period for complying with TRIPS provisions relevant for pharmaceutical products until 1 January 2033.
 
33
See IP/C/64.
 
34
Indeed, the transition period itself could be one of the major incentives to transfer technology to LDCs from developing countries that have to already comply with TRIPS. One well-known example is the production of newer anti-retroviral medicines in Uganda by an Indian generic company, after the introduction of pharmaceutical patent protection in India.
 
35
See WT/MIN(01)/17.
 
36
See IP/C/M/35.
 
37
See IP/C/M/36.
 
38
See IP/C/W/357.
 
39
Before 2009 the European Union was called the European Communities.
 
40
See IP/C/M/38, para. 252. Developed country reports are in IP/C/W/388 and addenda.
 
41
See IP/C/M/38, para. 259.
 
42
See IP/C/M/39, para. 262.
 
43
See IP/C/M/28, para. 36. It must be noted that it is difficult to say what, if anything, developed countries are doing additionally, pursuant to the obligation under Article 66.2 that they were not doing earlier. Thus, Article 66.2 may, in the worst case scenario, have only brought more transparency to incentives already being provided by developed country members to LDC members.
 
44
See IP/C/W/398, WT/WGTTT/W/5 dated 14 February 2003.
 
45
See IP/C/28.
 
46
See IP/C/28.
 
47
Indeed, this Decision was widely seen as an important step forward that reduced developed countries’ discretion in implementing Article 66.2. See UNCTAD–ICTSD (2005), p. 734.
 
48
See IP/C/W/412 and its addenda and the discussion in IP/C/M/42.
 
49
This format was changed to accommodate the proposed LDC format from 2012 onwards.
 
50
This request is recorded in IP/C/M/58.
 
51
See European Commission (2007), which appears to be instructions to EU member states to report their Article 66.2 incentives in a structured way, not too different from what LDCs proposed later.
 
52
See annex of IP/C/W/616/Add.1.
 
53
See annex of IP/C/W/616/Add.4.
 
54
See annex of IP/C/W/616.
 
55
See annex of IP/C/W/616/Add.6.
 
56
See annex of IP/C/W/616/Add.2.
 
57
See annex IP/C/W/611/Add.7.
 
58
See UN Department of Economic and Social Affairs et al. (2017). The 28 EU member states as of date of writing are Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, and the United Kingdom. At the time of writing the UK was still a part of the EU.
 
59
The EU report combines a report on incentives given at the EU level and then attaches some individual member state reports. Note that Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovak Republic, and Slovenia joined in 2004, Bulgaria and Romania in 2007, and Croatia in 2013.
 
60
Taking into account the different dates of adherence to the EU as noted above.
 
61
See projects implemented in Bangladesh, Sierra Leone, Tanzania and Uganda here, https://​www.​finnfund.​fi/​sijoitukset/​en_​GB/​investment_​examples/​. Accessed August 2, 2017.
 
63
See European Commission, International Cooperation and Development, Building Partnerships for Change in Developing Countries, https://​ec.​europa.​eu/​europeaid/​node/​37626, in particular the LDC member webpages. Accessed August 2, 2017.
 
64
See Government of Canada, Invest in Foreign Markets. https://​www.​canada.​ca/​en/​services/​business/​trade/​invest-foreign-markets.​html, in particular the LDC member webpages. Accessed August 2, 2017.
 
65
See IP/C/W/412/Add.7.
 
66
See IP/C/W/616.
 
67
See IP/C/W/412.
 
68
See IP/C/W/412/Add.5.
 
69
See IP/C/W/616/Add.3.
 
70
See IP/C/W/616/Add.1.
 
71
See IP/C/W/616.
 
72
See IP/C/W/616/Add.1.
 
73
See IP/C/W/412/Add.3.
 
74
See IP/C/W/616/Add.7.
 
75
See IP/C/W/616/Add.5.
 
76
See IP/C/W/616/Add.1.
 
77
See IP/C/W/616/Add.2.
 
78
See IP/C/W/616/Add.7.
 
79
See IP/C/W/616/Add.5.
 
80
See IP/C/W/616/Add.7.
 
81
Afghanistan joined the WTO in 2016, therefore only 2016 is counted; Cambodia joined the WTO in 2004, therefore only 2004–2016 is covered; Lao joined the WTO in 2013, therefore only 2013–2016 is covered; Maldives graduated as an LDC in 2011, therefore only 2003–2011 is covered; Liberia joined the WTO in 2016, therefore only 2016 is counted; Nepal joined the WTO in 2004, therefore only 2004–2016 is covered; Samoa graduated as LDC in 2014 and joined the WTO in 2012, therefore only 2012–2014 is covered; Vanuatu joined the WTO in 2012, therefore only 2012–2016 is covered; and Yemen joined the WTO in 2014, therefore only 2014–2016 is covered.
 
82
See for example, IP/C/W/661, para. 2 and IP/C/W/661/Add.2, para. 2.
 
83
Norway and the United States do not provide a clear definition or understanding of the term “technology transfer”, but list all the programmes reported upon.
 
84
See IP/C/W/580/Add.1.
 
85
See IP/C/W/616/Add.7.
 
86
See IP/C/W/580.
 
87
See IP/C/W/452/Add.7.
 
88
See IP/C/M/23, para. 33.
 
89
See IP/C/W/551/Add.6.
 
90
See IP/C/W/631/Add.3, para. 3.
 
91
See IP/C/W/431/Add.2.
 
92
See United Nations (2011).
 
93
See World Health Organization (2017), p. 5.
 
Literature
Committee for Development Policy and UN Department of Economic and Social Affairs. (2015). Handbook on the least developed country category: Inclusion, graduation and special support measures (2nd ed.). United Nations.
Drahos, P. (2002). Developing countries and international intellectual property standard-setting. The Journal of World Intellectual Property, 5(5), 765–789.CrossRef
Kennedy, M. (2016). WTO Dispute Settlement and the TRIPS Agreement: Applying intellectual property standards in a trade law framework. Cambridge: Cambridge University Press.CrossRef
UN Department of Economic and Social Affairs et al. (2017). World economic situation and prospects 2017. New York: United Nations.
UNCTAD–ICTSD. (2005). Resource book on TRIPS and development. Cambridge: Cambridge University Press.
Watal, J. (2015). Patents: An Indian perspective. In J. Watal & A. Taubman (Eds.), The making of the TRIPS Agreement: Personal insights from Uruguay Round negotiations (pp. 295–320). Geneva: World Trade Organization.
Watal, J., & Taubman, A. (Eds.). (2015). The making of the TRIPS Agreement: Personal insights from Uruguay Round negotiations. Geneva: World Trade Organization.
World Health Organization. (2017). Global strategy and plan of action on public health, innovation and intellectual property. Report by the Director-General. Executive Board 124nd Session, Provisional Agenda Item 3.7. EB142/14.
WTO General Council. (2003). Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and public health. WT/L/540 and Corr.1.
WTO General Council. (2005). Amendment of the TRIPS Agreement. WT/L/641.
Metadata
Title
Least-Developed Countries, Transfer of Technology and the TRIPS Agreement
Authors
Jayashree Watal
Leticia Caminero
Copyright Year
2019
Publisher
Springer Singapore
Book
Intellectual Property and Development: Understanding the Interfaces

Print ISBN: 978-981-13-2855-8

Electronic ISBN: 978-981-13-2856-5

Copyright Year: 2019

DOI
https://doi.org/10.1007/978-981-13-2856-5_10