Transitional Arrangement Under Trips Agreement
Introduction
‘TRIPS’ Agreement is an acronym for the international legal agreement on Trade-Related Aspects of Intellectual Property Rights between all the member countries of the World Trade Organization (WTO) which states minimum standards to regulate the various types of IP by national governments.
The term transitional period in WTO is the time period necessary for WTO members (developed, developing, and least developed countries) in which they need to meet the obligations as given in the TRIPS Agreement. Transitional Arrangements which are the subject matter of this research article are stated in Part VI of the agreement and are reflected upon under Articles 65, 66, and 67. The paper does an analysis of the interpretation of the statute while reflecting upon its contemporary needs.
Interpretation of the provisions related to transitional arrangements
Part VI of the TRIPS Agreements deals with transitional arrangements. While Article 65 deals with the transition period of developed and developing countries, Article 66 deals with that of Least Developed Countries (LDCs). It is a compulsory clause which has automatic effect and doesn’t require any specific request or reservation.
- Article 65
Article 65.1 states that all WTO members are granted the general transitional period irrespective of their status. Subjected to the provision of para 2, 3 and 4 of Article 65, “no WTO nation is mandated to fully adopt the TRIPS provisions until one year after it enters the agreement from the date of its force (which is January 1st 1995) till January 1st 1996”. In extension to this, article 65.2 extends the period for developing countries, which extends it up to four more years, which makes it a total of 5 years, i.e., till 1 January 2000.
Article 65.3 states that the same period of 5 years of transition is available even for the countries in transition phase. However, the general rule of automatic effect of transition period is not the case here, and the transition countries need to comply with further conditions and undertake structural reforms of its intellectual property system.
Article 65.4 is a significant addition of transition period over that of 5 years as provided in Article 65.1 and 65.3. However, this is limited to the IPRs for protection of patent of product which is exclusively limited to areas of technology which were not protectable till 1 January 2000. It is applicable to pharmaceutical and agricultural chemical products etc. which were then not even protected. But the Article in connection with Article 70.8 as well as 70.9 mandates the developing members who invoke Article 65.4 to make a registering application during their transition period to get exclusive rights of their product patents.
Apart from it, Article 65.5 also has a great importance as it seems to be a preventive provision to ensure the WTO countries don’t roll backwards when transitional phase is going on and thus prevent them from giving lesser IP protection vis-à-vis their own domestic laws.
- Article 66
It acknowledges the special need and requirements of the LDCs and grants them 10 years for the implementation of TRIPS, while being in limit as per Article 3-5. LDC have general transition period till 1 January 2006; however, owing to special request made by the member LDCs in the TRIPS Council, it can be extended. Also, developed countries should give incentives to institutions of their territory to promote and encourage technology transfer to LDCs for their increased efficacy.
As held in TRIPS Council for the implementation of para 7 of the ‘Doha Declaration on the TRIPS Agreement and Public Health’, LDCs were held to be free from TRIPS disciplines on patents as well as undisclosed information in reference to the pharmaceutical products until 2016’. Also, LDCs have been granted waiver from granting EMRs for pharmaceutical products until 2016. This shows the considerate side of the agreement to accommodate the need of LDCs which definitely stand on a different pedestal from developed or developing countries.
However, needless to mention, the time frame for transition period should be in accordance with paragraph 1 or 2 of Article 65, and thus the general transition period for developing countries who join after 1 January 2005 should not be authorized for claiming the period, and neither for the LDCs joining after 1 January 2006.
- Article 67
It deals with technical and financial cooperation provided by developed countries to developing ones or LDCs. The article also states that the cooperation also extends to the preparation and enforcement of IP laws and prevention of IP abuse.
Recent development in respect to the transition period
- Extension in transition period and its effect on Myanmar
In an article titled “An analysis of the TRIPS Agreement”, the author has stated that provisions of subject matter in the agreement have its own importance. For the countries listed as LDCs in the UN list, the initial transitional period was of 11 years which even had the clause of extension of the period upon the LDC making a request. However, now it has been extended three-fold, and hence the period is until 1 July, 2034 or till a member country ceases to be a LDC, which so ever precedes.
As stated in the article titled “Transitional and institutional arrangements”, with the last minute consensus during TRIPS Council meeting, on June 29, 2021, this decision was made. But with this, Myanmar has raised questions because of its effect on its four substantive IP laws (of which one is trademark law) which are still pending and thus the country still remains out of compliance with the TRIPS requirement. Ministry of Commerce of Myanmar has stated the implementation of other three laws will take place only after the trademark law comes into effect. The simple reason for this is, waiver w.r.t pharmaceutical product now exempts LDCs from protecting the patents and test data till 1 January 2033 but countries’ ‘mailbox application’ cannot be examined by the country’s IP authority till the transition period ends. Due to the extension, full implementation of Myanmar’s IP Law is delayed to which no date is yet fixed.
Conclusion
If we consider the adaptation efforts that a developing and LDC country needs to take to implement TRIPS obligations, the importance of transitional period becomes enormous because unlike developed countries they do not have proper ecosystem to protect IP abuse on national or international levels and thus need a proper safeguard mechanism. The development of Japan and Korea in such short duration of time and their becoming tech giants is a live example of how the proper framework of IP protection can help to grow the IPR based industry innovate more and thus achieve new heights in the sector. This author is of the opinion that such transitional arrangements are very crucial for the implementation of any agreement because it is impractical to enforce any new law as soon as it is made; also it is not possible to encourage innovations and further developments in Developing Countries and Least Developed Countries (LDCs) without putting them on an equal pedestal (vis-a-vis article 66) to that of developed countries in terms of opportunities.
Author: Ms. Ishika Gupta, a student of Symbiosis Law School (Noida), in case of any queries please write back us via email at support@ipandlegalfilings.com or contact us at IP And Legal Filings.
