DFID Support to the LDC Group

TRIPS Implementation in LDCs

Presentation of Draft Approach Paper to the LDC Group

Progress, challenges and proposals for the way ahead

Outline for presentation

• Part 1: TRIPS Implementation Challenges for LDCs

• Part 2: Stock-Taking Checklist Methodology

• Part 3: Progress in the Implementation of TRIPS

• Part 4: OAPI and ARIPO

• Part 5: Undertaking a Full Survey of TRIPS Implementation in LDCs

• Part 6: Proposal for a TRIPS Council Work Programme for LDCs

• Q&A

Summary of Key Messages• The Approach Paper discusses implementation of TRIPS, not

compliance the focus is the progress, challenges and status of modernisation of IP systems in LDCs towards TRIPS principles, objectives and standards

• Data availability: more data found than expected, but data is patchy and sometimes outdated, thus justifying varying levels of intervention for a full survey of IP modernisation in LDCs Interaction with national authorities is essential

• Preliminary findings: more progress made than expected in LDCs (at least this can be demonstrated for countries with high levels of data availability)

• Technical assistance: ad hoc, non-transparent technical and financial assistance continuing to frustrate attempts to better structure support for LDCs modernising national IP systems and benefiting from TRIPS

Part 1

TRIPS Implementation Challenges in LDCs

The TRIPS Agreement

• General characteristics– amalgam of existing treaties, seven parts– Minimum standards of protections– Patents, Trademarks, Designs, Geographical Indications, Copyrights,

Integrated Circuits, Trade secrets

• TRIPS implementation challenges for LDCs– National Development Context

– IP Policy and Legal Framework

– IP Administration Regime

– Enforcement and Regulation Regime

– Promoting Innovation, Creativity and Technology Transfer

TRIPS & Development• Development Objectives of TRIPS

• Art. 67 and Technical Assistance – TA matrices have been made for all 31 LDCs analyzing Art 67 submissions since 2000

• LDC Transition Period– In 2005, the transition period was extended until 1st July 2013

– Implications for implementation

– In 2002, a transition period under 66.1 for certain obligations concerning pharmaceutical products was granted until 2016

• Current Context– LDC Group Proposal & WTO Geneva Ministerial 2013

– Weak evidence base on the current status of TRIPS implementation in LDCs (rational for this project to help fill this gap and inform future thinking and proposals by LDC Group)

Part 2

Stock Taking Checklist Methodology

Checklist Methodology• Designing the TRIPS Implementation Checklist

– Six categories of TRIPS Implementation

– 24 questions

– Each question to be answered along two dimensions (data availability & preliminary findings)

• Assessing Data Availability– Scoping mission in Geneva

– Sources: WIPO Lex, WTO TPRs, WIPO IP Strategies and more

– Pilot LDC data availability assessment undertaken first

• Highlighting Preliminary Findings– Component completed for all 24 questions in all 31 LDCs

• Classification of LDCs into Three Tiers

Classification of LDCs into 3 tiers

• Classification into thee tiers based on Data Availability Assessment and Preliminary Findings

• The classification is not about the level of modernization of each LDC IP system – rather, it is concerned with data availability

• Six dimensions of TRIPS implementation used for classification

Advantages & Limitations of Methodology• Advantages

– Individual requirements for technical and financial assistance become evident

– Six categories enable comparative country analysis across themes

– The checklist allows for geographical and thematic comparisons

– Efficient use of time for next phase – what is publicly available has been mapped

– Reduces the sensitivity of the findings

• Limitations– Many checklists do not give an adequate overview of IP systems due to poor data

availability (Tier 2 & 3)

– Beyond the scope of this phase to undertake detailed review of individual pieces of IP legislation and regulation affecting protection and enforcement of IPRs

– Difficult to make an assessment of institutional capacity (resources, levels of skills, resources, automation etc) – except where full diagnostics available (eg Uganda)

– Necessary to follow up contact with WIPO, WTO and national authorities to get a complete and fully up-to-date picture

Part 3

Progress & Challenges in the Implementation of TRIPS

Progress in the Implementation of TRIPS• IP Policy Framework

– Five LDCs have formulated IP policies – some currently under way

– Few NDPs and STIPs address IP

• Legal Framework– LDCs generally have had protection for core IPRs in place for many years, but

problematic to establish exact status of legal implementation of TRIPS

– Areas where particular attention is required: protection of TK and genetic resources, trade secrets, GI, layout-designs of integrated circuits among others

– LDCs have not fully explored the possibilities of TRIPS flexibilities

• IP Administration– Most LDCs have distinctly defined industrial property and copyright organisations with

IP tasks clearly divided between them

– In a few cases, it is problematic to discern which institutions handle IP matters

– OAPI and ARIPO members have a centralised system for administering industrial property

Progress in the Implementation of TRIPS (cont) • IP Enforcement

– Little information found on enforcement

– Commercial high courts dealing with IP mentioned for four LDCs

– Special units with police force and/or customs found in Zambia and Senegal

• Using IP as a Development Tool– A few LDCs have web pages and statistics available on IPRs

– TA needs vary but often include: training and awareness promotion at all levels, law on TK and folklore, automation of IP offices, institutional modernisation to name a few

• Conclusion– IPRs as a burden and an opportunity

– 360 degree diagnostics on the current state of WTO-member LDCs’ IP system would be highly beneficial to make use of opportunities

– Importance of ARIPO and OAPI (covering 20 of 31 LDC WTO Members) very much overlooked by TRIPS Council

Part 4

OAPI and ARIPO

Organisation de la Propriété Intellectuelle (OAPI)

• 11 LDCs: Benin, Burkina Faso, Central African Republic, Chad, Guinea, Guinea Bissau, Mali, Mauritania, Niger, Senegal and Togo

• Superficially, the 1999 Bangui Agreement appears in conformity with the TRIPS Agreement

• National IP laws and policies of OAPI member states are not strictly in conformity with this agreement

• Common administration of all forms of industrial property

• OAPI appears to have somewhat overlooked the development levels of OAPI member-states

African Regional Intellectual Property Organisation (ARIPO)

• 9 LDCs: Gambia, Lesotho, Malawi, Mozambique, Rwanda, Sierra Leone, Tanzania, Uganda and Zambia

• Harare and Banjul protocols conform to the TRIPS agreement in certain aspects

• Even provides for more protection than the minimum requirements of TRIPS in some instances

• Also areas where ARIPO-legislation fails to conform to TRIPS• National implementation of the protocols varies across member states

Part 5

Undertaking a Full Survey of TRIPS Implementation in LDCs

Overview of the Survey Proposal• Based around the classification of LDCs into thee tiers (NB the

classification concerned with levels of data availability)• Six dimensions of TRIPS implementation used for anaylsis• 4 months total; length of each country study depends on LDC Tier; experts

working in parallel across 3 tiers to save time• Draw on 2012 TPRs: Nepal, Guinea Bissau, Togo, Bangladesh, EAC

Tier 1 LDCs (High Levels of Data Availability)

• Data Availability– High levels of data availability

– WTO needs assessments, WTO accession protocols, TPRs from 2005 onwards amongst others

• Most Obvious Data Gaps– Uncertainty about whether all policy documents have been included

– No overarching legal assessment

– For some: administrative detail is unclear and some statistics missing

– Little information on enforcement

• Means to Address Gaps– Verification of checklists by local IP offices

– Engage a legal expert to establish the areas of TRIPS requiring further attention

Tier 1 LDC Case Study: Rwanda• Data Availability

– Rwanda National IP Policy 2009, WTO Rwanda TPR 2004 and WTO Rwanda Priority Needs for Technical and Financial Cooperation 2010 are available

– Also: PRSP 2008, Rwanda Vision 2020, Rwanda STIP 2006

• Most Obvious Data Gaps– Uncertainty about whether all relevant policy documents, legislation, and pending

legislation have been included

– No overarching legal assessment

– Some statistics missing

– Little information on TRIPS Part III

• Means to Address Gaps– Ask Rwanda Development Board to verify and elaborate somewhat on the findings and

provide statistics

– Engage an expert to conduct legal analysis

Tier 2 LDCs (Medium Levels of Data Availability)

• Data Availability– Medium levels of data availability

– TPRs from 2003 onwards (most have 2008 onwards)

• Most Obvious Data Gaps (in addition to Tier 1)– Lack of information on planned and pending legislation

– Some have very little information of administrative procedures

– Very little information about enforcement

– Little information about requirements for technical and financial assistance

• Means to Address Gaps (in addition to Tier 1)– Interviewing IP officials and requesting the missing information

Tier Three LDCs (Low Levels of Data Availability)• Data Availability

• Low levels of data availability

• No TPRs or outdated TPRs

• Most Obvious Data Gaps (in addition to Tier 1 & 2)• Policy documentation and information about legal implementation are inadequate to

provide an overview of IP systems

• Hardly any information found about the administration of IP

• Hardly any information found about the enforcement of IP

• Statistics often unavailable

• Little information about requirements for technical and financial assistance

• Means to Address Gaps (in addition to Tier 1 & 2)• In-depth field work of an expert

Tier Three LDC Case Study: Chad• Data Availability

- WTO TPR 2007 is available as well as a Notification to the TRIPS Council 2000

- No national IP Policy found, no STIP found. PRSP 2003 and the National Government Programme do not address IP

• Most Obvious Data Gaps- Policy documentation and information about legal implementation are inadequate to

provide an overview of IP systems

- Hardly any information found about the administration of IP

- Hardly any information found about the enforcement of IP

- Statistics not unavailable

- Little information about requirements for technical and financial assistance

• Means to Address Gaps - Contact industrial property office to verify and elaborate on information found

- Legal assessment of TRIPS implementation completed

- Fieldwork to interview key contacts about IP implementation along the six dimensions

Part 6

Proposal for the TRIPS Council Work Programme for LDCs

Proposal for TRIPS Council Work Programme• Detailed survey on TRIPS Implementation in LDCs

– (See Part 5 of this presentation)

• Completion of TRIPS Implementation Technical and Financial Needs Assessments for remaining LDCs

– Six LDCs have Needs Assessments: Bangladesh, Rwanda, Senegal, Sierra Leone, Tanzania, Uganda

• Improvement of TRIPS implementation coverage in WTO TPRs for LDCs– Inconsistent TRIPS coverage throughout – potentially very useful

• Establishment of a WIPO WTO TRIPS-LDCs Trust Fund‐– Enhanced collaboration is under way – preliminary informal discussions about a trust fund

– Mobilise resources to help LDCs implement the TRIPS Agreement

• Enhancement of Dialogue, Information Sharing and Donor Coordination‐– Information-sharing systems, WIPO Lex as an important tool

– Mapping future IP TA

Proposal for TRIPS Council Work Programme (cont)• Development of IP infrastructure modernisation programmes at Sub‐

Regional levels– IP modernisation efforts must take place at the regional level in addition to national level

– Particularly relevant for Sub-Saharan Africa (OAPI and ARIPO)

– Modelled on EC-ASEAN IP regional technical assistance programme (now in 3rd 5 year phase with national projects for LDCs targeting their special needs)

• Consideration of an extended transition period for LDCs to implement the TRIPS Agreement

– Must not lose sight of the big picture – LDCs should use the TRIPS Agreement to reach their own goals for IP modernisation potentially enables targeted and effective TA

– Option 1: Group Extension

– Option 2: Country-Specific Extensions

– Option 3: Thematic Extensions

– Option 4: Hybrid Extension

The case for a stronger focus on trademarks in the TRIPS & LDCs forward agenda