Now US And EU Want To Apply Upward Ratchet To TRIPS Itself

from the once-a-maximalist,-always-a-maximalist dept

Here on Techdirt we often talk about the copyright ratchet -- the fact that for three hundred years changes to copyright have always been in one direction: longer, wider and stronger. But there's a group of countries where the copyright ratchet isn't in place yet. These are the so-called LDCs -- the Least Developed Countries -- where many of the world's poorest citizens live. That's because the main Agreement on Trade Related Aspects of Intellectual Property Rights, better known as TRIPS, explicitly allows LDCs a transitional period of ten years, during which time they are not required to meet all the stringent requirements laid down there for granting intellectual monopolies. Moreover, the TRIPS agreement specifies:

The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period.
And as an article on infojustice.org notes:
Last November the LDCs exercised their legal rights under the TRIPS rules, and submitted a request to the TRIPS Council requesting an unconditional extension of the transition period for as long as a country remains an LDC. The current transition period expires on 1 July 2013.

Article 66.1 of the TRIPS Agreement grants LDCs a renewable exemption from TRIPS obligations. The rationale is that LDCs need maximum flexibility to develop a viable technological base and address their constraints, and that the standard of TRIPS IP protection may be an obstacle in achieving those objectives.
The US and EU routinely insist that countries follow TRIPS to the letter, but it seems they are only too happy to ignore their own obligations when it comes to granting a further exemption to LDCs:
Developed countries, particularly the United States and the European Union, have offered a poor and impractical deal of an incredibly short extension of 5 years with restrictive conditions to least developed countries that are entitled to be exempted from implementing the WTO TRIPS Agreement.

Particularly problematic is their demand that the LDCs agree to a "no-roll-back" clause, a TRIPS plus condition that will prevent LDCs from rolling back (i.e. providing a reduced degree of IP protection) their current laws, even if they adversely impact their development concerns.
"No roll-back" is another way of saying upward ratchet. But the US and EU are trying to haggle over details of an agreement that was finalized and signed back in 1994. As infojustice.org puts it:
The US and EU demand, if agreed to, would actually amount to an amendment to Article 66.1, but without following proper WTO procedures as required by Article X of the WTO Agreement
That is, the US and EU are not only trying to bully smaller countries into accepting unofficial changes to negotiated agreements, in this case to lock LDCs into a system with a built-in ratchet for intellectual monopolies, but they want the upward ratchet to operate on TRIPS itself.

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Filed Under: developing countries, eu, ratchet, trade agreements, trips, us


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  1. icon
    Mike Raffety (profile), 7 May 2013 @ 10:54am

    LDCs and IP protection limit growth?

    "The rationale is that LDCs need maximum flexibility to develop a viable technological base and address their constraints, and that the standard of TRIPS IP protection may be an obstacle in achieving those objectives."

    Doesn't this itself shoot a big hole in the claim that IP protection is essential to economic growth? If patents and copyright are necessary for growth, it seems like the LDCs would be clamoring to immediately implement the most restrictive laws possible.

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