Civil society letter to countries negotiating Regional Comprehensive Economic Partnership (RCEP)
TWN | 10 June 2016
Civil society letter to countries negotiating Regional Comprehensive Economic Partnership (RCEP) before the Auckland round of negotiations
Letter sent to India, Indonesia, Myanmar, Thailand, Malaysia, New Zealand, Lao, Philippines, Vietnam, Australia, Brunei, Singapore, Cambodia, Japan, South Korea
Intellectual Property and Least Developed Countries (LDCs)
Protect Transition Period for LDCs
As civil society organisations concerned with access to medicines, to educational resources, to environmentally sound technologies (ESTs), and to other public goods and cultural creations and further concerned with farmers’ rights, food security and industrial development, we call on countries negotiating the RCEP agreement and to protect the flexibilities available under the WTO TRIPS agreement for Least Developed Countries (LDCs).
In terms of impact, RCEP will cover nearly 50% of the world’s population - including the most vulnerable, marginalised and impoverished - such as people living in Least Developed Countries (LDCs).
LDCs are given an extended transition period vis-a-vis intellectual property (IP) under the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) during which period LDCs are under no obligation to implement the provisions of the TRIPS Agreement. This is in recognition of their special requirements, their economic, financial and administrative constraints, and the need for flexibility so that they can create a viable technological base and protect their capacity to make or procure low cost generic medicines.
We would like to draw your attention to the current negotiating text of the draft IP chapter, which proposes the premature adoption of intellectual property obligations by LDCs. (Please see Annex 1 below for detailed analysis).
We request IP negotiators designated by your government in RCEP to recognise specific concerns and needs of LDCs when it comes to IP and their need to retain policy space in defining their domestic IP system.
Any attempt to weaken in any way LDCs’ right to transition periods or the utilization of the flexibilities vis-a-vis intellectual property will be disastrous for LDCs Members and their citizens. It would also damage the credibility of ASEAN and it trading partners, revealing their total disregard for the socio-economic constraints and needs of the poorest and most vulnerable segment of the international community.
Please do not hesitate to contact Ms. Sangeeta Shashikant (sangeeta@twnetwork.org) and/or Ms. Leena Menghaney (leena.menghaney@msf.org) for any additional information.
SIGNATORIES
Global Networks & Organizations
LDC Watch
Third World Network
M้decins Sans Fronti่res - Access Campaign
International Treatment Preparedness Coalition -South Asia
International Trade Union Confederation (ITUC)
Electronic Frontier Foundation
Inter-regional and Regional Networks
Asia Pacific Network (APN+)
Asian Network of People who Use Drugs (ANPUD)
The South East Asia Regional Initiatives for Community Empowerment (SEARICE)
TREAT Asia/amfAR - The Foundation for AIDS Research
National Organizations and Networks
FTA Watch, Thailand
Indonesian AIDS Coalition, Indonesia
Positive Malaysian Treatment Access & Advocacy Group (MTAAG+), Malaysia
All India Drug Action Network (AIDAN), India
Initiative for Health & Equity in Society, India
Thai Treatment Action Group (TTAG), Thailand
S Srinivasan, LOCOST, India
Thai Network of People Living with HIV/AIDS (TNP+), Thailand
AIDS Access Foundation, Thailand
Education International, Belgium
Research Foundation for Science Technology & Ecology, India
UNION C, Nepal
Lawyers Collective, India
Shalini Bhutani, Legal Researcher & Policy Analyst, India
AIDS Care China, China
Indian Drug User’s Forum (IDUF), India
Public Health Association of Australia, Australia
Delhi Network of Positive People (DNP+), India
Vietnam network of people living with HIV (VNP+), Vietnam
National Association of People Living with HIV/AIDS in Nepal (NAP+N), Nepal
Italian Labour Union (UIL), Italy
Positive Women Network (PWN+), Sri Lanka
Myanmar Positive Group (MPG), Myanmar
Lanka Plus Organization, Sri Lanka
Lhak-Sam (Bhutan Positive Network), Bhutan
Association of people living with HIV in Pakistan, Pakistan
Cambodian Network of People Living with HIV (CPN+), Cambodia
Professor Brook Baker, Health GAP, USA
Annexure 1
LDCs and Intellectual Property obligations in Comprehensive Economic Partnership (RCEP) negotiations – critique
In terms of impact, RCEP will cover nearly 50% of the world’s population - including the most vulnerable, marginalised and impoverished - such as people living in Least Developed Countries (LDCs).
The negotiating text of the IP chapter was leaked online on 19 April 2016 and is now available http://keionline.org/node/2472. The leaked text reveals that the draft IP chapter proposes the premature adoption of intellectual property obligations by LDCs.
Article 5.7[1]of the draft RCEP IP chapter undermines the transition period LDCs are entitled to under the TRIPS Agreement, as the exemption is limited only to patentable subject matter and electronic registration regime and does not apply to all intellectual property. Article 12.1 contains some elements supporting the LDCs’ transition periods, though a footnote suggests that LDCs may still be required to implement some provisions in the draft RCEP IP Chapter.
Article 66.1 of the TRIPS Agreement guarantees[2]LDC Members of the WTO a renewable exemption from TRIPS obligations (except for Articles 3, 4 and 5 of the TRIPS Agreement) in view of their special needs and requirements (for e.g public health), economic, financial and administrative constraints and their need for flexibility to create a viable technological base. The TRIPS Agreement in its preamble also recognizes the need for LDCs to enjoy “maximum flexibility in the domestic implementation of laws and regulations in order to enable them to create a sound and viable technological base”.
In view of the above, we stress that countries negotiating RCEP should recognize and uphold the current transition periods and waivers granted to LDCs as well as any further extensions of the same by the WTO, and to adapt below proposed amendments to RCEP text:
Article 5.7 should be amended to read: “The Parties agree that the least-developed country parties will not be obligated to implement intellectual property protections as provided for by TRIPS Council Decision (IP/C/64) dated 11th June 2013 until 2021 or any further extension thereof, whichever occurs later nor to implement intellectual property protections on pharmaceutical products as provided in TRIPS Council Decision (IP/C/73) dated 6th November 2015 and WTO General Council Decision WT/L/971 dated 2nd December 2015 until 2033 or any further extension thereof, whichever occurs later.”
Article 12.1 of the draft text should be amended accordingly and provisions that undermine LDCs’ flexibilities or that obligate or locks-in LDCs’ implementation of intellectual property should be deleted.
In accordance with Article 66.1 of the TRIPS Agreement, LDCs enjoy a number of exemptions and waivers to the implementation of TRIPS Agreement which are listed below for reference:
1. Pursuant to extension of transition period granted to LDCs in accordance with Article 66.1 of the TRIPS Agreement, LDCs are exempted from applying all TRIPS standards until 1 July 2021.[3]This period must be extended by the TRIPS Council on LDCs submitting a duly motivated request.[4]Thus far this transition period has been extended twice.
2. Further, LDCs have been granted a specific pharmaceutical transition period wherein LDCs do not have to apply or enforce TRIPS provisions concerning patents[5] as well as test data protection[6] in relation to pharmaceutical products until 1 January 2033.[7] This period must also be extended pursuant to a duly motivated requested.
3. In addition, the WTO General Council has granted LDCs waivers until 1 January 2033 from obligations to make available a mechanism for filing patent applications for pharmaceutical products (mailbox) or to grant exclusive marketing rights to such applications.[8]
In view of the above, we stress that countries and their negotiators should recognize and uphold the current transition periods and waivers vis-a-vis intellectual property granted to LDCs as well as any further extensions of the same by the WTO. In fact, the text should encourage LDCs to fully utilize these transition periods. In addition, countries negotiating RCEP should not impose TRIPS-plus obligations on LDCs.
[1] [ASN/IN/NZ/CN propose: The Parties agree that the least-developed country Parties will not be obliged, with respect to pharmaceutical products, to implement or apply Paragraphs 1(a) of Article 4 (Patentable Subject Matter) and Paragraph 4 of Article 4 (Electronic Registration Regime) or to enforce rights provided for under these Paragraphs until 1 July 2021, without prejudice to the right of least-developed country Parties to seek other extensions of the transition periods as provided for in Article 66.1 of the TRIPS Agreement.]
[2] Pursuant to Article 66.1, such duly motivated requests “shall” be accorded.
[3] TRIPS Council Decision (IP/C/64) dated 11th June 2013. This exemption has been extended twice so far upon LDCs submission of requests.
[4] Article 66.1 of the TRIPS Agreement
[5] Section 5 of the TRIPS Agreement
[6] Section 7 of the TRIPS Agreement
[7] TRIPS Council Decision (IP/C/73) dated 6th November 2015
[8] WTO General Council Decision WT/L/971
