Transitioning to Intellectual Property: How can the WTO integrate Least-Developed Countries into TRIPS?

Despite the looming expiration of the extended transition period under Article 66.1 of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) on 1 July 2013, most least-developed countries (LDCs) have not made significant progress in implementing the TRIPS Agreement. WTO Members have accepted this reality and are currently considering another extension of the transition period. In the coming months, the discussions in the TRIPS Council on how to meaningfully integrate the poorest countries into the international system for the protection of intellectual property will intensify. This working paper seeks to assist these discussions by first providing a comprehensive legal analysis of the various rights and obligations for LDCs, developed country Members and international organizations under the transitional arrangements in the TRIPS Agreement, subsequent WTO legislation and in particular the TRIPS Council Decision of 2005. Next, the authors identify several major shortcomings in the priority needs assessment process as set out in the TRIPS Council Decision of 2005 and argue that there is a strong need for greater coordination on the national and multilateral level in order to unlock increased technical and financial assistance for LDCs. The working paper then concludes that an unconditional second extension of the transition period would be detrimental to LDC’s implementation of TRIPS and might also undermine the credibility of the entire multilateral IP regime. Instead, the authors propose a variety of alternative avenues to more successfully integrate LDCs into the international IP system.