The world's poorest countries are in a dispute with developed nations, including the United States and European Union members, over their special rights to bypass intellectual property rights when accessing key technologies — a provision that is about to expire.
The least developed countries (LDCs) are asking members of the World Trade Organization (WTO) to allow them to retain their exemption from having to provide legal protection for trademarks, copyright and intellectual property (IP) when the current exemption expires on 1 July.
Currently, the LDCs do not have to provide enhanced IP protection, as required by WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), within their national laws — most of which date back to colonial times and lack such provisions.
This allows them easier access to medicines, textbooks, green technologies and other public goods and cultural creations.
They are arguing for an unlimited extension to this exemption as long as nations remain LDCs to give them access to key resources and technologies that can help them to develop their industries.
Without an extension of the exemption, the poorest countries say they would need to amend their IP laws to become TRIPS-compliant even if this would put their development at risk. In a submission made late last year to the WTO on behalf of the LDCs, Haiti argued these countries would have to adopt high levels of IP protection despite having little domestic technological capacity or even the ability to enforce IP rights.
Lack of governance capacity
"The LDCs do not have the institutional set-up or capacity to enforce TRIPS-compliant laws," an LDC delegate to the WTO tells SciDev.Net. Without an extension agreement, the "LDCs will have to comply with the law but if they cannot do that, what will happen? Are you going to prosecute the LDCs in a dispute?"
Moses Mulumba, executive director of the Center for Health, Human Rights & Development, a non-profit research and health rights organisation for East Africa based in Uganda, says: "The situation is quite alarming".
The Ugandan patent office "is concerned that it would need a police force to ensure compliance and to seize non-TRIPS-compliant goods", he says.
"If the exception is not provided, we would not be able to import [patent-protected drugs]. All our efforts on the ground will be affected," Mulumba tells SciDev.Net, pointing out that 70 per cent of the country's drugs are imported.
"Because we don't have our own primary research in Uganda, we rely on the import of a number of patented drugs, particularly for HIV/AIDS."
In a statement in February, Michel Sidibé, executive director of the Joint UN programme on HIV/AIDS (UNAIDS), said that the UN Development Programme, on behalf of UNAIDS, supports an indefinite exemption to ensure the LDCs have "sustained access to medicines, build up viable technology bases and manufacture or import the medicines they need".
"This has become a battle of development versus compliance. The EU and US see this as a compliance issue," says Sangeeta Shashikant, coordinator of the Third World Network, one of the NGO signatories.
Informal discussions have been ongoing in the run-up to the June meeting of the TRIPS Council — the body that administers the TRIPS agreement.
The United States and the EU are resisting the calls for an open-ended extension and are pressing for a five-year extension for the exemption.
During a TRIPS Council meeting in early March, however, the Solomon Islands delegate described this five-year time frame as "arbitrary".
The current exemption for the LDCs was extended in 2005 for seven-and-a-half years. One LDC delegate tells SciDev.Net that "this in itself was a compromise", as the LDCs were after an unlimited extension.
The fact that they are in line for another extension suggests that seven-and-a-half years was too short if the aim of the exemption is to help the LDCs gain time to develop their own industries, rather than simply enact TRIPS, says the LDC delegate.
It meant that the extension "had little bearing on [changing] the situation in poor countries", says the LDC delegate.
The United States and EU are also demanding a 'no rollback clause' that would prevent the LDCs from reducing the amount of legal protection they provide to IP even if it harms their development.
Brook Baker, a law professor from Northeastern University, United States, tells SciDev.Net that "granting monopolies to transnational IP companies in the poorest countries in the world is guaranteed to slow development in both technology and human capacity".
In a submission to WTO in support of an open-ended extension for LDCs, the non-profit EIFL (Electronic Information for Libraries), which supports access to digital resources in developing nations' libraries, said that the LDCs should be allowed to draft their national copyright laws.
This should include "exemptions and limitations to suit their own conditions" and "without the threat of trade sanctions used by trading partners to enforce TRIPS obligations".
They need this to protect scientific databases, EIFL said, adding that research and development depends on access to global information resources and services provided by academic and research libraries.
According to a letter to WTO members, signed by a global network of more than 375 NGOs and other organisations in February, civil society maintains that foreign individuals and companies are the main beneficiaries of expanded IP protection "and these foreign right holders tend to set high monopoly prices that are unaffordable to most of the population" in LDCs.
Nepal's delegate told a TRIPS meeting earlier this year that most IP-protected goods and services "are simply beyond the purchasing power of the least developed countries and their people".
The LDCs are being supported by developing countries including Brazil, China, India and the African Group, a UN grouping of African countries, mainly African Union member states.
Link to the UNAIDS statement