On the whole, there is a widespread acknowledgement that there are few, if any, benefits for developing countries like India even in the long-run44. Further, there remain significant uncertainties as to the benefits that developing countries can expect to reap from the existing TRIPS Agreement in the medium and long term. It might, therefore, be expected that the TRIPS Agreement makes significant concessions to developing countries as has been the practice in GATT and as agreed in some other Uruguay Round Agreements 45. In fact, the TRIPS Agreement gives little flexibility to member states as well as developing countries to implement commitments in a way suited to their socio-economic needs.
However, first, the preamble specifically recognises the special situation of least developed countries and the need to give them sufficient flexibility in implementing their TRIPS commitments. It also recognises that development and technological progress are two of the particularly relevant public policy objectives of IPR system that countries may wish to emphasise. Secondly, there are a few substantive provisions that are directly or indirectly favourable to developing countries. This includes the provision concerning plant variety protection of Article 27(3)b, as mentioned earlier. It also includes Article 66(2), which recognises the need to take specific measures to promote technology transfers to least developed countries. In both these cases, concerned countries have, however, found it difficult to take advantage of the flexibility, which will be discussed later in this chapter. Thirdly, one of the main concessions granted to developing countries has been at the level of implementation deadlines. All countries take similar commitments, but some get a longer period to prepare implementation. Implementation of the common minimum standards of protection was, thus, scaled since the inception of the TRIPS Agreement. Developed countries had one year from the entry into force of the Agreement to put their systems in full compliance with their commitments, developing countries had five years and least developed countries, ten years. A few more specific cases were taken into account both in the original agreement or later on (cited in Cullet 2005), for example, medical patents for least developed countries. In this case, the Doha Ministerial Conference agreed to extend the deadline by another ten years to 1 January 2016 46. This was confirmed by the Council for TRIPS in 2002 47.
Notes and References
44 Nuno Pires De Carvalho. 2002. The TRIPS regime of patent rights . London : Kluwer Law International. Here, Carvalho argues that higher standards of protection for patents are a trade-off that ensures that developing countries are entitled to lower tariffs on their exports to developed country markets.
45 See, for example, Article 6, Agreement on Agriculture, Marrakech, 15 April 1994, in World Trade Organisation, The legal texts: the results of the Uruguay Round of Multilateral Trade Negotiations (Cambridge: Cambridge University Press, 1999).
46 Paragraph 7, Doha Health Declaration.
47 Extension of the Transition Period under Article 66.1 of the TRIPS Agreement for Least-Developed Country Members for Certain Obligations with Respect to Pharmaceutical Products, Decision of the Council for TRIPS, 27 June 2002, WTO Doc IP/C/25. See also Least-Developed Country Members: Obligations under Article 70.9 of the TRIPS Agreement with Respect to Pharmaceutical Products, Decision of the General Council, 8 July 2002, WTO Doc WT/L/478.