As Brazilian Ambassador Roberto Azevedo won the race to head the World Trade Organization (WTO) last week, he must have been at least a little worried about taking over an organization that even leading members say is sinking into irrelevance. With the collapse of the Doha Round of talks, trade idealists are pinning their hopes on the December 2013 Ministerial Conference in Bali. But in the corners of WTO political decision-making there is an immediate and clear place to make progress: intellectual property rules in Least Developed Countries (LDCs). Instead, though, in current negotiations with the world’s most impoverished countries, it seems the United States and the European Union remain committed to the flawed strategy that helped spark the Doha failure.
The Agreement on Trade-Related Aspects of Intellectual Property Rights, known as TRIPS, sets out minimum standards for intellectual property (IP) protection and enforcement that all WTO Members are required to implement in their national laws. The subjects include patents that range from medicines to seeds to genes, and copyright that lasts until 50 years after the death of the author.
Whatever one thinks about IP in general, it is hard to argue that translating an economics book into Swahili for use in Tanzania, making generic AIDS medications for people in Haiti, or adapting climate technologies so they will work in the tropical climate of Laos, are unjust “piracy” efforts to be guarded against. That is why, since the agreement’s signing in 1994, LDCs have been exempted from implementing the full complement of TRIPS rules — first for ten years, then for an additional seven and a half. That exemption is scheduled to end in June 2013.
The TRIPS Council is currently taking up a proposal put forward by Haiti on behalf of the WTO’s LDC members to delay implementation of the TRIPS Agreement until these countries are no longer “least developed.” That request has garnered a great deal of support from development groups and from some leading members of the U.S. Congress.
It is worth remembering that we are not talking about fast-growing middle-income countries like India, China, or Argentina — or even Botswana, which graduated from LDC status in 1994. Instead, LDCs are the most impoverished and economically vulnerable countries. Officially, they are classified by the United Nations based on three factors: lowest income (Gross National Income of $ 1,190 per capita); poor human development indicators for nutrition, health, and literacy; and economic vulnerability. LDCs are home to 880 million people, one eighth of the world’s population, yet they subsist on 0.9% of the world total Gross Domestic Product. They largely lack the economic capacity to benefit from intellectual property rules, but are extremely vulnerable to the barriers that IP rules create to the diffusion of knowledge, science, and health. So why is it even on the table to force them to implement TRIPS fully in order to be WTO members?
When WTO talks broke down in acrimony during the summer of 2008 in Geneva, one of the main causes, most observers will acknowledge, was the “single undertaking” approach which put virtually every item of the negotiation into a single indivisible package. WTO members would be wise to take a message from failure: More diversity in the global trading regime is desperately needed.
Today’s rich countries largely got where they are by copying, adapting, and extending technologies first created elsewhere. Through much of the 19th century, the United States, for example, was a notorious pirate of English technology and written work — it denied foreign authors and inventors IP protection, arguing that the knowledge and technology was necessary for the country’s development. In the contemporary world few are promoting a wholesale indifference toward intellectual property. But taking advantage of IP requires a technological base, access to markets, and capabilities in finance, human expertise, and governance. Article 66.2 of TRIPS requires rich countries to support LDCs in obtaining technologies they need for development and economic growth — an obligation that most experts agree has not been met, as is made obvious by the continued abysmal economic performance of LDCs.
It seems time, then, for WTO members to simply recognize that WTO membership should not come with a TRIPS obligation until countries have at least graduated from LDC status.
Specifically, LDCs will continue to need policy space to:
• Ensure access to affordable medicines: LDCs, by definition, face substantial health problems—often high rates of HIV and malaria, weak health systems, and massively insufficient health budgets. Implementation of TRIPS IP rules drives up the price of key medicines by allowing them to be patented, thereby putting life-saving technology out of the reach of patients and national health programs. In places like Uganda and Bangladesh, where nascent industries are trying to produce medicines, patent rules meant for advanced economies will destroy these fledgling efforts.
• Educate their populations: Both the distribution and translation of important books — even out of date ones — are routinely blocked by copyright rules. LDC education budgets, though, can rarely afford new bulk purchase of copyrighted books for students or a reasonable selection of academic journals for universities. Licensed copies of software, equally critical for 21st century learning, are out of reach for most people in LDCs.
• Use seeds and agriculture goods to feed growing populations: As the U.S. Supreme Court casecurrently pending shows, IP can hinder traditional farming practices by preventing free exchange of IP-protected seeds and varietals that will be increasingly essential in places facing soil depletion and food insecurity.
• Adapt green technologies to fit tropical and low-resource climates: Is it illegal for Bangladesh, the most climate insecure country in the world due to sea-level rise and river flooding, to adapt Israeli-designed water filtration systems to work in a low-resource, tropical setting? Without permission of the multiple-patent holders it could be under TRIPS.
Each of these areas suggests that LDCs — given their low development levels and tiny public sector budgets — might do well to place limits on intellectual property rules. They might choose not to allow patents on “essential” medicines, provide broad exceptions for public-sector use of copyrighted works, and designate sectors as essential for national development and therefore temporarily unrestricted by IP. None of this suggests countries cannot differentiate between “pirated” TV shows and essential public goods. But it does suggest that least developed countries must have the space to set its own policy, with development needs front and center.
So what will happen at the WTO in the coming days? So far it is not clear. The United States, European Union, and Australia are pushing hard to keep in place the “no roll-back” provision that prevents LDCs from changing their existing laws, even if they’re left over from the colonial era or new laws that have proven bad for development. They’re pushing for a very limited timeframe, one that is too short for any serious development to take place. And they’re pushing even further, by insisting that LDCs must start immediately to implement TRIPS.
But so far, it seems, LDCs are holding on to their rights. The WTO agreement actually says that they “shall” be granted an exception upon a duly motivated request — so legally this is their right. And none of the powerful WTO members is relishing trying to make the case publicly for forcing the most impoverished countries in the world to enact restrictive rules or face sanctions.
If the WTO is going to claim relevance it is going to have to embrace global trade diversity. That is, it must move past the one size fits all model that derailed the Doha Round. The WTO needs to acknowledge that, whatever benefit it may claim for poor countries, prematurely imposing restrictive IP measures is not it. And a first step would be a permanent fix that gives LDCs predictable policy space: So long as you’re “least developed” and facing such massive economic and social challenges, take the flexibilities you need by making affordable medicines, distributing translated versions of books, maybe even use a copy of Windows 8 without permission. And if the “developed” countries hold up their end of the bargain — if technology transfer happens — LDCs will cease to be LDCs and that’s a global goal everyone has embraced.
Matthew Kavanagh is a fellow at the Center for Public Health Initiatives at the University of Pennsylvania and Senior Policy Analyst for the Health Global Access Project.