Monday, 10 December 2012

TRIPPING on IP Technical Assistance: Part I

This blog’s second year running campaign on the online visibility of the intellectual property (IP) offices in Africa makes it inevitable that it would share any news or thoughts on matters relating to these offices, the IP regime they operate in and generally, on the development of knowledge-based economies across Africa.

In a two-part post, this Leo would briefly shine a spotlight on the technical assistance provision under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). He is doing so in order to awaken thoughts on whether there is a real and serious “obligation” on developed-country WTO Members to advocate for the most favourable implementation of TRIPS and assist IP offices  across Africa upgrade to 21st century working standards.  (Afro Leo warns that internet access and basic infrastructure is still a working progress across the continent) Though this post focuses on the North-South cooperation, regard should be had to the recent drive towards South-South IP cooperation.

TRIPS and IP Technical Assistance
TRIPS did not just establish minimum standards of IP regime for developing and least-developed countries (D/LDCs) to follow (NB: when the latter’s transitional period expires), it also contains flexibilities which allow these countries to address critical socio-economic needs and at the same time, be TRIPS-compliant.  Under the same agreement is the so-called Article 67 obligation on developed-country WTO Members to provide technical and financial cooperation assistance to D/LDCs WTO members to enable them effectively utilise and implement TRIPS. In order to ensure compliance - or transparency, to be precise - with Article 67, developed-country WTO Members agree to publish records of their technical assistance.

Article 67: Technical Cooperation
“In order to facilitate the implementation of this Agreement, developed country Members shall provide, [on request and on mutually agreed terms and conditions], technical and financial cooperation in favour of developing and least-developed country Members. Such cooperation shall include assistance in the preparation of laws and regulations on the protection and enforcement of intellectual property rights [as well as on the prevention of their abuse, and shall include support regarding the establishment or reinforcement of domestic offices and agencies relevant to these matters], including the training of personnel.”

Questioning Article 67
To this Leo, the highlighted phrases in the above Article 67 are worth bearing in mind; but the salient ones which go to the heart of this post are:

(A) [on request and on mutually agreed terms and conditions]; and

(B) [as well as on the prevention of their abuse, and shall include support regarding the establishment or reinforcement of domestic offices and agencies relevant to these matters].

First in this two-part post, let us look at phrase (A). According to Article 67, D/LDCs have to actually put in a request for IP-related assistance and this would - as one would infer - be considered, negotiated and on the terms and conditions agreed by both parties (Afro Leo is not sure if the protocol involved in “request” is an onerous one, but it is clear that the policy is: “ask and it shall be given unto you”. But Afro Leo also understands the sayings: “A beggar has no choice” and “He who pays the piper calls the tune” are often true - if not always). Consequently, my thoughts on this part are as follows: 

(1)  if I were to buy into Afro Leo’s sayings, would it not be safe to conclude that D/LDCs really had no say in what they have been offered so far or what they can be offered in the future by developed-country WTO members?

(2) Is Article 67 really an obligation considering that there is no consequence if a developed-country WTO Member fails to provide assistance? Also, is it fair that it is rare, if not impossible, to bring a WTO dispute proceeding against a developed country such as the USA for not providing the requested assistance when the same USA can bring a similar action against a non-compliant country identified in its Special 301 Report?

(3) What sort of “mutual” terms and conditions are we talking about here: That technical assistance is offered on the condition that the recipient shall enact and/or enforce stringent IP laws/policies?; And, in whose interest is it to have IP laws on a par with international standards?

(4) Is there not an inherent inequality of bargaining power and obligations within this so-called “Article 67 commitment” since a developed-country WTO Member could refuse the terms and conditions put forward by a D/LDC? What options does a D/LDC have in such an event?

Readers, over to you for comments. Part II to follow.

2 comments:

Stephen Adams said...

Speaking as a non-lawyer, I would like to point out that certain technical cooperation, such as in the field of capacity building at LDC patent offices in areas such as search and examination, and IT infrastructure, are being supported by WIPO's TISC programme (see ) rather than by the WTO organs. Article 4 of the 1995 "Agreement Between the World Intellectual Property Organization
and the World Trade Organization" and Para. 225 of "Implications of the TRIPS Agreement on treaties administered by WIPO" (WIPO Pub. 464(E)) seem to make it clear that development activities can be carried out by either body.
I have been involved in the TISC programme to Kyrgyzstan and Kenya in recent months, and I know of professional colleagues who have been to Nigeria and Ethiopia in the same period. I am also aware of other WIPO consultants who have been involved in programmes on the legislative side, such as in the Caricom countries.

Kingsley Egbuonu said...

Stephen Adams, many thanks for your contribution. This piece is primarily looking at what individual WTO Member countries are doing for developing and least-developed countries in the area of IP technical assistance. Watch out for part II.