The Implementation Game

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The Implementation
Game
The TRIPS Agreement and the Global
Politics of Intellectual Property Reform
in Developing Countries

Carolyn Deere

1
3
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British Library Cataloguing in Publication Data
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Library of Congress Cataloging in Publication Data
Deere, Carolyn.
The implementation game : the trips agreement, developing countries and the
global politics of intellectual property / Carolyn Deere.
p. cm.
Includes bibliographical references and index.
ISBN 978–0–19–955061–6
1. Agreement on Trade-Related Aspects of Intellectual Property Rights (1994)
2. Intellectual property (International law) 3. Foreign trade regulation.
I. Title.
K1401.A41994D44 2008
346.04’8–dc22 2008027666
Typeset by SPI Publisher Services, Pondicherry, India
Printed in Great Britain
on acid-free paper by
CPI Antony Rowe Ltd., Chippenham, Wiltshire

ISBN 978–0–19–955061–6

1 3 5 7 9 10 8 6 4 2
To my family
 Preface

This book is the product of both scholarly research and a decade of profes-
sional involvement in global policy debates on trade, intellectual property
(IP), and sustainable development. My goal has been to write a book that
captures what those closest to TRIPS implementation know first hand while
employing scholarly methods to help make sense of that experience. The out-
come is, I hope a book that both appeals to those working in the policy arena
and is compelling to scholars of international relations, political economy and
international law.
My interest in IP debates began as a Warren Weaver Fellow at the Rockefeller
Foundation in New York. At that time, Susan Sechler gave me the opportunity
to work with Anthony So, Peter Matlon, and Joan Shigekawa to build a grant-
making portfolio to promote a fairer course for international intellectual prop-
erty policy. A central part of that initiative was the Bellagio Series on Intellec-
tual Property and Sustainable and Development, which we launched in 2002.
In the subsequent years, the Bellagio Series brought together policymakers,
experts, diplomats, activists, and industry representatives with a variety of
different perspectives on global IP policy. I had the great privilege of attending
many of those meetings and this book draws extensively on conversations
with fellow participants. I left the Rockefeller Foundation convinced of the
need to bring greater transparency and accountability to global IP debates.
After discussion with colleagues and friends, I founded Intellectual Property
Watch, which is now the leading reporting service on international IP policy
debates. My research subsequently benefited greatly from its coverage of IP
news and from conversations with its Editor-in-Chief, William New.
This book also reflects personal experience of several hundred conferences,
policy dialogues, strategy meetings, and informal gatherings on IP policy in
developed and developing countries. During the course of this research, I also
attended several WTO ministerials and regularly observed WIPO meetings on
the WIPO Development Agenda and other issues. My analysis incorporates
personal observations of the political dynamics of these processes and the
players in them.
My research also benefited greatly from discussions with colleagues at
the International Centre for Trade and Sustainable Development (ICTSD) in
Geneva where I serve as a Resident Scholar. My role as Chair of the Board of

vi
 Preface

3D → Trade–Human Rights–Equitable Economy, and participation in an inter-

national commisson (sponsored by the UK Royal Society of Arts) that drafted
the Adelphi Charter on Creativity, Innovation and Intellectual Property each
yielded useful opportunities to share ideas with experts at the cutting edge of
debates on intellectual property.
Among the many colleagues and friends whose ideas contributed to this
book, I am particularly grateful to Ahmed Abdel Latif, Alejandro Argumedo,
Leonardo de Athayde, Johannes Bernabe, Thiru Balasubramaniam, James
Boyle, Carlos Correa, Maria Carmen Dominguez, Vera Franz, Brewster Grace,
Chien Yen Goh, Rashid Kaukab, Soledad Leal, Faizel Ismail, Bernice Lee, Jamie
Love, Ricardo Meléndez-Ortiz, Catherine Monagle, Sisule Musungu, Maria
Julia Oliva, Davinia Ovett, Manon Ress, Pedro Roffe, Preeti Saran, Anthony
So, Christophe Spennemann, Matthew Stilwell, Geoff Tansey, David Vivas,
and Martin Watson. The analysis presented in this book also draws on over
150 interviews with individuals actively involved in global IP policy debates
and TRIPS implementation. Appendix 1 lists all interviewees except those
who requested anonymity. In the text, I only cite those who gave advance
permission.
This book builds upon work completed for my doctorate in 2006. The
development of my argument owed a great deal to discussions with my two
doctoral supervisors at the University of Oxford, Andrew Hurrell and Kalypso
Nicolaïdis, who provided wonderful advice, feedback, and support through-
out the three years. Together, their knowledge of international relations
scholarship served as a constant reminder that to study at Oxford is a great
privilege. I also thank the Ford Foundation, Oxford University Press and the
Universities UK Overseas Students Award Scheme for their financial support
and University College for granting me a Chellgren Scholarship.
At Oxford, I have the very good fortune to work with colleagues at the
Global Economic Governance Programme (GEG) and with its Director, Ngaire
Woods. In 2007, while working to complete this book, I launched the Global
Trade Governance Project at GEG, and was spurred on by the collegiality
of Mayur Patel and Arunabha Ghosh. In the course of my research, I also
benefited greatly from thought-provoking exchanges with Frederick Abbott,
Diana Barrowclough, James Boyle, Rashad Cassim, Carlos Correa, Jeremy de
Beer, Peter Drahos, Graham Dutfield, Peter Evans, Suzy Frankel, Richard Gold,
Robert Howse, Christopher May, Neil Netanel, Ruth Okediji, John Odell, Louis
Pauly, Susan Sell, Kenneth Shadlen, Richard Steinberg, Robert Wade, Robert
Wolfe, and Peter Yu, among others.
For reading various drafts of this book, I extend great thanks to Isalene
Bergamaschi, Alec Birkbeck, James Boyle, Caroline Dommen, Donna Green,
Zoe Goodman, Maria Ivanova, Kaitlin Mara, William New, John Odell, Ricardo
Meléndez-Ortiz, Catherine Monagle, Mayur Patel, Matthew Stilwell, Susan
Sell, Ruth Okediji, Pedro Roffe, Gina Vea, David Vivas, Ngaire Woods, and

vii
Preface

Caitlin Zaino. I am especially grateful to Ahmed Abdel Latif who read and
commented on the full manuscript. I also benefited tremendously from com-
ments provided by the examiners of my thesis and from an anonymous
reviewer for Oxford University Press. Nicholas Duston, Alicia Santos-Martin,
Pravir Palayathan, Priyanka Debnath, Tomas Felcman, Joshua Miller, Narae
Lee, Allison Tovey, and Eliot Pence all provided valuable research assistance.
Andrew Lowe served as valuable long-distance proofreader. At Oxford Univer-
sity Press, I also extend my thanks to Dominic Byatt, Lizzy Suffling, Louise
Sprake, and Aimée Wright for guiding this manuscript to completion. The
responsibility for any errors is of course mine.
Looking back, I thank Rolf Willmann for encouraging me to pursue a
doctorate, Ram Manikkalingam for interpreting my first musings back in New
York, and Sakiko Fukuda-Parr for spurring me to apply. Nancy Birdsall, Gordon
Conway, and Daniel Esty each kindly supported my application to Oxford.
The completion of this book would long since have faltered without the
encouragement of wonderful friends. In Oxford, I have been grateful for
the friendship of Arunabha Ghosh, Leondardo Martinez, Mayur Patel, Kate
Raworth, Kevin Watkins, and especially Ngaire Woods. From across the vast
oceans, I am lucky to have unfailing support from Donna Green, Catherine
Monagle, Maria Ivanova, Joanna Roche, and Allison Tovey. Closer to home,
I am deeply grateful to my friends in Geneva, especially Diana Barrow-
clough, Caroline Dommen, Erica Harper, Leslie Jones, Richardo Meléndez-
Ortiz, Matthew Stilwell, and Gina Vea. I owe a special debt to Ahmed, who
promised to show me the North African desert sky when my doctorate was
completed, and to Gina for sharing with me the place where the angels play.
Throughout the process of writing my doctorate and then completing this
book, my parents were amazing. My father was my long-distance technical
support team. My mother showed extraordinary patience and attention to
detail in helping with my bibliography (in the process becoming one of the
world’s few experts on Endnotes!). I cannot thank them enough.
Finally, I thank my amazing partner, Anthony Alexander, for his encourage-
ment, patience, and love as the hours I spent finishing this book turned into
months. This book is dedicated to Alec and to my parents.
February 2008

viii
 Contents

List of Figure and Tables xi

List of Abbreviations xiii

1. The TRIPS Implementation Game: A Fight for Ideas 1

1.1. An Introduction to the Politics of IP and TRIPS 5
1.2. Variation in TRIPS Implementation 12
1.3. Existing Literature and Popular Narratives 14
1.4. Explaining Variation in TRIPS Implementation 17
1.5. Why This Book Matters 21
1.6. Methods and Sources 24
1.7. Scope 25
2. Developing Countries in the Global IP System 34
2.1. The Colonial Era: Variation and External Control 34
2.2. The Post-colonial Era: Reform and Resistance 37
2.3. The Counteroffensive for Stronger IP Protection 46
2.4. Implementation Amidst Contestation 56
3. Variation in TRIPS Implementation (1995–2007) 64
3.1. The TRIPS Outcome 64
3.2. Variation in the Timing of TRIPS Implementation 70
3.3. Variation in IP Standards and Use of TRIPS Flexibilities 74
3.4. A Typology of Variation 97
3.5. An Economic Explanation? 99
3.6. The Case for Political Analysis 104
4. Post-TRIPS Tensions and Global IP Debates 113
4.1. The Push for TRIPS-Plus 114
4.2. The Resurgence of Developing Country Confidence 118
4.3. Growing Complexity in the Global IP System 129
4.4. Expanding Teams of Players 133
4.5. Conclusion 142
5. International Pressures on Developing Countries 150
5.1. Economic Pressure 151

ix
Contents

5.2. Resistance and Retaliation 164

5.3. Ideational Power 167
5.4. Capacity building 180
5.5. Conclusion 186
6. The Developing Country Dimension: How National
Politics Mattered 196
6.1. Government Capacity on IP Decision-Making 197
6.2. Public Engagement 205
6.3. Government Coordination 211
6.4. Mini Studies of Variation 220
6.5. Conclusion 232
7. TRIPS Implementation in Francophone Africa 240
7.1. IP Reforms in the Poorest Countries: Expectations and Reality 243
7.2. From Colonization to the Revised Bangui Agreement 245
7.3. The Revised Bangui Agreement 252
7.4. The Bangui Revision Process 260
7.5. Capacity-building and Delegation in a Policymaking Vacuum 278
7.6. Conclusion 286
8. The Implementation Game and the Variation Puzzle 303
8.1. Global IP Politics 304
8.2. International Pressures 305
8.3. The National Dimension 309
8.4. Further Findings on Variation 315
8.5. Developing Countries in Evolving Global IP Debates 316
8.6. A Development-Oriented IP Agenda 320
Appendices
1. Selection of interviews 325
2. Timeline of international IP agreements 330
3. Examples of increase in IP standards in developing country
WTO members from 1988 to 2007 331
4. Variation in use of copyright flexibilities by selected
developing country WTO members in the Asia-Pacific 333
5. Examples of developing countries with bilateral agreements
that include IP provisions 335
6. Variation in TRIPS-plus provisions of selected U.S. FTAs 338
7. U.S. Special 301 pressure on developing country WTO
members and WTO disputes filed (1995–2007) 341

Bibliography 343
Index 396

x
 List of Figure and Tables

Figure

3.1. Variation in IP protection among selected developing countries by

GDP per capita 100

Tables

2.1. U.S. trade action against key developing countries active in the GATT
negotiations (1985–93) 53
3.1. TRIPS transition periods 68
3.2. Examples of variation in timing of TRIPS legislative reforms 71
3.3. Examples of variation in choice of exhaustion regime for industrial property 76
3.4. Examples of variation in use of exclusions and exceptions to patent rights 79
3.5. Examples of variation in grounds for granting compulsory licences 83
3.6. Examples of variation in provisions on data protection for new
chemical entities in developing countries 85
3.7. Comparison of plant variety protection under UPOV and patent law 87
3.8. Examples of variation in approaches to plant variety protection 89
3.9. Examples of copyright limitations and exceptions available in TRIPS, Berne 90
3.10. Variation in copyright term among developing country WTO members 93
3.11. A typology of overall variation in IP standards 98
3.12. Comparison of approach to TRIPS implementation and GDP per
capita for selected developing country WTO members 101
4.1. Developing country TRIPS-related WTO submissions by country and
topic (1995–2007) 121
4.2. Developing country TRIPS-related WTO submissions by year and
topic (1995–2007) 124
5.1. Examples of TRIPS-plus provisions in bilateral trade agreements 152
5.2. Developing countries with TRIPS-plus terms of WTO accession 156
5.3. WTO TRIPS disputes involving developing countries 157

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List of Figure and Tables

7.1. Ministries responsible for industrial property in OAPI members 252

7.2. Comparison of the 1977 and 1999 Bangui Agreement 254
7.3. Examples of TRIPS-plus standards in the revised Bangui Agreement 256
7.4. Date OAPI members ratified the revised Bangui Agreement 257
7.5. Timing of WTO Trade Policy Reviews of OAPI members (1995–2007) 264

xii
 List of Abbreviations

ACP African, Caribbean and Pacific Group of countries

ACT UP AIDS Coalition to Unleash Power
ACWL Advisory Centre on WTO Law
AGCC Arab Gulf Cooperation Council
AGI Association of Ghana Industries
AGILE Accelerating Growth, Investment, and Liberalization with Equity
AGOA Africa Growth and Opportunity Act
AIDS Acquired Immune Deficiency Syndrome
AIPPI Association internationale pour la protection de la propriété industrielle
ANCOM Andean Community of Nations
ANPII l’Association Nigérienne pour la promotion de l’invention et de
l’innovation
APPIA l’Association pour la promotion de la propriété intellectuelle en Afrique
ARCT African Regional Centre for Technology
ARIPO African Regional Intellectual Property Organization
ASEAN Association of South East Asian Nations
AU African Union
BIO Biotech Industries Organization
BIP Bilateral Intellectual Property Agreement
BIRPI United International Bureaux for Intellectual Property Protection
BIT Bilateral Investment Treaty
BSA Business Software Alliance
CAFTA Central American Free Trade Agreement
CBD Convention on Biological Diversity
CCTT Code of Conduct on the Transfer of Technology
CEEAC Economic Community of Central African States
CEMAC Central African Economic and Monetary Community
CFA Communauté Financière Africaine
CIEL Center for International Environmental Law

xiii
List of Abbreviations

CIPIH Commission on Intellectual Property Rights, Innovation and Public

Health
CIPR UK Commission on Intellectual Property Rights
CISAC International Confederation of Societies of Authors and Composers
CLEA Collection of Laws for Electronic Access
COM/AOC Conference of Ministers of Agriculture of West and Central Africa
COMESSA Community of Sahel-Saharan States
CPTech Consumer Project on Technology (now known as Knowledge Ecology
International (KEI))
DAI Development Alternatives, Inc
DFID Department for International Development (UK)
DHHS Department of Health and Human Services
DMCA Digital Millennium Copyright Act
DSU Dispute Settlement Understanding
ECAP European-ASEAN Intellectual Property Rights Cooperation Programme
ECOSOC United Nations Economic and Social Council
ECOWAS Economic Community of West African States
EFF Electronic Frontiers Foundation
EFPIA European Federation of Pharmaceutical Industries and Associations
EFTA European Free Trade Area
ENP European Neighbourhood Policy
EPA Economic Partnership Agreements
EPO European Patent Office
ETC Action Group on Erosion, Technology and Concentration
FAO UN Food and Agriculture Organization
FDI Foreign Direct Investment
FTA Free Trade Agreement
FTAA Free Trade Area of the Americas
G7 Group of Seven Industrialised Nations
G77 Group of 77
GATS General Agreement on Trade in Services
GATT General Agreement on Tariffs and Trade
GCC Gulf Cooperation Council
GDP Gross Domestic Product
GMO Genetically Modified Organism
GRAIN Genetic Resources Action International
GSK GlaxoSmithKline

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 List of Abbreviations

GSP Generalized System of Preferences

GTZ Gesellschaft für Technische Zusammenarbeit
HAI Health Action International
HIV Human immunodeficiency virus
IAC Industry Advisory Commission
ICAM l’Initiative Camerounaise pour l’accès aux médicaments
ICC International Chamber of Commerce
ICSIR India’s Council for Scientific and Industrial Research
ICTSD International Centre for Trade and Sustainable Development
IDA International Development Association
IDRC International Development Research Centre
IFAC Industry Functional Advisory Committee
IFPMA International Federation of Pharmaceutical Manufacturers Associations
IFPI International Federation of the Phonographic Industry
IGIP Inter-ministerial Group on IP
IIPI International Intellectual Property Institute
IISD International Institute for Sustainable Development
IMF International Monetary Fund
INDECOPI Peruvian Intellectual Property Office
INAO Institut national des appellations d’origine
INPI French Intellectual Property Office
IO International Organization
IP Intellectual Property
IPC Intellectual Property Committee
IPGRI International Plant Genetic Resources Institute
IPO Intellectual Property Office
IPP Intellectual Property Protection
IPR Intellectual Property Rights
ITPGRFA International Treaty on Plant Genetic Resources
ITU International Telecommunications Unions
JICA Japanese International Cooperation Agency
JIPO Jamaican Intellectual Property Office
KEI Knowledge Ecology International (formerly CPTech)
KIPO Korean Intellectual Property Office
KMA Kenya Medical Association
LAC Latin America and the Caribbean
LDC Least-Developed Country

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List of Abbreviations

MAI Multilateral Agreement on Investment

MERCOSUR Mercado Común del Sur
MFN Most-Favoured Nation
MNC Multinational Corporation
MOU Memorandum of Understanding
MSF Médecins Sans Frontières
NAFTA North American Free Trade Agreement
NEPAD New Partnership for Africa’s Development
NEPHAK Network for people living with HIV/AIDS in Kenya
NGO Non-governmental Organization
NIEO New International Economic Order
NMA National Medical Association
OAMPI Office Africain et Malgache de la propriété industrielle
OAPI Organisation Africaine de la propriété intellectuelle
OAS Organization of American States
OCAM Organization commun Africain et Malgache
OAU Organization of African Unity
OECD Organization for Economic Cooperation and Development
OHADA Organization for the Harmonization of Business Law in Africa
PACHA Presidential Advisory Council on HIV/AIDS
PCIPD Permanent Committee on IP and Development
PCT Patent Cooperation Treaty
PhRMA Pharmaceutical Researchers and Manufacturers of America
PIC prior informed consent
PMA Pharmaceutical Manufacturers Association
PSRP Poverty Reduction Strategy Papers
PVP Plant Variety Protection
QUNO Quaker United Nations Office
RAFI International Rural Advancement Foundation (now Action Group on
Erosion, Technology, and Concentration (ETC))
RAME Réseau Accès aux Médicaments Essentiels
SACU Southern African Customs Union
SAG Government of South Africa
SNL Structure Nationale de Liaison (National Liaison Structure)
SWAK Society for Women and AIDS in Kenya
TAC The Treatment Action Campaign
TAPWAK The Association of People living with AIDS in Kenya

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 List of Abbreviations

TK Traditional Knowledge
TIFA Trade and Investment Framework Agreement
TNC Transnational Corporation
TPA Trade Promotion Agreement
TPM technological protection measures
TPR Trade Policy Review
TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights
TWN Third World Network
UAM Union Africaine et Malgache
UCC Universal Copyright Convention
UNAIDS Joint United Nations Programme on HIV/AIDS
UNCTAD United Nations Conference on Trade and Development
UNDP United Nations Development Programme
UNECA United Nations Economic Commission for Africa
UNEP United Nations Environment Programme
UNESCO United Nations Educational, Scientific and Cultural Organization
UNICE Union of Industrial and Employers’ Federations of Europe
UNIDO United Nations Industrial Development Organization
UPOV International Union for the Protection of New Varieties of Plants
USAID U.S. Agency for International Development (now USTDA)
USITC U.S. International Trade Commission
USPTO U.S. Patent and Trademark Office
USTDA U.S. Trade and Development Agency
USTR U.S. Trade Representative
WAEMU West African Economic and Monetary Union
WCO World Customs Organization
WCT WIPO Copyright Treaty
WEF World Economic Forum
WGTT Working Group on Technology Transfer
WHA World Health Assembly
WHO World Health Organization
WIPO World Intellectual Property Organization
WOFAK Women Fighting AIDS in Kenya
WPPT WIPO Performances and Phonograms Treaty
WTO World Trade Organization

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 1
The TRIPS Implementation Game:
A Fight for Ideas

The World Trade Organization (WTO) Agreement on Trade-Related Aspects of

Intellectual Property Rights (TRIPS) is the centrepiece of the global system
of rules, institutions, and practices governing the ownership and flow of
knowledge, technology, and other intellectual assets. TRIPS emerged from the
Uruguay Round of the General Agreement on Tariffs and Trade (GATT) negoti-
ations (1986–94), and was a victory for multinational companies determined
to raise international intellectual property (IP) standards and boost IP protec-
tion in developing countries. During the TRIPS negotiations, industry lobby-
ists persuaded the world’s economic powers to wage a protracted campaign
against developing countries opposited to the deal. Developing countries
protested that the Agreement would consolidate corporate monopolies over
the ownership of ideas, exacerbate the north-south technology gap, and per-
versely speed the transfer of capital from developing to developed countries.1
They argued that stronger IP standards would harm their development
prospects2 and that they were ill-equipped to harness any purported benefits.3
The conclusion of TRIPS represents a revolution in the history of IP pro-
tection. By establishing a universal, comprehensive, and legally binding set
of substantive, minimum IP standards, TRIPS both strengthens and supple-
ments the earlier patchwork, of international IP agreements.4 To meet these
standards, TRIPS calls on all of the WTO’s 152 members5 to take action
within their borders.6 This requirement is particularly onerous for developing
countries as TRIPS demands far higher standards of IP protection than most
would otherwise provide.
For developing countries, a second battle began after the TRIPS negotia-
tions ended. As developing countries struggled to complete extensive reforms
of IP laws, administration and enforcement, they faced mounting pressures
from developed countries, multinational corporations, and some interna-
tional organizations, to adopt even higher IP standards than TRIPS requires
and to abstain from using the flexibilities available in TRIPS.

1
The Implementation Game

Amidst growing debates on globalization and inequality, TRIPS became a

symbol of the vulnerability of developing countries to coercive pressures from
the most powerful developed countries and galvanized critics regarding the
influence of multinational corporations on global economic rules. While IP
advocates insisted that stronger IP protection could serve as a ‘power tool for
development’,7 a host of prominent international economists, such as Jagdish
Bhagwati and Joseph Stiglitz, questioned the place of TRIPS in the WTO
system (and continue to do so).8 TRIPS triggered an intense global debate
on the relationship between IP regulation and development. In 2008, the
chief economics commentator for the Financial Times described constraints
upon developing countries in the area of IP as ‘unconscionable’.9 Cambridge
economist Ha-Joon Chang, among others, emphasized the costs to developing
countries of introducing ‘irrelevant or unsuitable laws’ that restrict access
to technologies and knowledge.10 Developing countries argued that TRIPS
ignored the diversity of national needs and forced them to sacrifice the ‘policy
space’11 that richer countries had harnessed in early stages of their growth.
Given the vocal concern expressed by developing countries during the
TRIPS negotiations and after it came into force, one would reasonably expect
them to have taken full advantage of the possibilities the Agreement provides
to tailor implementation in response to national economic and social priori-
ties. Careful examination of the empirical evidence from 1995 to 2007, how-
ever, reveals a more complex picture of how developing countries responded
to this room for manoeuvre. There was striking diversity in the approach
developing countries took to the implementation of TRIPS rights and obliga-
tions. Most notably, developing countries took varying advantage of the legal
safeguards, options, and ambiguities in TRIPS, now commonly referred to as
the TRIPS ‘flexibilities’.12 Further, a surprising number of developing country
WTO members implemented even higher IP standards than those required
by TRIPS. By contrast, some developing countries took advantage of a range
of TRIPS flexibilities, but their approaches varied according to the type of IP
(e.g. copyright or industrial property). Further, many developing countries
missed their deadlines for bringing their laws into conformity with TRIPS,
thus effectively claiming more flexibility than provided for in the Agreement.
Across the developing world, governments struggled to upgrade institutional
capacity and resources to effectively administer and enforce their IP laws.
Why did developing countries ‘draw the line’ differently when implement-
ing TRIPS? Why did so many developing countries, but curiously not all,
implement reforms that went beyond minimum TRIPS requirements? What
explains the apparent contradiction between what most developing countries
said about TRIPS and what many did in respect of its implementation?
This book advances the first scholarly effort to explain the variation in
TRIPS implementation across the full spectrum of the WTO’s developing
country members, almost a third of which are least developed countries

2
 The TRIPS Implementation Game: A Fight for Ideas

(LDCs).13 In so doing, I build on a fragmented but growing literature on

the politics of global IP regulation and national IP reforms as well as the
work of scholars of international political economy and compliance with
international law. To date, the literature on TRIPS implementation has mostly
provided legal description and analysis. Where political analyses exist, they
usually focus on explaining TRIPS-‘plus’ reforms in selected developing coun-
tries. This book shares an interest in why IP laws in so many developing coun-
tries exceed TRIPS requirements, but its purpose is broader: that is, to explain
why we see such variation across the WTO’s developing country membership
in how governments approached TRIPS implementation from 1995 until the
end of 2007.
The reasons for variation in TRIPS implementation defy any one parsimo-
nions explanation. In this book, I provide an account that is richer, more
comprehensive, and more subtle than popular narratives about the reasons for
TRIPS-plus outcomes. The first challenge is to unpack the range of actors and
dynamics involved, and examine how their interplay contributed to variation
in TRIPS implementation. The second is to balance a search for general con-
clusions with a recognition of the complexity of global IP politics, the broad
scope of TRIPS, and the diversity of the group of countries under examination.
This book advances the metaphor of TRIPS implementation as a complex
political game. Developed and developing country governments were the
key players, flanked by teams comprising a range of stakeholders, including
multinational corporations, non-governmental organizations (NGOs), inter-
national organizations (IOs), industry lobby groups, and academics. Within
governments, a range of agencies were active. Trade officials and the staff
of national IP offices played particularly critical roles. Each of the players
devised strategic moves, appealed to both spectators and referees to influence
ideas about ‘fair play’, advanced different interpretations of the rules, and
tried to get away with whatever they could. This in turn demanded a mix of
psychology, rhetoric, strategy, technical skill, power, and endurance.
The TRIPS implementation game was intensely played because the eco-
nomic and social stakes were high and the playing field was deeply unequal.
The final TRIPS deal left both proponents and detractors dissatisfied, pro-
voking post-agreement efforts from both sides to revise the contested text,
sway its interpretation, and influence how it was implemented. The impacts
of strengthened IP protection were hotly debated. Further, across the period
under study, IP interests evolved and diversified in both developed and devel-
oping countries. A dynamic interaction ensued between debates regarding
possible revisions to TRIPS and the implementation of the Agreement at the
national level.
At the centre of these debates were different interpretations of what consti-
tutes legal, TRIPS-consistent behaviour. Like most of the negotiated outcomes
embodied in international laws, TRIPS contains many ambiguities and a

3
The Implementation Game

variety of inbuilt options. Further, the negotiating history of many TRIPS

provisions is disputed. Laws and actions which some developing countries
deem consistent with TRIPS obligations, developed countries consider TRIPS-
‘minus’. Conversely, developing countries view some developed country inter-
pretations of what constitutes TRIPS-‘minimum’ behaviour as TRIPS-plus. As
developing countries took steps to implement TRIPS, their questions were
many: What would constitute adequate implementation? How much ‘wiggle
room’ could they legally exploit?
In this political context, explaining variation in TRIPS implementation
demands attention to: (a) the interplay between evolving global debates on
IP and national reforms to implement TRIPS; and (b) the interaction between
international pressures on developing countries and the political dynamics
within them. In the chapters that follow, I specify the key actors and trends
in global IP debates, highlight where the interplay between negotiation and
implementation was most intense, and identify which factors governed the
interaction between international and national political dynamics to generate
different kinds of variation in implementation. The evidence shows that
explanations differ according to the particular aspects of TRIPS under study
and whether the focus is on the use of particular flexibilities; the strength
of standards overall; or the timing of implementation, administration, or
enforcement. Several broad findings also emerge which I briefly foreshadow
here.
First, accounting for variation demands a nuanced consideration of the
international pressures on developing countries, one that delineates differ-
ent forms and sources of power. Pressures for stronger IP protection were a
ubiquitous part of the global political landscape for TRIPS implementation.
Economic pressures exerted by developed countries and industries had a
decisive impact on TRIPS implementation in some countries, but was not
exercised equally across them. Further, across the developing world, countries
faced more subtle forms of power. IP advocates made strategic use of ideas
and knowledge to shape perceptions and understandings of what kind of IP
reforms were appropriate, possible, and would garner economic and political
rewards. Their opponents also harnessed the power of ideas, mounting a coun-
tervailing campaign to persuade countries to use TRIPS flexibilities. Capacity
building was a key vehicle through which this ideational power struggle
played out and had a decisive impact on the decisions many countries took.
Second, economic circumstances and political dynamics at the national
level made a significant contribution to variation in TRIPS implementation.
The developing countries that took most advantage of TRIPS flexibilities were
those that drew on a broad range of ministries, stakeholders, and expertise,
and that devised a policy framework through which they approached TRIPS
implementation. The countries that had participated most in TRIPS nego-
tiations had the greatest technical expertise on the Agreement and made

4
 The TRIPS Implementation Game: A Fight for Ideas

the most targeted efforts to use its flexibilities. In short, the politics within
developing countries made a difference to TRIPS implementation: there was
some room for agency and manoeuvre. Alongside the many instances where
TRIPS-plus pressures prevailed largely unchallenged, there were important
cases of resistance, some of which succeeded. Importantly, as economic and
social circumstances changed and the configuration of domestic interest
groups evolved, some countries perceived stronger IP protection to serve their
interests in particular sectors.
This chapter presents an overview of the book. It begins with an intro-
duction to historical debates on IP, the emergence of a developing country
voice on international IP regulation, and the rocky, political road to TRIPS.
It then introduces the Agreement and several core elements of variation in
developing country approaches to its implementation, emphasizing variation
in timing and in the use of TRIPS flexibilities. After a brief review of relevant
literature, I set out my analytical framework for explaining variation in TRIPS
implementation, and preview this book’s contribution to the international
relations literature and global IP policy debates. To conclude, I provide a note
on methods, sources, and several boundaries that delimit the scope of this
book.

1.1. An Introduction to the Politics of IP and TRIPS

1.1.1. A History of Contestation

Debates between developed and developing countries over TRIPS reflect ten-
sions that inhere in the provision of IP rights and which have accompanied
IP regulation since its inception. Laws on IP are one of the central means
through which governments manage the ownership, availability, and use of
ideas and technologies, and the distribution of the profits they generate. IP
laws have a bearing on a range of critical and sometimes competing areas
of public policy, from industrial and health policy to cultural, agricultural,
and education policy. They can impact international competitiveness; the
pace and focus of innovation; and affordable access to new technologies,
knowledge, and creative works.
The origins of formal IP protection date back to fifteenth-century Venice
when the first patents were issued and to the late seventeenth century when
England laid the foundations for the first copyright laws.14 Since then, the
range of IP rights has expanded. Patents protect the underlying ideas used
for industrial products or processes. Copyrights protect forms of expression,
such as written materials and artistic works, whereas trademarks protect
names and symbols associated with particular products and services. Through
these and other IP rights (including geographical indications, plant breeders’
rights, and utility models), governments grant inventors or creators private

5
The Implementation Game

rights to use, transfer, or profit from their work for a specified period of time.
These rights enable IP holders to legally control (with certain conditions)
the circumstances under which others can use their ‘products of the mind’.15
Once the term of protection ends, patented inventions and copyrighted
works fall into the public domain where they may be freely used without
permission or payment. (Trade secrets work differently: they enable owners
to preclude any outside access to particular ideas indefinitely.)
In the case of patents, government intervention to grant private rights
is conditional on the public disclosure of information about the invention
through the publication of a patent document. Governments generally fur-
ther balance private rights by including safeguards and exceptions in their IP
laws that enable them, under selected circumstances, to promote public policy
goals such as building local industry or boosting the availability and afford-
ability of new inventions, ideas, technologies, and knowledge. To achieve
these ends, many countries include provisions in their IP laws that, for exam-
ple, limit the scope of patentability, enable compulsory licensing, require local
use or ‘working’ of patents, or allow for ‘fair use’ of copyrighted materials. To
guard against the abuse of the monopoly privileges that arise from private IP
rights, governments may also complement IP laws with antitrust or competi-
tion laws.16 In addition, in some countries, laws to promote the availability
of medicines, protect genetic resources, or stimulate local industrial capacity
operate in conjunction with IP laws.
In designing IP policies and laws, governments face several core recurring
questions: what kinds of intangible assets warrant IP protection? To what
degree should private rights be afforded to them? What is the right balance
between private rights and public benefits? To what extent should a govern-
ment extend private rights to foreigners? A core challenge for governments
is how best to achieve the appropriate balance between, on the one hand,
providing incentives for innovation and creativity and, on the other hand,
ensuring the availability of the inputs necessary for further innovation and
affordable public access to the products that emerge. To discern the right
balance, governments must adjudicate a range of arguments for or against
stronger IP protection from stakeholders working to advance particular private
interests or public goals.
In a historical review of the recurring themes of patent debates, two leading
legal scholars compile convincing evidence that ‘there is little, if anything,
that has been said for or against the patent system in the 20th century
that was not said equally well in the 19th’.17 Within developed countries,
disputes between investors, the producers and inventors of IP, and consumers
(and also among different groups within them) have prompted significant
shifts in IP laws over time. The United States and Europe have, for example,
experienced several cycles of IP reform, adjusting the terms of IP protection
to their stage of economic development and to the changing preferences and

6
 The TRIPS Implementation Game: A Fight for Ideas

political influence of interest groups.18 In the early nineteenth century, an

anti-patent movement emerged in England, demanding not just reform but
abolition of the patent system. There were also patent controversies in Europe
from the 1850s to 1875. In the late nineteenth century, the UK House of
Lords passed a bill calling for ‘a reduction of patent protection to seven years,
strictest examination of patent applications, forfeit of patents not worked after
two years, and compulsory licensing of all patents’.19 Further, in 1919 the UK
reformed its patent law to exclude the patentability of chemical compounds in
the face of a growing challenge from the German chemical industry.20 In the
United States, there have also been several rounds of debate in Congress about
the appropriate level of IP protection, followed by changes in national IP laws.
Today, as at the time of the first efforts to make ‘property out of knowledge’,
IP law-making is a political process ‘in which particular conceptions of rights
and duties are institutionalized; each settlement prompts new disputes, policy
shifts, and new disputes again’.21 To help build domestic industries, some busi-
nesses lobby for weak patent rights that enable them to copy and adapt for-
eign technologies. Knowledge-intensive industries, on the other hand, usually
lobby for stronger patent protections to protect their investments in research
and development. Consumers and public health advocates frequently appeal
for weaker patent rights to make products like medicines cheaper. Creators,
artists, and authors in cultural industries sometimes call for stronger copyright
protections as do those companies that invest in them. Yet, to promote
the availability of educational materials, librarians and educators frequently
promote fair use exceptions to copyrights. In the absence of evidence-based
assessments, the process of IP reform is often a war of ideas among compet-
ing interest groups pitting ‘conviction against conviction, argument against
argument, assumption against assumption’.22

1.1.2. The Contested TRIPS Process and Outcome

Since the late 1800s, developed countries worked to develop, strengthen,
and harmonize international IP laws and to internationalize IP protection.23
From bilateral arrangements, the first multilateral IP agreements emerged.
To administer these treaties, governments created an international secre-
tariat which ultimately became the World Intellectual Property Organization
(WIPO). Over time, a global IP system emerged, comprising a dynamic set of
national, regional, and multilateral legal instruments. By the mid-1980s, there
were some eighteen international IP treaties (covering topics from patents,
trademarks, and geographic indicators to industrial designs), most of which
were administered by WIPO. (Appendix 2 provides a timeline of the core
international IP agreements.) Both the significance of these treaties and the
number of signatories varied. In practice, weak enforcement mechanisms

7
The Implementation Game

meant that governments could still exercise considerable discretion over the
level and form of IP protection available within their borders.
Developing countries were largely uninvolved in the development of the
core international IP treaties, several of which were negotiated in the colonial
era. Only in the post-colonial era did distinct developing country concerns
about international IP regulation emerge, culminating in their fight for a New
International Economic Order (NIEO) and a North-South stand-off on reform
of the international IP system in the 1970s and 1980s.24 (See Chapter 2.)
In the 1980s, developed countries responded with an intensified push for
stronger international IP protection. As U.S. pharmaceutical, agrochemical,
electronic, software, and entertainment industries faced increasing threats
from foreign competitors, the United States recruited Japan and the European
Union to support their campaign extend the length and breadth of IP rights
at the international level. In order to gain ‘maximum returns’ from increas-
ing trade in IP-related goods and services,25 they worked to add IP to the
agenda of the Uruguay Round of GATT negotiations. Developing countries
opposed this effort. They viewed the prospect of strengthened and binding
international IP rules in the world trading system as an aggressive intru-
sion into the preserve of domestic regulation that would reinforce existing
inequalities.26
At the time the TRIPS negotiations were launched, most developing and
many developed country WTO members provided lower standards of protec-
tion than those required by the final Agreement. The length and scope of
patent protection for instance, varied widely across developing countries (see
Appendix 3).27 Some developing countries did not have any modern IP laws
at all.28 While many Latin American countries had worked to tailor IP laws to
national development priorities, IP standards in several African countries had
not changed since the colonial era. Further, some developing countries had
TRIPS-consistent or TRIPS-plus standards in some areas even before the nego-
tiations concluded. Further, the approach to IP institutions, administration,
and enforcement differed considerably among countries. Most developing
countries nonetheless shared at least one common characteristic: the degree
of actual IP protection that foreign and domestic IP rights’ holders received
was weak, even by governments’ own assessments.29
As the Uruguay Round advanced, a core group of developing countries
worked to stall negotiations, narrow the scope of the IP agenda, and secure
provisions that would help them defend their policy space. Hamstrung by
limited negotiating capacity and inadequate knowledge of the technical
issues under negotiation, no more than twenty developing countries had the
resources and expertise to follow the IP negotiations and their implications
closely.30 The most vocal developing countries, such as Brazil and India, faced
increasing unilateral political and trade pressures to accept rules for stronger
IP protection.31 The TRIPS deal was sealed when progress on improved market

8
 The TRIPS Implementation Game: A Fight for Ideas

access for textiles and agriculture was linked to acquiescence on IP as part

of a ‘single undertaking’ of agreements.32 The result was a deeply contested
agreement.33

1.1.3. A High-Stakes Battle

The intensity of the TRIPS debate was fuelled by the major social and eco-
nomic interests at stake. Industries with a direct stake in TRIPS were among
the world’s largest and most profitable: the US$650 billion per year global
pharmaceutical industry (estimated to increase to $US900 billion in the next
four years), the commercial seed industry (worth an estimated US$21 billion
per year), and the global software and entertainment industries (worth an
estimated US$800 billion per year).34 In many of these industries, a handful
of companies monopolized markets and their business model depended on
securing IP protection.35 The IP playing field was uneven. Throughout the
TRIPS negotiations, developed country corporations, research centres, and
individuals together held over eighty per cent of the world’s IP rights.36
Throughout the TRIPS negotiations, development economists and legal
experts debated evidence regarding the relationship between IP and
development.37 IP proponents argued that stronger IP protection would
encourage foreign direct investment (FDI), innovation, and technology trans-
fer, and spur the development of national cultural and creative industries.
In the face of growing trade in counterfeit medicines and other products,
proponents presented stronger IP protection as a way to help protect public
health and safety.
Critics warned that while stronger IP protection might foster such outcomes
in some cases, this would require the right conditions, carefully tailored
policies and laws, and a range of complementary measures.38 Moreover, they
emphasized that these same IP rules could also slow industrial development by
constraining opportunities to copy and adapt technologies.39 As net importers
of IP, many developing countries sought to employ the same strategies of
copying and reverse engineering that had served developed countries at
similar stages of development, and thus wanted to limit the recognition
of IP rights for foreigners.40 Flexibility regarding the scope and terms of IP
rights granted within their borders was considered central to national efforts
to promote national industrial capacity, generate employment, and ensure
affordable access to essential technologies and knowledge.
In addition, strengthened international IP rules were predicted to increase
the price of seeds, medicines, and educational materials, which developing
countries often import and impede domestic competition for such goods.
Some critics also emphasized that IP rules that circumscribe the ability of
farmers to save and share seeds could pose threats to global food security
and the livelihoods of the world’s billion-plus small-scale farmers.41 For the

9
The Implementation Game

poorest and smallest countries, the evidence suggested that the potential
economic returns of higher IP protection were a very distant prospect.42
To administer and enforce IP reforms undertaken to implement TRIPS,
developing countries faced the cost of financing and enhancing relevant
government agencies, and the opportunity cost of employing scarce human
capital to administer IP rules in the face of more pressing social challenges.43
To implement TRIPS, most developing countries needed to develop or import
the relevant legal expertise and depended on external assistance to surmount
the considerable financial, technical, and institutional challenges.44 In 2002,
the World Bank estimated that TRIPS implementation would generate annual
net losses for Brazil of US$530 million, for China of US$5.1 billion, for
India of US$903 million, and for the Republic of Korea of US$15.3 billion.45
Questions arose about the fairness of requiring developing countries to devote
scarce public resources to help private foreign multinational corporations
collect licensing fees and royalties.46 In countries where copying and imi-
tation of foreign technologies and knowledge were widespread, there were
complaints that stronger enforcement of IP rights would pose threats to the
employment of millions of workers and raise the prices of products for poor
consumers.
The overarching disparity between developed and developing countries
in the generation and ownership of technology continued to fuel global
IP debates even as TRIPS implementation advanced.47 In 2005, despite the
growth of R&D capacity in several developing countries, ten developed coun-
tries still accounted for over eighty per cent of global resources spent annually
on R&D, controlled over ninety per cent of the technological output, and
received over ninety per cent of global cross-border royalties and technology
licence fees. The same year, developing countries paid net US$17 billion in
royalty and licensing fees, mostly to IP rights holders in developed countries.48
Also, in 2005, the United States alone earned US$33 billion from developed
and developing countries through the global IP system, more than its total
development assistance budget of US$27 billion for that year.49

1.1.4. What Does TRIPS Require WTO Members To Do?

While the pre-TRIPS global IP system provided ‘a menu of treaties’ from
which countries could ‘pick and choose and in some cases make reservations
to’,50 TRIPS obliges all WTO members to implement minimum standards of
protection within specified deadlines for virtually all categories of IP, namely
copyright, trademarks, geographical indications, plant breeders’ rights, indus-
trial designs and patents, as well as layout designs of integrated circuits,
undisclosed information, and trade secrets. TRIPS puts new and unparal-
leled emphasis on making privately held IP rights enforceable, demanding
stronger provisions in national IP laws to promote enforcement of IP rights

10
 The TRIPS Implementation Game: A Fight for Ideas

at the border and within the domestic market. In addition, TRIPS incor-
porates provisions of many earlier WIPO and bilateral agreements, extend-
ing them to a broader group of countries and linking them for the first
time to an effective enforcement mechanism (the WTO’s Dispute Settlement
Understanding).51
For the most part, developed countries already had TRIPS standards and IP
institutions in place and needed to make only minor revisions to domestic
IP laws and administration to implement TRIPS. For developing countries,
on the other hand, implementation of TRIPS requires them to raise their IP
standards (increasing the terms and scope of protection). For most countries,
this involves a complex set of reforms to update or redraft existing laws,
adopt new laws, judicially reinterpret existing laws, and/or promulgate new
administrative regulations and guidelines. To give their IP laws effect, many
countries need to strengthen and sometimes reorganize IP administration,
and also to considerably increase the financial resources allocated to IP issues.
To conclude the TRIPS deal, the TRIPS proponents made some concessions
to developing countries on some of the most controversial issues.52 (and
also to developed countries like Canada, which is also a net IP importer).53
One such concession was that the opening paragraphs of TRIPS emphasize
the right of WTO members to implement TRIPS in accordance with their
own legal system and practice. The same section also affirms the rights of
countries to adopt measures necessary to protect public health and nutri-
tion and to promote the public interest in sectors of vital importance to
socio-economic and technological development. TRIPS also includes a set
of safeguards, options, and ambiguous provisions that together afford WTO
members some room to interpret their obligations and tailor TRIPS imple-
mentation to address national priorities.54 The existence of several of these
flexibilities was later confirmed by the 2001 Doha Declaration on TRIPS and
Public Health. (For more on TRIPS rights and obligations, see Chapter 3.)
The Agreement allows WTO members to choose, for instance, their preferred
system regarding exhaustion of rights and parallel importation, and to make
certain exceptions to patent rights, including with respect to compulsory
licences, pharmaceutical products, public and non-commercial use, and early
working. TRIPS further permits countries to exempt plants, animals, and
new uses of known products from patentability and leaves countries con-
siderable room for discretion regarding their approach to the protection of
undisclosed information. In the area of plant variety protection, countries
can adopt either patent protection or a sui generis system, or a combina-
tion of both. And in the area of copyright, TRIPS includes opportunities for
countries to use a range of limitations and exceptions. Intense debate on
some provisions prompted negotiators to incorporate the prospect of future
changes to TRIPS by mandating the membership to conduct several reviews
and further negotiations through the TRIPS Council. TRIPS also permits

11
The Implementation Game

countries to determine within their own legal traditions how best to provide
for effective enforcement of IP standards.
While many WTO agreements grant developing countries specific and sub-
stantive ‘special and differential treatment’ in recognition of the costs and
challenges implementation poses, TRIPS includes only three concessions tar-
geted to their exclusive benefit: transition periods for implementation; a legal
obligation on developed countries to enhance technology transfer to LDCs;
and a commitment on the part of developed countries to provide technical
assistance and capacity-building.55 The transition periods were significant
because they postponed the date at which developing countries could become
the subjects of WTO disputes for failure to implement the Agreement. Impor-
tantly, the transition periods were not a specific negotiating demand on the
part of developing countries, many of which viewed the extended deadlines
as arbitrary and insufficient concessions in the face of the Agreement’s deeply
unbalanced rules.
In contrast to the international IP agreements that preceded it, TRIPS pre-
vents countries from ‘going backward’ by reducing their level of IP protection.
Further, the links between TRIPS and the suite of other WTO agreements con-
cluded as part of the Uruguay Round make it more difficult than ever before
for developing countries to shy from their international IP commitments.

1.2. Variation in TRIPS Implementation

Despite their dissatisfaction with TRIPS, the Agreement spurred IP reforms

across most developing country WTO members. By the end of 2007, the IP
standards in developing country laws were higher than ever before, both in
terms of the length and scope of IP protection. Most countries, for example,
increased the term of patent protection to twenty years and extended the
scope of patent protection to all fields of technology, as required by the
Agreement. Given the binding nature of TRIPS and its focus on raising inter-
national IP standards to a common minimum, these shifts are not surprising.
The degree to which there was variation in the IP reforms undertaken by
developing countries does, however, warrant explanation.
In practice, there was a spectrum of approaches to TRIPS implementation. In
the effort to implement laws ‘consistent’ with TRIPS, some countries adopted
a TRIPS-‘minimum’ approach, whereby they took advantage of TRIPS flexibil-
ities to tailor implementation to national priorities. In other cases, countries
went beyond the minimum necessary to be consistent with TRIPS: that is,
they took a TRIPS-‘plus’ approach.56 Further, where countries did not conform
to the minimum TRIPS requirements by, for example, failing to undertake
legislative reforms to implement TRIPS within their deadlines, this can be
characterized as a TRIPS-‘minus’ approach. (Note that LDCs that have not

12
 The TRIPS Implementation Game: A Fight for Ideas

yet reached their TRIPS deadlines would not be classified as TRIPS-minus as

their commitments are not binding until the end of their transition period.)
Some countries also coupled a TRIPS-minimum approach to some aspects of
IP reform with a TRIPS-minus or TRIPS-plus approach in others. Diversity
in how developing countries approached TRIPS implementation emerged in
respect of the timing of reforms, the use of TRIPS flexibilities, and in the area
of IP administration and enforcement. (Chapter 3 reviews this variation in
detail).
The first element of variation concerns the timing of legislative reforms
to implement TRIPS. The transition periods in TRIPS themselves anticipated
variation in the timing of IP reforms by stipulating distinct deadlines for
developing countries and LDCs. Many developing countries passed TRIPS-
related legislation only weeks before their January 2000 deadline for TRIPS
implementation. Almost half of the seventy-three developing countries with
this deadline still had laws for TRIPS implementation pending approval in
their legislatures at the time their transition period expired, or had yet
to introduce relevant laws for consideration. In late 2007, several of these
countries still lacked legislation to implement significant aspects of their
TRIPS obligations. By contrast, almost half of the WTO’s thirty founding LDC
members adopted legislation to comply with TRIPS well in advance of their
original 2006 deadline for implementation.57 Further, a cluster of developing
countries had implemented IP laws that met most TRIPS obligations even
before the Agreement was concluded. In addition, many developing countries
undertook several rounds of reforms to strengthen their IP laws. In some
cases, subsequent reforms were designed to take greater advantage of TRIPS
flexibilities.
There was also variation in the degree to which developing countries took
advantage of TRIPS flexibilities. The majority of developing country WTO
members combined a mix of TRIPS-plus, -minimum, and -minus standards,
and the use of TRIPS flexibilities varied according to the type of IP. Brazil,
for instance, incorporated a broad set of grounds for compulsory licensing
in its patent law but provided a longer term of copyright protection than
required by TRIPS. South Africa, on the other hand, offered TRIPS-plus patent
protections for biotechnological inventions but took advantage of TRIPS safe-
guards in order to promote access to essential medicines. There were also
patterns of variation in the overall extent to which countries used TRIPS
flexibilities. Over a third of the WTO’s 106 developing country members
included a broad range of TRIPS-plus provisions in their laws. Over half
of the countries in this TRIPS-plus group were LDCs – the same countries
that the economic literature anticipates would adopt the lowest levels of IP
protection.58
A third element of variation in TRIPS implementation among developing
countries relates to how laws were subsequently put into practice through

13
The Implementation Game

regulatory and administrative measures. In general, IP laws require regulatory

or administrative acts by the executive branch of government to give them
practical effect. Decisions made in the course of the administration of laws
can modify the effect of laws and produce variation in the effect of similar
IP standards. In many African countries, for instance, IP authorities granted
patents for subject matter that their laws excluded from patentability.59 Coun-
tries also had different regulations and guidelines on what constitutes an
‘inventive step’ in their examination of patent applications.60 The case of
compulsory licensing provides a further example of how IP administration
influenced whether developing countries actually made use of the flexibilities
inscribed in their laws. Even though most developing countries incorporated
TRIPS safeguards regarding compulsory licensing in their national laws, by
the end of 2007 less than fifteen governments had actually issued such a
licence.61
A further aspect of variation concerns the implementation of TRIPS enforce-
ment provisions. TRIPS deadlines prompted most developing countries to
tighten their laws on enforcement, but the legal approaches to enforcement
and the scale of resources devoted to the task varied widely.62 The task of map-
ping variation between countries is complicated by the fact that few countries
regularly gather their own statistics.63 Moreover, TRIPS allows countries to
implement enforcement provisions within their own legal traditions and does
not provide legal or quantitative benchmarks against which enforcement of
laws might be measured or compared.64 While attention to IP enforcement
increased after TRIPS came into force, the simultaneous growth in production
and consumption of counterfeit and pirated goods meant that the actual
protection of IP rights, particularly in the area of copyright and trademarks
did not necessarily increase. Although critics rightly emphasized that industry
methodologies greatly inflated the scale of losses industry suffered due to
IP enforcement problems, it is notable that many developing country gov-
ernments themselves complained of inadequate resources and acknowledged
shortcomings in their judicial and customs procedures related to enforcement.

1.3. Existing Literature and Popular Narratives

A governing literature by economists and lawyers deftly describes IP reforms

related to TRIPS implementation in some developing countries (usually focus-
ing on one sector or one aspect of TRIPS).65 The question of why there is
such diversity in developing country approaches to TRIPS implementation
and IP reforms has not yet, however, attracted the systematic attention it
deserves.66 Where efforts to explore the politics of TRIPS implementation by
developing countries exist, the accent is on explaining TRIPS-plus reforms in a
subset of developing countries or the decisions taken in a single country.67

14
 The TRIPS Implementation Game: A Fight for Ideas

These studies and the growing scholarly literature on global IP debates do

nonetheless offer many reflections relevant to explaining the variation in
developing country behaviour with respect to TRIPS. In addition, commen-
taries by policymakers, NGOs, and industry groups in policy debates, opinion
pieces, and in the international media provide useful insights. Further, the
international relations (IR) literature on compliance with international law
and the diffusion of policy ideas suggests several avenues for explaining
the decisions developing countries took in respect of TRIPS implementation.
Together, the scholarly literature and narratives from policy practitioners yield
three broad approaches to explaining variation in TRIPS implementation.
A first approach emphasizes the national characteristics of developing coun-
tries as a core source of variation in TRIPS implementation. It reminds us that
countries already had a diversity of IP standards before TRIPS came into force.
Further, it emphasizes that we should expect countries to tailor IP reforms
according to factors such as their overall economic wealth, the relative weight
of IP-related imports and exports, technological factors (such as the degree
of domestic technological innovation, industrialization, and R&D), the struc-
ture of domestic industry, the presence or potential for cultural or ‘creative’
industries, and the scale of national socio-economic challenges in areas of
health and education that might be impacted by IP laws.68 Economists, for
instance, propose that the appropriate level of IP protection differs according
to national economic circumstances and goals, and that one should not be
surprised to see variation in how countries responded to TRIPS.69 Wealthier
countries are, for example, expected to offer higher IP standards, particularly
where they export IP-related goods. Countries with a strong reliance on
imports of knowledge-intensive goods are expected to adopt weaker domestic
IP standards.
Several scholars also observe the impact of national political factors on IP
reforms.70 Here, the argument is that variation in political and institutional
arrangements within countries influenced how governments undertook the
process of reform and how permeable they were to lobbying by domestic
interest groups and international actors.71 A number of studies explore, for
instance, how government coordination impacted the enforcement of IP laws
in China and the evolving role of interest groups in TRIPS-related debates
in India.72 In addition, legal scholars draw attention to how administrative
decisions in IP offices impact the degree to which countries take advantage of
flexibilities in TRIPS and in their own national laws.73
A second approach to explaining variation in TRIPS implementation
emphasizes the role of international power dynamics. The general argument
proceeds as follows. The growth of knowledge-based industries generated an
inexorable drive by multinational companies to protect and expand their
profits by securing private property rights to their intellectual assets as widely
as possible across the globe. The capacity of developing countries to resist

15
The Implementation Game

was constrained by their economic, political, and intellectual dependence on

developed countries, IOs, and foreign corporations for investment, market
access, development assistance, and political security.74 In this context,
variation in developing country responses to TRIPS is attributed to the degree
of pressure applied by external powers and their strategic choices regarding
target countries.75 Economic pressures frequently referred to include trade
threats and corporate lobbying, to secure stringent IP reforms and stronger
international IP rules.76 In addition, several scholars observe that monitoring
by developed countries, the WTO TRIPS Council, and industry created a
‘web of surveillance’ that put additional pressure on developing countries.77
Recent scholarship on how policy ideas diffuse and on the politics of IP-
related capacity building alerts us to ways that learning, socialization, and
emulation could serve as channels through which international pressures
penetrated developing country decision-making on TRIPS.78
A third explanation for variation in TRIPS implementation calls on us to
consider that governments can make empty promises. At the international
level, developing countries sometimes sign onto international agreements in
the hope of reputational rewards or economic favours with little intention or
capacity to enforce them. Many countries understand well the importance of
lip service to those issues of particular interest to their donors in the areas of
sustainable development, human right and democratization.79 In some case,
there are shared understandings that compliance is not really expected. At
the national level, a similar logic may apply to laws passed to implement
international agreements: laws can be cheap where countries do not intend
to enforce them or have little capacity to do so. For some commentators, the
gap between the strength of IP standards and the effective level of protection
that right-holders receive in many developing countries puts the significance
of some of the observed variation in IP standards into question.80 In cer-
tain cases, it is possible that neither membership of TRIPS or subsequent
national IP reforms, whether TRIPS-plus or TRIPS-minus, reflect a meaningful
commitment on the part of governments, particularly where countries new
they faced little prospect of retaliation for non-compliance. For the weakest
countries especially, the argument is that some of the TRIPS implementation
that occurred on paper was simply a mechanical response to international
obligations rather than an indication of a real intention to make changes on
the ground. The implication of the ‘empty promises’ approach is that not all
of the variation we see ought to be taken seriously as a subject of comparative
analysis as the genuineness of the observed reforms may differ.
While each of these three approaches provides important insights into the
reasons for aspects of the diversity in TRIPS implementation, none alone can
account for the degree and distribution of variation. The challenge at hand
is to draw together and build on these explanations to devise an analytical
framework and set of arguments about what factors mattered most.

16
 The TRIPS Implementation Game: A Fight for Ideas

1.4. Explaining Variation in TRIPS Implementation

In this book, I explain variation as an outcome of the interplay of global IP

debates, international power pressures, and political dynamics within devel-
oping countries. To set the scene, Chapter 2 reviews the evolution of develop-
ing country perspectives on international IP regulation, tracing the history of
developing country concerns about international IP regulation from colonial
times up until the signing of TRIPS.
Chapter 3 surveys the variation in TRIPS implementation among devel-
oping countries from 1995 to 2007. It begins with a summary of the core
requirements TRIPS places on developing countries and then highlights the
variation in how developing countries implemented these requirements,
focusing particular attention on the timing of legislative reforms and the use
of TRIPS flexibilities. The chapter then contrasts this variation with what the
economic literature and the history of international IP negotiations lead us to
expect. On the one hand, it shows that national economic circumstances and
changing sectoral interests can indeed explain some aspects of the variation.
On the other hand, the evidence also reveals significant divergences between
the behaviour of many developing countries and the predictions advanced in
the economic literature, particularly for many of the world’s poorest countries
which adopted TRIPS-plus approaches to implementation.81
Chapter 4 argues that disagreements over the final TRIPS text set the scene
for a global fight over how developing countries implemented the Agreement.
TRIPS implementation occurred amidst efforts by both developed and devel-
oping countries to ‘remake’ the original TRIPS deal, both by influencing what
governments did on the ground and by working to renegotiate the terms of
TRIPS. Developed countries and their multinational companies pushed for
ever stronger IP protection. Developing countries defended TRIPS flexibilities
and mounted a progressively more assertive call for global IP reform. Post-
agreement bargaining on the terms of TRIPS and global IP regulation82 gave
rise to an increasingly complex global IP system. With the engagement of
a growing range of non-state actors (including NGOs, industry, IOs, and
academic experts), global IP debates intensified. Tensions rose over the use
of TRIPS flexibilities, particularly in the area of public health, and there was
growing interest in ensuring the development orientation of international IP
rules. As the decade advanced, WIPO re-asserted itself as a key player. As the
WIPO Secretariat became more engaged in global IP debates, it also became a
target of them.
Over time, a cacophony of voices and interests animated global IP debates.
Broadly speaking, most of the players joined or supported one of two
archetypal ‘teams’. Neither of the teams was monolithic. As global IP
debates progressed, players within each team sometimes expressed diver-
gent views, adopted more or less aggressive political strategies and definitive

17
The Implementation Game

positions, and expressed varying degrees of interest in dialogue with the other
team.
One team, led by developed countries and multinational corporations,
favoured a narrow and swift compliance-oriented approach to the imple-
mentation of TRIPS and advanced a ‘compliance-plus’ agenda for IP reforms
more generally. This included pushing developing countries to go beyond
minimum TRIPS implementation, to sacrifice the use of TRIPS flexibilities,
and to add new stronger IP standards to their domestic laws. In addition,
this team argued for even stronger global IP regulation and more stringent
enforcement in developing countries, and worked to influence the positions
developing countries took in ongoing international IP negotiations and global
IP debates.83
An opposing ‘pro-development’ team called for developing countries to take
time to tailor implementation of TRIPS to their national needs, including by
taking advantage of the flexibilities available in the Agreement. They also
advocated reform of international IP rules, citing the need for greater balance
in the global IP system to ensure proper attention to development and public-
interest considerations.84 The players on this side included NGOs, academics,
some IOs (such as UNCTAD and the WHO), most developing country govern-
ments, as well as some foundations and development-oriented government
agencies in developed countries.
Importantly, the scale of resources at the disposal of each of these two
teams, and their legitimacy in the eyes of developing country officials, varied.
The pro-IP team had greater financial reserves, access to governments, and
global reach across and within developing countries, particularly through
the IP community in each country notably, those with a pro-IP stance
often stated and believed that their agenda would also help development
in poorer countries. Further, many of those in the ‘pro-development’ were
not anti-IP, but rather supported a balanced IP system. Nonetheless, the
characterization of teams as pro-IP or pro-development serves to mark a
distinction in perspective that members of each side acknowledged and
used.
Chapter 5 explores how international pressures contributed to variation in
TRIPS implementation. Some countries faced pressure in advance of their first
efforts to draft, debate, and implement TRIPS-related IP reforms. Once TRIPS-
related reforms were in place, many countries subsequently faced additional
pressures to repeal, modify, or strengthen provisions in their laws. Most
countries also faced international pressures in the area of administration
and enforcement of laws, including regarding the practical use of flexibilities
included in their national laws.
The intensity and focus of international pressures varied by country. In
my analysis, I disentangle two kinds of power that were exerted (sometimes
separately but often in tandem), identify the multiple pressure tools deployed,

18
 The TRIPS Implementation Game: A Fight for Ideas

and specify which players were involved. Economic power was used where
players deliberately deployed their material resources and capacities to manip-
ulate the strategic and economic constraints of other countries, to push them
to do something that they would not otherwise do, or to compel them to
desist from a particular action.85 Developed countries worked, for instance, to
link economic rewards with the positions that developing countries took in
international IP negotiations and their progress on TRIPS reforms. Examples
of tools used to exert economic power included bilateral trade and investment
deals, WTO disputes and accession agreements, trade sanctions, and the threat
of sanctions. The United States, for example, sometimes threatened, ‘either
change your IP policies or I will withdraw your trade preferences’. Coercive,
economic pressures had a clear and decisive interest on some countries, but
the success rate of such efforts differed and there was variation in the specific
target countries, the issue-focus, and the intensity of pressure applied.
Ideational power was also at play. Each team used the power of ideas to
advance distinctive perspectives on the pros and cons of different approaches
to TRIPS implementation, to dominate the political environment for IP
reforms, to influence the terms of debate in international negotiations,86 and
to shape how developing countries behaved at the national level.87 Ideational
power operated through efforts to influence expertise, know-how, and insti-
tutional capabilities on IP matters in developing countries, as well as under-
standings, beliefs, and discourses about IP. Tools used included monitoring
of IP reforms, framing of IP debates, and building sympathetic knowledge
communities of analysts, critics, and experts. The core framing mechanisms
employed were research, international media campaigns, and public outreach.
In addition, ideational power and economic power were combined in the pro-
vision of capacity-building,88 Each team worked to provide technical advice
and training, shape expertise, and build institutional capacity in ways that
reflected their distinctive preferences.89
The pro-IP team used ideational power to advance three overarching mes-
sages: economic, legal, and political. On the economic front, they empha-
sized the benefits of swift TRIPS implementation, stronger IP protection, and
higher international IP standards for innovation, foreign direct investment,
and technology transfer. That is, they worked to advance the idea that
stronger IP protection was economically desirable for developing countries
in its own right. On the legal front, irrespective of the relative merits of TRIPS
implementation for developing countries, the pro-IP advocates emphasized
that TRIPS implementation was a legal commitment: the integrity of the
multilateral trading system and the rule of law demanded that countries
conform. On the political front, as global IP debates intensified, the pro-IP
team embedded pressures for stronger IP protection in a broader political
bargain. Support for stronger domestic and international IP protection was
presented as a condition for accessing and maintaining economic and political

19
The Implementation Game

rewards from developed countries and their companies in areas as diverse as

political security, investment, market access, and foreign aid. Even where the
bargain was not explicitly articulated, its presence was keenly perceived by
the leaders and officials of many developing countries. Evidence of political
will in the area of IP protection became an integral part of the package
of reforms developed countries needed to undertake to demonstrate their
commitment to good governance and economic globalization. Developing
countries were left with little doubt that positive talk and performance on
TRIPS implementation shaped their global reputation, and with it their abil-
ity to secure foreign aid and trade deals, and to maintain broader political
alliances. The pro-development team used ideational power to counter TRIPS-
plus pressures and to battle the ‘hegemony’ of pro-IP discourse in global IP
debates.90
In Chapter 6, I investigate how links between international and domestic
factors contributed to variation in TRIPS implementation. National economic
circumstances and political factors within developing countries shaped the
capacity of governments to filter and manage international pressures regard-
ing TRIPS implementation and the influence of global IP debates. Within
developing countries, three factors influenced their susceptibility to exter-
nal pressures, sometimes filtering and sometimes amplifying their impact,
and thus contributed to variation in TRIPS implementation: (a) govern-
ment capacity; (b) public engagement; and (c) government coordination. In
terms of government capacity, the expertise and institutional competence
of governments made a difference, as did the accountability and control of
national IP offices. Public debate also had an impact, most notably through
the relationships between governments and parliaments, the engagement of
interest groups, and the degree of regulatory capture. Coordination within
government contributed to divergences in implementation as well. Key factors
included the degree to which IP decision-making was embedded in broader
public policymaking processes, the communication between the internal and
external faces of developing country governments, and the relationships
between national governments, foreign donors, and regional and multilateral
IOs.91 To illustrate how the interplay between global IP debates, international
pressures, and national politics generated variation, the chapter concludes
with several mini case studies.
Chapter 7 explores the politics of TRIPS implementation in francophone
Africa. Comprised of the world’s poorest countries, the francophone African
region was where one would most expect governments to have taken full
advantage of TRIPS flexibilities, especially as these countries escaped the
direct economic pressures that other developing countries experienced. Yet
in reality, LDCs in francophone Africa adopted very strong IP standards
well in advance of their TRIPS deadlines. This extreme ‘outlier’ case,92 sheds
light on how the combination of weak national capacity, capacity-building,

20
 The TRIPS Implementation Game: A Fight for Ideas

and a regional approach to IP regulation impacted TRIPS implementation.

It shows that national institutional arrangements amplified the influence of
international pressure and also how, even in the absence of explicit economic
pressures, the compliance-plus global political environment influenced gov-
ernment perceptions and impacted their decisions.
To conclude, Chapter 8 draws together my core findings regarding the rea-
sons for variation in TRIPS implementation and proposes a set of implications
and strategies for those working for IP regulated tailored to the development
priorities of developing countries.

1.5. Why This Book Matters

This book presents new empirically-grounded scholarly analysis of the imple-

mentation of TRIPS. It provides a comparative review of selected aspects of
developing country implementation of TRIPS from 1995 to 2007. This time
frame matters because it includes each of the deadlines by which all WTO
members – developed, developing, and LDCs – were originally required to
have implemented TRIPS.
This book also addresses an important gap in the scholarly literature by
taking up the politics of the implementation of WTO agreements, including
TRIPS. In the wake of the Uruguay Round, developing countries pushed
for discussion of the challenges they faced in respect of ‘implementation
issues’.93 Existing studies of the implementation of WTO agreements show
that responses to commitments vary widely, and that developing countries do
indeed face many difficulties.94 The issue of WTO-related implementation has
nontheless largely failed to attract either the political attention developing
countries desire, or the interest of scholars of international relations and
compliance with international law. To date, WTO scholars have generally
examined implementation from a legal or descriptive perspective, often over-
looking the ways in which it is a dynamic political process and the scope for
different interpretations of legal commitments.
Whereas a growing literature explores the potential for developing countries
to act collectively to advance their interests in international trade negotia-
tions, countries usually stand alone when it comes to translating WTO laws
into national policy.95 As WTO rules reach further inside the borders of states
and pressure for their implementation intensifies, the research terrain for
scholars of international political economy has expanded. Even though TRIPS
has inspired a burgeoning literature from critics and supporters, economists
and lawyers, there has been surprisingly little effort by political scientists
to complement studies of the process of WTO and IP negotiations with the
analysis of the implementation process.96

21
The Implementation Game

This book makes the case for greater consideration of how the political
dynamics of compliance with international law97 are affected by the contested
nature of international agreements and post-agreement bargaining to revise
or clarify their provisions.98 It also shows that WTO negotiations extend
far beyond the conclusion of formal negotiating rounds and the entry into
force of agreements: the TRIPS implementation process was influenced by
ongoing IP negotiations among WTO members within and beyond the WTO
context. Further, my analysis emphasizes that WTO rules exist within a web of
bilateral, regional, and international agreements; analyses of implementation
must thus locate rules within this broader context.
In general, scholars of compliance focus on what helps bring ‘rogue’ states
into compliance with international rules. They assume these rules reflect a
‘balance of advantage’ and that governments ‘ought’ to comply with them
either for their own ‘good’, for the credibility and durability of the system,
or for the sake of some broader global public objective or principles (such
as environmental protection, development, or human rights). These assump-
tions weaken the usefulness of the compliance literature for explaining TRIPS
implementation. In this book, I take up Peter Gerhart’s argument that TRIPS
lacks substantive validity.99 Only by acknowledging disagreements about the
origins, legitimacy and interpretation of TRIPS, and the uneven distribution
of its benefits, can we understand the politics of implementation. I also show
that the narrow focus of many compliance scholars on the effectiveness of
unilateral pressures, such as trade threats, is ill-suited to the far more complex
set of interactions revealed in this study. In addition, I emphasize that TRIPS
imposes positive obligations on States; it requires States to do a set of things.
This study provides empirical evidence to support Gerhart’s argument that
the dynamics and politics of compliance with the ‘positive commands’ of
international law may differ from those associated with ‘negative commands’,
particularly where the regulatory commitments encroach deep into areas of
law hitherto considered the national preserve.100
This book breaks new ground by proposing an analytical framework for
studying the politics of TRIPS implementation in developing countries and
the variation that emerges. The focus of much of the commentary on
TRIPS has been the international dimension of the politics surrounding the
Agreement.101 Taking the lead from scholars of international political econ-
omy, this book shows that consideration of the way international pressures
and domestic politics interact is required to understand the variation in how
countries implement international IP laws.102 In so doing, attention must shift
beyond governments as unitary actors to explore the institutional arrange-
ments within them, and also to consider the interactions among states, IOs,
companies, NGOs, and experts.103
At the national level, this book draws attention to the role of IP offices
in guiding the implementation of international IP agreements and as the

22
 The TRIPS Implementation Game: A Fight for Ideas

primary government interlocutors with international donors and the core

recipients of their technical advice and capacity-building. I thus introduce
national IP offices and the networks among them as a subject for further
comparative study by scholars interested in processes of global regulatory
harmonization and cooperation.
The TRIPS implementation process provides strong evidence to support the
argument that capacity-building can play a decisive role in inducing, pro-
moting, and sustaining compliance with international law.104 Where patterns
of non-compliance stem from administrative breakdowns, the ambiguity and
technicality of international agreements, or weak technical capacity of some
governments, ‘managerialist’ scholars of compliance propose that capacity-
building may be a more effective tool for compliance than the threat of
punishment.105 In the case of TRIPS implementation, however, capacity-
building was not the consensual tool that managerialist scholars of compli-
ance describe. Rather in the context of debates on the scope of TRIPS rights
and obligations, capacity-building was a highly politicized instrument used
by an array of stakeholders to advance their respective agendas. Its influence
was particularly significant in light of the limited technical expertise of most
developing countries and the relatively low level of resources they had hith-
erto been devoted to IP protection.
This book also helps correct the relative neglect of the distinctive expe-
riences of developing countries in their international relations and in the
governance of the global economy.106 My analysis of TRIPS implementation
sheds new light on the nature, dynamics, and exercise of power in the global
economy, providing specific examples of how different kinds of power are
expressed and by whom, and how this impacts the way developing country
governments respond to international legal commitments. By explaining the
process and subtleties of how TRIPS was implemented, this book gives sub-
stance to the view that developing countries’ policies are often set by others.
By detailing the mechanisms through which developing countries were both
coerced and persuaded to identify with, and mimic, the IP policies of richer
countries, this book also contributes to the growing literature on how policy
ideas are diffused in the global economy.107
My case study on TRIPS implementation in francophone Africa draws
attention to the need for deeper analysis of the objectives, practice, and
implications of delegation to regional organizations. At the time TRIPS came
into force, over a third of the WTO’s developing country members already
belonged to regional IP arrangements among Arab, Andean, or African coun-
tries. In this book, I explore how the secretariats of these regional IP arrange-
ments affected the way their members responded to TRIPS.
Finally, this book also adds new empirical evidence to the scholarly lit-
erature regarding the role of IOs in international relations.108 IOs had a
significant influence on global IP debates and also on TRIPS implementation

23
The Implementation Game

in many developing countries. The most influential IOs were the WTO and
WIPO, both of which were instructed by their member governments to help
developing countries implement TRIPS.109 On a lesser financial scale, IOs
such as the United Nations Conference on Trade and Development (UNCTAD)
and the World Health Organization (WHO) also played a role in advising
and assisting developing countries on TRIPS implementation. The Secretari-
ats of IOs competed for influence on global IP debates and on developing
country decision-making. They sometimes expressed the power and interests
of particular countries or interest groups, and also emerged as authoritative
players in their own right. I emphasize the role of WIPO as a central player in
the TRIPS implementation game, highlighting its governance and activities as
topics ripe for further critical study by scholars of international relations.

1.6. Methods and Sources

The analysis advanced in this book draws on a decade of professional expe-

rience in international debates on trade and IP decision-making. This study
also draws on over 100 interviews with individuals engaged in the TRIPS
implementation process, including staff of IOs, capital-based government
officials, Geneva-based negotiators, academic experts, journalists, and a range
of representatives from international NGOs and industry. With the exception
of those who asked not to be listed, those consulted are listed in Appendix 1.
For the case study on francophone Africa, I conducted a further set of inter-
views with relevant officials, scholars, and NGOs active in that region. Most
interviewees specifically requested not to be cited by name in the text.
My analysis of variation in TRIPS implementation draws from an original,
cross-national comparative review of TRIPS implementation of 106 develop-
ing country members of the WTO. The goal of the survey was to gather suf-
ficient detail to illustrate the scope of variation among developing countries
rather than to present an exhaustive survey or a definitive legal assessment
of IP laws in developing countries or their compliance with TRIPS. The latter
tasks would often involve a team of legal experts. Further, it will take several
years of implementation and court action to determine the precise scope,
boundaries, and effects of many IP laws. Moreover, the process of IP reform
is dynamic and ongoing. At the time of writing, IP legislative reforms were
still underway, particularly in developing countries that supplemented TRIPs
obligations with further multilateral and bilateral commitments.
The evidence discussed in this book was drawn from a wide range of
primary and secondary sources. The key primary sources were WTO and WIPO
compilations of national IP laws. These laws were not, however, available
in a database format that enabled electronic searches or comparisons across
countries regarding the implementation of particular TRIPS requirements

24
 The TRIPS Implementation Game: A Fight for Ideas

or use of flexibilities.110 Additional official sources of data on TRIPS imple-

mentation included the summaries of TRIPS Council meetings, notifica-
tions by countries of their IP laws and regulations, and TRIPS Council
Reviews of the IP legislation of WTO members,111 government responses to
a TRIPS Council IP enforcement checklist,112 and the IP chapters of the WTO
Secretariat’s Trade Policy Review reports on members.113 Notably, in present-
ing information for the TRIPS Council and for Trade Policy reviews, many
developing countries conveyed minimal information about their implemen-
tation efforts (sometimes to avoid or divert critical attention and to avoid
use of information against them in potential disputes) and presented a pos-
itive picture of their efforts and intentions with respect to this process. The
annual USTR Special 301 Reports and the yearly U.S. National Trade Estimate
reports also provided information about TRIPS implementation, though the
political purposes of these analyses similarly called for caution in accept-
ing how developing country laws were characterized.114 I also cross-checked
information with secondary sources, namely government, industry, and NGO
reports, which, while also often subjective, helped to provide a fuller picture
of implementation. These included annual country and sector reports from
industry associations,115 the World Economic Forum (WEF),116 and periodic
reports published by NGOs such as Médecins Sans Frontières (MSF), Third
World Network (TWN), and Oxfam.
The survey also benefited from country studies on TRIPS implementation
in francophone Africa, Brazil, China, India, Mexico, Nepal, and Venezuela,
as well as studies on the use of TRIPS flexibilities in Kenya and Uganda.117 I
also drew on examples presented in national legal textbooks118 and reviews
of particular IP laws in (e.g. patent laws in Egypt, Brazil, and India as well as
plant variety protection laws in China).119 Studies of enforcement and piracy
in developing countries were also useful sources of data.120 Examples cited in
several studies of TRIPS implementation options and several cross-national
legal studies of IP standards in developing countries were also drawn upon.121
The latter were, however, limited either by scope (e.g. covering only patent
or copyright protection)122 or duration (covering only the period up until
2000).123 Finally, my analysis draws on reports regarding IP reforms in
developing countries from international and national news publishers as
well as independent news services such as BRIDGES Weekly, Inside U.S. Trade,
Intellectual Property Watch, and the South-North Development Monitor.

1.7. Scope

A note on the scope of this book is in order. My intention is to offer a

global perspective on variation in TRIPS implementation and a framework for
understanding the variation among developing countries in their responses

25
The Implementation Game

to TRIPS that captures the complexity of the political process. I use striking
examples from a range of different countries to illustrate my arguments but
do not propose to explain all aspects of variation across developing countries
or to undertake a detailed examination of TRIPS implementation in any one
country. While much attention in the global media focuses on IP protection
and enforcement in the largest developing countries, such as Brazil, China,
and India, my research is intentionally concerned with the broader range
of developing countries. In particular, I set aside any detailed examination
of TRIPS implementation in China, which has already attracted considerable
scholarly attention and whose economic and political circumstances render it
a case apart from other developing countries.
Finally, this book does not explore the impacts of TRIPS implementation
on developing countries, their development goals, or other public policy
objectives. It also does not attempt to assess or affirm the various claims by
stakeholders regarding potential or actual impacts. Given the broad scope of
TRIPS and the vast array of debates on global IP regulation, I devote most
attention to issues of copyright, patents, and plant variety protection, which
were the areas where IP debates were most consistent and intense both during
and post the TRIPS negotiations. By contrast, IP laws related to integrated cir-
cuits, geographical indications, and trademarks are not taken up in detail. My
analysis concentrates on legislative reforms and their interpretation by devel-
oping countries. It explores issues of IP administration only where they are
relevant to these matters. The larger task of analysing the political dynamics of
how countries enforced the laws they passed to implement TRIPS are deferred
for future study. I do, however, consider how concerns about enforcement,
piracy, and counterfeiting emerged in global IP debates and influenced the
political environment for decision-making on TRIPS implementation.

Notes

1. For reviews of these arguments, see Finger and Schuler (2000), Maskus (2000a),
Rodrik (2001), and Stiglitz (2002).
2. While aware of the vast diversity of countries that make up those commonly
referred to as ‘developing countries’, the terminology remains useful for the
purposes of this research. The WTO does not have formal criteria for developing
country status. Instead, developing countries in the WTO self-ascribe to this status.
The UN designation of least-developed country (LDC) is however accepted and
used in the WTO context. Where helpful to allow for a more fine-grained analysis,
I differentiate developing countries according to region and economic status, e.g.
LDCs, emerging developing countries, and African countries.
3. The leading historical accounts of the origins and process of the TRIPS negotia-
tions include Beier and Schicker (1996), Drahos (1995), Gervais (1998), Matthews

26
 The TRIPS Implementation Game: A Fight for Ideas

(2002), Ryan (1998), Sell (1995, 1998, 2003b), Stewart (1993), and Wolfhard
(1991).
4. Okediji (2003a: 1, note 1). The legal significance of TRIPS in the context of
international IP regulation is also discussed comprehensively by Reichman (1997,
1998b).
5. This figure represents the WTO membership as of 5 February 2008.
6. In contrast to most previous GATT agreements, which focused on removing trade
barriers at the border, TRIPS set out positive obligations on WTO members to take
action within the realm of domestic regulation. Alongside TRIPS, the Uruguay
Round also produced two other agreements specifically focused on ‘behind the
border’ measures to address non-tariff barriers to trade: the Agreement on Techni-
cal Barriers to Trade and the Agreement on Sanitary and Phytosanitary Standards.
7. Idris (2002).
8. Bhagwati (2001) and Stiglitz (2002: 245–6).
9. Wolf (2007).
10. Chang (2007).
11. ‘Policy space’ is a term widely used by developing country negotiators in the
context of international trade negotiations to refer to the scope for governments to
implement explicit pro-development policies (e.g. to support domestic industries,
international competitiveness, local innovative capacities, and affordable access
to technologies, knowledge, and information). See Group of 77 (2004). The 2004
UNCTAD Sao Paolo Declaration emphasized, for example, the importance of
preserving policy space in international trade rules.
12. The widespread use of the term ‘flexibilities’ to refer to these safeguards and
options emerged in the late 1990s in the context of the negotiations leading to
the Doha Declaration on TRIPS and Public Health.
13. This survey excludes WTO members from Eastern Europe (many of which are
now EU members or in the process of acceding to the EU) and the former CIS
States (or Newly Independent States, such as Armenia, Georgia, Kyrgyz Republic,
and Moldova). These countries do not generally claim developing country status
at the WTO, instead designating themselves as ‘economies in transition’.
14. In 1962, rising public literacy and the growing use of the printing press in England
prompted the King to pass a Licensing Act, which established a register of licensed
books and required a copy of each book to be deposited with the Stationer’s
Company. The 1710 Statute of Anne was the first copyright law and granted rights
to authors for a fixed period. The English 1624 Law on Monopolies was the first
formal industrial property law.
15. The most widely cited rationale for IP protection is to correct market failures
whereby innovation, knowledge, and creativity may be underproduced due to
fears of misappropriation and difficulties securing economic returns on the invest-
ment. For reviews of debates on this rationale, see Machlup and Penrose (1950)
and May and Sell (2005).
16. Correa (2007b).
17. Machlup and Penrose (1950: 10, 28).
18. See May and Sell (2005), and Sell and May (2001).
19. Machlup and Penrose (1950: 4).

27
The Implementation Game

20. Ibid.
21. May and Sell (2005: 1).
22. Machlup and Penrose (1950: 10, 28).
23. May (2000, 2002).
24. Patel et al. (2001). Also see Chapter 2, note 92.
25. Drahos (2002b: 3).
26. Mowrey and Rosenberg (1989: 278).
27. Dutfield (2000) and WIPO (1988).
28. May (2000: 1).
29. This conclusion draws from reports submitted by developing countries for their
respective national Trade Policy Reviews and their responses to questions posed
during the TRIPS Council’s review of TRIPS implementing legislation in 2000–1.
30. Drahos (2002b), Matthews (2002), and Stewart (1993).
31. Economic and Political Weekly (1989), Drahos (1995), Kumar (1993), Raghavan
(1990), and Sell (2003b).
32. Ibid.
33. For a critical assessment of the implications of the Uruguay Round for develop-
ing countries, see Hoekman and Kostecki (2001), Raghavan (1990), and UNDP
(2003b). For a positive assessment, see Schott (1994).
34. These figures draw from news reports in the Economist in 2007 and 2008, and
Smith et al. (2008).
35. For example, ten companies including Monsanto (USA), DuPont/Pioneer (USA),
Syngenta (Switzerland), and Groupe Limagrain (France) control half of the world’s
commercial seed sales. See ETC (2005: 1).
36. Kumar (1993).
37. For summaries of debates that took place during the TRIPS negotiations, see
CIPR (2002), Correa (2000a), Raghavan (1990), UNCTAD (1996), UNDP (2003b:
203–34), Watal (2001), and Yusef (1995). For the views of various economists dur-
ing the negotiations, see for example, Binley (1992), Deardorff (1990), Grossman
and Helpmann (1991), Kumar (1993), Primo Braga (1989, 1990), and Rapp and
Rozek (1990).
38. Others have argued that stronger IP protections need not be a prerequisite for
technology transfer. Binley (1992) observes, for example, that ‘Korea benefited
from technology transfer in numerous industries via licensing arrangements, sub-
contracting agreements and the location of foreign subsidiaries during a period
in which its intellectual property laws were as weak as any of the other LDCs’.
Regarding the link between the strength of IP rights and FDI in developing
countries, Evenson (1993: 366) observed at the time of the TRIPS negotiations that
‘the literature does not show strong correlations’. For a summary of the economic
literature on IP, see Maskus (2000a).
39. Fink and Maskus (2005) and Maskus (2000a, 2004).
40. Drahos (2002b: 3), Maskus (1990), and Sell (1998).
41. Tansey and Rajotte (2008).
42. Maskus (1990).
43. See, for example, Finger and Shuler (1999).
44. Finger and Schuler (2000) and UNCTAD (2007).

28
 The TRIPS Implementation Game: A Fight for Ideas

45. World Bank (2002).

46. See Maskus (2000a), and Finger and Schuler (2000).
47. Kumar (2002).
48. Chang (2007).
49. Ibid.
50. Okediji (2003a).
51. Ibid.
52. For a comprehensive analysis of specific TRIPS provisions and their negotiating
history, see UNCTAD-ICTSD (2005).
53. For a discussion of Canada’s role in international IP negotiations, see Morin
(2008).
54. For an overview of TRIPS flexibilities, see South Centre (1997) and Correa (2000a).
55. Reichman (1995: 783–4: note 115) affirms that unlike prior multilateral trade
agreements, TRIPS ‘provides no special regime that weakens international mini-
mum standards as such for developing countries’.
56. The term TRIPS-plus is often specifically used in policy circles to characterize inter-
national agreements that require signatories to increase their level of IP protection
beyond that required by TRIPS or which include provisions that reduce the scope
or effectiveness of the flexibilities included in TRIPS or the ability of countries to
use them.
57. Cambodia and Nepal subsequently acceded to the WTO, bringing the total
number of LDC members to thirty-two. The transition periods available to
LDCs are not automatically available to newly acceding members of the
WTO. See Abbott and Correa (2007). Also see discussion on accessions in
Chapter 5.
58. Maskus (2000a).
59. Musungu and Oh (2006).
60. Correa (2007a).
61. This figure was calculated by the author on the basis of studies by Love (2007),
Oh (2006), Khor (2007), and Yoke Ling (2006), and a review of news reports until
December 2007. For further discussion, see Chapter 6.
62. The tensions about the appropriate methodology for assessing and measuring
the degree of IP protection and enforcement are discussed in Ginarte and Park
(1997), Lee and Mansfield (1996), Mansfield (1994), Ostergard (2000), Primo
Braga and Fink (2000: 39), Shadlen et al. (2005), Sherwood (1997), and Watal
(2001).
63. A further option would be to find a measure of a country’s political commitment
to giving practical effect to their IP laws, such as the level of resources devoted.
However, even the best-intentioned government may find its efforts to increase
effective protection thwarted by unresponsive government agencies and factors
such as a generally slow and inefficient judicial system.
64. Watal (2001).
65. Bentolila (2002/03), Shadlen (2004a), Shadlen et al. (2005), and Watal (2001).
66. Kenneth Shadlen (2006, 2008), a comparative political scientist, is the only scholar
thus far to have specifically taken up the task of explaining variance in IP reforms
in developing countries (with a particular focus on Latin America).

29
The Implementation Game

67. Das (2003) and Ramanna (2005).

68. Fink and Maskus (2005), Maskus (2000a), and UNCTAD (2007).
69. Ibid.
70. See Correa (2007c), Drahos (2007a), Shadlen et al. (2005), Shadlen (2006, 2007),
and UNCTAD (2008).
71. Das (2003), Ramanna (2005), and Shadlen (2006, 2008).
72. Mertha (2005), Mertha and Pahre (2005), Das (2003), and Ramanna (2005).
73. Correa (2007a), Drahos (2007a), and Garrison (2006).
74. Sell (2003b) and Musungu and Oh (2006: 43). On the relationship between trade
agreements and political security considerations, see Gruber (2000).
75. Several leading IP scholars discuss the use of coercion to influence international IP
negotiations and IP standards in developing countries. See Abbott (2004), Correa
(2004a, 2004b), Drahos (2002b, 2003, 2004b), MSF (2003), Oxfam (2002, 2004a),
and Shadlen et al. (2005). For similar analyses of ‘bullying’ by developed countries,
see the analysis by NGOs such as GRAIN (2003), MSF (2003), and Oxfam (2002,
2004a, 2004b). GRAIN (2003) has argued, for example, that ‘the European Union
is aggressively forcing developing countries to adopt the strictest intellectual
property rules on seeds that are possible’.
76. See, for example, Drahos (1995, 1997, 2003), Matthews (2005), May (2004, 2006a),
and Sell (2003b). Andersen (2006a, 2006b) reviews how capacity-building and
industry lobbying influenced the adoption of the Philippines’ plant variety pro-
tection law.
77. Sell (2003b: 121). Also see Matthews (2002) for discussion of the role and activities
of the TRIPS Council.
78. Maskus (2006) explores how IP policies in the agricultural arena took hold in the
Asia-Pacific region. For further analysis of policy diffusion in international rela-
tions, see Fordham and Asal (2007), Gleditsch and Ward (2006), Sabatier (2007),
Simmons and Elkins (2004), Simmons et al. (2006), Strang and Soule (1998), True
and Mintrom (2001), and Wolfe (2005).
79. Hathaway (2003), and Hafner-Burton and Tsutsui (2005) discuss the cost of com-
mitments to international laws and the rationale for empty promises to comply
with them.
80. Author’s interviews with selected government and 10 officials.
81. Ibid.
82. For analysis of the dynamics of international negotiations and global IP debates
since TRIPS, see for example, Drahos (2002a), Halbert (2005), May (2006c), Okediji
(2003a), and Sell (2006).
83. See notes 39 and 45.
84. Sell (2003a), and Sell and Prakash (2004).
85. This definition draws from the definition of compulsory power in Barnett and
Duvall (2005).
86. This analysis draws on the work of Bierstecker (1992, 1995), Goldstein and
Keohane (1993), Sell (1998), and Woods (1995) exploring the role of ideas in
international policy debates.
87. This analysis draws on literature that explores how ‘epistemic communities’ and
‘technocratic elites’ influence international policy debates. See Haas (1992a),

30
 The TRIPS Implementation Game: A Fight for Ideas

Howse (2002), and Cogburn (2007). In the realm of IP regulation, Braithwaite

and Drahos (2000), Dutfield (2000), and Sell (2003a) have explored the influence
of the community of IP professionals on international IP regulation.
88. The scale and nature of IP-related capacity-building to IP reforms in developing
countries have attracted critical attention from several scholars. The following
scholars each note the bias of technical assistance from IOs and developed coun-
tries in favour of a compliance-driven approach to TRIPS and of strengthened IP
protection in general: Matthews (2005), Matthews and Munoz-Tellez (2006), and
May (2004). Several NGOs also published critical reviews, for example, Bellmann
and Vivas-Eugui (2004), Kostecki (2005), Musungu (2003), and Pengelly (2005).
89. The importance of ideas in debates on international IP regulation has been empha-
sized by Drahos (1996), Mayne (2002), Odell and Sell (2006), Okediji (2003a), Sell
(1998, 2003b), and Sell and Prakash (2002).
90. The notion of a hegemonic pro-IP discourse in international IP negotiations has
been advanced persuasively by Abdel Latif (2005), reflecting on his own experience
as an Egyptian diplomat responsible for IP negotiations in Geneva.
91. Abdel Latif (2005).
92. Van Evera (1997: 86, 91–2) argues that a single ‘outlier’ case may be particularly
useful where outcomes are poorly explained by existing theories and where close
examination of the case may help elucidate otherwise under-appreciated causes.
93. See, for example, South Centre (2004).
94. Examples of assessments include FAO (2003), Oxfam (2005), U.S. Chamber of
Commerce (2005), USTR (2004), VanGrasstek and Sauve (2006), and Wolfe (2003).
For the domestic politics of implementing WTO rules in the United States and
Europe, see Princen (2004) and Destler (2005). For analysis of the political fac-
tors influencing the implementation of the recommendations and rulings of
the Dispute Settlement Body, see Barton et al. (2006: 61–70) and Petersmann
(1997).
95. For analysis of developing country efforts to harness coalitions in international
trade negotiations, see Kahler and Odell (1989), Narlikar (2002, 2003), Odell
(2006), Shukla (1994), South Centre (2003), Tussie and Glover (1993), and
Winham (1998).
96. The study of international trade negotiations by IR scholars was pioneered by John
Odell (2000). Also see Odell (2006).
97. The compliance literature seeks to shed light on the incentives and conditions
which foster compliance with international regimes and on the relative effective-
ness of various tools that might be employed to further promote compliance,
including conditionality, sanctions, and side-payments. For a synthesis of this
literature, see Raustiala (2000). For a discussion on sources of compliance and
motivations, see Young (1994). Also see Chayes and Chayes (1993, 1995), Cortell
and James (2000), Downs and Jones (2002), Raustiala and Slaughter (2002), Sim-
mons (1998), and Spector et al. (2003).
98. For discussion of post-agreement bargaining on other international issues, see
Jonsson and Tallberg (1998).
99. The importance of this point for the examination of compliance with TRIPS was
made by Gerhart (2000) in response to the managerialist literature on compliance

31
The Implementation Game

exemplified by the work of Chayes and Chayes (1993), Downs (1998), and Downs
et al. (1996).
100. Gerhart (2000).
101. For contributions exploring the interaction of national and international fac-
tors, see Evans et al. (1993), Gourevitch (1978), Moravscik (1993), and Putnam
(1988). For analysis of how interactions between national and international fac-
tors explained the way developing country governments behaved in the context
of structural adjustment policies, see Haggard and Kaufman (1992).
102. Drahos (2007a), Correa (2007a, 2007c), Mertha (2005), Shadlen (2006), and
Shadlen et al. (2005).
103. Wolfe (2005).
104. See note 99.
105. Managerialist scholars argue that formal enforcement actions (such as sanctions)
are not (and are not likely to prove) a particularly effective instrument in promot-
ing the overall level of regime compliance. See Chayes and Chayes (1993).
106. For literature examining the applicability of mainstream IR theory to the devel-
oping world, see Aydinli and Matthews (2000), Dunn and Shaw (2001), Lavelle
(2005), Neuman (1998), Puchala (1998: 149), Thomas and Wilkin (2004), and
Woods (2000).
107. See note 78.
108. Theoretical sources for analysis of how IOs may acquire and exert institutional
power and independent ‘agency’ include Barnett and Finnemore (1999, 2004,
2005), Barnett and Duvall (2005), and Checkel (2005). The nature of international
bureaucracies and the role of their staff in global politics have long attracted the
attention of IR scholars. See Cox (1996), Cox and Jacobson (1973), Langrod (1963),
and Weiss (1975).
109. WIPO-WTO (1996).
110. TRIPS requires members to notify the Council for TRIPS regarding several
aspects of their implementation of the Agreement, including their laws and
regulations. WIPO makes the laws and regulations contained in its collec-
tion available through its monthly review ‘Industrial Property and Copyright’
and through its online Collection of Laws for Electronic Access (CLEA). See
http://www.wto.org/english/docs_e/docs_e.htm and http://www.wipo.int/clea/
en/index.jsp.
111. In 1996–7, the TRIPS Council conducted reviews of TRIPS implementing leg-
islation of developed country members, followed in 2000–1 with reviews of
developing countries with a 2000 deadline for TRIPS implementation. For doc-
umentation related to the reviews, see http://www.wto.org/english/tratop_e/
trips_e/intel8_e.htm.
112. For TRIPS Council enforcement checklist and responses, see http://www.
wto.org/english/tratop_e/trips_e/intel8_e.htm.
113. For the documentation related to WTO Trade Policy Reviews, see http://www.
wto.org/english/tratop_e/tpr_e/tpr_e.htm.
114. The USTR Special 301 reports and press releases are available at
http://www.ustr.gov. The annual U.S. National Trade Estimates reports review
factors affecting U.S. trade interests in a broad range of countries and include

32
 The TRIPS Implementation Game: A Fight for Ideas

commentaries on the state of IP protection in those countries. For these reports,

see the U.S. Trade Compliance Center at http://tcc.export.gov.
115. Industry associations that produce such regular reports include the International
Intellectual Property Alliance, the International Federation of Pharmaceutical
Manufacturers Associations (IFPMA), the International Chamber of Commerce
(ICC), the Pharmaceutical Research and Manufacturers of America (PhRMA), and
the Biotech Industries Organization (BIO).
116. See Lopez-Claros et al. (2006).
117. On TRIPS implementation, see Karky (2004), Kongolo (2000c), Maskus (2000b),
Perez (1998), and Sheppard (1999). On the use of TRIPS flexibilities, see Lewis-
Lettington and Munyi (2004).
118. See, for example, Astudillo (1999) and Dean (1989).
119. Balat and Loutfi (2004), Marc (2001), and Varella (2004).
120. Shadlen (2006).
121. Correa (2007c) includes selected examples of the use of TRIPS flexibilities in a
range of developing countries.
122. Consumers International (2006) presents a review of the use of copyright flexibil-
ities in Asia. Musungu and Oh (2006) surveys the use of TRIPS flexibilities in the
area of public health in forty-nine developing countries.
123. Thorpe (2002) surveys the use of a broad range of TRIPS flexibilities up until 2000.
Sell (1998) and Sheppard (1999) each present a review of TRIPS implementation
up until 1998.

33
 2
Developing Countries in the
Global IP System

The history of the global intellectual property (IP) system set the political
backdrop for developing country responses to TRIPS. This chapter traces how
developing countries participated in the international IP system through three
phases, from the colonial era up until the close of the Uruguay Round.
The first formal encounters between developing countries, Western con-
cepts of IP, and international IP rules began during colonial era. As colonial
powers imposed their respective legal regimes in their colonies, variation in
the IP regimes of developing countries emerged.
A second phase began in the post-colonial era. In the late 1960s, a distinct
developing country discourse on international IP regulation emerged, led by
countries in the Americas and India in favour of reforms that would advance
their industrialization, and boost access to technologies and knowledge.
While there were regional differences in the approach developing countries
took to IP regulation, most national IP systems continued to be dominated
by foreign commercial priorities. Local expertise and institutional capacity to
manage IP systems were generally weak.
In the mid-1980s, developing countries faced counter-pressures from devel-
oped countries and knowledge-based multinational companies to agree to the
inclusion of strengthened international IP commitments in the multilateral
trading system, a prospect they greatly opposed.1 To break the North–South
stand-off, developed countries launched an economic and diplomatic offen-
sive that ultimately forced developing countries to concede. The terms of the
TRIPS deal that the supporters won were, however, deeply contested, setting
the scene for intense battles over its implementation.

2.1. The Colonial Era: Variation and External Control

In most developing countries, Western conceptions of privately held rights

over intellectual assets have no local cultural or legal roots.2 For many

34
 Developing Countries in the Global IP System

countries, pre-colonial commercial legal arrangements with European powers

marked their first encounter with Western practices related to IP.3 Subse-
quently, formal IP laws in developing countries emerged largely from colonial
administration.4 The trajectory of IP laws was, however, not uniform across
the developing world. Most notably, the experience of a number of countries
in the Americas was distinct from that of many countries in Africa, Asia, and
the Pacific.
In Latin America and the Caribbean (LAC), the establishment of national IP
laws began in the wake of independence from the Spanish and Portuguese in
the early nineteenth century. Several countries in the Americas promulgated
formal IP laws far earlier than other developing countries and indeed earlier
than many developed countries. In 1809, Brazil followed England, the United
States, and France, to become the fourth country to adopt an industrial
property law. As with most national laws, Brazil adopted the French Civil
Code enacted by Napoleon in 1804 (also known as the Napoleonic Code)
as the foundation for IP laws. In 1832, the first Mexican industrial property
law was passed (replacing Mexico’s first ordinance on industrial property
established in 1820 by a Spanish court decree). By the 1850s, eight Latin
American countries had formal IP laws, several decades before some developed
countries took similar action.5
In Africa, Asia, and the Pacific, the formal introduction of IP laws began
later in the nineteenth century, and was undertaken by European colonial
powers. Spurred on by the 1884 Congress of Berlin, the colonizers moved
swiftly to impose new laws, authorities, and institutions throughout their
respective territories to regulate their dealings with local populations and
their own citizens.6 In so doing, the major colonial powers, especially France
and Great Britain, laid the foundations for an enduring influence on legal
development in developing countries and on how law was perceived and
understood.7
In most of its possessions, the British Empire introduced the whole body
of its prevailing law, sometimes supplemented by local ordinances.8 Under
British colonial rule, India acquired a patent law in 1856, long before many
European countries. In the early twentieth century, the United Kingdom
transplanted its 1911 Copyright Act throughout its Empire including in East
Africa, Malaysia, and Nigeria.9 In the 1930s, for instance, the Federated Malay
States, North Borneo, and Sarawak adopted laws based on the same British
Copyright Act under pressure from British publishers and collecting societies
concerned about the copying of their works.10
France also applied its own IP laws to its colonies.11 While political debates
in France impacted upon how some of its laws applied in its colonies, French
IP law remained dominant throughout the colonial period. Until 1962, French
laws governed patent rights in the majority of francophone African countries,
and the French National Institute for Intellectual Property (INPI) served as

35
The Implementation Game

the central IP authority. In the Philippines, Spanish rule saw the introduc-
tion of Spanish patent law. When the United States assumed control of the
Philippines in 1898, the U.S. Patent and Trademarks Office examined its
patent applications according to U.S. law. The trajectory of Korean patent law
was similarly externally driven. Under Japanese occupation, Korea’s patent
law was replaced by Japan’s law in 1910. Then, under U.S. military adminis-
tration, U.S. patent law was transplanted to Korea in 1946. In countries under
the influence of the former Soviet Union after the Second World War, such as
Vietnam, Soviet laws served as the model for IP laws.12
Across the developing world, colonial IP laws embodied concepts alien to
many traditional and indigenous approaches to the stewardship of ideas,
knowledge, and innovation, and did little to incorporate them.13 For colonial
powers keen to ‘civilize’ new subjects, the imposition of their laws was consid-
ered a precondition for progress.14 Colonial administrators held ‘customary’
or ‘traditional’ laws of their dominions in low regard, particularly because they
did not serve the commercial interests of colonizers determined to extract as
much wealth from the colonies as they could.15 While the approach colonial
powers took to existing customary laws differed, they were equally disin-
clined to tailor laws to build innovation and technological capacity in their
colonies. Colonial legal systems also failed to build either local IP expertise
or an IP ‘culture’ among their subjects. In francophone Africa, for instance,
France supplied legal experts and expertise from the métropole, devoting little
attention to training colonial subjects in matters of legal administration in
general and far less in the area of IP. While the British had a greater emphasis
on socializing the legal profession in its colonies and generating an English
legal culture, this practice rarely extended to the realm of IP, which remained
largely administered from London. India was a notable exception in that
colonial administrators did take measures to foster the development of a cadre
of local IP experts.
The first contact of developing countries with international IP law began in
the late nineteenth century with the forging of the first multilateral IP agree-
ments,16 namely the 1883 International Convention for the Protection of
Industrial Property (the Paris Convention)17 and the 1886 Berne Convention
for the Protection of Literary and Artistic Works (the Berne Convention).18
Together, these two treaties were designed to enhance the degree of protection
that IP holders enjoyed in foreign jurisdictions19 and to replace the loose
network of reciprocal IP arrangements that European powers had previously
included in some of their bilateral commercial treaties.20 The cornerstone of
both the Paris and Berne Conventions is the principle of National Treatment,
which provides that signatory countries shall extend to foreign nationals the
same advantages, rights, and legal remedies against infringement as enjoyed
by their own nationals. In 1893, the secretariats of the Berne and Paris
Conventions were merged to form the United International Bureaux for

36
 Developing Countries in the Global IP System

Intellectual Property Protection (BIRPI), the predecessor of the World Intel-

lectual Property Organization (WIPO).
Only a handful of developing countries were among the original signa-
tories of the Berne and Paris Conventions and fewer participated in their
negotiation.21 Of the twelve countries that participated in the original Berne
negotiations (two as observers), only three countries now classified as devel-
oping were present, namely Haiti, Liberia, and Tunisia. In the case of the Paris
Convention, only Brazil, Ecuador, El Salvador, and Guatemala were founding
members of the Union, along with Tunisia which became a member through
adherence as a French protectorate.22 Notably, almost half of the original
signatories to the Paris Convention lacked national patent regimes at the time
of their ratification, including Ecuador, El Salvador, and Guatemala, Serbia,
Switzerland, and the Netherlands.23 The three former countries left the Paris
Union in 1886, 1887, and 1895 respectively, only rejoining more than 100
years later with the adoption of TRIPS.
The reach of the Berne and Paris Conventions gradually extended across
the developing world, primarily through the accessions of the major colonial
powers (France, Germany, Italy, Belgium, Spain, and the United Kingdom).24
Using Article 19 of the Berne Convention (the so-called colonial clause),
European powers included their vast colonial holdings of territories, colonies,
and protectorates in the terms of their respective accessions.25 In 1914, the
addition of a further two colonial powers to the Berne system, Portugal and
the Netherlands, further extended the global reach of international IP law.26
Only two countries from the Americas joined the Berne Convention: Brazil
in 1922 and Canada in 1928. Instead, a distinct inter-American approach to
IP protection emerged among Latin American and Caribbean countries and
the United States.27 Several inter-American treaties on copyright were adopted
between 1889 and 1946 (namely, the Montevideo, Mexico, Rio, Buenos Aires,
Caracas, Havana, and Washington Conventions).28 Meanwhile, two further
international IP treaties came into force: the 1891 Madrid Agreement con-
cerning the international registration of trademarks and the 1925 Hague
Agreement on the international deposit of industrial designs.

2.2. The Post-colonial Era: Reform and Resistance

2.2.1. Variation in Post-colonial Reforms

With decolonization in the 1950s and 1960s, the diversity of approaches to
IP law among developing countries continued. Despite independence, most
developing countries maintained strong policy and legal links with their
formal colonizers, particularly those countries that emerged from colonization
with weak and fragile governments.

37
The Implementation Game

In many newly sovereign countries, IP laws promulgated after indepen-

dence still closely resembled earlier colonial laws or those of former colonial
powers. Most former British colonies and dominions, for instance, enacted
copyright laws based on the same 1911 British Copyright Act that had
served as the foundation for their colonial laws.29 In Lesotho, for instance,
Britain’s 1919 Patents, Trade Marks, and Designs Protection Proclamation
operated until 1989. In most anglophone African countries, governments re-
registered patents already approved in the United Kingdom, often irrespective
of whether such patents were consistent with their new national patent
laws.30 In francophone Africa, many countries adopted copyright laws that
replicated those of France at the time and in some cases simply kept prior
French laws in place.31 Despite obtaining independence in 1968, Mauritius
continued to rely on the French Trade Marks Act (1968) and Patents Act (1975)
for over twenty years. Upon acquiring independence in 1947, the Philippines
created an independent patent system but modelled it on U.S. patent law.32
Across Africa, regional arrangements facilitated the enduring influence of
former colonial powers on IP laws. In September 1962, twelve francophone
African countries signed the Libreville Agreement which established a regional
framework for industrial protection largely based on French legislation and
created the African and Malagasy Patent Rights Authority (OAMPI).33 The
Agreement was updated in 1977 at which time OAMPI became the African
Intellectual Property Organization (OAPI), but French influence on the legal
provisions in the Agreement and on national copyright laws continued.34 (See
Chapter 7.)
Anglophone African countries followed suit in the 1970s. A regional sem-
inar on patents and copyright held in Nairobi recommended the pooling
of national resources on industrial property and the creation of a regional
organization. In 1973, WIPO and the United Nations Economic Commis-
sion for Africa (UNECA) moved this agenda forward, responding to a for-
mal request from anglophone African countries for assistance.35 Following
meetings at the UNECA headquarters in Ethiopia and at WIPO in Geneva,
a draft agreement on the creation of the Industrial Property Organization for
English-speaking Africa (ESARIPO) was prepared and adopted in 1976 by a
diplomatic conference in Lusaka, Zambia. The ECA and WIPO served jointly
as the Secretariat of ESARIPO until 1981 when the organization established
an independent Secretariat. In 1985, ESARIPO members amended the Lusaka
Agreement to open membership to all African countries and became the
African Regional Industrial Property Organization (ARIPO). While the OAPI
system serves as the equivalent of a regional IP law for most aspects of IP
and derives primarily from French IP laws, the ARIPO system coexists with
the national IP laws in its member states and draws primarily from British IP
law.36 The scope of ARIPO’s activities subsequently expanded from industrial
property to include traditional knowledge, copyright, genetic resources, and

38
 Developing Countries in the Global IP System

expressions of folklore knowledge, prompting a further name change to the

African Regional Intellectual Property Organization (ARIPO).
By contrast, in the Americas and some Asian countries, the era of decol-
onization sparked efforts to substantially revise their IP laws and related
policies. In the Americas, countries focused on reforming their own prior laws.
Convinced that governments must play a central role in advancing national
development, these countries adopted policies with an eye to building
domestic industrial capacity and shifting their comparative advantage in the
international economy.37 Common strategies deployed by Argentina, Brazil,
Colombia, Mexico, and Peru included import controls to protect domestic
markets, subsidies to channel investment into new sectors, regulations on
foreign investment to spur backwards linkages and technology transfer, and
the reform of IP regimes to make modern technologies cheaper and foreign
innovations more widely available. Specific IP reforms included restrictions
on the private rights of (largely foreign) patent holders and licensing practices
that were more favourable to local producers.38
The approach adopted by the Andean Community, established in 1969
by Chile, Colombia, Bolivia, Ecuador, and Peru, exemplified the ‘reformist’
agenda.39 United by a joint commitment to industrial development and
deeper regional integration, the Andean countries adopted common rules
on foreign direct investment (FDI), IP (including licences and royalties), and
technology transfer.40 The Andean Community’s Decision 24, adopted in
1970, was the centrepiece of this approach.41 The Decision set forth a series
of performance requirements for foreign investors and stipulated that all
contracts covering technology imports, patents, and trademarks be submitted
to member states for examination and approval. In Colombia, for instance,
the criteria for evaluating technology contracts included consideration of the
potentials effects on the national balance of payments and employment.42
A significant additional element of the Andean approach was that members
were barred from unilaterally forging IP agreements with third countries
or with international organizations (IOs) that were considered contrary to
the common IP policies.43 The practical implication was that no individual
Andean country could join the Paris Union while Decision 24 was in force.44
Meanwhile in Asia, the newly independent Indian government sought
the advice of two national expert committees on appropriate reforms to its
patent system.45 The Patent Enquiry Committee (1948–50) concluded that,
‘the Indian patent system has failed in its main purpose, namely to stimulate
inventions among Indians and to encourage the development and exploita-
tion of new inventions for industrial purposes in the country so as to secure
the benefits thereof to the largest section of the public’.46 Later, the Ayyangar
Committee (1957–9) noted that 80 to 90 per cent of patents in India were held
by foreigners. The Committee argued that this limited the affordability and
accessibility of goods in India while enabling foreigners to gain monopolistic

39
The Implementation Game

control of the local market.47 On the advice of these two committees, India
reformed its IP laws to better address its specific social priorities (e.g. increased
access to medicines at lower prices), economic realities (e.g. low domestic
capacity for research and development (R&D)), and national development
priorities (e.g. building national industrial capacity, fostering R&D in areas
of national significance, and rural development).48
The reformist efforts by some developing countries to tailor IP laws to
national priorities were exemplified by their approach to IP protection for
pharmaceuticals. In 1970, India adopted a new Patent Law which allowed
patents on the methods or processes related to new medicines but not on
medicines themselves. The new law also limited the term of patents in areas of
social concern, such as food and health, to seven years (in contrast to fourteen
years for other inventions), including for pharmaceutical processes. This law
then became the legal foundation for India’s generic drug industry.49 Brazil,
Mexico, and Argentina similarly lowered standards of patent protection to
stimulate local production of generic medicines. From 1971 to 1996, Brazil did
not, for example, permit patents on chemical products or on pharmaceutical
and nutritional processes and products.50
Importantly, the revised IP laws of the ‘reformist’ developing countries did
not diverge radically from prevailing practice in developed countries. Indeed,
IP standards among developed countries also varied considerably at that
time.51 Through legislative or procedural means, many developed countries
favoured domestic IP owners over foreigners.52 There was diversity in the
scope and term of IP rights and also in the range of exceptions to patentability.
Notably, in the 1970s, no other country in the world beyond the United States
granted protection for pharmaceutical products. The IP policies of reformist
developing countries were nonetheless unpopular, particularly among phar-
maceutical cartels in developed countries which had hitherto dominated the
international market for medicines.53

2.2.2. The Rise of Developing Country Voices for Reform

of International IP Rules
With the end of the colonial era, the growth in the number of sovereign
developing countries resulted in an expanding membership of international
IP agreements. Developing country membership of the Paris Union grew from
three to fifteen between 1900 and 1958, and then to forty-four by 1973.54
African countries were the swiftest to join the international IP system. Egypt,
Morocco, and Tunisia, for instance, became members of the Paris Union
before 1960, followed by a further twenty-two African country members by
1975. Membership of the Berne Convention also grew. BIPRI moved swiftly
to facilitate a system whereby newly independent states in Africa and Asia
that were no longer bound by Berne’s colonial clause could issue ‘declarations

40
 Developing Countries in the Global IP System

of continued adherence’.55 Through such declarations, and also sometimes

by virtue of customary law, the Berne Convention continued to apply in
many countries on the same terms as in the pre-independence accession of
the former colonial power. The automatism and formalism of this process
forestalled careful reflection among new signatories as to the alignment of
these agreements with their national interests.56 Reflecting on the accession
of eleven francophone African countries to the Berne Convention between
1962 and 1964, one critic argues persuasively that in the aftermath of inde-
pendence, these countries were ‘so totally dependent economically and cul-
turally upon France (and Belgium) and so inexperienced in copyright mat-
ters that their adherence was, in effect, politically dictated by the “mother
country”’.57
The response of developing countries to the international IP system in
the post-colonial era also varied by region. A range of larger developing
countries delayed their adherence to the international IP conventions. In the
Americas, governments were sceptical of the merits of international IP
agreements and proceeded cautiously.58 Bangladesh, China, India, Malaysia,
Pakistan, Korea, Sudan, and Thailand all joined the Paris Union only in the
1980s. India became a member in 1998 and Pakistan in 2004. In 1970, only
eight countries from Latin America and the Caribbean were members of the
Paris Union: Argentina, Brazil, Cuba, the Dominican Republic, Haiti, Mexico,
Trinidad and Tobago, and Uruguay. The majority of developing countries in
the Americas postponed adherence to the Paris Convention until the 1990s
after the adoption of TRIPS.
In addition, most Latin American countries also declined to join the Berne
Convention in part because they already adhered to inter-American treaties
regulating copyright. Further, like some of the newly independent states no
longer bound by the Berne Convention, they were reluctant to join what they
perceived as a developed country grouping, that demanded standards they
considered too high. In 1970, only Argentina, Brazil, Mexico, and Uruguay
from LAC were members of the Berne Convention (most joined only post-
TRIPS).59 Instead, most LAC countries joined the United Nations Educational,
Scientific and Cultural Organization’s (UNESCO) 1952 Universal Copyright
Convention (UCC).60 The UCC emerged as an alternative to Berne, bringing
developing countries together with the Soviet Union and the United States61 ,
neither of which intended to adhere to the Berne Convention but were inter-
ested in an international system for copyright protection. The UCC regime
was less protective than Berne but attracted more signatories.62
Meanwhile, to advance specific commercial interests, developed countries
pushed for a growing number of international IP agreements. Between 1957
and 1961, four new international treaties were concluded, covering issues
including the classification of marks, and the protection of geographical
indications, performances and broadcasts, plant varieties (see Appendix 2).

41
The Implementation Game

In 1957, for instance, France hosted the first preparatory meetings for a new
treaty to protect new plant varieties at the prompting of commercial plant
breeders and the International Chamber of Commerce (ICC). Beginning in
the 1920s and 1930s, several European countries had introduced distinct sui
generis legislation, separate from patent law, for the protection of so-called
breeders’ rights.63 The result of international talks emerged in 1961 in Paris,
when six European countries founded the International Convention for the
Protection of New Varieties of Plants which in turn established an Interna-
tional Union (UPOV).64 The Convention provides exclusive property rights to
breeders of new plant varieties for a given period of time and came into force
in 1968. The UPOV Convention was subsequently revised several times, each
time strengthening the protection available to plant breeders.65
From the 1960s onward, the Andean countries, Argentina, and Brazil led
the assertion of a distinct developing country voice on international IP reg-
ulation. In 1961, Brazil tabled a first proposal on patents and developing
countries at the UN General Assembly. The proposal resulted in a General
Assembly Resolution calling on the UN Secretary General to prepare a study
that would include analysis of the effects of patents on developing country
economies and a survey of patent legislation.66 Concerned about the progres-
sive strengthening of the Paris Convention since its inception,67 Brazil’s goal
was to use the Resolution and subsequent UN report to push for revisions
to the Convention that would better address the special needs of developing
countries.68
Developing countries were also active in promoting reforms of international
copyright treaties in the 1960s. Led by India, they argued that their ability
to improve mass education was limited by publishing cartels and the high
royalties and licensing fees demanded by developed country copyright hold-
ers. This concern culminated in a campaign to revise the Berne Convention
and the UCC to increase their access to information, literature, and artistic
works.69
This growing activism provoked concern in BIRPI and among its developed
country members that developing countries might challenge the agency’s
primacy on international IP issues and push for other parts of the interna-
tional system, such as the UN Economic and Social Council (ECOSOC), to
play a greater role.70 In 1962, keen to attract a greater number of developing
countries in what was largely a ‘developed country club’, BIRPI’s members
established a Committee of Governmental Experts charged with considering
structural and administrative reforms that would facilitate its transformation
into a fully-fledged international organization and its incorporation into the
UN system.71
In 1964, the UN published its response to the 1961 Resolution, highlighting
a range of challenges for developing countries with respect to the patent
system.72 The report demurred on the question of holding an international

42
 Developing Countries in the Global IP System

conference to examine problems related to patents. Developing countries

nonetheless continued to push for reform of the major IP conventions.73
In 1966, the nine developing countries74 attending discussions on the
reform of BIRPI successfully ensured that membership of the proposed new
organization would not require accession to either of its two core conven-
tions (Paris and Berne).75 In 1967, the Convention establishing the World
Intellectual Property Organization (WIPO) was approved at the Stockholm
Diplomatic Conference. At the same meeting, after much wrangling between
developed and developing countries, a Protocol was added to both the Berne
Convention and the UCC, extending selected special rights to developing
countries to limit the rights of authors and publishers in the area of translation
and reproduction.76 Concerns from copyright holders in developed countries,
however, prevented the ratification of the Berne Protocol. A further four
years of intense negotiations yielded a less ambitious Appendix to the Berne
Convention (the so-called Paris revisions) which grants developing coun-
tries special permissions to issue compulsory licences for the translation and
reproduction of copyrighted works, but establishes more restrictive conditions
than the original Protocol.77 Subsequent use of the Appendix by developing
countries was further constrained by the complicated procedures it established
for issuing compulsory licences.78
Meanwhile, the call for reform of the Paris Convention intensified.79 In
the 1970s, nationals of developing countries held only around 1 per cent
of the world’s 3.5 million patents.80 As net technology-importing countries,
developing countries contended that the granting of monopoly IP rights in
their markets favoured the commercial strategies of foreign enterprises over
national interests.81 Indeed, the evidence showed that 80 per cent of patents
granted worldwide at that time were owned by major corporations from
five industrialized countries.82 Further, over 80 per cent of the patents in
force in developing countries were held by foreigners and registered on the
basis of research conducted elsewhere.83 Developing countries thus argued
that international patent rules were intrinsically unbalanced in favour of
developed countries.84 They also questioned the purported links between
stronger IP protection and increased domestic innovation, noting that even
where patents were granted in their countries, ‘a very small number were
actually used in domestic production’.85 In addition, they contended that
the monopoly IP rights frustrated competition and made many technologies
unaffordable in their markets.
At the United Nations, the developing country call for more development-
friendly international regimes extended far beyond the IP arena. In 1964, they
had already achieved the establishment of the United Nations Conference on
Trade and Development (UNCTAD). In addition, they succeeded in pushing
for the incorporation of the principle of special and differential treatment,
and other provisions designed to favour developing countries, in the General

43
The Implementation Game

Agreement on Tariffs and Trade (GATT).86 In 1970, developing countries

achieved a UN General Assembly Resolution on an ‘International Develop-
ment Strategy for the Second UN Development Decade’,87 which included a
call for a programme to promote technology transfer, including a ‘review of
the international conventions on patents’.88 In 1972, Latin American coun-
tries pushed the case for reform at a regional conference on science and tech-
nology organized by the Organization of American States (OAS) in Brazil.89
In the resulting ‘Consensus of Brasilia’, governments claimed that IP regimes
had ‘become inadequate and have been exploited by technology exporters
to impose consumption patterns and obtain production, distribution, and
trade privileges’.90 The same year, developing countries called on UNCTAD
for an update of the UN’s 1964 study to further improve understanding of the
role of the international patent system in technology transfer. In 1973, in a
report to ECOSOC on the relationship between WIPO and the UN, the WIPO
Director General reported his view that ‘it would probably be more practical to
concentrate on new international instruments which could be better geared
to the solution of some problems of transfer of technology, restrictive business
practices, etc.’.91 Citing the 1971 Paris revisions to the Berne Convention as
a precedent, however, the Director General did nonetheless concede that ‘if
a revision of existing conventions would appear more desirable, and feasible,
such revision, even if substantial, would be possible’.92
The year 1973 also marked the consolidation of developing country efforts
to incorporate their reformist agenda for the international IP system into a
broader call for fairer international economic relations. Developing countries
launched their agenda for a New International Economic Order (NIEO) at the
1973 Summit Conference of Non-Aligned Nations held in Algiers. In 1974,
when the global oil crisis shifted the power dynamics at the UN in their
favour, developing countries seized the opportunity to secure the General
Assembly’s adoption of a ‘Declaration and Program of Action on the NIEO’,93
as well as a UN Charter of Economic Rights and Duties of States.94
The NIEO agenda included specific proposals to promote international
cooperation in science and technology, industrialization of developing
countries, and fairer terms for technology transfer. Reflecting their concern
about the unequal global distribution of technology ownership, developing
countries achieved statements in the UN Charter affirming that ‘[e]very State
has the right to benefit from the advances and developments in science
and technology for the acceleration of its economic and social development’
and that all countries should cooperate to develop ‘internationally accepted
guidelines or regulations for the transfer of technology’.95
To further advance their agenda on technology transfer, developing coun-
tries worked in the 1970s to empower several parts of the UN system,
including UNCTAD, ECOSOC, and the UN Industrial Development Organi-
zation (UNIDO). At UNCTAD, developing countries pushed for a Code of

44
 Developing Countries in the Global IP System

Conduct on the Transfer of Technology (CCTT) to promote technology trans-

fer under more advantageous terms.96 Developing countries also called for a
UN Code of Conduct on Transnational Corporations (TNCs) to better regulate
the monopoly power of transnational corporations and their contribution
to national development.97 While the push for the Codes ultimately failed,
developing countries used the negotiations to question the scope of rights,
including IP rights, extended to foreign individuals and companies active
within their borders.98 In addition, throughout the negotiations for the
1982 UN Convention on the Law of the Sea, developing countries pushed
for commitments to technology transfer on fair and reasonable terms and
conditions.99
In 1974, WIPO concluded an agreement with the UN, thereby establishing
itself as a UN-specialized agency and securing recognition as the primary UN
actor in the area of IP.100 Developing countries used the agreement as an
opportunity to make WIPO’s mandate and activities more strongly informed
by the development agenda they had advanced in the UN system. The original
1967 Convention establishing WIPO had emphasized the desire of members
to encourage ‘creative activity’ by promoting ‘the protection of intellectual
property throughout the world’, and by modernizing and improving the
efficiency of the administration of its conventions. The 1974 Agreement
between WIPO and the UN assigns WIPO broader responsibilities, namely
‘for promoting creative intellectual activity and for facilitating the transfer
of technology related to industrial property to the developing countries in
order to accelerate economic, social, and cultural development’.101
In 1975, UNCTAD released its report on the role of the international
patent system in the transfer of technology to developing countries.102 Com-
pared to the earlier 1964 ECOSOC study, this report advanced more assertive
conclusions on the need for the revision of international conventions.103
While WIPO was involved in the study, largely to show it could respond to
development concerns, its leadership remained cautious about the need for
reform. Developing countries used the 1975 UN General Assembly to advance
a resolution calling for the reform of the Paris Convention to ensure that
it met the ‘special needs of developing countries’.104 Soon thereafter, WIPO
established an Ad Hoc Group of Governmental Experts on the Revision of the
Paris Convention. In 1977, WIPO’s members adopted a Declaration of Objec-
tives to set the framework for the subsequent Diplomatic Conference.105 The
Declaration emphasized that industrial property systems should help advance
the industrialization of developing countries, including by improving access
to technology, the terms of technology transfer, the actual working of inven-
tions in developing countries, and greater inventive activity within their
borders.106 When governments formally began the review process in 1980,
the Paris Union became a ‘battleground’ between developed and developing
countries.107

45
The Implementation Game

2.3. The Counteroffensive for Stronger IP Protection

In the 1980s, a developed country counteroffensive to strengthen interna-

tional IP protection began to build momentum. As concerns about waning
competitiveness grew, developed country governments attached increasing
importance to the strategic role of technology and the protection of intangible
assets for their economic growth and trade prospects.108
In the United States, over 25 per cent of exports in the 1980s contained
a high IP component (chemicals, books, movies, records, electrical equip-
ment, and computers) compared to 10 per cent in the post-war period.109
While rapid advances in information and communication technologies had
increased opportunities for international trade in knowledge-based goods,
they also multiplied the possibilities for imitation, copying, and unauthorized
use of technologies. Together these factors altered the economic dynamics
of the so-called content and R&D-based industries.110 U.S. corporations drew
attention to a range of challenges posed by weak protection of IP within and
beyond national borders, claiming that stronger rights were central to their
business model both at home and abroad.111 Initially, the United States and
Europe focused on threats from each other and from the growing industrial
strength of the Japanese economy. The spotlight then turned to the domestic
IP policies of new competitors perceived to endanger returns from trade
and investment in IP-related goods and services.112 As the U.S. trade deficit
burgeoned, competition from cheaper products produced in newly industrial-
izing countries in East and Southeast Asia, such as Korea and Taiwan, became
a core concern.113
Facing cuts to their profit margins, foreign export markets, and also domes-
tic market shares, U.S. industries complained that competitors were ‘free-
riding’ on their R&D investments. They called on the U.S. government to
help halt imitation and reverse engineering abroad. Like-minded leaders of
major U.S. corporations then mobilized to consolidate a U.S. agenda for a
trade-based conception of IP rights and to integrate IP into international
trade policies. Key actors included the International Intellectual Property
Alliance, the Pharmaceutical Manufacturers Association, the Chemical Man-
ufacturers Association, the National Agricultural Chemicals Association, the
Motor Equipment Manufacturers Association, the Auto Exports Council, the
International Anti-counterfeiting Coalition, and the Semiconductor Industry
Association.114 Their push to link trade and IP was facilitated by reforms to
U.S. trade law and USTR, which gave U.S. corporations even greater access to,
and influence on, the U.S. trade policymaking process.115 The international
IP agenda of the U.S. government was firmly captured by large IP producers
and exporters (even as debates continued to erupt in U.S. Congress about the
appropriate balance in national IP laws and policies).116

46
 Developing Countries in the Global IP System

A core concern of developed country multinationals was that IP laws and

practices in developing countries favoured domestic IP holders over foreigners
and offered little effective protection to non-national IP holders.117 Pharma-
ceutical companies facing competitive threats from cheaper generic versions
of medicines complained about the narrow scope and short term of patent
protection in many developing countries, lack of transparency in the patent-
granting process, and limited legal security in respect of the enforcement of
patent rights.118 Together, representatives of companies from many different
sectors alleged that developing countries lacked vigilance in preventing the
production of counterfeit goods and the unauthorized use of trademarks.119
Companies in the entertainment industry charged that developing countries
were too tolerant of piracy of sound recordings and video, citing losses of
billions of dollars per year.120
U.S. and European multinational companies were particularly frustrated by
the diversity of the strength and duration of IP rights around the world (see
Appendix 3). Of the ninety-eight developed and developing country members
of the Paris Convention, forty-nine excluded pharmaceutical products from
protection, forty-five excluded animal varieties, forty-four excluded methods
of treatment, forty-four excluded plant varieties, forty-two excluded biological
processes for producing animal or plant varieties, thirty-five excluded food
products, thirty-two excluded computer programs, and twenty-two excluded
chemical products.121 Many developing countries still had in place some or
all of the exceptions that most developed countries had abandoned ten to
twenty years earlier. Countries such as India, China, and Vietnam exempted
pharmaceutical products, food products, and chemicals from patentability.122
Importantly, the picture varied among developing countries. A large pro-
portion of the poorest developing countries, particularly those which had
inherited IP laws from their colonizers, did not incorporate many of the IP
exceptions, exclusions, and limitations found elsewhere. A core priority of
large multinational companies was to ensure that the steps that countries such
as India, Brazil, Argentina, and Mexico had taken to lower IP protection would
not set a precedent for other countries to follow.
Existing international IP agreements offered concerned multinational com-
panies little recourse. Many developing countries had not yet acceded to the
various WIPO conventions, which in any case were widely acknowledged to
be ‘toothless’.123 While developing countries hoped to use revisions to WIPO’s
Paris Convention to ‘reclaim some of the flexibilities lost in the numerous and
substantial revisions’ since 1883 (such as the diminishing scope for countries
to use compulsory licensing and revoke patents), developed countries wanted
the revision process to further strengthen the rights of patent holders.124 At
the ensuing negotiations held between 1981 and 1983, ‘developing coun-
tries were as intent on lowering the international minimum standards of

47
The Implementation Game

patent protection as the developed countries were resolved to elevate the

same standards’.125 Especially contentious were developing country proposals
to strengthen their ability to use compulsory licences.126 The United States
considered such proposals to be ‘tantamount to expropriation’127 of the rights
of U.S. IP holders (despite the fact that the U.S. government itself made use
of compulsory licences in several areas it considered critical to the national
interest).128 Developing countries achieved little headway. Their efforts were
further frustrated when the WIPO Director General introduced a proposal to
address issues of concern to developed countries through a Complementary
Agreement to the Paris Convention, thereby countering the push for reform
of the main convention. An Expert Group appointed to consider WIPO’s pro-
posal expanded its mandate to include consideration of increased substantive
standards for some aspects of patent protection (e.g. the minimum duration of
rights, the scope of patentability, and enforcement).129 In 1991, a Diplomatic
Conference for the proposed Complementary Agreement was convened in
The Hague. Ultimately a North–South stalement, combined with important
differences among developed countries (on issues such as ‘first to file’ versus
‘first to invent’), stalled this set of negotiations.130
Meanwhile, having lost confidence in WIPO as the prime forum for negoti-
ation of international IP rules and improving their enforcement, U.S. officials
had begun to pursue other tools for strengthening international IP regulation,
most notably in the multilateral trading system131 (Developed countries had
hitherto called upon the GATT system to address only IP matters specifically
related to international trade in counterfeit goods).132

2.3.1. Unilateral Pressures on Developing Countries

In the early 1980s, the United States and the European Union intensified
the process of bolstering their respective trade laws, equipping themselves
with new unilateral tools to push for stronger IP protection in developing
countries.133 A combination of both sticks (unilateral threats) and carrots
(promises of new market access for products of interest to developing coun-
tries) were used. Simultaneously, these tools were harnessed to pressure devel-
oping countries to accept the inclusion of IP rules in the GATT regime.
In 1981, the Caribbean Basic Economic Recovery Act elevated IP protection
to one of the principle priorities of U.S. trade policy. In 1984, the U.S. Congress
bolstered Section 301 of the U.S. Trade and Tariff Act, authorizing the U.S.
administration to link its trading partners’ trade benefits to performance in
the area of IP protection.134 The Act required USTR to identify countries
that denied adequate and effective IP protection, to specify ‘priority coun-
tries’ that were the most important transgressors and failed to undertake or
make progress in negotiations with the USTR, and to initiate investigations
which could lead to remedial action. Also in 1984, the Generalized System of

48
 Developing Countries in the Global IP System

Preferences (GSP) Renewal Act established IP protection as one of the criteria

governing the eligibility of countries for GSP treatment of their exports to the
United States authorizing the President to withdraw GSP tariff concessions
from a developing country considered to have ‘weak’ IP protection.135 At
the time of the renewal, some 140 developing countries received U.S. GSP
benefits.136 These included many of the countries that would become key
players in the TRIPS discussions, such as Argentina, Brazil, India, and South
Korea. Given the great number of developing countries in the GSP system,
the inclusion of IP considerations as one of the criteria for trade benefits
gave the United States substantial leverage to push for IP improvements across
the developing world. Developing countries expressed strong concerns. At a
meeting of the GATT Committee on Trade and Development in November
1985, some developing country representatives criticized the U.S. approach as
‘quite alien to the spirit and purpose’ of the GSP system, namely to help them
gain access to markets.137
Later in the 1980s, the U.S. Congress further expanded the administration’s
tool kit for strengthening IP protection at home and abroad. The 1988 Process
Patents Amendment Act provided that buyers importing any products into
the U.S. domestic market made in violation of U.S. IP laws would be liable to
civil suit by the U.S. holders of the violated IP rights.138 The same year, the
Omnibus Trade and Competitiveness Act introduced further changes to the
1974 Trade Act. A partial amendment to Section 337 of the Act allowed for
the complete exclusion from the United States of any import manufactured
in a way that violated the IP rights held by U.S. individuals or firms under
domestic law, without any requirement of injury to the U.S. producer.139 The
so-called Special 301 provisions of the Act also gave the U.S. government new
tools for applying pressure on countries for practices that violated IP rights
protected under domestic U.S. law (irrespective of whether those products
entered into the United States). The Special 301 provisions instructed USTR to
remedy ‘unfair’ trade practices through the use of monitoring and the threat
or actual imposition of trade sanctions.
In line with its Special 301 powers, USTR began to conduct annual reviews
of the IP practices of U.S. trading partners, identifying countries that failed
to provide adequate and effective IP protection, or fair and equitable market
access for U.S. nationals relying on IP. It then categorized countries according
to its assessment of how damaging their alleged malfeasances were to U.S.
commercial interests. Priority Foreign Countries were those that USTR deemed
to have the most onerous or egregious policies with the greatest adverse
impact on U.S. IP right holders or products. These countries were subject to
accelerated investigations and possible sanctions. Alternatively, USTR placed
countries on its Priority Watch List (for countries that did not provide ade-
quate IP protection and enforcement or market access for U.S. persons relying
on IP protection) or Watch List (for countries USTR believed merited bilateral

49
The Implementation Game

attention to address underlying IP problems). Critically, the 1988 revisions

also made resisting U.S. IP priorities in a multilateral forum one of conditions
that could lead to designation as a Priority Foreign Country and therefore
subject to further investigation.
The Special 301 provisions provoked an outcry from India and Brazil, and
critical commentary from leading trade law experts who challenged the legal-
ity of U.S. Special 301 actions.140 The European Communities initiated a GATT
Panel which found in 1989 that Section 337 of the U.S. Trade Act violated
GATT National Treatment obligations because it provided weaker procedural
protection to foreigners than to U.S. firms and individuals accused of violating
U.S. IP laws.141 Leading trade scholars derided Special 301 as ‘aggressively
extraterritorial’ on the grounds that it ‘does not refer to any set of norms or
principles in order to define adequate intellectual property protection among
U.S. trade partners – the implicit assumption being that any level of protection
inferior to that provided by U.S. law is an unfair trade practice’.142
Meanwhile, the European Union also developed tools to link IP protection
to trade benefits. In 1984, a Council Regulation empowered the European
Commission to engage in trade retaliation against ‘illicit commercial practices’
(defined as violations of ‘international law or generally accepted rules’) by
non-EU countries that affected EU economic interests.143 In contrast to U.S.
practice, the European instrument focused primarily on violations of obliga-
tions in international treaties, such as the Berne and Paris Conventions. The
Regulation was rarely used, however, in part because the European Commis-
sion was unable to build consensus among members for its deployment.144
The Commission did nonetheless take some bilateral action on IP issues,
including the suspension of its GSP concessions to Korea.145
The United States and Europe also worked simultaneously to include IP pro-
visions in a growing network of bilateral and regional agreements. In the mid-
1980s, U.S. bilateral trade agreements with Israel and Vietnam were among
the first to include IP commitments. The United States also negotiated a first
generation of IP-specific bilateral agreements with Ecuador, China, Korea, the
Philippines, Taiwan, and Sri Lanka (which focused mostly on IP enforcement
rather than standards) and some twenty bilateral investment treaties (BITS)
with developing countries that included provisions related to IP protection.146
In addition, the United States worked to strengthen IP protection in Latin
America through bilateral discussions with ministers and diplomats. Only in
Ecuador did these efforts result in a formal bilateral IP agreement.
The European Union’s approach was more subtle but still very important.
The European Commission, observes Peter Drahos, was a ‘quiet free-rider’
on U.S. efforts, ‘sometimes sending in negotiators to conclude a bilateral
agreement on intellectual property with a developing country after U.S.
negotiators had brought that country to the negotiating table using the 301
process’.147

50
 Developing Countries in the Global IP System

The combined force of unilateral pressures worked. Between 1985 and 1995,
at least eighteen developing countries undertook reforms to strengthen patent
protection, namely Argentina, Bangladesh, Benin, Brazil, Burkina Faso, Chile,
China (twice), Colombia, Ecuador, Indonesia, the Republic of Korea, Malaysia,
Mali, Mexico, Paraguay, Peru, Thailand, and Venezuela.148

2.3.2. The Multilateral Agenda and the TRIPS Negotiations

Alongside unilateral pressures on developing countries to improve IP protec-
tion, the United States worked to strengthen multilateral IP regulation. To
advance this goal, the United States embarked on a deliberate effort to shift
IP discussions from WIPO to the GATT where U.S. strategists assessed that
the prospects for obtaining stronger international IP standards were highest.
Compared to WIPO and other UN fora, developing countries were poorly
organized in the GATT context. The GATT negotiation process would also gave
the United States the possibility to leverage progress on their international
IP agenda in exchange for movement on developing country market access
priorities. Further, the inclusion of a multilateral IP agreement in the GATT
system would enable the United States to use trade remedies to push for
stronger IP enforcement.149 Not surprisingly, developing countries opposed
the move to include IP in the Uruguay Round. When the United States raised
IP issues in a GATT experts meeting in 1985, countries such as Brazil and India
perceived the move as a frontal attack on their efforts to reform international
and national IP rules. They insisted that the GATT’s purview be limited to
trade in goods and argued that WIPO was a more appropriate and competent
forum for multilateral IP negotiations.150
The United States was not dissuaded. Supported by industry lobbyists,
the U.S. government worked to enlist the support of European countries
and Japan,151 as well as a network of economists and legal scholars willing
to build the case as to why strengthened IP protection would be good for
development. The argument they advanced was that IP protection would
help developing countries attract FDI, promote technology transfer, stimulate
domestic innovation, and increase their global competitiveness.152 In Geneva,
the United States and the European Union insisted that the inclusion of IP on
the Uruguay Round agenda was a necessary concession for launching new
trade negotiations.
To overcome developing country opposition to the inclusion of IP in the
GATT negotiating agenda, developed countries deployed a full range of carrots
and sticks.153 In September 1985, President Reagan cited Brazil and Korea
as indulging in unfair trade practices.154 Using its GSP Renewal Act, the
United States threatened Brazil with trade penalties to pressure it to grant
protection for pharmaceutical products and processes. In 1986, the United
States extracted IP protections from Korea in a bilateral trade agreement that

51
The Implementation Game

they subsequently characterized as a model for TRIPS. By the end of that year,
developed countries succeeded in inserting ‘trade-related’ aspects of IP into
the official negotiating agenda set out in the GATT Ministerial Declaration of
Punta del Este.155
The use of the term ‘trade-related aspects of intellectual property’ in the
Ministerial Declaration was a negotiated expression that developing coun-
tries hoped would help them qualify and limit the scope of subsequent IP
negotiations.156 When the Round began, the question of the scope of IP
negotiations was the focus of debate.
In contrast to their activism on IP issues at WIPO and the UN, only a
small and loosely coordinated grouping of ten developing countries engaged
in IP discussions at the GATT in the early days of the Round. Together,
Argentina, Brazil, Cuba, Egypt, India, Nicaragua, Nigeria, Peru, Tanzania, and
Yugoslavia157 continued to insist that there should not be comprehensive IP
negotiations within the GATT.158 Their goal was to narrow the interpretation
of the Ministerial mandate, with an eye on limiting discussion to the clari-
fication of existing GATT rules such as those related to border controls and
trade in counterfeit goods (GATT Articles 9 and 10 (d)).159 The remaining
developing countries were not involved due to either lack of resources or lack
of knowledge of the issues. The developing country efforts to limit the scope of
negotiations was swiftly overwhelmed. Between 1987 and 1990, some ninety-
seven working documents were submitted to the TRIPS negotiating group, but
only nineteen of these came from developing countries.160
Determined to move negotiations forward, the United States used unilateral
sticks to put pressure on those developing countries active in the GATT negoti-
ations. When USTR announced the first findings of its new Special 301 reviews
in 1988, ten developing countries were listed for bilateral attention, five of
which were key countries opposing the U.S. IP agenda at the GATT.161 Brazil
and India, the greatest force of resistance in the multilateral negotiations, were
placed in the more serious category of Priority Watch List, while Argentina,
Egypt, and Yugoslavia were put on the Watch List.162 In 1987, Mexico was
the first country for which the U.S. supplemented Special 301 threats with
the actual withdrawal of GSP benefits. The United States then struck Brazil
just before the December 1988 mid-term review of the Uruguay Round,163
followed by Thailand in 1989.164 Table 2.1 highlights the scope and intensity
of U.S. bilateral trade pressures on those twenty or so developing countries
which were most active during the TRIPS negotiations.
The momentum towards TRIPS accelerated as collaboration between indus-
try and developed country governments intensified.165 On the U.S. side, the
CEOs of twelve multinationals coordinated to sell the idea of TRIPS to the
U.S. Congress and government officials.166 In her political analysis of the
emergence of the U.S. position on TRIPS, Susan Sell documents how the pro-
TRIPS agenda of U.S. multinationals became not only the official mandate of

52
 Developing Countries in the Global IP System

Table 2.1. U.S. trade action against key developing countries active in the GATT negotiations
(1985–93)

1985 1986 1987 1988 1989 1990 1991 1992 1993

Americas
Argentina x x x x x x
Brazil x x X x x x x x
Chile x x x x x x
Colombia x x x x x
Cuba
Mexico X x
Nicaragua
Peru x x
Uruguay
Venezuela x x x x x
Asia
Hong Kong∗
India x x x X x
Indonesia x x
Malaysia x x x
Singapore∗
South Korea∗ x x x
Thailand X x x x x
Africa
Egypt x x x x x
Nigeria
Tanzania
Europe
Yugoslavia x x x x x

Source: adapted from Table 1 in Drahos and Braithwaite (2003).

x Countries that were listed, subject to a petition or investigated under the U.S. GSP or Special 301 systems.
X Countries subjected to imposition of trade penalties.
∗
Countries that received favourable GSP packages as rewards for improved IP protection.

the U.S. government, but also the basis of the final TRIPS text.167 In 1988,
a coalition of business interests from the United States, Japan, and Europe,
called the Intellectual Property Committee (IPC), submitted a comprehensive
draft of a proposed TRIPS text to their governments.168 The IPC then led
a consensus-building effort to enrol and sustain the support of the United
States, the European Commission, and Japan to promote this draft. As support
galvanized, meetings of the so-called Friends of Intellectual Property Group
took place in Washington and beyond, where the United States circulated
further draft texts of a possible agreement.169
Despite the mounting pressures, developing countries continued to resist.
Even as many developing countries were shifting, albeit often reluctantly,
from import substitution to more liberal, export-oriented economic strategies,
the push for TRIPS was considered a step too far. The TRIPS agenda, like the
structural adjustment reforms advanced by the World Bank and International
Monetary Fund (IMF) in the 1980s and 1990s, was perceived as a serious
threat to national industrial policies and development.170 In January 1989, the

53
The Implementation Game

Group of 77 developing countries (G77) issued a collective statement in which

they described the GATT IP negotiations as an attempt to use IP protection ‘as
a mere device and instrument for promoting the trade competitive interests of
developed countries and their TNCs’.171 They further argued that developed
countries were advancing ‘protectionist’ IP policies in order to ‘safeguard and
increase their dominant positions in the world market’.172 This trend, they
contested, would lead progressively ‘to the concentration of technological
and economic power in the hands of the industrialized countries and in
favour of their TNCs and state-owned monopolies’, thus perpetuating ‘the
technological gap between the technological haves and have-nots’.173
In the second half of 1989, the negotiations gathered speed. Developed
countries submitted several draft negotiating proposals to the GATT Secre-
tariat (first the Europeans, then the United States, Switzerland, and Japan).
A core group of fourteen developing countries conceded they would have
no choice but to participate more fully in the TRIPS discussions (Argentina,
Brazil, Chile, Colombia, Cuba, Egypt, India, Nigeria, Peru, Tanzania, and
Uruguay later joined by Pakistan and Zimbabwe).174 Together, they submitted
a detailed proposal designed to minimize attention to substantive standards
on IP and to contain the scope of any eventual agreement by focusing on two
issues: principles for the use of IP rights, and trade in counterfeit and pirated
goods. On the first issue, developing countries emphasized the importance
of the public policy objectives underlying national IP systems, the necessity
of recognizing such objectives at the international level, and the need to
specify some basic principles that could elucidate the application of any
standards established in the TRIPS Agreement. Given the diverse needs and
levels of development among them, developing countries used the proposal
to insist upon the need to respect and safeguard national legal systems and
traditions on IP. In addition, the proposal included detailed perspectives on
the appropriate scope of patents, compulsory licensing, and the control of
anti-competitive practices.175
But the TRIPS proponents had already decided among themselves upon the
core elements of the Agreement. By early 1990, five draft texts of an agreement
had been submitted to the TRIPS negotiators and at the GATT Ministerial that
year, the chairman of the negotiations presented a comprehensive proposed
text to serve as a basis for future TRIPS discussions.176
Developing countries faced increasing difficulty in countering the pro-
TRIPS agenda. With the support of the GATT Secretariat, developed countries
pushed ahead with a constant series of bilateral discussions, small group
consultations, and informal group processes.177 Around fifteen developing
countries were involved in some aspects of these discussions. Only a few
countries, notably India, Argentina, and Brazil, were a tenacious presence
in the highly technical and legally complex negotiations.178 Most develop-
ing country delegations were comprised of generalist officials from national

54
 Developing Countries in the Global IP System

trade ministries or Permanent Missions in Geneva rather than IP specialists.

Most negotiators thus lacked the legal mastery of the technical details and
implications necessary to engage substantively in discussion.179 ‘Negotiation
fatigue’180 overwhelmed many developing country delegations and even the
leading negotiators ‘came to feel they were wasting their time’.181
Meanwhile, the United States and Europe had been working to dilute oppo-
sition to negotiations in Geneva by forcing domestic IP reforms at the national
level in developing countries and isolating the most defiant countries.182
They concluded a series of bilateral agreements that strengthened IP pro-
tection such that ‘accepting TRIPS was no big deal’.183 Mexico, for example,
agreed to IP protections in its negotiations for a North American Free Trade
Agreement (NAFTA) with the United States that later served as the template
for TRIPS.184 The United States gave some countries, namely Hong Kong,
Singapore, and South Korea, favourable GSP packages as rewards for improved
IP protection.185 ‘Hard-line’ countries such as Brazil and India were subject
to further trade threats.186 In the face of intense U.S. pressure, the Brazilian
President announced in 1990 that he would pursue the IP reforms called for by
the United States. With this tentative ‘truce’ in place, USTR removed its trade
measures against Brazil in early July and India subsequently experienced less
support from Brazil in the Geneva trade negotiations on IP matters.187 The
United States also launched Special 301 proceedings against India in 1991
for its allegedly inadequate IP standards, followed by trade sanctions in 1992.
Although India held out longer than any other country in rejecting TRIPS and
also much of the trade liberalization agenda of the Uruguay Round, Indian
diplomats eventually tempered their defensive stance in Geneva. In each of
the countries targeted by U.S. and EU trade officials, the capacity to resist
was undermined by weak coordination between negotiators in Geneva and
national capitals and between some of the key developing countries.
In only a few developing countries did domestic political factors come into
play during the TRIPS negotiations. Brazil, India, and Argentina were each
lobbied by domestic pharmaceutical industries determined to maintain their
ability to manufacture and export generic medicines. There were also some
first efforts by public health activists from Health Action International (HAI)
to sensitize developing country negotiators to public health implications. In
addition, India, the Philippines, and Peru each faced campaigns against the
prospect of patents on seeds led by NGOs, academics, peasants, and farmers’
movements. The same critics also protested against the misappropriation
and theft of local genetic resources and traditional knowledge, particularly
through the bioprospecting activities of multinational companies.188 By 1992,
global NGO campaigns against biopiracy and patents on life forms were
underway, with activists taking up the cause in international negotiations on
plant genetic resources at the Food and Agriculture Organization (FAO) and on
biological diversity at the Rio Earth Summit.189 In most developing countries,

55
The Implementation Game

however, there were few stakeholders in either industry or civil society that
articulated any interests or positions with respect to TRIPS.
Ultimately, developing countries were overwhelmed by developed country
pressure. The deal was sealed with the introduction of the ‘single undertaking’
as a device to help close the Uruguay Round. Developing countries were cor-
nered. In order to gain long-sought improvements in market access for their
textiles and agricultural products, they were forced to concede to TRIPS.190

2.4. Implementation Amidst Contestation

TRIPS was included as one of the WTO’s core agreements despite consistent
opposition on the part of developing countries. Less than 20 of the 106
developing country WTO members that are now bound by the Agreement
were involved in the negotiations. Most of these countries had limited input
into the technical aspects of the discussion and concentrated mainly on con-
taining the Agreement’s scope. Upon signing the Agreement, most developing
countries thus had poor understanding of its provisions and implications.
Only as the push for TRIPS implementation intensified did many developing
countries take stock of the extent of their commitments.
Dissatisfaction with TRIPS spurred ongoing debate between developed and
developing countries on the terms of the bargain, and laid the foundations for
a dynamic interaction between efforts to alter the TRIPS deal and the process
of implementation.191 After several decades of opposition to stronger inter-
national IP laws, and amidst concurrent efforts to defend their policy space,
what actions did developing countries take to implement TRIPS? Did they
take full advantage of the flexibilities available to them? To what extent did
developing countries tailor IP laws to reflect national priorities and minimize
potential costs? The following chapter highlights the striking variation in how
developing countries approached the task of implementing the Agreement
they so widely resented.

Notes

1. See Chapter 1, note 3.

2. For background on indigenous, traditional, and community-based approaches to
law and the management of intellectual assets, see Dutfield (2004). Ruth Gana
(1995) provides a useful overview of how European philosophy influenced the
development of IP laws in developing countries. Also see Alford (1993).
3. For a discussion of the European legal influence in Africa before colonialism, see
Adewoye (1977: 33–5), Ehrensaft (1972), and Priestly (1969).
4. Okediji (2003a: 323).

56
 Developing Countries in the Global IP System

5. The dates of the first IP laws in these countries were as follows: Cuba (1833),
Chile (1844), Venezuela (1842), Paraguay (1845), Colombia (1848), and Argentina
(1846). These first countries were followed in the early twentieth century by El
Salvador (1901), Honduras (1902), Panama (1905), Dominican Republic (1907),
and Bolivia (1916). For further discussion, see Roffe (2007) and Patel (1974).
6. Okediji (2003a: 321).
7. Roberts and Mann (1991: 5).
8. Roberts and Mann (1991: 11–24).
9. Gana (1996: 447). Also see Allot (1976) and Geller (1994).
10. Tee (1994).
11. Betts and Asiwaju (1985: 321).
12. Tran (2003).
13. See Kumar (1993: 27, 162), Endeshaw (1996: 151), and Okediji (2003a: 335, n. 373
and 374).
14. Endeshaw (1996: 150).
15. Okediji (2003a: 322–3).
16. For a history of the first international IP treaties, see Anderfelt (1971), Beier (1984),
Coulter (1991), and Gaultier (1997).
17. The Paris Convention addresses the protection of patents and trademarks (com-
monly referred to together as ‘industrial property’), setting some minimum stan-
dards for each. See WIPO (1983).
18. See Ricketson (1987).
19. Matthews (2002: 11) and May (2003: 6).
20. European countries sometimes included reciprocal commitments to respect IP in
their bilateral commercial treaties. The scope of protection provided was limited
and often discriminatory. See Culbertson (1930: 26).
21. The Berne and Paris Conventions began with fourteen and eleven signatories
respectively.
22. Other developing countries that joined the Paris Union in its first decades
were the Dominican Republic (1890), Mexico (1903), Cuba (1904), Morocco
(1917), Lebanon (1924), Syria (1924), and South Africa (1947). See Patel (1974:
13–14).
23. Roffe and Vea (2008) and Schiff (1971).
24. Okediji (2003a) and Ricketson (1987).
25. Okediji (2003a: 324) and Ricketson (1987: 79).
26. The UK accession, for example, included ‘all the colonies and possessions of Her
Britannic Majesty’. See Ricketson (1987: 79).
27. Ladas (1938).
28. Totcharova (2006).
29. Kongolo (2000a: 269–70).
30. Ibid.
31. Cazenave (1989) and Endeshaw (1996). In Chad, for instance, national regulation
of copyright is still governed directly by French law. Chad also belongs to a
regional IP agreement, the Bangui Agreement, which includes a complementary
regional legal framework for copyright protection. See Chapter 7.
32. Astudillo (1999).

57
The Implementation Game

33. See Cazenave (1989). Chapter 7 provides a detailed account of the history of IP
protection in Francophone Africa.
34. Ibid.
35. This history draws from ARIPO’s website at http://www.aripo.wipo.net/
background.html.
36. For further discussion, see Chapter 7.
37. The contribution of state-led approaches to development remains intensely dis-
puted as does the question of the appropriate lessons to draw for contemporary
development strategy. See Amsden and Hikino (1994), Amsden (2001), Wade
(2003), and World Bank (1988–9).
38. Sell (1998: 80–5) provides a summary of these efforts. For a broader view of IP
policies in Latin America at the time, see Correa (1981) and Roffe (2007).
39. The Andean Community of Nations (ANCOM) was called the Andean Pact until
the 1969 signing of the Cartagena Agreement. Chile withdrew from ANCOM in
1976. Venezuela joined in 1980 but then withdrew in 2006.
40. See Abbott (1975), Adler (1987), and Remiche (1982).
41. Another element of the ANCOM framework was a foreign investment code that
limited foreign ownership and control of domestic enterprises.
42. Baranson (1981).
43. Roffe and Vea (2008).
44. This Decision was repealed in 1991. By 1999, all of the Andean countries had
joined the Paris Union.
45. Vedaraman (1972: 43).
46. Government of India (1949).
47. Ayyangar (1959).
48. Ramanna (2005).
49. Roffe (2000).
50. Gontijo (2005).
51. Roffe (1974).
52. May (2003: 6–8) and Matthews (2002: 11).
53. Drahos (2002b: 5). In the 1960s, for example, Mexico’s success in the manufacture
of steroids contributed to the decline of European producers’ dominance in that
area. See Gereffi (1983).
54. In 2007, the Paris Union had over 170 members, including 115 developing coun-
tries (not including Eastern European states or those in the Commonwealth of
Independent States).
55. Okediji (2003a) and Ricketson (1987: 799–806).
56. Ruth Okediji (2003a: 323) emphasizes that the ongoing application of the Berne
Convention in former colonies was considered ‘presumptively appropriate, nec-
essary and legitimate’. She argues that the prevailing view at the time was that
independent statehood gave rise to obligations of ongoing adherence, in large
part to protect the interests of citizens of other countries.
57. Lazar (1971: 12).
58. Roffe and Vea (2008).
59. Roffe (2007).
60. Anderfelt (1971).

58
 Developing Countries in the Global IP System

61. The United States became bound by the Berne Convention only in 1989.
62. The UCC specifies, for instance, that the standard copyright term should be the
life of the author plus (at least) twenty-five years whereas the Berne Convention
calls for a copyright term of the life of the author plus fifty years.
63. For historical analysis of UPOV, see Andersen (2006a: 13) and Fowler (1994: 14).
64. UPOV is an independent intergovernmental organization. Pursuant to an agree-
ment concluded between WIPO and UPOV, the Director General of WIPO is
the Secretary General of UPOV, and WIPO provides administrative services to
UPOV.
65. The latest revision, the 1991 Act, came into force in 1998.
66. UN General Assembly (1961). Also see Kunz-Hallstein (1979).
67. Roffe (2007).
68. The resolution called for the UN Secretary General’s report to consider the advis-
ability of holding an international conference to examine problems related to
patents and the special needs of developing countries.
69. Drahos (2002b: 4). For a history of these efforts, see Johnson (1970–1), Olian
(1974), Ricketson (1987), and Yu (2004). For a critical perspective on the Berne
Convention, see Story (2003).
70. Ladas (1975), and Musungu and Dutfield (2003).
71. Bogsch (1992), and Musungu and Dutfield (2003: 4).
72. UNDESA (1964).
73. Patel (1974).
74. In total, thirty-nine member states participated in the second meeting of the
Committee of Governmental Experts in 1966. See Patel (1974).
75. Many developing countries postponed their accession to the Paris Union, for
instance, until the 1990s after the entry into force of TRIPS (including India and
the Andean countries).
76. The Stockholm Protocol enabled developing countries to make special reservations
to the Berne Convention in respect of translations, reproduction, broadcasting,
and educational use of copyrighted works. Under the Protocol, the translation
rights of an author would expire if they were not used for ten years in a particular
developing country. The Protocol also permitted developing countries to grant
compulsory licences for purposes related to teaching, study, and research, and
for translation rights where these had not been used for three years. In addition,
developing countries could grant non-exclusive licences for the reproduction for
educational or cultural purposes of works if they were not published in that
country within three years of publication in the country of origin. See Johnson
(1970–1).
77. See Tocups (1982), Story (2003), and UNESCO (1973).
78. Okediji (2003a: 328) observes that the Appendix is ‘generally acknowledged as a
failure in terms of its utility to and use by developing countries’. Between 1971
and 1998, only eight developing countries declared their intention to use the
Appendix. There were no further declarations until 2004–6 when a further eleven
countries notified WIPO that they intended to avail themselves of rights provided
in the Appendix. Notifications aside, subsequent efforts to make actual, practical
use of these rights were scarce.

59
The Implementation Game

79. For a review of developing country engagement at BIRPI and WIPO, see May
(2006c).
80. Patel (1989: 978, 980).
81. Roffe and Tesfachew (2001: 381).
82. O’Brien (1974: 30).
83. O’Brien (1974: 30) observes that these patents bore ‘no relation whatsoever to the
flow of domestic inventive activity’.
84. Drahos (2002b).
85. Ibid.
86. For discussion of the emergence of UNCTAD and Part IV of the GATT, see Gardner
(1964), Rothstein (1979), Wells (1969), Whalley (1989), Williams (1991), and
Zartman (1987).
87. UN General Assembly (1970).
88. For further background on this Resolution, see Patel (1974).
89. White (1975).
90. Seidel (1974: 51–2).
91. WIPO (1973).
92. Ibid.
93. For a history of the NIEO and surrounding discussion, see Bhagwati (1977), Cox
(1979), Krasner (1985), Murphy (1984), and Rothstein (1979).
94. UN General Assembly (1974).
95. Ibid.
96. A Code was drafted but never adopted. See UNCTAD (1985).
97. The developing country agenda in this respect was clearly reflected in a 1973 UNC-
TAD Resolution affirming the sovereign right of countries ‘to take the necessary
measures to ensure that foreign capital operates in accordance with the national
development needs of the countries concerned, including measures to limit the
repatriation of profits’. See UNCTAD (1973).
98. The provisions of the Code and its political history are analysed by Conrood
(1977) and Sell (1998).
99. Oxman (1982).
100. Anderfelt (1971), Bogsch (1992), May (2006c), and Musungu and Dutfield (2003).
101. See WIPO (1975).
102. UN (1975).
103. UNDESA (1964).
104. UN General Assembly (1975).
105. WIPO (1979).
106. Ibid.
107. Drahos (2002b: 166).
108. For analyses of this period, see Kastenmeier and Beier (1989), Hartridge
and Subramanium (1989), Roffe and Tesfachew (2001: 390), and Sell (2003b:
75).
109. See Office of Technology Assessment (1986).
110. May (2000: 81–5).
111. Drahos (2002b: 5, 2003: 1), Dutfield (2003), and Sell (2003b).
112. Trebilcock and Howse (2001: 307).

60
 Developing Countries in the Global IP System

113. Bergsten (1973) provides a clear, summary of the core concerns.

114. Sell (2003b).
115. Ibid.
116. Subramanian (1991).
117. May (2000: 6–8) and Matthews (2002: 11).
118. IPC (1988). The IPC also raised concerns about safety risks associated with imita-
tions of some products.
119. Trebilcock and Howse (2001).
120. Sell (2003b).
121. WIPO (1988).
122. Dutfield (2000).
123. May (2000: 6). While the various treaties administered by WIPO contain gen-
eral obligations with respect to implementation, they lack strong enforcement
mechanisms for the settlement of disputes regarding the protection offered to
non-nationals. See Beier and Schicker (1996). Stewart (1993) notes that the WIPO
Conventions do nonetheless offer countries the possibility of accepting the juris-
diction of the International Court of Justice. WIPO has also appointed special
informal committees of experts to address particular disagreements about the
functioning of its Conventions.
124. Roffe and Vea (2008: 13). Also see Kunz-Hallstein (1979).
125. Reichman and Hasenzahl (2002: 12).
126. For further analysis of these debates, see Yu (2008).
127. This statement by Michael Kirk, former head of the international division at the
U.S. Office of Patents and Trademarks (USPTO), is cited in Lewis (1982). Also see
Mills (1985).
128. Reichman and Hasenzahl (2002).
129. Salmon (2003).
130. Salmon (2003: 433). Also see Gervais (2002).
131. Sell (2003b).
132. In 1978, the EU and U.S. jointly submitted a draft proposal on anti-counterfeiting
measures during Tokyo Round negotiations. In 1982, the United States followed
up by circulating a further draft proposal. See UNCTAD-ICTSD (2005).
133. In 1974, the United States had already augmented Section 337 (Unfair Trade
Practices and Intellectual Property Rights) of its trade law to allow for unilateral
action against foreign products produced in ways that violated the IP rights that
U.S. individuals or firms hold under U.S. law.
134. At the same time, Congress adapted Section 305 of the Act to link U.S. trade
negotiating objectives more closely with its IP interests.
135. The GSP system was developed in the 1960s under the auspices of UNCTAD.
Established in 1974, the U.S. GSP system enables designated countries to export
eligible products into the U.S. duty-free and is renewed periodically by Congress.
Section 505 of the 1984 GSP Renewal Act called on the U.S. President to give
‘great weight’ to the protection of foreign IP rights assessing which countries
would gain preferential treatment under the scheme. The Act did not, however,
require proof of injury to a particular American industry nor evidence that the IP
laws of the country concerned discriminated against American or other foreign IP

61
The Implementation Game

rights holders or otherwise did not meet norms in international conventions. See
Trebilcock and Howse (2001: 318).
136. Drahos (2004c: 12).
137. GATT (1984–5).
138. This provision arguably violated the GATT’s National Treatment principle as the
risk of liability was only attached to imported products. See Trebilcock and Howse
(2001: 318)
139. The product could only enter the U.S. market if the foreign producer and the U.S.
rights holder entered into a voluntary settlement (usually a licensing agreement).
140. Trade experts Hudec (1990a, 1990b) and Jackson (1989) each published remarks
to this effect. When the U.S. imposed tariff increases on Brazil in 1988, Jackson
(1989: 343) noted that this was ‘clearly a violation of the GATT’. Also see Drahos
(2004c: 16).
141. While Section 337 was partially amended in 1994, the European Commission
maintains that its procedures and remedies discriminate against EU industries and
goods. See GATT (1989).
142. Trebilcock and Howse (2001: 318).
143. The Regulation does not, however, appear to explicitly specify the nature or level
of the retaliation contemplated. See Bourgeois and Laurent (1985) and EC (1988).
144. Drahos (2002b: 15).
145. Brueckmann (1990), and Trebilcock and Howse (2001: 319).
146. For information on U.S. BITS at http://www.tcc.mac.doc.gov.
147. For an overview of EU strategy and agreements forged in the pre-TRIPS era, see
Panagariya (2002) and Santa Cruz (2006).
148. UNCTAD (1996).
149. Abbott (1989), and Braithwaite and Drahos (2000: 61–4).
150. Drahos (2002b: 2004c: 19).
151. Drahos (2002b: 6).
152. Ryan (1998).
153. This history has been detailed at length by Drahos (2002b, 2004c).
154. Odell (2000).
155. GATT (1986).
156. Watal (2001) and UNCTAD-ICTSD (2005).
157. Yugoslavia aligned itself with developing countries during the Uruguay Round.
158. Bradley (1987: 57, 81).
159. Bradley (1987).
160. Drahos (2004c: 25).
161. For information on its Special 301 actions, see http://www.ustr.gov.
162. Abbott (1989).
163. In 1987, after thirty-six months of talks with Brazil on pharmaceutical patents had
not yielded any agreement, the United States launched an investigation.
164. In the case of Brazil, new tariffs were imposed on Brazilian paper products, certain
medicines, and consumer electronic items. See Varella (2004) and Getlan (1995).
165. Sell (2003b).
166. Ibid.
167. Ibid.

62
 Developing Countries in the Global IP System

168. IPC (1988).

169. Sell (2003b).
170. Wade (2003).
171. Cited in Raghavan (1989).
172. Ibid.
173. Ibid.
174. Drahos (2002b: 774) argues persuasively that developing countries ‘had simply
run out of alternatives and options [. . . ]. If they did not negotiate multilaterally
they would each have to face the U.S. alone. [. . . ] Furthermore, if they resisted the
U.S. multilaterally they could expect to be on the receiving end of a 301 action’.
175. UNCTAD-ICTSD (2005).
176. Gervais (1998: 15) and UNCTAD-ICTSD (2005).
177. This included the ‘10 + 10 group’ (meaning ten developed countries plus ten
developing countries). The size and membership of the 10 + 10 group varied
according to the IP issue under discussion. The most active developing countries
were Argentina, Brazil, Chile, Colombia, Egypt, Hong Kong, India, Indonesia,
Malaysia, Mexico, Peru, Singapore, South Korea, and Thailand. This list included
some that had not been part of the earlier negotiations and excluded several of
those that had been (most notably from Africa). See Matthews (2002: 38). Also see
Drahos (2004c) and Gorlin (1999).
178. Drahos (2002b: 11), Gervais (1998: 15), and Matthews (2002: 44).
179. Balasubramanium (2000).
180. This term was coined by Braithwaite and Drahos (2000: 197).
181. Drahos (2002b: 11).
182. Drahos (2002b: 170), citing the words of a U.S. trade negotiator.
183. Drahos and Braithwaite (2002a: 105).
184. Correa (2000b).
185. Drahos and Braithwaite (2003).
186. Drahos (2002b: 170).
187. Drahos (2002b: 171).
188. GRAIN (1991), Hathaway (1993), Kloppenberg and Rodriguez (1992), Perlas and
Salazar (1991), Sahai (2002), and Shiva (1997).
189. Ibid.
190. Braithwaite and Drahos (2000: 197).
191. TWN (2003b: viii).

63
 3
Variation in TRIPS Implementation
(1995–2007)

This chapter explores the evidence of variation in TRIPS implementation. It

begins with a review of the core TRIPS rights and obligations, and the key
areas in which TRIPS offers countries some room for manoeuvre. It then
provides examples of the variation in how developing countries implemented
TRIPS in their national legislation, focusing on the timeframe in which IP
reforms preceded and the use of TRIPS flexibilities.1 The chapter continues
by proposing a typology of countries according to variation in their IP stan-
dards and overall use of TRIPS flexibilities. Throughout the chapter, I alert
readers to IP reforms directly attributable to TRIPS-plus commitments that
some countries undertook after TRIPS was concluded (most notably through
bilateral trade agreements and ratification of new multilateral IP treaties, such
as the WIPO Internet Treaties). In general, however, questions of motivation
and causality for the legal reforms undertaken are deferred for systematic
exploration Chapters 4 to 6. The chapter concludes by highlighting instances
where the evidence of variation in TRIPS implementation contrasts with
what the economic literature on IP protection and development leads us to
expect.

3.1. The TRIPS Outcome

TRIPS opens with a preliminary section on ‘Objectives and Principles’, that

emphasizes the balance of rights and obligations in the Agreement. In so
doing, TRIPS promotes a balance between incentives for innovation and
the use of existing inventions and creations. These objectives and principles
provide the legal framework for efforts by developing countries to use the
flexibilities in the Agreement and to adapt IP protection at the national level
to meet social and development goals. Article 1 sets out the core principle
of the Agreement, namely that members can implement TRIPS in accordance
with their own legal system and practice. Among other elements, this section

64
 Variation in TRIPS Implementation (1995–2007)

grants WTO members the right to adopt measures necessary to protect public
health and nutrition, and to promote the public interest in sectors of vital
importance to their socio-economic and technological development (Article
8.1). It also stipulates the rights of members to adopt measures to prevent
the abuse of IP rights by right-holders or the resort by them to practices that
unreasonably restrain trade or adversely affect the international transfer of
technology (Article 8.2). The opening section of TRIPS also emphasizes the
importance of technological innovation, and of the transfer and dissemina-
tion of technology, social and economic welfare broadly, and advancing the
mutual advantage of both producers and users of technological knowledge in
the implementation of the Agreement.
A further core principle of TRIPS is its requirement that all WTO members
apply the two core GATT principles of non-discrimination by 1 January 2006:
national treatment and most-favoured nation (MFN) treatment (Articles 3,
4, and 5). In so doing, the Agreement diminishes the scope for WTO mem-
bers to discriminate between different foreign inventors and creators, or to
favour their nationals over foreigners in the realm of IP protection.2 The
incorporation of TRIPS into the WTO also made national implementation of
international IP laws subject to an effective international dispute settlement
mechanism for the first time. Where a WTO member believes that the content
or enforcement of the national laws of another member state impedes the
rights of its nationals (i.e. that the member is violating its TRIPS obligations),
it can bring a case to the WTO Dispute Settlement Understanding (DSU).
While countries are bound to comply with WTO rules to which they have
committed themselves, they are only formally designated ‘out of compliance’
if successfully challenged by another country through the DSU. If a country
is indeed found to be non-compliant as alleged, it may be required to either
pay a fine or to remedy the non-compliance. Failing such action, the DSU
may provide for sanctions in cases of non-compliance with its decisions. For
trade-dependent, IP-importing developing countries, the prospect that failure
to implement TRIPS could result in trade retaliation is one of the Agreement’s
most pernicious aspects.
TRIPS includes a moratorium on ‘non-violation’ and ‘situation’ complaints
in the area of IP. Disputes in the WTO generally emerge from allegations
that a country has violated a particular WTO agreement. In some situations,
however, a government can initiate dispute settlement proceedings even if a
specific agreement has not been violated but where it can show that it has
been deprived of an expected benefit because of another government’s action
(i.e. a non-violation complaint), or because of any other situation that exists.3
Governments excluded the application of such non-violation and situation
complaints with respect to TRIPS on the grounds that the exercise or threat of
such complaints could severely erode the use of TRIPS flexibilities, and might
risk recurring threats of dispute settlement proceedings.4 The agreement not

65
The Implementation Game

to pursue non-violation cases with respect to countries’ obligations under

TRIPS was established for an initial period of five years until 1999. (The mora-
torium was later extended and remained in place at the time of publishing
(see Chapter 4)).
The proponents of TRIPS did not achieve everything they wanted in the
Agreement. The resistance of developing countries and some developed coun-
tries, such as Canada, on key aspects of the text forced negotiators to leave
both gaps and ambiguities in TRIPS, and also to designate several issues
for further discussion. While TRIPS certainly goes far beyond the limited
agreement on counterfeit goods that developing countries had been willing to
entertain, it does include a (contentious) series of rights, options, safeguards,
and ambiguities that WTO members can exploit in their implementation
of the Agreement. A brief summary of key commitments and flexibilities
follows.

3.1.1. Commitments to Minimum IP Standards

TRIPS obliges WTO members to implement minimum standards for most
of the core categories of IP.5 In so doing, TRIPS incorporates and builds
on a range of provisions contained in several pre-existing international IP
conventions, most notably the Paris and Berne conventions, which many
WTO members had not previously ratified.6 While most existing international
treaties allowed countries considerable national discretion to determine their
own IP standards, TRIPS sets forth specific substantive rules. In the area of
copyright, for example, TRIPS specifies that all countries must expand the
scope of copyright protection to software and original data compilations
(databases), and provide rental rights for sound recordings, films, and com-
puter programs.7 It also incorporates a fifty-year copyright term (as required
in the Berne Convention).8
In the area of patents, TRIPS demands for the first time a minimum period
of protection of twenty years. (The Paris Convention had, by contrast, been
silent on the question of patent duration.) Notably, the issue of patent term
was one of the areas in which a subset of developing countries faced particular
pressures for TRIPS-plus laws in subsequent bilateral trade negotiations, with
the United States and the European Union. In Jordan, Guatemala, and Chile,
for example, IP laws now provide for an extension of the term of patent
protection to compensate for a loss of the effective period of protection due to
regulatory delays in marketing approval for new pharmaceutical or chemical
products.9 While the United States pushed for such provisions in TRIPS,
the Agreement is silent on this particular matter. TRIPS also gave detailed
instructions about the scope of patent protection, including a requirement
that countries make patents available for products and processes without
discrimination as to the field of technology.

66
 Variation in TRIPS Implementation (1995–2007)

TRIPS requires national patent laws to confer on patent holders exclusive

rights for product and process patents. Governments must provide ‘negative
rights’ to prohibit certain acts from being undertaken without the owner’s
consent, including making the patented product or using the patented
process, offering the product for sale or selling the product, and importing the
patented product or the product obtained directly by the patented process.
TRIPS also requires governments to ensure their laws provide for enforce-
ment of IP rights. Importantly, although IP rights are private rights, TRIPS
places an unprecedented set of obligations on governments to make avail-
able procedures to ensure that private IP right holders can take ‘effective
action’ against IP infringement. Specifically, TRIPS obliges countries to estab-
lish enforcement procedures that include expeditious remedies to prevent
infringements and remedies that constitute a deterrent to further infringe-
ments. In so doing, countries are required to apply procedures that are fair
and equitable, protect against abuse, and avoid new barriers to legitimate
trade. Enforcement procedures must not be unnecessarily complicated or
costly nor can they cause unreasonable time limits or unwarranted delays.
Penalties for infringement must be tough enough to deter further violations.
TRIPS also requires that countries provide rules for obtaining evidence, crim-
inal procedures, civil and administrative remedies, and provisional measures.
Those involved in court processes should be able to ask a court to review an
administrative decision or appeal a lower court’s ruling.
Significantly, TRIPS also calls on governments to intervene directly to help
enforce the private rights of IP holders, including through border measures
and criminal procedures. TRIPS demands that courts should have the right,
under certain conditions, to order the disposal or destruction of pirated
or counterfeit goods, and that wilful trademark counterfeiting or copyright
piracy on a commercial scale should be criminal offences. In addition, TRIPS
requires governments to ensure IP holders can receive the assistance of cus-
toms authorities to prevent imports of counterfeit and pirated goods. While
the TRIPS provisions on enforcement are significantly stronger and more
specific than any prior international IP agreement, the Agreement does leave
countries important room for discretion (discussed in Section 3.2.7 below).
TRIPS also requires developing countries to take legislative action regarding
the administration of IP law.10 By reference to the Berne Convention, TRIPS
requires clear and fair procedures for IP registration, and obliges members to
establish collecting agencies (organizations that collect and disperse licensing
and royalty fees for copyright holders) either independently or within govern-
ment. Through its incorporation again by reference of provisions of the Paris
Convention, TRIPS obliges all WTO members to establish a special industrial
property service and a central office for administration of patents, utility
models, industrial designs, and trademarks. For most developing countries,
putting these legal reforms into action requires the commitment of new

67
The Implementation Game

financial resources, increased managerial, technical, and legal expertise, as

well as improved organizational capacity, infrastructure, and management
procedures.
Finally, TRIPS stipulates that any WTO member that changes its IP laws,
regulations, and practice must not do so in any way that reduces the degree
of its consistency with the Agreement.

3.1.2. TRIPS Flexibilities

TRIPS includes a range of rights, safeguards, and options that WTO members
can exploit in their implementation of the Agreement. The importance of
these flexibilities was explicitly reaffirmed in the 2001 Doha Declaration on
the TRIPS Agreement and Public Health.11 In the area of patents, TRIPS allows
countries to exempt plants, animals, and micro-organisms from patentability
(Article 27.3(b)).12 In the realm of copyright, countries retain the right to
exempt some types of uses from the control of copyright owners.13 TRIPS
also provides WTO members the option to choose a sui generis system for
the protection of plant varieties (in lieu of patents).14 In addition, TRIPS
includes certain safeguards, such as provisions specifying that countries can
issue compulsory licences under certain circumstances.15 Several elements of
TRIPS are also ambiguous or broadly defined, thereby providing governments
some scope for interpretation and ‘reading between the lines’ when it comes
to implementation. In addition, there are several issues related to the interpre-
tation and administration of IP laws where TRIPS is silent and governments
have scope to tailor their laws and administrative procedures as they see fit.16
Importantly, TRIPS grants WTO members different deadlines for implemen-
tation depending on their level of economic development (see Table 3.1).
Developed countries were given one year to make their laws and practices con-
sistent with the Agreement. Developing countries (and transition economies
under certain conditions) were granted a transition period of five years, until
January 2000 (Article 65). Least-developed countries (LDCs) were expected
to implement TRIPS by January 2006, with a possibility of further extension
(Article 66). TRIPS also provides additional transition periods in the area of
patent protection. In general, TRIPS requires WTO members to provide patent

Table 3.1. TRIPS transition periods

1996 Industrialized countries

2000 Developing countries and economies in transitiona
2005 Developing country products not previously patented
2006 LDCs – original deadline
2013 LDCs – revised general deadlinea
2016 LDCs – deadline for patents, test data protection, and exclusive marketing rights for
pharmaceuticals

a
National treatment and MFN treatment obligations apply as of 1996.

68
 Variation in TRIPS Implementation (1995–2007)

protection without discrimination as to the field of technology. During the

TRIPS negotiations, however, developing countries opposed binding oblig-
ations to provide patent protection to chemical and pharmaceutical prod-
ucts, accepting only requirements for process-related patents in these fields.
Ultimately, countries that did not extend patent protection to all types of
technology (such as pharmaceutical and agricultural chemical products) at
the time TRIPS came into force were given more time, until January 2005,
to introduce such protection (Article 65.4). Meanwhile, these countries were
required by 1995 to establish a ‘mailbox’ system through which applications
for such patents could be filed, recorded, and stored, though no examination
or grant of patents was required until the end of the transition period on
1 January 2005 (Article 70.8).17 Further, if a country allowed the relevant
pharmaceutical or agricultural chemical products to be marketed during the
transition period, it was required (subject to certain conditions) to provide
an exclusive marketing right for the product for up to five years after obtain-
ing marketing approval or until the grant or rejection of a product patent
application, whichever timeframe was shorter (Article 70.9).18 For LDCs, the
transition period for the protection of pharmaceutical products was the same
as their general deadline for TRIPS implementation (1 January 2006) and there
was no mailbox requirement for LDCs.
In 2001, the Doha Declaration on the TRIPS Agreement and Public Health
granted LDCs an additional ten years (until 1 January 2016) to provide patent
protection and exclusive marketing rights for pharmaceutical and chemical
products.19 Further, in late 2005, faced with an approaching deadline for
TRIPS implementation, LDCs collectively exercised their rights under TRIPS
Article 66.1 to request an extension to their general deadline for TRIPS
implementation.20 After some negotiation, they were granted a seven-and-
a-half-year extension of their deadline, giving them until mid-2013 to imple-
ment TRIPS, with the possibility of further extensions.21
In 2005, the scope of TRIPS flexibilities broadened when the first, and
only, formal amendment to TRIPS (and indeed to any WTO Agreement) was
approved. In December that year, WTO members agreed to make permanent
a waiver regarding patents and public health that had been adopted in August
2003.22 The 30 August waiver, and the subsequent amendment, aimed to
facilitate the ability of countries with insufficient manufacturing capabilities
to obtain cheaper generic versions of patented medicines by importing phar-
maceuticals manufactured under compulsory licences.23

3.1.3. Developed Country Commitments and Obligations

In recognition of the financial costs and regulatory burdens associated with
upgrading IP systems to meet TRIPS standards, TRIPS includes a developed-
country commitment to provide technical and financial cooperation to

69
The Implementation Game

developing and least developed countries ‘on request and on mutually agreed
terms and conditions’ (Article 67). TRIPS stipulates that this cooperation
should include assistance in the preparation of domestic legislation on the
protection and enforcement of IP rights as well as on the prevention of their
abuse, and support for establishment or reinforcement of domestic offices and
agencies relevant to TRIPS implementation, including the training of person-
nel. In addition, TRIPS includes a legal obligation on developed countries to
promote technology transfer to LDCs (Article 66.2).24

3.1.4. Reviews and the Role of the TRIPS Council

TRIPS establishes the TRIPS Council and charges it with ongoing monitor-
ing of implementation by member states.25 When finalizing TRIPS, govern-
ments incorporated commitments to conduct several reviews through the
TRIPS Council to provide the possibility for future clarifications, revisions, or
amendments to the Agreement. TRIPS calls for a full review of the Agreement
at the end of the transition period for developing countries (the year 2000)
and every two years thereafter (Article 71.1), and also for a review of Article
27.3(b) (related to the protection of plant varieties). The TRIPS Council was
also required to examine the effectiveness of TRIPS provisions on geographical
indications (e.g. for wines and spirits) by January 1997.

3.1.5. Notifications
TRIPS requires all WTO members to notify the TRIPS Council of relevant
national laws and regulations (Article 63.2) so that other members can
review their legislation and pose questions regarding its conformity with
TRIPS. Members subsequently established several procedures to facilitate this
process.26 Upon expiration of the transition period, countries in each category
were required to submit two documents: one that explained how national
laws met TRIPS commitments (an Article 63.2 notification), and another that
responded to a checklist of issues regarding enforcement. Each country was
then subject to a process of scrutiny in which all WTO members were able
to ask additional questions regarding TRIPS conformity. These TRIPS Council
reviews were conducted in 1996–7 in the case of developed countries and
then in 2000 and 2001 in the case of those developing countries with a
year 2000 deadline for TRIPS implementation. Newly acceding WTO members
are required to also submit their legislation, which can then be discussed by
members during TRIPS Council meetings.

3.2. Variation in the Timing of TRIPS Implementation

The timeframe in which developing countries acted to implement TRIPS var-

ied widely, as did their use of the transition periods available to them. To fulfil

70
 Variation in TRIPS Implementation (1995–2007)

Table 3.2. Examples of variation in timing of TRIPS legislative reforms

Developing country members with most Argentina, Bolivia, Brazil, Brunei Darussalam,
major TRIPS-related legislative reforms Cameroon, Chile, Colombia, Congo, Costa Rica, Côte
completed in advance of their year d’Ivoire, Dominica, Dominican Republic, El Salvador,
2000 deadline for implementation Gabon, Guatemala, Honduras, India, Indonesia,
Malaysia, Mexico, Morocco, Peru, Singapore, South
Korea, Thailand, Trinidad & Tobago
Developing country members with Antigua and Barbuda, Barbados, Bahrain, Belize, Egypt,
significant legislative reforms Ghana, Grenada, Guyana, Jamaica, Kenya, Namibia,
outstanding when their deadlines for Nigeria, Pakistan, Papua New Guinea, Paraguay,
TRIPS implementation expired in 2000 Philippines, Saint Lucia, Sri Lanka, Surinam, Tunisia,
Turkey, United Arab Emirates
LDC members which implemented major Benin, Burkina Faso, Cambodia, Central African
legislative reforms in advance of their Republic, Chad, Guinea, Guinea Bissau, Mali,
general mid-2013 TRIPS deadline Mauritania, Nepal, Senegal, Togo

Source: Compiled by author based on WTO Trade Policy Review reports.

TRIPS obligations, most countries needed to undertake a series of legislative

reforms at the national level, followed by executive action. Table 3.2 provides
an overview of variation in the timing of TRIPS implementation drawing on
evidence compiled in the WTO Secretariat’s Trade Policy Review reports for
each country.27 The table focuses on major legislative reforms related to copy-
right, patent, trademark, and plant variety protection. Where a developing
country did not have TRIPS reforms in one of these areas in place by the year
2000, they are categorized as having missed their 2000 deadline. Importantly,
the table does not address the legal intricacies of whether each of the laws
passed did in fact fully meet TRIPS requirements nor whether these laws were
given any practical effect through administration or enforcement.
Several broad trends in the timing of TRIPS implementation are notable.
There was rarely a single decision or piece of legislation through which
governments implemented their TRIPS commitments.28 In practice, TRIPS
implementation in most developing countries combined the adoption of five
or more discrete pieces of legislation as well as amendments to existing laws
to address different aspects of the Agreement (e.g. copyright, plant variety
protection, industrial property, or trade secrets). In India, for example, some
ten different national laws have a bearing on its implementation of TRIPS.29
While some developing countries passed the various pieces of legislation
more or less concurrently, in most countries the separate pieces of legislation
advanced at independent times and speeds. In some instances, countries
updated laws aware that further amendments might be needed to address
outstanding issues (sometimes minor, sometimes significant). In other cases,
further amendments were undertaken at the behest of international pressures
(discussed in Chapters 4 and 5).
Of seventy-three developing countries with a year 2000 deadline for TRIPS
implementation, over half passed various pieces of TRIPS-related legislation

71
The Implementation Game

only weeks before the deadline. Notwithstanding these efforts, over half of
these seventy-three countries still had not implemented at least four of the
major legislative reforms necessary for them to meet TRIPS commitments
by 1 January 2000. Instead, most countries had at least one of their laws
for TRIPS implementation still pending approval in their legislatures or had
yet to draft or submit all the necessary laws for consideration. Of the four
aspects of TRIPS covered in Table 3.2, plant variety protection was the area in
which most countries missed TRIPS deadlines. In addition, most countries had
not passed new or updated legislation related to the protection of integrated
circuits. A snapshot taken in early 2000 would thus have depicted these
countries as TRIPS-minus with regard to one or more aspects of the Agree-
ment. In statements to the TRIPS Council and in WTO Trade Policy Reviews,
each of the members that had missed deadlines drew attention to political
and administrative constraints, and emphasized their commitment to TRIPS
implementation and plans to approve reforms swiftly. In neither fora did any
developing country express any purposeful intention to flout TRIPS deadlines
or renounce its commitment to implementing the Agreement. Nonetheless,
as of the end of 2007, at least a dozen developing countries with a year
2000 deadline still had not passed the legislative reforms necessary to meet
all aspects of their TRIPS obligations.
On the other hand, some developing countries had legislation in place to
meet the core TRIPS obligations well in advance of the 2000 deadline. At least
half a dozen developing countries, including Chile, Mexico, and South Korea,
had already implemented legislative reforms that brought them closely in line
with TRIPS either before or during the TRIPS negotiations, leaving them with
only a few further amendments to make.30
A further aspect of variation in timing is that some developing countries
changed their laws more than once in the period under study. In some cases,
countries initially adopted IP laws that took advantage of TRIPS flexibilities,
but later amended them in ways that reduced the effect of these flexibilities.
Kenya, for instance, altered the way its patent law addresses issues related to
compulsory licences several times.31 Chile is another example of a country
that made a series of changes to its IP laws. Chile had adopted a series of IP
laws in 1991 (before TRIPS was concluded) that did not take advantage of
many TRIPS flexibilities, and which met or exceeded many of the minimum
TRIPS requirements. To meet IP commitments contained in 2003 FTA with the
United States, Chile further strengthened a range of its IP standards. In 2007,
however, Chile undertook a series of reforms to refine its laws in ways that
would take greater advantage of available safeguards and options, including
by expanding the range of possible grounds for compulsory licensing.32
The variation in the timing of TRIPS implementation by LDCs was also
striking. While some LDCs still have no IP legislation in place, others had IP
standards consistent with TRIPS in some key areas even before the Agreement

72
 Variation in TRIPS Implementation (1995–2007)

came into force. At the time of the TRIPS negotiations, for instance, Rwanda
already offered patent protection for pharmaceutical products and a twenty-
year term of patent protection. Further, of the WTO’s thirty-two LDC mem-
bers, many significantly reformed their IP laws to meet TRIPS obligations well
in advance of their original 2006 deadline for implementation and far in
advance of their extended deadline of mid-2013. Specifically, twelve francoph-
one African LDCs brought their legislative standards substantially in line with
TRIPS by 2002 when their new regional law, the revised Bangui Agreement,
came into force.33 In addition, when Cambodia and Nepal acceded to the
WTO, each adopted commitments to comply with TRIPS in advance of the
2013 deadline available to the thirty founding LDC members of WTO. More-
over, in so doing, they sometimes exceeded TRIPS standards.34 The remaining
LDCs are yet to undertake most of the legislative reforms necessary to make
their laws consistent with TRIPS, but several do have draft laws under consid-
eration or have passed new legislation in one particular area covered by TRIPS.
In 2000, for instance, Bangladesh replaced its 1962 Copyright Ordinance (last
amended in 1978) with a new TRIPS-plus copyright law (which offers a 60-year
term of protection and provides for optical disc protection) but most aspects
of its IP legislation date have not changed since the pre-independence era.35
There was also variation in the extent to which countries used transition
periods regarding patent protection for pharmaceutical and chemical prod-
ucts. By the time TRIPS was signed, most developing countries were already
offering patent protection for pharmaceutical products. Further, when the
2001 Doha Declaration granted LDCs an extension until 2016 for pharma-
ceutical product patents, all but three (Angola, Ghana, and Malawi) of the
WTO’s twenty-five African members already had laws that authorized such
patents (or in practice approved such patents).36 That is, as a practical matter,
these countries had pharmaceutical product protection not only before their
general 2006 TRIPS implementation deadline, but also far in advance of
the pharmaceutical-specific 2016 extension granted in the Doha Declaration.
Further, with the revision of their Bangui Agreement in 2002, twelve fran-
cophone African LDCs adopted patent protection for pharmaceutical products
some fourteen years in advance of the Doha Declaration deadline, which
they had joined the international fight to extend just one year earlier. To
date, Cambodia and Nepal appear to be the only LDCs to have incorpo-
rated the 2016 extension for the protection of pharmaceutical products into
their patent laws despite having otherwise adopted a range of TRIPS-plus
standards.37
In total, only twenty developing countries with a year 2000 TRIPS dead-
line lacked patent protection for pharmaceutical or chemical products when
TRIPS came into effect. Of this group, thirteen notified the TRIPS Council
of their intention to use the flexibility.38 Argentina, Brazil, and Turkey pro-
ceeded to adopt protection in advance of their deadline for so doing, while

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The Implementation Game

others waited until much nearer the end of that transition period. Brazil,
for instance, introduced pharmaceutical product patent protection in 1996,
including wide-ranging ‘pipeline’ protection, despite having had the option to
wait until 1 January 2005.39 By contrast, India took full advantage of the ten-
year transition period; its relevant law came into effect in early 2005, several
months after the deadline.

3.3. Variation in IP Standards and Use of TRIPS Flexibilities

This section provides evidence of the variation in the extent to which devel-
oping countries took advantage of TRIPS options and safeguards, focusing on
some of the most contentious flexibilities in the area of patents, copyright,
and plant variety protection. In each instance, I note the purpose and sig-
nificance of the flexibility, detail the options it provides, and summarize key
aspects of variation in how developing countries made use of this flexibility.
I also highlight instances where countries exceeded TRIPS requirements. As
information was not always available for all 106 developing countries sur-
veyed, I have indicated the number of countries surveyed for the particular
flexibility under discussion.
As with my review of the timing of TRIPS implementation, the purpose here
is to illustrate the scope of variation between countries. I do not attempt an
exhaustive legal assessment or evaluation of all national laws or the use of
flexibilities. For each country, the subtleties of law and legal interpretation
make the precise nature of provisions challenging to assess. A further consid-
eration is that regulatory and administrative decisions and actions taken after
laws are revised may be more important to determining the actual scope of
the flexibilities that countries provide than a formal reading of the statutes.
In some countries, national constitutions provide that international
treaties, such as TRIPS, have ‘direct’ effect (i.e. treaties are self-executing and
automatically become part of the domestic system of laws). Even in these
cases, however, governments usually needed to promulgate accompanying
regulations. More generally, the nature of legislative reforms does not provide
any information about the extent to which the laws acquired the regulatory,
administrative, or enforcement measures necessary to give them practical
effect. In some instances, for example, legislative reforms require regulatory
acts by the executive branch of government to give them tangible force (and
which may also modify their effect). In the area of enforcement, any given
piece of IP legislation may require complementary decisions ensuring the
commitment of adequate resources.
To paint a more complete picture of the variation in effort developing coun-
tries made to tailor IP laws to national needs, this section includes a review
of legislative action by developing countries in several areas not covered by

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 Variation in TRIPS Implementation (1995–2007)

TRIPS, namely utility models, disclosure of origin of genetic resources, and

folklore and traditional knowledge.

3.3.1. Exhaustion of Rights and Parallel Importation

TRIPS grants WTO members the flexibility to determine the point at which
IP rights have been exhausted (Article 6).40 The choice of an IP exhaustion
regime has a direct bearing on a country’s options with respect to parallel
importation. Parallel importation can be a useful tool to save money by
importing IP-protected products (such as patented medicines) from countries
where they may be sold at a lower price than on the domestic market.
Preserving options with respect to the choice of exhaustion regime was one
of the key negotiating priorities of developing countries active in the TRIPS
negotiations, which were generally in favour of international exhaustion.41
Under TRIPS, countries may establish whichever exhaustion regime best fits
their domestic policy objectives. In 2001, the Doha Declaration affirmed the
freedom of WTO members ‘to establish its own regime for such exhaustion
without challenge, subject to the MFN and national treatment provisions of
Articles 3 and 4’.42
Countries have three options with respect to the exhaustion of rights on a
product or work: (a) a national regime where IP rights are said to be exhausted
when the protected product has been put on the market with the consent
of, or by, the right-holder in the country where the right was issued; (b) a
regional system that extends the principle of national exhaustion to other
countries within a region43 ; or (c) or an international regime where rights of
a protected product are exhausted in respect of those products put on the
market anywhere in the world. If a country chooses a national or regional
exhaustion regime, IP right-holders can take action against parallel imports
from outside those borders. Under an international exhaustion regime, IP
right-holders cannot take such action.
A 2006 survey of the exhaustion regimes in a sample of fifty-four developing
countries illustrated the variation in the choice of exhaustion regime for
industrial property44 (see Table 3.3). There were thirty-three countries that
opted for an international exhaustion regime (e.g. Chile, the Dominican
Republic, Honduras, and South Africa), thirteen for a national regime (e.g.
Brazil, Morocco, and the Philippines), and sixteen for a regional exhaustion
regime (e.g. the francophone African members of OAPI).45 In some coun-
tries, the initial choice of exhaustion regime was subsequently reviewed. The
Philippines, for example, originally adopted a national exhaustion regime.
In 2005, the incumbent trade minister raised concerns that this approach
would constrain the scope for parallel imports and a parliamentary debate
ensued.46 In January 2007, the parliament passed a bill amending the Philip-
pine Intellectual Property Code to put in place the principle of international

75
The Implementation Game

Table 3.3. Examples of variation in choice of exhaustion regime for industrial property

National/regional Barbados, Belize, Benin, Brazil, Botswana, Burkina Faso, Cameroon, Central
African Republic, Chad, China, Congo, Côte d’Ivoire, Equatorial Guinea,
Gabon, Guinea, Guinea-Bissau, Mali, Mauritania, Morocco, Niger, Nigeria,
Philippines, Senegal, Sri Lanka, Tanzania, Thailand, Trinidad and Tobago,
Togo, Zimbabwe (Total 29)
International Argentina, Bolivia, Brunei, Cambodia, Chile, Colombia, Costa Rica, Dominican
Republic, Ecuador, Egypt, Ghana, Guatemala, Honduras, India, Indonesia
(no explicit provision), Kenya, Malawi, Malaysia, Mauritius, Nicaragua,
Pakistan, Paraguay, Peru, Singapore, South Africa, Uganda, Uruguay, Tunisia,
Vietnam, Venezuela, Zambia (no explicit provision), Zimbabwe (Total 33)

Source: Musungu and Oh (2006).

NB: Survey sample was limited to sixty-two countries.

exhaustion. In addition, some countries implemented different regimes in the

areas of industrial property (patents and trademarks) and copyright. That is,
they opted for international exhaustion in the first and national exhaustion
in the latter, or vice versa.47
A second option available to countries is to include explicit provisions
in their laws regarding parallel imports. Most national laws neither specify
whether parallel imports are permitted or restrict parallel imports to specific
circumstances. In the absence of specific rules allowing parallel imports, the
exclusive rights of the IP-holders are likely to prevail.48 Among developing
countries, Kenya’s 2001 Industrial Property Act (Article 8) appears to be the
law that explicitly permits parallel imports on the broadest terms. A number
of other countries that explicitly allow parallel imports add specific limiting
conditions on such imports (e.g. the Andean Group, Argentina, Brazil, and
South Africa).49
A third option that countries have with respect to exhaustion of IP rights
concerns the definition of the meaning of ‘consent’. In most countries, laws
require express consent by the right-holder authorizing a third party to mar-
ket their product. In some instances, however, countries simply allow for
implied consent. Argentina appears to have the most permissive regime in
this respect.50 Argentina’s patent law suggests that there is implied consent
for others to freely and legitimately enter the market from the moment that
products are put on the market by the patentee or with their consent, as well
as in cases where a compulsory licence is in effect or where a prospective
patentee chooses not to take out a patent in a particular country.

3.3.2. Patents
A core developing country priority during the TRIPS negotiations was to
retain options with respect to the term and scope of patent rights. TRIPS
flexibilities in the patent area include options to make specific exclusions
to the scope of patentability and also limited exceptions to patent rights,

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 Variation in TRIPS Implementation (1995–2007)

such as for use without the rights holder’s authorization. In addition, open-
ended and ambiguous drafting of TRIPS provisions on some issues provides
countries options to tailor TRIPS-related IP reforms to advance national public
policy goals, such as ensuring access to technologies at affordable prices and
promoting local industry development.51 Several of these flexibilities were
further clarified and developed through the Doha Declaration on TRIPS and
Public Health and the paragraph 6 system (described below). The following
discussion reviews the extent to which countries took advantage of some of
the core patent-related flexibilities in TRIPS.

3.3.2.1. SCOPE OF PATENTABILITY AND OPTIONAL EXCLUSIONS

TRIPS incorporates a range of optional exclusions related to the scope of
patentability. Countries can, for instance, deny patents where prohibition of
the commercial exploitation of a particular invention is deemed necessary
to protect ordre public. Argentina, for example, excludes inventions from
patentability where it deems that their commercial exploitation must be
prevented to protect ordre public, human and animal life, health, plants or the
environment. The interpretation of the term ordre public, or public morality, is
left to the discretion of member states and need not be otherwise elaborated
upon in national law.
TRIPS also permits countries to reject applications for diagnostic, therapeu-
tic, and surgical methods for the treatment of humans or animals (Article 27.3
(a)). In its 2001 report, the UK Commission on Intellectual Property Rights
(CIPR) recommended that ‘most developing countries, particularly those
without research capabilities, should strictly exclude’ such methods from
patentability.52 Such exclusions are common in many developed country
patent laws (such as in Article 52 (4) of the European Patent Convention).53
Before TRIPS, the IP laws of many developing countries were silent on this
issue. All developing countries that upgraded IP legislation to respond to
TRIPS implemented standard exclusions in respect of the non-patentability
of diagnostic, therapeutic, and surgical methods for the treatment of humans
or animals. Countries without such exemptions are mostly those which have
yet to revise patent laws to conform with TRIPS.54
TRIPS also enables countries to exclude plants, animals, and ‘essentially bio-
logical processes’ for the production of plants and animals from patentability
(but mandates patentability for non-biological and microbiological processes
for the production of plants or animals) (Article 27.3 (b)). TRIPS also requires
patent protection for micro-organisms (such as genes and cells), but does not
advocate any particular system for so doing so. In practice, the specific pro-
visions of developing country laws on these matters varied widely. Only the
members of the Andean Community formally provided for legal exclusions
from patentability for all animals and plants as existing in nature. South Africa
excluded any variety of plants and animals from patentability, while Egypt,

77
The Implementation Game

Costa Rica, and Nicaragua had specific exclusions for all genetic material.55
Argentina also explicitly excluded the possibility of patents for plants, ani-
mals, and for biological and genetic materials existing in nature. At the other
extreme was Guatemala, one of a few of developing countries that provided
patent protection for new plant varieties.56 Guatemala’s law did, however,
provide a specific exception enabling farmers to save second-generation seed
and livestock produced through the use of the protected variety. (In 2006, a
draft law proposing a sui generis plant variety protection regime was circulated
but remains under debate. (Sui generis approaches are discussed in Section
3.2.4 below.)57 Article 57 of this draft law aimed to repeal the provisions of the
existing law that allowed for patents on plant varieties). A growing number
of developing countries have bilateral agreements with developed countries
that remove the possibility of making such exclusions from patentability (e.g.,
Jordan, Mongolia, Nicaragua, Sri Lanka, and Vietnam). In each instance, the
legal approach is the omission of a provision excluding plants and animals
from patentability.
Countries can interpret TRIPS obligations on micro-organisms to apply
only to micro-organisms that have been genetically modified (i.e. not as they
occur in nature).58 TRIPS does not have any provisions on the patentability
of inventions consisting of genetic material such as DNA sequences. Only a
few countries adopted specific measures to take advantage of the flexibility to
explicitly exclude such genetic material from patentability.59 Relatedly, as of
December 2007, eighteen developing country WTO members were contract-
ing parties to WIPO’s Budapest Treaty,60 an administrative agreement through
which parties agree to recognize the physical deposit of a sample of a micro-
organism with any ‘international depositary authority’ for the purposes of
domestic patent procedures in lieu of full written disclosure of an invention.61
While TRIPS makes no reference to the Budapest Treaty, several developing
countries made bilateral commitments to the European Union to join the
Budapest system by particular dates (including Egypt, Chile, Korea, Mexico,
Morocco, and Tunisia). In addition, Jordan and Singapore made commitments
in FTAs with the United States to implement Budapest-like provisions. Further,
while TRIPS does not specifically require countries to provide patent protec-
tion for ‘biotechnology’ or ‘biotechnology inventions’, South Africa was one
of the first developing countries to implement such provisions (to fulfil the
requirements of a trade agreement with the European Union).62
TRIPS gives no guidance on the issue of new uses for known substances,
thereby enabling WTO members to exclude new or second uses of patents
by its silence on the matter. In 2002, the CIPR recommended that developing
countries should exclude new uses of known products from patentability.63 Of
106 developing countries surveyed, Table 3.4 shows information on the use
of this flexibility for fifty-seven countries. Of these countries, three explicitly
allowed for patents on new medical uses of known products in their legislation

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 Variation in TRIPS Implementation (1995–2007)

Table 3.4. Examples of variation in use of exclusions and exceptions to patent rights

Incorporation of Bolar provision for ‘early working’

Specifically provided Jordan, Thailand, China, India, Malaysia, Costa Rica, Dominican Republic,
Paraguay,a Argentina, Brazil, Nigeria, Egypt, Kenya, Tunisia,b and
Zimbabwec (Total 15)
No provision or not OAPI members, Philippines, Vietnam, Pakistan, Brunei, Cambodia, Indonesia,
allowed Guatemala, Honduras, Nicaragua, Barbados, Belize, Chile, Trinidad &
Tobago, Mauritius, Morocco, South Africa, Sudan, Botswana, Ghana,
Malawi, Tanzania, Uganda, and Zambia (Total 39)
Exclusions for second (new uses) of known products
Further use allowed OAPI members, Egypt, Kenya, Malawi,d Mauritius, Morocco, Nigeria, South
either specifically, Africa,e Sudan, Tanzania, Uganda, Zambia, f Zimbabwe, Philippines,g Sri
through practice, or Lanka, Vietnam, Thailand, Pakistan, Cambodia, Indonesia, Costa Rica,h
not specifically Guatemala, Honduras, Nicaragua, Paraguay, Trinidad & Tobago,
excluded Argentina,i Barbados, Belize, and Brazil (Total 45)
Further use specifically Andean Community, Argentina, China, India, Malaysia, Dominican Republic,
excluded Chile, j and Uruguay (Total 12)

Source: Musungu and Oh (2006).

NB: Survey sample of seventy-three countries. As full data is not readily available for each TRIPS flexibility for all
countries, the breakdown into categories does not add to seventy-three.
a
Early working is allowed but only within 30 days before patent expiry.
b
Early working is allowed, but only for ‘acts necessary for the manufacture of generic drugs.
c
Yes, ‘test batches’ of a product may be produced, but not put on the market, six months prior to patent expiry.
d
Inventions ‘capable of being used as food or medicine’ which are ‘a mixture of known ingredients possessing
only the aggregate of known properties of the ingredients’ are specifically excluded.
e
Second medical use is specifically allowed.
f
Same conditions as in the case of Malawi in d .
g
Specifically permitted for certain new medical applications.
h
Combinations of known inventions or mixtures of known products are excluded unless non-obvious.
i
Same conditions as in h .
j
New use excluded except where the qualities of the subject matter are essentially altered or where it solves a
technical problem that did not previously have a known solution.

(either as product patents, process patents, or as a separate category of

patents), while a further twenty-eight countries did not explicitly exclude this
possibility. In many developing countries, second-use patents were routinely
granted whether or not this possibility was formally provided in their laws.64
Only twelve countries explicitly excluded the patentability of new or second
uses of patents. The members of the Andean Community provided a partic-
ularly broad exemption, stating that ‘products or processes already patented
and included in the state of the art [. . . ] may not be the subject of new patents
on the sole ground of having been put to a use different from that originally
contemplated by the initial patent’ (Article 21, Decision 486). Beyond the
Andean region, the grounds for denial of new use patents varied. In some
countries, new use patents were denied due to lack of novelty, inventiveness,
or industrial applicability.65 The novelty requirement for patentability would,
for instance, normally prevent a patent being issued in respect of an invention
relating to a known product for which a new use had been found. Some
countries also considered purported new uses to be mere discoveries related to
a known product and therefore not real inventions. (In such cases, some such

79
The Implementation Game

uses were still eligible for protection through a ‘method’ or ‘use’-type patent
claim.)66 In several instances, patents on new uses were denied on the grounds
that the proposed new use was in fact a method of medical treatment (which
TRIPS allows countries to exclude from patentability, as noted above).67
Beyond standards in national IP laws, the regulatory and administrative
measures taken by governments after laws were in place significantly impacted
the degree to which flexibilities were exercised. In their administration of the
IP system, patent offices can individually discern how to define important
legal concepts such as novelty, inventive step, industrial applicability, and
prior art. TRIPS stipulates that patent laws must require that all patent appli-
cants disclose the invention in a manner that is sufficiently clear and complete
for one skilled in the art to carry it out. This ‘social contract’ is a mandatory
requirement that forms part of the balance of rights and obligations in TRIPS.
Countries have the choice, however, of whether to require applicants also
to indicate the best mode for carrying out the invention and to provide
information on corresponding foreign applications and patent grants.
Further, at least nine countries have broadly worded provisions that limit
the scope of patentability to ‘acts done for industrial or commercial purposes’,
thereby excluding all non-commercial acts from patentability.68 TRIPS does
not define criteria for the assessment of the novelty of an invention or what
constitutes the prior art on which such an assessment would rely. The Agree-
ment merely requires that patents that are sought should be new. In practice,
the criteria countries use to assess novelty vary. Argentina’s law specifies that
‘any living material and substance pre-existing in nature’ will not be consid-
ered an invention. India’s patent law contains a provision (Article 3d) that
limits the scope for ‘new uses’, or new forms of existing inventions, to fulfil
the criteria of novelty and inventiveness and thus to be patentable subject
matter (see Chapter 5, section 5.1.7 for discussion of legal debate in India on
this Article). Regarding prior art, almost all developing countries provide that
any public disclosure whether written, oral, or by use anywhere in the world
can be taken into account. One notable exception is Sri Lanka, which only
recognizes written disclosure beyond its borders.

3.3.2.2. EXCEPTIONS TO PATENT RIGHTS

TRIPS includes a general exceptions clause that enables WTO members to
provide ‘limited exceptions to the exclusive rights conferred by a patent’
under certain conditions (Article 30). Broadly speaking, exceptions are pos-
sible where they are limited and where they do not unreasonably conflict
with normal exploitation of patent or prejudice the legitimate interests of the
patent owner, taking into account the legitimate interests of third parties.
Examples of exceptions found in national legislation in developing coun-
tries include exceptions to allow for public and non-commercial uses or
experimental purposes. During the TRIPS negotiations, the latter exception

80
 Variation in TRIPS Implementation (1995–2007)

was considered especially important in that it allows researchers to understand

and invent around patented inventions, thereby promoting further innova-
tion. As of December 2007, the majority of developing country WTO members
had specific provisions allowing third parties to use a patented invention
for research, experimental, or scientific use. A further twenty developing
countries specifically provided exceptions for education and teaching. The
notable exceptions were South Africa and the sixteen francophone African
members of the Bangui Agreement which did not provide for general research
or experimental-use exceptions.
Some countries also provided exceptions that enable the use of patented
materials during the patent term where the purpose is to obtain marketing
approval and registration of a generic product before the patent expires. (Such
exceptions are widely referred to either as regulatory or “Bolar” exceptions.69 )
The use of a Bolar exception can help countries facilitate the rapid entry
into the marketplace of cheaper competitors to brand-name products. In the
absence of a Bolar exception, such use of patented materials would be unlaw-
ful until the expiry of the patent in question. While TRIPS makes no express
mention of Bolar exceptions, Article 30 provides countries with the flexibility
to implement such a provision if they wish. In a 2000 ruling on a dispute
between the European Commission and Canada on the patent protection of
pharmaceutical patents, the WTO Dispute Settlement Body (DSB) affirmed
this possibility.70
Of 106 developing countries surveyed, less than ten expressly included a
Bolar provision in their laws (see Table 3.4 above). Jordan’s national patent
law states that ‘all types of scientific research and development, and filing of
applications for obtaining marketing permits carried out before the elapse of
the patent protection period shall not be regarded as infringement neither
civil nor criminal’ (Article 21 (c)). The Dominican Republic’s patent law also
explicitly states that its provision on patent exceptions applies to ‘those uses
which are necessary to obtain sanitary approval and to market a product after
the patent protecting it has expired’. Further, Argentina’s patent law states
that any third party may use a product or process protected by patent prior
to its expiration ‘to obtain the information required for the approval of a
product or process by the competent authority so that it may be marketed
following the patent expiration’ (Article 8). Bolar-type activities are also some-
times permissible under the ‘general exceptions’ provisions of laws, such as
in Uruguay, the Andean Community, and francophone Africa.71 Uruguay’s
patent law provides, for example, that patent rights shall not extend to those
actions undertaken exclusively for experimental purposes, even those taken
in preparation for future commercial exploitation, carried out within the year
before the patent expires (Article 39 (d)).
TRIPS also includes provisions regarding the use of inventions without
authorization by the rights holder, namely for government use (i.e. public,

81
The Implementation Game

non-commercial use) and for use by third parties (i.e. compulsory licences).
Under TRIPS, the grounds on which a licence can be awarded without the
right-holder’s consent are essentially left to the discretion of the member.72
Some of these grounds may only be invoked after three years from grant or
four years from filing of the patent (e.g., failure to exploit and/or failure to
work domestically). Further, a licence can only be granted if certain conditions
are met, including prior efforts to obtain a voluntary licence within in a
reasonable time and on reasonable terms (this condition does not apply in
the case of public, non-commercial use or in the case of a national emergency)
and payment of adequate remuneration to the patent holder. No such require-
ments for prior negotiation exists where the motivation for the licence is to
remedy anti-competitive behaviour.73 The licence must also be predominantly
for the supply of the domestic market (Article 31).74 Suppliers of the product
under the compulsory licence may include any third party or government
entity authorized by the government to sell on the commercial market. The
2001 Doha Declaration on TRIPS and Public Health affirmed the right of
WTO members to issue compulsory licences and to determine for themselves
the grounds warranting such action. The Declaration specifically noted that
situations of national emergency could include public health challenges. In
Paragraph 6 of the Declaration, WTO members committed to addressing
the fact that TRIPS Article 31(f) (which specifies that products manufactured
under compulsory licence must be ‘predominantly’ for the domestic market)
might limit the ability of countries with insufficient manufacturing capacity
to import cheaper generic medicines made under compulsory licence. In 2003,
the so-called ‘30 August Decision’ by WTO members put in place a waiver that
enables any member country to export pharmaceutical products made under
compulsory licence within the terms of the decision.75
While most developing countries provided for compulsory licensing in their
laws, the grounds for granting a compulsory licence varied (see Table 3.5).
Some countries, such as Pakistan and Cambodia, provided a narrower set of
grounds than those available to them. In addition, some developing coun-
tries, such as Jordan, imposed TRIPS-plus procedural requirements and other
limitations on the issuance of compulsory licences, including restricting the
use of compulsory licences to emergencies or epidemics. On the other hand,
Argentina and Brazil are notable for the broad range of grounds for compul-
sory licensing included in their laws.
Some developing countries took distinctive approaches to the procedures
related to government use and carefully specified the grounds for such
licences. According to Article 51 of the Thai Patent Act (as amended), any Thai
ministry, bureau, or department may exercise a patentee’s rights ‘[i]n order to
carry out any service for public consumption or which is of vital importance
to the defense of the country or for the preservation or realization of natural
resources or the environment or to prevent or relieve a severe shortage of food,

82
 Variation in TRIPS Implementation (1995–2007)

Table 3.5. Examples of variation in grounds for granting compulsory licences

Grounds for granting compulsory licences Number of countries

providing these grounds

Failure to work or exploit (supply, meet public demand) on reasonable 39

terms after 3–4 years
Public interest/public non-commercial use 33
National security, emergency, health emergency, or development of 22
vital economic sector
Remedy anti-competitive practices, unfair competition 24
Failure to obtain licence under reasonable terms 22
Dependent patents 29
No apparent provisions 2

Source: Author’s compilation based on Musungu and Oh (2006), WTO Trade Policy Reviews, and TRIPS Council
Reviews of Legislation.
NB: Survey sample of forty-one developing countries.

drugs or other consumption items or for any other public service’. In 2001,
Kenya passed an Industrial Property Act which provided that government use
of a patented product may proceed without payment of any remuneration to
the patent holder in some circumstances.76
As of December 2007, at least twelve developing countries issued compul-
sory licences (i.e. Brazil, Ghana, Guinea, Indonesia, Malaysia (three times),
Mozambique, Rwanda, Swaziland, Taiwan, Thailand (four times), Zambia, and
Zimbabwe). (For further discussion, see Chapter 6, Section 6.4.4.77 ) In most
cases, the licences were for government use and public health-related. In 2005,
Rwanda was the first government to notify the WTO of its intention to take
advantage of the 2005 amendment to TRIPS that resulted from the 30 August
decision.78 Canada subsequently notified the WTO of its intention to export
to Rwanda using the same system.79
In addition, several developing countries used the threat of compulsory
licensing to gain leverage in negotiations with patent holders and suppliers
of medicines to lower the prices of the medicines in question (see discussion
in Chapter 6, Section 6.4.4). Importantly, the impact of compulsory licences
once issued has varied. In both Malaysia and Indonesia, compulsory licences
were harnessed by local producers and importers who then supplied drugs at
lower costs than before the licence was issued.80 In Mozambique and Zambia,
it remains unclear whether any local production or import of medicines under
compulsory licence took place.81 (To date, no comprehensive cross-national
survey or assessment of the impact of non-voluntary licences on access to
medicines has been undertaken).

3.3.3. Protection of Undisclosed Information and Data Protection

TRIPS calls on states to help prevent the unauthorized disclosure or acqui-
sition of information, such as trade secrets, in a manner contrary to honest

83
The Implementation Game

commercial practices. Examples of dishonest or ‘unfair’ commercial practices

include breach of contract or confidence, and inducement to breach or acqui-
sition by third parties who knew or should have known such practices were
involved.) TRIPS also requires WTO members to protect against ‘unfair com-
mercial use’ of undisclosed test or other data (that has required considerable
efforts to produce) that is submitted to a regulatory body as a condition
for marketing approval of pharmaceuticals and agricultural chemicals using
new chemical entities (Article 39.3). An exception to this obligation arises
if disclosure is necessary to protect the public and steps have been taken to
protect the data against unfair commercial use.
The practical relevance of the protection of test data is that it can impact
the speed and ease with which competitors to IP holders, such as generic
producers of medicines, can enter a given market. For instance, laws that
specify particular periods of data protection can limit the ability of a generic
competitor to rely on the patent holder’s test data to approve a bio-equivalent
generic product during this period. If no generic suppliers can obtain mar-
keting approval without repeating time-consuming and costly tests on their
products (which would be impossible during an emergency situation due to
time constraints), the possibility for governments to make use of compulsory
licensing may be constrained. In recognition of these challenges, the 2001
Doha Declaration on TRIPS and Public Health extended the LDC deadline for
conformity with this provision until 2016.
TRIPS does not detail how WTO members must fulfil the obligations in
Article 39.3. It also grants countries the scope to determine for themselves
what constitutes ‘unfair commercial use’. In addition, countries can chose
whether information provided to a pharmaceutical regulatory authority can
be relied on by a subsequent applicant seeking to obtain approval for a bio-
equivalent product, and also whether further applicants must provide similar
data, such as clinical trial data.
In a 2006 study that surveyed national provisions on data protection in
forty-nine developing countries, twenty-eight had a provision for data protec-
tion in their laws, while eighteen did not.82 (See Table 3.6.) Only Argentina
had a specific provision explicitly allowing a second applicant to rely on previ-
ously submitted data.83 In forty-one countries, the ability of second applicants
to rely on previously submitted data was curtailed either in patent or other
national laws (such as trade secrets laws), though the conditions varied widely.
At least ten developing countries either explicitly forbade or severely curtailed
the opportunity for the second applicant to rely on such data. Further, some
of these developing countries had TRIPS-plus data exclusivity provisions that
restrict the use of original test data for a specified period of time. In some
cases, governments provided data exclusively for five, seven, or ten years. In
the case of Antigua and Barbuda, for example, second users were prevented

84
 Variation in TRIPS Implementation (1995–2007)

Table 3.6. Examples of variation in provisions on data protection for new chemical entities
in developing countries

Data protection
No specific provision on data protection Antigua and Barbuda, Belize, India, Indonesia, Malaysia,
for new chemical entities Cambodia, Malawi, and Tanzania (Total 8)
Ability of second applicant to rely on Andean Community, Bahrain, China,a Pakistan, Philippines,b
previously submitted data curtailed Thailand, Vietnam, Barbados, Nicaragua, Trinidad &
either in patent or other national laws, Tobago, Uruguay, Brazil, Chile, Costa Rica, Guatemala,
sometimes for a specific period of Honduras, Dominican Republic, OAPI members, Egypt,
time (such as Trade Secrets Acts) Ghana, Kenya, Mauritius and Tunisia (Total 41)

Source: Thorpe (2002).

NB: Survey sample of forty-nine countries.
a
Provides data exclusivity for six years under the Implementation Provisions of the 2002 Drug Administration
Law from the date a manufacturer or distributor was granted marketing approval for a pharmaceutical product
utilizing new chemical entities.
b
For agricultural chemical products, the Pesticide Regulation provides data exclusivity for eight years from date
of approval. Data protection is also provided under the Food, Drugs and Cosmetic Act and general business
confidentiality regulations.

from relying on that data for a period determined by national courts, but not
normally less than five years. In Nicaragua, test data was protected and could
not be supplied to second user (though there are exceptions in relation to the
protection of public health). In eight countries, later applicants were obliged
to supply ‘new’ data.84 On the other hand, several countries, such as Argentina
and Saint Lucia, simply incorporated the language of Article 39.3 directly. In
at least eleven countries, such as Jamaica, no specific protection was available,
such that later applicants may rely on previous data.85
In many cases, the terms of data exclusivity were difficult to ascertain,
particularly as the relevant provisions were frequently not found in patent
laws, but in laws related to medicines, food, or pesticides, or in the confi-
dentiality clauses of general business laws. In Chile, for example, when third
parties apply for marketing approval, the Public Health Institute can accept
the information supplied by the original producer (the owner of the patent)
as the basis on which to make its authorization (provided that the therapeutic
molecule in question has the same qualitative and quantitative formula as the
original product), thus obviating the need for applicants to furnish further
background information.86
Finally, fifteen countries that completed FTAs with the United States com-
mitted to implementing data exclusivity laws that provide from five to ten
years of ‘non-reliance’ on test data of IP holders. Further, some FTAs, notably
CAFTA, require TRIPS-plus data exclusivity to be linked to patent protection
so as to prevent generic producers from obtaining marketing approval at any
time during the patent period, even when a compulsory licence is issued, and
even in preparation to enter the market upon patent expiry, both of which
are otherwise allowed under TRIPS.

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The Implementation Game

3.3.4. Plant Variety Protection

TRIPS calls on WTO members to protect breeders’ rights with respect to plant
varieties. It gives members three different options for meeting this obligation:
patents, a sui generis system of protection, or a combination of both (Article
27.3 (b)).87 Most developing countries did not previously provide any form of
IP protection for plant varieties. Indeed, many developing countries explicitly
excluded plant varieties and essentially biological processes (such as breeding
methods) from patentability.88 Developing countries defended the sui generis
option in the TRIPS negotiations, arguing that their farming systems differ to
those of developed countries and that they often had no tradition of plant
breeders’ rights or patents with respect to plant varieties.89
In devising their own sui generis system, countries have the freedom to
determine the scope and content of rights granted. Countries can, for exam-
ple, grant exceptions to the exclusive rights of breeders with respect to the
propagating materials of new varieties in order to enable farmers to reuse
and/or sell seeds. They can also permit research exceptions for the use of
protected varieties by a third party in order to develop a new variety, allow
compulsory licences for reasons of public interest, and recognize the contri-
butions and rights of traditional farmers that have provided breeding mate-
rials (this could include provisions for remuneration). The only requirement
that TRIPS stipulates is that the sui generis system be ‘effective’. TRIPS does
not define any criteria for determining whether that objective has been
achieved.
In practice, countries had two options with respect to sui generis protection:
(a) adopt the standards advanced by the International Convention for the
Protection of New Varieties of Plants (UPOV), or (b) devise an alternative,
independent sui generis approach. At the time TRIPS was signed, the members
of UPOV had just updated its 1978 Act, replacing it with a 1991 Act.90 Critics
of the 1991 Act noted several undesirable aspects of the new Act compared to
the earlier 1978 version. Developing countries fought successfully to ensure
that TRIPS made no mention of UPOV 1991 as the only, or even the preferable,
system for plant variety protection.91 Thus, in devising an ‘effective sui generis
system’ for plant varieties, developing countries that had not yet adopted
legislation had considerable flexibility.92 (Table 3.7 sets out some of the core
differences between UPOV 1978, UPOV 1991, and patent protection for plant
varieties.)
Implementation of Article 27.3 (b) was one of the areas where developing
countries most widely missed their TRIPS deadlines. When seventy-three
developing countries reached their year 2000 TRIPS deadline, less than half
had passed relevant legislation in the area of plant variety protection.93 As
noted above, only a few developing countries, notably Guateuala, introduced

86
 Table 3.7. Comparison of plant variety protection under UPOV and patent law

UPOV 1978 UPOV 1991 Patent Law

Protection coverage
Scope of rights extends to varieties of Expands scope of rights to plant varieties of all genera and species Inventions
nationally defined plant species
Requirements
Novelty Novelty Novelty
Distinctness Distinctness Inventive step (or non-obviousness)
Uniformity Uniformity Industrial application
Stability Stability Disclosure of the invention
Variety denomination Variety denomination —
Protection scope
Minimum scope: Producing for purposes of Minimum scope: Producing, conditioning, offering for sale, selling or In respect of the product: Making, importing,
commercial marketing, offering for sale, other marketing, exporting, importing, stocking for above offering for sale, selling, and using the

Variation in TRIPS Implementation (1995–2007)

and marketing of propagating material of purposes of propagating material of the variety product; stocking for purposes of offering
the variety Some acts in relation to harvested material if obtained through an for sale, etc.
unauthorized use of propagating material and if the breeder has In respect of a process: Using the process and
had no reasonable opportunity to exercise his right in relation to doing any of the above-mentioned acts in
the propagating material respect of a product obtained directly by
means of the process
Protection term
Min. 15 years Min. 20 years Min. 20 years from filing
Breeders’ exemption
Yes. However, hybrids (and like varieties) Yes. However, hybrids (and like varieties) cannot be exploited without No provision
cannot be exploited without permission permission from holder of rights in the protected inbred line(s)
from holder of rights in the protected
inbred line(s)
Essentially derived varieties cannot be exploited in some circumstances
without permission of holder of rights in the protected initial variety
Farmers’ exemption
Includes farmers’ exemption Status of farmers’ exemption changed from a general principle to an No provision
exception that members may establish through national laws
Double protection
Prohibition of patents for any species eligible Removes prohibition on double protection Up to national laws
for plant breeders rights
87

Source: Adaptation of table presented in Dutfield (2003: 190–1). Modified version of table in van Wijk et al. (1993).
The Implementation Game

patent protection for plant varieties. Other countries with legislation in place
adopted a sui generis approach to the implementation of Article 27.3(b).
Table 3.8 illustrates the diversity of sui generis approaches pursued. It high-
lights that a striking number of countries followed the UPOV 1991 approach,
eschewing the possibility to tailor-make an alternative sui generis system of
protection.
After the entry into force of TRIPS, the developing country membership
of UPOV 1978 system grew from three to twelve as countries moved to sign
that version of the Agreement before the door closed (Bolivia, China, Kenya,
Brazil, and Panama all joined in April 1999).94 In addition, many countries
passed plant variety protection laws based on UPOV 1978 or UPOV 1991 but
did not actually join either convention. As of early 2008, several members of
UPOV 1978 had laws that met UPOV 1991 standards and were expected to
shift from UPOV 1978 to UPOV 1991.95 Further, over twenty non-member
developing countries already had UPOV 1991 consistent laws in place and
were in a position to accede at any time.96 Some sixteen members of OAPI in
francophone Africa, for instance, had a regional framework for plant variety
protection derived from the UPOV 1991 model law and were committed
to joining UPOV 1991. In addition, a further ten developing countries had
initiated procedures for becoming a member of the Union, namely Costa
Rica, Egypt, Guatemala, Honduras, India, Malaysia, Mauritius, the Philippines,
Venezuela, and Zimbabwe (i.e., Submission of laws or draft laws to the UPOV
Council to evaluate compliance with UPOV 1991).97
Among those countries with UPOV-like plant variety protection, the term
of protection varies, sometimes according to the subject matter. In Argentina,
for instance, the length of protection varies from 15 to 20 years, depending on
the species, whereas Belize provides protection for 20 to 25 years depending
on the species. The francophone African members of OAPI, on the other hand,
provide 25 years protection for the range of different plant varieties.
There are also important differences among the alternative sui generis
approaches taken by developing countries. Many of those laws designated
in Table 3.8 as ‘other’ sui generis approaches still drew substantially from
either the UPOV 1978 or 1991 regimes. They usually provided for plant
breeders’ rights but supplemented these with provisions for farmers’ rights.
The Andean Community’s regional Decision 345, for instance, provided a
sui generis approach that simultaneously met UPOV 1978 requirements. Irre-
spective of which sui generis approach countries took, it is notable that some
thirteen developing countries incorporated exceptions to the rights of plant
breeders in their laws allowing farmers to save, exchange, and sell (in a limited
way) seeds produced from a protected variety (including Ecuador, India, and
Pakistan).98
The number of countries with a non UPOV-style sui generis regime is difficult
to determine. While there are many proposals and draft laws under discussion,

88
 Table 3.8. Examples of variation in approaches to plant variety protection

Member of UPOV 1978 Member of UPOV 1991 UPOV 1991-style or Combination of UPOV (1991 or Other sui generis
and ratification date and ratification date equivalent 1978)-style plant breeder’s approach to plant
rights and farmers’ rights variety protection

South Africa (1977) Korea (2002) Cambodia (2005) Andean Community (2000)a Bangladesh (draft)

Variation in TRIPS Implementation (1995–2007)

Argentina (1994) Tunisia (2003) OAPI region (1999) Barbados (2001) Guatemala (draft)
Uruguay (1994) Jordan (2004) Philippines (2002) Egypt (2002) Namibia (draft)
Chile (1996) Singapore (2004) Taiwan (2004) India (2001) SADC (draft)
Colombia (1996) Tunisia (2005) South Africa (1996) Mexico (1997)a Thailand (1999)
Ecuador (1997) Morocco (2006) Saudi Arabia (2004) Pakistan (2000) Zambia (draft)
Mexico (1997) Vietnam (2006) Costa Rica (2008) Panama (2002)a Zimbabwe (1974)
Brazil (1999) Dominican Republic (2007) Sri Lanka (2001) Costa Rica
Bolivia (1999) Turkey (2007) Uruguay (1981) (1998-Biodiversity Law)
China (1999)
Kenya (1999)
Panama (1999)
Trinidad & Tobago (1998)
Nicaragua (2001)

Source: Compiled by author using UPOV website and texts of national laws and draft laws.
a
Countries that are members of UPOV 1978 may also have provisions in their laws that supplement those required for UPOV membership.
89
The Implementation Game

only a handful of such regimes are in force. Costa Rica’s 1998 Biodiversity Law
included provisions regarding the protection of the traditional knowledge of
local and indigenous communities (including their development of new plant
varieties). Thailand’s 1999 Plant Varieties Protection Act adopted a distinctive
approach, distinguishing three different categories of protection available for
plant varieties.99 In Bangladesh, two complementary laws were drafted in the
late 1990s, a Biodiversity and Community Knowledge Protection Act and a
Plant Varieties Act (which continue to be debated by experts and various
government committees).100 In Africa, Namibia’s draft access to Biological
Resources and Associated Traditional Knowledge Act and the Zambia’s draft
Plant Variety and Seeds Act were based on the African Model Law for the
Protection of the Rights of Local Communities, Farmers, and Breeders, and
for the Regulation of Access to Biological Resources.101

3.3.5. Copyright and Related Rights

In the area of copyright, TRIPS requires most developing countries to
strengthen existing rights and adopt new standards. Many of the Agreement’s
provisions do, however, provide options and flexibilities as to the scope and
degree of protection offered.102 Countries have the opportunity, for exam-
ple, to specify certain limitations and exceptions to the rights of copyright
holders.103 (Table 3.9 presents a sample of the limitations and exceptions
possible in TRIPS, noting that many of these derive from its incorporation
by reference of provisions in the Berne Convention.)

Table 3.9. Examples of copyright limitations and exceptions available in TRIPS/Berne

Personal use The most universally accepted limitation to the reproduction right. This
may include time-shifting
Criticism and review Available in most countries. Article 10 of the Berne Convention allows
for short quotations
Educational purposes Allows teachers to use extracts of copyrighted works for illustration
purposes and on a variety of media, so long as the use is compatible
with fair practices.
Reproduction by the press Countries may determine the circumstances under which copyrighted
works, incidental to the reporting of current events, are reproduced
(Article 10bis and 10bis (2))
Ephemeral recordings Broadcasting organizations may record broadcasts for an official archive
(Article 11bis)
Libraries Reproductions for preservation and replacement and other limited uses.
This exception falls under the broad heading of teaching and the role
libraries play in this respect
People with disabilities There is no explicit limitation in the Berne Convention, but countries can
implement limitations to facilitate access by disabled persons
Computer programs and There is no explicit limitation in the Berne Convention, but countries can
interoperability provide provisions that allow computer programs to be copied for the
purposes of interoperability

Source: Author’s adaption of text in Okediji (2006: 10–12).

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 Variation in TRIPS Implementation (1995–2007)

TRIPS incorporates, by reference, several provisions of the Berne Conven-

tion that provide the basis for what is commonly known as ‘fair dealing’ or
‘fair use’ with respect to copyrighted works. The Berne Convention provides,
for instance, that governments can permit use (to the extent justified by the
purpose) of literary or artistic works by way of illustration in publications,
broadcasts, or sound or visual recordings for teaching, provided such use
is compatible with fair practice (Article 10(2)). It also permits governments
to allow the reproduction of literary and artistic works in certain specified
cases, provided this does not conflict with the normal exploitation of the
work and does not unreasonably prejudice the legitimate interests of the
author (Article 9(2)).104 By reference to the Berne Convention, TRIPS also
incorporates the Berne Appendix, which permits developing countries under
certain circumstances to use compulsory licensing to purchase or reproduce
imports to promote access to literary and artistic works published abroad (such
as where the royalties or fees that copyright holders might otherwise demand
in return for authorization would be unaffordable).
Most developing countries did not take full advantage of the copyright
limitations and exceptions in TRIPS, including those specifically available to
them through the incorporation of the Appendix to the Berne Convention.105
The majority of developing countries provided only a limited range of limi-
tations and exceptions to copyright, particularly those with older copyright
laws (though many had shorter terms of protection). Perhaps most sur-
prising was that countries made little use of TRIPS flexibilities that might
have helped improve access to education and distance learning. More-
over, many developing countries adopted additional TRIPS-plus copyright
protections.
The most common limitations and exceptions were those that allowed
the incorporation of short extracts of works in teaching material or the
performance of a copyrighted work for educational purposes. Argentina, for
example, only provided copyright exceptions for educational and scientific
purposes, and only then for a limited number of words.106 Of nine countries
reviewed in the Asia-Pacific region, only the Philippines and Mongolia took
full advantage compulsory licensing options for translation, reproduction,
and publication of copyright works such as textbooks in their laws (see
Appendix 4).107 Indonesia was the sole country that incorporated powers to
deal with anti-competitive practices into its copyright legislation. Only the
Philippines adopted a general ‘fair use’ provision in its law,108 and was also
the only country in the region to make full use of exceptions related to
teaching and quotation. The area in which the nine countries made great-
est use of TRIPS flexibilities was in the exclusion of official texts and their
translations from copyright protection. Beyond the Asia-Pacific region, the
variation was also considerable. Belize, for instance, had a broad exception to
copyright specifying that the use of a work for the purpose of research, private

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The Implementation Game

study, criticism, review, reporting, education, and parliamentary or judicial

proceeding would not be considered an infringement. In other instances,
the exceptions and limitations countries provided had conditions attached.
Nigeria, for example, allowed any use by approved educational institutions,
but required that such copies must subsequently be destroyed.
Some developing countries had specific provisions in their copyright laws
related to translation (the dates of relevant laws follow in brackets). For
example, Jordan provided for authorization to translate into Arabic (1999)
and Malaysia for translation into the national language (1987). In addition,
Vietnam provided exceptions for translation to and from ethnic languages
of original Vietnamese works (1996) and Cambodia provided for transla-
tion to and from ethnic languages of original Khmer works (2002). India
allowed for compulsory licensing for Indian works or for translations not
available in India (1999). Indonesia’s law also indicated that the government
may authorize translation (2002). Nigeria’s 1999 law provided exceptions for
reproduction for the disabled while Brazil (1998), Dominican Republic (2000),
Malaysia (1987), and Mongolia (1999), among others, specifically mentioned
translation into Braille.
TRIPS requires the protection of software as literary works but is silent
on matters regarding the permissibility of reverse engineering of software,
and activities undertaken to make different software interoperable. From a
development perspective, reverse engineering can be a useful way to promote
innovation and competition in the software industry.110 Most developing
countries took advantage of TRIPS’ silence on the matter and made no explicit
mention of reverse engineering one way or the other. Some countries, namely
India and Sri Lanka, specifically allowed reverse engineering to adapt software
to ‘enable use with a computer’. In addition, the Philippines’ copyright law
provided that de-compilation of computer programs to achieve interoperabil-
ity ‘may constitute fair use’.111 In 2005, Morocco’s copyright law allowed for
both the copying and adaptation of computer programs, as did Thailand’s
1994 law. In francophone Africa, the members of OAPI also provided for
the free use and adaptation of computer programs in their regional law.
Indonesia’s law, on the other hand, expressly omitted any exceptions for the
copying of computer programs. South Africa’s 1995 copyright law specifically
prohibited reverse engineering of software (but did allow back-up copies of
computer programs). In addition, some developing countries committed to
prohibiting such reverse engineering of software in bilateral FTAs with the
United States (see Appendix 6).
Beyond the generally weak use of TRIPS flexibilities, copyright is the area
of IP protection in which developing countries demonstrated a particularly
strong collective propensity for TRIPS-plus standards. Table 3.10 shows that
many developing countries adopted laws that extended the term of copy-
right protection beyond that required by TRIPS (i.e. life of the author plus

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 Variation in TRIPS Implementation (1995–2007)

Table 3.10. Variation in copyright term among developing country WTO members

General copyright Country and date of laws stipulating this term of protection
term (in years)

Life of author + 100 Mexico (2003)

Life of author + 99 Côte d’IvoireOAPI (1996)
Life of author + 80 Colombia (1982), Guinea (1980)
Life of author + 75 Guatemala (2000), Honduras (1999), St. Vincent & the Grenadines (2003)
Life of author + 70 Argentina (1997), Bahrain (2006), Brazil (1998), Burkina FasoOAPI (1999),
ChadOAPI , Costa Rica (2000), Dominica (2003), Ecuador (1998), Ghana
(2005), Madagascar (1994), Morocco (2006), Mozambique (2001),
Nicaragua (1999), Nigeria (1990), Paraguay (1998), Peru (1996),
Singapore (2004), Turkey (1995), OAPI (1999), DR-CAFTA (2004)
Life of author + 60 Bangladesh (2000), India (1999), Venezuela (1993)
Life of author + 50 Angola (1990), Antigua & Barbuda (2002), Barbados (1998), Belize (2000),
(TRIPS minimum) BeninOAPI (1984), Bolivia (1992), Botswana (2000), Brunei (1999), Burma
(1948), Burundi (1978), Cambodia (2003), CameroonOAPI (2000),
Central African RepublicOAPI (1985), Chile (1970), China (2001), Chinese
Taipei (1992), CongoOAPI (1982), Cuba (1994), Dominican Republic
(2000), Egypt (2002), El Salvador (1993), Fiji (1999), GabonOAPI (1987),
Gambia (1956), Guyana (1956), Indonesia (2002), Jamaica (1993),
Jordan (1992), Kenya (2001), Kuwait (1999), Lesotho (1956), Macao
(1999), Malawi (1989), Malaysia (1987), MaliOAPI (1977), Mauritius
(1997), Mongolia (1993), Namibia (1997), Nepal (2002), NigerOAPI
(1993), Oman (2000), Pakistan (2000), Panama (1994), Papua New
Guinea (2000), Philippines (1997), Qatar (2002), Rwanda (1983), Saint
Kitts and Nevis (1956), Saint Lucia (1995), Saudi Arabia (2003),
SenegalOAPI (1973), Sierra Leone (1965), Solomon Islands (1996), South
Africa (1992), South Korea (1989), Sri Lanka (2000), Suriname (1913),
Swaziland (1912), Tanzania (1999), Thailand (1994), TogoOAPI (1991),
Tonga (1988), Trinidad & Tobago (1997), Tunisia (1994), Uganda
(1964), United Arab Emirates (2002), Uruguay (2003), Vietnam (2005),
Zaire (1986), Zambia (1994), Zimbabwe (1981), Andean Community
(1993),a NAFTA (1994)a
Less than life of Djibouti (1996), Haiti (1985)
author + 50
Law, but unknown Grenada (1989)
duration
No law or draft law Guinea-Bissau, Maldives, Mauritania (2002)OAPI
under consideration

Source: Compiled by author based on national IP laws available from WIPO, WTO, and WTO Trade Policy Review
Secretariat Reports.
OAPI
Designates that this country is a member of OAPI.
a
Represents the minimum term of protection under the regional arrangement. Some members have subsequently
adopted longer terms of protection.

fifty years). Of the 106 developing countries surveyed, over sixty-five provided
a copyright term that extended to or beyond the TRIPS requirement. At the
extreme end of the spectrum, countries such as Côte d’Ivoire, Colombia,
Guinea, and Mexico all provided life plus eighty years or more copyright
protection. The African region has the greatest incidence of TRIPS-plus terms
of protection for copyright. Many, but not all, the countries that implemented
TRIPS-plus copyright terms were obliged to do so in bilateral trade agreements.
By contrast, a number of LDCs had not yet updated copyright laws and

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The Implementation Game

the terms of protection were far shorter. In Haiti, for example, the term of
protection of copyright was the life of the author plus twenty-five years.109
Finally, it is notable that several developing countries enacted TRIPS-plus
provisions in their laws to address challenges that copyright holders experi-
ence with unauthorized copying due to the possibilities afforded by changes
in digital technologies and the Internet. Examples of such measures included
laws that authorized the use of technological protection measures (TPMs) by
copyright holders to prevent duplication of their works and made circum-
vention of such measures a criminal act.112 In addition, a growing number
of countries added provisions to their copyright laws or new laws to com-
bat ‘optical disc piracy’. As of December 2007, some thirty-six developing
countries were members of each of the WIPO Copyright Treaty (WCT) and
the WIPO Performance and Phonograms Treaty (WPPT) (neither of which
is referred to in TRIPS). The options available to countries to meet their
obligations under these treaties have been hotly debated in the United States
and Europe, but a growing number of developing countries have followed
their lead by implementing laws regarding TPMs and their circumvention.113

3.3.6. Anti-competitive Practices

Article 8.2 of TRIPS states that WTO members may adopt appropriate mea-
sures to prevent the abuse of intellectual property rights by IP right-holders or
the resort by them to practices that unreasonably restrain trade or adversely
affect the international transfer of technology. Further, Article 40 of TRIPS
recognizes the potential link between IP laws and competition policy and
laws.114 TRIPS recognizes the right of countries to specify in their national
laws those licensing practices or conditions that may constitute an abuse of IP
rights and have an adverse effect on competition. The Agreement also allows
countries to take appropriate measures to prevent or control practices, such
as exclusive grant-back clauses, clauses that preclude challenges to validity of
the patent, and coercive package licensing.115 In such cases, the Agreement
demands that countries conduct consultations with the relevant holders of IP
rights.
To date, there has been limited analysis of the extent to which developing
countries have taken advantage of the possibility to specify offending licens-
ing practices and conditions.116 Countries could take such decisions either by
adding provisions to national IP laws or through separate laws specifically on
the question of restrictive licensing practices and conditions. A further option
is for countries to bolster national competition laws to cover these issues and
to empower competition authorities to pursue them.
The Andean Community specifically took up the issue of licensing con-
ditions in contracts related to the transfer of technology, trademarks, and
patents in its Decision 291. In so doing, the members of the Community

94
 Variation in TRIPS Implementation (1995–2007)

set out a series of clauses that contracts should not contain (e.g. such as
restrictions on the volume and structure of production or on the use of com-
peting technologies, or clauses that require the technology buyer to transfer
to the supplier inventions or improvements generated through use of the
technology).
While most developed countries balance their IP laws with competition
policies that can be used to address monopolistic practices, the process of
drafting and implementing competition laws falls behind the implementa-
tion of IP laws in developing countries. Some developing countries have
competition laws, but no competition authorities to implement them. Other
countries have established competition authorities but are yet to promulgate
associated laws. Developing countries which do have competition laws in
place include Brazil, India, Kenya, Peru, South Africa, and Thailand.117 Peru
is the country with the most integrated regime in this respect. Its national IP
office, INDECOPI, is also the national authority charged with competition
issues.118 To date, there have been only two developing countries where
national competition laws were applied to IP issues, namely South Africa (in
2003 and 2007) and Thailand (in late 2007) (see Section 6.3.1).

3.3.7. Enforcement
While TRIPS sets forth a range of legal and administrative obligations to
improve enforcement, it leaves considerable scope for interpretation of these
provisions. TRIPS does not establish any obligation to establish a distinct
judicial system to enforce IP rights. Further, many of the key terms in the
Agreement, such as ‘effective action’, ‘expeditious remedies’, or ‘adequate
remuneration’ are left undefined. This ambiguity, combined with Article 1
of TRIPS, which enables members to implement TRIPS in accordance with
their own legal system and practice, leaves countries room for discretion in
the area of enforcement.119 As noted by one leading legal authority on TRIPS,
‘[w]hat is effective, expeditious or adequate in one context may not be so
in another’.120 Further, TRIPS does not specify the level of resources that
should be dedicated to IP enforcement or set out any obligations relating to
distribution of resources for enforcement of IP laws versus law in general.
Among developing countries, there was considerable variation in the
specifics of laws implemented to meet TRIPS enforcement requirements and
in how such laws are administered and applied in practice.121 Notably, several
developing countries have introduced some TRIPS-plus enforcement mea-
sures, such as border-control measures relating to exports or goods in transit
(which are not required by TRIPS but are often conditions of bilateral FTAs
with the United States). While a detailed exploration of IP enforcement
is beyond the scope of this book, see Chapters 6 and 8 for some related
discussion.

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The Implementation Game

3.3.8. Other Aspects of Variation in IP Legislation Not Covered by TRIPS

In the period under study, many developing countries proactively imple-
mented or updated IP legislation in several areas not covered by TRIPS. These
warrant attention because they help provide a more complete picture of the
variation in efforts undertaken by developing countries to tailor IP reforms to
national development objectives.

3.3.8.1. UTILITY MODELS

Any WTO member can adopt legislation to protect ‘utility models’ or ‘petty
patent’ titles. Advocates of utility model titles argue that they can help protect
and promote the ‘minor’ innovations that prevail in developing countries.
They can, for instance, provide incentives for creativity in small and medium
enterprises, as well as changes in the design of tools or machinery which
improve their functionality.122 Over thirty developing countries have imple-
mented utility model legislation, either as part of their broader industrial
property law(s) or as a stand-alone law, including Argentina, Belize, Brazil,
and the Andean countries.123

3.3.8.2. DISCLOSURE OF ORIGIN OF GENETIC MATERIAL

AND PRIOR INFORMED CONSENT (PIC)
TRIPS provides that patent applicants may be required to disclose the best
mode for carrying out the invention as well as information concerning cor-
responding applications and grants (Article 29). Developing countries have
called for international IP laws to require further disclosure commitments.
Specifically, they have argued that the patent system should be more support-
ive of the Convention on Biological Diversity as well as the rights of countries
and communities supplying biological resources. (Since 2006, this culminated
in their submission to the WTO of proposals for an amendment to TRIPS
requiring disclosure of the origin of genetic materials in patent applications.)
Putting this principle into practice, at least ten developing countries
required patent applicants to disclose the source of origin of any biological
material or associated traditional knowledge used in, or used to develop, the
invention (e.g. Brazil, Bolivia, China, Costa Rica, Dominican Republic, Egypt,
India, the Philippines, and the Andean Community).124 In several of these
countries, failure to disclose could result in refusal of a patent application
or the declaration of existing patent rights as void or unenforceable. Costa
Rica’s Biodiversity Law, for instance, required patent applicants to present a
certificate of access to show that the genetic resources on which the invention
was based were acquired with the approval of the relevant communities (e.g.
implementing the principle of prior informed consent). In accordance with
its Common Regime on Access to Genetic Resources (Decision 391), the
Andean Community’s regional intellectual property regime (Decision 486)

96
 Variation in TRIPS Implementation (1995–2007)

required disclosure of the right to use genetic resources. Decision 486 states
that applications for patents shall contain a copy of the contract for access if
the products or processes for which a patent application is being filed were
obtained or developed from genetic resources or by products originating in
one of the member countries. Further, if applicable, the patent applicant
must provide a copy of a document that certifies the licence or authorization
to use the traditional knowledge of indigenous, African American, or local
communities in the member countries where the products or processes were
obtained or developed on the basis of the knowledge originating in any one
of the member countries.

3.3.8.3. TRADITIONAL KNOWLEDGE, FOLKLORE,

AND CULTURAL HERITAGE
A number of developing countries provide protections for traditional knowl-
edge (TK), folklore, and/or cultural heritage. In the African region, Angola,
Namibia, South Africa, and sixteen francophone countries all included some
protections for cultural heritage and folklore in their laws, sometimes within
IP laws and sometimes in stand-alone national laws (such as laws on cultural
heritage).125 A number of countries, such as Antigua and Barbuda, have
included positive protections for folklore within their copyright laws. In
francophone Africa, countries also agreed to protections for cultural heritage
in their regional IP framework and many incorporate such protection in their
parallel national copyright laws as well.126
Some countries have also promulgated stand-alone TK laws. In 2006, the
African Regional Intellectual Property Organization (ARIPO) concluded a draft
legal instrument to safeguard, foster, and promote African TK and folklore,
which was also shared for discussion with countries in francophone Africa.127
In other countries, a sui generis approach to TK was pursued through provi-
sions in laws on biodiversity and genetic resources. In such cases, the focus of
the protections was often ‘defensive’. That is, rather than providing positive
IP protections for folklore, cultural heritage, or TK-related genetic resources,
countries adopted laws that defend these against unauthorized or unfairly
compensated use, or other misuse. Such laws included a variety of different
provisions, including those designed to control access to genetic resources
(see section 3.3.8.2), ensure prior-informed consent as a condition of the use
of TK, ensure the sharing of any benefits that arise therefrom, and promote
deference to customary laws.128

3.4. A Typology of Variation

In addition to variation in the use of specific TRIPS flexibilities, there was also
diversity in the overall extent to which countries took advantage of TRIPS

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The Implementation Game

flexibilities. Three general categories of countries emerge. Countries in Group

1 are those that made the least use of TRIPS flexibilities and included a broad
range of TRIPS-plus provisions in their national laws. Significantly, some thirty
developing countries fall in this TRIPS-plus group and half of them are LDCs –
the countries that conventional wisdom leads us expect would exhibit the
lowest IP standards, the greatest use of TRIPS flexibilities, and the fullest use
of transition periods. Group 2 comprises a diverse group of countries with
a combination of TRIPS-plus, -minimum, and/or -minus IP standards and
that made mixed use of TRIPS flexibilities. Group 3 comprises countries that
either offered no IP protection or fell short of TRIPS standards across a broad
range of topics. This category mostly comprises LDCs, which have not yet
reached their deadlines for TRIPS implementation, but also includes several
developing countries with 2000 deadlines.
To illustrate the variation between developing countries in their approach
to TRIPS implementation, Table 3.11 provides examples of countries that
fall into each of these categories. The table is intentionally illustrative, not
exhaustive. The challenge of devising a broader index of the strength of TRIPS
implementation by developing countries is beyond the scope of this study.
The purpose here is simply to show that in addition to diversity in the extent
to which particular TRIPS flexibilities were used, there was also variation by
country in IP standards and their overall use of TRIPS flexibilities.

Table 3.11. A typology of overall variation in IP standards by country

Least developed countries Developing countries

Group 1
Countries that Benin, Burkina Faso, Cambodia, Bahrain, Cameroon, Chad, Chile, Côte
implemented a Central African Republic, Congo, d’Ivoire, Colombia, Dominican
broad range of Equatorial Guinea, Guinea, Republic, Gabon, Guatemala,
TRIPS-plus Guinea-Bissau, Mali, Mauritania, Honduras, Jordan, Mexico, Mongolia,
standards Nepal, Niger, Senegal, Togo Morocco, Oman, Peru, South Korea,
Tonga, Singapore
Group 2
Countries with a Bangladesh, Malawi, Tanzania, Malaysia, Pakistan, Philippines,
mixed approach Uganda, Zambia Argentina, Brazil, Bolivia, China, Cuba,
to TRIPS Ecuador, Egypt, Ghana, India,
flexibilities Indonesia, Kenya, Korea, Nigeria,
Pakistan, South Africa, Thailand,
Venezuela
Group 3
Countries yet to Angola, Burundi, Djibouti, Gambia, Zimbabwe, Papua New Guinea,
complete Haiti, Lesotho, Madagascar, Grenada, Namibia, Suriname
TRIPS-related IP Maldives, Mozambique,
reforms in most Myanmar, Rwanda, Sierra Leone,
areas Solomon Islands, Sudan

Source: Compiled by author based on a sample of WTO Trade Policy Review reports up to 2007.

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 Variation in TRIPS Implementation (1995–2007)

3.5. An Economic Explanation?

Can the variation in legislative reforms developing countries undertook to

implement TRIPS be explained by reference to their respective economic and
social circumstances?
To aid such an analysis, it would be helpful to have benchmarks of the levels
of IP protection that development economists deem appropriate for a country
given its overall economic profile, specific endowments, and social priorities.
While no such benchmarks currently exist,129 the economic literature on
IP and development does put forward several general propositions about
the relative degree of IP protection one would expect to see in developing
countries based on a range of socio-economic variables.
In this section, I test the general propositions that the economic literature
offers against the evidence of IP protection in developing countries and on
TRIPS implementation in particular. In so doing, I find that national socio-
economic variables may well be part, and sometimes a large part, of the TRIPS
implementation story for particular countries, but they are not sufficient to
explain the range of outcomes or variation that we see. In making this assess-
ment, I am aware of a vast technical and theoretical literature by economists
debating the links between IP and development, appropriate methodologies,
and possible measurements. This literature generally focuses on levels of IP
protection rather than specific issues of TRIPS implementation or the use of
its flexibilities. These constraints so acknowledged, even a rudimentary set
of comparisons yield findings that economists’ models and propositions are
ill-equipped to explain the variation in TRIPS implementation.
The core proposition advanced in the economic literature on IP and devel-
opment is that national interests with respect to IP will change over time
as countries develop economically and their technological capacity increases.
That is, economists expect to see a positive correlation between the strength
of IP protection and the level of development (measured by GDP per capita).
Conversely, one would expect to see weaker, more flexible standards of protec-
tion in the poorest developing countries.130 IP protection is not expected to
be the driver of stronger innovation or technological capacity in the world’s
poorest countries. Instead, the evidence suggests that long-term investments
in education, scientific research, technological training, and infrastructure
are more important first steps.131 A review of the evidence on the ground,
however, reveals a more complex relationship between the strength of IP
protection and development.
Figure 3.1 and Table 3.12 each show that there is a broad set of devel-
oping countries for which there is not a clear positive correlation between
the strength of IP protection and their GDP per capita. Figure 3.1 compares
GDP per capita in a sample of developing countries with the degree of IP
protection, using the World Economic Forum’s (WEF) Global IP Protection

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The Implementation Game

14,000

South Korea
12,000
GDP per capita (2003)

10,000

8,000
China
6,000 Mexico

Chile
Uruguay
4,000 Argentina
Panama
Tunisia Jamaica Namibia
Peru
2,000 Paraguay Brazil Morocco
Egypt Honduras Nicaragua
Senegal India
Colombia Togo Ghana Uganda Rwanda
0
0.0 1.0 2.0 3.0 4.0 5.0 6.0 7.0 8.0
Strength of IP Protection (WEF IP Protection Index, 2003)

Figure 3.1. Variation in IP protection among selected developing countries by GDP per
capita

Index as a proxy measure for IP protection.133 The Index combines the

results of a qualitative survey of business executives regarding the perceived
degree of IP protection in developing countries and measures of patent
strength, copyright piracy, and trademark protection. The index focuses on
the degree of actual IP protection, not just the strength of IP laws. The
‘inputs’ of IP protection include IP laws, but also the administrative and
judicial institutions and practices for enforcing these.132 The majority of
developing countries – with vastly different levels of development – fall in
a middle range of IP protection (from three to six on the WEF IP Protection
Index).
Table 3.12 compares the GDP per capita of developing countries to the
degree to which they used the core TRIPS flexibilities according to the typol-
ogy of variation in the overall use of TRIPS flexibilities presented in Table 3.11
above. Like Figure 3.1, Table 3.12 reveals that a large and economically diverse
group of developing countries fell in the middle, making mixed use of TRIPS
flexibilities, and were flanked on either side by a group of countries made
markedly stronger or weaker use of those flexibilities.
Both Figure 3.1 and Table 3.12 affirm economists’ expectations regarding a
high correlation between strong levels of development and IP protection in
countries such as South Korea (and also Singapore, which is not shown in
Figure 3.1.) In addition, Table 3.12 shows that Group 3 countries, which were
yet to undertake TRIPS consistent IP reforms in key areas, were also the poorest
(notwithstanding that some LDCs did have high IP standards in some areas

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 Table 3.12. Comparison of approach to TRIPS implementation and GDP per capita for selected developing country WTO members

Per capita GDP (2006) <US$1,000 US$1,000–2,500 US$2,500–4,000 >US$4,000

Group 1 Benin, Burkina Faso, Cambodia, Cameroon, Côte d’Ivoire, Colombia, Dominican Mexico, Chile, South
(broad range of Cameroon, Central African Republic, Gabon, Senegal Republic, Guatemala, Korea, Bahrain,

Variation in TRIPS Implementation (1995–2007)

TRIPS-plus Chad, Congo, Guinea, Guinea-Bissau, Honduras, Jordan, Oman, Singapore
standards) Mali, Mauritania, Nepal, Niger, Togo Morocco, Peru
Group 2 Bangladesh, Namibia, Tanzania, Uganda, Belize, Botswana, India, Argentina, Brazil, China, Malaysia
(mixed use of Zambia Indonesia, Bolivia, Ecuador, Costa Rica, Nigeria,
TRIPS flexibilities) Kenya, Egypt, El Salvador, Pakistan, Panama,
Jamaica, Mauritius, Thailand, South Africa,
Nicaragua, Paraguay, Sri Uruguay, Venezuela
Lanka, Tunisia
Group 3 Angola, Burundi, Djibouti, Gambia, Haiti, Zimbabwe, Suriname, Papua
(yet to complete Madagascar, Malawi, Maldives, New Guinea, Namibia,
TRIPS reforms) Mozambique, Rwanda, Sierra Leone, Grenada
Solomon Islands, Lesotho

Source: Compiled by author using UNDP (2007) and information provided in WTO Trade Policy Review reports up to 2007.
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The Implementation Game

arising from laws adopted in the early days after independence, as noted in
Chapter 2). Most of the countries in Group 3 have yet to reach their deadlines
for TRIPS implementation. Figure 3.1 also shows that some of the countries
with the highest IP protection were among the world’s poorest. Table 3.12
similarly shows that a range of African LDCs are in Group 1 (the group
of countries with TRIPS-plus standards), rather than Group 3 as one might
have expected. That is, many of the poorest WTO members (such as those in
francophone Africa) opted for some of the world’s highest IP standards and
made limited use of TRIPS flexibilities that might have helped them address
social challenges in the areas of public health, education, and agriculture.
A comparison of Figure 3.1 and Table 3.12 reveals several further distinctive
aspects of the ranking of some LDCs. In Figure 3.1, several LDCs were among
those providing relatively high IP protection. Rwanda, for example, appears
at the high end of overall IP protection. One explanation for such a high
ranking for some LDCs is that the level of economic activity in such countries
is so low that piracy is also low, which in turn generates relatively positive
perceptions of the actual protection that industry receives. Moreover, the case
of Rwanda is interesting because its formal standards of patent protection were
relatively high even before TRIPS came into force. (The WEF includes the term
of patent protection as one the components of its IP Protection Index.) In
many developing countries that retain laws largely left in place at the end of
the colonial era, it was only TRIPS implementation that spurred an overhaul
of IP laws and efforts to make use of IP safeguards and options, such as those
that exist in TRIPS.
The economic literature offers a series of additional propositions and mea-
sures regarding the expected relationship between IP protection and devel-
opment that draw attention to how economic structures and social profiles
of developing countries differ, even where overall indicators of develop-
ment may be similar. The following cursory review of the evidence illus-
trates how the sheer diversity of developing countries and the complexity
of their economic structures challenge the effort to devise useful generaliza-
tions regarding the correlation between particular economic variables and IP
protection.
First, economists expect IP protection to increase as countries develop
technological capacity. Table 3.12 and Figure 3.1 show that this expectation
was realized in the case of South Korea and Singapore. But the correlation
was less clear for countries deemed ‘moderate technology performers’ by
analysts of technological capacity (such as Brazil, Argentina, Chile, Mexico,
Costa Rica, Venezuela, Uruguay, Malaysia, South Africa, and Turkey). Several
of these countries were not in Group 1, but rather had a mixed approach to IP
protection, with strong standards in some areas and weaker ones elsewhere.134
Second, economists predict a positive correlation between IP protection and
the technological content of trade. The degree of IP protection is predicted

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 Variation in TRIPS Implementation (1995–2007)

to be higher in countries engaged in high-technology exports (because IP

protections can protect the value of their exports) than in countries that rely
heavily on technological imports (because IP protection increases the costs of
inputs, knowledge, and technology vital for national development).135 Again,
however, reality is more complex. A country’s interests in IP protection may
vary depending on the product or sector at hand. A single country may rely
heavily on imports of technological products (giving it an interest in lower
patent protections), but also depend heavily on the export of cultural products
such as music recordings (giving it interests in stronger copyright protections).
(Note that many developing countries are far more interested in ensuring that
their music exports are protected in foreign countries than in the less lucrative
home market.)136
The changing organization of production in the global economy also chal-
lenges some of the long-standing assumptions about the drivers of higher IP
protection. For countries keen to build technological capacity, the conven-
tional wisdom leads one to expect weaker IP rights. Increasingly, however, the
greatest economic opportunities for some companies in developing countries
may arise from licensing foreign IP (from foreign companies keen to take
advantage of cheaper R&D or manufacturing services in developing countries)
rather than copying foreign technologies for local sale. In these cases, effective
IP protection may be a necessary prerequisite to securing licences to use or
produce a particular technology. Anecdotal evidence suggests that in some
countries IP protection is one of a range of factors that contributes to their
international reputation for having a conducive business environment, which
in turn may be critical to their ability to attract foreign investment for local
industry. For the poorest developing countries, on the other hand there are
questions regarding the degree to which IP laws are relevant at all. Studies
of the relationship between IP laws in LDCs and innovation, technology
transfer, and foreign direct investment highlight that contract law, business
confidence in the legal and political system, the absence of political unrest,
and factor endowments, such as the availability of skilled workers, are far more
important than IP laws in determining the extent to which foreign companies
invest and transfer technology.137 Some African countries, for instance, have
some of the world’s strongest IP laws, but the poorest records of FDI. Indeed
African countries with the strongest FDI flows (e.g. in the oil and mineral
extraction sectors) are those that do the least to protect IP.
Another challenge to explaining TRIPS implementation by reference to
socio-economic factors is that governments sometimes make policies based
on what they believe or what they hope to create, rather than on their current
circumstances. That is, governments with very low technological capacity
may believe that it is precisely the lack of strong IP legislation that has
hindered the development of technological capacity. Some governments may
believe that stronger IP protection is the best way to build that capacity.

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The Implementation Game

Other governments may believe that tailored IP protection and strategic use of
TRIPS flexibilities, combined with a proactive industrial strategy, is the better
option.
Stepping back from the many debates and empirical challenges at hand,
the core point for this study is that the economic literature on the relationship
between levels of IP protection and national economic factors does not readily
provide us with a clear explanation for the range of observable variation
in how developing countries responded to TRIPS. Indeed, in several cases
there are stark contrasts between what socio-economic circumstances lead us
to expect and the actual approach countries took to TRIPS implementation,
particularly in terms of the use of TRIPS flexibilities.

3.6. The Case for Political Analysis

Developing countries have exhibited striking diversity in their approaches

to TRIPS implementation. The timing of TRIPS implementation and the use
of TRIPS flexibilities varied significantly. Some developing countries took far
more advantage of the available flexibilities than others. Further, many devel-
oping countries made additional international commitments to implement
TRIPS-plus standards, thereby sacrificing their opportunity to use many of
the flexibilities available under TRIPS. In some instances, the way countries
responded to TRIPS contrasted with the concerns they expressed about the
Agreement both during and after its negotiation.
What explains the divergence between the approach to TRIPS implemen-
tation in some developing countries and their apparent economic interests?
Why did so many countries undertake IP reforms that exceeded TRIPS-
minimum requirements? Why did some of the poorest countries adopt some
of the highest IP standards? What explains why countries used TRIPS flexi-
bilities in some areas but not in others? Why were some TRIPS flexibilities so
much more popular than others? Why was there greater diversity in some
areas of IP protection than others? While domestic economic factors help
account for some aspects of the diversity in TRIPS implementation, political
analysis is required to explain the range of variation that emerged. The follow-
ing three chapters offer a political framework for explaining that variation.

Notes

1. The analysis of the various TRIPS flexibilities described in this section draws
extensively from South Centre (1997), Musungu and Oh (2006), Correa (2000a),
and Thorpe (2002).

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 Variation in TRIPS Implementation (1995–2007)

2. Combined with the requirement that ‘procedures shall be applied in such a

manner as to avoid the creation of barriers to legitimate trade’, the MFN and
National Treatment principles aim to ensure that the protection of IP (or lack
thereof) should not be used to disrupt or distort trade flows. If, for example, a
state only offered IP protection for its own nationals, this would present a barrier
to trade for non-nationals, who would receive no protection for the IP elements
of goods or services they wished to export to that jurisdiction. While the Berne
Convention also included an MFN requirement, it was not always observed. Some
commentators also read an MFN principle into the National Treatment obligation
of the Paris Convention on the basis of the history and general purposes of the
Convention. See Reichman (1989).
3. In other GATT agreements, WTO members can challenge a law or action of
another country on the basis not of a failure to comply with an agreed obligation,
but rather for impeding the attainment of the Agreement’s objectives or impairing
a potential benefit ‘due to the application by another country of any measure,
whether or not it conflicts with the provisions of the Agreement, or the existence
of any other situation’. See Abbott (2003b).
4. Abbott (2003b) and Stilwell and Tuerk (2000).
5. Exceptions include protection for utility models. In such instances, however,
countries are still bound by some TRIPS provisions in the way they formulate
and implement national laws. While not generally described as a category of IP,
it is also notable that TRIPS did not specifically address the issue of protection of
traditional knowledge. See South Centre (1997) and Correa (1997).
6. TRIPS incorporates most of the provisions of the Berne Convention, but notably
not its provisions concerning moral rights which enable authors to control certain
uses of their works to protect their reputation as artists and to ensure recognition
of their authorship.
7. Rental rights enable IP-holders to prevent the commercial rental of relevant works
even after the first sale of a copy.
8. TRIPS also expanded the applicability of the Berne Convention’s three-step test
and introduced an idea–expression dichotomy that was not in Berne. Whereas the
copyright term in Berne was already the life of the author plus fifty years, TRIPS
made several clarifications regarding how the fifty-year term should be computed
in the case of non-natural persons.
9. The U.S. argument for such extensions is that the effective period of patent
protection for inventions of new chemical entities may otherwise be less than
the full twenty years required by TRIPS because a part of that period may have
expired before marketing approval is obtained from the relevant public health or
safety regulatory bodies.
10. See Watal (2001).
11. The right of members to use the flexibilities in the TRIPS Agreement was also
recognized by the WTO Appellate Body in the so-called India-Mailbox case. See
Abbott (2007: 8).
12. Correa (2000a).
13. The most well known of such exceptions is the fair-use doctrine in the United
States which permits any use of copyright for free and without permission

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The Implementation Game

provided it is fair. For a discussion of the definition and scope of this doctrine
and debates about its application, see Okediji (2000). For developing countries,
greater use of copyright limitations and exceptions could help to increase access to
copyright material by students, researchers, teachers, and librarians are considered
one of the mechanisms for improving literacy and education. See IFLA (2002).
14. The term sui generis means ‘of its own kind’. In the TRIPS context, sui generis refers
to a system that protects plant varieties that is not a patent system, though it may
draw from patents or from other kinds of models and laws.
15. UNCTAD-ICTSD (2005).
16. Correa (2007a) and UNCTAD (2008).
17. If found to be patentable, a patent must be granted for the remainder of the patent
term calculated from the date of filing.
18. Notwithstanding proposals from industry during the TRIPS negotiations, the
Agreement does not require countries to provide patent protection to applica-
tions that were in the ‘pipeline’ in these countries at the time of its entry into
force.
19. WTO (2001a).
20. See WTO (2005b, 2005c). The Maldives also separately made a request. See Chapter
4, Section 4.2.6.
21. Gerhardsen (2005a). Also see related discussion in Chapter 4, Section 4.2.6.
22. WTO (2003a).
23. WTO (2005a, 2005d). The waiver will remain in force until two-thirds of WTO
members ratify the amendment. By December 2007, only twenty-eight member
states had ratified the decision, prompting WTO members to extend the deadline
until December 2009.
24. Correa (2000a). The mandatory nature of this provision was confirmed in the text
of the August 30 decision. See WTO (2003a).
25. A summary of the work of the TRIPS Council is made in an Annual Report of the
Council each year. For summaries of TRIPS Council sessions, see http://www.wto.
org/english/tratop_e/trips_e/intel6_e.htm.
26. Detailed information on the notification procedures can be found on the WTO
website at: http://www.wto.org. For a discussion of the origins and use of these
procedures, see Otten and Wager (1996) and Matthews (2002).
27. In each report, the status of various laws is detailed by the Secretariat drawing
on evidence provided by the country in question or by independent research
conducted by the WTO Secretariat staff.
28. Implementation of TRIPS is thus a more detailed procedure than compliance with
market access-related WTO Agreements where governments can generally make a
single decision that automatically gives effect to their obligations (i.e. a change in
the tariff schedule).
29. These include the Biological Diversity Act (2002), the Copyright Act (1957),
the Design Act (2000), the Geographical Indications of Goods (Registration and
Protection) Act (1999), the 2005 amendments to the Patents Act (1970), the
Protection of Plant Varieties and Farmers’ Rights Act (2001), the Semiconductor
Integrated Circuit Layout Design Act (2000), and the Trade Marks Act (1999). IP is
also dealt with under trade secrets laws and the Indian Contract Act.

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 Variation in TRIPS Implementation (1995–2007)

30. Correa (2000a: xi, 33)

31. See Bass (2002) and Lewis-Lettington and Munyi (2004).
32. Author’s interview with Pedro Roffe, ICTSD, Dec. 2007.
33. One of the revised Bangui Agreement’s Annexes (on integrated circuits) is not yet
in force and most OAPI countries have not yet made complementary changes to
their national copyright legislation. See Chapter 7.
34. See discussion in Chapter 5.
35. In 2007, Bangladesh’s prevailing IP laws included a 1911 Patent and Designs Act,
a 1933 Patents and Designs Rule, a 1940 Trade Marks Act, and a 1963 Trade Marks
Rule.
36. IIPI (2000).
37. Musungu and Oh (2006: 8).
38. These countries were Argentina, Brazil, Cuba, Egypt, India, Kuwait, Morocco,
Pakistan, Paraguay, Tunisia, Turkey, United Arab Emirates, and Uruguay. It is
probable that there were also other WTO members that ought to have notified
the WTO that they did not grant pharmaceutical product protection. In addition,
some countries that were not yet WTO members also did not provide such protec-
tion. Jordan, for example, did not provide patent protection for pharmaceutical
products until it joined the WTO in 2000.
39. Abbott (2007: 8) and Bermudez et al. (2000). Brazil also agreed to grant patents
for products that had not previously been introduced onto the Brazilian market,
even if patents for those products would not ordinarily have been available.
Several commentators reject the constitutionality of this action, and in early 2008
national NGOs launched a legal case in Brazil on this matter. See New (2008a).
40. TRIPS states that: ‘for the purposes of dispute settlement under this Agreement,
subject to the provisions of Articles 3 and 4, nothing in this Agreement shall be
used to address the issue of the exhaustion of intellectual property rights’. While
TRIPS Article 28 is very specific on the rights that a patent should confer on its
holder, including the right to prevent third parties from importation of the patent
product or a product produced by a patented process without the patent holder’s
consent, TRIPS Article 6 makes it clear that the practices of WTO members in
regard to the exhaustion of IP rights cannot be challenged under the WTO dispute
settlement system, provided that they do not discriminate on the grounds of the
nationality of right holders.
41. UNCTAD-ICTSD (2005).
42. WTO (2001a).
43. In the European Union, for example, a French patent holder is unable to use the
rights in her French patent to prevent the import of products that she has already
marketed in Spain.
44. Musungu and Oh (2006: 99).
45. Musungu and Oh (2006).
46. Gerhardsen (2006d).
47. Correa (2007c).
48. This opinion is advanced by Correa (2007c: 87).
49. See Correa (2007c: 87).
50. Ibid.

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The Implementation Game

51. For a discussion of the exceptions to patent rights in developing countries, see
Garrison (2006).
52. Watal (2001: 104). See also Correa (2000a) and CIPR (2002).
53. In order to effectively circumvent the ‘method’ exception in the medical field,
patent laws in a number of countries, most notably within Europe, have modified
the concept of novelty and developed new ways of constructing patent claims to
allow new and second uses to be protected.
54. Musungu and Oh (2006).
55. Thorpe (2002).
56. See Industrial Property Law of 18 September 2000, Articles 93, 97–9.
57. The draft law is available at: http://www.grain.org/brl/?docid=82010&lawid=2925.
58. Correa (2000a: 30).
59. A member seeking to exclude such inventions would most likely rely on the
morality exception of Article 27(2) or the general novelty, inventiveness, and
industrial applicability requirement applying to all inventions.
60. As of December 2007, these eighteen developing country WTO members were
China, Cuba, South Korea, Dominican Republic, El Salvador, Guatemala, Hon-
duras, India, Mexico, Nicaragua, Oman, the Philippines, Senegal, Singapore, South
Africa, Trinidad and Tobago, Tunisia, and Turkey. At that time, the Agreement had
sixty-eight contracting parties.
61. The treaty relies on a network of recognized international depository authorities
(IDAs) which manage access to the biological samples to avert potential patent
infringement. In 2007, there were thirty-one IDAs in nineteen countries, only
two of which were in developing countries. The aim of the treaty is reduce the
duplication of costs and to streamline the process for obtaining protection of bio-
patents across several jurisdictions.
62. Cloetea et al. (2006).
63. CIPR (2002: 116).
64. Musungu and Oh (2006).
65. Ibid.
66. Ibid.
67. Ibid.
68. Musungu and Oh (2006: 99).
69. The use of the term ‘Bolar exception’ has its origins in a 1984 ruling by the
U.S. Federal Circuit in Roche Pharmaceuticals v. Bolar. As a consequence of this
ruling, U.S. legislators introduced the Hatch–Waxman Act, which provides that
‘it shall not be an act of infringement to make, use, offer to sell, or sell within
the United State or import into the United States a patented invention [. . . ] solely
for uses reasonably related to the development and submission of information for
regulatory purposes’. The interpretation of this law was later tested in the courts.
In 2005, the U.S. Supreme Court decided in Merck v. Integra Life Sciences that the
law covered acts that are reasonably related to the making of submissions for the
purposes of obtaining regulatory approval for generic medicines.
70. At issue in the case was the legality of a provision of Canadian law that allows
generic producers to use patented products, without authorization and prior to
the expiry of the patent term, for the purposes of seeking regulatory approval from

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 Variation in TRIPS Implementation (1995–2007)

public health authorities to market their generic version as soon as the patent
expires. This case also confirmed that while limited production prior to patent
expiry is permissible, production for stockpiling is not allowed under TRIPS. See
WTO (2000a).
71. Musungu and Oh (2006).
72. For an elaboration of the available flexibility and model options for developing
countries, see Love (2001).
73. Note that TRIPS incorporates the Paris Convention by reference, with the result
that the grounds for compulsory licensing may include those related to the
prevention of abuses of patent rights (which were included in the Paris treaty).
74. Correa (1999b).
75. For an overview of this agreement, see WTO (2005d).
76. Concerns have been raised in Kenya that this provision may be contrary to Section
75 of the Kenyan Constitution (regarding the right of persons to property). The
Kenya Industrial Property Office (KIPI) subsequently led efforts to change the
patent law, thus far without success. See Garwood (2007), Gerhardsen (2006b),
and Lewis-Lettington and Munyi (2004).
77. Khor (2007) and Yoke Ling (2006).
78. ICTSD (2007b).
79. ICTSD (2007a).
80. Oh (2006) and Khor (2007). On Malaysia specifically, see Yoke Ling (2006). This
observation also draws from the author’s interview with Sangeeta Sashrikant,
Third World Network, February 2008.
81. Ibid.
82. Musungu and Oh (2006: 102).
83. Garrison (2006). These provisions became the subject of WTO dispute settlement
proceedings in 1999 between the United States and Argentina. A mutually agreed
solution was found. The DSB thus did not provided any further clarity on the
appropriate interpretation of the rules. This case is discussed further in Chapter 5,
Section 5.1.4.
84. Musungu and Oh (2006: 102).
85. Ibid.
86. Chile does not however grant sanitary authorizations to third parties for products
protected by a patent. Only those products with patents that have expired may
be replaced by similar products produced by third parties who apply for market
authorization from the Public Health Institute. See Roffe (2004).
87. The term ‘plant varieties’ refer to plants that have been improved by breeding
techniques in order to make them stable and uniform.
88. Dutfield (2004).
89. This position has been supported by a range of legal scholars and civil society
organizations, see Correa (1999a), GRAIN (2000a), GRAIN/GAIA (1998), Leskien
and Flitner (1997), and South Centre (1997: 42).
90. The 1978 Act of UPOV was closed for signature from 1998, when the 1991 Act
entered into force. Zimbabwe, Nicaragua, and India were granted exceptions to
the deadline and thus the 1978 Act remains open to them on the grounds that
they were in the process of revising laws at the time the 1991 Act was approved.

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The Implementation Game

The decision was taken in part with an eye to attracting India to the UPOV
system.
91. The incorporation of the option to choose the system for plant variety protection
also resulted in part from disagreements between developed and developing coun-
tries and among developed countries. In 1986, the United States had allowed the
first patent for a plant while at the time TRIPS negotiations, Europe maintained a
ban on patents for plant varieties. See South Centre (1997: 42).
92. See GRAIN (1999d: 4) and South Centre (1997: 78).
93. UPOV’s membership grew from only twenty members in the early 1990s to sixty-
five in December 2007.
94. Taking advantage of the exception described in note 90, Nicaragua acceded to
UPOV 1978 in September 2001. Note that despite the 1998 deadline, several
further countries joined the Convention up until April 1999.
95. Cullet (2001, 2004).
96. UPOV (2005) and author’s email communication from Yolanda Huerta, Senior
Legal Officer, UPOV Secretariat, February 2008.
97. UPOV (2007: 2).
98. See Dhar (2002). Breeders’ rights have typically allowed control over the commer-
cialization of propagating materials, such as seeds based on the criteria of distinc-
tiveness, novelty, uniformity, and stability without prejudice to the use by farmers
on their own land of seeds saved (‘farmers’ privilege’) or to the development of
new varieties by a third party that uses a protected variety as a starting point
(‘breeders’ exemption’). See Correa (1998).
99. The text of the law is available at http://www.grain.org/brl_files/thailand-pvp-
1999-en.pdf, accessed on 1 May 2007.
100. Robinson (2007), Cullet (2001, 2004), and GRAIN (1999a, 2002c).
101. Ekpere (2002) and GRAIN (1999a).
102. Correa (1994) and Okediji (2006).
103. TRIPS also provides countries a choice as to whether or not to comply with Article
6(b) of the Berne Convention, which provides for the protection of ‘moral rights’,
such as the author’s right to be credited with the authorship of a work that is cited,
or to maintain the integrity of the work.
104. For a study of the evolution and contents of the Berne Convention, see Ricketson
(1987).
105. Correa (1994) and Okediji (2000, 2004a).
106. Chon (2007).
107. This information and the following examples from the region are drawn from
Consumers International (2006).
108. See note 13.
109. WTO (1999b).
110. Reverse engineering can be necessary to understand a software program and to
develop other programs that may interoperate with it or replace it. Correa (1997:
44) argues that: ‘[i]f reproduction (including de-compilation or reverse engineer-
ing) of protected software is forbidden and interfaces can be protected through
copyright, the development of competitive products would be drastically limited’.
111. Thorpe (2002).

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 Variation in TRIPS Implementation (1995–2007)

112. TPMs include measures to inhibit buyers from making a backup copy of a video-
tape or CD they have purchased, installing and using computer software on mul-
tiple computers, and uploading music directly from a computer to a digital audio
player without purchasing the particular software associated with that player. The
use of such technological measures does not require national legislation. ‘Click
and wrap’ end-user licences are, for instances, measures that all users of proprietary
software must accept to install such software. In some cases, national legislation
may facilitate the use of TPM by, for example, requiring the addition of holograms
to CDs or of ‘zone’ specifications to DVDs.
113. The U.S. advanced its own national Digital Millennium Copyright Act (DMCA)
as the ‘model’ approach to the implementation of the WIPO Internet Treaties.
The impact of DMCA-style provisions on TPMs and anti-circumvention on the
traditional limitations and exceptions to copyright continue to be subsequently
hotly debated. See EFF (2003).
114. On the relationship between TRIPS and competition policy, see Correa (2007b)
and Maskus (2002b).
115. For a critical discussion of these provisions, see Abbott (2003a).
116. Correa (2007b).
117. Maskus and Lahouel (2000).
118. See www.indecopi.pe (accessed 1 May 2007).
119. This flexibility is likely to be significant in the event that a country faces a
WTO dispute alleging inadequate enforcement. In addition, any evaluation of a
country’s enforcement of IP laws would need to take into account the general
effectiveness of the legal systems in the country concerned. See Watal (2001).
120. Watal (2001).
121. These sources include the reports associated with the WTO Trade Policy Reviews,
U.S. Special 301 Annual Reports, and National Trade Estimate Reports as well as
industry reports on IP protection in developing countries. See Shadlen et al. (2005)
and Endeshaw (2005).
122. Correa (2000a: 76).
123. Suthersanen (2006).
124. de Carvalho (2000).
125. Kongolo (2000a: 268) and Blavin (2003).
126. Ibid.
127. ARIPO (2006). This law was subsequently taken up for discussion at the OAPI
Secretariat. Author’s interview with Christopher Kiige, Chief Patent Examiner,
ARIPO Secretariat, May 2007.
128. See WIPO (1999b) and Dutfield (2004).
129. Several efforts to develop such benchmarks are underway, including Pugatch
(2006) and doctoral research by Sisule Musungu at the World Trade Institute in
Berne. For preliminary work on development impact assessments, see Dutfield
(2006).
130. Maskus (2000a).
131. Fink and Maskus (2005) and UNCTAD (2007).
132. Shadlen et al. (2005: 154) emphasize that a focus on ‘inputs’ to IP protection may
offer ‘only a rough predictor of the output’ of IP protection (IPP). They highlight

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that it is possible, for example, that in any given year ‘a country may provide
different levels of protection to IP without any change in laws and formal rights’.
133. The WEF’s 2003 IP Protection Index ranks IP protection by countries and was
published in Lopez-Claros et al. (2005). The data used by the WEF for Mexico in
the index were from the year 2000.
134. There are also some countries with technological activity that is large and impres-
sive in absolute terms, such as India and China, but low relative to their economic
size. See Lall (2001: 12).
135. Fink and Maskus (2005).
136. OECD (2004).
137. Fink and Maskus (2005).

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 4
Post-TRIPS Tensions and Global
IP Debates

Explaining variation in how developing countries implemented TRIPS

demands a solid grasp of the global political context. The contested nature
of TRIPS spurred a dynamic interaction between efforts to implement the
Agreement and ongoing international IP negotiations. Debates between devel-
oped and developing countries about the terms of the Agreement spurred
competing struggles to revise both the TRIPS deal and global IP regulation
more broadly. Developing country decisions on national IP reforms fed into
post-agreement negotiations on TRIPS and fuelled global IP debates that had
emerged on a range of topics, from the affordability of medicines to access to
knowledge and piracy.
On the one hand, developed countries wanted to ensure that the IP reforms
developing countries pursued were as strong as possible. Urged on by the
alliance of multinational companies that had fought for TRIPS, they wanted
to ensure that efforts by countries to use TRIPS flexibilities were not seen
as a precedent for others to follow and to prevent any further unwelcome
interpretations of options contained in TRIPS. In global IP debates, developed
countries fought to maintain and bolster a ‘compliance-plus’ agenda—one
that favoured a swift and narrow, compliance-oriented approach to TRIPS
implementation, and also TRIPS-plus standards. Further, dissatisfaction with
the scope of TRIPS and the pace of IP reforms on the ground drove them
to push for even stronger IP protection, using whatever means available,
including stronger TRIPS rules and new global treaties.
Developing countries, on the other hand, fought to revise the terms of
TRIPS to defend and expand their options to pursue national development
objectives. Some developing countries used their implementation actions as
a basis for insisting upon particular interpretations of TRIPS and its flexi-
bilities in international negotiations. As the post-TRIPS decade advanced, a
core group of developing countries became increasingly assertive in global IP
debates across a number of international fora in their quest to secure a more
balanced global IP system.

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A key result of post-TRIPS tensions was the deepening complexity of the

global IP system. The range of non-state actors involved in global IP debates
became broader and many NGOs, industry groups, international organiza-
tions (lOs) and academic experts deepened their degree of engagement. At
the same time, WIPO reasserted its role as the main UN agency on IP and a
powerful pro-IP advocate.
To date, no study offers a comprehensive overview or chronology of the
TRIPS-related IP debates post-1994, nor do I attempt such a significant task
here.1 Rather, this chapter aims to provide a sketch of the political backdrop
necessary to set the scene for explaining variation in TRIPS implementation.
In the following sections, I disentangle four core dynamics that characterized
unfolding global IP debates. In so doing, I introduce the main threads of
debate and the range of players that were part of the TRIPS implementation
game, as well as their objectives and incentives.

4.1. The Push for TRIPS-Plus

When TRIPS came into force in January 1995, debate on its provisions was far
from over. Even as the TRIPS negotiations drew to a close, industry lobbyists in
developed countries argued that the Agreement was too weak and too easily
circumventable.2 They complained that the Agreement’s transition periods
for developing countries were too long and that TRIPS offered inadequate
protections for some products.
From 1995, representatives of leading multinational pharmaceutical, agro-
chemical, seed, entertainment, manufacturing, and software companies called
on their respective governments in the United States, European Union, and
Japan to ensure swift and full implementation of TRIPS, to eliminate the
loopholes and ambiguities in the Agreement, and to ensure that its interpre-
tation by developing countries protected their interests. Industry representa-
tives worried that actions in one developing country might influence others.
In 1991, a PhRMA Special 301 submission to USTR clearly articulated this
fear:

From the recent remarks and actions, the apparent intent of the Government of
South Africa is to not only defend its diminishment of the effectiveness of patent
protection in South Africa, but to urge other countries to similarly weaken patent
protection for pharmaceutical products. Such a posture is plainly antagonistic to the
concept of effective patent protection for pharmaceuticals, and is likely to give rise to a
substantial diminishment of the effectiveness in protection not only in South Africa but
elsewhere.3

The major economic powers shared many objectives. Both the United States
and the European Union wanted, for instance, to extend TRIPS patent

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protection to plant biotechnology, plants, and animals. But the major powers
also had some distinct priorities. While the European Union favoured the
extension of protection for geographical indications beyond wines and spirits,
the United States and Australia opposed this agenda.4 Further, Canada, which
like developing countries was a net importer of IP, was the only developed
country that actively intervened to defend some particular TRIPS flexibilities
(i.e. the moratorium on non-violation complaints in TRIPS).5
At the urging of industry groups with vested interests in higher IP pro-
tection, the major powers also pushed for TRIPS-plus rules. In both Europe
and the United States, well-financed and consistent lobbying efforts in major
capitals and direct financial support for key politicians enhanced the influ-
ence of individual companies and industry associations.6 As the scope of
industry’s agenda for strengthened international IP regulation expanded, so
too did the range of their respective government’s demands on developing
countries. The direct access of many industry groups to relevant government
officials amplified their influence. In both the United States and the European
Union, trade officials were mandated by their respective legislatures to consult
with industry advisory committees on trade policy generally and IP policy
specifically. The U.S. Trade Act, for instance, required USTR to consult with an
Industry Functional Advisory Committee on Intellectual Property Rights for
Trade Policy Matters (IFAC-3) (comprised of twenty members from industry
sector advisory committees and twenty from other private sector areas).7 This
Committee played a central role in the preparation of USTR’s annual Special
301 reports.8 Through the Committee, IFAC members and other industry asso-
ciations with IP interests submitted lengthy reports to USTR on the state of IP
protection in developing countries, which included specific recommendations
for the Special 301 listings of various countries. The close correlation between
the recommendations of industry and the final rankings that USTR made each
year are well documented.9 In addition, the U.S. Trade Act required IFAC-3 to
provide the President, USTR, and Congress with reports and advisory opinions
on whether and to what extent proposed trade agreements would promote the
economic interests of the United States.
At least five types of pro-IP business-related actors were active in global IP
debates10 : (a) multi-sectoral business associations, such as the International
Chamber of Commerce (ICC) and the Union of Industrial and Employers’ Fed-
erations of Europe (UNICE); (b) sectoral or multi-sectoral business associations
dedicated specifically to promoting IP protection, such as the International
Intellectual Property Alliance (IIPA) and the International Anticounterfeiting
Coalition (IACC); (c) sectoral business associations, such as the Pharmaceu-
tical and Research Manufacturers Association of America (PhRMA), the Busi-
ness Software Alliance (BSA), the International Federation of Pharmaceutical
Manufacturers and Associations (IFPMA), and the Biotechnology Industry
Organization (BIO), which have issue-specific interests in IP;11 (d) expert

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associations that brought together IP attorneys, patent agents, IP law firms

and lawyers such as L’Association Internationale pour la Protection de la Pro-
priété Industrielle (AIPPI);12 and (e) industry-backed think tanks and research
centres, such as the U.S.-based International Intellectual Property Institute
(IIPI), the Creative and Innovative Economy Center (CEIC), the Institute
for Policy Innovation (IPI), and the Munich-based Max Planck Institute for
Intellectual Property, Competition and Tax Law. Within these organizations,
several key individuals played a prominent personal role in debates, including
Harvey Bale (the former head of IFPMA), Susan Finston (a lobbyist for PhRMA,
then the American BioIndustry Alliance (ABIA)), and Bruce Lehman (former
head of the USPTO and then Executive Director of IIPI).13 In addition, many
individuals who were active in the TRIPS negotiations, either as government
many officials or industry lobbyists, remained active and influential afterward,
sometimes switching between government and industry employers. Industry
lobbyists Eric Smith and Jacques Gorlin, for instance, worked during the
Uruguay Round to promote TRIPS and subsequently became strong advocates
of compliance-plus implementation of the Agreement. Indeed, TRIPS is char-
acterized by one commentator as the ‘house that Jacques Built’.14
In terms of target countries, industry groups focused most on those that
posed the greatest threats to their commercial interests. At that behest of
industry groups, the Ukraine, Russia, and Poland each emerged as priority
countries of concern to developed nations. In the developing world, Korea,
Brazil, China, India, and Argentina were consistently highlighted as key
threats to industry interests. Industry groups also targeted countries that
served as a transit point for infringing goods, such as Mexico and Thailand.
Even LDCs that mattered little from a commercial viewpoint attracted some
interest. By securing strong IP laws in small countries, the larger, more com-
petitive and less-malleable developing countries were isolated. Further, with
strong IP laws already in place, the smaller and weaker developing countries
would be less likely to resist new TRIPS-plus multilateral agreements and their
vote could help close deals. Potential opposition to new international copy-
right protections at wipo was neutralized, for instance, by securing TRIPS-plus
terms of copyright protection at the national level in numerous commercially
marginal countries.
Key industry objectives were to extend the scope of IP protection to new
areas, to increase protection for copyright industries in the context of the
Internet, and to strengthen enforcement. Delays in patent examination and
approval also drove developed countries to push for longer terms of protection
in developing countries and for supplementary protection such as through
exclusive marketing rights. Mounting concerns about growth in the manufac-
ture of pirate and counterfeit products, and their export to key world markets,
prompted calls for stronger trademark rules and stronger customs controls
in developing countries. In each case, governments aimed where possible to

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integrate higher standards into TRIPS15 and to advance their priorities in other
bilateral and multilateral fora, wherever they deemed their chances of success
greatest.16
Once the 2000 TRIPS deadlines had passed, pro-IP companies stepped up
their push for strengthened IP enforcement in developing countries.17 In
2004, the United States announced a new STOP! Initiative designed to fight
global piracy by ‘systematically dismantling piracy networks, blocking coun-
terfeits at our borders, helping American businesses secure and enforce their
rights around the world, and collaborating with our trading partners to ensure
the fight against fakes is global’.18 In 2005, the European Union announced
its own new strategy for stronger enforcement.19 The same year, the Euro-
pean Union, supported by the United States, Switzerland, and Japan among
others called for greater attention to enforcement at the TRIPS Council.20
In June 2006, a European Union–U.S. Joint Action Strategy for Enforcement
was launched.21 Later that year, the European Union submitted a follow-up
proposal to the TRIPS Council for an in-depth discussion on the application
of border measures to all types of IP, with respect to export and in transit
goods.22 (The TRIPS rules on border measures currently apply only to trade-
marked and copyrighted goods, and only with respect to the importation
of those goods.) Several related European Union documents put forward the
possibility of amending TRIPS to this effect.23 Meanwhile, developed countries
advanced IP enforcement issues as a priority item for discussion at the World
Customs Organization (WCO), Interpol, WIPO, and at the annual Group of
8 (G-8) Summit.24 In 2007, the major developed countries, joined by Korea
and Mexico, announced a new Anti-Counterfeiting Trade Agreement (ACTA)
to further boost the fight against counterfeiting and piracy.25 The U.S. gov-
ernment described the initiative as a ‘complement to the Administration’s
work to encourage other countries to meet TRIPS enforcement standards’.26
In lieu of seeking changes to TRIPS, the stated goal of the initiative was to
set a new, higher benchmark for enforcement that countries could join on a
voluntary basis (thus avoiding the challenge of negotiating a treaty on this
subject through an international organization).27
Internal politics within the United States and the European Union played
an important role in global IP debates. There were tensions within the Euro-
pean Commission and the European Parliament, and between them, and also
among European Union members about the appropriate EU perspective on
global IP negotiations and IP protection in developing countries. In addition,
European NGOs put pressure on national and European policymakers to
desist from pushing TRIPS-‘plus’ reforms in developing countries.28 Within
developed countries, a range of ministries, government offices, and agencies
were involved in global IP debates, frequently communicating directly with
counterparts in foreign governments. In the United States, the departments
of commerce, state, and health as well as USTR, the U.S. International Trade

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The Implementation Game

Commission (USITC), the U.S. Patent and Trademark Office (USPTO), both
houses of the U.S. Congress, and the Office of the President all intervened in
global IP debates. As industries lobbied U.S. Congress and the Administration
for tighter IP protection, public-interest activists called for restraint. In 2000,
for instance, an extensive campaign by NGOs, bolstered by the support of a
group of members of U.S. Congress, yielded an Executive Order by President
Clinton directing the U.S. government to:

refrain from seeking, through negotiation or otherwise, the revocation or revision of

any law or policy imposed by a beneficiary sub-Saharan government that promotes
access to HIV/AIDS pharmaceuticals and medical technologies [. . . ] and that provides
adequate and effective intellectual property protection consistent with [TRIPS].29

Throughout global IP debates, the IP offices of developed countries were par-

ticularly important. Formal collaboration among the IP offices of the United
States, Japan, and the European Union began in the 1980s and included the
launching of a ‘Trilateral Cooperation’ initiative.30 An example of the activ-
ities spawned by the trilateral group was the submission of a joint proposal
to WIPO’s Standing Committee on the Law of Patents (SCP) in 2004 for
strengthened global patent rules.31

4.2. The Resurgence of Developing Country Confidence

When TRIPS came into force, it was denounced by NGO critics in developing
countries and beyond,32 who portrayed it as an overwhelmingly, asymmet-
ric deal foisted upon under-informed and ill-prepared developing countries
through coercive negotiations.33 Those developing countries that had most
resisted TRIPS during the negotiations were also most vocal about their dis-
satisfaction with the outcome.34 Throughout the post-TRIPS decade, they
advanced a consistent discourse that TRIPS fails to address their distinct
needs and circumstances.35 They were joined by critics who presented TRIPS
as evidence that the Uruguay Round’s ‘grand bargain’36 was an ‘unbalanced
outcome’ for developing countries.37 A summary of their concerns follows.
The market-access concessions that developing countries were promised in
exchange for TRIPS were far weaker than anticipated.38 Moreover, the regula-
tory changes that TRIPS demands of developing countries would impose long-
term dynamic costs on their economies, whereas the impact on developed
countries of tariff concessions would be one-off and temporary.39 Several
prominent international economists characterized TRIPS as an essentially pro-
tectionist agreement, questioned its place in a regime that purports to advance
a more open, competitive, and liberalized global economy, and joined NGOs
in calling for its removal. Jagdish Bhagwati stated, for instance, that TRIPS:

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does not belong to the WTO because it does not pass the test of mutual advantage . . . it
facilitates, even enforces with the aid of trade sanctions, what is in the main a payment
by the poor countries (which consume intellectual property) to the rich countries
(which produce it). By putting TRIPS into the WTO, in essence we legitimated the use
of the WTO to extract royalty payments.40

Critics further argued that the binding ‘one size fits all’ provisions contained
in TRIPS would impose immediate costs, while the Agreement’s purported
benefits (i.e. innovation by or for developing countries and increased for-
eign direct investment) were nebulous, uncertain, and would vary widely
by country.41 They also highlighted the arbitrariness of TRIPS deadlines,
arguing that transition periods should have been based on realistic estimates
of the time and resources required for implementation, not offered in lieu
of more flexible or development-oriented obligations as a ‘second prize in
the negotiations’.42 Economists estimated that the implementation of TRIPS
would lead developing countries to pay an estimated US$40 billion in rents
annually to the United States alone.43
In official statements issued by the Group of 77 (G-77) each year from 1998
to 2007, developing countries expressed a joint commitment to clarifying,
defending, and, where possible, expanding TRIPS flexibilities, such as their
right to grant compulsory licences and to take full advantage of the transi-
tion periods for implementing the Agreement.44 When regional groupings of
developing countries’ trade ministers met (e.g. at meetings of African Trade
Ministers and LDC Trade Ministers), their discussions also frequently high-
lighted concerns about TRIPS. In informal meetings and public conferences,
some of the more outspoken developing countries (i.e. Brazil, the Philippines,
and India) publicly questioned the place of TRIPS in the WTO.45
While no developing country formally challenged the need to comply
with TRIPS, when the year 2000 implementation deadlines for developing
countries approached, many governments became fully aware for the first
time of the implications of their obligations under TRIPS. In 2000 and 2001,
all countries with a year 2000 deadline faced external scrutiny in the TRIPS
Council of their TRIPS implementing legislation.46 As criticism from devel-
oped countries intensified, many developing countries recognized the need to
assert their views on the scope of their TRIPS obligations and the options avail-
able to them. Thereafter, they began concrete efforts to push for revisions to
TRIPS, for affirmation of the flexibilities available to them, and for more time,
assistance, and resources to implement the Agreement. Developing country
proposals for attention to ‘implementation issues’ highlighted the challenges
they faced across the suite of WTO Agreements, including TRIPS.47 Developing
countries also started to submit specific proposals for reform of TRIPS to
better reflect their different levels of development, and became more active
participants in global IP debates. This growing assertiveness was particularly

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visible at the TRIPS Council, but also emerged in a range of other international
fora (see Section 4.3).
From 1995 to 2007, there were some 143 TRIPS-related submissions to the
WTO by individual developing countries or groups of countries on substantive
matters being discussed or negotiated within the Council.48 (See Table 4.1.)
While most of these submissions were made to the TRIPS Council, some sub-
missions were also directed to the General Council, Ministerial Conferences,
or the WTO Working Group on Technology Transfer (WGTT).49 In addition,
over the same period, developing countries made over 1,000 submissions
related to the requirements to notify the TRIPS Council on their implementa-
tion of various aspects of the Agreement, and to the TRIPS Council’s checklist
on enforcement and Reviews of Legislation.
The negotiating objectives of developing countries from 1995 to 2007 were
both defensive and offensive. On the defensive side, they hoped to resist
pressures to further strengthen TRIPS obligations and in particular to protect
TRIPS flexibilities against developed country efforts to tighten the loopholes
in TRIPS. On the offensive side, they sought to clarify and expand the flex-
ibilities in TRIPS in ways that would better address their needs and to elim-
inate ambiguities that might render them vulnerable to bilateral pressures.
In some instances, they sought to roll back TRIPS obligations and to acquire
longer transition periods. These overarching objectives were exemplified by
developing country views on the TRIPS Article 71.1 Review, which called for
a general review of the implementation of TRIPS after 2000. In 2000, the
G-77 argued that the TRIPS Review should be used as an opportunity to make
TRIPS ‘more responsive to the needs of the South and to ensure access of
developing countries to knowledge and technology on preferential terms’,
and that ‘WTO Agreements should be implemented taking into consideration
the need to extend the implementation period of particular Agreements that
pose problems to developing countries’.50 The push for the Doha Declara-
tion on TRIPS and Public Health, which affirmed the existence of the TRIPS
flexibilities, was a further example. For developing countries, this Declaration
was politically important because they were otherwise unsure of how ‘these
flexibilities would be interpreted and how far their right to use them would
be respected’.51 The Doha Declaration was thus ‘motivated more by the fact
that certain WTO Members were preventing others from using the existing
flexibilities, than the lack of clarity about the TRIPS provisions’.52
The degree of engagement by individual developing countries in TRIPS
debates varied by issue and fluctuated over time. Throughout the post-TRIPS
decade, most developing countries had too few professional staff in Geneva to
participate actively in TRIPS discussions. The majority of developing country
missions in Geneva had just two or three staff to monitor the entire range
of WTO issues. Further, fifteen of the smallest and poorest WTO members

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 Table 4.1. Developing country TRIPS-related WTO submissions by country and topic (1995–2007)

Country Public Article 27.3(b) Development, Technology GIs general GIs review Implementation Total
health TK & CBD technical transfer Articles
assistance, & 70.8 & 70.9
transition

Africa
Kenya 1 3 4 8
Nigeria 1 5 6
Egypt 1 4 1 6
African Group 11 2 1 3 17
Asia
Turkey 9 1 10
India 3 20 1 4 8 1 37
Indonesia 3 1 3 1 8

Post-TRIPS Tensions and Global IP Debates

Pakistan 3 7 3 6 19
Philippines 2 1 3 6
Sri Lanka 2 2 8 12
Thailand 12 12
Latin America and the Caribbean
Argentina 6 1 7
Bolivia 3 11 1 15
Brazil 3 14 2 19
Chile 6 6
Colombia 7 2 1 10
Cuba 5 1 4 7 1 18
Dominican Rep. 3 8 2 4 17
Ecuador 3 12 4 1 1 21
Honduras 2 1 2 2 1 8
Paraguay 2 1 4 1 8
Peru 20 2 1 23
Venezuela 3 12 1 2 1 19
LDC Group 1 1 2
121

Source: WTO website; compiled by author.

The Implementation Game

had no permanent representation to the WTO in Geneva. Even among the

more active countries, the intensity of engagement in TRIPS discussions varied
according to the initiative, leadership skills, personal conviction, and entre-
preneurial spirit of particular diplomats based in Geneva.53 Staff of develop-
ing country permanent missions notable for their active engagement in IP
negotiations included Leonardo de Athayde (Brazil), Johanes Bernabe (Philip-
pines), Betty Berendson (Peru), Francisco Cannabrava (Brazil), Amb. Boniface
Chidyausiku (Zimbabwe, Chair, TRIPS Council), Carmen Dominguez (Chile),
Marta Gabrieloni (Argentina), Amb. Faizel Ismail (South Africa), Alec Irwin
(Minister of Trade, South Africa), Mohan Kumar (India), Ahmed Abdel Latif
(Egypt), Amb. Munir Akram (Pakistan), Amb. Eduardo Perez Motta (Mexico,
Chair, TRIPS Council), Nelson Ndirangu (Kenya), Alejandro Neyra (Peru),
Patrick Krappie (South Africa), Amb. Vanu Gopala Menon (Singapore, Chair,
TRIPS Council), and Guilherme Patriota (Brazil).
In the absence of clear substantive instructions and oversight from national
capitals, several Geneva-based diplomats took the lead and filled the void by
devising and advancing a national position. In many cases, communication
between Geneva and national capitals was very weak, even within the same
ministries, and the prospects of consultation with a broader range of min-
istries back home was limited. Not surprisingly then, the positions of many
developing country governments were sometimes not consistent over time
and in some cases the positions and perspectives offered varied across issues
and international fora.54
In Geneva, the same developing countries that had been most involved
during the TRIPS negotiations (i.e. India, Brazil, and Argentina) remained
those most engaged in debates post-1994 and were consistently represented
by highly capable, technically expert, and active negotiators. In addition,
Egypt, Kenya, Peru, the Philippines, Senegal, South Africa, and Zimbabwe
were active in making IP-related submissions to the WTO. Table 4.1 presents
a summary of the countries that were most active in making submissions
and notes the topics they addressed. In TRIPS Council meetings, participation
also varied by issue. As was the case with most WTO committees, the TRIPS
Council meetings rarely attracted participation by the full WTO membership.
Records of TRIPS Council debates between 1995 and 2007 reveal that the
most active countries included Argentina, Brazil, Cuba, Ecuador, India, Peru,
the Philippines, South Africa, Thailand, and Taiwan. China also became an
active member after its accession. The engagement of delegates from Africa
and LDCs was generally limited to meetings covering topics of particular
interest to them, such as public health, technology transfer, and technical
assistance. Only in very few cases did developing countries send delegations
that included capital-based staff to TRIPS Council meetings (such as in the
case of Uganda’s submission of its needs assessment in relation to technical
assistance in 2007).

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To address issues of limited individual capacity, developing countries often

worked collectively. The African Group, for instance, was involved in some fif-
teen IP-related submissions to the WTO (nine of which were on public health,
five on Article 27.3(b)-related issues, and one on issues related to development
and technical assistance).55 Two of these proposals were submitted in collab-
oration with other developing countries. The African, Caribbean, and Pacific
(ACP) Group56 and the Group of Commonwealth Countries each submitted
one proposal related to TRIPS and public health. In addition, the Asia-Pacific
Economic Cooperation (APEC) countries and the LDC group57 submitted one
proposal each in respect of development, technical assistance, and transitional
arrangements. In some cases, countries later added their names to the original
list of sponsors of particular proposals and communications. In 2006 and
2007, for instance, almost eighty developing countries co-sponsored the sub-
mission of a draft text for an amendment to TRIPS to incorporate disclosure
of origin requirements in patent applications.58 (See Section 4.2.1.)
The greatest number of developing country IP submissions to the WTO
came in the period between 2000 and 2003. The increase was in large part
due to the negotiations related to the 2001 Doha Declaration on TRIPS and
Public Health and to the launch of the Doha Work Programme (commonly
known as the Doha Round), which included a mandate for further discus-
sion of the relationship between TRIPS and the Convention on Biological
Diversity (CBD), the protection of traditional knowledge and folklore, and the
reviews of Article 27.3(b) and under Article 71.1. In addition the Doha Agenda
included a mandate for negotiations on geographical indications (supported
by a subgroup of developing countries). At Doha, developing countries also
achieved the establishment of a Working Group on Technology Transfer
(WGTT) and, with Canada, an extension of the moratorium on ‘non-violation
and situation’ complaints. Further, TRIPS issues were incorporated into the
post-Doha agenda for discussions of ‘Implementation Issues’ and ‘Special
and Differential Treatment’, where developing countries argued forcefully for
special consideration of the many challenges they faced in attempting to
implement TRIPS. The period 2000–2001 marked the time when debate on
TRIPS and public health reached its height.
Table 4.2 presents a chronological overview of IP-related developing coun-
try submissions to the WTO by and further highlights that developing coun-
tries concentrated on specific topics of debate. The issues that attracted the
highest engagement by individual developing countries and country group-
ings were (in order of the greatest number of submissions) public health,
Article 27.3(b), geographical indications, technology transfer, disclosure of
origin, and the LDC extension. The participation by developing countries
on these specific matters was aided and spurred by technical and political
support from critics of TRIPS. The involvement of NGOs was particularly
notable in the case of public health, food security, biopiracy, and other issues,

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The Implementation Game

Table 4.2. Developing country TRIPS-related WTO submissions by year and topic (1995–2007)

Year Public Article 27.3(b) Development, Technology GIs general GIs review Article 27.3(b) Implementation Non-violation & Total
health TK & CBD technical Transfer review Articles dispute
assistance 70.8 & 70.9 settlement
& transition

1995 0 0 0 0 0 0 0 0 0 0
1996 0 0 0 0 0 0 0 0 0 0
1997 0 0 0 0 0 0 0 0 0 0
1998 0 0 0 0 0 0 0 0 1 1
1999 0 12 2 0 3 5 7 5 3 37
2000 0 4 3 2 2 1 2 0 1 15
2001 3 1 1 2 5 1 2 0 0 15
2002 4 2 0 0 7 2 0 0 1 16
2003 3 1 0 2 1 1 1 0 0 9
2004 1 6 1 0 2 2 0 0 0 12
2005 5 9 1 2 2 0 0 0 0 19
2006 0 6 0 0 2 0 0 0 0 8
2007 1 6 2 0 0 1 0 0 0 10
Total 17 47 10 8 24 13 12 5 6 142

Source: WTO website; compiled by author.

 Post-TRIPS Tensions and Global IP Debates

and significantly influenced the timing, nature, and intensity of developing

country engagement in debates (discussed in Section 4.4 below).
As developing countries grew more confident, their strategy at the TRIPS
Council evolved. At the outset, key governments and NGOs were cautious
about the idea of seeking amendments to TRIPS, fearing that developed
countries might use the opportunity to also incorporate into TRIPS new
obligations, such as those contained in the WIPO Internet Treaties. As global
IP debates moved forward, however, developing countries did advance several
formal proposals to amend TRIPS (discussed below).
While a full account of developing country activities in post-TRIPS debates
is beyond the scope of this book, the following examples highlight those
areas where the strongest North–South debates emerged and where specific
intersections between implementation and ongoing discussions on TRIPS
issues at the WTO arose.

4.2.1. Article 27.3(b)

Starting in 1999, developing countries sought to use the review of Arti-
cle 27.3(b), mandated by TRIPS, as an opportunity to clarify their options
regarding sui generis systems of plant variety protection, narrow the scope of
patentability, and add provisions that would require disclosure of the origin
of genetic materials used in inventions and more thorough searches of prior
art. Debate on this Article formally began with an African Group submission
that advanced an ethical and cultural opposition to the patentability of life
forms, asserted their right under TRIPS to adopt a sui generis approach to
plant variety protection,59 and called for stronger protection of their tradi-
tional knowledge from unauthorized use.60 In the following years, develop-
ing countries highlighted tensions between TRIPS provisions that relate to
biological and genetic resources, and the approach taken by the 1992 UN
Convention on Biological Diversity (CBD). The CBD affirms that states have
sovereign rights over their own biological and genetic resources (hitherto
regarded as the common heritage of humankind) and calls for prior consent
for access to them. The CBD also requires signatories to protect and support
the rights of communities, farmers, and indigenous peoples over their bio-
logical resources and systems of knowledge, and requires equitable sharing
of any benefits arising from their use.61 Developing country determination
to address concerns related to Article 27.3(b) was reinforced by several high-
profile instances when developed country IP offices issued patents on products
such as basmati rice, maca, neem, hoodia, turmeric, and ayuhuasca.62 From
1998, amidst cries of biopiracy and theft from civil society groups, indigenous
communities, and international NGOs, the governments of India and Peru
intensified their push for attention to the issue at the WTO and also at
WIPO. WIPO began a fact-finding process, and in 2000, an Intergovernmental

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Committee (IGC) on Intellectual Property and Genetic Resources, Traditional

Knowledge, and Folklore was established.63 At the WTO, developing country
efforts culminated in mid-2006, when a group of nine countries led by India
submitted a proposal for a new amendment to TRIPS that would require
all WTO members to ensure that all patent applicants disclosed the origin
of genetic materials and traditional knowledge used in their inventions.64 A
further five individual developing countries plus the entire African and LDC
groups later co-sponsored the original proposal.65

4.2.2. Technology Transfer

In 1999, the G-77 developing countries called for greater efforts by devel-
oped countries to make operational a series of TRIPS provisions related to
the ‘transfer of technology’ and also its ‘General Principles and Objectives’,
which include promoting ‘the mutual advantage of producers and users of
technological knowledge’.66 While developing countries achieved the estab-
lishment of the WGTT in 2001, the work of the group remained limited;
members failed to agree on either its scope or work programme. Further, LDCs
preferred to discuss the issue of technology transfer in the context of the TRIPS
council, not the Working Group, as TRIPS includes a specific legal obligation
on developed countries regarding technology transfer to LDCs (Article 66.2).

4.2.3. Non-violation Complaints

From 1998, developing countries, led first by Cuba, submitted several pro-
posals to the TRIPS Council on non-violation, nullification or impairment
complaints under TRIPS. Combined with efforts from Canada and the Euro-
pean Union, they convinced WTO members in Doha in 2001 to mandate
the TRIPS Council to make recommendations on this matter at the Cancún
Ministerial.67 In the meantime, members agreed not to initiate non-violation
complaints under TRIPS. Given the collapse of the Hong Kong Ministerial, no
further action has been taken and the moratorium continues de facto.

4.2.4. Public Health

From 1999, amidst pressures to strengthen national patent laws to imple-
ment (and exceed) TRIPS requirements, growing civil society campaigns
on the HIV/AIDS crisis prompted developing country efforts to clarify and
defend TRIPS flexibilities relevant to access to medicines. Aided by the post
11 September 2001 political environment, mounting public concern about
fairness in the global economy, and the public backlash against multinational
pharmaceutical companies (which had launched a hugely unpopular lawsuit
against the South African government), developing countries achieved the
2001 ‘Doha Declaration on the TRIPS Agreement and Public Health’ at the

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WTO’s Doha Ministerial Conference, which affirmed their rights under TRIPS
to take measures to protect public health.68 The Declaration confirms several
key flexibilities available in TRIPS, including the right of countries to use
compulsory licences and to determine the grounds on which to grant them;
the right of countries to determine what constitutes a national emergency
or urgency (which can ease the granting of compulsory licences); the right
of countries to determine their own parallel import regimes. It also adds the
right of LDCs to postpone providing patents and exclusive marketing rights
on pharmaceutical and chemical products until 2016, and possibly longer.69
The Doha Declaration launched an intense international debate on how to
interpret and apply its various provisions. This included debate on how to
address Paragraph 6 of the Doha Declaration concerning how countries with
no manufacturing capacity could make use of compulsory licensing. As the
United States and the European Union sought to divide their opponents,
differences arose among developing countries on a range of technical issues
and between civil society groups. Ultimately, on 30 August 2003, WTO mem-
bers agreed on a system for implementing Paragraph 6, which then became
a protocol amending TRIPS in November 2005. As debate on the efficacy of
the ultimate decisions continued,71 only Rwanda and Canada declared their
intention to use the system (as importers and exporters respectively). By the
end of 2007, lacking the ratifications required for the amendment to come
into force, the deadline was extended (in the interim, the waiver remains
in place).72 Meanwhile, efforts by developing countries to issue compulsory
licences elicited sharp rebukes and trade threats from the United States and
outcries from industry.70 (See Chapter 6, Section 6.4.4.)

4.2.5. Geographical Indications

The Doha Ministerial mandated two tracks of work within the area of geo-
graphical indications: (a) negotiation of the establishment of a multilateral
system of notification and registration of geographical indications for wines
and spirits by the next ministerial conference; and (b) discussion of the
possible extension of the protection of geographical indications to include
products other than wines and spirits. The positions of countries on the
question of the extension cut across the developed and developing country
divide. Among developing countries, the main proponents of extending the
protection of geographical indications were Bangladesh, Cuba, India, Jamaica,
Kenya, Nigeria, Pakistan, Sri Lanka, Thailand, and Turkey. Some developing
countries also actively opposed the extension, including Argentina, Chile, the
Dominican Republic, El Salvador, Guatemala, Honduras, Mexico, Paraguay,
and the Philippines. The debate of geographical indications was the only
TRIPS issue on which developing countries expressed substantially different
points of view, on the need for reform.

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4.2.6. LDC Extension

In late 2005, as their general deadline for TRIPS implementation approached,
LDCs collectively exercised their rights under Article 66.1 of TRIPS to request
an extension.73 (The Maldives had made an independent request in 2004.74 )
While their initial request for fifteen years failed, LDCs did achieve a seven-
and-a-half-year extension of their deadline (until mid-2013), with the pos-
sibility of further extensions.75 In reality this extension came after many
LDCs (including twelve in francophone Africa) had already upgraded their
IP standards to meet TRIPS standards, but the decision remains one that such
countries can use to defend themselves against potential of litigation related
to IP enforcement.

4.2.7. Enforcement
Developing countries also actively resisted developed country proposals at the
TRIPS Council for deeper discussion on enforcement. Developing countries
argued that the proposed discussion was beyond the mandate of the Council
and would threaten to upset the balance in TRIPS, duplicate work done by
other international organizations, and deviate attention from issues for which
there was a mandate to negotiate.76

4.2.8. A New Development Agenda

While their efforts were uneven and fluctuated over time, developing coun-
tries sustained a greater active participation in global IP debates in the post-
TRIPS decade than during the TRIPS negotiations. The growing activism of
a core group of developing countries was exemplified in 2004 when fourteen
developing countries known as the ‘Friends of Development’, led by Argentina
and Brazil, submitted a proposal to the WIPO General Assembly requesting
the establishment of a new Development Agenda for WIPO. The proposal was
co-sponsored by Bolivia, Cuba, the Dominican Republic, Ecuador, Egypt, Iran,
Kenya, Peru, Sierra Leone, South Africa, Tanzania, and Venezuela. Supported
by technical inputs and campaigning by NGOs, this Development Agenda
represented a call for restraint on the part of developed countries in their
crusade for ever-stronger IP protection and signalled the determination of
the proposal’s co-sponsors to ensure that the global IP system addressed
their needs.77 In the face of mounting bilateral pressures, the push for new
multilateral IP norms, and new demands regarding enforcement, developing
countries sought to use the Development Agenda as a way to slow the tide
and assert greater control over the activities of WIPO, particularly its technical
assistance (discussed in Section 4.3 below).

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4.3. Growing Complexity in the Global IP System

From 1995 to 2007, the global IP system became increasingly complex. This
complexity arose from the competing efforts of various stakeholders to har-
ness particular IOs and agreements to help them achieve their respective
objectives regarding the revision of TRIPS and global IP reform.
Both developed and developing country governments (and their non-state
supporters) used ‘forum-shifting’ techniques.78 In response to the growing
effectiveness of developing country opposition to their efforts to strengthen
TRIPS, the United States and Europe calculated that their push for stronger
international IP regulation and enforcement would succeed most swiftly
where the potential for collective action among developing countries was
weakest. Together with Japan, and the countries of the European Free Trade
Area (EFTA) (Iceland, Lichtenstein, Norway, and Switzerland), they turned to
bilateral and regional trade, investment, and IP agreements with developing
countries, with the goal of supplementing their existing commitments in
TRIPS and other international IP treaties. One result was that a growing
number of developing countries signed new bilateral trade agreements with
the European Union and United States through which they committed to
TRIPS-plus standards in exchange for greater access to their markets.79 (For
further details, see Chapter 5, section 5.1.)
Developed countries also pushed their agenda across a range of multi-
lateral organizations. The United States led the push for the 1994 WIPO
Internet Treaties, which aim to improve the protection of copyrighted works,
performances, and sound recordings in the digital environment.80 The U.S.
government then encouraged developing countries to sign, ratify, and imple-
ment these treaties through trade negotiations, speeches, WIPO meetings,
the Special 301 process, TRIPS Council discussions, and the activities of U.S.
embassies in host countries.81 Developed countries (which work together as
Group B in the WIPO context) also worked with the WIPO Secretariat to
advance what became known as the 2001 WIPO Patent Agenda. This Agenda
had three components, namely promoting the ratification of the Patent Law
Treaty (PLT), reform of the Patent Cooperation Treaty (PCT), and negotiations
on a new Substantive Patent Law Treaty (SPLT) to supplement the substantive
obligations contained in TRIPS.82
Frustrated by lack of progress at WIPO, the U.S., European, and Japanese
patent offices intensified their trilateral effort towards substantive patent har-
monization (to serve as a default option if the multilateral SPLT track failed).83
In 2005 and 2006, they worked with the WIPO secretariat to reassert the SPLT
agenda by going directly to developing country capitals. The effort to bypass
more politically informed and better-coordinated developing country repre-
sentatives in Geneva provoked critics to charge that multilateral approaches
to IP were under threat.84 Further, the Group B countries were accused of

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co-opting influential developing country experts and institutes to advance

their cause.85 When Group B and WIPO collaborated with a prominent former
Indian government official to host an informal meeting in Casablanca on
matters related to the SPLT and the Development Agenda, the controversy
that erupted prompted India and Brazil to each formally dissociate themselves
from the outcomes and to issue formal objections to WIPO.86 As noted in
Section 4.1, developed countries also shifted to the WCO in search of stronger
enforcement.87 By late 2007, developed countries had pushed the WCO
regarding the preparation of a voluntary ‘model law’ to provide guidance on
the enforcement of IP rights by customs authorities, including standards for
customs authorities that go beyond TRIPS requirements.88
Developing countries also looked beyond the WTO for allies and processes
that might help them to resist compliance-oriented and TRIPS-plus pressures,
and to aid their effort to balance the international IP system. Facilitated and
sometimes led by the activism of NGOs, developing countries advanced initia-
tives in a broad range of IOs, including WIPO, the World Health Organization
(WHO), UNCTAD the UN Educational Scientific and Cultural Organization,
(UNESCO), and the UN High Commission on Human Rights (UNHCHR). At
WIPO, for instance, India, Peru and the Group of Latin America and Caribbean
Countries (GRULAC) for WIPO to take up issues related to the protection of
traditional knowledge and genetic resources, resulting in the establishment of
an Intergovernmental Committee (IGC) in 2000.
As IP surfaced as an item for discussion and negotiation in a growing
number of international fora, tense debates arose within each. IP debates
emerged during efforts to finalize a new treaty on the management of plant
genetic resources at the UN Food and Agriculture Organization (FAO) (which
had been underway since 1993).89 And IP was a controversial topic during
diplomatic negotiations at UNESCO for a new legal instrument on cultural
diversity.90 From 1998, the international human rights community began
to take greater interest in IP issues, led by a speech by Mary Robinson, the
UN’s High Commissioner for Human Rights.91 By 2000, human rights NGOs
were pushing for debate on IP issues in the UN human rights system. That
year, a consortium of human rights NGOs submitted a statement to the Sub-
Commission on Promotion and Protection of Human Rights underscoring
conflicts between TRIPS and human rights.92 In November, the UN Commit-
tee on Economic, Social and Cultural Rights (CESCR) held a day-long meeting
on IP, which resulted in the adoption of a statement setting out a normative
framework for consideration of IP matters.93 In 2001, the High Commissioner
issued a report on the impact of TRIPS on human rights, with a focus on access
to medicines.94 This was followed by further reports by a Special Rapporteur
on the Right to Health and also a general comment on the relationship
between IP and human rights.95 Between 2003 and 2007, NGO campaigns
prompted attention to TRIPS issues in a number of UN human rights treaty

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bodies.96 The UN Committee on the Rights of the Child (CRC), for instance,
issued recommendations regarding FTAs and the use of the TRIPS flexibilities
for public health, to a series of developing countries that were subjects of
review, including Botswana, Chile, Ecuador, EI Salvador, Nicaragua, Peru, the
Philippines, Thailand, and Uganda.97
As debates on the relationships between TRIPS and the Convention on Bio-
logical Diversity (CBD) advanced, they fuelled debates at CBD meetings and
also in discussions on the FAO’s 2001 International Treaty on Plant Genetic
Resources (ITPGRFA). Both treaties had rationales that differed considerably
from the objectives of TRIPS. The ITPGRFA emerged from concerns about
agricultural production and food security. The CBD emerged from an envi-
ronmental initiative by the World Conservation Union (IUCN), and was first
negotiated under the auspices of the United Nations Environment Programme
(UNEP).98 From 2002, as preparations began for the World Summit on the
Information Society (WSIS), tense debates again erupted when developing
countries and civil society groups sought to bring concerns about the IP
system and access to knowledge to the negotiations.99 Similarly, debates on
IP and TRIPS flexibilities emerged in negotiations for the final 2002 Declara-
tion and Implementation Plan of the World Summit Sustainable Development
(WSSD).
From the year 2001, WIPO resurfaced as a key site for global IP debates and
also became a subject of debate in its own right.100 From 2001 to 2003, Brazil
and the African Group raised questions in WIPO’s Permanent Committee
for International Cooperation on Development (PCIPD) about the agency’s
technical assistance, calling on the Secretariat to better incorporate advice
regarding the TRIPS flexibilities in their capacity-building activities. Critical
attention to WIPO’s activities soon came to be considered central to the polit-
ical agenda of protecting TRIPS flexibilities. Describing WIPO as an institution
beholden to the interests of developed countries and IP right-holders, some
developing countries criticized WIPO for giving narrow compliance-oriented
and TRIPS-plus advice regarding options for implementing TRIPS. Some critics
of the WIPO Secretariat complained of a ‘faith-based’ drive for ever-stronger
IP protection and a relentlessly pro-IP perspective driven by the powerful
special interests, namely those of IP right-holders.101 Critics also alleged that
WIPO acted ‘not as a servant of the whole international community but as an
institution with its own agenda’.102
In 2004, the call for a WIPO Development Agenda drew together a suite
of concerns in a single political platform (see Section 4.2.8). The Develop-
ment Agenda proposal detailed a range of complaints about WIPO’s capacity
building, and was supplemented by assessments from NGOs and experts
highlighting inadequate oversight of recruitment of IP technical cooperation
providers, revolving door problems, conflicts of interest, low-quality seminars,
and biased content in training programmes.103 The Development Agenda

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also focused on slowing efforts to advance TRIPS-plus multilateral rules by

highlighting deficiencies in the norm-setting process at WIPO.104 NGO critics
also expressed growing concern about the WIPO Patent Agenda and the push
for a new Broadcasting Treaty.105 In 2007, after six years of heated debate,
the WIPO General Assembly adopted a series of recommendations related to
the WIPO Development Agenda and the push for a new SPLT was suspended,
representing two victories for those keen to promote a more balanced inter-
national IP regime.106
Meanwhile, the WHO had been called on by its member states to launch
an independent Commission on Intellectual Property, Innovation and Pub-
lic Health (CIPIH). The Commission emerged as a new arena for debate
between NGOs and the pharmaceutical industry.107 Amidst allegations of
undue industry influence the Commission placed the WHO squarely at the
heart of debates on the interpretation of TRIPS and its implications for public
health.108 As a follow-up to the Commission, the WHO members asked the
agency in 2006 to establish an Intergovernmental Working Group on Public
Health, Innovation, and Intellectual Property (IGWG) to prepare a global
strategy and plan of action on essential health research to address conditions
affecting developing countries disproportionately.109
The proliferation of international processes where IP was discussed had
several implications for developing countries. Most notably, the growing
complexity of the IP system stretched their capacity to advance consistent
positions across the full range of international organizations and fora where
IP issues emerged.110 In addition, developing countries faced difficulties forg-
ing and maintaining effective collaborations with each other.111 (These two
challenges are discussed in detail in Chapter 6.)
The challenges of coordination and weak technical capacity prompted
many developing countries to turn to IOs and NGOs for support. Indeed, in
some cases, it was these actors that prompted and aided developing country
governments to take positions and action. The activities of UNCTAD, the
South Centre, and several international NGOs helped inform and support the
efforts of developing countries to participate and coordinate in international
IP discussions, sometimes aiding them in drafting submissions to the WTO. In
Geneva, for instance, collaboration between the South Centre and the Centre
for International Environmental Law (CIEL) yielded the first meeting of a
group of developing country TRIPS delegates to discuss their WTO negotiating
strategy. From outside Geneva, several key NGO representatives and academic
experts became frequent visitors and active advisors to developing country
delegations. Developing country NGOs, namely Third World Network and the
African Trade Network also actively supported the Aftican Group’s effort to
devise several WTO submissions. The alignment between NGO and develop-
ing country objectives was striking. In 2000, for instance, the environmental

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NGO CIEL argued for a full review of TRIPS that addresses its impact on
development.112
From 2002, the push for greater developing countries’ engagement in WIPO
was also facilitated by the South Centre, which arranged a first set of joint,
informal consultations among both WIPO and TRIPS delegates in its offices,
many of whom had never met (even those from the same governments).
In most cases, WIPO delegates hailed from foreign affairs ministries or were
flown in from national IP offices for WIPO meetings, while TRIPS delegates
were often from trade ministries. The fact that so many developing countries
allocated the task of monitoring WIPO to officials from national IP offices
meant that the degree of coordination among WIPO delegates was consid-
erably weaker than among TRIPS delegates posted in Geneva. (Only a few
countries, such as Brazil and Egypt, allocated responsibility for both WIPO and
TRIPS to the same delegate). Developing countries were most successful where
they acted in solidarity on international IP issues, forming either regional or
cross-regional blocs113 to promote their views on TRIPS, public health, and
biodiversity and associated traditional knowledge. Still, as noted by Cecilia
Oh, a former campaigner for TWN, ‘[t]he strength-in-numbers approach is not
foolproof; a sizable number of developing countries stay quiet or indifferent
at multilateral negotiations, either from fear of repercussions, limited sub-
stantial expertise on an issue, or political sway to accept developed countries’
stance.’114
As the legal complexity of the global IP system grew, so did the range
and scope of international IP commitments that developing countries had
to consider when undertaking TRIPS-related reforms. Many developing coun-
tries faced the challenge of implementing supplementary international IP
commitments made bilaterally or multilaterally,115 and uncertainty about the
relationship between TRIPS and international laws in other areas (such as the
relationship between commitments made under the CBD and TRIPS).116

4.4. Expanding Teams of Players

Throughout the first decade of TRIPS, debates about IP regulation attracted a

growing number of players, including a diverse set of industry groups, NGOs,
academics, and IOs. From within these, a number of activists played a critical
individual role as powerful opinion leaders and catalysts for action.

4.4.1. A Growing Range of Industry Players

As global IP debates evolved, the original industry coalition in favour of
TRIPS began to splinter and a more diverse set of industry players than those
described above (Section 4.1) were active. In key developed and developing

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countries, lobbyists from groups such as the U.S. Generic Pharmaceutical Asso-
ciation actively opposed the agenda of their brand name counterparts. Again,
specific individuals, such as María Fabiana Jorge, representing the Latin Amer-
ican generic drug industry, and William Haddad, the CEO of a U.S. generic
producer, were prominent in this effort.117 Concerned about rising health care
costs, some of the U.S. companies that had been part of the original pro-TRIPS
industry alliance, joined a coalition called Business for Affordable Medicines.
Moreover, as technology and economic dynamics altered the production
process and business opportunities in many sectors, a number of developed
country companies in the software, Internet, and telecommunications sectors
(such as Google and Intel) began to raise questions about the push for stronger
IP protection. In Europe, the scope of database protection and the push
for patent protection for software generated a backlash from some industry
groups (as well as public interest networks). In addition, scientific leaders from
within and outside industry raised questions about the relationship between
IP protection and innovation. In the United States, for instance, the American
Academy for the Advancement of Science (AAAS) and the National Academies
for Science (NAS) each hosted conferences and panels that alerted policy-
makers to the ways in which too much IP protection might stifle creativity
and economic dynamism. On the European side, prestigious research centres
such as the Wellcome Trust revised their IP strategies to promote more open,
collaborative research and an open source approach to scientific publishing.
In several developing countries, such as Argentina and India, companies that
relied on copying and reverse engineering opposed the push for stronger IP
protection, while some of those companies newly involved in R&D supported
it. (See Chapter 6, Section 6.2.)

4.4.2. NGOs, Civil Society, and Think Tanks

The participation of NGOs in global debates on TRIPS began in the late
stages of the Uruguay Round.118 From 1993 to 1995, NGOs such as TWN,
Health Action International (HAI), and GRAIN published concerns about the
implications of TRIPS for development, public health, and farmers.119 In 1994,
the Crucible Group, an initiative of the International Development Research
Centre (IDRC), brought together experts and NGO representatives to discuss
the implications of TRIPS for rural societies and plant varieties.120
In the immediate aftermath of the TRIPS negotiations, the most vocal cam-
paigners against the Agreement were NGOs concerned about the its impacts
on development, environment, and farmers’ rights. In 1996, public health
and consumers’ rights activists began to forge collaboration on the issue of
IP and access to medicines.121 Between 1999 and 2002, clear international IP
campaigns emerged on biopiracy and public health.122 During this period,
interest in IP debates also expanded to NGOs and civil society groups working

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on issues related to public education and human rights.123 Many of these

groups focused on just one particular type of IP (e.g. copyright or patents)
or one sectoral concern (e.g. health or agriculture). While many NGOs shared
common overarching concerns about TRIPS, the particular campaigns, such
as those on access to medicines and seeds, largely proceeded on parallel
tracks with few linkages between them. Only a handful of NGOs, such as
the Consumer Project on Technology (CPTech) (now known as Knowledge
Ecology International (KEI)) and the International Centre for Trade and Sus-
tainable Development (ICTSD), worked on the full range of international
IP issues. From 2003, a multiplying range of international NGOs and civil
society groups expressed views on international IP regulation. By 2005, a
global social movement had emerged, galvanized by campaigns calling for
a Development Agenda at WIPO124 and a new treaty for ‘Access to Knowledge
(A2K)’.125 These campaigns were complemented by initiatives to promote
open source innovation, open access to educational materials, patent pools,
and alternative licensing models such as humanitarian-use licenses, Creative
Commons licences, CopyLeft, and the General Public Licence (GPL) (a free
software licence).126
The political strategies of NGOs varied widely: they used an array of tools
to advance their respective interests, including conferences, high-profile cam-
paigns, appeals to the international media, and outreach through email list
services such as IP-health. In Geneva, international NGOs, such as ActionAid,
CPTech, CIEL, the Institute for Agriculture and Trade Policy (IATP), ICTSD,
Médecins Sans Frontières (MSF), Oxfam International, the Quaker United
Nations Office (QUNO), and TWN forged informal collaborations with devel-
oping country governments to advance shared goals regarding reform of the
global IP system.127 While there were early attempts to coordinate across
issue-based campaigns by, for example, establishing a TRIPS Action Network
(TAN), such formal campaigns or collaboration were set aside in favour of
informal networking and cooperation across issues where possible, including
through periodic meetings of the key NGOs working on IP issues in Geneva
and collaboration through shared email lists. Several Geneva-based NGOs also
worked alongside and in collaboration with IOs such as the Advisory Centre
on WTO Law (ACWL), the South Centre, UNCTAD, and WHO. Over time, a
‘pro-development’ IP community of professionals emerged in Geneva. A core
objective of their activities was to sustain a developing country perspective in
global IP debates in the face of frequent turnover among developing country
delegates. NGOs also forged collaborations with sympathetic academics, such
as Frederick Abbot and Jerome Reichman from the United States, and Carlos
Correa from Argentina, who themselves became influential players in the
global IP debate.
International NGOs also reached out to colleagues in developed coun-
try capitals and in developing countries to galvanize global and regional

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networks.128 The NGOs mentioned above, as well as HAI, Consumers Inter-

national, the Electronic Frontiers Foundation, the International Federation
of Libraries Associations (IFLA), the International Rural Advancement Foun-
dation (RAFI) (now known as Action Group on Erosion, Technology and
Concentration (ETC)), and GRAIN worked to harness the support of local
affiliates and partners, and to engage them in global IP debates, including
by lobbying their own governments. Consumers International, for example,
encouraged its network of national consumer organizations to become active
in international and national IP debates. In several developing countries, new
think tanks and research centres emerged as sympathetic allies for NGOs, such
as the Fundação Getulio Vargas (FGV) School of Law’s Centre for Technology
and Society in Brazil. NGOs such as ICTSD, TWN, and Oxfam organized
regional meetings to draw together local experts, NGOs, and policymakers
to debate issues related to IP. Developing country NGOs, such as the African
Trade Network (based in Ghana), CUTS International, the Treatment Action
Campaign (TAC) (South Africa), the Indigenous Peoples’ Biodiversity Network,
Bio-Thai (Thailand), the Gene Campaign (India), and SEARICE (the Philip-
pines) were all active at particular moments in global IP debates (for discussion
of NGOs at the national level, see Chapter 5). By 2006, the A2K movement
had succeeded in spurring the creation of local initiatives A2K initiatives in
many countries including South Africa and Brazil.
To complement these efforts, some NGOs worked to lobby decision-makers
in their own capitals. In the United States, for instance, public health advo-
cates (such as ACTUP, Health Gap, and CPTech) lobbied the U.S. Congress and
USTR to desist from putting TRIPS-plus demands on developing countries in
bilateral trade negotiations. Similarly, groups such as Consumers International
and ACTUP lobbied EU political parties, parliamentarians, and officials to
stop TRIPS-plus pressures on developing countries. In 2003, the Greens in the
European Parliament filed an urgent request asking the European Commission
to explain why ‘it pretends to uphold the so-called flexibilities of the TRIPS
Agreement at the multilateral level while it simultaneously makes TRIPS-
plus demands on developing countries at the bilateral level’.129 Among the
network of individuals who played a lead role in the NGOs active on TRIPS, a
number of individuals stood out for their consistent influence on the strategic
direction of campaigns, including Martin Khor (TWN), James Love (CPTech),
Sisule Musungu (IQSensato) Pat Mooney (RAFI), and Ellen t’Hoen (MSF).
Some NGOs, such as Oxfam, MSF, and ActionAid financed their work
on TRIPS through their own resources generated from membership fees or
through fund-raising campaigns. Starting in 1999 with the Rockefeller Foun-
dation, a number of private philanthropic foundations provided financial
support to NGOs to conduct research, advocacy, and capacity-building that
would advance development and public interest–oriented perspectives on IP

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policy.130 From 2002, the expanding engagement of NGOs from developing

countries in global IP debates was in large part due to the launch of new grant-
making initiatives by the Macarthur Foundation, the Open Society Institute,
and the Ford Foundation. The strategic injection of funds spread activity far
beyond the particular groups that were the direct recipients. In some cases,
private foundations served as convenors and co-strategists with their grantees
to advance a common public interest–oriented agenda at the international
level.131 In addition, several development agencies from developed countries
such as the United Kingdom, Sweden, and the Netherlands, funded the work
of several NGOs. The Swedish International Development Agency (SIDA) for
instance, supported GRAIN and RAFI, the UK Department for International
Development supported ICTSD, and the Dutch government provided support
to QUNO.

4.4.3. International Organizations as Players

In addition to the role of IOs as sites of global IP debates, many IO secretariats
became actors in their own right, developing and asserting distinct (and
sometimes competing) perspectives on IP controversies and TRIPS implemen-
tation through publications, conferences, outreach, awareness-raising efforts,
and capacity-building.132 In so doing, IOs sometimes expressed indirectly the
power and preferences of particular governments or interest groups. In other
instances, distinct institutional agendas emerged from their mandates, insti-
tutional design, financing, historical momentum, or internal leadership.133 In
some cases, IOs became embroiled in internal debates.
In general, the staff of IOs insist upon the member-driven nature of their
work, arguing that they implement work plans defined by members, defend
the rules to which states have committed, and facilitate the efforts of states to
meet their obligations. The challenges of member state control of IOs is well-
documented in the international relations literature. There is significant evi-
dence to show that IOs suffer ‘principal–agent’ problems due to the extended
chain of delegation between citizens, diplomats, and the staff of IOs. Further,
IOs may develop a vested interest in particular outcomes that national gov-
ernments, parliaments, and supervisory boards find difficult to manage due
to information costs and weak or distorted incentives.134 Some scholars argue
persuasively that IOs are best conceived an agents of a ‘collective principal’,
where members of the collective must coordinate to direct the agent. In so
doing, scholars specify a range of challenges that states confront in building
coalitions to effectively control IOs.135
In the context of global IP debates, the responsiveness of IOs to particu-
lar member states, or groups of member states, varied over time. IOs were
sometimes captured, partially or completely, by particular member states

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that harnessed their institutional capacities, resources, or processes to serve

as conduits for their interests.136 While UNCTAD was generally considered
a ‘developing country’ IO,137 the WIPO Secretariat was perceived to favour
the interests of developed countries. International organizations also liaised
with particular ministries and agencies within national governments. The
WHO had strong ties with health ministries at the national level whereas the
WTO liaised most often with trade or foreign affairs ministries. WIPO’s key
interlocutors at the national level were national offices for industrial property
and copyright for which it was often the core source of institutional support
and staff training.
The different perspectives advanced by IO Secretariats reflected their distinc-
tive mandates. In some instances, the interpretation by staff in IO secretariats
of their mandate modified or expanded their influence on IP debates. Staff
in the WTO commonly considered themselves as guardians of the Uruguay
Round agreements. They favoured a compliance-oriented and sometimes
TRIPS-plus approach to TRIPS implementation and generally shared a prefer-
ence for not interfering with the Agreement. WIPO’s staff viewed their mission
as one of promoting stronger IP protection everywhere – a purpose the Sec-
retariat has pursued with determination since the organization’s inception.138
Statements of this objective can be found across WIPO press releases, publica-
tions, and newsletters.139
By contrast, the mandates of IOs such as the WHO, UNAIDS, UNCTAD,
UNDP, and UNAIDS emphasized public policy goals related to health, indus-
trial development, human development, and the AIDS crisis. The interven-
tions of their secretariats in international IP debates were informed by these
goals, and aimed in the large part at promoting and defending the TRIPS flex-
ibilities and securing a more balanced global IP regime. UNCTAD’s activities,
for instance, primarily served the interests of developing countries and pro-
moted the use of TRIPS flexibilities.140 At UNDP, Secretariat staff harnessed the
moral authority of the annual Human Development Report to draw attention
to the imbalances of the international IP regime (i.e., in its 2001 report on
technology and in a 2001 book on Making Global Trade Work for People.)141
The WHO used its technical authority to advocate a public health–sensitive
approach to IP regulation.142
Most IO secretariats also had distinctive non-government constituencies
that aided and influenced their work on IP. The WHO’s natural constituency
was the broader community of international public health advocates and
experts. Each year, the WHO’s Annual World Health Assembly (WHA) was
preceded by a Peoples’ Health Assembly, comprised of public health NGOs
and civic organizations from around the world, which generated several rec-
ommendations on IP for consideration by the WHO Secretariat and member
states. WIPO on the other hand had a distinctive relationship with industry.
While member states formally approved WIPO’s programme and budget each

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year, the primary source of the Secretariat’s funds were the private sector users,
mostly multinational corporations, of the global IP system that it administers.
This point was clearly articulated in 2004, when a broad civil society coalition
issued their Declaration on the Future of WIPO, which drew together a diverse
suite of concerns about the global IP system and called for a new focus on
development, the public interest, and consumers rights.143 (see Section 4.4.4.
for discussion of WIPO).
Each of the IOs involved in global IP debates had a distinct institutional
culture that informed its work. The concept of ‘path dependence’ alerts us to
the ways that a particular organizational culture can permeate and prevail in
an international bureaucracy over many years.144 Further, the ascendance of
a distinct set of ideas, beliefs, or assumptions can be reinforced over time by
‘increasing returns’ and ‘lock in’. These insights help explain why the various
international organizations expressed such distinct and competing views on
IP issues. Moreover, they highlight that certain ideas can develop an apparent
life of their own in institutions, even when the preferences of major stake-
holders have moved on, internal debate emerges, or there is clear evidence to
support the adoption of a different set of ideas, policies or actions.145
In some cases, internal IP debates erupted within IOs. Alongside NGO
efforts to claim a seat at the table in many of the WHO’s advisory committees,
the global pharmaceutical industry (both brand and generic) also worked hard
to influence the activities and policy recommendations of the organization on
IP-related matters. NGOs and industry groups battled, for instance, to influ-
ence the outcomes of the WHO Commission on Intellectual Property Rights,
Innovation, and Public Health (CIPIH) and the election of the WHO Director-
General.146 After numerous complaints from the pharmaceutical industry, the
United States repeatedly called on the WHO to reign in secretariat staff such
as German Velasquez, a key player in the organization’s activities related to IP
and access to essential medicines.
Alongside competition among IOs, there was also collaboration. WIPO,
UPOV, and the WTO frequently co-sponsored events. UNDP, UNAIDS, and
WHO also collaborated in public conferences and technical assistance activi-
ties. In 2002, as debates on TRIPS and public health were at their height, the
WTO and WHO Secretariats combined to publish a joint study.147 IOs also
collaborated with non-government constituencies to produce publications
and co-sponsor conferences. WHO, for instance, partnered with UNAIDS
and MSF to publish a study on the patent status of essential medicines in
developing countries148 and with the South Centre on several matters related
to TRIPS and public health.149 UNCTAD also collaborated with ICTSD on a
multi-year capacity-building project on intellectual property and sustainable
development.150
Regional IOs were also involved in international debates, primarily through
their roles as fora for regional coordination or cooperation. In East Africa, the

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Common Market for Eastern and Southern Africa (COMESA) commissioned

studies on issues related to IP and health.151 The African Union and the Pan-
American Health Organization (PAHO) also published reports on issues related
to TRIPS implementation and global IP debates, and ASEAN held several
meetings on TRIPS matters.152 Staff of the secretariats of each of the regional IP
organizations of African countries, published views and made statements that
reflected particular perspectives on international IP debates. (In Chapter 5, I
use the case of OAPI to demonstrate how such regional IOs acquired and used
distinctive organizational capacities to advance reforms not clearly aligned
with those of their members).
Across the spectrum of IOs, a number of individual international civil
servants exerted particular influence on global IP debates, including Germán
Velásquez (WHO), Pedro Roffe (UNCTAD), Adrian Otten and Jayashree Watal
(WTO), Barry Greengrass (UPOV), Johnson Ekpere (OAU), and Kamil Idris
(WIPO).

4.4.4. WIPO as a Central Actor

In the post-TRIPS global IP debates, WIPO emerged as a key forum and player.
WIPO’s significance derived in part from its status as the largest provider of IP-
related capacity-building to developing countries for TRIPS implementation.
In addition, the WIPO Secretariat was the key UN agency with a mandate
on IP and a persistent voice in favour of stronger IP protection and a pro-IP
culture globally.
To understand WIPO’s role in global IP debates, a consideration of its leader-
ship, mandate, institutional design, and history are essential. Since becoming
part of the UN system, WIPO has had two Directors-General. Árpád Bogsch
served as the first Deputy Director-General of WIPO from 1970 to 1973,
and in 1974 became its first Director-General.153 Throughout his tenure, he
advanced WIPO’s mission of promoting IP with zeal. Upon his retirement,
he was replaced by Kamil Idris, who demonstrated similar pro-IP ardour. The
pro-IP perspective of WIPO’s two leaders was consistent with the objectives set
out in the WIPO Convention, namely: (a) administrative cooperation among
the various international agreements it oversees; and (b) promotion of the
‘protection of intellectual property throughout the world’. The substantive
functions set out in Article 4 of the WIPO Convention are to ‘promote the
development of measures designed to facilitate the efficient protection of
intellectual property throughout the world and to harmonize national legis-
lations in the field’; to ‘encourage the conclusion of international agreements
designed to promote the protection of intellectual property’; and to assemble
and disseminate information concerning the protection of intellectual prop-
erty, carry out, promote, and publish studies in this field. Throughout the
period under examination, WIPO staff consistently proclaimed their goal as

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one of ‘facilitating or strengthening the protection of intellectual property at

the international level’.154 Importantly, however, since WIPO had joined the
UN family in 1974, the organization’s original mandate had been modified
and complemented by a broader goal. Article 1 of the agreement establishing
WIPO’s relationship to the UN gave wipo a far broader purpose than either its
leaders or staff have pursued, namely ‘promoting creative intellectual activity
and gave WIPO a far broader purpose than either its leaders or staff have
pursued, namely . . . facilitating the transfer of technology related to industrial
property to . . . the developing countries in order to accelerate economic, social
and cultural development’.155
WIPO’s prominence in global IP debates flowed from its role as administra-
tor of some twenty-three IP treaties and their financial arrangements. These
agreements fall into three main categories: IP protection treaties (i.e. which
define international substantive standards on IP), global protection system
treaties (i.e. which establish procedural rules mainly aimed at ensuring that
one international registration or filling of an industrial property will have
effect in all the countries signatory to the relevant treaties), and classification
treaties (i.e. which create classification systems aimed at organizing informa-
tion concerning inventions, trademarks, and industrial designs through an
indexed system). Throughout its history, WIPO has raised most of its income
through fees it collects from IP right-holders and applicants in exchange for
services it provides in relation to several of these treaties.156 Since 1995, over
eighty per cent of WIPO’s annual income came from fees paid for services
related to the Patent Cooperation Treaty (PCT) (which provides a unified
procedure for filing patent applications to protect inventions internationally)
and the Madrid Treaty (which facilitates registration of trademarks), while less
than ten per cent came from member state contributions.157
The status of IP right-holders as WIPO’s core financiers and non-
government constituency is openly proclaimed by the Secretariat.158 In 1988,
the WIPO Director-General established an Industry Advisory Commission
(IAC) to ensure that ‘the voice of the market sector is heard and that the
organization is responsive to its needs’.159 The Director-General emphasized
that the IAC was designed to ensure ‘a direct input of industry into the policy-
making process in WIPO’.160 Over ninety per cent of the NGOs accredited as
permanent observers to WIPO’s work are business associations of IP-holders
and related industries.161
WIPO’s pro-IP influence on global IP debates was facilated by its technical
authority, extensive global network of IP professionals, close relationships
with national IP offices, and the considerable budget it allocated to pro-
IP outreach, training, and capacity-building. The technical process of the
WIPO Secretariat was widely observed in diplomatic circles,162 as was its pro-
IP internal culture.163 WIPO’s staff generally shared pro-IP perspectives and
legal expertise, and had the organizational and financial resources to project

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these.164 Further, the authority of the WIPO Secretariat vis-à-vis developing

countries was consolidated by the perception among many national govern-
ment officials that WIPO’s advice was imbued with the neutrality anticipated
of international organizations and their civil servants.165
From 2004, the push for the WIPO Development Agenda (described above)
placed WIPO at the centre of the IP stand-off between developed and develop-
ing countries. From 2005, two independent reviews of WIPO’s management
added fuel to controversies on the mandate, accountability, and activities of
WIPO. The United Nations Joint Inspection Unit raised concerns about cor-
ruption and mismanagement, including charges against the WIPO Director-
General.166 A further independent audit by PricewaterhouseCoopers revealed
serious problems in human resources management.167 In 2007, developed
countries, which had long supported the incumbent Director-General, turned
against his leadership. The ensuing debate generated an institutional crisis,
resulting in a failure of governments to approve the organization’s budget, and
forced the early resignation of the Director-General.168 In the process, tension
emerged among developing countries, with the African Group stepping up
to defend the Sudanese Director-General while some developing countries
sided with developed countries determined to replace a leader who no longer
enjoyed their confidence.169

4.5. Conclusion

This chapter has advanced an analytic account of the core political dynamics
and players necessary for understanding how global IP politics set the context
for TRIPS implementation and the variation that emerged. Implementation
and post-Agreement negotiation were intricately intertwined in the global
struggle to influence TRIPS negotiations, alter international IP regulation, and
to shape the terms of global IP debates.
Building on this foundation, the following chapter shows how competing
international pressures contributed to diversity in how developing countries
implemented TRIPS. The subsequent chapter (Chapter 6) shows how domestic
political factors, particularly institutional arrangements and changing priori-
ties among domestic interest groups, interacted with international pressures
to produce further variation.

Notes

1. Three key sources for periodic reporting on developing country engagement in IP

debates post-TRIPS are the South Centre/Centre for International Environmental
Law (CIEL) Intellectual Property Quarterly Update (from 2004), news reports by
Intellectual Property Watch (from November 2004), and Third World Network’s
South–North Development Monitor (SUNS).

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 Post-TRIPS Tensions and Global IP Debates

2. See The Economist (1994), Hill (1990, 1994), Schott (1994), and Umoren, (1995).
3. PhRMA (2001).
4. For a summary of discussions related to the extension of the protection of geo-
graphical indications, see WTO document WT/GC/W/546.
5. Abbott (2003b).
6. Mayne (2002).
7. For information on IFAC-3, see http://www.ita.doc.gov/td/icp/Charter-23.html.
This Committee was previously known as the Industry Technical Advisory Com-
mittee (ITAC). For its Charter and membership, see: http://www.ita.doc.gov/itac,
accessed on 8 January 2007.
8. See Sell (2003b) and Drahos (2002a). The 301 reports also draw on information
obtained from a range of government agencies, the private sector, embassies and
trading partners, and National Trade Estimates reports.
9. Sell (2003) and Mayne (2002).
10. This typology builds on one set forth in Dutfield (2000).
11. BIO, for instance, represents more than 1,100 biotechnology companies, acad-
emic institutions, state biotechnology centres, and related organizations in the
United States and thirty-one other nations involved. Additional examples include
the European Federation of Pharmaceutical Industries and Associations (EFPIA)
the International Publisher’s Association, the International Federation of the
Phonographic Industry (IFPI), Intellectual Property Owners, Inc, and l’Association
Internationale des Sélectionneurs pour la Protection des Obtentions Végétales
(ASSINSEL).
12. A further example is the Fédération Internationale des Conseils en Propriété
Industrielle (FICPI).
13. Several of these individuals were also active in the TRIPS negotiations. See Sell
(2003).
14. Wadlow (2008).
15. ICC (2005).
16. Drahos (2004a) and Helfer (2004).
17. Biadgleng and Tellez (2008) and Drahos (2004a).
18. USTR (2007b).
19. EC (2003, 2004c, 2006).
20. See WTO document IP/C/W/448.
21. USPTO (2006).
22. Japan, Switzerland, and the United States also supported the inclusion of enforce-
ment on the TRIPS Council agenda. See WTO document IP/C/W/471, Gerhardsen
(2006a), and Santa Cruz (2006).
23. EC (2004c).
24. Biadgleng and Tellez (2008).
25. USTR (2007a).
26. Ibid.
27. USTR (2007a) and New (2007d).
28. The Greens in the European Parliament worked, for instance, to remove provisions
from the EU’s negotiating proposals for agreements with ACP countries that they
argued would have facilitated biopiracy. See GRAIN (2000b).

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29. In early 2000, two Senators sponsored an amendment designed to prevent the
United States from challenging African countries’ use of compulsory licensing
and parallel importation of HIV/AIDS drug treatments as alternatives to more
expensive U.S. pharmaceuticals. The amendment was dropped from the bill amid
strong opposition from the U.S. pharmaceuticals industry. With some Senators
threatening to block the bill, President Clinton issued Executive Order 13155 –
Access to HIV/AIDS Pharmaceuticals and Medical Technologies.
30. See http://www.trilateral.net, accessed on 14 February 2008.
31. This proposal emerged from a meeting of the Trilateral Offices in November of
2003. For a summary of the 21st Trilateral Conference, Tokyo, see http://www.
trilateral.net. The origins of the proposal can be traced to an October 2003 meeting
of the Executive Committee of the International Association for the Protection of
Intellectual Property (AIPPI) in Lucerne in October of 2003. See AIPPI’s Resolution
on Question 170 at http://www.aippi.org/splt/aippi_resolutons.pdf.
32. Kumar (1993), Raghavan (1990), Economic and Political Weekly (1989), Rao (1994),
and Singh (1994).
33. Drahos (2001a), Khor and Raghavan (2001), and Oxfam (2004a).
34. For examples, see Das (1998) and Sell (1995, 1998).
35. To date, there is no general history of developing countries’ engagement in inter-
national IP policymaking post-TRIPS. Examples of scholarly analyses which devote
specific attention to the engagement of developing countries in global IP debates
post-TRIPS include Drahos (2002a), May (2006c), Okediji (2003a), Sell (2006), and
Tansey and Rajotte (2008).
36. Ostry (2002).
37. Finger and Schuler (2000).
38. Ibid. The final Marrakesh Agreement delayed benefits for developing countries
by, for instance, deferring liberalization of textiles and clothing, and postponing
negotiations to reduce agricultural export subsidies and domestic support
measures.
39. Maskus (2000a).
40. Bhagwati (2002). Also see Stiglitz (2002).
41. Finger and Schuler (2001: 5), and Khor (2002: 22–3).
42. Finger and Schuler (2001: 12).
43. This figure combines an estimated US$21 billion income from copyrights and
US$19 billion income from patents. Put another way, the economic gains TRIPS
would generate for the United States economy were estimated to be thirteen times
more valuable than the tariff liberalization commitments it secured through the
Uruguay Round. See Finger (2002) and Maskus (2000a).
44. Group of 77 and China (1999, 2000, 2001, 2003a, 2003b).
45. Author’s observation based on participation in informal meetings involving
developing country IP delegates in Geneva between 1999 and 2007.
46. Matthews (2002: 78–107).
47. South Centre (2004).
48. This figure includes ten submissions from China regarding the Transitional
Review Mechanism of China and one submission on the same subject by Taiwan.
Note that some of these submissions are notifications by countries of their
support or co-sponsorship of existing submissions to the TRIPS Council.

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 Post-TRIPS Tensions and Global IP Debates

49. In 1999, for instance, nine submissions related to Article 27.3(b) and one
submission on development, technical assistance, and transition arrangements
were addressed to the General Council. The G-77 submitted a further statement
on development-related issues to the 1999 WTO Ministerial Conference. In
addition, four submissions on technology transfer were submitted to the WGTT
between 2003 and 2005, and one to the General Council in preparation for the
Ministerial Conference in 2001.
50. Group of 77 and China (2000).
51. WTO (2005).
52. Oh (2002) and Correa (2002).
53. For studies that detail how the performance of individual diplomats can make
a decisive difference to international trade negotiations, see Croome (1999),
Hoda (2001), and Preeg (1970). In trade and IP negotiations, the room for
entrepreneurship by diplomats is enhanced by the highly technical nature of
negotiations.
54. Abdel Latif (2005).
55. As of January 2008, the African Group comprised all forty-one African WTO
members.
56. As of January 2008, the ACP Group comprised fifty-six members, namely
Angola, Antigua and Barbuda, Barbados, Belize, Benin, Botswana, Burkina Faso,
Burundi, Cameroon, Central African Republic, Chad, Congo, Cote d’Ivoire, Cuba,
Democratic Republic of the Congo, Djibouti, Dominica, Dominican Republic,
Fiji, Gabon, The Gambia, Ghana, Grenada, Guinea, Guinea-Bissau, Guyana,
Haiti, Jamaica, Kenya, Lesotho, Madagascar, Malawi, Mali, Mauritania, Mauritius,
Mozambique, Namibia, Niger, Nigeria, Papua New Guinea, Rwanda, St Kitts and
Nevis, St Lucia, St Vincent and the Grenadines, Senegal, Sierra Leone, Solomon
Islands, South Africa, Suriname, Swaziland, Tanzania, Togo, Trinidad and Tobago,
Uganda, Zambia, and Zimbabwe.
57. As of January 2008, the LDC Group comprised thirty-two WTO members, namely
Angola, Bangladesh, Benin, Burkina Faso, Burundi, Cambodia, Central African
Republic, Chad, Democratic Republic of Congo, Djibouti, Gambia, Guinea,
Guinea Bissau, Haiti, Lesotho, Madagascar, Malawi, Maldives, Mali, Mauritania,
Mozambique, Myanmar, Nepal, Niger, Rwanda, Senegal, Sierra Leone, Solomon
Islands, Tanzania, Togo, Uganda, and Zambia.
58. WTO (2006).
59. WTO (1999a).
60. Ibid. Also see TWN (1999).
61. Dutfield (2000).
62. Kuanpoth (2006).
63. For the origins of this Committee and its activities, see http://www.wipo.int/tk/en.
64. WTO (2006).
65. For the Africa Group proposal, see WTO document IP/C/W/40). For interventions
by Kenya, South Africa, and Nigeria in the TRIPS Council meetings in 2005 and
2006, see WTO documents IP/C/M/50, IP/C/M/51, IP/C/M/52, and IP/C/M/48.
66. Group of 77 (1999).
67. Gerhardsen (2005b) and Abbott (2003b).
68. Matthews (2004, 2005), Sell (2002), and Odell and Sell (2006).

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69. For the decisions made by the TRIPS Council and General Council in 2002 to
put the Declaration into effect, see http://www.wto.org/english/tratop_e/trips_e/
pharmpatent_e.htm, accessed 5 November 2007.
70. Oh (2006).
71. For discussion of the politics of the Paragraph 6 decision, see Correa (2004c),
Ismail (2003), Matthews (2004), and WTO (2003b). The system called on eligible
countries intending to import to provide notifications to the WTO of their inten-
tion to make use of the system and supply information each time they use the
system. The August 30 decision was transformed into a protocol amending TRIPS
in 2005. See http://www.wto.org/english/tratop_e/trips_e/public_health_notif_
import_e.htm.
72. See Chapter 3, note 23.
73. See WTO (2005b, 2005c).
74. In April 2004, the Maldives, which had no IP legislation at the time, made an
individual request for an extension of its transition period until December 2007,
the date at which the Maldives had separately agreed at the United Nations to
graduate from its LDC status. In the wake of economic disruption following the
2004 tsunami however, the UN agreed in 2005 to defer the start of the Maldives
three-year transition period for graduation until 2008.
75. Gerhardsen (2005a).
76. For minutes of the TRIPS Council meetings, see WTO documents IP/C/M/48,
IP/C/M/49 and IP/C/M/50. Also see Santa Cruz (2006).
77. WIPO (2004b, 2004c).
78. On forum-shifting in international IP negotiations, see Braithwaite and Drahos
(2000), Drahos (2002a), and Helfer (2004).
79. For an overview of the impacts of these Agreements on the options of developing
countries with respect to TRIPS flexibilities, see Musungu and Dutfield (2003),
Fink and Reichenmiller (2005), Oliva (2003), Roffe (2004), Santa Cruz and Roffe
(2006), and Vivas-Eugui (2003).
80. The two treaties are the WIPO Copyright Treaty (WCT) and the WIPO
Performances and Phonograms Treaty (WPPT). For the text of each treaty,
see http://www.wipo.int/treaties/en.
81. Dickinson (1999).
82. For critical reviews of the WIPO Patent Agenda and the proposed SPLT, see Correa
and Musungu (2002).
83. New (2006a).
84. Ibid.
85. New (2005c).
86. Ibid.
87. For an overview of the evolving governance of international IP enforcement, see
Biadgleng and Tellez (2008).
88. New (2008b).
89. Tansey and Rajotte (2008).
90. New (2005e).
91. Robinson (1998).

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92. The NGOs involved were the Lutheran World Federation (LWF), Habitat
International Coalition, and the International NGO Committee on Human Rights
in Trade and Investment (INCHRITI).
93. Helfer (2004) and Kothari et al. (2000).
94. UNHCHR (2001).
95. UNCESCR (2005).
96. For a summary of references to IP by UN human rights treaty monitoring bodies
in their reviews of the implementation of international conventions (i.e., the
International Committee on Economic, Social and Cultural Rights (ICESCR), the
Human Rights Committee, and the Committee on the Rights of the Child), see
http://www.3dthree.org/pdf_3D/TreatyBodyIPrefs_en.pdf. On the relationship
between human rights and IP, see Chapman (2002) and Robinson (1998).
97. See, for instance, 3D (2006a) and the Republic of the Philippines (2000).
98. Andersen (2006a), and Tansey and Rajotte (2008).
99. Emert (2005).
100. In 2005, three inter-sessional intergovernmental meetings (IIMs) to examine
proposals for a WIPO Development Agenda were held. At the October 2005
meeting of the WIPO General Assembly, the member states agreed to ‘accelerate
and complete’ the IIM discussions by convening two meetings of a Provisional
Committee on Proposals Related to a WIPO Development Agenda (PCDA). In
2007, the Development Agenda discussions were turned over to a new Committee
on Development and Intellectual Property (CDIP). See WIPO (2005b), New
(2005b), Musungu (2004b), and May (2006c).
101. Boyle (2004).
102. See Musungu and Dutfield (2003: 11).
103. MSF (2003), Musungu (2003), Musungu and Dutfield (2003), and Civil Society
Coalition (2004).
104. New (2005b, 2005d, 2006a).
105. Correa and Musungu (2002), Dhar and Anuradha (2005), and New (2007g).
106. New (2007h).
107. New (2007e).
108. Gerhardsen (2006f ).
109. Ibid.
110. Abdel Latif (2005).
111. Ibid.
112. Stilwell and Monagle (2000: 3).
113. These included the group of seventeen Like-minded, Megadiverse Countries,
created in 2002.
114. Gay and Oh (2008). Also see Das (2006).
115. Drahos (2002a).
116. Tansey and Rajotte (2008).
117. William Haddad was one of the founders of the U.S. generic trade association
over which he presided as chairman/president for over a decade, and CEO of
one of the largest U.S. generic drug companies. Haddad initiated and negotiated
the Drug Price Competition and Patent Restoration Act (Hatch–Waxman) and

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was among those centrally involved in the effort to cut the price of HIV/AIDS
drugs.
118. For discussions of the role and influence of civil society, see Sell (2003a, 2003c,
2006) and Sell and Prakash (2004). Drezner (2005) argues that the magnitude of
the change in international IP policy and the role played by civil society has been
overemphasized and that the major powers remained the most decisive actors.
119. Das (1998), Hathaway (1993), and Shukla (1994). Also see Drahos (1995).
120. Crucible Group (1994).
121. For instance, MSF, HAI, and the Consumer Project on Technology held a joint
meeting in November 1996 that resulted in the Amsterdam Statement, which
set out concerns about the relationship between TRIPS and public health. See
http://www.cptech.org/ip/health/amdsterdamstatement.html.
122. Sell (2003b, 2006).
123. Sell (2006).
124. Yu (2007), and Civil Society Coalition (2004).
125. Halbert (2005).
126. Consumers International (2006), Halbert (2003), Matthews (2006), and Sell (2006).
127. For analysis of the significance of coalitions between NGOs and developing
countries regarding IP issues under discussion in multilateral institutions, see
Matthews (2006).
128. For examples of such collaboration in debates on TRIPS and public health, see
Odell and Sell (2006), and Shadlen (2004b).
129. Cited in Berne Declaration (2003:8). A group of international and European
NGOs also lobbied the EFTA states arguing against the inclusion of IP issues in
bilateral trade agreements (particularly with respect to patents on life forms and
public health). See Berne Declaration (2003: 6–7).
130. The annual reports of each of these foundations list their respective grantees.
131. Rockefeller Foundation (2002) and Karaganis (2006).
132. See Chapter 1, note 108.
133. Barnett and Duvall (2005).
134. Vaubel (2006)
135. To understand the reasons for autonomy of IOs, a growing scholarly literature
explores how governance structures and incentive systems at work within IOs
influence their actions, particularly through the application of principal–agent
theory. See, for example, Hawkins et al. (2006), Lyne et al. (2006), Martin and
Simmons (1998), and Nielsen and Tierney (2003).
136. This point is made by Barnett and Duvall (2005) in their discussion of institutional
power and how IOs can serve as vehicles for the indirect expression of the interests
of powerful states.
137. On the history of the special relationship between UNCTAD and developing
countries, see Nye (1973).
138. Bogsch (1992) and May (2006c).
139. For examples, see http://www.wipo.int.
140. UNCTAD (1996, 1999, 2007).
141. UNDP (2001) and UNDP (2003b).

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 Post-TRIPS Tensions and Global IP Debates

142. For examples of WHO studies which advance this perspective, see WHO (1999a,
1999b, 2001, 2002a, 2002b, 2004). For additional studies published by WHO
or with other organizations, see Bermudez et al. (2000), Correa (2002a, 2002b,
2004c), Keayla (2004), MSF/WHO (2000), Musungu and Oh (2006), Supakankunti
et al. (1999), and UNAIDS/WHO (2000).
143. For analysis of the influence of international civil servants in IOs on policy
debates, see Yi-Chong and Weller (2002), and Barnett and Finnemore (1999).
144. See, for example, Arthur (1989, 1994). See also Chapter 1, note 108.
145. Goldstein (1988), and Goldstein and Keohane (1993).
146. Gerhardsen (2006f ).
147. WTO/WHO (2002). At the WTO, former Deputy Director-General Miguel
Rodriguez was among those who promoted the idea of a joint report.
148. WHO (2004).
149. Correa (2002b, 2004c).
150. See UNCTAD-ICTSD (2005). See http://www.iprsonline.org/unctadictsd/descrip-
tion.htm, accessed on 1 February 2008.
151. Maonera and Chifamba (2003).
152. For papers and reports of these meetings, see Bermudez et al. (2000) and
Balasubramanium (2000).
153. Bogsch’s long WIPO career began in 1963 when he was appointed BIRPI’s first
Deputy Director-General.
154. See, for example, Gurry (1999: 385).
155. WIPO (1975).
156. WIPO (1994, 2004d).
157. Musungu and Dutfield (2003: 8). WIPO also collects fees for the dispute resolution
services (mediation and arbitration) it offers to individuals or enterprises seeking
to avoid court litigation. See Gurry (1999).
158. WIPO (1999a, 1999d)
159. For a report of the first meeting of the IAC, see WIPO (1999a).
160. For a press release regarding the first meeting of the IAC, see WIPO (1999d).
161. CIEL (2007).
162. Author’s interviews with Geneva-based diplomats from 2004–7.
163. The idea that particular assumptions, beliefs, and worldviews come to dominate
IOs over time has been presented in the literature for many years. For discussion
of the influence of pro-market economists on the policy advice of the World
Bank, see Wade (2002). On the influence of particular professional communities,
such as economists, on IOs, see Kindleberger (1955) and Ramsay (1984).
164. See Chapter 1, note 108.
165. For analysis of how staff of IOs may sometimes promote a perception that they
possess rational-legal and expert authority, see Barnett and Finnemore (2004:
23–5).
166. New (2007b).
167. New (2007c).
168. New (2007a, 2007f ).
169. Musungu (2007).

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 5
International Pressures
on Developing Countries

Developing countries faced a suite of international pressures regarding their

implementation of TRIPS. The following example of TRIPS-plus demands on
South Africa exemplifies how this occurred. In 1998, the U.S. Department of
State sent a report to the U.S. Congress concerning IP protection in South
Africa. According to the report:

All relevant agencies of the U.S. Government the Department of State together with
the Department of Commerce, its U.S. Patent and Trademark Office (USPTO), the Office
of the United States Trade Representative (USTR), the National Security Council (NSC)
and the Office of the Vice President (OVP) have been engaged in an assiduous, concerted
campaign to persuade the Government of South Africa (SAG) to withdraw or modify the
provisions of Article 15(c) [of the South African Medicines and Related Substances Act of
1965] that we believe are inconsistent with South Africa’s obligations and commitments
under the WTO Agreement on Trade Related Aspects of Intellectual Property Rights
(TRIPS).1

The report further stated that:

[s]ince the passage of the offending amendments in December 1997, U.S. Government
agencies have been engaged in a full court press with South African officials from the
Departments of Trade and Industry, Foreign Affairs, and Health, to convince the South
African Government to withdraw or amend the offending provisions of the law, or at
the very least, to ensure that the law is implemented in a manner fully consistent with
South Africa’s TRIPS obligations.2

In this chapter, I explore the sources, tools, and impacts of international

pressures on developing countries with respect to TRIPS implementation. I
argue that there were competing pressures both for and against TRIPS-plus
approaches. On the one hand, a pro-IP team pushed developing countries to
implement TRIPS early, to limit their use of TRIPS flexibilities, and to adopt
laws that went beyond minimum TRIPS requirements. On the other hand,

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 International Pressures on Developing Countries

a team in favour of a more development-oriented approach to IP reforms

fought to encourage developing countries to use TRIPS flexibilities.
Pro-IP economic pressures were a primary explanation for TRIPS-plus imple-
mentation in a subset of targeted developing countries.3 But economic pres-
sures did not account for all of the TRIPS-plus reforms we see, nor for other
aspects of variation. Some tools of economic pressure were more effective than
others, not all countries were targeted equally, and sometimes pressures did
not achieve the desired results.
Alongside economic pressures, the power of ideas also shaped the polit-
ical context for TRIPS implementation and contributed to the variation in
IP reforms. Ideational pressure was used to promote a pro-IP, compliance-
plus political environment, and explains some TRIPS-plus outcomes even
where explicit economic pressures were not forcefully exerted. Conversely,
the power of ideas was also used to challenge compliance-plus pressures, raise
awareness about TRIPS flexibilities and create political space for their use.
Combining both ideational and economic power, capacity-building was both
a decisive tool for securing TRIPS-plus reforms in countries, and an instrument
of resistance for those keen to persuade countries to use and defend the TRIPS
flexibilities.
This chapter begins with a review of the range of economic pressures exer-
cised in the TRIPS implementation game, followed by the ideational pressures,
and concludes with a discussion of the role of capacity-building.

5.1. Economic Pressure

Developed countries used a suite of tools to exert economic pressure for

TRIPS-plus IP reforms, including bilateral trade, IP and investment deals, WTO
accession agreements, trade sanctions, the threat of sanctions and withdrawal
of aid, WTO DSU procedures, and diplomatic intimidation. Industry groups
also used economic threats to pressure developing countries. In the following
sections, I describe each of these pressures. I identify the particular countries
and topics that were targeted, and note the ways in which pressures worked in
tandem.4 Importantly, while many developing countries were indeed cajoled
or coerced through economic pressures to implement TRIPS-plus reforms, not
all countries succumbed. I highlight several examples of resistance (which
are taken up for deeper exploration in Chapter 6) and observe that some
developing countries mounted countervailing efforts to use the economic
power available to them.

5.1.1. Trade Agreements

Bilateral trade agreements were the most potent form of economic pressure
used by developed countries to secure TRIPS-plus IP reforms in many targeted

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The Implementation Game

Table 5.1. Examples of TRIPS-plus provisions in bilateral trade agreements

Shorter transition Countries may be required to forgo privileges related to the transition periods
periods under the WTO. For example, some agreements require countries to
implement certain patent protections more quickly than demanded by
TRIPS
New obligations Countries may be required to extend patents to new subject matter,
eliminate certain exceptions, increase copyright requirements, adopt UPOV
1991-style plant variety protection, provide patents for biotechnological
inventions, adopt restrictions on the grounds for compulsory licensing,
adopt restrictions on parallel trade, adopt obligations to create exclusive
rights to the test data used to register new drugs, extend patent terms
beyond 20 years, and allow patents on second uses of medicines
Highest international Many EU agreements call for implementation of IP in developing countries in
standards line with international standards. Given that new international standards are
continually being established, the meaning of ‘international standards’ is
uncertain
Narrow FTAs often specifically link bilateral trade to a developing countries’
interpretations of willingness to provide IP protection ‘greater than’ what TRIPS requires, or
TRIPS provisions to the extent that the protection they offer is an ‘improvement’ on TRIPS.
In practice, this often means developing countries must adopt
interpretations of TRIPS provisions by the party with which they are making
a bilateral deal (i.e. to match EU or U.S. standards)
Requirements to join Some bilateral agreements require countries to join international IP treaties,
international IP such as WIPO’s Internet Treaties or UPOV 1991
agreements

countries. In doing so, they also helped to shape a ‘compliance-plus’ global

political environment.5 These agreements often included specific TRIPS-plus
obligations to extend patents to new subject matter, eliminate of certain
exceptions, increase copyright requirements, accede to particular interna-
tional conventions,6 and adopt the highest international standards in certain
areas (see Table 5.1).
After TRIPS entered into force, the United States concluded TRIPS-plus free
trade agreements (FTAs) with a range of developing countries, forging deals
with Bahrain, Central America and the Dominican Republic, Chile, Colombia,
Jordan, Morocco, Oman, Panama, Peru, Singapore, and South Korea (Appen-
dix 5 provides dates of all these Agreements).7 With the shift to a Democratic
Party majority in the U.S. Congress in November 2006, the U.S. FTAs with
Colombia and Peru, which had been awaiting ratification, were opened for
renegotiation of some aspects and were renamed Trade Promotion Agreements
(TPAs). In both cases, the revisions included a dilution of some aspects of their
TRIPS-plus components. While the Peru Agreement subsequently entered into
force, the agreement with Colombia and new agreements with Korea and
Panama were awaiting ratification in late 2007.
The United States also signed Trade and Investment Framework Agree-
ments (TIFAs) with Brunei (2001), Ghana (1999), Indonesia (1996), Kuwait
(2004), Liberia (2007), Malaysia (2004), Mauritius (2006), Mozambique (2005),
Nigeria (2000), Pakistan (2003), Qatar (2004), and with the regional groupings

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 International Pressures on Developing Countries

WAEMU (2002), COMESA (2001), and ASEAN (2006).8 While these did not
contain the explicit TRIPS-plus chapters and commitments included in FTAs,
each TIFA included an article in which countries underlined their commit-
ment to promoting IP protection, including in some cases to continue dia-
logue and cooperation with the United States and to consider stronger IP
standards in the future.
The European Union also used bilateral trade agreements to secure not only
faster TRIPS implementation and enforcement, but also TRIPS-plus standards
of IP protection in South Africa, India, a series of Mediterranean countries,
and in Eastern Europe.9 Whereas all the U.S. FTAs included specific chapters
with substantive IP provisions, the European approach to IP varied according
to the trading partner in question.10 Countries in Eastern Europe and some
former Soviet countries were required to adopt standards identical to those
in the European Union.11 The European Union also has several bilateral
agreements related to the protection of geographical indications (e.g. with
Mexico).
In other cases, provisions in EU agreements were more general but still
represented TRIPS-plus commitments. In its Partnership Agreement with the
European Union, for instance, Jordan was required provide patent protection
for chemicals and pharmaceutical products two years earlier than TRIPS.12
In 2000, seventy-six African, Caribbean, and Pacific (ACP) countries signed
the Cotonou Agreement with the European Union whereby they committed
to including IP issues in their subsequent negotiations of bilateral Economic
Partnership Agreements (EPAs).13 While the Cotonou Agreement notes the
need to take into account different levels of development, it has several
TRIPS-plus aspects, including recognition of the need to accede to all relevant
international conventions on IP (TRIPS does not call on countries to accede to
any additional international IP conventions), for patent protection of biotech-
nological inventions, and for legal protection of non-original databases (also
not required by TRIPS). Even though the Cotonou provisions are non-binding,
they nonetheless formed the baseline conditions for the EPA negotiations
that followed.14 The motivation for the EPA negotiations was to address
the WTO inconsistencies of prior EU preferential trading arrangements with
ACP countries. Notably, however, this did not give rise to any requirement
for bilateral negotiations between the EU and ACP countries on IP issues.15
Nonetheless, as the deadlines for EPA negotiations approached in late 2007,
ACP countries faced pressures to include IP provisions. Many countries instead
signed interim agreements.16 As of early 2008, only the Caribbean had signed
a full EPA, which included a comprehensive IP chapter.17 The European Union
also included TRIPS-plus obligations in the Action Plans for countries covered
by its European Neighbourhood Policy (ENP) (which applies to the EU’s imme-
diate neighbours by land or sea).18 Further, in October 2006, the European
Union announced that it would launch, for the first time in five years, a new

153
The Implementation Game

generation of bilateral free trade agreements with key partners that can also
be expected to include TRIPS-plus IP provisions.19
Also in Europe, the four member states of European Free Trade Area (EFTA)
(Iceland, Lichtenstein, Norway, and Switzerland) negotiated trade agreements
with developing countries that include TRIPS-plus requirements, including
obligations to accede to the 1991 UPOV Act and/or the Budapest Convention,
and to provide stronger protection for patents and data protection.20 Canada
and Japan also concluded trade agreements with developing countries that
included TRIPS-plus provisions.21
In general, bilateral trade agreements among developing countries rarely
included explicit IP sections or TRIPS-plus provisions. However, where one
of the countries had already implemented TRIPS-plus standards, these were
sometimes reflected in its trade agreements with other developing countries
(e.g., the 1999 Chile-Mexico FTA).

5.1.2. Bilateral Investment Agreements

Bilateral investment agreements were a further tool that developed countries
used to put pressure on developing countries to improve IP protection.22
Post-TRIPS, the United States added six bilateral investment treaties (BITs)
to those already in force (Appendix 5 lists the years these Agreements came
into force).23 U.S. BITs are designed to ensure that U.S. investors receive
national or most-favoured nation treatment (whichever is better) in these
countries, and to protect them against performance requirements, restrictions
on financial transfers, and arbitrary expropriation. Most individual European
governments also completed BITs with a range of developing countries.24
These investment agreements include IP rights in their definition of assets for
which protection is required and call for such investments in host developing
countries to receive the same level of protection they would in developed
countries.25
BITs do not demand specific legislative reforms or enforcement perfor-
mance. Their impacts are most likely to occur by deterring governments from
taking actions that could weaken their IP protection. There is also potential
for investors could take advantage of bilateral investment treaties to challenge
IP standards by developing countries even if they are TRIPS-consistent. It is
possible, for instance, that investment agreements could deter governments
from granting compulsory licences because the patent owner may be able
to claim an economic loss (even though the patent rights will continue in
force and he will be able to compete with the compulsory licences). It is also
plausible that the revocation of a patent and some exceptions to IP rights
could be challenged as violations of investors’ rights.26 In the future, such
disputes could induce changes of national IP legislation in host countries, but
none has occurred to date. If for example, a U.S. company has a patent on a

154
 International Pressures on Developing Countries

given gene in the United States and would like to sell seeds containing that
gene in a developing country, the importing country may then be called on
to provide the same level of domestic patent protection of the gene to the
company that it enjoys in the United States. This does not necessarily mean
that the developing country must automatically honour the gene patent in
its own territory or that it must rewrite its patent laws. But it does raise
the possibility that the developing country may have to allow for patent
protection on plant genes in its territory if and when the U.S. company seeks
local protection.27
The United States also expanded a web of specific bilateral arrange-
ments on IP with developing countries in Asia (Cambodia, China, Korea,
the Philippines, Sri Lanka, Taiwan), and Latin America and the Caribbean
(Ecuador, Jamaica, Nicaragua, Paraguay, Trinidad and Tobago).28 The focus of
these agreements was usually to promote stronger IP enforcement.

5.1.3. The WTO Accession Process

At the multilateral level, developed countries also took advantage of the
WTO accession process to link trade opportunities to TRIPS implementation
by developing countries and to their general performance in IP protection.
To accede to the WTO, applicant countries are required to conduct a series
of informal bilateral negotiations that determine the terms of their final
accession agreement.29 The transition periods granted to original WTO mem-
bers during the Uruguay Round are not automatic for acceding countries.
The United States was explicit about its IP goals in the accession process:
‘[N]egotiations on the accession of over 30 economies to the WTO offer us
a major opportunity to improve intellectual property standards worldwide
[. . . ]. In each case, we require full implementation of TRIPS obligations as a
condition of entry into the WTO, without transition.’30
The accession arrangements31 of each of the twelve developing countries
that joined the WTO between 1994 and 2007 included TRIPS-plus commit-
ments as a legal condition for WTO membership (see Table 5.2).32 While
transitional arrangements were granted to some countries in a limited number
of areas and for specific periods of time, when Nepal and Cambodia joined
the WTO in 2004 they each agreed to speed their implementation of TRIPS in
advance of the transition periods otherwise available to LDC members of the
WTO. Cambodia, for instance, agreed to meet TRIPS obligations no later than
1 January 2007 and also to provide some interim protection.33 (Cambodia
did, however, incorporate the 2016 TRIPS extension for the protection of
pharmaceutical products into its patent law, making it the first LDC to do
so). When Vietnam joined the WTO in January 2007 it made a similar range
of TRIPS-plus commitments.34 Some of the toughest IP negotiations took
place in the case of China, which had been preceded by over a decade of

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The Implementation Game

Table 5.2. Developing countries with

TRIPS-plus terms of WTO accession

Ecuador 1996
Panama 1997
Mongolia 1997
Jordan 2000
Oman 2000
China 2001
Chinese Taipei (Taiwan) 2002
Nepal 2004
Cambodia 2004
Tonga 2005
Saudi Arabia 2005
Vietnam 2007

bilateral pressures from the United States, the European Union, and Japan
on IP standards and enforcement.35 Across the accession countries, the legal
status and binding nature of TRIPS-plus commitments varies. In some cases,
a range of TRIPS-plus policies and measures is noted in accession documents,
but then not included in the final conclusions, which have a binding nature.
For instance, in the case of Vietnam, the Working Party Report notes a five-
year data exclusivity provision, but no commitment to this policy is included
in the final conclusions. In advance of the accession of Cambodia, the WTO
Deputy Director-General issued a statement that, as an LDC, the terms of
Cambodia’s accession would not ‘preclude access to the benefits under the
Doha Declaration on the TRIPS Agreement and Public Health’.36 Notably,
after negotiating a TRIPS-plus accession package to the WTO, Vanuatu was
the first country to drop its bid for WTO membership, concluding that across
the range of economic sectors impacted by WTO accession the costs would
outweigh the potential benefits.37

5.1.4. The WTO Dispute Settlement Process

The threat and use of economic sanctions were also harnessed to push specific
approaches to TRIPS implementation, while simultaneously reinforcing a pro-
IP political climate for IP reforms. Developed countries used both the WTO’s
Dispute Settlement Understanding (DSU) and national trade laws to threaten
to withdraw, or to actually withhold, trade benefits in other areas of economic
interest to the targeted developing country.
Contrary to expectations when TRIPS was signed, there was no great rush
to litigation when developing country transition periods expired in 2000,
despite the fact that many developing countries acknowledged they had not
yet fully implemented the Agreement.38 The DSU was, nonetheless, used by
developed countries to foster a compliance-plus global political environment.
Indeed, even when not deployed, the United States frequently alluded to the

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 International Pressures on Developing Countries

potential for using the DSU in its Special 301 reports, related press releases,
and in bilateral discussions.39 From 1995 to 2007, a total of twenty-five DSU
cases relating to TRIPS were initiated, the majority of which (eighteen) were
between developed countries. The United States initiated WTO dispute settle-
ment proceedings six times to remedy alleged violations of TRIPS by selected
developing countries and the European Union did so once (see Table 5.3).40

Table 5.3. WTO TRIPS disputes involving developing countries

United States vs. Pakistan – 1996

• Alleged absence of either patent protection for pharmaceutical and agricultural chemical products
or a system to permit the filing of applications for patents on these products; and
• Alleged absence of a system to grant exclusive marketing rights in such products.
United States vs. India – 1996
• Alleged absence of patent protection for pharmaceutical and agricultural chemical products and a
mechanism to adequately preserves novelty and priority in such applications; and
• Alleged failure to establish a system for the grant of exclusive marketing rights.
European Community vs. India – 1996
• Alleged absence of patent protection for pharmaceutical and agricultural chemical products, and
the absence of formal systems that permit the filing of patent applications and provide exclusive
marketing rights for such products.
United States vs. Argentina – 1999
• Alleged absence in Argentina of either patent protection for pharmaceutical products or an effective
system for providing exclusive marketing rights in such products; and
• Alleged failure to ensure that changes in its laws, regulations, and practice during the transition
period provided under TRIPS Article 65.2 do not result in a lesser degree of consistency with the
provisions of the Agreement.
United States vs. Argentina – 2000
• Alleged failure to protect against unfair commercial use of undisclosed test or other data submitted
for market approval of pharmaceutical and agricultural chemical products;
• Alleged denial of certain exclusive rights for patents, such as the protection of products produced by
patented processes and the right of importation;
• Alleged improper exclusion of certain subject matter, including micro-organisms, from patentability
and impermissible limitations on certain transitional patents as well as on opportunity for patentees
to amend pending applications to claim enhanced protection;
• Alleged failure to provide certain safeguards for the granting of compulsory licences;
• Alleged failure to provide prompt and effective provisional measures, such as preliminary
injunctions, for purposes of preventing infringements of patent rights from occurring; and
• Alleged improper limitations on the authority of its judiciary to shift the burden of proof in civil
proceedings involving the infringements of process patent rights.
United States vs. Brazil – 2000
• Alleged inconsistency of measures that establish a ‘local working’ requirement for enjoyment of
exclusive patent rights with Brazil’s obligations under Articles 27 and 28 of the TRIPS Agreement,
and Article III of the GATT 1994.
United States vs. China – 2007
• Concerning measures pertaining to the protection and enforcement of IP rights;
• Alleged inconsistency of available criminal procedures and penalties for commercial scale
counterfeiting and piracy with TRIPS Articles 41.1 & 61;
• Alleged inconsistency of requirement that infringing goods be released into the channels of
commerce with TRIPS Articles 46 & 59; and
• Alleged failure to ensure authors of works whose publication or distribution have not been
authorized (and whose publication or distribution is therefore prohibited) enjoy the minimum
standards of protection granted by the Berne Convention and TRIPS Articles 3.1, 9.1, and 14.

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The Implementation Game

The first three cases against developing countries emerged in 1996. These
concerned alleged failures by Pakistan and India to establish systems to per-
mit the filing of applications for patents for pharmaceutical and agricultural
chemical products, and systems to grant exclusive marketing rights for such
products in line with the 1 January 1996 TRIPS deadline. In its case against
India, the United States complained that India had not conformed with
the transitional provisions of Article 70.8 of TRIPS (which requires that if
a developing country member exercises its right to delay full application of
the Agreement with respect to patents on pharmaceutical and agricultural
chemical products, it must nevertheless make available a means for the
filing of patent applications).41 In addition, the United States claimed that
Article 70.9 of TRIPS, which deals with exclusive marketing rights, required
that a mechanism to provide such rights be in place from the date of the
entry into force of TRIPS.
In the two cases against India, the WTO Appellate Body upheld the
complaints.42 A supplementary impact of the India ruling was that it affirmed
the flexibilities that countries have to implement TRIPS in a manner con-
sistent with their own national legal systems and norms. In the case of
Pakistan, the matter was settled prior to panel proceedings in February 1997
when Pakistan adopted an ordinance on filing and exclusive rights with
respect to pharmaceutical and agricultural chemical products that satisfied
the United States.43 The settlement of this dispute by mutual agreement was
consistent with GATT and WTO history whereby many disputes are ‘settled by
negotiation or dropped before the adjudication process has run its course’.44
Alongside efforts to achieve fuller compliance through the DSU, most com-
plainants ‘engage simultaneously in settlement bargaining with the defending
states’.45
In 1999, as the deadlines for TRIPS implementation approached, the United
States launched a case against Argentina, followed by a second case in 2000.
In both cases, the United States alleged a series of violations related to the
scope of patent protection (particularly for pharmaceuticals). Also in 2000,
the United States launched a case against Brazil, this time complaining against
measures to establish ‘local working’ requirements for patents. All three of
these cases were settled among the parties and so no rulings on the cases
emerged.
Following these cases, there was no further use of the DSU against devel-
oping countries on TRIPS matters for almost seven years until 2007 when the
United States launched a TRIPS-related case against China (the proceedings
had not concluded at the time of publishing). Meanwhile, there were over
ten cases among developed countries on TRIPS-related issues, at least one of
which had significant implications for all WTO members, namely a Dispute
Settlement Body (DSB) ruling in 2000 on a dispute between the European
Commission and Canada, which clarified the scope of allowable patentable

158
 International Pressures on Developing Countries

exceptions under TRIPS. (Specifically, the agreement clarified the possibility

for ‘Bolar exceptions’ to patentability.)46
Importantly, the DSU process did not always produce the impacts that
developed countries hoped to achieve in launching a dispute. The Indian
government implemented reforms in response to the DSB’s findings, but
lessened their practical impact through administrative delays.47 In the case of
Argentina, the outcome of the settlement was that Argentina retains several
provisions in its law despite continuing U.S. dissatisfaction.48 In the case
of Brazil, the United States accepted an uneasy settlement in which Brazil
retains the local working provision in its patent law but agreed to provide
advance notice to, and hold consultations with, the United States should it
deem it necessary to grant a compulsory licence for failure to work a patent
locally.49

5.1.5. Special 301 Threats and Related Sanctions

The United States’ deployment of it Special 301 powers was a central compo-
nent of the high-pressure environment for stronger IP protection. Contrary
to the hopes of developing countries for an end to unilateral pressures, the
United States in fact stepped up the strength and use of its Special 301
powers post-1995. In its Uruguay Round Agreements Act, for example, the
U.S. Congress stated that a country could be found to deny adequate and
effective IP protection even if it is in formal compliance with its obligations
under the TRIPS Agreement. The Act further stipulated that if a country
does not respond to the Special 301 surveillance and reporting process, then
‘trade sanctions may be imposed under Special Resolution 301 in the form
of increased tariff duties or import restrictions’.50 Between 1995 and 2007,
USTR targeted over forty developing countries its annual Special 301 reports
(Appendix 7 summarizes the Special 301 rankings of developing countries
from 1995 to 2007).51
The United States used its Special 301 powers to bring selected countries
to the bilateral negotiating table by making stronger IP standards the price
for new market access agreements. In advance of bilateral negotiations, many
developing countries were listed as Priority Watch List countries. Once nego-
tiations were underway, many countries were downgraded to the Watch List
or removed altogether. Since 1996, for example, the only years that Chile
did not appear on the USTR Watch List were the three years in which FTA
negotiations were underway. Jordan was also removed as a Watch List coun-
try once it had agreed to TRIPS-plus standards in its FTA with the United
States.
Under the Clinton Administration, the U.S. Congress broadened the range
of countries covered by its Special 301 surveillance activities and strength-
ened Special 301 by introducing Section 306 monitoring (to address specific

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problems in countries with which the United States has bilateral agreements),
out-of-cycle 301 reviews (for countries deemed to require further monitoring
in addition to the annual review cycle), and IP action plans.52 USTR also used
Special 301 announcements to supplement diplomatic pressures on countries
with respect to their positions in global IP debates. In April 1999, for instance,
the United States placed South Africa on its Special 301 Review Watch List and
scheduled an ‘out-of-cycle’ review for South Africa to conclude in September
1999. Among the U.S. complaints was that ‘South African representatives have
led a faction of nations in the World Health Organization (WHO) in calling
for a reduction in the level of protection provided for pharmaceuticals in
TRIPS.’53 When the deadline for TRIPS implementation by developing coun-
tries expired in 2000, the focus of the 301 reports shifted to the implementa-
tion of TRIPS-plus standards and to enforcement. USTR also used Special 301
announcements to publicize actions it intended to take in the WTO against
countries on IP matters. (Also see Section 5.3.4.)
In selected cases, the United States put its Special 301 threats into action.
While the United States never formally invoked its Special 301 provisions to
impose trade sanctions to punish alleged lack of performance on IP reforms
and enforcement, it did withdraw its unilateral trade preferences in several
instances. The United States imposed trade sanctions against Argentina in
2002, Honduras in 2003, and the Ukraine in 2004 by withdrawing uni-
lateral trade benefits granted under its GSP scheme.54 It also threatened
on repeated occasions to withdraw GSP benefits in the case of Brazil and
Pakistan.55
In a study examining the period from the late 1980s to 1998, Susan Sell con-
cluded that Special 301 was an effective tool for getting developing countries
to change their position in multilateral negotiations and also to change some
domestic laws and policies, but not to improve the actual level of IP protection
or enforcement.56 A decade later, despite persistent Special 301 pressure, there
are still large gaps between the formal IP standards and the actual degree of
protection available. Further, the evidence suggests that while the Special 301
process was certainly an effective tool for communicating U.S. preferences (see
Section 5.3.4.), the actual impact of trade threats on IP laws and enforcement
varied (see Section 5.2.).
Alongside the Special 301 process, the U.S. International Trade Commission
(USITC) also completed over 500 investigations under Section 337 of the
U.S. Trade Act regarding claims of IP infringement, by imported goods most
often in the semi-conductor industry.57 The primary remedy available in
Section 337 investigations was an exclusion order that directs U.S. Customs
to stop infringing imports from entering the United States, but over forty per
cent of cases were settled in advance.58 Since 1995, the USITC initiated investi-
gations against over twenty developing countries,59 including China, Taiwan,

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Korea and Malaysia. From 2002 to 2007, there were over 45 investigations
against China.

5.1.6. Diplomatic Threats

Developed countries also used diplomatic channels to dissuade developing
countries from using TRIPS flexibilities, promote improved enforcement and
TRIPS-plus IP reforms, and influence global IP debates. The United States,
for instance, wrote to heads of government, trade ministers, and foreign
affairs ministers, to raise concerns on TRIPS matters, international negotia-
tions, and national IP reforms. One example was a letter from the former
head of U.S.–Africa relations at the U.S. State Department to African trade
ministers emphasizing the importance of cooperation with U.S. priorities at
the TRIPS Council in respect of public health.60 In several cases, national
trade ministers and ambassadors received informal and formal complaints
from the United States about outspoken or ‘disruptive’ diplomats. The United
States complained to ambassadors and to national capitals about the positions
taken by delegates in Geneva, making its case through phone calls, letters to
national officials in capitals, informal communications, and also démarches
(high-level intergovernmental communications hand-delivered directly from
one top official to another). In some cases, delegates were later recalled or reas-
signed.61 This strategy was particularly used as a tool for breaking consensus
among regional groups. In the context of the WHO negotiations related to IP,
the United States used démarches to warn key Latin American countries that
support for certain health-oriented provisions in a text under negotiations
might violate the terms of bilateral trade agreements signed with the United
States. After being contacted, some health ministries were confronted with a
similar message from trade, IP, and foreign policy officials within their own
countries.62 In each of these cases, economic power was present in the form
of explicit or implied threats to economic cooperation, trade benefits, devel-
opment assistance or close political relations.
Within developing countries, the diplomatic and trade representatives of
developed countries stationed in local embassies actively lobbied government
officials, liaised with their respective companies operating in that country, and
monitored the evolution of IP laws and their performance on enforcement. In
addition, countries such as Japan, France, and the United States posted legal
and technical advisors from their IP offices in key developing country capitals.
Government officials in Thailand, Pakistan, and Uganda each received letters
and visits from U.S. technical and legal advisors, USPTO officials, and U.S.
trade officials regarding TRIPS implementation.63
The case of Pakistan shows that the mere threat of U.S. sanctions sometimes
provoked decisive action on the part of governments, particularly in light

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of broader political considerations. From 2001, the United States demanded

that Pakistan make concerted efforts to address allegedly ‘rampant’ copyright
piracy and, in 2005, threatened that Pakistan must take action or risk the
suspension of its GSP benefits and other development assistance. In 2006,
the United States withdrew the threat, citing Pakistan’s concerted efforts to
address piracy, including through the destruction of pirated optical discs,
plant closures, arrests, and confiscations of imported discs.64 Pakistan’s deci-
sion to act on the enforcement issue was in part driven by the government’s
reluctance to place in jeopardy its ongoing negotiations with the United States
for a bilateral investment treaty and also its hopes for bilateral free trade talks.
But there was also a broader context; since the events of 11 September 2001,
Pakistan had been under intense political pressure from the United States
to prove itself a committed ally in the war against terror and a cooperative
economic partner. In this context, the United States had set forth a suite
of economic and political reforms that Pakistan would need to undertake in
order to provide such proof.
The United States also used its economic weight as a major donor to IOs and
the UN system to push for disciplinary measures against staff who expressed
views against TRIPS-plus standards, particularly at UNCTAD, UNDP, WHO,
and the World Bank. In a letter to the Bangkok Post, the WHO’s Bangkok
representative stated in 2006 that the ‘lives of hundreds of thousands of Thai
citizens’ would be put at risk if Thai negotiators accepted United States calls for
TRIPS-plus national standards of IP protection’. After the article appeared, the
head of the U.S. Permanent Representative to the United Nations in Geneva
called on the WHO Director General and registered verbally and in writing
Washington’s displeasure with the letter. Soon thereafter, the representative
was ‘abruptly transferred sideways to a job in India’.65 In numerous cases, the
United States issued attacks on key reports from IOs, sometimes insisting on
extensive editing, the retraction of the report, or the removal of the relevant
IO’s logo.66 In 1998, the publication of a WHO report on TRIPS and public
health was forestalled due to concerns from the U.S. government and phar-
maceutical industry. The publication, nicknamed ‘the red book’, was written
by two WHO staff, Germán Velásquez and Pascale Boulet, at the request of
the World Health Assembly which had mandated the WHO to report on the
impact of the WTO’s work on national drugs policies and essential drugs.
The U.S. government prepared a seventeen-page paper ‘pointing out the
inaccuracies and false implications with which the document is riddled’.67
Separately, a letter from the Pharmaceutical Research and Manufacturers of
America (PhRMA), dated 30 June 1998, stated that the report was ‘a deeply
flawed document that misleads its readers and creates a false impression
of how the WTO TRIPS agreement will affect pharmaceuticals’. The WHO’s
Director General, Gro Harlem Brundtland, established an independent expert
committee and in January 1999 a revised version was published, referred

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to as the ‘blue book’. Subsequently, with input from independent external

reviewers and the WTO, the book was revised again.
In 2005, when World Bank researchers published an analytical note exam-
ining the implications on development of TRIPS-plus provisions in U.S. FTAs,
the United States sent a delegation to the World Bank to insist the piece be
retracted and revised. Between 2006 and 2007, the United States also called
for the WHO’s logo to be removed from two WHO papers, one published
jointly with the South Centre on the use of TRIPS flexibilities and one pub-
lished jointly with ICTSD regarding guidelines for the grant of pharmaceutical
patents.68 The U.S. Mission to the UN in Geneva also issued critical com-
ments on the analysis of IP issues in UNCTAD’s 2006 Trade and Development
Report.69

5.1.7. Industry Pressure and Threats

Large multinational companies also issued economic and legal threats to
developing countries with the goal of influencing global IP debates and
national IP reforms. In addition to working to ensure their particular IP rights
were protected, companies in the pharmaceutical and agrochemical sector,
such as Merck and Monsanto, directly lobbied countries such as Pakistan and
the Philippines regarding TRIPS implementation. In South Africa, for instance,
multinational pharmaceutical companies created the Pharmaceutical Manu-
facturers Association of South Africa (PMA) which became actively involved
in TRIPS implementation debates (see Chapter 6).
Multinational companies also used lawsuits to challenge national laws that
made use of TRIPS flexibilities. In 1998, for example, thirty-nine pharma-
ceutical companies launched a case against the South African Medicines Act
even though South Africa still had two years within which to meet its TRIPS
obligations.70 While the South African case was ultimately withdrawn in the
face of a domestic and international backlash, the companies involved did
receive assurances from South Africa that their interests would be considered
in the course of the implementation of laws (see Chapter 6).
Despite the significant damage to their public image, pharmaceutical com-
panies did not relent. In 2006, pharmaceutical companies launched legal
challenges in national courts in the Philippines (Pfizer) and in India (Novar-
tis). Pfizer, the world’s largest pharmaceutical company, sued the Philippine
government for allegedly illegally importing and registering a product that
was still under patent.71 In May 2006, Novartis brought several cases to the
Indian High Court in the state of Chennai. One concerned the refusal by
India’s patent office of its application for a patent for its drug Glivec. In
another case, Pfizer challenged the constitutionality of the Indian Patent Law
and alleged that India was in breach of TRIPS.72 In August 2007, the High
Court in Chennai dismissed the petition, deferring to the WTO to resolve

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the issue of TRIPS consistency. Following the decision, Switzerland (where

Novartis is headquartered) noted that it would not challenge the relevant
provisions of the Indian Patent Act before the WTO. At the time of publishing,
no Swiss complaint against India related to the Novartis case has been filed
with the WTO.73
To influence IP reforms, multinational companies also sometimes issued
threats to withdraw or withhold foreign investment. In the Philippines, for
example, Microsoft and the Business Software Alliance (BSA) (a trade associa-
tion of international software companies) lobbied the Philippines government
to amend its legal rules of procedure to make it easier for law enforcement
agents to obtain search warrants to conduct raids in cases of alleged software
piracy. In so doing, business lobbyists emphasized that such reforms would
be vital to maintaining foreign investment. Given the Philippines’ hopes of
expanding investment in its economy for data processing and related business
services, the government succumbed to this request.74
The pharmaceutical industry also worked to diffuse the case for compul-
sory licensing by providing discounted HIV/AIDS drugs to African countries,
usually on a drug-by-drug, country-by-country basis. While critics argued
this worked against a more comprehensive approach, many countries were
willing recipients of the discounted or free drugs. The pharmaceutical industry
also applied pressure directly to generic drug companies. In August 2000,
Glaxo Wellcome worked to prevent the import of AIDS drugs into Ghana by
writing to the producer CIPLA in India to discourage sale of the drugs, and
succeeded.75 In November that year, Glaxo again wrote to CIPLA and suc-
ceeded in discouraging it from exporting the same drug, Duovir, to Uganda.76
As noted above, industry groups also joined with developed countries in
putting pressure on IOs. Their success in this endeavour was linked to the
perception on the part of IOs, such as the WHO and the World Bank, that they
needed to maintain working relationships with the pharmaceutical indus-
try in order to engage them in a range of development and public health
activities.77
The economic power of industry groups was also felt through the resources
they devoted to establishing subsidiaries and networks within developing
countries to influence national IP reforms. In some cases, industry groups also
provided staff resources, surveillance, IT support, and financing to developing
countries to enable them to better enforce their IP rights.

5.2. Resistance and Retaliation

While there was generally little prospect that developing countries or sympa-
thetic NGOs could use economic power to systematically counter the pres-
sures from more powerful developed country actors, there were a number

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of important instances where countries were able to resist or retaliate in the

implementation game. First of all, the combined economic weight and market
size of Brazil, India, and South Africa enabled them to shift the dynamics in
negotiations on TRIPS and public health. In the FTAA negotiations, where
the United States proposed TRIPS-‘plus’ provisions, Brazil successfully resisted
what it considered an unreasonable deal. Second, even though many coun-
tries were subject to coercive bilateral diplomacy, credible threats, or actual
trade sanctions, these pressures were only sometimes effective at bringing
about the desired reforms.78 In two of the three cases where the United States
used trade sanctions (in the form of the removal of GSP preferences), the
targeted countries subsequently made the specific changes (the Ukraine and
Honduras) and GSP benefits were reinstated. U.S. sanctions against Argentina
did not yield, however, definitive changes. Argentina’s offending IP provisions
enjoyed strong support in its legislature and from its generic pharmaceutical
industry, which resulted in a willingness to ‘bear the cost’ of the sanctions
imposed.
Further, although the Special 301 process served to reinforce a pro-IP climate
and to communicate the preferences of the world’s most powerful trading
nation, the evidence presents an important challenge to assumptions about
its effectiveness in changing developing country behaviour on the ground.79
Discerning the impact of U.S. Special 301 lists and threats on the specific
decisions countries took is a complicated task. Many listed countries listed
were also signatories to TRIPS-plus FTAs with the United States, generating a
challenge of disentangling the effect of each. Moreover, in cases where the
purpose of Special 301 pressure was to promote more effective IP admin-
istration and stronger enforcement, the absence of clear, quantifiable indi-
cators makes it difficult to accurately assess changes in performance over
time.
A review of the evidence does nonetheless show that while a broad range
of developing countries were subject to similarly intense levels of Special 301
scrutiny (measured by the frequency, consistency, and level of Special 301
listings), the standards of protection across them varied widely. Appendix 7
details the 301 status of developing country WTO members targetted from
1995 to 2007, clustering countries according to their overall use of TRIPS flex-
ibilities (using the categories set out in Table 3.11 in Chapter 3). It shows that a
range of countries made use of TRIPS flexibilities despite repeated Special 301
listings by the United States. India, for instance, was on the Priority Watch
List every year from 1995 to 2007. Argentina and Brazil were also consistently
on the Watch List but did not succumb to U.S. pressure in key areas.
Interviews with officials from Brazil, India, Peru, Argentina, and the
Philippines, revealed a common view that while the strength and frequency
of Special 301 listings by the United States were often seen as notable
communications of U.S. interests, they were not necessarily a prompt for

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action unless accompanied by specific time-bound demands and threats with

real economic implications. The effectiveness of 301 pressures relied on the
perceived credibility of the threat to impose sanctions or withdraw trade
concessions.80 (In principle, WTO members were precluded from unilateral
action on TRIPS matters without reference to WTO dispute settlement, but
the possibility of GSP-related threats also existed.81 ) Countries also carefully
considered the likely damage. This depended on the sectors the United States
was likely to target and the economic importance of exports from those
sectors to the national economy. Further, in some cases, countries correctly
calculated that relatively small gestures toward improved enforcement or
the expression of lots of ‘political will’ to improve might pacify the United
States.
The Brazilian experience highlights that even the most strenuous U.S.
threats did not necessarily prove effective in particular circumstances. On
8 January 2001, twelve days before President Clinton left office, USTR filed
a complaint over the Brazil compulsory licensing law with the WTO. USTR
officials called this the ‘Merck’ case. At issue was Article 68 of Brazil’s patent
law, which allows compulsory licences to be issued in situations where the
patent holder does not locally manufacture the patented product (known as a
‘local working’ provision). In June, in the face of enormous negative publicity
from NGOs, the Brazilian government, and the media, the Bush administra-
tion withdrew the complaint. However, under the agreement between the
two countries, Brazil agreed that it would provide the United States with
advance notice if a licence were issued under Article 68 of the Brazil Patent
Act and that disputes would be discussed through a bilateral ‘Consultative
Mechanism’. In 2004, the United States threatened to withdraw Brazil’s
GSP benefits on the grounds of inadequate IP protection. While Brazilian
officials expressed deep resentment of these threats, the government calcu-
lated that the cost to U.S. industries of sanctions against Brazilian exports
would dissuade their actual imposition. They noted that many U.S. produc-
ers and exporters were too reliant on imports from Brazil to make this a
cost-effective option for the United States, and that many of the Brazilian
exporters to the United States were in fact U.S. subsidiaries.82 Compared to
many developing countries, Brazil relied less on access to U.S. markets as a
proportion of its GDP. In addition, the government’s ability to push through
pro-IP reforms was constrained by opposition from domestic public health
advocates and generic drug industries. Further, resistance to U.S. pressures
on IP issues was a key component of Brazil’s foreign policy, particularly its
goal of bolstering its standing as a key international political and economic
power.
Several developing countries also exercised economic power amidst debates
on TRIPS implementation by opting to use compulsory licences to enable the
purchase of generic drugs, thus cutting into the markets of major developed

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 International Pressures on Developing Countries

country pharmaceutical companies. In addition, in South Africa, civil soci-

ety groups harnessed national competition laws to challenge the economic
power of pharmaceutical companies.83 Further, in many developing countries,
the fact of weak enforcement of IP laws was perhaps the strongest form of
economic retaliation against pressures for stronger IP standards (discussed in
Chapter 6).
Finally, several developing countries harnessed TRIPS as an economic tool
for cross-retaliation in cases of to non-compliance by developed countries
with decisions of the WTO’s DSB.84 In the case of Antigua and Barbuda,
the DSB authorized it to suspend the application to the United States of
concessions and related obligations under TRIPS and the General Agreement
on Trade in Services (GATS) to the annual amount of US$3.4 billion (i.e. an
amount equivalent to that which it lost as a result of the U.S. breach of its
WTO obligations in that case).85 The United States objected to the decision
and called for arbitration. In the EU Bananas case, Ecuador was also permitted
to retaliate by suspending obligations under TRIPS (but has not yet chosen
to do so). In its case on U.S. cotton subsidies, Brazil also indicated its interest
in cross-retaliating for non-compliance by suspending IP protection for U.S.
rights holders, but the matter remains under discussion.

5.3. Ideational Power

Ideational power is also vital to explaining variation in the actions developing

countries took to implement TRIPS.86 Broadly speaking, ideational power was
in play where actors sought to influence, alter, or build: (a) expertise, know-
how, and institutional capabilities on IP matters, and (b) understandings,
beliefs, and discourse.87 Ideational power, like economic power, was a critical
component of the effort to promote a compliance-plus and pro-IP agenda at
the international level. It was also the primary vehicle for the countervailing
efforts of critics challenge that agenda. Moreover, ideational power impacted
the variation in how developing countries implemented TRIPS by influencing
how governments understood their TRIPS obligations and options; support-
ing particular kinds of expertise; persuading officials of the pros or cons of
stronger IP protection; and shaping developing country perceptions of the
political climate and their room for manoeuvre within it.
The specific mechanisms used to exert ideational power included the
creation of knowledge communities, framing, monitoring, and capacity-
building. Compared to economic power, ideational power was available to
a wider array of actors including governments, NGOs, industry, academics,
IOs, and the media. All these actors had the potential to draw on technical
expertise, access and share information, influence the media, and harness
public opinion to exert ideational power.88

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5.3.1. Knowledge Communities

Each of the teams active in global IP debates made conscious efforts to build
like-minded ‘epistemic’89 or ‘knowledge communities’ of activists, experts,
journalists, academics, and public officials. Each drew on distinct sets of
ideas and assumptions to advance their respective priorities with respect to
IP policy.90 The scale of material and symbolic resources at the disposal of
each team in their efforts to influence the intellectual climate and terms of
debate varied significantly. In general, those in favour of stronger IP protection
had greater access to financial resources, government agencies and officials,
and the international media than those in favour of a more balanced IP
system. Further, the pro-IP team had an advantage because it dominated the
IP profession; most of the technical and legal experts on IP across the world
belonged to this team.
A number of scholars have already highlighted the historical influence of
the ‘patent community’ on IP decision-making.91 While patent attorneys by
no means match the economic weight of their industry clients, they are
powerful by virtue of the expertise that they lend to industry lobbyists and
the fact that, as a collective, they have technical knowledge that few others
can match. In the area of patents, Peter Drahos argues that a community of
‘patent attorneys and lawyers, patent administrators, and other specialists’
plays a key part in the ‘exploitation, administration and enforcement of the
patent system’.92 He argues that these actors form a community ‘by virtue
of their technical expertise and general pro-patent values’. He further notes
that ‘regular users of the patent system (like the pharmaceutical companies)
might also be said to be part of this community’.93 The significance of the
patent community is further emphasized by Graham Dutfield who observes
that its members ‘speak the same language and share basic assumptions about
patent law’.94 Dutfield argues that ‘[w]ith the enormous economic power of
some members arrayed alongside the “objective” expertise of others, it would
hardly be surprising if one particular perspective on patent law became the
conventional wisdom within regulatory agencies and processes, government
trade and industry departments, and throughout society’.95
Just as NGOs worked to galvanize support from a scholars and sympathetic
UN agencies, the pro-IP community found its own allies in academia,96 think
tanks, and international organizations, such as WIPO and the Organization
for Economic Cooperation and Development (OECD). The pro-IP team also
worked to identify leaders, lawyers, scholars, and organizations, such as local
Chambers of Commerce, within developing countries to carry their message,
sometimes funding their research or employment. In 2007, for instance, con-
cerns about the inappropriate influence of pro-IP corporations on researchers
erupted upon the release of the Mashelkar Report on Patent Law Issues,97
produced by an expert group established by the Indian government in the

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wake of controversy that emerged following the introduction in 2005 of a

Patents (Amendment) Bill.98

5.3.2. Framing
In the course of the global IP debates, framing was deployed as a strategic
tool to influence international discourse on IP issues and the outcomes of
international negotiations with the objective of affecting the interpretation
and implementation of TRIPS.
Frames were a used by a range of stakeholders to influence, distort, and alter
communications to their advantage with the hope of setting and dominating
the terms of debate and determining what stakeholders should be arguing
about. Framing was used to fix meanings, build shared understandings, and
influence how challenges were defined and represented. This in turn served to
legitimate and motivate particular kinds of collective action and impact what
kinds of solutions were adopted in particular policy debates.99
Both those for and against stronger IP protection used framing to promote
distinctive perspectives on the global IP system, TRIPS, and its implemen-
tation by developing countries. Throughout global IP debates, stakeholders
competitively used framing to create a political context conducive to their
preferred approaches to global IP regulation and TRIPS implementation. Fram-
ing was used to influence the terms and outcomes of international debates,
advance particular understandings and interpretations of TRIPS obligations,
influence the perspectives of developing country policymakers, and promote
distinct views on the benefits and costs of different IP reforms. Framing
was also deployed to shift and dominate perceptions in developing country
governments about what constitutes ‘appropriate’ and ‘possible’ behaviour in
the global economy.
The energy that the various global actors devoted to framing is evidence
of how seriously they took framing as a political tool. Devices used to frame
and reframe international IP debates included research, conferences, train-
ing, monitoring, high-profile public campaigns, appeals and outreach to the
international media, advocacy, lobbying, and the development of professional
‘communities’.
Each side of the global IP debate used framing to influence perceptions
about the relationship between IP and various social and economic indi-
cators and to create positive associations between concepts that worked to
their advantage. On the one hand, the pro-IP community used framing to
advance positive links between stronger IP protection and innovation, eco-
nomic development, modernization, good governance, integration into the
global economy, and political security.
IP-holding corporations and developed country governments worked to
rationalize stronger IP protection in terms of putatively universal human

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wants (innovation and creativity), needs (for private property rights to

knowledge), or understandings of the good (what is good for technology-
producing corporations is presented as also for the good of all). To dominate
policy debate, for example, they commissioned and published research from
scholars from leading universities to rebut those from NGOs asserting the
negative implications of IP protection for access to essential medicines.100 In
these efforts, pro-IP advocates were assisted by the prevailing discourse on IP
in which issues were already framed primarily in technical and legal terms.
The ‘patent community’, for example, had long advanced the notion that
patent reform is a technical matter best left to experts (i.e. national patent
offices, national associations of patent lawyers, the members of AIPPI, and
WIPO staff), rather than a policy issue that warrants broader public discussion.
The WIPO Secretariat was also active in promoting a pro-IP discourse, not
only through research, public awareness raising, and media outreach, but also
through its ability to influence the agenda and content of intergovernmental
meetings on IP. In its work to educate governments and stakeholders in
developing countries on the nature and purpose of TRIPS obligations, the
WIPO Secretariat emphasized the importance of stronger IP protection and
an ‘IP culture’ for development. In WIPO publications, the term IP was fre-
quently associated with modernization, innovation, increases in foreign direct
investment, and technology transfer.101 A leading example was a flagship
publication by WIPO’s Director-General entitled Intellectual Property – A Power
Tool for Economic Growth. Published in 2003 for the attention of policymakers
in businesses and governments worldwide, Idris asserted in the preface that
the paper was written ‘from a definite perspective – that IP is good’.102
In addition to the ‘soft power’ of persuasion,103 the socialization of
government officials served to broaden the community of supporters
for stronger IP protection. Mechanisms for socialization included repeated
attendance at international meetings, training events, and social engagements
with professional peer groups.104 In some cases, officials were in fact not
convinced of the benefits of a particular position or policy, but they did
understand that their room for manoeuvre was limited. Beyond the effort
to justify the push for IP protection in terms of its own benefits, the pro-IP
community had made stronger IP protection part of a broader economic and
political bargain. Strengthened IP protection was presented as an integral
part of the package of ‘sound economic policies’ that constituted ‘appropriate
behaviour’ in the global economy. In policy statements, press releases, and
research by industry and developed country officials, developing country
officials were frequently reminded that governments that were ‘good pupils’
and promoters of such sound economic policies would garner the greatest
rewards in terms of foreign aid, foreign investment, and trade deals.105 Put in
these terms, it was not surprising that many developing countries perceived
and undertook swift, TRIPS-plus IP reforms as part of their efforts to brand

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themselves on the international stage as forward-looking countries actively

committed to good governance, economic modernization, and reform of
their legal systems and institutions.106
Several statements from trade and IP officials demonstrate the diffusion of
pro-IP ideas through framing. Responding to questions about the TRIPS-plus
approach to TRIPS implementation taken in the francophone African region,
the head of Burkina Faso’s IP office stated that countries ‘must make the
necessary arrangements and adjustments, because globalisation is here. We
cannot afford to marginalize ourselves’.107 Similarly, a senior official in Benin’s
IP office argued that ‘Africa must create “trust” that it can protect intellectual
property rights’.108 At a meeting sponsored by the International Chamber of
Commerce, the Malaysian Minister of International Trade and Industry argued
that a clear commitment to intellectual property protection would help in
bilateral trade negotiations with the United States.109 Noting that ‘IP protec-
tion is something that Malaysia subscribed too’, she argued that ‘[i]f we can
give adequate IP protection to the American investors, they will come here’.110
The observation that stronger IP protection became part of a broader polit-
ical and economic bargain over the past decade helps to make sense of the
tendency among some of the smallest and poorest states to sign onto new
multilateral IP agreements with apparently little assessment of their impli-
cations or capacity to implement them. In exchange for their ratification of
new international IP agreements, governments often received the promise of
technical assistance and capacity-building to implement them. (There were
also other enticements at the individual level, including training, consultancy,
travel, and career opportunities).
Anti-piracy campaigns were also part of the pro-IP framing effort. The
software and entertainment industries launched high-profile campaigns to
promote an ‘IP culture’ among the public, to influence perceptions of appro-
priate behaviour with respect to IP protection, and to pressure governments
to do more to enforce IP laws.111 Each year, the leading industry associations
published indicators and rankings of piracy rates around the world.112 The
global campaign to reduce piracy extended across the developing world, even
in those countries where the actual costs to industry were relatively low.
Indeed in 2005, only four developing countries – China, Brazil, India, and
Mexico – were among the top twenty-two countries for software industry
losses to piracy.113 In cinemas, on TV, on billboards, in magazines, and in
the international media, industry groups and government alike targeted con-
sumers as potential allies in a global fight against ‘theft’ of IP.
After 2000, with TRIPS-related legislative reforms completed or underway
in most developing countries, the issue of IP enforcement emerged more
forcefully as a developed country government priority in international IP
debates. As noted in Chapter 4, developed countries launched a series of
anti-piracy initiatives. By 2007 and 2008, IP and enforcement matters had

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soared to be among of the top priorities discussed in the annual G-8

summit.114 The emerging discourse linked trade in IP-infringing goods to
failures to properly police the flow of a whole range of contraband goods,
including drugs and arms. Indeed, in the post-9/11 world, countries that
resisted U.S. preferences for IP protection were at risk of being characterized as
fragile, weak, or hostile states that disrespected the rule of law and otherwise
threatened U.S. commercial interests.
Pro-IP actors also worked to place IP protection within a broader frame
of political security. Developed countries clearly signalled that TRIPS-plus
FTAs were sometimes less economic agreements than foreign policy tools
for acknowledging and rewarding political support.115 A leading expert on
U.S. trade policy observes that ‘[An FTA] is not necessarily an agreement
in which all parties benefit from trade expansion, but rather a favour to
be bestowed based on support of U.S. foreign policy’.116 In 2004, Robert
Zoellick, the former USTR affirmed that: ‘[N]egotiating a free trade agreement
with the U.S. is not something one has a right to – it’s a privilege’.117 The
premium the Presidents of both Colombia and Peru placed on their political
relationships with the United States led each of them to declare that an FTA –
on any terms – was their top foreign policy priority. For many countries,
TRIPS-plus provisions were a small price for an agreement, so characterized in
foreign policy terms. In countries such as Morocco and Jordan, for instance,
TRIPS-plus FTAs were instrumental to garnering political recognition from
the United States as ‘friendly’ Arab states.118 U.S. FTAs were also tools for
penetrating regional alliances, to isolate particular countries (such as Brazil
in the context of the FTAA negotiations), or to get a foothold in a particular
region. When the United States signed an FTA with Bahrain, the Arab Gulf
Cooperation Council (GCC) urged Bahrain to pull out of the Agreement
arguing that it would compromise future cooperation and development of
the GCC. There were specific concerns that it would set a precedent that any
Arab state signing a bilateral agreement with a developed country would be
forced to meet or exceed in order to achieve new trade deals or attract foreign
direct investment.119

5.3.3. Counter-framing
To respond to the various strands of the pro-IP discourse, NGOs, IOs, and
scholars in favour of the TRIPS flexibilities worked to reframe IP debates to
better facilitate discussion of their public interest priorities. Conscious of the
power that words such as piracy and concepts such as intellectual property
rights had acquired in global debates, developing countries, academics, and
NGOs developed alternative discourses and frames, and worked to embed
them in as many international processes, declarations, and international
media commentaries as possible.

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Some critics argued that the very term ‘intellectual property’ was problem-
atic. For them, the conflation of a range of different types of rights (trade-
marks, patents, copyrights, etc.) under the single IP umbrella undermines the
potential for nuanced public policy debate; it bundles together rights with
different histories, rationales, and public implications.120 In lieu of a careful
discussion of the particular pros and cons of specific aspects of copyright,
patent, or trademark protection, the conflation of categories facilitates the
reduction of debate to one of name-calling that divides the world into those
who are either for or against IP protection. They also contended that the
language of IP promotes false analogies and associations. The discourse of
IP ‘rights’, some argued, should be replaced by references to monopoly ‘privi-
leges’ granted by states to advance particular goals.121
Those opposed to the push for ever-stronger IP protection sought different
ways of characterizing their agenda, using terms such as, pro-competitive,
pro-development, or balanced.122 In so doing, they emphasized that stronger
IP protection is at its core a deeply anti-competitive and protectionist policy
instrument.123 Some legal scholars emphasized the importance of the ‘public
domain’ to innovation and creativity.124 They insisted that the IP system must
be fashioned to ensure affordable access to research inputs and to maintain
the scope for sharing of key ideas, creative works, and technologies.125 NGOs
and scholars also worked to advance the idea that information, R&D, and
vital technologies should properly be considered ‘global public goods’.126
In addition, proponents of a more balanced approach to global IP policy
lambasted the ‘faith-based’ momentum toward ever-higher IP standards.127
NGOs and scholars also engaged in lengthy and high-profile debates with
industry-sponsored experts on specific TRIPS-related issues, such as whether
patents in Africa make a difference to access to medicines.128 The effort by
NGOs to shift international media coverage on compulsory licensing away
from a frame dominated by the suggestion that IP is critical to innovation
to a human rights frame, was critical to their success in prompting gov-
ernments to address the relationship between TRIPS and public health.129
NGOs also sought to alter the discourse of IP by distinguishing IP rights from
fundamental human rights such as the right to health. NGOs commissioned
research that drew attention to the failure of the current IP system to generate
innovation for neglected diseases and promoted alternatives such as a Medical
R&D Treaty and a Prize Fund for medical research. As a host of initiatives
emerged, ranging from proposals for new public-private partnerships on IP
to drug donation projects, NGOs were cautious that these would undermine
their quest for fairer IP rules and insisted that the focus must be on reform.130
Whereas industry emphasized the need for IP protection to guarantee returns
on their R&D investments, public health NGOs, the WHO, and an associated
community of scholars highlighted that a large proportion of R&D costs for
many new medicines was actually publicly-funded by the taxpayer.131 When

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Sir John Sulston (who had led the Human Genome Project in the UK) and
Joseph Stiglitz won Nobel Prizes for Physiology/Medicine and Economics
respectively in 2002 and 2001, they were each sought after by NGOs as out-
spoken critics of the dangers of strengthened international IP protection.132
NGOs focused on biodiversity and agriculture also launched anti-industry
campaigns, most notably about Monsanto’s controversial ‘terminator tech-
nology’ (which in addition to IP rights proposed using technological measures
to control the use of its seeds) and appealed for farmers’ ‘right to seeds’.
Concerned that the expanding scope of IP rights was accelerating the pri-
vatization of seeds and threatening the future of public agricultural research,
they also protested the growing pro-IP industry influence on the work of the
Consultative Group on International Agricultural Research (CGIAR) and the
UN Food and Agriculture Organization (FAO).
From 2001, a growing civil society campaign for Access to Knowledge an
explicit effort to reframe global IP debates and to develop a North–South
platform for reform.133 The initial effort to promote an A2K treaty spawned an
A2K social movement that brought together activists, policymakers, scholars,
scientists and industry groups with diverse priorities ranging from broader
access to medicines, science, and research to open-source software, ‘free
software’ and ‘free culture’.134
NGOs also argued that the rhetorically powerful language of ‘piracy’ had
spread far beyond the realm of logic. They emphasized that the frequent
reference by multinational pharmaceutical companies to high-quality, low-
cost generic copies of patented drugs as ‘pirate’ products was misleading –
such copies often rely on the fully legal exploitation of flexibilities in national
and international laws. They criticized the U.S. government for declaring
such products ‘counterfeits’ (a term correctly applied only to wrongful use
of another company’s brand name) and for designating entire countries
as ‘pirates’. The fact that a particular developing country laws or practices
impede the profit margins of IP holders need not, they argued, necessarily
make them illegal under national or international law.135 Further, they
emphasized that not all copying is piracy or theft. In most countries, copy-
right laws specify at least some exceptions to copyright (such as for personal
use). Further, NGOs and scholars used the language of their adversaries against
them, deploying the term ‘biopiracy’ to draw attention to the misappropria-
tion of traditional and indigenous knowledge related to genetic resources.136
In their appeals to the media, critics of pro-IP pressures also emphasized
the hypocrisy of asking developing countries to adopt levels of IP protection
that are stronger than those that developed countries used at similar stages of
development.137
Notably, developed country development-assistance agencies also inter-
vened in the battle to control the discourse about the impacts of TRIPS
on developing countries and the options open to them with regard to

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its implementation. In 2002, the Report of the UK Department for Inter-

national Development’s independent Commission on Intellectual Property
Rights (CIPR) was welcomed as a major victory by advocates in favour of
a more development-oriented approach to IP protection.138 The research,
fact-finding, and public meetings conducted by the Commission and the
publication of its Report in 2002 lent considerable analytical and political
support to the perspective advanced by developing countries and NGOs and
was widely used by both in their various campaigns. The UK government
issued a follow-up report in 2002 in which it committed to act upon many of
the recommendations in the CIPR Report.139
In 2001, the Dutch Minister for Development Cooperation lent her voice to
the international debate. Insisting that TRIPS does give ‘developing countries
some freedom’, the Minister argued that they ‘must be allowed to make use
of it without rich countries putting a knife to their throat’.140 She argued
that: ‘[i]t is totally unacceptable for rich countries to put bilateral pressure on
them to be stricter than TRIPS allows. Or to be stricter than the rich countries
themselves. Surely the whole point of multilateral agreements is to protect
countries from the bilateral jungle where the strongest always win’.141
In addition, developing countries actively advanced their own reframing
efforts. Led by India, Brazil, and Argentina, developing countries sustained
a critique that challenged the evidence and assumptions with respect to
the linkages between IP, technology transfer, and innovation, and also the
legitimacy of an international agreement forged through coercion. In their
official statements, developing countries consistently emphasized the special
needs of developing countries and drew selective attention to concepts and
words, such as technology transfer and ‘mutual advantage’, contained in
TRIPS Agreement’s opening paragraphs on objectives and principles. They
framed reform of TRIPS as central to the ‘integration of developing countries
in the multilateral trading system on equal terms’.142 In 2003, the Group of
77 (G-77) called for a ‘review of rules that unduly limit national policies as it
is the case, for instance in the areas of TRIMS and TRIPS’.143 In so doing, they
underscored the importance of retaining sufficient policy space to advance
national development objectives based on their ‘development, financial and
trade needs and circumstances’.144 A statement by the Ugandan Ambassador
captured this sentiment: ‘We are simply asking for fair and equitable rules that
would take into account our development needs and allow us to participate
fully in the trade system. But instead we risk being pressured once again into
accepting rules we don’t need and can’t afford’.145
The developing country effort to reframe IP discourse also led them to focus
on WIPO’s influence on global IP debates. In February 2003, developing coun-
tries reacted against an initiative by WIPO’s Director-General to host a high-
level summit in China on ‘Intellectual Property and the Knowledge Economy’
to bolster the image of IP protection.146 The first draft of the declaration for the

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proposed meeting read, unabashedly, of the myriad benefits of IP protection.

In a preparatory meeting for the summit, WIPO faced stern rebukes from
developing countries on the text. Despite efforts to revise the declaration
to incorporate developing country views failed, the meeting was cancelled
amidst mounting concerns about WIPO’s activities.
In 2004, the call for a WIPO Development Agenda was in part a deliberate
effort by developing countries to shift and reframe the discourse on interna-
tional IP regulation.147 By calling for a greater emphasis on the relationship
between the international IP system and the development aspirations of
developing countries, the authors of the proposal hoped to put pressure on the
WIPO Secretariat and membership to broaden their view of WIPO’s mandate
away from one narrowly focused on the promotion of IP as an end in itself
and to inject new momentum into global debates on appropriate rules for IP
protection.
Importantly, developing country discourse on TRIPS was also sometimes a
reflection of broader national trade politics. In countries, such as India, where
powerful social movements had concerns about WTO obligations, especially
in respect of agricultural liberalization, governments used their negative dis-
course on TRIPS to play to domestic constituencies. Keen to lock-in trade
reforms in agriculture, for example, India’s strong stance on TRIPS in Geneva
was a useful symbolic mechanism for showing critics back home that the
government shared concerns about threats to national sovereignty and was
fighting hard at the international level to defend national priorities.148
Notably, few developing countries were anti-IP per se. Even during the TRIPS
negotiations, many developing countries expressed interest in modernizing
and using their IP systems in ways that might advance domestic innovation,
technological capacity, and development. They acknowledged that as their
level of development rises, their interests in IP protection may expand both
to provide incentives to domestic innovation and also to derive stronger
economic benefits from local cultural production by musicians, authors, and
artists. Since the 1960s, developing countries have also been keen to explore
how expressions of folklore might be protected through copyright law or sui
generis systems.

5.3.4. Monitoring
Monitoring was an additional tool used to pressure individual countries on
TRIPS implementation and to influence the framing of global IP debates. The
United States, the European Union, industry groups, and the WTO Secretariat
were each engaged in surveillance efforts that reinforced the pro-IP and
compliance-plus political environment.
Foremost among monitoring initiatives was the U.S. Special 301 process. In
addition to evaluating the performance of countries, the United States used

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the Special 301 process to signal its preferences regarding the interpretation
of international legal commitments. In its annual Special 301 reports, USTR
frequently advanced narrow or restrictive interpretations of TRIPS flexibilities,
oftentimes in clear contradiction with TRIPS negotiating history.149 In its 2004
Report, for instance, USTR asserted that TRIPS Article 39.3 ‘recognizes that the
original applicant should be entitled to a period of exclusivity. [. . . ] During
this period of exclusive use, the data cannot be relied upon by regulatory
officials to approve similar products’.150 In reality, however, Article 39.3 of
TRIPS ‘does not mandate any exclusivity nor does it prohibit reliance on
data by public officials’.151 USTR also used Special 301 announcements to
publicize legal actions they intended to take in the WTO against countries
on IP matters. The USITC also produced annual National Trade Estimates that
reported unfavorably on IP standards in many developing countries.
The European Commission also actively monitored developing countries.
In 2003, the European Union published a survey of IP enforcement around
the world and in 2004 announced an upgraded monitoring initiative focused
on enforcement.152 Upon announcing its new initiative, the EU stated that it
did not intend to ‘impose unilateral solutions’ to enforcement problems or to
‘propose a one-size-fits-all approach’.153 The European Union did, however,
propose to revisit the IP chapters in bilateral agreements with a view to
strengthening their enforcement clauses.154
Sometimes EU and U.S. pressures converged on a country. Argentina was,
for instance, listed several times on the USTR Priority Watch List, investigated
under Special 301, and faced simultaneous EU scrutiny. In January 1997, after
a Special 301 out-of-cycle review, the United States announced the suspension
of tariff benefits on 50 per cent of the tariff lines covered by GSP because of the
alleged lack of adequate protection for pharmaceutical products. According to
the Chamber of Argentine Exporters, the sanctions-affected items represented
estimated annual exports of US$270 million. In July that year, the EU added
its concern over the Argentine patent legislation, citing a lack of protection
for the European pharmaceutical industry.155
At the multilateral level, several monitoring activities undertaken in the
WTO framework served to reinforce an international political climate in
favour of swift TRIPS compliance, high standards, and stronger enforcement.
In addition to requirements upon WTO members to submit notification of
their IP laws, the TRIPS Council undertook formal Reviews of Implementing
Legislation. From 2000, all developing countries with a year 2000 deadline
for TRIPS implementation were subject to such a review. All countries were
also required to submit responses to a checklist on enforcement. Staff of the
TRIPS Council argued that the purpose of these reviews was to promote a
positive ‘worldview’ on TRIPS implementation.156 In the early days of TRIPS,
some scholars advocated these mechanisms as more ‘cooperative’ tools for
promoting compliance than the threat of punishment through the WTO’s

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DSB.157 In practice, the Reviews and the ongoing meetings of the TRIPS
Council provided an opportunity consistently used by developed countries to
reinforce the importance of stronger IP protection and full conformity with
TRIPS, increase the pressure on countries to comply swiftly with TRIPS, and
promote their interpretation of TRIPS implementation.158
By increasing transparency of the shortcomings of TRIPS implementation in
developing countries, the WTO’s Trade Policy Review (TPR) process placed fur-
ther pressures on countries. Through its requirements on countries to report
on their progress towards TRIPS implementation, the TPR process reinforced
a general policy climate in favour of compliance and provided a multilateral
vehicle for powerful trading partners to remind developing countries of their
preferences. Not only did the TPR process make it difficult for developing
countries to ‘hide’, it also gave the WTO Secretariat a powerful role in describ-
ing and communicating to WTO members the status of IP laws in developing
countries. Both the member state and the WTO Secretariat’s TPR Division pre-
pared TPR reports. Each of the Secretariat reports included a specific section on
TRIPS implementation, usually of between two and ten pages in length. The
reports were then discussed at formal one- or two-day TPR meetings. Through
the TPR process, the WTO Secretariat established itself as an authoritative
voice among those promoting swift action to meet TRIPS obligations and a
narrow, legal, compliance-oriented perspective on those obligations.159
The opportunities for the WTO Secretariat to exert influence were several: its
manner of reporting on meetings, its role in the compilation and presentation
of information in Trade Policy Reviews, and its press releases on the outcomes
of these reviews. A review of these reports confirms that the WTO Secretariat’s
monitoring efforts were not neutral with respect to interpretation of what
constituted satisfactory TRIPS implementation.160 As might be expected, the
Secretariat’s reports focused compliance: they systematically drew attention to
missed TRIPS deadlines and areas in which countries fell short of TRIPS obliga-
tions. They also made judgements on the degree of enforcement of these laws,
providing examples on domestic and foreign industries that had allegedly
suffered as a result, and noted institutional, financial, and human resources
challenges that inhibited more effective enforcement. In no report was there
any mention of other challenges associated with TRIPS implementation, such
as examples of increased costs of technologies. The WTO Secretariat also never
commented in any report on whether countries had taken advantage of the
flexibilities affirmed in the Doha Declaration on TRIPS and Public Health;
nor did the WTO Secretariat highlight the possibility that governments could
amend their laws to take advantage of the opportunities that the Declaration
provides. In contrast to the emphasis on the need to build capacity to enforce
IP standards, no TPR report noted any broader capacity priorities (such as
the development of policymaking processes to ensure TRIPS implementation
proceeds in a manner responsive to national development needs).

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Developed countries also took advantage of various WTO processes (i.e. the
TPR process, the TRIPS Reviews, and TRIPS Council meetings) to put public
pressure on developing countries for improved TRIPS implementation and
to convey their views regarding what countries ought to do. In all but three
of sixty-eight TRIPS Council Reviews of Legislation in developing countries
completed by December 2008, at least one developed country posed a lengthy
list of questions about TRIPS implementation.161 The member state under
review had then to respond in writing (a task which frequently resulted in
a response of over twenty pages). At the meeting themselves, further oral
questions frequently emerged.162 In both instances, questions were posed
in ways that either misrepresented or reflected narrowly interpretations of
TRIPS obligations.163 In most cases, countries faced detailed scrutiny from
more than one country. In general, they received distinct sets of multiple
questions from the United States, the European Commission, and Japan, as
well as Switzerland, Canada, and Australia. Sometimes countries were faced
with a second round of questioning. Across the entire suite of Reviews, Korea
was the only developing country ever to pose questions (which it did for the
Reviews of China and Taiwan).
Similarly, in the TPR process, developed countries were active in
asking pointed questions of developing countries on the status of TRIPS
implementation. A review of the records of all the TPR meetings reveals that
each country was asked oral questions by at least one developed country
regarding IP protection. In general, developing country participation in TPR
meetings was low, and there was only a handful of questions from any
developing country on IP protection in another member state.164 The degree
of engagement by national IP offices in the TPR information-gathering process
varied widely: many national IP officials interviewed indicated that they were
relatively uninvolved in the presentation of facts for this process. Other IP
officials described the TPR process as a useful opportunity to learn more about
the priorities of trading partners and also to receive useful instructions as to
what more they needed to do to meet international obligations. While it is
difficult to show the TPR reports or that the Reviews of Legislation themselves
prompted particular action at the national level, it is clear that they did expose
the status of national IP protection to external scrutiny. The need to account
to the WTO Secretariat and WTO members regarding national IP reforms
on numerous occasions reinforced the perception among many developing
country officials of the need to respond to pressure for swift and full TRIPS
implementation.
Finally, industry groups also used sector-specific monitoring of IP protection
to push for stronger IP protection and faster compliance with TRIPS. In
addition to their inputs into the U.S. Special 301 process, the entertainment,
software, and pharmaceutical industries each published annual reports on the
state of IP protection around the world.165 These reports sometimes included

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rankings and the findings were widely publicized through the international
news and business media.

5.4. Capacity building

Capacity-building was the area where the clearest intersections between eco-
nomic and ideational power emerged in the TRIPS implementation game.
The range of capacity-building was broad but usually fell into one of several
categories: (a) legislative and policy advice; (b) training and human resource
development (courses, seminars, workshops, etc.); (c) administrative and IT
support (including automation and computerization); or (d) institutional
support for enforcement. The sheer number of conferences, meetings, visits,
and technical advice given highlights how seriously the various actors viewed
capacity-building as a tool to advanced their agendas in global IP debates and
with respect to TRIPS implementation.

5.4.1. The Donors

The field of IP-related capacity-building involved a wide range of actors,
including multilateral and regional IOs, developed country governments,
NGOs, industry groups, individual companies, academics, and law clinics
from leading universities. At the multilateral level, donors that provided
technical assistance, advice, or training on aspects of TRIPS implementation
or related to global IP debates included the International Telecommunica-
tions Unions (ITU), UNAIDS, UNCTAD, UNDP, UNESCO, UPOV, WCO, WHO,
WIPO, the World Bank, the WTO, and the UN Human Rights bodies.166 At
the regional level, the Secretariats of IP arrangements such as OAPI, ARIPO,
and the Andean Community provided advice to their members as well. Multi-
national companies and industry associations also independently provided
technical assistance, training, staff, and funding to developing country gov-
ernments, think tanks, and companies to improve IP expertise, administra-
tion, and enforcement. NGOs harnessed capacity-building to influence both
TRIPS implementation and developing country engagement in international
negotiations.
The scale of assistance from donors increased steadily from 1995 to 2007.
The contributions varied widely by donor, both in terms of the focus of
assistance and the financial resources devoted.167 WIPO was the largest
single donor providing IP-related capacity-building to developing countries,
for TRIPS specifically, and also in general.168 From 1996 to 2007, WIPO’s
contribution to IP-related capacity-building in developing countries reached
over US$400 million, more than doubling from around $US25 million in
1996 to over US$50 million in 2007.169 WIPO’s prominence in IP-related
capacity-building derived from agreements forged with the WTO Secretariat.

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As noted in Chapter 3, TRIPS called on developed countries and the WTO

Secretariat to provide assistance to developing countries to implement the
Agreement. Acknowledging the enormity of this task, the WTO and WIPO
Secretariats agreed in 1996 to work together on matters of technical assistance
related to TRIPS.170 The heads of both organizations subsequently established
two joint technical cooperation agreements. The first, launched in 1998,
was to help developing countries meet the 1 January 2000 deadline for
conforming with the TRIPS Agreement. The second agreement, made in
2001, was for a programme to assist LDCs meet their original 1 January 2006
deadline and to make use of IP protection for their economic, social, and
cultural development.
Most developing countries received capacity-building from a range of dif-
ferent donors. The target countries of donors varied according to commercial
interests, colonial ties, and geographic proximity. The Philippine Intellectual
Property Office, for example, received support from the Japanese International
Cooperation Agency (JICA), the U.S. Agency for International Development
(USAID), and the European-ASEAN Intellectual Property Rights Cooperation
Programme (ECAP) as well as from WIPO, the U.S. Patent and Trademark
Office, the Japan Patent Office (JPO), the European Patent Office (EPO),171
and the Korean Intellectual Property Office (KIPO).172 Francophone African
countries received the majority of their support from the French IP office
(INPI), the EPO, and WIPO, whereas anglophone colonies relied more heavily
on WIPO and the UK Patent Office.

5.4.2. Donor Objectives: Competition and Collaboration

In the realm of TRIPS implementation, capacity-building was rarely just
a ‘technical’ matter. The political objectives of donors varied significantly.
Indeed, capacity-building was a core mechanism through which contests
about the appropriate interpretation and implementation of TRIPS played out.
On the economic front, capacity-building was often used to ‘buy’ stronger
IP administration and enforcement in developing countries. Through the
provision of IT infrastructure, computer software, training, staff salaries, build-
ings, equipment, and direct financing of IP offices, donors were able directly
to influence the capacity of developing countries to undertake and enforce IP
reforms. Economic incentives were also sometimes personal. Material incen-
tives, such as training and travel opportunities, consultancy contracts, and
lucrative per diems associated with attending conferences, also influenced
some developing country IP decision-makers.173 In diplomatic circles, anec-
dotes abound about developing country officials promised such enticements
in exchange for promoting particular perspectives at the national level or in
WIPO meetings.
Capacity-building also had an ideational component. Donors built the
capabilities, know-how, and institutional knowledge necessary for countries

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to implement TRIPS, often in ways that reflected the donor’s own particular
preferences. The power of donors to exert ideational power derived from
their superior technical knowledge of IP issues, access to information, and
ability to harness professional communities to promote their views. Donors
worked to advise, persuade, and socialize developing country policymakers to
adopt particular ideas, assumptions, and policy preferences. Core mechanisms
for socialization were training and repeated attendance at conferences and
seminars. Importantly, capacity-building was used to influence TRIPS by those
both for and against early and strong implementation of TRIPS.
WIPO’s capacity-building activities exemplified how economic and
ideational power were combined to push for compliance with TRIPS, promote
higher IP standards in developing countries, and increase the effectiveness
and enforcement of IP law. WIPO supported many large-scale projects to
improve the infrastructure and automation of IP offices, training and devel-
opment of IP professionals, participation of developing country IP officials
in international meetings, and the provision of resources for enforcement.
In addition, WIPO provided financial support to support public outreach
on IP issues in developing countries, create interest groups of IP-‘users’ in
developing countries, and foster a constituency of domestic policymakers in
favour of stronger IP protection.174 From 2002, for instance, parliaments were
an increasingly important focus of WIPO’s outreach efforts in developing
countries and WIPO organized seminars on IP and TRIPS for members of a
number of national legislatures. Further, in some cases, such as Egypt, WIPO
supported the travel of parliamentarians to WIPO and arranged meetings
with pharmaceutical industry representatives in Geneva.175 A key vehicle for
WIPO’s efforts to build IP capacity in developing countries was the WIPO
Worldwide Academy, a training institute that provided a series of seminars
and training programmes in Geneva and also at the regional and national
level. The Academy financed the participation of a high proportion of devel-
oping country IP officials now posted in IP offices around the world. In
many of its capacity-building activities, trainings, and seminars, the WIPO
Secretariat collaborated with regional IP organizations (such as the European
Patent Office), national IP offices, UPOV, and the WTO Secretariat. For the first
five years after TRIPS came into force, a review of WIPO’s agendas for training
and seminars highlights that speakers were most commonly from one of the
agencies cited above, industry groups, corporations, or law schools. Only from
2001 did WIPO begin efforts to involve international NGOs and critics who
advocated stronger use of TRIPS flexibilities.
The financial resources that the WTO Secretariat devoted to IP-related
technical assistance were smaller, but its role was nonetheless significant.
The WTO’s Secretariat’s assistance came mainly in the form of training and
seminars, and also through the staff resources devoted to providing technical
advice and legislative assistance to countries. As ‘guardians’ of the WTO rules,

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 International Pressures on Developing Countries

the staff of the WTO promoted the importance of compliance with TRIPS
commitments. In the lead up to, and aftermath of, the Doha Declaration
on TRIPS and Public Health, the WTO Secretariat was much criticized by
NGOs for failing to incorporate attention to TRIPS flexibilities in its tech-
nical assistance and legal advice. Once the flexibilities were affirmed in the
Doha Declaration, WTO Secretariat staff began to devote greater attention to
describing to countries the options available to them under TRIPS.
The capacity-building provided through bilateral initiatives on the part of
developed countries generally shared common objectives: to promote legisla-
tive reforms to meet TRIPS commitments, greater efficiency of IP adminis-
tration, and more effective enforcement. In many cases, capacity-building
was also explicitly intended to promote the adoption of TRIPS-‘plus’ laws
and enforcement measures, and to discourage the use of TRIPS flexibilities.
Bilaterally, governments were explicit that the purpose of their capacity-
building was to advance their economic interests. To deliver their assistance,
developed countries often relied on consulting firms or collaborations with
industry groups. Many different parts of developed country governments
were engaged in capacity-building, including patent and copyright offices,
development assistance agencies, foreign embassies, and ministries of foreign
affairs, trade, and industry.
Across the bilateral and multilateral donors, a striking feature of IP-related
capacity building was the lack of linkage to broader development assistance
strategies. IP assistance was delivered through a vast array of stand-alone
projects of varying scale and purpose. Notably, neither developing country
governments nor key development agencies, such as the World Bank, con-
sidered the dedication of scarce national and donor resources to improv-
ing IP protection as a priority. IP protection never, for instance, featured
prominently in the World Bank’s Poverty Reduction Strategy Papers (PRSPs),
which are designed to set the framework for the allocation of development
assistance.176 A review of more than fifty national PRSPs undertaken in 2008
revealed that the terms ‘intellectual property’, ‘copyright’, and ‘trademark’
were not mentioned at all in these documents.177
The countries that were particularly active in bilateral IP assistance were
France, Japan, Sweden, Switzerland, the United Kingdom, the United States,
and the European Union. In the period between 2001 and 2007, the United
States and European Commission reported to the OECD-WTO database on
trade-related capacity-building, expenditures of over US$25 million for TRIPS-
related projects, while the other countries each reported between US$2 mil-
lion and $10 million. Notably, these amounts were usually supplemented by
a range of further expenditures related to IP capacity-building in general (not
just TRIPS-specific projects).
The European Commission and the European Patent Office, for instance,
supported a suite of IP projects in developing countries. In 1997, for instance,

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the EU signed an agreement with Argentina to assist with the modernization

of its IP system. A further example was a 2004 EU–South Asian IPR Coop-
eration Project for Bangladesh designed again to assist in the automation of
IP procedures and the modernization of the Patents, Designs, and Trademark
Department.178
In the case of the United States, its State Department, Patent and Trademark
Office (USPTO), Commerce Department, and Trade and Development Agency
(USTDA, formerly USAID) were all involved. In 2006, for instance, the USPTO
conducted more than 200 IP training and outreach activities in over 100
countries. In addition, USPTO placed IP experts in Brazil, China, Egypt, India,
and Thailand to advocate improved IP protection for American businesses
and to coordinate training to help reduce piracy and counterfeiting.179 In the
same year, the USTDA supported an agricultural and pharmaceutical biotech-
nology training program for patent examiners in India’s Patent Office.180
In Argentina, Guatemala, Jordan, and the Philippines, U.S. government–
financed technical assistance was designed explicitly to put TRIPS-‘plus’ stan-
dards in place.181 In Argentina, for instance, USAID deployed Robert Sher-
wood, a pro-IP legal expert who also consulted for pharmaceutical companies,
to draft the countries laws related to TRIPS implementation.182 Across a range
of countries, USAID financed work by the International Intellectual Property
Institute (IIPI) (led by a former head of the USPTO) and pro-IP lawyers to
provide legal advice across a range of developing countries, including Jordan
and Jamaica.183
Multinational corporations and their industry associations were also active
donors. They worked to establish and advise pro-IP interest groups in devel-
oping countries. Some corporations hired and deployed their own agents to
monitor and police infringements in some countries.184 Foreign trademark
owners, for instance, established contracts with local private investigation
companies in China to help identify violations of their IP rights and to make
the case for greater action by domestic anti-counterfeiting agencies.185
The majority of bilateral aid and support from the larger IP donors, espe-
cially WIPO, was directed to national IP offices. Donor representatives and
IP officials forged cooperative relationships and ‘technocratic trust’, which
in turn significantly influenced the incentives of many developing country
officials in their engagement in IP policy debates and their willingness to
push particular reforms.186 Indeed, IP officials sometimes became allies of their
donors. The Philippines Intellectual Property Office (IPO), for example, was
the group that, with assistance from WIPO, lobbied the Philippine Congress
for the ratification of the WIPO Patent Cooperation Treaty in 2001 and the
WIPO Internet Treaties in 2002.
Beyond the pro-IP providers of capacity-building, there were a range of play-
ers with an alternative agenda. The goal of most of the capacity-building pro-
vided by the WHO, UNCTAD, and UNAIDS was, for instance, to promote the

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use by developing countries of the TRIPS flexibilities with an eye to advancing

public policy goals in the areas of public health or industrial development.
These organizations worked to build the capacity of agencies in national
government beyond IP offices. WHO, for example, provided information and
advice to health ministries through seminars and meetings on the patent
situation of key essential medicines187 and on their options under TRIPS.188
In many cases, capacity-building to promote awareness of TRIPS flexibilities
and the policy options available to countries, whether among diplomats in
Geneva or policymakers in capital, came after the most significant pieces
of legislation related to TRIPS implementation had been passed. In such
instances, assistance aimed to add credibility to decisions already taken by
developing countries, to persuade them to keep in place provisions that were
under challenge through various bilateral pressures, or to push countries to
revise existing laws to take better advantage of TRIPS flexibilities or to make
practical use of flexibilities they had in place.
While generally lacking financial resources comparable to those of devel-
oped country governments and corporations, NGOs used many of the same
capacity-building tools, including training, legal advice, and the publication
of reports and recommendations. These were complemented by activities such
as media outreach, policy dialogues, and awareness-raising through lobbying
of government officials and parliamentarians. Together with legal scholars
and economists, NGOs produced a significant legal literature alerting devel-
oping countries that they ‘do still retain IP policy options’. In their work, they
emphasized the possibility of divergent interpretations of TRIPS obligations,
provided assessments of the feasibility and legality of various proposals for
tailoring implementation to a country’s particular stage of development, and
offered advice on how to use particular TRIPS flexibilities such as compulsory
licensing.189 To bolster their persuasiveness, they documented cases where
countries may and ‘do exhibit substantial variation in their patent regimes, all
while being compliant with TRIPS’.190 NGOs worked to influence IP offices but
also to engage a broader range of ministries that might be sympathetic to their
objectives (such as health, environment, and agriculture ministries); to use the
international media to influence governments; and to build the capacity of
local NGOs to inform and lobby governments.191 In Africa, for example, NGOs
such as MSF worked to build awareness and capacity among local NGOs, and
also to alert health ministries to the importance of compulsory licensing and
the TRIPS options available to governments in that respect.192

5.4.3. Countervailing Pressure to Reform IP-Related Capacity-Building

From 2000, the purpose and content of IP-related capacity-building from
developed countries, WIPO, the WTO, and multinational corporations began
to attract increased scrutiny. A range of scholars, officials, and NGOs charged

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that the technical assistance, training, and legislative advice from these
sources were biased in favour of a narrow, compliance-plus approach to
TRIPS.193
In the case of WIPO, critics questioned the neutrality of its advice to
developing countries.194 Critics emphasized that WIPO’s status as a UN agency
endowed its advice with legitimacy in the eyes of many developing country
officials but that careful review of the substance of its assistance revealed a
bias in favour of the interests of developed countries and developed country-
based IP rights holders.195 Criticisms also arose about technical assistance
from the UPOV Secretariat’s and its campaign to boost its membership. In
particular, UPOV and its Secretary-General Barry Greengrass were targetted by
NGOs for their ‘crusade’ in favour of a UPOV 1991 approach to plant variety
protection and to recruit new members of the Convention. In 1999, critics of
UPOV charged that its technical assistance activities amounted to ‘lobbying
exercises’.196 During that year, UPOV, WIPO, and the WTO conducted a series
of joint seminars in Geneva, Bangkok, Cairo, and Nairobi to promote the
adoption of UPOV-type legislation and accession to UPOV as the best way to
comply with Article 27.3(b) of TRIPS.197 One workshop participant stated that
UPOV representatives were ‘very successful in confusing participants. Many
think the two [UPOV and sui generis] are one and the same. Some seem to
believe they must join UPOV to be a member of WTO’.198
Concerns about WIPO’s technical assistance were a key motivation for the
launch of the WIPO Development Agenda, which included recommendations
to ensure an explicitly, development-oriented approach to advice, training,
and technical assistance. They also spurred efforts by the UK’s development
agency to initiate multi-stakeholder dialogue on how to improve IP-related
capacity-building.

5.5. Conclusion

The TRIPS implementation game was played by a range of stakeholders with

intense interests in what happened ‘on the ground’ in developing countries.
In the context of global debates about the terms of the TRIPS Agreement and
IP regulation more broadly, economic and ideational power were used by a
diverse array of stakeholders to push for rapid and strong TRIPS implemen-
tation or to advocate for more-tailored, development-oriented approaches to
national IP reforms.
Diversity emerged because economic pressures were applied to varying
degrees, sometimes with a distinct issue-specific focus on countries with
different capacities to resist. Ideational power also had a significant influ-
ence on how countries approached TRIPS implementation by generat-
ing a compliance-plus, pro-IP political context for TRIPS implementation.

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Countervailing ideational efforts to promote more tailored, pro-development

approaches to TRIPS implementation were also exerted and sometimes
succeeded.
Having emphasized international pressures on developing countries, it is
important not to underestimate the role that national economic and political
factors had in generating variation in TRIPS implementation. In Chapter 3,
I observed that aspects of TRIPS implementation by some developing coun-
tries were at least in part attributable to changing economic dynamics and
opportunities. In the following chapter, I explore how national political
dynamics also had an influence. In particular, I argue that national politics
often modified the impact of international pressures, either amplifying or
diminishing their influence, and thus contributed to the variation in how
governments responded to TRIPS.

Notes

1. U.S. State Department (1999).

2. Ibid.
3. See Chapter 1, note 85.
4. Krikorian (2008) analyses pressures on Thailand in relation to TRIPS and public
health, and Krikorian and Szymkowiak (2007) on the dynamics of TRIPS-‘plus’
political pressure on Morocco.
5. See Chapter 1, note 75. Also see Fink and Reichenmiller (2005), Krikorian and
Szymkowiak (2007), Oh (2008), and Wunsch-Vincent (2003).
6. Such requirements are found, for example, in the U.S–Jordan FTA, the EU–Jordan
Partnership Agreement, the U.S.–Morocco FTA, the U.S.–Bahrain FTA, and the EU–
Egypt Association Agreement.
7. For the text of the IP chapter of each of these agreements, see http://www.
ustr.gov/Trade_Agreements/Section_Index.html. The United States also signed
FTAs with Australia, and has ongoing bilateral discussions open with the Ecuador,
Malaysia, the South African Customs Union (SACU), Thailand, and the United
Arab Emirates as well Latin American countries in the context of negotiations for
a Free Trade Area of the Americas. The status of these negotiations varies.
8. For text of each of these agreements, see http://www.ustr.gov.
9. The European Union has TRIPS-plus trade agreements with Algeria (2002),
Bangladesh (2001), Egypt (2001), Lebanon (2002), Mexico (2000), Morocco (2000),
the Palestinian Authority (1997), South Africa (1999), Sri Lanka (1995), and
Tunisia (1998). For copies of each of these agreements, see http://europa.eu.int/
eur-lex/en. For further background on the European Union’s bilateral trade rela-
tions website, see http://europa.eu.int/comm/trade/bilateral/index_en.htm.
10. For an overview of IP provisions in EU trade agreements, see Santa Cruz (2006).
11. For its accession countries, the European Union required harmonization with its
own regional laws, such as its seven Copyright Directives. Over fifty countries
have copyright standards equivalent to those set out by these EU Directives. See
Suthersanen (2005).

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12. The Partnership Agreement called for such protection either within three years of
the Agreement coming into force or Jordan’s accession to the WTO, whichever
came earliest.
13. The Cotonou Agreement replaced the Lomé Convention and provides a frame-
work for privileged relations between the European Union and the ACP countries
on matters of market access, technical assistance, and other issues until 2020. See
http://www.acpsec.org/.
14. The Cotonou Agreement also commits countries to cooperation regarding the
preparation of laws and regulations for the protection and enforcement of IP; the
prevention of the abuse of such rights by right holders and the infringement of
such rights by competitors; and the establishment and reinforcement of domestic
and regional offices and other agencies including support for regional intellectual
property organizations involved in enforcement and protection, including the
training of personnel (Article 46).
15. ICTSD (2008) and CIEL (2007).
16. Ibid.
17. For reports that trace the evolution of the negotiations see Trade Negotiations
Insights available at http://www.ecpdm.org and http://www.ictsd.org.
18. The developing countries in this group are Algeria, Egypt, Jordan, Lebanon,
Libya, Morocco, the Palestinian Authority, Syria, and Tunisia. The central element
of the ENP is the development of bilateral Action Plans agreed between the
European Union and each partner which form the basis for a future European
Neighbourhood Agreement. See EC (2004a, 2004b) and http://ec.europa.eu/world/
enp/policy_en.htm, accessed on 1 February 2007.
19. The European Union also continues to pursue trade negotiations with Mercosur
and the Arab Gulf Cooperation Council (GCC), ASEAN, the Andean region, the
Central American region, and India. See Mandelson (2005) and EC (2006).
20. The EFTA states concluded free trade agreements with Turkey, Israel, Jordan, and
Singapore and have ongoing negotiations with Thailand. For the texts of these
FTAs, see http://secretariat/efta/int/Web/legalCorner/.
21. Examples include the Canada–Chile FTA, the 2004 Japan–Singapore FTA, and the
2004 Japan–Mexico FTA. Other bilateral negotiations underway in December 2007
included those between Australia–China and Japan–Thailand.
22. This summary draws from the analysis of IP provisions in bilateral investment
treaties by Correa (2004a) and Drahos (2001b). While the scope and content
of BITs have been standardized over the years, the wording of some individual
provisions still varies. The most significant differences occur between BITs signed
decades ago and those signed more recently. See UNCTAD (2003: 89).
23. For information on U.S. BITs, see http://www.tcc.mac.doc.gov.
24. Note that investment treaties are organized at the bilateral rather than regional
level in the European Union. Several governments (France, Germany, Switzerland,
and the Netherlands) have online databases which provide details of these indi-
vidual treaties.
25. The MFN clauses in investment agreements contribute to a global elevation
of protection standards. During discussions of the OECD’s draft Multilateral
Agreement on Investment (MAI), some delegations proposed excluding copy-
rights and neighbouring rights, as well as databases, from provisions designed

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 International Pressures on Developing Countries

to replicate the highest levels of investment protection for IP. See OECD
(1997).
26. Provisions in investment agreements that enable foreign corporations to sue gov-
ernments have generated considerable policy debate. See IISD (2001), UNCTAD
(2000), and Verhoosel (2003).
27. For a more detailed review of the implications of BITs and the procedures in case
of IP disputes that might arise, see Correa (2004a).
28. For the full text of these agreements, see http://www.tcc.mac.doc.gov. Also see
Drahos (2001b) and Morin (2003).
29. After an initial fact-finding stage, WTO accession negotiations fall into two main
categories: (a) negotiations on multilateral rules (such as TRIPS), and (b) bilateral
market access negotiations. Acceding governments are expected to observe the
rules set out in the WTO Agreement, as well as any additional binding commit-
ments negotiated and agreed in their Protocol of Accession or in the relevant
commitment paragraphs of the Working Party Report, which are incorporated in
the Protocol of Accession. See WTO (2005f ).
30. USTR (2005: 2).
31. The commitments of newly acceding WTO members are located in several legal
documents including the working party report (which includes paragraphs speci-
fying IP commitments), the Protocol of Accession, the General Council Decision,
and the schedules of goods and services commitments.
32. Karky (2004).
33. Musungu and Oh (2006).
34. Gay (2005).
35. The United States forged a series of bilateral agreements with China regarding
IP standards and enforcement before it became a WTO member. These include
the 1992 Sino–American Memorandum of Understanding on the Protection of
Intellectual Property and an Exchange of Letters in 1995 (with an attached Action
Plan). See Mertha and Pahre (2005).
36. See http://www.wto.org/English/thewto_e/minist_e/min03_e/min03_11sept_e.
htm, accessed on 5 May 2007.
37. Gay (2005).
38. Finger and Schuler (2000: 527).
39. For examples, see http://www.ustr.gov.
40. In 1996, the United States launched a case against Indonesia on measures affecting
the U.S. automobile industry. The United States complained that an Indonesian
measure on trademarks related to its National Car Programme violated various
provisions of TRIPS. The panel found, however, that the United States had not
demonstrated discriminatory treatment within the various relevant senses pro-
vided in TRIPS as it applies to trademarks.
41. With respect to filing, the central issue became whether certain ‘administrative
instructions’ to the Indian Patent Office by the government were sufficient to
provide ‘a sound legal basis to preserve both the novelty of the inventions and
the priority of the applications as of the relevant filing and priority dates’. See
Trebilcock and Howse (2001: 330–1). Also see WTO (1997a).
42. The Appellate Body held that Articles 70.8 and 70.9 operate in tandem, so that
when TRIPS came into force, India was obliged to have in place a mechanism for

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the granting of exclusive marketing rights, even if it could delay making the rights
effective until the end of the transition period. See Reichman (1998a).
43. USTR (1997).
44. Busch and Reinhardt (2003), and Davey (2005).
45. Ibid.
46. See Chapter 3, note 70.
47. Author’s interview with Jayashree Watal, former TRIPS negotiator for the Indian
government and now a staff person of the WTO Secretariat’s TRIPS Division, Feb.
2005.
48. Author’s interview with Marta Gabrieloni, Argentinean delegate to the TRIPS
Council, Oct. 2005. See also Czub (2001) and Bentolila (2002/03).
49. The United States challenged a provision in Brazil’s industrial property law that
prohibits importation as a means of satisfying the requirement that a patent be
‘worked’ in Brazil. Author’s interview with Robert Juagaribe, Director, Brazilian
Patent Office, Oct. 2005. Also see USTR (2006).
50. Drahos (1995: 11).
51. For USTR’s Special 301 reports and related press releases, see http://www.ustr.gov/
Trade_Sectors/Intellectual_Property/Section_Index.html.
52. Drahos (1995: 11).
53. USTR (1999).
54. Sell (1995) and Pechman (1998).
55. For related USTR press releases, see http://www.ustr.gov/Document_Library/Press_
Releases/Section_Index.html.
56. Sell (1998).
57. Other claims of unfair competition involving imported products, misap-
propriation of trade secrets, passing off, and false advertising were also
investigated.
58. Expedited relief in the form of temporary exclusion orders and temporary cease-
and-desist orders may also be available in certain exceptional circumstances.
Section 337 investigations include trial proceedings before administrative law
judges and review by the ITC.
59. For a summary of all cases, see http://www.usitc.gov/trade_remedy/int_prop/inv_
his.htm, accessed on 1 February 2008.
60. Raghavan (2002).
61. Author’s interviews with diplomats in Geneva between 1999 and 2007 confirmed
instances of such pressures in a range of countries, including the Dominican
Republic, Egypt, Kenya, Pakistan, and South Korea.
62. New (2007e).
63. Markandya (2001).
64. Reuters (2006).
65. In his letter to the Bangkok Post, the official noted that the deal Washington
sought could hinder Thailand’s domestic production of generic drugs and have
a detrimental impact on the ability to fulfil its pledge to provide drugs to Thais
living with HIV/AIDS. See Beattie et al. (2006).
66. Author’s interviews with staff of IOs and NGOs involved in these cases.
67. Author’s discussion with WHO officials and individuals involved in preparing the
report. Also see Bermudez and Oliveria (2004) and Gerhardsen (2006e).

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 International Pressures on Developing Countries

68. Author’s interviews with staff in organizations involved in the preparation of these
studies.
69. For the report, see UNCTAD (2006). For the U.S. government’s comments, see U.S.
Mission to the United Nations (2006).
70. Marc (2001).
71. Gerhardsen (2006c).
72. In 2005, a number of Indian patient groups filed a ‘pre-grant opposition’ to a
proposed patent for Glivec. Novartis had filed its patent application in 1998 and
received exclusive marketing rights for in March 2003 until India’s mailbox facility
was opened. In January 2006, the patent office refused Novartis’ application on
the grounds that the product was not sufficiently innovative to warrant patent
protection. Novartis challenged the decision of the Indian Controller General of
Patents and Designs (which administers the patent office), arguing that ‘India
should not establish additional requirements for patentability beyond novelty,
commercial applicability and non-obviousness.’ The appeal case was still ongoing
at the time of publication. See Gerhardsen (2006c, 2006d).
73. Gentleman (2007).
74. Author’s interview with Johannes Bernabe, former Philippine TRIPS negotiator,
Feb. 2007.
75. Boseley (2000).
76. Kamath (2000) and Schoofs (2000).
77. From 2000, for instance, the World Bank agreed to host a staff member seconded
from the pharmaceutical industry, a decision which was much criticized by public
health advocates and also by some staff within the Bank.
78. Sell (1998: 221–8).
79. Unilateral U.S. pressures (including use of Special 301) helped secure many
changes to IP laws in Latin America and South Korea in the 1970s and early
1980s. See Odell (1980), Yoffie (1983), Odell (1985), Bayard and Elliot (1994),
and Sell (1995). In the immediate pre-TRIPS era, however, Marcus Noland (1997)
found that USTR’s Special 301 pressures were relatively ineffective in achieving IP
changes at the domestic level in all but a few cases. For more on debates regarding
the relationship between TRIPS and 301, see Getlan (1995).
80. For debate on the extent to which unilateral trade pressures impacted policy
changes in targeted countries across a broader range of trade issues, the conditions
under which such pressures were effective, and the methodological challenges
associated with measuring such dynamics, see Bayard and Elliot (1994), Elliott and
Richardson (1996), Knapp (2000), Martin (1992), Noland (1997), Sykes (1992), and
Zeng (2002).
81. Trebilcock and Howse (2001: 333) argue persuasively that ‘even if unilateral action
does not violate any specific provision of the GATT or the TRIPS Agreement (as it
would not for instance in the case of withdrawal of voluntary GSP preferences as
was [. . . ] done in the case of Honduras), it may be in contravention of Article 23
of the WTO DSU’.
82. This analysis draws on the author’s interviews with officials responsible for IP in
the Brazilian Ministry of Foreign Affairs and the Brazilian Patent Office from 2005
to 2007.
83. Ruse-Khan (2007).

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84. Subramanian and Watal (2000).

85. See WTO document WT/DS285/22, 22 June 2007.
86. For further discussion of the use of framing in debates on international IP regu-
lation, see Drahos (1996), Mayne (2002), Okediji (2003a), Sell (2002, 2003c), and
Odell and Sell (2006).
87. See Chapter 1, note 89.
88. The role of such communities in international IP debates is also discussed in
Braithwaite and Drahos (2000), Sell (2003a), and Dutfield (2000).
89. Epistemic communities are defined by Peter Haas (1992b: 3) as ‘networks of
professionals who share common normative and causal beliefs, accept common
truth-tests and are engaged in a common policy enterprise’.
90. Sell (2003a).
91. Drahos (1999) and Dutfield (2000).
92. Drahos (1999: 443).
93. Ibid.
94. Dutfield (2000).
95. Ibid.
96. See, for instance, Attaran and Gillespie-White (2001).
97. Mashelkar Committee (2007).
98. Raghunath Mashelkar, former head of India’s Council for Scientific and Industrial
Research (ICSIR). Mashelkar also became the focus of controversies regarding
alleged efforts by WIPO, developed countries, and to manipulate debates on
WIPO’s patent reform multinational companies agenda. See Times of India (2007)
and New (2005c).
99. See Barnett (1999: 25), Crawford (2002: 19), and Snow and Benford (1998).
Keck and Sikkink (1998) argue that the success of environmental networks and
women’s movements relied on the development of durable cognitive frames, such
as ‘sustainability’, ‘rights-based’, and ‘discrimination’ frames. The relationships
between framing and social movement action are taken up by Snow et al. (1986)
and McAdam et al. (1996).
100. See, for example, Attaran and Gillespie-White (2001).
101. Drahos (1996).
102. Idris (2002).
103. Nye (2004).
104. Checkel (2005).
105. Reinhardt (2002).
106. The NEPAD initiative in Africa can be understood as a collective African effort in
this respect. See van der Westhuizen (2003). Also see Hope (2005).
107. Ngangoue and Oeudraogo (1999).
108. Ibid.
109. Bernama (2006).
110. Ibid.
111. Halbert (1997).
112. See, for example, BSA (2005) and IFPI (2005).
113. The software industry estimates its losses in each Brazil, India, and Mexico at
around US$500 million annually and in China at US$3,884 million per year. The
countries with the highest rates of piracy are not those where industries incur the

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 International Pressures on Developing Countries

greatest losses. According to the BSA, Zambia, Zimbabwe, Cameroon, and Senegal
each had software piracy rates of over 80 per cent in 2005, but the actual losses in
those countries were under US$6 million per year. See BSA (2005).
114. Biadgleng and Tellez (2008).
115. See Price (2004) and Khaleej Times (2004). On the relationship between bilateral
trade agreements and political security, see Gruber (2000). Also see Jackson (1997:
173).
116. Weintraub (2003).
117. Solo (2003).
118. Choudry (2005).
119. Author’s interview with Ahmed Abdel Latif, Egyptian Ministry of Foreign Affairs,
Nov. 2006.
120. Stallman (2006).
121. See, for example, Boyle (1996, 2003), Drahos and Braithwaite (2002a), Drahos
(1996), Okediji (2003a), and Tansey and Rajotte (2008).
122. UNCTAD (2008).
123. Bhagwati (2001), Correa (2000a), and Stiglitz (2002: 245–6).
124. Boyle (2003).
125. Dinwoodie and Dreyfuss (2004), Heller and Eisenberg (1998), Jaffe and Lerner
(2004), and Lessig (2001).
126. See, for instance, Maskus and Reichman (2005), Maskus and Reichman (2004),
and Stiglitz (1991).
127. Boyle (2004).
128. Abbott (2001), Maskus (2002a), Mayne (2002), Scherer and Watal (2002), and
WHO (2002a, 2004).
129. Odell and Sell (2006), Sell (2002), and Sell and Prakash (2002). Palmedo (2005)
provides a review of the coverage of the December 2005 WTO deal on generic
medicines manufactured under a compulsory licence.
130. MSF (2001). Examples of public-private IP-related initiatives launched included
the African Agricultural Technology Foundation (AATF) and the Centre for
the Management of intellectual Property in Health Research and Development
(MIHR).
131. Love (2003).
132. Stiglitz (2002: 245–6).
133. For information on this campaign, see http://www.access2knowledge.org/cs/.
134. Lessig (2004).
135. Leading legal scholars observe that the use of words like ‘theft’ and ‘piracy’ to
describe unauthorized copying is often misleading because both terms obscure
important differences between physical and intellectual property. See Landes and
Posner (2004).
136. ActionAid Brazil (1999), Shiva (1997, 1999, 2001), and Perlas and Salazar (1991).
137. Civil Society Coalition (2004), May (2006b), and Musungu (2005).
138. CIPR (2002).
139. DFID/DTI (2003).
140. Herfkens (2001).
141. Ibid.
142. Group of 77 and China (2003b).

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143. Ibid.
144. Ibid.
145. Cited in Kwa (2002).
146. Author’s interviews with Geneva-based developing country delegates and NGOs
in 2003.
147. Menescal (2005) and author’s interview with Ahmed Abdel Latif, see note 119.
148. Author’s interviews with Indian government delegates and NGOs from 2003 to
2007.
149. Musungu and Oh (2006: 46).
150. Musungu and Oh (2006).
151. Ibid.
152. EC (2003, 2004c).
153. EC (2004c).
154. EC (2004c: 2–3). See also EC (2006).
155. Bentolila (2002/3).
156. Otten and Wager (1996), and Otten (2003).
157. Reichman (1998a).
158. For a WTO perspective on the activities of the Council, see Otten (2003).
159. For analyses of the operation of these mechanisms, see Geuze and Wager (1999),
Gerhart (2000), Giust (1997), Helfer (2004), Okediji (2001, 2003b, 2004b), and
Qureshi (1995).
160. Barnett and Finnemore (1999).
161. The three exceptions were Ghana, Mauritius, and Swaziland.
162. These reviews provided for written questions prior to the review meeting, with
follow-up questions and responses during the course of the meeting. At subse-
quent meetings of the TRIPS Council, delegations could follow up on points that
emerged in the review session. For the record of the introductory statements made
by delegations, the questions put to them, and their responses, see the WTO’s
online document database at http://www.wto.org/english/docs_e/docs_e.htm.
163. Reichman (1998a).
164. Ghosh (2007). Korea and Taiwan were the only developing countries to pose
questions.
165. These include IIPI, PhRMA, RIIA, CISAC, and the BSA. Annual reports from each
of these organizations are available on their websites.
166. Pengelly (2005) provides a summary of capacity-building from a range of
donors. Matthews and Munoz-Tellez (2006) compare bilateral assistance from the
European Union, Japan, and the United States. The FAO (1997) and WTO (2004b)
each also summarize their respective IP-related technical assistance activities in
developing countries.
167. Records of technical assistance and capacity-building provided by the WTO,
WIPO, the U.S. government, and the EPO are all available on their respective web-
sites, sometimes in a searchable database format. Each donor, however, organizes
and presents data in different formats using distinct categories. Several sources list
the projects initiated but do not indicate the budget. The WTO/OECD database
on trade-related capacity-building also lists IP assistance from a broad range of
donors.
168. WIPO (2005a).

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 International Pressures on Developing Countries

169. WIPO (2007a).

170. WIPO-WTO (1996).
171. The EPO’s membership includes all European Union members (except Malta) as
well as Iceland, Lichtenstein, Monaco, Switzerland, and Turkey.
172. Villaneuva (2005).
173. This observation draws from author’s interviews conducted between 1999 and
2007 with a range of developing country delegates to WIPO and long-term
observers of the organization, including former and current staff.
174. WIPO (1999c, 2004a, 2005a).
175. Author’s interview with Ahmed Abdel Latif, former Egyptian delegate to WIPO,
Feb. 2005.
176. Fink (2008).
177. Fink (2008: 23).
178. For information on these and related cooperation projects, see Matthews and
Tellez-Munoz (2006).
179. USPTO (2006).
180. USTDA (2006).
181. See Andersen (2006), New (2006b), and Villaneuva (2005).
182. Author’s interview with Diana Tussie, Director, Department of International Rela-
tions, Latin American School of Social Sciences (FLACSO), Mar. 2008.
183. For examples, see http://www.iipi.org. In 2007, Intellectual Property Watch con-
ducted an interview with another active provider of technical assistance, Michael
Ryan, who noted the support he received from major U.S. multinationals and
government agencies for his work to promote stronger IP protection in developing
countries. See IP-Watch (2007).
184. Author’s interviews with national IP officials from Brazil, the Philippines, and
Thailand.
185. Mertha (2005).
186. Drahos (2007).
187. UNAIDS/WHO (2000) and WHO (2004).
188. Correa (2004c) and WHO (1999a, 2001, 2004).
189. Correa (2000a). Other notable references include Baker (2004), CIPR (2002), Cor-
rea (2003), South Centre (2000), TWN (2003b), UNDP (2001), Velasquez and
Boulet (1999), and Watal (2001).
190. Correa (2000a).
191. Tarlock (1992), Nelson (1995), Weiss and Gordenker (1996), and Raustiala (1997).
192. Essential Innovations (2005).
193. See, for example, Matthews (2005), Matthews and Munoz-Tellez (2006), and May
(2004). Several NGOs also published critical reviews. See Bellmann and Vivas-
Eugui (2004), Kostecki (2005), Musungu (2003), and Pengelly (2005).
194. Kostecki (2005), MSF (2003), May (2004), and Musungu (2003).
195. Ibid.
196. GRAIN (1999d).
197. For summaries of these meetings see the following documents available,
see the following WIPO documents: UPOV-WIPO-WTO/NBO/99, UPOV-WIPO-
WTO/CAI/99, UPOV-WIPO-WTO/BKK/99 and UPOV-WIPO-WTO/99.
198. GRAIN (1999d: 4).

195
 6
The Developing Country Dimension:
How National Politics Mattered

International pressures such as trade threats, diplomatic intimidation, and

capacity-building had a decisive impact on how developing countries
implemented TRIPS. Developing countries simultaneously faced a pervasive
compliance-plus IP discourse at the global level. But such pressures did not
hit the ground unmediated. To gain a full explanation for variation in devel-
oping country responses to TRIPS, attention to the national dimension is
vital.
At the national level, a range of factors in developing countries mediated
international pressures and acted as drivers of domestic decision-making. As
noted in Chapter 3, national economic circumstances were sometimes a key
influence on the decisions of legislatures, IP offices, and others playing a role
in implementing TRIPS. Economic circumstances of countries also impacted
the susceptibility of national governments to pressures from abroad and their
capacity to filter and manage these pressures.
This chapter explores how political dynamics within developing countries
conditioned the extent to which the pressure of international power and
global IP debates influenced how governments approached TRIPS implemen-
tation. In literature on the politics of TRIPS, the importance of national
factors within developing countries in the TRIPS implementation games is
often neglected. This chapter emphasizes that developing countries were not
simply ‘empty vessels’ upon which TRIPS and international pressure for strong
implementation were applied. It shows how national factors intervened in
the IP reform process in developing countries and contributed to variation in
TRIPS implementation.
At the national level, governments were the main actors charged with
giving domestic effect to the international legal obligations in TRIPS. The task
of implementing TRIPS required governments to decide on the substance of
IP laws and the nature of institutions responsible for their implementation,
to clarify and interpret laws where conflicts arose, to promulgate regulations

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 The Developing Country Dimension

to give TRIPS practical effect, and to specify the level of resources that would
be dedicated to administration and enforcement of those laws. These deci-
sions, and the subsequent operation of the IP system, involved many parts
of government, including courts and the judiciary, the legislature, patent
and copyright offices, customs and taxation offices, and law enforcement
agencies. Across the developing world, the character, capacity, and behaviour
of government in all these matters varied widely.
This chapter reviews three main aspects of variation in national politi-
cal dynamics that contributed to differences in how developing countries
responded to their TRIPS commitments: (a) government capacity, (b) the
degree of public engagement, and (c) government coordination. I introduce
each of these elements separately, but emphasize the overlap between them.
To support my analysis, I draw on examples of variation in the use of TRIPS
flexibilities and in the timing of TRIPS implementation set out in Chapter
3. The second half of the chapter presents four mini case studies that illus-
trate how the interplay between these three elements – national politics,
international pressures, and global IP debates – generated variation in TRIPS
implementation.

6.1. Government Capacity on IP Decision-Making

Several aspects of the capacity of developing country governments help to

explain variation in TRIPS implementation, namely differences in depth of
government expertise on IP issues, the administrative competence of govern-
ment institutions, and the ability to maintain control of national IP offices.1

6.1.1. Technical Expertise

As countries embarked on reforms to meet TRIPS commitments, their exper-
tise on IP issues varied considerably. As observed in Chapter 2, most develop-
ing countries inherited IP laws from their former colonizers and had subse-
quently not devoted much attention to the IP system.
Across Africa, the colonial era left most countries with very weak expertise
on IP. At the time TRIPS was negotiated, most IP regimes in African countries
were effectively dormant. Few local businesses or innovators made use of the
IP system. Rather, it was overwhelmingly foreign companies that applied for
and were granted IP rights in the region. National governments devoted few
resources to the operation of IP offices. In most instances, decision-making
was further constrained by a deep lack of technical knowledge or policy
experience of IP issues. In the capitals of francophone Africa, government
capacity was particularly low, in part because governments had long delegated
significant responsibility for IP administration to a regional organization (see

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Chapter 7). In anglophone Africa, the capacity of countries varied for histori-
cal reasons. In colonial times, the governors of each separate UK territory were
allowed some discretion as to how they administered national IP laws. In cer-
tain cases, local lawyers were trained in IP administration and local innovators
were allowed to access the system. Consequently, in several of these countries
(e.g. Kenya, Ghana, Nigeria), the body of IP expertise was greater than in
other African countries. Many of the poorest countries, however, continued
to defer to former colonial powers for legal models. In the absence of local
expertise, many countries also copied or adopted laws from countries with
a shared colonial heritage or linguistic background. Angola’s draft industrial
property law, for example, includes elements from the 1995 Portuguese Code
of Industrial Property, the 1996 Brazilian Law of Industrial Property, and the
1999 Mozambique Code of Industry Property.
The availability of expertise was higher in several of the larger and more
economically advanced developing countries, such as Argentina, Brazil, Chile,
India, Korea, Mexico, and South Africa. Governments in each of these coun-
tries had greater substantive experience with the IP system. In India, for
instance, the British colonizers left a considerable IP technical and legal exper-
tise behind. Further, for countries such as Brazil and Argentina, participation
in the TRIPS negotiations equipped them with stronger technical knowledge
of the options in TRIPS than most other developing countries. While many
developing countries built their IP expertise over the course of implementing
TRIPS, at the time most faced deadlines for implementation (i.e., in the year
2000), national IP expertise was very limited.

6.1.2. Institutional Strength

The characteristics of government institutions also impacted TRIPS imple-
mentation. The fact of weak public administration in many of the poorest
developing countries is widely acknowledged; indeed this is often identified
as among the core conditions that defines countries as developing. In many
of the poorest countries, TRIPS implementation was undertaken by govern-
ments plagued by corruption, inadequate resources, and political unrest. In
such circumstances, political survival rather than coherent decision-making
preoccupied many national elites.2 By contrast, countries such as Brazil and
India had stronger institutions.
When studying TRIPS implementation, we should also not assume that
policymakers accurately perceived their national interests or had the resources
and inclination to carefully weigh the different options for TRIPS imple-
mentation. The political science literature on government institutions alerts
us to the fact that policymakers may be only ‘boundedly rational’ when
making decisions3 because they are involved a complex set of interac-
tions between interests, ideas, individual psychologies, and organizational

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 The Developing Country Dimension

structures. Within developing countries, decision-makers on TRIPS imple-

mentation were embedded in social, economic, political, and cultural rela-
tionships that were often beyond their control and also their cognition.4
In the face of limited time, information, expertise, and finances, developing
country governments often ‘satisficed’ rather than ‘maximized’ when it came
to responding to TRIPS obligations.5

6.1.3. Control of IP Offices and Decision-making

With the exception of a handful of countries, like Brazil and India, the
prospect of tailored approaches to TRIPS implementation was curtailed by the
absence of a broader policy framework setting out national needs and prior-
ities through which reform options could be considered.6 In general, IP law
was perceived as a ‘technical’ issue rather than one central to a range of public
policy goals. This led most governments to delegate the task of responding to
TRIPS and drafting laws to a small staff of technocrats located in national IP
offices.7 Among developing countries, Brazil stood out for having a strategic
approach to TRIPS implementation based on a broad policy framework for
development and associated industrial policies. India also worked to place IP
issues within a broader policy framework through its five-year plans.8
In most developing countries, IP responsibilities were typically divided
between an industrial property office located within the Ministry of Trade
or Industry, a copyright office located within a ministry charged with issues
related to culture, and another independent office addressing issues of plant
variety protection. In Chile, for example, copyright was handled by the Min-
istry of Education, Libraries, Archives, and Museums; industrial property by
Ministry of Economy; plant varieties by the Ministry of Agriculture; and bor-
der measures by the National Customs Service. In Egypt, industrial property
was handled by the Egyptian Patent Office under the authority of the Ministry
of Higher Education and State for Scientific Research. Responsibility for copy-
right registration and enforcement rested with three different ministries. The
Ministry of Culture was responsible for literary works, visual art, audiovisual
and musical works, and sound recordings. The Ministry of Media oversaw the
protection of broadcasting organizations through neighbouring rights and the
Ministry of Information and Communications dealt with computer software
and databases.
The way in which several governments organized IP decision-making
evolved over time. In 2004, the Philippines became one of the first developing
countries to establish a combined national office for all IP matters. A 2005
study noted that the ‘lack of specialized knowledge on IP in other government
agencies’ meant that the national IP office ‘monopolizes IP policy in the
Philippines’.9 The study further stated that ‘[s]ince IP is a specialized field, the
Philippine government defers to and relies on the Intellectual Property Office

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The Implementation Game

(IPO) to advise it on international IP matters and in trade negotiations’.10

By 2005, Jamaica had also created a combined Intellectual Property Office
(JIPO) charged with all matters relating to IP. The same year, Pakistan similarly
established an overarching IPO, with the active support of the United States,
which reports to the national Cabinet and is directly under the supervision of
the Prime Minister.
The uneven capacity of governments to provide substantive policy
direction and oversight of their IP offices further contributed to variation in
TRIPS implementation. Across the developing world, most IP officials openly
favoured strong IP protection and took a compliance-driven approach to
TRIPS. This shared tendency was attributable to several factors, including
the narrow mandate of most IP offices (one of promoting IP protection), the
financial autonomy of many IP offices, the staffing of IP offices by lawyers
generally trained only in the technical aspects of IP, and dependence on donor
support. In many cases, national IP offices were authorized to retain all or a
portion of their income from the fees they charged from patent applications
and renewals. Otherwise, revenues were forwarded to the national treasury
for distribution through the national budget process.11 The self-financing
nature of many IP offices had two implications. First, they escaped the
regular oversight that agencies fully reliant on annual disbursements from
national budgets might have experienced. Second, self-financing rendered
IP offices strong candidates for ‘capture’ by their core clients (i.e. industries
and IP attorneys seeking IP protection) and an institutional bias towards the
approval of IP applications. In developed countries (upon which developing
countries have modelled their approach to IP administration), evidence
of these challenges has prompted calls for reform to the governance of
IP offices.12 Importantly, in addition to funds raised through fees or from
national budgets, IP offices reviewed heavily on in-kind and direct financial
support from foreign donors. (see Chapter 5).
All developing country IP offices were the beneficiaries of technical assis-
tance, training, institutional support, IT infrastructure, or other services pro-
vided by international donors. This support enabled IP offices to undertake
a range of activities, including public awareness activities, training, and the
modernization of IT and administration systems. The high degree to which
IP offices relied on external support rendered them vulnerable to financial
influence from donors. The constant supply of training, advice, and capacity-
building from international donors bolstered the dominance of IP offices
in national IP decision-making, and thereby reinforced a compliance-plus
approach to TRIPS implementation. Countries with the lowest technical
capacity on IP, such as those in Africa, were particularly vulnerable to pro-
IP capacity-building (see Chapter 7).
Even in IP offices with relatively strong administrative and staff capacity,
officials generally had a positive disposition towards stronger IP protection. In

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 The Developing Country Dimension

these cases, capacity-building reinforced the dominance of pro-IP technocrats

in national IP debates. A 2005 case study on IP-related capacity-building to the
Philippines IP Office (IPO) (which has some 300 staff) notes that the ‘purely
compliance-driven nature of the assistance converged with IPO’s statutory
mandate and orientation to strengthen the administration of the IP system;
that is, the technical assistance only reinforced the compliance agenda of
the IPO’.13 The study emphasized the importance of which agencies donors
choose to support, noting that the Philippines IPO was by far the dominant
recipient of capacity-building and also the agency most active in pushing for
higher standards of IP protection and enforcement. In 2000, for example, the
Philippines IPO ‘announced that its vision was “to be an active player in the IP
global community,” thus projecting itself as part of an international network
of IP offices that share a common objective: advancing IP protection’.14 Other
national agencies relevant to IP policymaking, such as the Department of
Science and Technology, received no assistance for their work. Similarly, a
study of capacity-building in Thailand noted that in the area of legislative
reform, ‘most technical assistance appears to be designed to further the devel-
opment of IP rights’.15 According to the head of the Thai IP office, the bulk of
donor resources to Thailand were channelled to fund enforcement activities
whereas the primary national needs were how to manage IP and use it to
commercialize new inventions.16 Beyond countries such as Brazil and India,
the IP offices of Pakistan and Venezuela were among the few noted for the
more independent perspective of their staff.17 In the absence of a broader
public policy framework, public oversight, and strong technical expertise –
and under the influence of pro-IP capacity-building and technical assistance –
the incentives for most IP offices to advocate a swift and compliance-oriented
approach to TRIPS were clear.
After legislative reforms to meet TRIPS commitments were made, decisions
made within IP offices influenced how TRIPS flexibilities were used and
interpreted.18 The approach to the examination of industrial property applica-
tions varied. Most developing countries’ governments lacked the capacity to
examine patents. In these cases, IP offices served as registration offices only,
relying on cooperative arrangements with WIPO and developed country IP
offices for patent searches and examinations. The Japanese Patent Office (JPO),
the Korean Intellectual Property Office (KIPO), the European Patent Office
(EPO), and the U.S. Patent and Trademark Office (USPTO), for instance, all
conducted patent searches and examinations for developing countries either
for a fee or free of charge. Vietnam, for example, relied on technical coopera-
tion with KIPO, the JPO, and the EPO.19 The majority of patent applications
in developing countries were filed through WIPO’s Patent Cooperation Treaty
(PCT), which called on each member to designate an international search
and examination authority. In the Philippines, for example, KIPO was the
international searching authority and preliminary examining authority for

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The Implementation Game

PCT applications. Most national IP offices were thus concerned primarily

with procedural matters, not the scientific and legal assessment of actual IP
applications. The size of the staff available for this task varied widely according
to the available resources and also the quantity of applications submitted.
In late 2007, Venezuela’s patent office had four patent examiners and had
not issued any patents for any foreign pharmaceutical product for at least
five years.20 In contrast, Brazil, China, Korea, and India had between around
500 (in the case of Brazil) and 4,000 (in the case of China) staff devoted to
administering the rapidly growing number of applications from both national
and foreign applicants in their countries.21 In each case, governments had
explicitly charged national patent offices with generating expertise for the
substantive examination of patents, though their capacity varies greatly.
IP offices and patent examiners also had considerable influence on the
nature of patents granted. In anglophone Africa, it was only in the post-
TRIPS era that IP offices stopped the practice of re-registration of UK patents.22
That said, the practice of rubber-stamping patents already issued elsewhere
(such as in the United States or European Union), whether or not consistent
with national IP laws, continued widely across Africa and the developing
world.23 In his work on the patent examination process in Vietnam, Drahos
highlights that a culture of ‘technocratic trust’ promoted deference to the
expertise of foreign IP offices.24 Examinations conducted by foreign IP offices
were often conducted according to criteria that did not necessarily match
those in their national laws. Even where governments did review applications
nationally, many developing countries used patentability criteria that mim-
icked developed country standards with respect to scope and inventiveness.25
The assessment of patents claims and the interpretation of the scope of
patentability were influenced by the regulations, guidelines, and procedures
for examination developed by IP offices and national courts.26 Moreover,
the task of determining whether the criteria of novelty, inventive step, and
industrial applicability were met was often beyond the technical, legal, or sci-
entific competence of national IP officials. The result was that many countries
granted patents on subject matter not required by their laws. In the ARIPO
region, for example, even though several countries took advantage of TRIPS
flexibilities to exclude the animals and plants from patentability, national
governments regularly failed to challenge the grant of precisely such patents
by the ARIPO Secretariat.27 In addition, across Africa pharmaceutical product
patents were issued even though most country’s laws did not yet provide for
such patents. In the course of debates about compulsory licensing in Brazil
and Thailand, questions arose about whether the patents for the medicines
in question should have been granted in that country in the first place.28
The security of patent rights also varied, as did the existence of procedures
for pre-grant and post-grant opposition of patents, and the speed with which
patents were examined and granted. In general, IP offices in both developing

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 The Developing Country Dimension

and developed countries faced extensive backlogs in patent and trademark

applications. In 2006, the Brazilian Industrial Property Office estimated that it
would take five to six years to work through its backlog (estimated to include
some 21,000 applications for pharmaceutical product patents and 600,000
trademark applications). Similarly, India was estimated to have some 45,000
patent applications pending in the same year.29 In 2007, China and Korea
together boasted the busiest IP offices in the world in terms of the number of
applications received.30

6.1.4. Examples of How Government Capacity Mattered

Several examples highlight how differences in technical expertise, institu-
tional strength, and control of IP offices contributed to variation in how
developing countries approached IP reforms to implement TRIPS and their
susceptibility to international pressures.
Despite having incorporated TRIPS flexibilities with respect to compulsory
licensing in their national laws, less than fifteen developing countries subse-
quently issued such a licence. The use of compulsory licensing depended on
national circumstances and the degree of external pressure (See Section 6.4.4
for a fuller discussion of the political dynamics in this area.). On the domestic
front, government capacity was often a core constraint. Many officials lacked
both knowledge of the compulsory licensing options available to them (even
where these were provided in their laws) and the legal expertise on how to
proceed.31 Further constraints included administrative and legal hurdles on
the part of national governments weak or non-existent local generic drug
manufacturers.
The limited technical IP capacity in many developing countries made the
influence of technical assistance more potent. In the area of plant variety
protection, most developing countries had no history of protection in this
area pre-TRIPS and had particular difficulty promulgating and administer-
ing relevant laws. Even India, one of the most advanced of the developing
countries, took six years to move from the passing of its 2001 Act on the
Protection of Plant Varieties and Farmers Rights to the promulgation of related
regulations in 2006 and the launching of an Authority to actually begin the
administration of the Act in 2007. In the area of copyright, the varying techni-
cal capacity of governments again impacted the use of TRIPS flexibilities. The
failure of many countries to take advantage of limitations and exceptions to
copyright available in TRIPS was spurred by the compliance-oriented nature
of external technical assistance and legal advice to copyright offices with little
internal expertise.
To address the capacity gap, donors stepped in, with WIPO taking the lead
role. Between 1996 and 2007, WIPO provided targeted legal advice to over
100 developing countries on matters of TRIPS interpretation, developed and

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The Implementation Game

promoted ‘model laws’ for the implementation of TRIPS obligations, provided

advice and feedback on proposed laws, and supported legal drafting of laws.32
WIPO provided a series of model laws that countries could consult or adopt
‘off the shelf’. While there were some modifications to the model laws over
time, they have been widely criticized for failing to draw full attention to
the flexibilities and options available to developing countries with respect
to TRIPS implementation.33 In the Philippines, for example, WIPO provided
legal advice to the patent office regarding implementation of TRIPS and the
Philippines subsequently used WIPO’s model laws to draft its legislation on
integrated circuits.34 In Antigua and Barbuda, draft IP laws were based on the
WIPO model for copyright and the WIPO PCT model for patents; at the time
of drafting, the country had no national IP office.35
Differences in government capacity also influenced how countries orga-
nized the management of copyrights. In most cases, TRIPS implementation
laws established societies for the collective management of copyright (i.e.
organisations that collect and disperse licensing and royalty fees for copyright
holders) within government (usually in copyright offices or the ministries
that house them) or provided the legal framework for independent societies
(e.g. self-financing, non-profit entities established by the authors on their
own behalf).36 Countries are not obliged under international law to set up
collecting societies, but both the Berne Convention and TRIPS (by incorpora-
tion of Berne) refer to them as important instruments for implementing the
obligations contained therein. In 2001, the UK government’s Commission on
Intellectual Property Rights (CIPR) drew attention to the administrative and
financial challenges that developing countries may face in establishing such
societies, and urged careful reflection upon the most appropriate approach.37
Nonetheless, the vast majority of the WTO’s developing country members
established some kind of collecting societies, at least on paper. The exceptions
were small countries with small markets (such as Swaziland) or those which
have faced particular internal political challenges (such as Rwanda).
In Latin America, most collecting societies were independent (reflecting the
approach of most developed countries) and focused on the music sector. In
the Middle East, the only country with a collecting society was Lebanon (not
a WTO member) and in North Africa, two governments established state-run
collecting societies post-TRIPS. In Asia, where TRIPS spurred the establishment
of most collecting societies, there was a combination of independent and
state-run collecting societies. In general, state-run collectives existed in coun-
tries where much of the relevant economic activity was state-run (e.g. state-
run broadcasting organisations in China and Cuba), or where there was little
local demand from industry to establish such a service. In sub-Saharan Africa,
for instance, most collecting societies were state-run, either in collaboration
with or through copyright offices within the Ministry of Culture. Many of
these societies were established post-TRIPS with WIPO’s assistance and have

204
 The Developing Country Dimension

very limited resources and activities. In some African countries with an active
local music industry and market, such as Kenya, Nigeria, Senegal, and South
Africa, there were also independent music collecting societies.
In most developing countries, the establishment of collecting societies was
only achieved through collaboration and financial support of agencies such as
CISAC, WIPO, and also by foreign collecting societies with local interests (i.e.
Japanese societies in other Asian countries).38 Across the developing world,
the ratio of royalties received from other countries versus royalties paid to
other countries weighed strongly in favour of foreign interests. That is, most
royalties went abroad.39

6.2. Public Engagement

The degree of engagement by national legislatures in IP reforms and the

responsiveness of the executive and legislative branches of developing coun-
try governments to interest groups strongly contributed to the variation in
TRIPS implementation.
In general, parliaments in many developing countries do not subject laws
proposed by the executive branch to the same degree of scrutiny as developed
countries with a longer parliamentary tradition. There are, however, consider-
able differences among developing countries with respect to the strength and
role of the legislative branch both formally (in their constitutions) and also
informally (through the customs and cultures that influence how decisions
are actually made).
The relative strength and autonomy of the executive branch, its discre-
tionary power with respect to foreign policy, and its power to sign and
ratify international agreements also vary widely. The constitutions of some
countries provide that international treaties have ‘direct effect’ without the
need for legislatures to debate and act. In these cases, TRIPS implementa-
tion generally required a series of administrative directives issued by the
executive branch of government. In most developing countries, legislatures
were required to ratify TRIPS and also to enact laws to give effect to the
commitments contained therein. Importantly, TRIPS was just one of a suite of
Agreements that were signed at the conclusion of the Uruguay Round. Faced
with a document of over 1,000 pages, most developing legislatures proceeded
swiftly with ratification with little discussion of the substance of the Agree-
ments. Only later, as deadlines to actually implement TRIPS approached, did
some parliaments become aware of the full extent and implications of the
legal commitments in TRIPS.
Parliaments also impacted the timing of TRIPS implementation. In many
countries, there was a considerable lag, from several months to over ten
years, between the date that governments proposed new laws to implement

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The Implementation Game

TRIPS and the date at which legislation came into force. Developing country
governments frequently attributed delays in TRIPS implementation to the fact
that the national legislative agenda was already full, dominated by other press-
ing legislative priorities, or that parliamentary debate was still underway.40
In a number of cases, however, governments consciously left legislation to
languish in slow parliamentary processes (sometimes as a form of passive
resistance to implementing an agreement they perceived as illegitimate and
contrary to their economic interests).41
In only a few countries, such as Argentina, Brazil, India, South Africa,
and the Philippines, did some aspects of IP reforms related to TRIPS imple-
mentation provoke intense debate in national legislatures or parliamentary
committees.42 In Argentina, where the process of legislative reform began
even before TRIPS was completed, the passage of TRIPS-compliant patent
legislation in 1996 was preceded by some five years of substantive congres-
sional debate on the issues.43 In most developing countries, parliaments were
marginal to the process of TRIPS implementation. When sixteen francophone
African governments signed and ratified a new, updated regional IP agreement
to bring them in line with TRIPS, for instance, their decision did not attract
debate in any of their legislatures.44 Indeed, governments in four of these
countries were facing internal civil unrest at the time (Guinea-Bissau, Congo,
Chad, and Côte d’Ivoire). Domestic political instability and civil wars also
constrained the prospect for parliaments to debate IP reforms in Sierra Leone,
Angola, and Sudan.45 Even in countries where parliamentary debate did occur,
such as India and the Philippines, most legislators lacked the expertise needed
for substantive consideration of IP laws (as is also generally the case in devel-
oped countries such as the United Kingdom and the United States).
In some developing countries, lobbying by interest groups impacted the
degree of parliamentary engagement in TRIPS implementation as well as
executive branch decisions.46 In the ideal model, bargaining with respect to
government policy takes place among equally well-resourced and informed
interest groups. In practice, however, there is a tendency for ‘diffuse pub-
lic interests’ to be less well represented.47 Such was often the case in the
realm of IP decision-making. Where there was debate, well-organized, pro-
IP industry lobbies dominated decision-making processes while consumer
groups generally had a ‘weak, diffused, virtually voiceless interest’.48 Indeed,
in developed countries, IP decision-making is cited as a classic example of
regulatory capture by rent-seeking constituencies.49 In the United States,
for instance, government agencies such as the USPTO and the USTR are
far more directly engaged with, and influenced by, the concentrated pro-IP
interests of multinationals, local exporters, and local IP producers than by
the diffuse interests of consumers, scientists, libraries, patients, schools, and
elderly people in promoting access, at affordable prices, to knowledge and
technologies.50

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 The Developing Country Dimension

In the majority of developing countries, only a small number of inter-

est groups actively expressed any opinion on TRIPS implementation or IP
reforms. The limited activity of any IP constituency groups – from industry
or civil society of domestic or international origin – presents an obvious
constraint to the use of interest-group analysis in these cases. In countries
with low technological development, such as Nepal and most sub-Saharan
African countries, the absence of pro-IP lobby groups was not surprising.
Just as supporters of stronger IP policy frequently lamented that developing
countries lacked pro-IP constituencies to help governments see the benefits of
stronger IP protection,51 NGOs expressed regret about the low interest of local
public interest groups in IP issues.
The absence of public debate on IP issues provides a critical part of the
explanation for the limited use of TRIPS flexibilities, particularly in those
countries where economic realities and social needs would lead us to expect
countries to have taken advantage of them.52 In many developing countries,
the only significant domestic interlocutors governments encountered were
national associations of patent and trademark agents and copyright lawyers,
staff of national IP offices, and national legal scholars. Most IP offices lacked
procedures for systematic or even occasional consultation with stakeholders
from the business sector or others sectors. In some cases, sporadic consul-
tations occurred with assistance from external donors or NGOs. As TRIPS
implementation advanced, some governments established their own internal
committees on IP issues, a handful of which were complemented by mecha-
nisms for consultation with the private sector and experts (e.g. India, Brazil,
and the Philippines). From 2004 to 2007, a growing number of governments
established mechanisms to facilitate cooperation with private IP rights holders
in the area of enforcement or to sporadic consultations.
In a subset of developing countries, interest group politics did significantly
impact TRIPS-related IP reforms, namely those with distinctive civil society
campaigns on aspects of IP policy, particular industry interests in favour
low IP protection, or industry groups with interest in stronger IP standards
and/or enforcement. Existing scholarly studies of Brazil, Mexico, Argentina,
India, the Philippines, and South Africa highlight that interest groups both
for and against stronger IP protection actively promoted their viewpoints on
TRIPS implementation to parliaments and government agencies.53 The impact
of these groups was felt in several ways, including through intervention in
legislative debates, lobbying of the executive branch and parliamentarians,
and passive or active resistance to government measures to protect IP.
The agenda of public interest–oriented interest groups varied by country,
but there were common threads. As global debates on IP policy expanded
from biodiversity/agriculture to public health and then from education to
access to knowledge, the range of civil society organisations and breadth
of public debate grew. At the national level, some groups became powerful

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domestic lobbies against stronger IP standards, sometimes defeating efforts to

strengthen laws and in other cases slowing or weakening proposed IP reforms.
In many countries, interest groups emerged in response to national social
challenges (such as high rates of HIV/AIDS infection) or political concerns
(such as the rights of indigenous people and the misappropriation of indige-
nous knowledge). In India, Brazil, and the Philippines, campaigns by civil soci-
ety groups and NGOs began with concerns about biopiracy and an opposition
to patents on life forms.54 In Kenya and South Africa, well-organized civil
society movements successfully lobbied their respective parliaments to pass
or retain laws that promoted greater access to medicines.55 In Brazil, India,
and the Philippines, well-informed and highly organized domestic peasant-
based social movements took to the streets even before TRIPS was concluded
to express concern about IP protections on plants and to protect their rights
to share, use, and sell seeds.56 In some countries where government capacity
was low and pro-IP interest groups were largely absent, even small NGOs were
able to exert strong influence over parliaments. In Zambia, for example, a
handful of NGOs and national experts, with the assistance of international
advisors, developed a sui generis approach to the protection of plant varieties
and traditional knowledge that remains under consideration in the national
parliament.57 Between 2002 and 2005, NGOs were also active in Bangladesh
in pushing for a sui generis approach to plant variety protection and the draft
law continues to be debated. In Bangladesh, lobbyists for its growing software
and entertainment industries pushed for TRIPS-consistent copyright laws well
in advance of its LDC deadline for implementation.58
In some developing countries, alliances formed between NGOs and gov-
ernments. In Peru, government officials undertook a series of consultations
with indigenous communities seeking input on a proposed national law to
protect and promote indigenous knowledge. Meanwhile in Geneva, Peruvian
diplomats worked alongside representatives of their indigenous community
to use their draft national law to bolster their call for an amendment of TRIPS
to defend indigenous knowledge against biopiracy.59 Similarly, campaigns by
public health activists helped South African officials to resist U.S. and industry
pressures to revise their Medicines Act and alter their approach to TRIPS
implementation (discussed in Section 6.4 below).60
Changes in technology and business opportunities also provoked the emer-
gence of interest groups in some developing countries that lobbied in favour
of stronger IP protection. In Argentina, Brazil, and India, generic drug indus-
tries lobbied governments on issues related to IP protection for pharmaceuti-
cals even before TRIPS. But as economic opportunities emerged, such as the
potential to conduct ‘outsourced’ research for multinational R&D companies,
the views expressed by domestic industry diversified. In India, for instance,
the growth of the domestic software and film industries spurred some com-
panies to voice a preference for stronger and more effective IP protection

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both at home and abroad.61 Similarly in the area of public health, while
some Indian generic manufacturers remained keen to keep IP protections
for pharmaceuticals low, the growth of a domestic R&D capacity produced
a new set of actors in favour of stronger IP protection, either for their own
inventions or to provide the legal security necessary to attract contracts for
research and clinical trials from foreign pharmaceutical companies.62 In Brazil,
where generic drug manufacturers had long favoured IP rules that would
permit them to copy and adapt foreign technologies, the growth of domestic
R&D capacity in biotechnology, information technology, and alternative fuels
led some companies to favour stronger IP protection for their inventions
and to attract research contracts from large multinationals.63 Meanwhile,
Bangladesh’s generic drug industry maintained a clear view that the govern-
ment should take full advantage of the country’s LDC status to delay efforts
to upgrade IP laws, particularly for pharmaceutical products.64 In Ghana, a
group of private sector actors took the initiative in 2005 to establish their
own private sector advisory group on IP bringing together several key local
business associations, including the Association of Ghana Industries (AGI),
Ghana National Chamber of Commerce, and the Federation of Ghanaian
Exporters.65
Variation in developing country responses to TRIPS also emerged from
the broader politics of how governments made national trade policy. Most
developing countries lacked systematic processes for gathering expert and
stakeholder input into their trade policy. Where consultations on trade policy
and bilateral FTAs did occur, export lobbies were the primary, and some-
times the only constituency, that were organized to express clear views and
recommendations.66 Part of the reason for TRIPS-plus trade agreements was
that domestic governments responded more to the targeted interests of mar-
ket access lobbies than to the diffused, less-organized constituencies interested
in cheaper technologies.67 Few countries assessed how the trade-offs between
deals that prioritize market access over autonomy in domestic policy regula-
tion would impact their core development priorities. (See Section 6.2. below.)
A final aspect relevant to how interest group politics generated variation
in TRIPS implementation was the relationship between ‘national’ and inter-
national interest groups. The perspectives expressed by many local interest
groups in developing countries were influenced by international counterparts
keen to advance their agendas on the national political stage. As noted earlier,
international NGOs, technical assistance providers, and foreign multinational
corporations were all active within countries, financing local affiliates, IP
attorneys, and legal scholars to work with or for them. The line between
national and international interest groups was further blurred because many
apparently ‘national’ IP interest groups were in fact international actors oper-
ating within national borders, engaging directly in national politics, and pur-
suing legal challenges in national courts. To build constituencies in favour of

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stronger IP protection, pro-IP companies and industry associations established

subsidiaries, affiliate national associations, and networks of IP professionals
in developing countries. The Business Software Alliance (BSA), for example,
created programmes in more than eighty countries worldwide to promote the
interests of the commercial software industry.68 In Argentina, Software Legal
was created, representing several software manufacturers including Adobe,
Symantec, and Microsoft. The International Confederation of Societies of
Authors and Composers (CISAC) helped create sister organizations at the
national level in developing countries such that it now boasts members
in over 100 countries.69 Similarly, AIPPI’s membership expanded to include
groups from some twenty-one developing countries and also established an
Arab regional group.70 While the community of IP attorneys in developing
countries was generally too weak to engage directly in TRIPS debates, its
members nonetheless served as the local partners and allies for international
actors.71 In some countries, local IP attorneys and scholars provided advice
to their governments regarding TRIPS implementation, often while simulta-
neously employed by foreign companies, NGOs, international law firms, or
IOs to represent their interests. In Chile, for instance, several national IP law
firms involved in providing advice on IP matters listed major pharmaceutical
companies such as Pfizer as their core clients.72 In Colombia, a member of the
governments’ IP negotiating team for its U.S. FTA later resigned to work as a
legal advisor for Pfizer.73
In many countries, the most energetic NGOs active at the national level
were direct subsidiaries of international NGOs or networks. While MSF led its
prominent Campaign for Access to Essential Medicines from offices in Geneva
and Paris, its subsidiary organizations in over fifty developing countries served
as the foot soldiers in its campaign. The Oxfam network also relied on offices
in over thirty developed and developing countries to lobby particular gov-
ernments and promote public campaigns. Third World Network (TWN) sim-
ilarly worked with its regional partners (such as the Africa Trade Network) to
provide technical advice and information to aid campaigns and government
decision-making at the regional and national level.74 GRAIN, one of the key
international NGOs active on IP issues related to agriculture, worked with
offices in the Philippines and in West Africa to support local NGOs lobbying
in those countries. The Health Action International movement harnessed its
global networks of consumers, NGOs, health-care providers, academics, and
individuals in Africa, Asia-Pacific, Europe, and the Americas to promote the
use of TRIPS flexibilities in favour of increased access to essential medicines. In
many cases, the existing location of regional and national offices influenced
the geographic focus of NGO campaigns. In addition, international NGOs
worked to build the capacity of partners in countries perceived to be particular
‘hot spots’ – either because of the threat of TRIPS-plus laws or because of the
potential to secure precedents for the use of TRIPS flexibilities. NGOs with

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 The Developing Country Dimension

no national or regional offices in developing countries – such as the Rural

Advancement Foundation International (RAFI) (now called the Action Group
on Erosion, Technology, and Concentration (ETC)) and CPTech were able to
be active within developing countries through alliances with broad networks
of other NGOs and civil society movements.
Importantly, many of the NGOs, civil society movements, think tanks, and
local experts engaged in TRIPS-related campaigns within developing countries
had links to transnational campaigns to influence not just national IP reforms,
but also global IP regulations. NGOs such as the Treatment Action Campaign
in South Africa and the Kenya Coalition for Access to Medicines were deeply
engaged with broader international networks of NGOs, some of which were in
turn included as part of their national coalitions.75 National and international
NGOs frequently worked together to develop political strategies, share infor-
mation and expert advice, and advance joint advocacy efforts (such as ‘sign on
letters’ to government officials). In November 2003, for example, the Uganda
Coalition for Access to Essential Medicines (which involved a broad range of
international and national NGOs working on human rights, consumer issues,
public health, and church groups) worked together with CPTech to draft a
letter to the Minister of Health concerning legal mechanisms for expanding
access to generic medicines in Uganda. Developing country NGOs often pro-
vided the ‘on the ground’ information that global campaigners needed to
secure the attention of the international media. Conversely, national NGOs
generally relied heavily on technical and legal inputs from an international
network of experts on TRIPS flexibilities. Collaborations with international
think tanks were also important. In Africa, for example, the Rome-based Inter-
national Plant Genetic Resources Institute (IPGRI) harnessed the support of
range of international donors (including from developed country government
aid agencies) to convene experts from across the African region to discuss sui
generis options for meeting TRIPS plant variety protection requirements.76

6.3. Government Coordination

The third national factor that impacted variation in TRIPS implementation

was the degree of government coordination. Several aspects of coordination
were relevant, including coordination between national officials and diplo-
mats that represented their external face, and coordination in respect of the
oversight of regional organizations.

6.3.1. Internal Government Coordination on IP Decision-Making

At the time IP laws were revised to meet TRIPS commitments, less than ten
of the WTO’s developing country members had a clear process for bringing

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together relevant ministries to discuss and coordinate IP decision-making

(e.g. Brazil, India, Peru, Senegal, and South Africa). Even where coordination
process existed, IP offices usually prevailed. In Venezuela, for example, the
existence of a multi-agency committee to focus on the implementation of the
entirety of WTO commitments did not result in a substantive discussion on
the appropriate national policy response to TRIPS obligations. Instead, TRIPS
implementation was seen as the competence of the IP office; a perception
that the IP office was keen to protect.77 While many governments established
multi-agency processes to respond to the entirety of their WTO obligations,
most of these efforts took place only after TRIPS-related legislative reforms
had been passed – and few resulted in a collaborative approach or substantive
debate about how best to respond to TRIPS obligations specifically. After TRIPS
reforms, some countries, such as Colombia, established internal processes to
consider IP policy issues. Such initiatives were often taken in response to U.S.
and EU pressures to improve IP enforcement or to feed into bilateral trade
negotiations, rather than to guide TRIPS implementation.
The distinctive internal cultures, priorities, and constituencies of different
parts of national governments impacted the prospect for coordination on
TRIPS implementation. In the Philippines, a legal authority noted that the
perspective of the IP office was ‘focused solely on efficient IP administration
and greater standards of protection’, thus limiting its ability to anticipate
or communicate to policymakers ‘the adverse impact of such policies on
other sectors such as health’.78 While the public health priorities of health
ministries sometimes led them to favour the use of compulsory licensing,
the pro-IP perspective of IP offices made them predisposed to guarding the
rights of patent holders. Trade ministries were also cautious about the use of
compulsory licensing as they were most sensitive to the fact that key trading
partners may respond negatively. Similarly, ministries responsible for culture
or education sometimes had distinctive views on the costs and benefits of IP
protection to the achievement of their respective priorities.79
The interplay of government institutions within developing countries also
affected TRIPS outcomes. The term of patent protection that rights holders
acquired in a given country sometimes depended on the time required for
regulatory and marketing approval, and on the country’s approach to prequal-
ification of generic drugs for which patents already existed. In some cases, the
use of TRIPS flexibilities depended on the initiative taken by non-IP agencies
within governments. In Malaysia and Thailand, for instance, it was the Min-
istry of Health that initiated requests for the grant of compulsory licences.
In South Africa, the Medicines Act explicitly grants the health ministry the
right to issue compulsory licences for public health purposes.80 Also in South
Africa, the Competition Commission played a role in how TRIPS flexibilities
were used. In 2003, a coalition of South African individuals, trade unions, and
civil society groups lodged a complaint before the South African Competition

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Commission against GlaxoSmithKline (GSK) and Boehringer Ingelheim.81

Upon finding the defendants guilty of excessively pricing their products and
refusing to grant generic licences, the Commission announced its intention
to seek a compulsory licence to allow all qualified suppliers to supply public
and private markets.82 Ultimately, an agreement was signed between the
AIDS activists and the pharmaceutical companies that reduced the price of
medicines.83 In November 2007, South Africa’s Treatment Action Campaign
filed a further complaint before South Africa’s Competition Commission, this
time against Merck for alleged refusal to licence the HIV/AIDS drug Efavirenz
on reasonable terms.84
In some countries, there were sporadic debates among IP offices and min-
istries of health, culture, agriculture, and industry regarding the use of par-
ticular TRIPS flexibilities (e.g. Columbia, Peru, and Thailand). But it was
governments with established processes for internal coordination that were
best able to resist external pressures and to advance a tailored approach to
TRIPS implementation.85 Among developing countries, India was the coun-
try with one of the longest histories of internal coordination and, relative
to other developing countries, and stands out for its strategic and tailored
approach to TRIPS implementation. In India, the Ministry of Commerce has
overall responsibility for WTO, including TRIPS implementation. In 1997, a
Coordinating Group of Secretaries on all WTO matters was established by the
Prime Minister and is chaired by the Commerce Secretary. Starting in 1996/7,
the Commerce Ministry initiated one of the most comprehensive consultation
processes among developing countries on TRIPS, involving industry and trade
organizations, NGOs, research and academic institutions, political parties,
and parliament. Consultations with NGOs and civil society were particularly
important in the process of designing India’s Plant Variety Protection and
Farmers’ Rights Act. In addition, the Commerce Minister constituted an Advi-
sory Committee on International Trade under his own chairmanship. The
Committee comprises industrialists, economists, NGO representatives, experts
from research institutions, and former public servants with an expertise in
WTO matters. This committee formed a subgroup to address TRIPS matters
and to consider specific issues and proposals for formulating India’s positions
in the WTO.86
In Brazil, there was also a formal collaborative relationship between the
patent office and the health ministry. (The grant of patents for pharmaceutical
products or processes must receive the prior approval of the Brazilian Sanitary
Surveillance Agency (ANVISA).)
From around 2002 there was growing recognition by developing countries
of the need to improve internal coordination among government agencies.
In 2002, Brazil bolstered its internal coordination by establishing an Inter-
ministerial Group on IP (IGIP), which draws together all relevant ministries
and agencies, including the ministries of agriculture and supply; science and

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technology; culture; development, industry, and foreign trade; justice; foreign

affairs; health; and the Brazilian patent office. Representatives of others parts
of government and experts were also invited to participate in the inter-
ministerial meetings. The Committee’s tasks included advising on pending
legislation on IP matters, giving guidance for multilateral and bilateral nego-
tiations regarding IP, and promoting inter-ministerial coordination on IP mat-
ters. In 2002, Costa Rica set up an Inter-Ministerial Committee on IP matters
with representatives from the Ministry of Justice, Ministry of Foreign Trade,
Public Ministry, Customs Administration, and the Judicial School.87 From
2001, Egypt also committed to greater coordination on trade and IP matters.
The Ministry of Trade and Industry established a Central Department for
WTO matters and a Coordination Committee, which gathers representatives
of all relevant ministries and agencies and includes a subcommittee on TRIPS.
Egypt’s positions on ongoing topics of WTO negotiations, such as TRIPS and
public health, are determined in these committees.

6.3.2. Coordination Between the External and Internal

Faces of Government
Weak coordination and communication between delegates stationed in
Geneva (with whom the greatest political technical expertise about TRIPS
often resided) and their counterparts in capitals meant that many national
IP offices were not well informed of political debates underway at the interna-
tional level or of the options to integrate TRIPS flexibilities into their laws.
Interviews with the heads of several IP offices in francophone Africa, for
example, revealed that they were unaware that their government’s national
delegates to the WTO in Geneva had secured in 2005 a seven-and-a-half-year
extension to their TRIPS implementation deadlines.88
In many developing countries, the traditional chain of delegation from
capitals and diplomats (whereby diplomats act on instructions from their
national capital) was reversed. Instead, expertise, policy direction, and leader-
ship on matters related to TRIPS implementation came from Geneva. Lacking
input from national capitals, developing country diplomats frequently turned
to NGOs and international experts to test and galvanize ideas about options in
international negotiations and with respect to TRIPS implementation. In the
case of Senegal and Zimbabwe, for example, diplomats based in Geneva played
a critical role with NGOs to raise awareness of the public health implications
among national trade and health ministries of the different approaches to
TRIPS implementation. Collaborations forged among diplomats, NGOs, rep-
resentatives of IOs, and experts at the international level were particularly
important in promoting the adoption of a sui generis approach to plant variety
protection in several African countries. The Philippines provides a further
example. A Geneva-based diplomat prompted officials in the national capital

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 The Developing Country Dimension

to consider revising the national IP law to shift from a national exhaustion

regime to an international exhaustion regime that would provide greater
opportunity to import cheaper technologies.89
Having observed that efforts to help developing countries coordinate at the
international level were not necessarily improving the quality of decisions
related to TRIPS implementation, some international NGOs made intentional
efforts to serve as a ‘bridge’ between international and national NGOs, experts,
and government officials. The International Centre for Trade and Sustainable
Development (ICTSD), the South Centre, and the Quaker United Nations
Office (QUNO) each worked to link actors involved in TRIPS debates in
Geneva with those engaged in TRIPS implementation at the national level. To
promote greater synergy between negotiations in Geneva and national-level
decision-making, they organized travel for national experts and stakeholders
to Geneva, and financed travel for Geneva-based diplomats to contribute to
substantive discussions in their home countries. Through meetings and sem-
inars in Geneva, national capitals, and at the regional level, they worked to
facilitate communication and collaboration among government officials and
stakeholders they hoped would promote development-oriented IP reforms.90

6.3.3. Coordination of External IP Relations

A further aspect of coordination that contributed to variation in TRIPS imple-
mentation concerned how national officials interacted with the multiplying
number of international processes in which IP was discussed, the many dif-
ferent agencies within developed country governments with interests in IP
matters, and the widening number of suppliers of IP-related capacity building.
The challenges of coordination in these areas were exacerbated by the fact
that different government agencies often took the lead on particular processes
and relationships. While health ministries interacted with the WHO, trade
ministries were responsible for the WTO, and IP offices were the primary
interlocutors with WIPO and developed country IP offices. Beyond coordi-
nation constraints, there were also sometimes competing objectives within
governments. In many cases, IP offices supported the push for strengthened
IP protection and were not keen to fight at the international level, particularly
where they were reliant on significant technical and financial support from
donors such as WIPO. In some countries, trade and/or health ministry officials
were more willing to take a stand to defend TRIPS flexibilities or to push for
fairer rules. But most governments were unable to effectively coordinate the
various agencies responsible for relationships with the multiplying array of
external actors and processes. The ‘external face’ of many developing coun-
tries was thus fragmented.91
The notable exception in this respect was Brazil – the country that exhibited
the highest degree of coordination domestically on IP policy matters and

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that also achieved the greatest coordination of its external IP relations. A

core explanation for Brazil’s integrated approach to global IP debates was
the role and strength of its Ministry of Foreign Affairs,92 both in terms of
its power within the government and the calibre of its professional staff.
In most developing countries, ministries of Foreign Affairs did not usually
play a significant substantive role on IP issues.93 In Brazil, the Foreign Affairs
Ministry had the monopoly on the representation of Brazil in international
fora and on IP negotiations. The Ministry also had the prime role within
Brazil in the articulation of Brazilian positions on trade and IP matters. While
Brazil’s National Industrial Property Institute (INPI) is charged with offering
comments regarding the advisability of signing, ratifying, and terminating
conventions, treaties, accords, and agreements on industrial property, Brazil
is one of only one of handful of developing countries that designated the
Ministry of Foreign Affairs the focal point under Article 69 of TRIPS.94
In 2001, the Brazilian Ministry of Foreign Affairs also consolidated its
efforts to ensure the coherence of its national and international IP strategies,
establishing an independent unit to follow global IP-related matters and to
contribute towards a more coherent approach to IP issues at the multilateral,
regional, and bilateral level. More generally, Brazil places foreign affairs offi-
cials within each government ministry to manage its external relations. The
result was that Brazil not only spoke with a far more unified voice across
international processes than most other developing countries, but was also
able to better manage the range of input, advice, assistance, and capacity-
building from external sources.
Drawing on the Brazilian experience, several other countries have estab-
lished stronger coordination processes. In 2007, for instance, the Egyptian
Prime Minister approved a proposal by the Foreign Ministry to establish a
committee, steered by the Foreign Ministry, to coordinate on all non-WTO
IP issues at the international level (including matters related to WIPO, CBD,
and UNESCO) and to maximize benefits and coherence of technical assistance
provided particularly by WIPO.
The fragmented way the external face of developing country governments
interacted with international processes and donors had particular conse-
quences for variation in TRIPS implementation. In many developing coun-
tries conflicting understandings of which IP policies would aid their national
development and which would be viable under TRIPS emerged.
The way governments organized their interactions with foreign donors had
particular implications for TRIPS implementation. As noted in Section 6.1.1,
IP offices often had direct relationships with bilateral and multilateral donors
in respect of IP-related capacity-building. Given the limited salaries and pro-
fessional prospects for staff in the IP offices in many developing countries,
the influence of donors was often not just institutional but personal. Access
to training, seminars, and international conferences provided attractive

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incentives for many developing country IP officials to advance the agenda of

donors in their countries. They were also tools for the continual socialization
of officials into the international community of IP professionals persuaded
of the benefits of stronger IP protection.95 The potential for such influence
was particularly high in countries where national oversight of IP offices was
weakest.
Decisions regarding TRIPS implementation were often influenced by how
government officials charged with foreign and trade policy viewed the impor-
tance of IP issues among other national priorities and what behaviour they
perceived would be rewarded by donors, companies, and trading partners.
Depending on the broader issues at stake (trade, security of foreign aid), offi-
cials sometimes perceived compliance with the preferences of foreign powers
and donors on IP issues as a small price to pay. Repeated participation by
officials in international discussions on IP issues served to reinforce beliefs
regarding the benefits of IP protection and what kinds of policy decisions
were necessary in order to be considered a ‘forward-looking’ government,
worthy of success in the global economy. Conversely, the determination of
national officials critical of stronger IP protection was bolstered by repeated
interaction with pro-development and public interest activists and experts at
international conferences and negotiations.

6.3.4. Coordination and Regional IP Arrangements

The way national officials managed relations with regional institutions made a
critical difference to how TRIPS implementation proceeded. Well over a third
of the WTO’s developing country members adopted a regional approach to
the administration of their IP systems and to TRIPS implementation. The
timing of implementation and the use of TRIPS flexibilities were linked to
their participation in these regional IP arrangements. Over thirty African
countries are members of regional intellectual property organizations. Five
Andean countries also approached TRIPS implementation through a regional
arrangement, as did members of the Gulf Cooperation Council (GCC). The
scope and structures of these regional arrangements differed considerably.
The Andean countries approached TRIPS implementation with significant
expertise within the region on both the policy and legal dimensions of
IP. Together, Colombia, Bolivia, Ecuador, Peru, and Venezuela built their
approach to TRIPS implementation on several decades of cooperation within
the context of the Andean Community on matters of economic regulation
broadly and on IP specifically.96 Over the history of the Andean Community,
the perspective of members on the legal status of regional decisions and
their relationship to national laws varied. In principle, and according to the
Andean Court, regional Andean Community ‘decisions’ serve as suprana-
tional law. Regional decisions may be complemented by national laws and

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higher national standards, but in cases of conflict, such as on IP matters,

the regional decisions prevail.97 In practice, however, some members supple-
mented regional laws with national laws and at various points in the history
of the Community questioned the authority of the regional court.
In 1993, the Andean countries undertook a package of reforms that reflected
their commitment to liberalizing their economies.98 At that time, even before
the TRIPS negotiations were concluded, the Andean countries adopted Deci-
sion 85 (which brought their industrial property regime largely in line with
TRIPS) and Decision 351 (which established common provisions on copy-
right and neighbouring rights). The Andean countries faced considerable
pressure from the United States to match the ‘state-of-the-art’ IP standards
that Mexico had recently adopted as part of the NAFTA negotiations. At
the time of Decision 85, pressure from national pharmaceutical industries
made it politically impractical for the governments to pass such IP reforms
in their national legislatures. A decision at the regional level, on the other
hand, would automatically have an effect at the national level. Even though
Decision 85 brought in stronger IP standards, the Andean countries did not,
however, abandon altogether their reformist agenda in the area of IP and
industrial strategy.
In 2000, the Andean Community adopted a further decision (Decision 486)
on industrial property to meet their commitments under TRIPS. They did so
with a clear set of policy goals in mind. Decision 486 made considerable
use of the range of TRIPS flexibilities and was complemented by additional
IP-related law to regulate access to genetic resources. The Andean countries
also adopted a sui generis law for plant variety protection, adapted from the
approach advanced by UPOV 1978. These Decisions were complemented by
an earlier Decision 291, taken in 1991, which sets out provisions regarding
foreign investment and the treatment of foreign trademarks, patents, licens-
ing agreements, and royalties.99
Subsequently, as Andean governments changed, so too did national views
on the status of regional decisions. Several countries joined UPOV 1978 and
also supplemented the Andean decisions with their own national laws. In
2005, the Andean countries’ collective approach to TRIPS implementation
was further fragmented by bilateral FTAs with the United States. After efforts
to negotiate a U.S.–Andean FTA collapsed, Peru and Colombia proceeded
individually. In each of their FTAs, they committed to higher IP standards
than those in the Andean Community decisions. Their subsequent effort to
amend the regional Andean framework to incorporate these changes met con-
siderable resistance from other members.100 Indeed, Venezuela’s withdrawal
from the Andean Community in 2006 was attributed by its President in part
to this pressure.101 With the entry into force of the U.S–Peru FTA in 2007,
the status of the Andean Community’s decisions was uncertain. In order to
promote consistency between the regional decisions and its commitments

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in the FTA, Peru submitted a proposal to revise Decision 486 on industrial

property, but was rebuffed by other members of the Andean Community, such
as Bolivia, and criticized by NGOs in the region.
In Africa, the technical and institutional capacity of national governments
to properly monitor and guide the work of their two regional IP organizations
was limited. While regional delegation helped to address the challenges of
limited capacity and resources, the flip side was a failure to build national
technical or institutional capacity on IP or to embed IP decision-making
in broader national policymaking processes. The result was a scarcity of
substantive policy discussion on IP issues or TRIPS implementation within
national governments and minimal oversight of the regional organization on
technical, but socially significant, matters.
In francophone Africa, the African Intellectual Property Organization
(OAPI) is the most unified and comprehensive of the three regional frame-
works. In 1999, the sixteen members of OAPI revised their core legal instru-
ment to comply with TRIPS. When it came into force in 2002, the Bangui
Agreement became the national law for all its member states. (Chapter 7
explores TRIPS implementation in this region, illustrating the ways in which
regional delegation increased the vulnerability of governments with weak
national capacity to pressure from actors advocating stronger IP protection).
In anglophone Africa, regional cooperation has been underway for several
decades. ARIPO’s sixteen members have two core protocols, the Harare Proto-
col on Patents and Industrial Designs adopted in 1982 and the Banjul Protocol
on Marks adopted in 1993.102 In 2000, ARIPO’s mandate was expanded to
include activities related to traditional knowledge. In 2002, this mandate grew
further to include copyright, genetic resources, and expressions of folklore.
Importantly, ARIPO’s approach to regional cooperation was such that gov-
ernments still needed individually to implement TRIPS through their own
national laws. ARIPO was, however, the common industrial property author-
ity for its members. In this capacity, the ARIPO Office received and processed
patent and industrial design applications on behalf of its members according
to the rules and standards of patentability set out in the Harare Protocol. In
practice, these activities gave the ARIPO office considerable influence over the
scope of IP rights protected by its members. Formally, the IP rights ARIPO
grants are issued as independent rights by each member state. In principle,
any patent approved by ARIPO can be rejected by any member on the basis
of their own national laws.103 In practice, however, no national IP office has
ever challenged an ARIPO patent.104 As in francophone Africa, the delegation
of technical decision-making to the regional level meant that few countries
had the capacity at the national level to critically review patents granted.105
In 1992, the six member countries of the GCC agreed to a Unified Patent
Law (Bahrain, Kuwait, Saudi Arabia, Oman, Qatar, and the United Arab
Emirates). The Law provides for a combined patent office, based in Saudi

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Arabia, which opened for applications in October 1998. In 2000, the GCC
adopted amendments to the unified law, drafted in consultation with WIPO,
to fulfil TRIPS commitments. With little national expertise or institutional
experience of IP protection, most Arab WTO members lacked TRIPS-consistent
laws in other areas when their transition period expired. In the absence of
regional coordination, upgrading of trademark and copyright laws proceeded
slowly.106
Beyond the four major regional IP arrangements among developing coun-
tries, the Association of South East Asian Nations (ASEAN) also forged cooper-
ative agreements on IP and pursued joint capacity-building activities in areas
such as administration and enforcement (including the ASEAN Framework
Agreement on Intellectual Property Cooperation and a regional ‘Intellectual
Property Rights Action Plan’ 2004–10).107 In addition, the five members of
Mercosur signed a 1995 Protocol of Harmonization of Rules on Intellectual
Property with respect to trademarks and geographical indications, as well as a
Protocol on the Harmonization of Industrial Designs, and further committed
to work on harmonizing copyright rules.108 Countries in the Caribbean region
also included IP commitments as part of their CARICOM regional integration
agreements (see Article IX of Protocol III), but these have not yet been ratified
by all members.109

6.4. Mini Studies of Variation

National political factors intervened to diminish or amplify international

pressures on developing control regarding implementation. In this section,
I use several mini case studies to highlight how the interplay between global
IP debates, international pressures, and national politics played out on the
ground. The first explores TRIPS implementation in the context of TRIPS-plus
trade pressures, noting that TRIPS-plus reforms often resulted, but not always.
The second case reviews the decisive role of bilateral technical assistance in
promoting a TRIPS-plus approach to TRIPS implementation. The third case
highlights the resistance of South Africa to a suite of economic and ideational
forces in respect of its TRIPS implementation. The fourth case sets out the
variation in the extent to which developing countries used TRIPS flexibilities
regarding compulsory licences. It shows how the degree of international
pressure against their use varied and the responses of developing countries
differed.

6.4.1. TRIPS-plus Trade Pressures: Reform and Resistance

A survey of TRIPS-plus FTAs between the United States and developing coun-
tries reveals that while similar in many respects, the terms of the FTAs differed

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(Appendix 6 compares the TRIPS-plus provisions in a selection of U.S. FTAs).110

Part of the explanation for this variation was that U.S. interests differed by
country. A review of the letters of notification from USTR to the U.S. Congress
highlights that while the United States approached the negotiations with a
common template, its top IP priorities in particular countries varied depend-
ing on its commercial interests and changed over time.111 In Morocco, for
example, USTR stated its main IP priorities as stronger protection of patents
and undisclosed information. The United States added a strong focus on
optical disc protection in its FTA with Singapore, and a focus on Internet
service provider liability in the case of Chile (neither of which are covered by
TRIPS). Importantly, even on those IP issues where the United States appeared
to have sought the same provisions across countries with equal vigour (such as
extensions of the term of patent rights on pharmaceutical products through
linkages to exclusive marketing rights), it did not always succeed in equal
measure at achieving this goal.
Beyond the particularities of U.S. IP interests in each country, national
political factors accounted for some of the variation in FTAs. The internal
organization of developing country governments and their technical capacity
impacted the way FTA negotiations proceeded, the final deals to which gov-
ernments committed, and how Agreements were subsequently implemented.
In countries where the IP terms of FTAs were particularly strong, the limited
public accountability of governments also contributed to this outcome. In
Jordan, for instance the government signed and ratified its TRIPS-plus FTA
under the executive authority of the monarchy in a two-year period in which
Jordan’s parliament was suspended, precluding opportunities for substantive
public debate.112 In Morocco, on the other hand, attention from national and
international NGOs sharpened the government’s attention to IP issues in the
FTA negotiations and resulted in the first side letter on public health.113 The
FTA remained, nonetheless, TRIPS-plus and Morocco, like other FTA countries,
swiftly moved towards implementation, twice amending its IP laws between
2004 and 2006 to comply with TRIPS rules and introduce additional IP provi-
sions required by the 2004 FTA.114
In Chile, the technical competence of government negotiators on IP mat-
ters, internal government coordination, and a clear set of negotiating objec-
tives resulted in an FTA that, while still TRIPS-plus, included less onerous
provisions in some areas than other FTAs.115 In the case of Colombia and
Peru, tensions between the trade ministries, IP officials, and health min-
istries, and also between negotiators and the country’s respective Presidents
contributed to FTAs that were more TRIPS-plus than the U.S.–Chile FTA. In
Peru, a political struggle arose over who should lead the IP component of the
FTA negotiations – the trade ministry or the IP office. As the Peruvian trade
ministry pursued its market access agenda, both the health and IP agencies
commissioned impact assessments of the FTA (the first of their kind by any

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developing country). The studies provided evidence of risks to national public

health and to innovation posed by stronger IP commitments, and advocated
a cautious approach to the FTA negotiations.116 Nonetheless, the Peruvian
President made a series of high-profile statements during the negotiations
assuring the United States that the conclusion of an FTA was his top political
priority.117 Similarly in Colombia, internal debates within government and
intervention by the President, who similarly declared his intention to ensure
the conclusion of an FTA with the United States, undermined the negoti-
ating power of officials charged with IP negotiations.118 To the frustration
of USTR, the Colombian IP officials expressed a series of public concerns
about the proposed terms of the FTA. When the Colombian government
was pressured to drop one of its leading advisors, Carlos Correa (a renowned
international IP expert), from its negotiating team, the national press took
up the issue. In response, the government published a statement that Correa
would remain on the team in an advisory capacity.119 As concern from local
public health advocates and generic drug manufacturers intensified, both the
Colombian President and the trade ministry assured the public that they had
nothing to fear from the FTA.120 Convinced that the benefits of a trade deal
would outweigh the costs of TRIPS-plus provisions, the President declared
that ultimately the FTA deal would be closed politically, not by technical
negotiators.121 Believing they would then be wasting their time to pursue
further technical negotiations, the IP negotiating team collectively resigned,
issuing a public statement in the major national newspaper.122
In several cases, the TRIPS-plus provisions of FTAs complicated the ratifi-
cation of the agreements. In the case of the U.S. FTAs with Peru, Colombia,
Morocco, and several Central American countries, concerns in national legis-
latures about IP provisions delayed ratification of the signed agreements and
thus their entry into force. In Costa Rica, the ratification of the FTA was put to
a referendum in 2007, which the government only narrowly won.123 Debates
at the national level were intensified by the fact that, under the terms of these
FTAs, the United States stipulated that it would not ratify the agreements
until after the other party had done so. Even then, the agreement would only
enter into force when the U.S. President was satisfied that the other party
had implemented key aspects of the agreement in line with U.S. demands.124
As a result, after formal negotiations had concluded, negotiations continued
through the process of implementation. Countries often faced pressure to
introduce IP reforms beyond those agreed to in the FTAs in order to satisfy
the U.S. In Chile, for example, TRIPS-pressures during the implementation
process generated debate in the national legislature, government agencies
(such as those concerned with health and education), and from a range of
public interest groups.125 With the shift to a Democratic majority in the
U.S. Congress in late 2006, USTR was instructed to reopen the agreements

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with Peru and Colombia to provide for improved environment and labour
provisions, and also to make some of the IP components less stringent.126
The case of Guatemala provides a clear example of the inter-section between
bilateral FTA negotiations, capacity-building, and national political dynamics.
In its negotiations with the United States on the Central American Free Trade
Agreement (CAFTA), the Guatemalan government faced pressure to adopt new
standards for the protection of pharmaceutical test data. In April, a consultant
from the U.S. pharmaceutical industry, hired by USAID, drafted a new law that
granted originator pharmaceutical companies five years of data exclusivity.
When the law was passed,127 mobilization by civil society groups and a
growing indigenous majority in the Guatemalan Congress forced the repeal
of the law in November 2004. A new decree was put in place that regulated
test data in a way that was consistent with TRIPS but which was designed to
better protect public health. To reverse this decision, the United States used
the recently concluded CAFTA as leverage. In January 2005, the U.S. Embassy
to Guatemala released a fact sheet stating that the new law ‘gives the U.S.
Congress the impression that Guatemala is not serious about complying with
commitments it made in the CAFTA. This could result in CAFTA not being
ratified by the U.S. Congress, where a close vote is expected’.128 U.S. pressure
prompted the Guatemalan government to publish a statement regarding the
implementation of the law, and then to again propose new legislation that
fulfilled the U.S. expectations.129 Fierce opposition from Guatemalan generic
drug manufacturers, civil society groups, and international NGOs such as
MSF, delayed the passage of this law. Ultimately, however, a powerful group
of legislators supported by lobbying from export industries determined to
expand their access to U.S. markets prevailed and the law was passed in July
2006. At that time, USTR announced that Guatemala had complied with all
the legislative changes necessary for DR-CAFTA to become effective and U.S.
Congress ratified the FTA.
Significantly, not all developing countries that embarked on FTA nego-
tiations with the United States succumbed to TRIPS-plus pressures. In the
negotiations for a Free Trade Area of the Americas (FTAA), Brazil’s steadfast
stance against the IP negotiating text advanced by the United States was a
core reason for the breakdown of FTAA talks.130 In the U.S.–Andean negotia-
tions, skilled Andean negotiating teams presented detailed IP proposals and
counter-proposals to those put forward by the United States. The negotiating
team received pro bono advice from leading international IP experts and
from the WHO amongst others, frustrating the U.S. negotiating team as it
became locked in drawn-out technical negotiations.131 After several years of
U.S.–Andean FTA negotiations, opposition from newly elected parliamentary
majorities of indigenous peoples and advocacy by NGOs prompted both
Ecuador and Bolivia to walk away from a deal.132

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In Thailand, FTA talks spurred public protests regarding potential impacts

on food security and on public health. An outcry from health advocates and
human rights activists on the IP aspects of the negotiations prompted the
national human rights commission to conduct the first ‘human rights impact
assessment’133 of any proposed U.S.-FTA and ultimately led Thailand’s trade
ministry to call for a suspension of negotiations pending more reasonable
terms.134 Before the FTA negotiations, Thailand had already been pushed
by U.S. diplomatic pressures to change its provisions on data exclusivity in
ways that would slow the availability of cheaper generic drugs.135 In the FTA
negotiations, the United States pushed for authorities to grant pharmaceutical
companies ‘compensatory’ patent extensions in the case of unreasonable
delays either in granting patents or marketing approval for drugs. The U.S. also
sought five years of data exclusivity to prevent generic drug manufacturers
from using clinical trial data, and it called for more specific language on
the terms and conditions under which Thailand would issue a compulsory
licence.136
Negotiations between the United States and Southern African Customs
Union (SACU) (comprising South Africa, Zambia, Namibia, and Lesotho)
similarly faltered. The SACU countries became the first group to proceed with
a bilateral trade arrangement with the United States that did not include an
IP chapter or TRIPS-plus commitments.137 In this case, the strength of the
South African parliamentary process and strong civil society engagement on
issues related to public health lent the government significant capacity to
resist TRIPS-plus pressures.138 The need for the South African government to
account to powerful domestic constituencies was clearly visible to U.S. nego-
tiators and helped SACU countries to recast the terms of their negotiations.139

6.4.2. Capacity-building in the Philippines

In the Philippines, capacity-building was the critical vehicle for international
pressures in favour of TRIPS-plus implementation in the area of plant variety
protection. In 1997, the U.S. government forged a broad technical assistance
agreement with the government (called Accelerating Growth, Investment,
and Liberalization with Equity – AGILE).140 Through AGILE, USAID subcon-
tracted a U.S.-based consulting firm, Development Alternatives, Inc. (DAI).
Among DAI’s activities was the task of drafting and promoting specific leg-
islative reforms in the area of IP, namely the adoption of UPOV 1991-style
plant variety protection.141 Since 1995, farmers groups and civil society in the
Philippines had been working to advance a sui generis approach to meeting
TRIPS obligations in that area.142
DAI staff placed in the national office were responsible for developing
plant variety protection legislation and lobbied members of the Philippines
legislature. DAI’s website provided a detailed history of its activities: ‘DAI (. . . )

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is working with the Department of Agriculture, redrafting PVP legislation

to make it compliant with UPOV standards’. DAI also stated that it was
‘advocating for the PVP law in Congress’ and took ‘key officials and congress
persons to Argentina and the United States to learn about PVP programs and
legislation’. It further stated that in anticipation of the passage of the law, its
‘staff have been preparing the ground for its implementation by helping the
Department of Agriculture develop rules and regulations, and establish the
PVP board, which is responsible for registration and enforcement of breeders’
rights’.143
Through DAI, the U.S. government was able to intervene indirectly in the
domestic political process in the Philippines. Combined with the lobbying
efforts of companies such as Pioneer Hi-Bred and Monsanto, this capacity-
building effort ultimately overwhelmed the debate in the Philippine parlia-
ment and the backlash from civil society. When the Philippine Plant Variety
Protection Act was passed in 2002, it was essentially (albeit still not fully)
compliant with UPOV 1991. In late 2007, the Philippines was in the final
stages of accession to UPOV 1991.144

6.4.3. The Offensive Against South Africa

From 1997 to 1999, the South African government faced intense international
pressure regarding TRIPS implementation when the United States, Europe,
and a group of multinationals unleashed a multifaceted campaign against pro-
visions in its national laws regarding parallel imports and its policies related
to generic drugs. The stand-off involved spurred economic threats related to
foreign aid and trade, Special 301 surveillance, a law suit from pharmaceutical
companies, lobbying, and intense media scrutiny. A range of different parts
of the U.S. government and business sectors became involved along with
civil society actors. Within South Africa, the business sector, NGO activists,
parliamentary committees, as well as the ministries of health, trade, and the
office of the President were engaged. Simultaneously, debate underway at the
WHO impacted the global politics of the issue and the WTO procedures for
review of TRIPS also came into play. The following abbreviated timeline of
events highlights how the interplay between global IP debates, international
pressures, and national politics unfolded.145
In 1997, South Africa proposed several amendments to its Medicines and
Related Substances Control Act that would allow for parallel imports of phar-
maceutical products to help reduce the cost of essential medicines. The U.S.
government’s first concerns about South Africa’s implementation of TRIPS
emerged in response to concerns raised by the head of PhRMA and the Chair-
man of the U.S.–South African Business Council that the proposed amend-
ments would have ‘grave consequences for not only the US pharmaceutical
industry, but all US direct investment in South Africa’,146 the U.S. government

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established an inter-agency task force on the matter under the direction

of the Department of Commerce that involved USTR, the State Depart-
ment, and the Department of Health and Human Services. Meanwhile, USTR
wrote to South Africa’s UN Ambassador concerning TRIPS implementation. In
addition, representatives of Bristol-Myers Squibb, Merck, Johnson & Johnson,
Eli Lilly, and American Home Products met with South Africa’s U.S. Ambas-
sador to discuss the proposed Medicines Act among other issues.147
There was also action within South Africa. A U.S. Congressional delegation
to South Africa raised concerns and in June, the U.S. Embassy in Pretoria pre-
sented its views at a parliamentary hearing on the proposed amendments to
the Medicines Act.148 The U.S. Ambassador to South Africa made frequent pub-
lic statements and multiple private demarches to high-ranking South African
officials against the amendments. In July, a group of U.S. Members of Congress
also wrote letters to Deputy President Mbeki and Vice-President Gore express-
ing concern about the IP protection for pharmaceuticals in South Africa. Later
that month, at a meeting of the U.S.–South African Binational Commission
(co-chaired by Vice-President Al Gore and Deputy President Thabo Mbeki),
U.S. Secretary of Commerce William Daley voiced opposition to the proposed
amendments to the South African Trade Minister Alec Erwin. The same day,
the United States pushed for Minister Zuma and others from South Africa
to meet with PhRMA in Washington DC to discuss IP and pharmaceuticals.
In mid-August, the Pharmaceutical Manufacturers Association of South Africa
(PMA) distributed a document entitled ‘South African Pharmaceutical Prices: A
Six-Country Comparison’, which argued that prices for pharmaceuticals were
competitive in South Africa and that the amendments to the Medicines Act
were not necessary.149
In July, representatives of U.S. public interest NGOs (Ralph Nader, James
Love, and Robert Weissman) wrote to Vice-President Gore, arguing that they
saw ‘no grounds for U.S. government intervention on behalf of the inter-
national pharmaceutical companies’ and urging the expansion of USTR’s
advisory committee on IP to include consumer interests.150
From mid-September, the focus of external pressure was on the South
African parliament and specifically its Portfolio Committee on Public Health
that was reviewing the proposed amendments. The PMA submitted a position
paper to the Committee and in October, the U.S. Ambassador described to
the Committee the U.S. objections to section 15(c) of the proposed Medicines
Act stating that ‘my Government opposes the notion of parallel imports of
patented products anywhere in the world. We argued for a prohibition of
such parallel imports in the TRIPS Agreement’. The Consumer Project on
Technology (CPTech) presented comments via fax to the Portfolio Committee;
and Merck, Sharpe and Domme (South Africa) also wrote a position paper. In
late October, an article in Johannesburg’s leading business newspaper, Business
Day, reported that U.S. Senator Jesse Helms might hold up ratification of a

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new U.S.–SA Tax Convention in retaliation for South Africa having ‘abrogated’
the patent rights of U.S. drug companies by permitting parallel imports.151
The article reported that Helms was acting on behalf of Glaxo, a British drug
company with offices in North Carolina. In late November, the Head of the
European Commission’s delegation in South Africa weighed in, advising the
Department of Health that it had ‘received complaints’ from the European
pharmaceutical industry that the proposed amendments to the Medicines Act
appeared to be in violation of TRIPS. Not dissuaded, President Mandela signed
the proposed amendments to the South African Medicines Act, including
Section 15(c), into law on 12 December 1997.
South Africa’s decision to proceed with the Medicines Act provoked a series
of reactions from U.S. industry, interest groups, and the U.S. government.
In January 1998, the U.S. National Medical Association (NMA), the U.S.
National Black Nurses Association, and the National Black Caucus of State
Legislators all wrote letters opposing the amendment, including to Health
Minister Zuma and to President Mandela. In early February, forty-seven mem-
bers of U.S. Congress wrote to USTR urging action against the amendments.
On 18 February, thirty-nine pharmaceutical companies filed a lawsuit against
the government of South Africa.152 On 23 February, PhRMA asked USTR to
designate South Africa as a Priority Foreign country in its Special 301 Review
as did Bristol-Myers Squibb.153 In March, USTR stated in a letter to concerned
U.S. members of Congress that: ‘USTR and other agencies with both trade
and health policy responsibilities will continue to press the South African
Government in all possible fora as long as possible’.154 In April, a group of
Congressmen and several industry representatives wrote to USTR calling for
South Africa to be cited in the U.S. Special 301 list, arguing that ‘[o]ur Special
301 decisions will have no credibility with our industry or with the South
Africans if we do not name South Africa in this year’s announcement. The
amendment was a mistake, and identifying South Africa in the Special 301
announcement is a gentle reminder’. In early May, USTR put South Africa
on the Special 301 Watch List. Meanwhile, Sir Leon Brittan, Vice-President
of the European Commission, wrote to Vice-President Mbecki arguing that
the Medicines Act ‘would negatively affect the interests of the European
pharmaceutical industry’. Shortly thereafter a PhRMA representative was cited
in a radio broadcast in South Africa, alleging ‘that South Africa is being
used by India and Argentina as a test run to see how world wide agree-
ments could be broken relating to the protection of intellectual property
rights’.
The United States also took up its case at the WTO where South Africa
had in March submitted its report for its 1998 Trade Policy Review in which
the government asserted that ‘IPR protection in South Africa is consistent’
with TRIPS.155 As part of the review process, USTR submitted a series of
questions focusing on South Africa’s approval of generic versions of Taxol (as

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a possible TRIPS Article 39.3 violation) and Section 15(c) of the Medicines
Act.
Amidst ongoing debate between the U.S. and South African governments,
the international media, NGOs, and the WHO intervened. The New York Times
published a story entitled ‘South Africa’s Bitter Pill for World’s Drug Makers’,
which reported that South Africa was paying prices that were sometimes eight
or nine times as high as other countries.156 In May 1998, public health and
consumer groups from around the world (including CPTech, HAI, and Con-
sumers International) held a conference in Washington DC on health care, IP,
and international trade agreements. In the same month, the Executive Board
of the WHO’s World Health Assembly (WHA) recommended the adoption of a
resolution regarding a proposed Revised Drug Strategy that asked countries to
‘ensure that public health rather than commercial interests have primacy in
pharmaceutical and health policies’ and to ‘review their options’ under TRIPS
‘to safeguard access to essential drugs’.157
In June, U.S. pressures on South Africa intensified. The White House
announced that four items for which South Africa had requested preferential
tariff treatment under the Generalized System of Preferences (GSP) would
be held in abeyance pending adequate progress on IP protection in South
Africa.158 The South African press referred to the withheld GSP tariff reduc-
tions as ‘hostages’.159 In July, the French President Chirac raised concerns
about Article 15(c) in a state visit to South Africa. The Swiss and German
presidents also privately raised the issue with Deputy President Mbeki. In
Washington, pressures on South African diplomats continued and senior U.S.
officials raised concerns at events surrounding the U.S.–South Africa Bina-
tional Commission meetings in Washington. In those discussions, the South
African government asked the U.S. government to intervene with the U.S.
pharmaceutical industry to suspend or terminate its pending legal challenge
to Article 15(c). Unimpressed by South Africa’s steadfastness, the U.S. Congress
passed a law in October that cut off aid to South Africa, pending a Department
of State report outlining its efforts to ‘negotiate the repeal, suspension, or
termination’ of South Africa’s 1997 Medicines Act.160 In November, South
Africa passed a new medicines bill but with provisions identical to those in
Article 15(c) that offended the United States.161
In the following months, South Africa was again placed on the USTR
Watch List for IP violations, scheduled for an out-of-cycle review by USTR,
and criticized by the U.S. government for speaking out at the World Health
Assembly. Among the charges against South Africa cited in the 301 Report
were that: ‘During the past year, South African representatives have led
a faction of nations in the World Health Organization (WHO) in calling
for a reduction in the level of protection provided for pharmaceuticals in
TRIPS’.162

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By early April 1999, the tide began to shift. The pending U.S. election shifted
political priorities and media interest in HIV/AIDS and access to medicines
grew. In early April, Ralph Nader and James Love wrote to Vice-President
Gore asking for a reversal of U.S. policy on the South African Medicines Act.
On 28 April, the Chicago Tribune published a one-page story, ‘Third World
Battles for AIDS Drugs’, which was the first major U.S. newspaper story on this
issue and was read by the U.S. President.163 In May, CPTech and ACT UP met
with the U.S. Department of Health and Human Services (DHHS) asking the
United States to moderate its trade policies to improve access to drugs. In May,
the WHO’s World Health Assembly approved its Revised Drug Strategy. In
early June, the International Issues subcommittee of the Presidential Advisory
Council on HIV/AIDS (PACHA) held a public debate on compulsory licensing
and parallel imports. As the U.S. Presidential debate advanced, HIV/AIDS
activists worked to disrupt Vice-President Gore’s campaign and to draw atten-
tion to U.S. trade sanctions against South Africa and Thailand. From late June
1999, congressional representatives expressed growing concern. The Congres-
sional Black Caucus wrote to Vice-President Gore with concerns over trade
sanctions against South Africa and a proposal was put before Congress to
make it illegal for the State Department to lobby Asian or African countries
against access to medicines. The House of Representatives began hearings on
U.S. Trade Policy and the Global AIDS crisis. USTR testified that it now had
no objection to parallel importing or compulsory licensing of pharmaceutical
drugs in South Africa if TRIPS-compliant. Finally, under intense domestic
pressure, the United States agreed in 1999 to a deal with South Africa on the
Medicines Act dispute.164 In December, the U.S. government dropped South
Africa from its 301 Watch List, signalling this change in policy. This was not,
however, the end of the dispute. The thirty-nine pharmaceutical companies
only withdrew their case in 2001 (after securing assurances from the South
African government that it would apply the law’s controversial provisions
cautiously and prudently). The United States continued to closely monitor
South African IP policy.165

6.4.4. Compulsory Licensing: Threats and Defiance

In the period under review, at least ten developing countries took steps to
issue compulsory licences for public health purposes, in most cases for the
production or import of antiretrovirals to address HIV/AIDS.
In April 2004, Mozambique’s Deputy Minister of Industry and Commerce
granted a compulsory licence for several HIV/AIDS drugs to a local producer.
Also in April, the Ministry of Health and Social Welfare in Swaziland noted
the existence of an emergency relating to AIDS, and authorized procurement
of medicines for HIV/AIDS ‘in the best cost/effective way possible on the

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international market irrespective of the existence of any patent or other Intel-

lectual Property protection applicable in Swaziland until such time as it will
no longer be considered essential to address the current Public Health crisis
related to HIV/AIDS’. In September 2004, the Malaysian Minister of Domestic
Trade and Consumer Affairs issued a two-year government-use compulsory
licence to import three HIV/AIDS drugs from India and in October that year,
Indonesia similarly issued a government-use compulsory license to manu-
facture generic versions of two HIV/AIDS drugs. Meanwhile in Africa, Zam-
bian Minister of Domestic Trade and Consumer Affairs issued a compulsory
license for several HIV/AIDS drugs in September 2004; and in October 2004,
Zimbabwe’s Minister of Justice, Legal, and Parliamentary Affairs declared a
Period of Emergency that enabled its government to override antiretrovi-
ral drug patents. In February 2005, when India amended its patent law to
provide patent protection for pharmaceutical products, it also established a
mandatory compulsory licence for products that were already manufactured
and marketed in India. In April 2005, the Guinean Ministry of Health issued
compulsory licences on several HIV/AIDS drugs; and in October 2005, the
Ghanaian Minister of Health issued government-use compulsory licences for
importation into Ghana of generic HIV-AIDS medicines. Finally, in 2007,
Rwanda, Brazil, and Thailand each issued compulsory licences for HIV/AIDS
medicines.
In certain instances, the threat of compulsory licences was sufficient to
secure reductions in prices to the satisfaction of the developing country at
hand.166 In 2005, China used the threat of a compulsory license to obtain
voluntary licences to manufacture a generic version of Tamiflu. Earlier, in
2001, Brazil had used the threat of non-voluntary licences in its negotia-
tions with Merck and Roche to secure lower prices for two HIV/AIDS drugs,
nelfinavir and indinavir efavirenz.167 In March that year, Brazil reached a
settlement with Merck for price discounts on efavirenz in exchange for
not issuing a compulsory licence. In August, however, the Brazilian Health
Minister Jose Serra announced that Brazil would issue a compulsory licence
for the manufacture of nelfinavir (sold under the brand name Viracept by
Roche) to the Brazilian pharmaceutical producer Far Manguinhos. A few
days later, the two parties resumed talks and reached an agreement; Roche
agreed to sell the drug in Brazil at an additional 40 per cent discount and
Brazil agreed not to issue a compulsory licence. In 2005, Brazil threatened
to issue a compulsory licence so that the state-owned pharmaceutical com-
pany could produce Abbott Laboratories’ Kaletra, an HIV/AIDS drug that
would otherwise have been too expensive for purchase by Brazil’s national
AIDS treatment programme. The head of the AIDS programme stated that
government officials were subjected to intense lobbying from the United
States at the highest levels: ‘I was told of meetings, phone calls from the
Senate, Congress and the White House, with threats of direct retaliation’.168

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 The Developing Country Dimension

Ultimately, the Brazilian President backed away from issuing a compulsory

licence in exchange for Abbott’s agreement to a six-year contract offering
the drug at a lower price (while preserving the patent rights). The same year,
Brazil declared that it was considering issuing compulsory licences to permit
the manufacture of Viread, an HIV/AIDS drug produced by Gilead. After dis-
cussions Gilead reached agreement with the Brazilian Health Ministry in May
2006 ‘to reduce the price of Viread in Brazil by approximately fifty per cent.’169
Brazil also used the threat of compulsory licences on the patents for Glivec,
an anti-cancer drug held by Novartis, to obtain a price discount of more than
65 per cent.
Many developing country efforts to use compulsory licences, particularly by
smaller African countries, occurred largely under the radar of the international
media. In the wake of debate on the AIDS crisis and access to medicines, the
multinational pharmaceutical lobby and developed countries shied from the
public backlash that would surely follow were they to put strong pressure on
the world’s poorest countries. Further, in some instances, the practical threat
from such licences was low. Several African governments issued or threatened
licences for drugs that were not in any case patented in their countries. In
addition, in the poorest countries, many governments lacked the technical
capacity and coordination to turn their initial grant of a compulsory license
into a practical outcome. Further, their market size was often still too small
to secure supplies from a generic drug manufacturer even after a licence was
issued.
In the case of middle-income countries where multinational pharmaceuti-
cal companies had profits at stake, governments faced intense pressures not
to use the compulsory licensing flexibilities in TRIPS and many countries
deferred from such action due to fears of retribution. The pharmaceutical
industry was keen to prevent precedents for compulsory licensing wher-
ever possible, but focused most attention on countries with strong generic
industries, where compulsory licenses might undercut their market share.
Of particular concern were countries like Brazil and Thailand where gov-
ernments proposed to issue licenses to profit-driven, but government-owned
drug manufacturers. In these cases, pharmaceutical companies alleged that
the licenses were motivated more by industrial policy and than public health
objectives. While some countries dared not risk the reprimands of more pow-
erful economies, countries such as Brazil, Thailand and China defied threats
of retaliation and went ahead to issue compulsory licenses. In the first two
countries, the government’s resistance to external pressure was bolstered by
the strength within Brazilian politics of the generic drug industry, a strong
and well-informed Health Ministry, inter-agency coordination, and public
pressure to ensure the effectiveness of its national HIV/AIDS programme.
Whereas Brazil and Thailand’s efforts provoked international media attention,
licenses in Malaysia and Indonesia proceeded more quietly.

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The Implementation Game

Importantly, governments did not always see it as in their interests to

respond positively to requests for compulsory licences. In 2001, for instance,
the Indian pharmaceutical manufacturer CIPLA called on the South African
Department of Trade and Industry to issue compulsory licences on a number
of HIV/AIDS drugs, but the request was denied. Further, drug donations from
pharmaceutical companies sometimes mitigated public pressures to secure
supplies through compulsory licenses.

6.5. Conclusion

This chapter has argued that national politics impacted TRIPS implementation
in developing countries. It has shown how government capacity, the degree of
public engagement and coordination within governments impacted the deci-
sions taken, and also sometimes amplified or filtered international pressures,
thus generating variation in the timing and use of TRIPS flexibilities. While
the choices of developing countries with respect to TRIPS implementation
were often severely constrained, by internal pressure national factors also had
a significant impact.
The following chapter explores the case of TRIPS implementation in fran-
cophone Africa, where a group of the world’s poorest countries adopted some
of the world’s highest IP standards at an earlier date than TRIPS required.
To explain why countries took such an unexpected approach, it highlights
the role of compliance-plus ideational pressures, weak domestic institutions,
regional organization, and capacity-building. While the chapter focuses exclu-
sively on francophone Africa, it nonetheless, sheds light on dynamics that
were also play in other developing countries.

Notes

1. CIPR (2002).
2. Job (1992) and Reno (1998).
3. Government of India (2007).
4. The concept of bounded rationality has been advanced by scholars interested
in the relationship between psychology and political science. See, for example,
Simon (1985). Odell (2000) elaborates on how bounded rationality operates in the
context of WTO negotiations.
5. This perspective has been advanced by sociologists, political scientists, and also
IR scholars. See Granovetter and Swedberg (1992), Koelble (1995), Polanyi (1944),
Hancher and Moran (1989), and Allison (1999).
6. Koelble (1995: 234).
7. CIPR (2002) and Correa (2003).
8. The deference of governments to technical experts on matters of IP policy has
strong historical precedent. Analysing the period from 1875, Machlup and Penrose

232
 The Developing Country Dimension

(1950: 29) observe that ‘lawyers and engineers appeared as the “experts” on the
economic effects of the patent laws and their possible changes’ and there was little
engagement by economists or experts from other disciplines.
9. Villaneuva (2005).
10. Ibid.
11. This appraisal derives from author’s review of national websites of IP offices of
sixty developing countries.
12. In many developed countries, for example, IP offices are increasingly scrutinized
for conflicts of interest, prompting a range of proposals for reform. See Drahos
(2007b), Taylor and Cayford (2002), and Roth (2005).
13. Villaneuva (2005).
14. Ibid.
15. Kuanpoth (2005).
16. Ms. Wiboonluck Ruamrak, Deputy Director-General, Thai Department of Intellec-
tual Property, cited in Kuanpoth (2005).
17. Author’s interview with Sangeeta Shashikant, IP policy specialist, Third World
Network, Feb 2008.
18. CIPR (2002) and Shadlen (2006).
19. Drahos (2007a).
20. WIPO (2007).
21. In 2004, Brazil committed to hiring 300 new patent examiners, with further
recruitment anticipated, to speed the patent examination process and respond to
the growing number of patent applications. Between 2003 and 2006, the Office’s
Budget increased by nearly 50 per cent. See AS/COA (2006) and USTR (2006).
22. Kongolo (2000a: 269–70).
23. Author’s interviews with Tshimanga Kongolo, Head, Professional Training Section,
WIPO Worldwide Academy, June 2006 and Sisule Musungu, IP Programme Coor-
dinator, South Centre, Oct 2005.
24. Drahos (2007a).
25. Drahos (2007a) and Correa (2007a).
26. For critical reviews of the discretionary power of patent offices in developed coun-
tries to devise guidelines and procedures for patent examinations, see Dunleavy
and Vinnola (2000: 68) and Dutfield (2000).
27. Musungu and Oh (2006), and Thorpe (2002).
28. Correa (2007a) and UNCTAD (2008).
29. Dogra (2006) and USTR (2006).
30. WIPO (2007b).
31. Oh (2006).
32. WIPO (2005a).
33. May (2004) and Consumers International (2006).
34. Villaneuva (2005).
35. WTO (2001b).
36. For an overview of the status of collective management in Asia and Latin Amer-
ica, see Gervais (2006). For further background, see http://www.wipo.int/about-
ip/en/collective_mngt.html.
37. CIPR (2002: 98–9).
38. CISAC (2005).

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The Implementation Game

39. Ibid.
40. This observation draws from an analysis of reports related to the TRIPS
Council Reviews of TRIPS implementing legislation conducted from 2000 to
2001.
41. Author’s interviews conducted with national trade and IP officials from developing
countries between 2003 and 2007.
42. See Andersen (2006a), Bentolila (2002/3), Bermudez et al. (2000), Czub (2001),
Ramanna (2005), and Varella (2004).
43. The focus of much of the debate was on the costs to Argentine pharmaceutical
industries of new industrial property protections, and the anticipated royalties
they would have to pay to foreign companies. See Bentolila (2002/3) and Czub
(2001).
44. This case is taken up in detail in Chapter 7.
45. Dunn (2001).
46. For interest-based arguments emphasizing the role of lobbying and bargaining by
domestic interest groups on the formation of domestic and foreign policies, see,
for example, Ikenberry et al. (1988), Keohane and Milner (1996), Mastanduno
(1994), and Putnam (1988).
47. Olsen (1965).
48. Doern (1999: 46).
49. Drahos (2002b) and Dutfield (2000).
50. Ibid.
51. Author’s interviews with Eric Noehrenberg, Director, Intellectual Property
and Trade Issues, International Federation of Pharmaceutical Manufacturers
Associations, August 2008; Denis Croze, Acting Director Advisor, Economic Devel-
opment Sector, WIPO, Oct 2006; and Geoffrey Onyeama, Director, Cooperation
for Development Bureau for Africa, WIPO, Sept 2005.
52. See ICTSD (2002).
53. Sell and Prakash (2002), Das (2003), Mathur (2001), Ramanna (2005), and
Ramanna and Smale (2004).
54. For analysis of NGO campaigns on IP in these countries, see Andersen (2006a),
Borowiak (2004), Das (2003), Mathur (2001), Nagan (2001/2), Ramanna (2005),
Ruiz (2005), Sell (2006), and Varella (2004).
55. Author’s interviews with Sisule Musungu, IP Programme Coordinator, South Cen-
tre and former coordinator of the Kenya Access to Medicines Campaign, Oct 2005
and Faizel Ismail, Head, South African Delegation to the WTO, Apr 2007. See
also Afavia (2005), Bombach (2001), Kongolo (2001a), and Lewis-Lettington and
Munyi (2004).
56. Andersen (2006a) and Hathaway (1993).
57. Author’s interview with Joseph Ekpere, former OAU official responsible for science
and technology issues, Feb 2006. See also Lulu et al. (2000).
58. Interview with staff of the Bangladesh’s Centre for Policy Development, Feb 2008.
59. The Peruvian government also supported the efforts of local NGOs to work with an
environmental NGO in Washington, the Center for International Environmental
law (CIEL), to mount a legal challenge against a patent on Ayuhuasca, a sacred
plant with medicinal qualities. This analysis draws from the author’s discussions

234
 The Developing Country Dimension

between 2003 and 2005 with Begona Venera, INDECOPI (the Peruvian IP office);
Manuel Ruiz, Senior Legal Officer, the Peruvian Society for Environmental Law;
Alejandro Argumedo, Director, ANDES Association; Alejandro Neyra, Second Sec-
retary, Permanent Mission of Peru to the WTO; and Betty Berendson, Second
Secretary, Peruvian Mission to the WTO.
60. Ismail (2003).
61. In January 2005, for instance, India’s government promulgated a Patent (Amend-
ment) Ordinance that increased standards of IP protection beyond the minimum
necessary to conform with TRIPS. This decision has been attributed to pressures
from domestic computer software industries and new companies conducting R&D
for biotechnological and pharmaceutical products. See, for example, New York
Times (2005) and Chaudhuri (2005a).
62. Chaudhuri (2005b). This observation is also based on author’s interviews in
June 2005 with André Dua, Deputy Minister, Indian Ministry of Industry and
Preeti Saran, Minister Counsellor, Permanent Mission of India to the United
Nations.
63. Ferrer et al. (2004), Shadlen (2006), and USTR (2006).
64. Author’s interview with Toufiq Ali, Ambassador, Permanent Mission of Bangladesh
to the WTO, Feb 2007.
65. Bampo-Addo (2005).
66. Shadlen (2004a: 752).
67. Ibid.
68. The BSA’s members include leading software and technology companies such as
Compaq, Digital, IBM, Intel, Apple, Microsoft, Novell, and Lotus.
69. See CISAC (2004). CISAC offered a range of training and technical assistance to
new authors societies, and established a Solidarity Fund to help new members
acquire IT equipment and build modern techniques for the management of rights.
CISAC also set up regional committees for Africa and the Caribbean, the Asia
Pacific, and the Ibero-American region. See http://www.cisac.org.
70. See http://www.aippi.org.
71. In some countries, groups of patent and trademark attorneys lobbied against
accession to the PCT and the Madrid Agreement on trademarks (both of which
aim to facilitate international filing) on the grounds that they would lose revenues
from application fees that would otherwise be paid to them to lodge applications
with national authorities.
72. Author’s interview with Pedro Roffe, Senior Fellow, ICTSD, Mar 2008.
73. Ibid.
74. For reports of TWN activities at the regional level, see TWN (2003a, 2004,
2005).
75. The Kenya Coalition on Access to Essential Medicines includes ActionAid; The
Association of People living with AIDS in Kenya (TAPWAK); Health Action Interna-
tional (HAI Africa); Network for people living with HIV/AIDS (NEPHAK); Women
Fighting AIDS in Kenya (WOFAK); Society for Women and AIDS in Kenya (SWAK);
Nyumbani International; CARE International; Médecins Sans Frontières (MSF);
DACASA; Kenya Medical Association (KMA); Consumer Information Network, and
Campaigners for AIDS Free Society.

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The Implementation Game

76. For a report of this meeting, see Chitsike (2000). The meeting received financial
support from the Canadian government’s International Development Research
Centre (IDRC) and the German Gesellschaft für Technische Zusammenarbeit
(GTZ).
77. Interview with David Vivas, IP Programme Manager, ICTSD, Aug 2007.
78. Villaneuva (2005).
79. For an exploration of how government bureaucracies can become ‘idea-generating
centres’ that influence policymaking, see Matecki (1956).
80. Bombach (2001) and Marc (2001).
81. The coalition included the Treatment Action Campaign (TAC), COSATU, the AIDS
Consortium, four people living with HIV/AIDS (including a woman called Hazel
Tau), and four health-care workers.
82. Berger (2004) and Avafia (2006).
83. TAC (2003).
84. TAC (2008).
85. Author’s interviews with Robert Juagaribe, Director, Brazilian Patent Office, Oct
2005 and Falou Samb, former First Secretary, Mission of Senegal to the WTO and
delegate to the TRIPS Council, May 2007.
86. Abdel Latif (2005).
87. U.S. State Department (2007).
88. This observation draws from author’s interviews with representatives of OAPI SNLs
from 2005 to 2007.
89. Author’s interview with Johannes Bernabe, former TRIPS delegate at the Perma-
nent Mission of the Philippines to the WTO, Feb 2007. Bernabe’s advice ultimately
prompted the introduction in Oct 2005 by Senator Max Roxas of a bill that
would revise national IP laws to provide for international exhaustion. Also see
Gerhardsen (2006d).
90. Author’s interviews with David Vivas Eugui, IP Programme Manager, ICTSD and
Ricardo Meléndez-Ortiz, Chief Executive, ICTSD, Aug 2007.
91. Several studies highlight how lack of policy capacity and internal coordination in
many developing countries adversely impacts both national and international IP
standard-setting. See Abdel Latif (2005), Correa (2003), Drahos (2004b), Petit et al.
(2001), and Helfer (2004).
92. Abdel Latif (2005).
93. For an interesting account of the coordination role of foreign ministries in adapt-
ing to the challenges of globalization, see Hocking (1999).
94. Other countries to have done so include Jamaica and Barbados.
95. For analysis of socialization as a mechanism through which power is exercised, see
Ikenberry and Kupchan (1990).
96. For background on the Andean region’s approach to IP, see Abbott (1989) and
Adler (1987).
97. See note 77.
98. Author’s interview with Miguel Rodriguez, former Venezuelan Minister of Industry
and WTO Deputy Director, Mar 2007.
99. Andean Community Decisions related to TRIPS implementation include Decisions
486 on industrial property (which replaced Decision 344 in 2000), 391 (on access
to genetic resources), 345 (on plant variety protection), 351 (on copyright), and

236
 The Developing Country Dimension

291 (Regime for the Common Treatment of Foreign Capital and Trademarks,
Patents, Licensing Agreements, and Royalties).
100. Author’s interview with Pedro Roffe, Senior Fellow, ICTSD, Aug 2007.
101. See note 77.
102. The sixteen members of ARIPO are Botswana, the Gambia, Ghana, Kenya, Lesotho,
Malawi, Mozambique, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda,
Zambia, and Zimbabwe. For more information on ARIPO, see Kongolo (2000a:
269–70), Seyoum (1985), and http://www.aripo.wipo.net.
103. Author’s interview with Sisule Munsugu, IP Programme Coordinator, South
Centre, Oct 2006.
104. Musungu and Oh (2006).
105. Thorpe (2002).
106. Al-Hajeri (2006).
107. The ASEAN members are Brunei Darussalam, Cambodia, Indonesia, Lao People’s
Democratic Republic, Malaysia, Myanmar, Philippines, Singapore, Thailand, and
Vietnam.
108. Mercosur is an acronym derived from the Spanish title: Mercado Común
del Sur. The members of Mercosur are Brazil, Argentina, Uruguay, Venezuela,
and Paraguay with Bolivia, Chile, Colombia, Ecuador, and Peru as associate
members.
109. See http://www.caricom.org/expframes2.htm, accessed on 1 Feb 2008.
110. Fink and Reichenmiller (2005), Krikorian and Szymkowiak (2007), Oxfam (2004a),
and Roffe (2004).
111. For texts of these letters, see http://www.ustr.gov.
112. Author’s interview with Hanan Sboul, the Jordanian Association of Pharmaceutical
Manufacturers, Oct 2005. Also see Malkawi (2004).
113. See ALCS (2004), Ahmad (2004), Human Rights Watch (2004), Laghdaf (2004),
and 3D (2006a and b).
114. Krikorian et al. (2007).
115. Author’s interview with Carmen Dominguez, Chilean delegate to the TRIPS
Council, Feb 2005. Also see Roffe (2004).
116. Author’s interview with a senior official from the Peruvian IP office, Sept 2005.
Also see INDECOPI (2005a, 2005b).
117. Author’s interviews with Carlos Correa, University of Buenos Aires, Dec 2005 and
a senior official from the Peruvian IP office, Sept 2005.
118. Ibid.
119. The issue was taken up in a leading national newspaper, Diario El Tiempo, which
conducted an interview with Correa. See Gil (2004). German Velasquez, a leading
figure in the global debate on access to medicines and the coordinator of the
WHO’s work on IP, also spoke out in an interview with El Pais. See Fuentes
(2004). For the public statement by the Colombian trade ministry, see República
de Colombia (2004).
120. For newspaper accounts of these debates, see Gil (2004), AZ Central (2005), and
Xinhua (2005). This account also draws from the author’s interviews between
2005 and 2007 with Carlos Correa (see note 117); Frederick Abbott, Professor
of Law, Florida State University; and Ricardo Meléndez-Ortiz, Chief Executive,
ICTSD.

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The Implementation Game

121. Ibid.
122. See Diario El Tiempo (2005). The members of the Colombian negotiating team were
Gilberto Alvarez Uribe, Luis Guillermo Restrepo Velez, and Juan Fernando Garcia
Echeverria.
123. BBC News (2007).
124. Vivas-Eugui and von Braun (2007).
125. Roffe (2006), Vivas-Eugui and von Braun (2007), and Krikorian and Szymkowiak
(2007).
126. Krikorian and Szymkowiak (2007) and Roffe (2008).
127. BRIDGES (2005b), Mokhiber and Weissman (2005), MSF (2005), and New (2005a).
This analysis also draws from the author’s interviews in 2005 with staff of MSF
and Carlos Correa, who provided legal advice to the Guatemalan health ministry.
128. MSF (2005).
129. Mokhiber and Weissman (2005).
130. Oliva (2003).
131. Author’s interviews with Frederick Abbott and Carlos Correa, both of whom served
as advisors to the Colombian government during its trade negotiations with the
United States. See footnotes 117 and 120.
132. In these cases, IP was one of many concerns which fuelled public opposition to
the FTA negotiations, including concerns about agriculture and rural livelihoods.
For press reports of the collapse of the negotiations, see Prensa Latina (2005) and
Xinhua (2005).
133. Smith (2007).
134. Markandya (2001) and Oxfam (2004b).
135. Ibid.
136. Krikorian (2008).
137. BRIDGES (2005a).
138. Author’s discussions with Faizel Ismail, Head, South African Delegation to the
WTO, Apr 2004 and Tenu Afavia, IP expert, Trade Law Centre of Southern Africa
(TRALAC), Dec 2005.
139. Business Day (2004) and Sunday Times (2005).
140. Rosales (2003).
141. Andersen (2006a). Also see AGILE (2001).
142. Cited in Andersen (2006a).
143. Ibid.
144. UPOV (2007: 2).
145. The following analysis draws from a timeline of the South Africa dispute
prepared by the Consumer Project on Technology (CPTech) in Aug 1999,
available at http://www.cptech.org/ip/health/sa/sa-timeline.txt (accessed 1 May
2007).
146. Cited at http://www.cptech.org/ip/health/sa/sa-timeline.txt.
147. Ibid.
148. All letters and reports not otherwise cited in the remainder of this section are avail-
able on CPTech’s website. See note 145. At http://www.cptech.org/ip/health/sa/sa-
timeline.txt.
149. PMA (1997).

238
 The Developing Country Dimension

150. Cited at http://www.cptech.org/ip/health/sa/sa-timeline.txt

151. Business Day (1998a).
152. Marc (2001).
153. PhRMA (1988).
154. USTR (1998a).
155. See documents related to South Africa’s Trade Policy Review at http://www.
wto.org.
156. New York Times (1998).
157. WHO (1998).
158. USTR (1998b).
159. Business Day (1998b).
160. Marc (2001).
161. Business Day (1999).
162. USTR (1999).
163. Goozner (1999).
164. Marc (2001).
165. Ibid.
166. The following analysis draws directly from a summary regarding the use of com-
pulsory licences in Love (2007). It also draws on analysis by Oh (2006), Khor
(2007), and Yoke Ling (2006).
167. Oh (2006).
168. Beattie et al. (2006).
169. Gilead Sciences, Inc., SEC Form 10-Q, Quarterly report pursuant to Sections 13
or 15(d) of the 1934 Securities Exchange Act, for the period ended 30 September
2005.

239
 7
TRIPS Implementation
in Francophone Africa

In 1999, the sixteen members of the African Organization for Intellectual

Property (OAPI) revised their joint, regional legal framework for IP protection
(the Bangui Agreement), with the aim of complying with TRIPS.1 In so doing,
this group of francophone African countries significantly strengthened IP
standards in their countries.2 Curiously, in revising the Bangui Agreement, the
OAPI members forfeited many of the legal options and safeguards available
under TRIPS, and went beyond the minimum TRIPS requirements. Further,
for the twelve least developed country (LDC) members of OAPI, the entry
into force of the revised Bangui Agreement in 2002 brought most of their IP
laws in line with TRIPS over a decade in advance of their extended deadline.3
Some observers welcomed the revised Bangui Agreement as an admirable
symbol of francophone Africa’s commitment to economic modernization.
The OAPI Secretariat predicted, for instance, that the revised Agreement
would make the economic environment of its members ‘attractive to invest-
ments and suitable for technology transfer’.4 Several scholars from the region
enthused that the revised Bangui accords should serve as a basis for fur-
ther harmonization of laws across the African continent.5 Yet other scholars
objected, describing the Agreement as everything from ‘curious’6 and ‘dubi-
ous’ to ‘hasty’ and ‘regrettable’.7 Concerned NGOs criticized the revisions as
‘premature’8 and ‘unacceptable’.9
Why did the OAPI countries implement such strong IP standards and, in the
case of LDCs, so much earlier than required by TRIPS? To date, no systematic
scholarly analysis of the Bangui revision process exists. The revised agreement
has, however, stimulated analyses by legal scholars, official statements by
the OAPI Secretariat, and a series of NGO policy papers and press releases.
From these sources, three core explanations for the revised Bangui Agreement
emerge.
On the one hand, the OAPI Secretariat explains its members’ approach to
TRIPS implementation as the product of a member-driven process through

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 TRIPS Implementation in Francophone Africa

which each country considered its needs, priorities, and interests. NGO critics,
on the other hand, attribute the revised Bangui Agreement to TRIPS-plus
pressures on OAPI members from powerful international actors, such as the
World Intellectual Property Organization (WIPO), the Union for the Protec-
tion of Plant Varieties (UPOV), France, and multinational corporations.10 In
2000, Médecins Sans Frontières (MSF) alleged, for instance, that the revised
Agreement was ‘inspired by the World Intellectual Property Organization
whose budget is partially funded by industrialists’ and ‘revised under pressure
exerted by pharmaceutical industries of the North’.11
A third explanation offered by some commentators is that the revised
Bangui Agreement emerged in the form it did, with all of its flaws, because
the officials involved knew it would have little practical impact. Here, some
argue that the revised Agreement was in fact an ‘empty promise’, which
states had no intention or capacity to enforce, and so the specificities of its
provisions mattered little to them. To support this view, some cite the fact that
governments in the region import medicines (and turn a blind eye to illegal
third-party imports of medicines) that contradict the Agreement. They add
that even if francophone African countries were to violate TRIPS obligations,
their status as poor countries would dissuade more powerful countries from
retaliating against them.
In this chapter, I show that while each of these explanations contributes
a part of the story of TRIPS implementation in francophone Africa, neither
is sufficient by itself. I show that reference to national interests cannot pro-
vide a compelling explanation for the decisions taken. On the contrary, as
some of the world’s poorest countries, with limited industrial development,
low technological capacity, and high reliance on imports of technology and
knowledge-related goods, one would expect the OAPI member states to have
maximized their use of TRIPS flexibilities, particularly the transition peri-
ods for implementation. Indeed, at the WTO, African countries consistently
called for the application of ‘special and differential treatment’ in respect
of their TRIPS obligations, namely more flexible rules and more time for
TRIPS implementation.12 I also show that the OAPI approach to TRIPS imple-
mentation demands a more nuanced account of the power of multinational
companies, developed country governments, and international organizations.
I detail the interplay of a subtle set of international pressures and national
dynamics, and highlight how the OAPI Secretariat intervened. Further, I show
that the forces driving the revision of the Bangui Agreement were more
complex than that of an ‘empty promise’.
My argument has five components. First, the post-colonial legacy of defer-
ence to France rendered the OAPI countries heavily dependent on external
technical and legal advice. At the time of the Bangui revisions, technical
knowledge at the national level on IP issues and TRIPS obligations was
extremely limited.

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The Implementation Game

Second, attention to IP issues was frequently delegated to small national IP

offices within government with little substantive oversight from other parts of
government or engagement with stakeholders. The passivity, autonomy, and
isolation of IP offices with limited financial resources and technical expertise
meant that TRIPS implementation occurred in a policymaking vacuum at the
national level and that OAPI members were deeply susceptible to external
pressure.
Third, having delegated substantial responsibility for IP protection to the
regional level, national IP offices were too weak to properly oversee the
OAPI Secretariat. Conversely, financial independence from member states
combined with superior technical expertise and institutional capacity gave
the OAPI Secretariat an authority that enabled it to dominate member states.
Fourth, the combination of weak national capacity and delegation to the
OAPI Secretariat rendered decision-making in the region highly vulnerable to
capture by donors, most notably the French IP office, WIPO, UPOV, and the
WTO, which used capacity-building to secure rapid and strong implementa-
tion of TRIPS. The promise of donor assistance and fees from users of the IP
system assured national governments that they would not have to bear the
fiscal costs of administering and enforcing the TRIPS-plus laws.
Fifth, TRIPS implementation in the OAPI countries was shaped by a pro-
IP and ‘compliance-plus’-oriented political environment. Through technical
assistance, monitoring, public outreach, and diplomatic channels, progress
on IP protection was presented by developed countries and key international
organizations as a central component of the domestic reforms francophone
African countries needed to advance in order to secure broader political
rewards. Among the anticipated benefits were foreign aid, trade and invest-
ment, as well as support for their political regimes. In this context, NGO
efforts to dissuade officials ignorant of the technical details and implications
from moving ahead with the revised Bangui Agreement, and to raise aware-
ness about other possible options, had little prospect of success.
This chapter begins by reviewing the socio-economic context for TRIPS
implementation in francophone Africa, contrasting the high standards of
the revised Bangui Agreement with what the economic circumstances of the
region would lead us to expect. Second, I provide an overview of the political
context for IP decision-making in francophone Africa and a history of IP
regulation in the region. Third, I summarize the core features of the revised
Bangui Agreement, with particular attention to those elements which exceed
minimum TRIPS requirements. Fourth, I analyse the Bangui revision process,
tracing how the five factors introduced above shaped TRIPS implementation
in the OAPI region through three phases: the emergence of the text (1994–9);
the ratification process (1999–2002); and the debate after entry into force of
the revised Agreement (2002–7). This process highlights where intersections
existed between TRIPS implementation efforts in the region and ongoing

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international negotiations on TRIPS and public health, and TRIPS Article

27.3(b), as well as regional efforts to advance a distinctive African sui generis
approach to plant variety protection. Fifth, I elaborate on some of the core
themes that emerge, particularly with respect to the roles that the weak
technical capacity of IP offices, delegation to a regional organization, and
capacity-building played in the implementation process.

7.1. IP Reforms in the Poorest Countries: Expectations and Reality

The economic and social circumstances of OAPI countries would lead us

to expect them to have made full use of TRIPS flexibilities. Similarly, the
economic literature on IP and development suggests that the interests of poor
countries, such as those in francophone Africa, would favour IP laws that
would keep the costs of buying and licensing imported technology low, enable
the imitation and adaptation of foreign technologies, and facilitate transfer of
know-how to local producers.13
All but three OAPI members have annual per capita incomes of less
than US$2 per day and twelve OAPI LDCs rank among the world’s poorest
countries.14 In 2002, the year that the revised Bangui Agreement came into
force, the smallest three OAPI economies had a GDP of just US$200 mil-
lion (Guinea-Bissau) and US$1 billion (Mauritania and the Central African
Republic).15 With a total population in the region of 100 million, seven
of the OAPI members have populations of less than 5 million.16 The OAPI
countries each face public health challenges, including high and growing rates
of HIV/AIDS (approximately 17 per cent of the combined populations of the
OAPI countries are infected), malaria, and other infectious diseases. Within
the region, there is no economic or productive capacity to manufacture
generic medicines for public health emergencies such as HIV/AIDS, forcing
public health administrators and relief organizations to import medicines
from beyond the region or to rely on donations. Low literacy rates and weak
secondary and tertiary school enrolments, particularly in technical subjects,
are core national challenges.17 In addition to strong dependence on foreign
development assistance (described in more detail below), most OAPI countries
receive food aid from the UN World Food Programme and are extremely
vulnerable to external shocks and changing climatic conditions.18
The primary source of employment in the OAPI region is the agricultural
sector; the majority of people rely on informal, subsistence farming for their
livelihoods. The OAPI countries are all net importers of technology and
there is low manufacturing, processing, and industrial capacity in any of
the countries. The largest industrial sectors are those concerned with oil and
mineral extraction. The OAPI countries are also among the world’s weakest
performers in terms of domestic innovation, technological activity, research

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and development (R&D), and foreign direct investment (FDI).19 With the
exception of Equatorial Guinea and Congo, FDI flows to OAPI countries were
less than US$250 million per country in 2002, and were largely of French
origin.20
The ownership of IP rights in francophone Africa has long been dominated
by non-African firms. The vast majority of patents registered in the region are
related to pharmaceutical and medicinal purposes. Most patents have been
used to secure an import monopoly on the part of owners for their products
rather than for local industrial exploitation or production in the country
of registration; in other words, the patents have not been ‘worked’ in the
region.21 These facts have prompted several reviews of IP protection in the
region to observe that francophone Africa has derived few benefits from its
IP laws.22 OAPI countries have had significant difficulties administering and
enforcing IP laws and any benefits have accrued primarily to foreign IP right-
holders.23
Little changed in the aftermath of the Bangui revision process. In 1999,
OAPI received 341 patent applications (over 90 per cent from abroad) and
1,751 trademark applications (97 per cent from abroad).24 After the revised
Bangui Agreement came into force, patent filings in the OAPI region grew
but only marginally. In 2005, for instance, 374 patents were issued of which
only 42 were to nationals of OAPI member states and of 2,031 trademarks
registered, only 616 were for applicants in OAPI member states.25
For the OAPI countries, as for the sub-Saharan African region as a whole,
outflows of royalties and licensing fees from the region far exceed inflows.
From 1997 to 2002, royalty and licence payment outflows from the sub-
Saharan region to the United States increased by over 33 per cent, from
US$72 million to US$109 million. Conversely, inflows of such payments to
sub-Saharan African countries decreased by almost 17 per cent over the same
period, from US$6 million to US$5 million.26 By 2007, the gap between
outflows and inflows had further widened.27 Between 2002—when the Bangui
revisions came into force—and 2007 there was no significant change in flows
of FDI to the region (beyond the oil sector in selected countries). This outcome
is predicted in the economic literature which suggests that in the poorest
countries, IP protection alone is unlikely to generate a significant pull for
foreign investors.28
Experience to date should not, however, suggest that francophone Africa
has nothing to gain from improved IP laws and policies. There are indeed
innovators in the region, including local scientists, some of whom may seek
IP protection.29 Small and medium-sized enterprises in francophone Africa
conduct a range of small, incremental, innovative activities that may be
bolstered through some forms of protection and improvements in licensing
options.30 It may also make sense for African countries to seek proper rewards
for their creative activities and traditional knowledge, particularly in music,

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textiles, and literature, where they are often under-compensated in both

domestic and foreign markets.31 (Note that the greatest gains for African, not
foreign, works will depend on greater protection in foreign markets where few
African innovators or creators have the capacity to claim or enforce rights in
the face of unauthorized use of their works).
The puzzling reality is that in areas where the OAPI countries might be
poised to derive some benefits from improved and properly tailored IP pro-
tections, their implementation efforts have been least effective.32 Further,
the TRIPS-plus provisions in the revised Bangui Agreement seem to fly in
the face of the socio-economic realities. In particular, the public health and
educational challenges in the region give OAPI countries a strong interest in
ensuring rapid, affordable access to medicines and knowledge, either through
cheap imports or through copying and local production.
In short, one would expect OAPI countries to make full use of TRIPS
flexibilities, particularly those relevant to public health; the accessibility of
educational materials and software; and the ability of farmers to save, sell,
and exchange their seeds. One would also expect that OAPI countries had
joined most other LDCs in delaying TRIPS reforms for as long as possible.

7.2. From Colonization to the Revised Bangui Agreement

Explaining the TRIPS-plus provisions of the revised Bangui Agreement

demands an appreciation of the political context in francophone Africa and
the history of IP protection in the region. The legacy of the colonial era and
a consistent dependence on external advisors and assistance emerge as two
dominant themes.

7.2.1. The Political Context for IP Reforms

Despite decolonization, the prevailing view of scholars studying francoph-
one Africa is that they remain economically, politically, and intellectually
dependent on France and a range of foreign donors.33 The weak position of
OAPI countries in the international system renders them ‘price takers’ in most
aspects of their international relations and compromises national decision-
making autonomy in many areas of domestic policy.
A central aspect of the ‘dependent independence’ of francophone African
countries stems from their relationship with France.34 Not only did the French
colonial mission civilatrice leave ‘indelible marks on its former territories’,
France maintains a ‘web of connections, links, agreements, and pacts’ with
its African chasse gardée to protect her enduring political and economic
interests.35 While there is heterogeneity among the various countries in the
region, decades of French political, educational, linguistic, and intellectual

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influence has socialized officials to concur with, or defer to, French policy
advice and expertise.36 In practical terms, administrative systems in francoph-
one African countries were based on the French model. More generally, the
French colonial legacy bred a culture of perceived inferiority and passivity in
the face of external expertise on a broad spectrum of policy, public adminis-
tration, and legal matters.
Even as some countries in the region, such as Côte d’Ivoire and Senegal,
diluted French influence by deepening relationships with other powers such
as the United States, the reality of neo-colonial trade, aid, and intellec-
tual ties with richer powers persists. Most of the OAPI countries are highly
indebted and heavily dependent on development assistance from France,
the International Development Association (IDA) (the World Bank’s con-
cessional lending window), and the European Union.37 Indeed, so deep is
the dependence of most francophone African countries on foreign donors
for the basic functioning of government,38 a small but growing literature
on Africa’s international relations persuasively depicts francophone African
countries as ‘quasi-states’,39 with tenuous sovereignty.40 As aid dependence
and donor coordination have increased, international networks of advisers,
donor-financed consultants, and policy conditionalities play an intrinsic, and
often dominant, role in economic, administrative, and political decision-
making in the region, from broad priority-setting to the smallest details and
day-to-day operation of the state.41
The influence of foreign donors on national decision-making is bolstered
by (and arguably perpetuates) the distinctive nature of statehood and gov-
ernment in the region.42 Independence in Africa spawned the formation of
states misaligned geographically with prior ethnic and cultural frontiers, and
governments with tenuous control of their borders.43 Political instability asso-
ciated with the rise of military regimes, dictatorships, civil wars, and famine
since independence further strained the affinity of many citizens with their
state and government.44 In many francophone African states, the central pre-
occupation of elites for several decades has been their own political security
and economic survival.45 Despite the push for democratization and stronger
electoral politics in Africa in the 1990s, long-standing political patterns per-
sist, namely corruption, clientelistic practices, low political participation,
limited vertical and horizontal accountability mechanisms for the executive,
and presidential dominance.46 Weak public administration undermines the
prospect of coherent decision-making on complex regulatory issues. While
the intensity of the challenges vary by country, the result is often a vacuum
on critical policy issues.47
The vulnerability of OAPI countries to external pressures when it came to
TRIPS implementation was compounded by the low accountability of political
elites to their citizenry on matters of foreign affairs, the authority for which
was generally delegated to the executive branch of government or directly

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to the President.48 Across francophone Africa, governments had few formal

processes for public comment or consultation on proposed national laws and
regulations. Institutions for aggregating political interests were also weak,
and lack of literacy among the majority of the population limited public
participation in detailed policy debates.49 With only a few exceptions,50 there
was minimal oversight from parliaments or the public of the positions that
francophone African governments advance in international organizations
and at treaty negotiations. Further, once signed, international treaties rarely
incited meaningful debate in francophone African parliaments or among the
domestic public when presented for ratification.51 This deficit was particularly
striking on topics such as IP where the issues were presented as highly techni-
cal and the practical implications were not widely understood.
The approach of OAPI countries took to TRIPS implementation was also
shaped by the legacy multiple regional arrangements among them, which to
varying degrees had long compromised the development of national capacity
and policy autonomy on key regulatory issues.
The OAPI member states further shaped by the multiplicity of regional
arrangements among them. After independence, the new francophone
African governments pursued regional cooperation as a way to build a stronger
regional economy, leverage greater collective power in international eco-
nomic negotiations, and promote regional security.52 Early initiatives post-
independence were infused with the spirit of pan-Africanism among African
elites and a determination, spurred by the broader non-aligned movement
of developing countries, to demonstrate that they could act on their own.53
While their positions on regional integration varied over time, the key powers
in the region, namely Nigeria, Senegal, and Côte d’Ivoire manoeuvred to
bolster their respective regional standing, including by securing the head-
quarters of the various regional initiatives they created.54 In the aftermath
of independence, France’s position on regional coordination varied. In some
cases, it perceived regional integration efforts as mechanisms through which
it could channel its interests in the region. In other instances, France worked
behind the scenes to play countries off one another where regional collabora-
tion might threaten her interests (e.g. Côte d’Ivoire against Mali and Senegal
when the latter created a federation). Subsequently, France, the United States,
and the World Bank encouraged and financed a suite of regional economic
policy coordination mechanisms to boost the effective use of donor resources,
improve regulatory cooperation, and create a more attractive investment
climate.
Further, the era of cold war politics set the foundations for ongoing collabo-
ration with external powers on matters of political security and for deference
on economic relations. In both areas, francophone African governments have
forged deals that circumscribe the scope of domestic decision-making over
which they retain authority.55 In the area of trade, OAPI countries have

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concluded deals accompanied by conditions that constrain domestic policy

autonomy,56 such as the U.S. Africa Growth and Opportunity Act (AGOA) and
the EU’s Cotonou Agreement. Many governments in the region also know that
strategic cooperation with foreign powers can secure them access to military
resources and expertise useful for protecting and consolidating their regimes –
albeit at the cost of some policy autonomy.
Larger strategic interests also shaped how external powers acted in the
region. From the late 1990s, France tussled to maintain francophone Africa as
her political sphere of influence,57 particularly as post-9/11 priorities spurred
the United States to expand its military presence in the region, control terror-
ist threats, and protect strategic and commercial interests in oil reserves in the
region.58 Beyond its historical interest in francophone Africa, France (and the
EU) wanted to leverage its influence there to gain access to larger neighbour-
ing markets in the ECOWAS region, such as Ghana and Nigeria. Francophone
Africa was a soft entry point for non-U.S., non-UK interests to gain a foothold
in parts of neighbouring Africa where they had no historical linkage. The
European Union’s insistence that francophone African countries collaborate
with other partners in the ECOWAS region in their negotiations for Economic
Partnership Agreements (EPAs) was an illustration of this strategy.59
Two final aspects of the political context for TRIPS implementation were
the pro-IP global political environment and the interest of OAPI countries in
bolstering their international image. Political leaders in francophone Africa
have long understood the importance of a positive international reputation
for securing investment, foreign aid, and trade deals. Political elites often,
for instance, aligned themselves with prevailing global discourses about what
constitutes appropriate economic policy, professing, for example, their com-
mitment to modernization, good governance, the rule of law, engagement in
the global economy, and the fight against corruption.60 (Setting aside the fact
that foreign powers frequently turned a blind eye to such considerations when
commercial and strategic interests were at stake.61 ) Similarly, a positive com-
mitment to IP protection was perceived by political leaders in francophone
Africa as part of a bundle of measures they must pursue in order to acquire
highly prized political and economic benefits from more powerful players in
the international system.

7.2.2. The Colonial Legacy and IP Protection in the OAPI Region

OAPI countries have little experience of independent decision-making on IP
matters. Across the developing world, the introduction to western IP systems
began only with colonialism (see Chapter 2). In francophone Africa, the
history of IP protection has been a particularly externally driven affair.62
Before the arrival of colonial powers, countries in francophone Africa relied
on a range of indigenous concepts, laws, and enforcement mechanisms to

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govern social relations; these operated on a tribal or local basis, were derived
from ancient custom, and were largely unwritten (except, for example, where
laws were influenced by Islam). The transposition of laws by the major colo-
nial powers in the region (i.e. France, Belgium, Portugal, and Spain) inter-
rupted the evolution of indigenous customs and laws.63 Many of the legal con-
cepts and assumptions embedded in the new laws, particularly their emphasis
on individual rights and ownership, diverged significantly from African cus-
toms and cultures that emphasize community rights and collective heritage.64
In francophone Africa, the expansion of French involvement in the late
1800s spurred the creation of administrative organizations and services,
increased the number of European residents, and broadened the range of
commercial activities in the region.65 From the mid-1890s, the expansion
of France’s control in the region prompted the imposition of French laws
on the various occupied territories of the Union Française in French West
Africa (completed by 1904) and then in French Equatorial Africa (completed
by 1910).66 French colonial law had several levels: laws of France that were
extended to the colonies (with little or no changes); local enactments made
by authorities designated by the French in the respective colony; and cus-
tomary laws as practiced by the local people.67 IP laws fell into the first
category, reflecting France’s strong philosophical commitment to strong IP
protection. In France, IP rights had long been considered ‘natural rights’, to
which inventors and creators had a natural entitlement. This position was
reflected in the way France administered IP in its colonies. The transposition
of French IP laws on the colonies was also consistent with developments at the
time in international IP laws. Under its terms of accession to the 1886 Berne
Convention, for instance, France was obliged to extend copyright protections
to its colonies.
Throughout the colonial era and until 1962, patent rights in the OAPI
region were governed by French law and the French Institut national de la pro-
priété industrielle (INPI) served as the national IP authority. The French priority
was to ensure the protection of the intellectual assets of their nationals within
their territories. Local populations had no access to the IP system. With little
need for, or investment in, local IP expertise, the French colonial era laid the
foundations for a long-standing reliance on external actors.
By 1960, francophone African countries achieved independence and formal
metropolitan legal authority was removed. Yet the nature of the relationship
between France and its former subjects changed little.68 Cold war politics
reinforced the French push to retain authority in the region as it sought to pre-
vent countries from allying with the USSR and China.69 Post independence,
France was keen to retain an effective system to protect and attract investment
by French companies and investors in its former colonies and neighbour-
ing countries.70 As decolonization advanced, it thus largely involved the
substitution of national for colonial control of similar or identical juridical

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institutions, laws, and statutes, with marginal efforts to adapt them to local
development needs.71 The legacy of French influence on the structure of legal
systems in general, and on IP laws specifically, continued. Copyright laws in
the OAPI countries were modelled on French legislation. Further, between
1962 and 1964, France persuaded eleven francophone African states to join
the Berne Convention (the international convention regarding copyright
protection for literary and artistic works).72 France also supported the move to
a regional approach to IP protection, the foundations for which were laid in
the early 1960s when twelve francophone countries gathered for a meetings
hosted by the Union Africaine et Malgache (UAM) and its successor, the
Organization Commun Africain et Malgache (OCAM).73

7.2.3. The Emergence of a Regional Framework for IP Protection

In September 1962, twelve francophone African countries signed the Libreville
Agreement, thereby creating the Office Africain et Malgache de la propriété
industrielle (OAMPI) (based in Yaoundé, Cameroon), the institutional pre-
cursor to OAPI and the world’s most comprehensive and unified regional IP
agreement.74 OAMPI was designed to be a single regional body to act as the
central authority for managing the protection of industrial property in fran-
cophone Africa.75 The French IP Office (INPI) was actively involved in the for-
mation of the regional arrangement and alongside BIRPI (WIPO’s predecessor)
and UNESCO, was represented at the founding meeting.76 Until 1965, OAMPI
operated under the ambit of OCAM. OAMPI became fully independent when
OCAM moved to Bangui (after the withdrawal of Cameroon from the organi-
zation). OAMPI stayed in Yaoundé and in 1965 its first Director-General was
elected.
Drafted with technical advice from INPI and BIRPI, the substance of the
Libreville Agreement mirrored French legislation of the era and covered patent
rights, trademarks, and industrial drawings. The Agreement advanced three
core principles of regional cooperation, each of which remain in operation
today: (a) the adoption of a uniform system of industrial rights protection
based on uniform legislation; (b) the creation of a common authority to serve
as the office for protection of industrial property for each of the member
states; and (c) the application of common and centralized procedures such
that a single title issued by OAPI would be valid in all member states. With
this agreement, francophone African countries paved the way for delegating
responsibility for IP administrative decisions to the regional level.
In March 1977, the Bangui Agreement superseded the Libreville Agree-
ment and expanded the scope of regional coordination to include literary
and artistic property. Marking the withdrawal of the Malagasy Republic,
OAMPI also became the Organisation Africaine de la propriété intellectuelle
(OAPI) at that time (and remained headquartered in Yaoundé, Cameroon).77

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By this time, the membership of OAPI had expanded to fifteen countries. The
copyright provisions of the Bangui Agreement again took French law as their
legal foundation.78 The close link to INPI was formalized with a cooperative
agreement in 1982. Reflecting on the creation of OAPI, one of its former
Directors-General described the decision by members to cooperate on IP as
an ‘act of faith’.79
Since its inception, OAPI has consisted of three main organs: the Admin-
istrative Council (composed of the representatives of OAPI member states,
usually Ministers), the Organization (OAPI’s Secretariat that executes the
directives of the Council and administers the Bangui Agreement and its
Annexes), and the High Commission of Appeal.80 The Council is the political
head and highest authority of OAPI. Its responsibilities include: regulating
and controlling all aspects of the organization; approval of the annual OAPI
programme, budget, accounts, and report; appointing the Director-General;
establishing fees for OAPI services; and making decisions regarding mem-
bership and any contributions to be made by member states. The Director-
General is appointed for a five-year term (renewable once) and is responsible
for the budget, the work programme of the OAPI Secretariat, and relationships
with member states.
Since 1999, the OAPI Secretariat has maintained a staff of around seventy
to eighty, including twenty-five professionals (i.e. scientists, lawyers, and
other experts).81 The OAPI Secretariat carries out novelty examinations for
trademarks, but in the area of patents is essentially a registering office. WIPO
provides patent searches for OAPI free of charge and other aspects of patent
examinations are generally outsourced to the EPO. Each OAPI member des-
ignates a national liaison office (‘structure nationale de liaison’ (SNL) – usually
its national industrial property office) to maintain the link with the OAPI Sec-
retariat between the annual ministerial-level meetings of the Administrative
Council.
In ten of the sixteen OAPI members, the national industrial property office
is located within the Trade Ministry. In the other six it is located in separate
ministries charged with the promotion of industry, craft, employment, or
other tasks (see Table 7.1). The main tasks of national industrial property
offices are to educate the public about the IP system, provide for enforcement
of rights, review and forward applications to the OAPI Secretariat, and serve
as a liaison with the OAPI Secretariat and international donors. While some
national industrial property offices in the region had up to five or six profes-
sional staff (e.g. Senegal) at the time of the revisions, others had just three staff
(e.g. Mauritania).82 Copyright offices, to whom the task of ensuring effective
administration of copyrights fell, were usually located separately in Ministries
of Culture. The number of professionals in copyright offices was generally
also between five and ten. In most cases, national collecting societies were
located within these copyright offices as well. In both copyright and industrial

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Table 7.1. Ministries responsible for industrial property in OAPI members

Country Responsible ministry

Benin Ministry of Industry and Smaller Businesses, National Intellectual Property

Centre
Burkina Faso Ministry of Trade and of the Promotion of Business and Artisans,
Directorate-General of Industrial Property
Cameroon Ministry of Industrial and Commercial Development, Directorate of
Industrial & Handicraft Development, Industrial Property Service
Central African Republic Ministry of Industry, Commerce and Small and Medium-Sized Businesses
and Industries, Directorate of Industrial Development and Handicraft,
National Industrial Property Service
Chad Ministry of Commerce, Industry and Handicrafts, Division of Industrial
Property and Technology
Congo Ministry of Industrial Development, Directorate-General of Industry,
National Directorate of Industrial Property
Côte d’Ivoire Ministry of Industry and Private Sector Development, Ivoirien Office of
Industrial Property
Equatorial Guinea Presidency of the Government, Council of Scientific and Technological
Research, Office of Industrial Protection
Gabon Ministry of Trade and Industrial Development, Directorate-General of
Industrial Development, Centre of Industrial Property of Gabon
Guinea Ministry of Trade, Industry and Small and Medium-sized Business,
Industrial Property Service
Guinea Bissau Ministry of Economy and Finance, Directorate General of Industry,
Industrial Property Directorate
Mali Ministry of Industry and Trade, Malien Centre for the Promotion of
Industrial Property
Mauritania Ministry of Mining and Industry, Directorate of Industry
Niger Ministry of Commerce, Industry and Private Sector Development, Office of
Industrial Development
Senegal Ministry of Mining, Handicrafts and Industry, Industrial Property and
Technology Service
Togo Ministry of Industry, Trade and the Development of the Franc Zone,
National Institute of Industrial Property and Technology

property offices, the budget and staff resources fell far short of those necessary
to fulfil their objectives.

7.3. The Revised Bangui Agreement

7.3.1. The Core Provisions of the Revised Agreement

In 2002, the revised Bangui Agreement entered into force, thereby introducing
a significant set of changes to OAPI’s legal framework for IP protection. The
goal, as recounted by the OAPI Secretariat, was to make the Bangui Agree-
ment ‘consistent with the requirements of international intellectual property
treaties to which the member states belong, in particular the TRIPS Agreement;
to simplify procedures for issuing titles; to broaden the scope of protection;
and to make good certain legal gaps’.83 Like the 1977 Bangui Agreement, the

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revised text is a regional instrument that applies automatically as national law

in each of the OAPI member states that ratifies the agreement.
The revised text has two parts: the Agreement that sets out the general terms
and obligations of its members (and came into force on 28 February 2002) and
ten Annexes that specify the substantive obligations in the following areas:
patents (Annex 1), utility models (Annex 2), trademarks and service marks
(Annex 3), industrial designs (Annex 4), trade names (Annex 5), geographical
indications (Annex 6), literary and artistic property (Annex 7), protection
against unfair competition (Annex 8), layout designs (topographies) of inte-
grated circuits (Annex 9), and plant variety protection (Annex 10).84 All but
two of these Annexes came into force at a meeting of the OAPI Administrative
Council held later in 2002. The Annex on plant variety protection came into
force on 1 January 2006.85 The Annex on integrated circuits is yet to enter
into force.
To bring the OAPI framework into line with TRIPS, the revised Agree-
ment extends the term of protection for patents and copyright, and also
expands the scope of patent protection (e.g. to pharmaceutical products).
The revised treaty increases, for instance, increases the term of patent pro-
tection to 20 years (from 10 years with the possibility of extension) and
grants an automatic extension of the patent term to 20 years for patents
that had already been granted under the previous 1977 accord. In addition,
the revised Agreement introduces new copyright protections for computer
programs and the related rights of performers of performances, producers
of phonograms, and for broadcasting organizations; adds new annexes for
the protection of layout designs (topographies) of integrated circuits and
plant varieties (which had hitherto not received any protection in OAPI
countries); and also adds special protections for geographical indications
related to wines and spirits (Table 7.2 summarizes these amendments).86 The
revised Bangui Agreement also maintains and expands several distinct fea-
tures of the 1977 Agreement, such as protections for utility models and for
cultural heritage and folklore, neither of which are subject matter addressed in
TRIPS.87
The revised Bangui Agreement retains the OAPI Secretariat’s status as the
equivalent of the national industrial property service for each of its members.
The OAPI Secretariat thus holds responsibility for the administration and
management of protection relating to patents, utility models, product or
service marks, industrial designs and models, trade names and geographical
indications, as well as for the collection of all related application fees for
industrial property applications and renewals.88 As under the earlier Agree-
ment, the issue of a title by the OAPI Secretariat automatically gives rise to
rights valid in all its member states. The OAPI Secretariat is also responsible
for administrative procedures regarding the implementation of international
treaties to which its member states have acceded.89

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Table 7.2. Comparison of the 1977 and 1999 Bangui Agreements

Bangui Agreement (1977) Bangui Agreement (1999)

Patents 10 years, renewable for maximum 20 years

two further periods of 5 yearsa
Utility models 5 years 10 years
Trademarks or service 10 years, renewable every 10 years 10 years, renewable every 10 yearsb
marks
Industrial designs 5 years 5 years, renewable twice for 5 yearsc
Trade names 10 years, renewable every 10 years 10 years, renewable every 10 years
Copyright
• General Lifetime of author + 50 years Lifetime of author + 70 years
• Photographs 25 years 25 years
• Films, radio, & 50 years 70 years
audio-visual work
Related rights n.a.
• for performances 50 years
• for phonograms 50 years
• for radio broadcasts 25 years
Layout designs of n.a. 10 years
integrated circuitsd
Plant variety protection n.a. 25 years
Geographical indications No special protections for wines Added special protections for wines
and spirits and spirits

Source: WTO (2005e)

a
For a renewal, the applicant had to prove to OAPI’s satisfaction that the invention was being worked in one of
the member states.
b
Under the revised Agreement, the use of the trademark is no longer a requirement for its renewal.
c
The revised Agreement removes the possibility of compulsory licensing of industrial designs.
d
This annex to the revised Agreement is not yet in force.

No domestic legal instrument is required to enact the Bangui Agreement

as national legislation. The regional Agreement may, however, coexist with
national laws in each member state.90 Such coexistence is the exception,
however, and occurs only in the area of copyright.91 The expectation is that
governments should adopt or upgrade national copyright legislation to meet
or supplement the standards of the revised Bangui Agreement. In addition,
the revised treaty calls on members to establish national collecting societies
to manage the administration, exploitation, and protection of authors’ moral
and economic rights.92
The revised Bangui Agreement also meets TRIPS requirements for greater
specificity on several matters related to the administration and enforcement
of IP protection in the region. The revised Agreement extends the grace period
for patents from six to twelve months and, for the first time, introduces
clear instructions with respect to novelty and a definition of an invention
and industrial design.93 It reverses the burden of proof in infringement dis-
putes launched by holders of process patents, such that the burden falls on
the alleged infringers to prove their innocence. The revised Bangui Agree-
ment also increases fines for infringement of IP rights (from a maximum

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of approximately US$210 to a maximum of US$6,250),94 lengthens terms of

imprisonment for infringement, and bolsters the potential for criminal sanc-
tions. Responsibility for the implementation of these enforcement provisions
rests at the national level. Similarly, certain legal questions, such as those
concerning infringement of patents or requests for non-voluntary licences,
are regulated at the national level (i.e. by civil tribunals in each member state).

7.3.2. TRIPS Flexibilities and TRIPS-plus Reforms in

the Revised Bangui Agreement
In revising the Bangui Agreement, the OAPI countries took a mixed approach
to the use of TRIPS flexibilities. On the one hand, the revised Agreement
includes several exceptions to IP protection that were not in the original
accord, including exceptions to patent rights for experimental purposes in
the course of scientific and technical research. In addition, the revised Agree-
ment adds exclusions from patentability for methods of medical treatment
(such as diagnostic methods), matters of discovery, literary, architectural
and artistic works, and also new plant varieties.95 The revised Agreement
also includes limitations on the rights of copyright holders (to allow, inter
alia, for private use, quotation, scientific use, teaching, libraries, and news
purposes).96 Further, the revised Agreement strengthens provisions against
unfair competition.97
On the other hand, the revised Bangui Agreement features a range of
commitments that exceed TRIPS requirements. In addition to early TRIPS
implementation, these include failure to take full advantage of available TRIPS
flexibilities and the adoption of standards of protection higher than those
required by TRIPS. Table 7.3 presents a summary of the range of TRIPS-plus
standards in the revised Bangui Agreement. There are five particular TRIPS-
plus aspects of the Agreement where, based on the assessment of economic
and social interests, one would logically expect the countries to have acted
differently: (1) timing, (2) patents, (3) plant variety protection, (4) copyright,
and (5) international agreements.98

7.3.2.1. TIMING
TRIPS required the four developing country members of OAPI to have new
laws in place by 1 January 2000, but granted LDCs extra time. When the
revised Bangui Agreement was signed in 1999, OAPI’s twelve LDC members
had until 2006 to implement TRIPS-related legislative reforms, with the pos-
sibility of further extension.99 Despite this flexibility, the OAPI members did
not take any measures to postpone the deadline for the entry into force of the
Bangui Agreement for its weaker members. Even when the 2001 Doha Decla-
ration on TRIPS and Public Health granted LDCs until at least January 2016
to implement patents on pharmaceuticals products and related provisions on

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Table 7.3. Examples of TRIPS-plus standards in the revised Bangui Agreement

Subject matter TRIPS flexibilities TRIPS ‘plus’ provisions of revised

Bangui Agreement

Deadlines LDCs had until 2006 for the Provides TRIPS-consistent patent
implementation of patent protection. legislation from 2002,
This deadline was then extended to including in the area of
2016 in the case of pharmaceutical pharmaceutical products
products, and to mid-2013 for TRIPS
as a whole
Exhaustion regime Countries can choose any regime of Provides for regional exhaustion
exhaustion – international, regional,
or national
Compulsory licences The TRIPS Agreement explicitly allows Provides a series of conditions
for use without the authorization of and limitations for compulsory
the rights holder. It provides a series licensing from 2002. It also
of conditions and limitations but does limits the grounds for
not limit the grounds which such compulsory licensing in ways
licences may be granted not required by TRIPS
Protection of TRIPS affords states the flexibility to Provides strong general
undisclosed test data decide how to protect test data protection for confidential data
against unfair commercial use and from 2002
disclosure. LDCs were granted until
2016 to provide such protection in
the Doha Declaration on TRIPS and
Public Health
Copyright Life of the natural person or no less than Provides protection for the
50 years from the end of the calendar lifetime of the author + 70
year of authorization publication, or years
failing such authorized publication
within 50 years from making of the
work, 50 years from the end of the
calendar year of making
Radio broadcasting At least 20 years from the end of the Provides for 25 years from the
calendar year in which the broadcast end of the calendar year in
took place which the broadcast took place
Plant variety protection Provides countries choice of system for Incorporates UPOV 1991 plant
plant variety protection: either by variety protection and obliges
patents or by an effective sui generis OAPI member states to join
system. No term of protection is UPOV 1991. The term of
specified protection is set at 25 years
Requirements to accede No accession to additional international Commits members to accede to
to international conventions required 11 international IP agreements
conventions

exclusive marketing rights, no action was taken to postpone the application

to LDCs of the Bangui Agreement (which had not yet been ratified by all of
its signatories) (see Table 7.4).100 Similarly, no such action was taken after the
WTO TRIPS Council agreed in late November 2005 to grant LDCs a collective
extension for the entire TRIPS Agreement of an additional seven-and-a-half
years, giving LDCs until 1 July 2013 to implement TRIPS, again with the
possibility of further extensions.101 The terms of the WTO’s LDC extension
prevents countries from reducing or withdrawing existing protections thus

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Table 7.4. Dates of ratification of the revised Bangui Agreement

by OAPI members

OAPI member LDC OAPI member Ratification date

Cameroon – 9 July 1999

Gabon – 27 December 1999
Senegal X 9 March 2000
Côte d’Ivoire – 24 May 2000
Mali X 19 June 2000
Equatorial Guinea X 23 November 2000a
Chad X 24 November 2000
Burkina Faso X 8 June 2001
Mauritania X 5 July 2001
Guinea X 13 July 2001
Congo – 19 October 2001
Togo X 29 November 2001
Niger X 28 May 2002
Guinea Bissau X 14 August 2003
Benin X 18 December 2003
Central African Republic X 24 April 2004

a
Equatorial Guinea also joined OAPI on this date.

locking countries into the revised Bangui Agreement, which otherwise states
that any country can exit from their obligations under the treaty.102
While the extended transition period for TRIPS implementation protects
OAPI LDCs from WTO disputes alleging lack of enforcement, the OAPI coun-
tries’ early and TRIPS-plus approach to implementation nonetheless risked
significant social and economic costs, particularly in the area of public health.
Specifically, the decision to extend protection to pharmaceutical products and
to increase the term of patent protection rendered OAPI LDCs vulnerable to
higher prices and licensing costs for technologies some eleven years earlier
than TRIPS required, and fourteen years earlier in the case of pharmaceutical
products.

7.3.2.2. PATENTS
Several aspects of the revised Bangui Agreement contradict the letter and
spirit of the rights countries acquired in the 2001 Doha Declaration on TRIPS
and Public Health. The revised Bangui Agreement’s provisions on the use of
compulsory licences by third parties (described in the Agreement as ‘non-
voluntary’ licences) or by governments (ex-officio licences)103 impose more
stringent conditions than TRIPS, thus sacrificing the full use of flexibilities
affirmed by the Doha Declaration. It demands, for instance, a judicial proce-
dure in national civil courts before licences to third parties can be granted.104
The revised Bangui Agreement also omits several of the possible grounds
for compulsory licences, such as the existence of import monopolies.105 Fur-
ther, the revised Agreement counts importation of patented products as one

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method of ‘working’ a patent. Under the 1977 Bangui Agreement, a non-

voluntary licence could be issued if imports of the patented product pre-
vented or hindered ‘working’ of the invention. Pre-TRIPS, this legal strategy
of limiting the rights of the IP holder in the absence of domestic ‘working’
was used by many countries as a tool for promoting national industrial and
scientific capacity. Where demand is being met through imports, the 1999
Agreement eliminates the option of compulsory licensing and thus one of the
tools governments might have used to build production capacity and expand
affordable access to medicines in the region.106
While TRIPS provides for countries to choose any exhaustion regime
(national, regional, or international) the OAPI member states retain a regional
approach.107 This decision means that parallel imports are only possible from
among the OAPI member states, despite the fact that medicines can often
be found at lower prices outside the OAPI region.108 In 2002, for instance,
one tablet of GlaxoSmithKline’s Combivir, a one-pill combination of two
antiretrovirals, cost US$1.96 in Togo and US$0.94 in Senegal (the lowest price
within the OAPI region), but only US$0.65 in India. If OAPI countries had
chosen international exhaustion, Togo could have imported Combivir from
India. Instead, Togo imported Combivir from Senegal at a price that was 45
per cent higher.109
The revised Bangui Agreement also introduces for the first time in the
region, protection for second-use patents (which is not required by TRIPS)110
and data submitted for regulatory approval purposes. These protections can
serve respectively to extend the length of patent protection and slow the mar-
keting of generic versions of products such as medicines. While Article 39.3
of TRIPS does call for countries to provide some form of data protection, the
revised Bangui Agreement provides stronger standards than those necessary
to meet the vaguely stated minimum TRIPS obligation.111 In addition, the
patent provisions of the revised Bangui Agreement do not provide for any
exceptions for experimental or research purposes. Finally, by extending the
new twenty-year protection to patents claimed under the prior regime, the
revised Agreement also deprives member states of the possibility to exploit
patents that would otherwise have fallen into the public domain after ten
years.112

7.3.2.3. NEW PLANT VARIETIES

The revised Agreement also provides TRIPS-plus protections for new plant
varieties in the form of provisions consistent with the 1991 Convention of
the Union for the Protection of Plant Varieties (UPOV)113 and commits OAPI
countries to joining that Agreement.114 By adopting the UPOV 1991 approach
to fulfilling their commitments under TRIPS Article 27.3b, the OAPI members
legally constrain the freedoms of their farmers to plant, sell, and exchange
seed.115 While the precise impact of UPOV 1991 on farmers’ livelihoods is

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debated, the choice of UPOV 1991 does clearly contradict the African Group’s
efforts at the WTO to revise the terms of Article 27.3 (b) to ban the possibility
of private rights over life forms (such as plant varieties) and promote stronger
provisions for the protection of farmers’ rights through non-UPOV 1991 sui
generis frameworks.116 In lieu of the UPOV 1991 approach, OAPI countries
could have advanced an alternative sui generis system for plant variety pro-
tection, such as one modelled on UPOV 1978117 or the African Model Law
for the Protection of the Rights of Local Communities, Farmers and Breeders,
and for the Regulation of Access to Biological Resources, which had already
been developed by the Organization of African Unity (OAU),118 endorsed by
the OAU Heads of State in 1998, and actively promoted at the WTO by the
African Group.119

7.3.2.4. COPYRIGHT
The 1999 Bangui Agreement extends the scope and terms of copyright pro-
tection beyond TRIPS obligations. At the time of the 1999 revisions, all but
four of the current OAPI member states had copyright laws in place but they
complied to varying degrees with the original 1977 Bangui Agreement.120 To
meet TRIPS standards, these laws also needed to be revised. For books, pictorial
works, sculpture, music, films, radio, and audiovisual programmes, the revised
Agreement adopts a general term of protection of the life of the author plus
seventy years, representing an increase of twenty years over both the 1977
Bangui Agreement and TRIPS requirements. The new version of the Agree-
ment also removes prior flexibilities regarding the translation of foreign works
into local languages for educational purposes (a flexibility TRIPS provides) and
also fails to take advantage of the Appendix to the Berne Convention (which
offers special provisions for developing countries to enable them to improve
the availability of translated works).121 Further, the revised regional text also
provides for TRIPS-plus sanctions to punish circumvention of technological
protection devices.122

7.3.2.5. INTERNATIONAL AGREEMENTS

The revised Bangui Agreement requires members to accede to eleven
additional international conventions (and also to the WTO in the case of
Equatorial Guinea), whereas no such obligations exist in TRIPS area.

Why did the OAPI countries adopt TRIPS-plus provisions in the revised
Bangui Agreement in these five areas? Why was there no effort in the Bangui
Agreement to follow the TRIPS model of distinct implementation deadlines
for developing countries and LDCs? Why did the OAPI members fail to
incorporate the same TRIPS flexibilities they fought to affirm in the 2001
Doha Declaration on TRIPS and Public Health? Why did the OAPI members

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agree to an approach to plant variety protection that contradicts principles of

the OAU model law and their own international position on the issue? What
prompted governments to opt for copyright protections that exceeded TRIPS
requirements?
It is already clear that national economic interests fail to explain the TRIPS-
plus approach taken by the OAPI countries. Neither are general allusions to
international pressures enough to account for the specifics of the Bangui out-
come. In the remainder of this chapter, I argue that the institutional arrange-
ments for IP decision-making in the region and pro-IP capacity-building,
were the decisive variables. To make this case, I trace the Bangui revision
process through three phases: (a) the emergence of the text (1995–9); (b) the
ratification of the text (1999–2002); and (c) debates after the entry into force
of the revised Agreement (2002–7).

7.4. The Bangui Revision Process

7.4.1. The Emergence of the Revised Bangui Agreement (1995–9)

The text of the revised Bangui Agreement emerged after the entry into force
of TRIPS in 1995. According to the OAPI Secretariat, the revision process
began with investigations it carried out in member states in 1994. In 1995,
studies conducted by the Secretariat compared TRIPS with the 1977 Bangui
Agreement, revealing those aspects of the regional legal framework that would
require amendment in order to meet TRIPS obligations. To draft a revised
Bangui Agreement, the OAPI Secretariat engaged a Cameroonian national as
an independent consultant (reportedly, this consultant was Denis Ekani, who
had served for nineteen years as OAPI’s first Director-General from 1965 to
1984).123 While an official announcement calling for bids to complete this
task was published in national newspapers in the region, the decision to hire
Ekani preceded the deadline for tender submissions.124 During 1996 and 1997,
the preliminary texts of a revised Bangui Agreement were drafted by Ekani in
close collaboration with the OAPI Secretariat, and with input from staff of
WIPO, UPOV, and INPI, which also hired an external consultant to provide
assistance with legal drafting.125
The OAPI Secretariat has consistently argued that governments carefully
considered the implications of the revisions, including ‘the problem of know-
ing whether it is the absence of protection of intellectual property rights or the
reinforcement of their protection which can encourage technology transfer
necessary for development’.126 According to the Secretariat, the draft instru-
ments were submitted in 1997 to governments for comments, suggestions,
and further elaboration, and also to other partners, such as WIPO, UPOV,
the EPO, and INPI. This process was combined with meetings of experts

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from OAPI member states and partners in Conakry (November 1997), Abid-
jan (February 1998), Ouagadougou (July 1998), and Nouakchott (November
1998).127 The definitive text was adopted by national IP officials at a further
meeting in Nouakchott (Mauritania) at the end of December 1998. From 22
to 25 February 1999, the revised Bangui Agreement was opened for signature
at a Diplomatic Conference in Bangui and signed on 24 February by the
plenipotentiaries of fifteen member states.128
At no point in the Bangui revision process was there any formal interstate
negotiation of the draft text.129 Within the OAPI countries, there was no
substantive parliamentary discussion about the proposed revisions to the
Bangui Agreement. Parliamentarians had little knowledge of IP issues or of the
revision process and thus limited capacity to monitor or participate in matters
of IP policy and decision-making. Indeed, during this phase of the revisions,
four of the OAPI countries were in the midst of civil wars or other domestic
political unrest, precluding the possibility for meaningful engagement in
regional IP decision-making.130
At the time the OAPI countries signed the Bangui Agreement there were no
national or regional IP policy strategies through which countries could formu-
late their effort to comply with TRIPS. Within OAPI governments, IP decision-
making was perceived as a technical domain, the legal details of which could
be left to experts from OAPI or donor agencies such as WIPO or INPI, rather
than a policy issue worthy of explicit integration into a broader national
development policy. There was thus no coordination within OAPI member
states to respond to TRIPS requirements and limited appreciation of the range
of potential public policy implications for countries, or of the available TRIPS
flexibilities. This policymaking vacuum meant that any national participation
the Bangui revision process was left in the hands of a small group of staff in
national IP offices.
At best, IP officials in a few of the OAPI member states discussed the
revisions with a handful of actors from other government offices or from
outside government. Limited expertise on the particulars of the TRIPS and
its flexibilities restricted the potential for substantive debate on tailoring
implementation to meet the region’s development needs. There is no evidence
of any formal or informal public consultations with relevant local stakeholders
either by the OAPI Secretariat or national governments during the revision
process.131 Though legal expertise in the region grew over the past decade,
there were few experts on international trade or TRIPS in the OAPI region
at the time of the Bangui revisions. Beyond the professional staff at OAPI,
a review of the scholarly literature on IP protection in the region reveals
that there was at best a core group of ten local scholars (either living in the
region or abroad) who were qualified and engaged in any technical, legal, or
economic analysis of the issues at stake.132 When the revised Bangui text was
drafted there was not a single university in the region which offered IP law

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at a graduate level.133 (As of late 2007, at least one university had a graduate
programme in IP law.)134
Within IP offices, the perspective of staff on the technical aspects of TRIPS
tended to focus narrowly on compliance. Officials in IP offices were the
product of training by INPI, European universities, WIPO, or U.S. universities,
which conveyed pro-IP views regarding the importance of strengthened IP
protection. By contrast, they lacked detailed knowledge of the politics of the
TRIPS negotiations and the ongoing international debates regarding flexibili-
ties. Those with critical concerns about IP protection were in the minority.135
There were also few NGOs able to engage substantively in national or
international debates on IP policy. In addition, low investment in R&D and
technological development in the region meant there were no organized
domestic stakeholders from industry or in the scientific community with
economic interests in advocating for stronger IP protection. The only profes-
sional community with ongoing engagement with IP offices and the OAPI
Secretariat consisted of IP attorneys. Comprised of no more than twenty
individuals across the region, the main activities of private IP attorneys were
to register and file applications for IP rights, and to represent the interests
of IP rights, and to represent the interests of IP right-holders.136 There was
no equivalent community of IP experts with IP users, consumers or public
interest perspective.
Neither the OAPI Secretariat, member states, or international donors under-
took any substantive empirical assessments to substantiate expectations about
prospective gains or to identify the distribution of potential losses from the
revised Agreement. While it is true that the OAPI Secretariat forwarded the
draft text to national IP offices for comment, there is no record of any
substantive written comments from member states to the OAPI Secretariat or
any evidence of coordination among member states in responding to the draft
text. As observed by a leading law professor in the region, ‘you cannot request
a member state with very few experts to have a sound opinion’.137 Weak
national capacity, he argued, made it obvious that there would be no sub-
stantive feedback, and that ‘the opinion of the Secretariat would prevail’.138
Substantive debate in francophone Africa on the Bangui revisions was fur-
ther constrained by the fact that Geneva-based diplomats from the region had
only marginally participated in the Uruguay Round of GATT negotiations and
were absent from the TRIPS discussions. Most of the OAPI countries main-
tained only a very small permanent representation to the WTO in Geneva
(with just one or two professional staff to cover all WTO issues), and five of the
OAPI countries had no permanent representation to the WTO at all.139 Many
national IP offices did not have consistent Internet connections through
which to access information about debates at OAPI, WIPO, or the WTO. In the
period under study, only four Geneva-based diplomats from the OAPI region
devoted particular attention to TRIPS, notably two consecutive delegates from

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Senegal (1999–2002), a delegate from Mauritania,140 and the Ambassador of

Benin (2000–2005).141 At WIPO, francophone African governments tasked
national IP offices, rather than Geneva-based diplomats, with managing their
relationship with an IGO which they perceived as primarily ‘technical’. When
officials from national IP offices visited WIPO, usually only once a year for
the WIPO Annual Assemblies, the main focus of their attention was the
renewal and expansion of capacity-building, and other technical and financial
support to their offices. Francophone African governments thus could not
turn, as some other developing countries had, to diplomats monitoring IP
negotiations at the WTO or WIPO for technical expertise or political advice
on their options with respect to TRIPS implementation. When IP officials
from the OAPI region were in Geneva to attend WIPO meetings few met with
or received political guidance from their country’s diplomats monitoring the
work of the WTO on TRIPS.142 Further, there was also no systematic engage-
ment between the OAPI Secretariat and the various permanent missions in
Geneva, despite the frequent visits of OAPI staff to Geneva.
Weak national capacity on IP issues left the OAPI Secretariat and interna-
tional donors to drive the TRIPS implementation process. The OAPI Director-
General stated that it was precisely the inefficiency of institutions and
decision-making processes in member states that prompted the Secretariat to
take the lead.143 In his view, the time and effort required to fully involve OAPI
members in negotiating transition periods, adapting draft texts, or designing
new approaches (such as a sui generis rather than UPOV 1991 approach to
plant variety protection) would have rendered the revisions and TRIPS imple-
mentation process too unwieldy.144 Regarding the absence of differential treat-
ment for LDCs in the revised Bangui text, the OAPI Director-General argued
that broader values of solidarity were deemed more important by member
states: ‘[t]he regional system for the protection of intellectual property used
by OAPI has always operated according to the principle of solidarity’.145
Alongside the OAPI Secretariat, international donors stepped up their activ-
ities in the region. WIPO provided training, legal advice, and institutional
support. In 1997, for example, WIPO hosted two major meetings for national
IP officials in the OAPI region: one for heads of SNLS in Gabon and a regional
WIPO Workshop on IP for magistrates in Cameroon. It also supported and co-
organized other meetings in the region jointly with the EPO, INPI, and OAPI.
UPOV was also active during this time promoting UPOV 1991 as the ideal
approach to the implementation of TRIPS Article 27.3(b) on plant variety
protection. At that time, UPOV 1991 had attracted only eleven members,
none of which were developing countries.146 If the OAPI countries agreed
to a UPOV 1991 approach, UPOV stood to gain sixteen new members in a
single swoop. On 15 February 1999, just ten days before the OAPI member
states were scheduled to sign the revised Bangui Agreement, there was a joint
UPOV–WIPO–WTO workshop for developing country delegates in Geneva

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Table 7.5. Timing of WTO Trade Policy Reviews of OAPI members (1995–2007)

WTO member Date of trade policy review

Benin 15–16 September 1997, 28–30 June 2004

Burkina Faso 18–20 November 1998, 28–30 June 2004
Cameroon 13–14 February 1995, 18–20 July 2001, and 1–3 October 2007
Central African Republic 11–13 June 2007
Chad 22–24 January 2007
Congo 27–29 September 2006
Côte d’Ivoire 4–5 July 1995
Gabon 26–28 June 2001, 1–3 October 2007
Guinea 24–26 February 1999, 12–14 October 2005
Mali 18–20 November 1998, 28–30 June 2004
Mauritania 11–13 September 2002
Niger 22–24 September 2003
Senegal 22–24 September 2003
Togo 27–28 January 1999, 3–5 July 2006

regarding Article 27.3(b) of TRIPS, at which the organizers conveyed a clear

recommendation for UPOV 1991 as the most expeditious and appropriate
option for governments to fulfil their obligations under Article 27.3(b).147
Meanwhile, the OAPI Secretariat advised its members that UPOV offered a
law that member states could take ‘off the shelf’ and that the development
of an alternative sui generis law, would be a time-consuming and impractical
endeavour.148 France also expressed its preference for a UPOV 1991 approach
(and for the protection for geographical indications) to the various agriculture,
trade, and foreign affairs ministries in the region.149
The WTO Secretariat reinforced the pressure for a swift compliance-plus
approach to TRIPS implementation. Using the monitoring power entrusted to
it through the WTO Trade Policy Review (TPR) process, the WTO Secretariat
reminded OAPI countries of their TRIPS deadlines and noted a range of areas
where the national and regional laws fell short of TRIPS requirements. Six of
the OAPI countries were subject to TPRs during the first phase of the revision
process: two developing countries in 1995 (Cameroon, the first WTO member
to be scrutinized under the TPR procedure, and Côte d’Ivoire) and four LDCs
in 1997 and 1998 (Mali, Benin, Burkina Faso, and Togo) (see Table 7.5). In its
1995 Report on Côte d’Ivoire, the WTO Secretariat referred to TRIPS deadlines,
noting that compliance by Côte d’Ivoire would require joint action among
countries in the region and that the government had ‘generally speaking, a
period of five years in which to review the Bangui Agreement with its partners
in order to bring it into conformity with TRIPS’.150 There was no mention
that the majority of Côte d’Ivoire’s partners were LDCs with longer deadlines
for TRIPS implementation. The Secretariat also highlighted shortcomings in
terms of the duration of patent protection and weak enforcement. In none
of its four LDC TPR reports did the WTO Secretariat include any mention

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of the extended deadline available to them. By contrast, it did emphasize

the importance of strengthening administrative and judicial capacity.151 In
a 1997 TPR Report, for example, the WTO Secretariat reminded Benin that
TRIPS ‘also implies the development of judicial procedures and the substantial
strengthening of administrative and training capacity in order to ensure that
the IP laws can be implemented effectively’.152 No mention was made of
challenges that IP reforms might bring for other public policy objectives.
Japan and the United States also took advantage of the TPR process to pose
questions at meetings in Geneva on the protection of IP in the OAPI countries
and on the progress of the effort to upgrade the 1977 Bangui Agreement to
meet TRIPS requirements.153
From the start of the revision process until February 1999, there was no
public debate on the revised Agreement, no press releases from NGOs, and
no media coverage. The silence was broken on the 17 February, less than
a week before the Agreement was signed when the Canadian-based NGO,
the International Rural Advancement Foundation (RAFI),154 became aware
of the text during meetings in East Africa.155 With just days to organize,
RAFI worked to warn representatives from OAPI countries about to meet in
Bangui. Along with GRAIN,156 an international NGO headquartered in Spain,
RAFI appealed to the media, issuing a series of press statements expressing
concerns about the UPOV 1991 approach to plant variety protection. They
also worked to reach NGOs and government officials in the OAPI countries,
sending a briefing note to each of the OAPI Ministers of Agriculture and to
Ministers responsible for patent offices.157 RAFI and GRAIN each emphasized
that TRIPS did not oblige WTO members to adopt a UPOV 1991 approach
and urged countries not to sign the Bangui Agreement. They argued that the
adoption of UPOV 1991 would be premature: ‘[n]ot only is it out-of-step with
other developments in Africa, it would lock governments into legislation that
no other developing country has adopted, and which is far more restrictive
than is necessary to meet their international obligations’.158 These NGOs also
stressed that WTO members were poised to conduct a review of Article 27.3(b)
and that new opportunities to revise TRIPS could emerge in future WTO
negotiations. They noted that ‘African patent offices are being asked to climb
on a wagon other countries in other regions may never accept’.159 Calling
attention to the fact that LDC members of OAPI had until at least 2006 to
comply with TRIPS, NGOs highlighted that the Bangui text contradicted the
position advanced at the WTO by the foreign affairs and trade ministries of
the same countries. In mid-1998, for example, the OAU’s Scientific, Technical,
and Research Commission had issued a declaration expressing concerns about
Article 27.3(b). African heads of state had also agreed to develop an African
common position in favour of revising TRIPS.
Further, alongside the Diplomatic Conference where OAPI members were
scheduled to adopt the revised Bangui Agreement, national environment and

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agriculture officials attending meetings on the UN Convention on Biological

Diversity (CBD) took action. Spurred by RAFI and GRAIN, they sent a fax to
their capitals calling on their governments not to sign the Agreement.160 This
was all to no avail; the Agreement was signed. In March, the first piece of
international media coverage appeared in the scientific magazine Nature (and
remained the only story published by any mainstream international reporting
service on the Bangui revision process).161
Even though some agriculture and environment officials in the region
continued privately to express sympathy with NGO concerns about the newly
signed Agreements, they remained largely silent. There were several reasons
for this: lack of technical expertise, the clear preference for UPOV 1991 on the
part of national IP offices, WIPO and France (upon which they would rely for
financial and technical support for administration of the Agreement), and the
difficulties of coordinating a distinctive national position far less a common
position with other governments. Within days, the OAU advised national
IP offices in writing that the Bangui revisions contravened a Heads-of-State
decision of January 1998 to create an Africa-wide strategy for plant varieties
based on the African Model Law that would integrate the region’s political
commitment to farmers’ rights with the interests of plant breeders.162 Further,
in anglophone Africa, ARIPO pre-emptively announced that its meeting the
next month would stand by the OAU position and not endorse any specific
IP regime for plants.163
Statements from several IP officials reveal that some had become aware of
the concerns raised by NGOs. Moreover, their statements reveal the extent to
which officials understood the importance of toeing the line on IP protection
to their relations with developed countries. Defending the text, several offi-
cials repeated the logic espoused by advocates of UPOV 1991. A senior official
from Benin’s national IP office stated, for instance, that the UPOV Convention
is important insofar as it protects inventions coming from Western countries
that are much more able and equipped in research, especially in genetic engi-
neering: ‘Those who have something are scared. Infringements are occurring
more and more, and if Western inventions are not protected, they will be
investing in research at a loss’, he said. ‘[I]f one does not create that trust,
there will not be any kind of technological transfer’.164 Similarly, a senior
official from Burkina Faso’s IP office stated that ‘[i]f after investment-financed
research someone finds varieties of millet or corn (suitable) for the Sahel, they
must be compensated for their discovery’. Alluding to the debate on the issue,
an official from Burkina Faso’s Ministry of Agriculture insisted that the OAPI
region’s decision to adopt a UPOV 1991 approach was like adding a ‘voice of
reason’. ‘It’s a necessity. African nations have ample knowledge of UPOV, so
they have nothing to worry about’.165 While it possible that some of these
officials were indeed convinced their decisions would help farmers in the
region, their statements suggest not a technical assessment or interest in the

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merits or risks of the revised Agreement but rather a desire to be perceived as

committed participants in the global IP system.
Ultimately, the OAPI countries revised the Bangui Agreement without a
detailed review of the flexibilities available to them under TRIPS, or of the
potential positive or negative impacts. With little input from parliament,
domestic experts, interest groups, or other parts of government (and negligible
effort to acquire it), IP offices proceeded unsupervised. National IP officials
relied in turn on leadership from the OAPI Secretariat and advice from their
core, namely INPI, WIPO, the WTO, and UPOV. The result was a revised
Agreement that reflected the advice of external experts with no consideration
of how to tailor TRIPS implementation to suit local needs. The collective
message from these advisors was that swift compliance with TRIPS would
bring reputational rewards. Further, OAPI countries were assured they could
rely on donor support for the administration and enforcement of the revised
Agreement.166

7.4.2. The Ratification Phase (1999–2002)

The second phase of the Bangui revision process lasted for three years, from
the signing of the revised text in 1999 until its entry into force in 2002. During
this period, a range of actors, including international and national NGOs,
some African scholars working within and outside the region, and represen-
tatives of several IOs (namely the OAU, UNAIDS, and the WHO) raised con-
cerns about the high standards in the revised Agreement and criticized it for
inadequate attention to African needs.167 Two separate campaigns emerged:
one focused on the public health implications of the revised Agreement and
another on potential impacts on agricultural livelihoods (discussed below).
While both campaigns called on governments to postpone the ratification of
the revised Bangui Agreement and to undertake revisions, there were few link-
ages between campaigners working on each (as was also generally the case of
international compaigners on public health and plant variety protection).168
Meanwhile, at the OAPI Administrative Council meetings, national Minis-
ters rarely mastered the technical details under discussion.169 In most cases,
Ministers rotated frequently and lower-level staff in IP offices were unable
to brief them adequately. The articulation and assertion of national interests
thus suffered with respect to the activities of OAPI and the Bangui revisions.
Further, while representatives of the SNLs usually met the week before the
Administrative Council, they were not present with Ministers in the Council
meetings. Together, these factors hampered the ability of Ministers to present
and gather support among other members for positions that contradicted
or challenged those advanced by the far better technically informed staff of
the OAPI Secretariat. The Secretariat was thus the key force influencing the

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direction and outcomes of Council meetings; it prepared the agenda, proposed

decisions, managed discussions, and compiled documentation.
WIPO, the WTO, UPOV, and bilateral IP donors continued to be active
throughout the ratification phase, both in respect of the OAPI Secretariat
and national governments. In 2000, WIPO helped to establish a quadripar-
tite agreement to promote cooperation between WIPO, OAPI, the African
Regional Intellectual Property Organization (ARIPO – the regional IP orga-
nization of anglophone African countries), and the African Regional Centre
for Technology (ARCT)170 with a view to increasing their usefulness to the
technological development efforts of their member states. To oversee this
Agreement, the four organizations formed a Consultative Committee to meet
annually.171 The Consultative Committee meetings were attended each year
by the heads of OAPI, ARIPO, and the Africa Bureau of WIPO, sometimes with
additional staff or guests from OAPI and WIPO. None of these Committee
meetings (held annually in Cameroon) involved more than nine participants
and no representatives of the OAPI member states ever attended. A review
of the minutes of these meetings confirms that through this Committee a
relatively small group of international bureaucrats exercised decisive lead-
ership and influence on IP decision-making and capacity in the region. In
particular, this Committee was central to the collaboration among each of
its members and to the coordination of their priorities and activities in the
region.172
During the ratification period, the WTO Secretariat again reminded the
OAPI member states of their TRIPS obligations. In its 2001 TPR Reports on
Gabon and Cameroon, the WTO Secretariat noted the differences between the
original Bangui Agreement and TRIPS. After observing that Cameroon’s dead-
line for TRIPS implementation had already passed, the Secretariat again high-
lighted that for OAPI’s developing countries TRIPS implementation would rely
on ratification of the Bangui Agreement by a further three members.173 In its
report on Gabon, the WTO Secretariat acknowledged for the first time in a TPR
since 1995 that ‘certain Members of OAPI are least-developed countries, which
enjoy longer transition periods under TRIPS than developing countries’.174
None of the WTO’s reports on any OAPI country acknowledged that the
Bangui Agreement in fact went beyond TRIPS requirements; instead, the
reports referred to the Bangui Agreement as harmonizing the regional legal
framework with TRIPS. The WTO Secretariat reports also advanced WIPO’s
interests, highlighting that countries had not yet met their Bangui commit-
ments to accede to several WIPO Conventions.175 While the reports devoted
attention again to the risks of piracy and counterfeit goods, no mention was
made of the risks higher IP standards might pose to health, education, and
agricultural interests in the region. While the TPR reports may not have had
a decisive impact on the ratification decision by governments, the content of
reports did reinforce pressures for a swift and compliance-plus approach to

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TRIPS implementation rather than one of strategic reflection on how to tailor

compliance to regional needs.
Also in the Bangui ratification phase, the United States and European Union
made their first explicit post-TRIPS efforts to link IP protection to the prospect
of improved trade benefits for the region. At the same time as the Bangui
Agreement was open for ratification, foreign affairs and trade officials from
the OAPI region were involved in negotiations related to the EU’s Cotonou
Agreement and U.S. AGOA.176 By pushing for the inclusion of IP provisions
in each of these trade arrangements, the two trade powers sent a clear signal
that they viewed IP protection as an integral component of the ‘rule of law’
and ‘good governance’, progress on which was vital to maintaining trade
preferences, even in the poorest countries.177
AGOA made U.S. preferences in this respect explicit by incorporating the
potential for disqualification from trade benefits on IP grounds. The stakes
for many OAPI countries were high, as AGOA had considerably increased the
value of exports eligible for preferential market access to the United States.178
Among AGOA’s eligibility criteria was the requirement that the country has
‘established or is making continual progress toward [ . . . ] the elimination of
barriers to United States trade and investment, including by [ . . . ] the protection
of intellectual property’. While these provisions are far more general than in
U.S. FTAs, and no OAPI country has yet been disqualified on IP grounds,
public health advocates and several members of U.S. Congress expressed alarm
about the linkage of IP protection to trade. In response to AGOA, several U.S.
Senators expressed fears that USTR would use the AGOA language to push for
TRIPS-plus standards in sub-Saharan Africa and that African governments may
perceive the need to meet USTR demands.179
Meanwhile, a growing chorus of NGO critics compaigned to encourage
OAPI governments to postpone ratification and to revisit the revised Bangui
Agreement to take full advantage of the flexibilities available to them under
TRIPS, particularly in the areas of agriculture and public health.

7.4.2.1. THE DEBATE ON PLANT VARIETY PROTECTION

Having failed to prevent the signing of the Bangui Agreement, NGOs con-
cerned about its provisions on plant variety protection actively lobbied gov-
ernments and parliaments not to ratify the decision signed by IP officials and
instead to revise the text.180 The central thrust of their campaign was that the
UPOV 1991 approach had been ‘impressed upon Francophone Africa’181 by
UPOV and WIPO ‘without any consultation with or participation of farmers’,
despite its ‘direct implications for them’,182 and that an approach based on
the OAU model law would be ‘much more attuned to the realities of the
continent’.183 The combined efforts of NGOs and officials from the OAU
Secretariat were, however, ultimately overwhelmed by the superior financial
and organizational resources of UPOV, INPI, and WIPO, all of which favoured

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the UPOV 1991 approach and exercised considerable leverage over national
IP offices through the provision of technical and institutional support.
Several dynamics were noteworthy amongst those opposing ratification.
First, there were growing collaborations between international and local
NGOs and experts. RAFI and GRAIN, along with international NGOs such
as the GAIA Foundation, Third World Network, and Solagral, forged alliances
with local NGOs, such as a regional affiliate of Friends of the Earth, on core
issues of common concern. Such issues included the inconsistency of modern
IP protections for seeds with African tradition and culture; the failure of the
revised Agreement to offer protection for traditional varieties developed by
local communities that might be misappropriated by foreign companies;184
restrictions on the rights of the region’s millions of smallholder farmers to
save and exchange crop seed from their harvests; and opposition to the
introduction of royalty payments to a seed industry dominated by foreign
multinational companies. These NGOs sounded the alarm that the underlying
purpose of the reforms set out in the revised Agreement was to facilitate the
introduction of genetically modified crops in the region and to accelerate
the privatization of agricultural research.185 To raise awareness about their
concerns, the groups organized studies, press releases, and workshops with
government officials, local experts, officials, the media, scholars, and local
civil society groups.
Second, the OAU Secretariat joined NGO campaigners and some local schol-
ars continued to actively promote a non-UPOV 1991 sui generis approach to
plant variety protection, reaching out to trade, agriculture, and environment
ministries in the OAPI governments. Collaboration within the OAPI region
was complemented by broader efforts to develop a regional strategy for Africa
and to advance an ‘African position’ on Article 27.3(b) at the WTO and
beyond. RAFI, for instance, worked with NGO colleagues in Africa to promote
a strong OAU position against patents on life and UPOV 1991.186
Across these efforts, a small network of enterprising individuals took the
lead. Johnson Ekpere, an official charged with the OAU’s activities in the
area of science and technology, sent letters to a range of national ministries
and travelled widely in the region to advise national officials of the contrast
between UPOV 1991 and the OAU model law. Dr Tewolde Egziabher, head of
the Ethiopian Environment Ministry, also played a leading role as a champion
of the OAU model as an alternative for Africa.187 At the international level, a
collaboration was forged between Francis Mangeni, a counsellor in the OAU
office in Geneva, Johnson Ekpere at the OAU Secretariat, and representatives
of international NGOs, such as RAFI, TWN, and the Center for Interna-
tional Environmental Law (CIEL).188 Together, they reached out to national
diplomats with experience at the WTO and in environmental negotiations
related to the UN Convention on Biological Diversity (CBD). In June 1999, for
instance, Jean Christie from RAFI held a seminar on plant variety protection

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for francophone delegates to the Convention on Biological Diversity meeting

in Montreal.189
The culmination of these efforts emerged during June 1999 at an African
Regional Workshop on Understanding Biodiversity-Related Instruments, orga-
nized by the OAU. In their recommendations, the sixty African government
officials who had participated in the meeting advised African countries to
‘develop sui generic [ . . . ] legislation’ for plants such as those included in the
OAU model law that would be compatible with TRIPS, to protect farmers’
rights, and to ‘exercise their ordre public options under TRIPS to prevent
privatization of plants and biodiversity’.190 Further, in August 1999, the
African Group submitted a joint regional proposal to the WTO, which called,
amongst other items, for the postponement of the implementation deadline
for Article 27.3(b).191
Together, efforts to challenge OAPI’s UPOV 1991 approach did attract
sympathy from national officials in some agricultural and environmental
ministries. However, any efforts by these concerned government officials to
propose reconsideration of the revised Bangui Agreement gained little trac-
tion. There were no national or regional consultative processes through which
experts or NGOs could express their reservations. At the same time, their effort
to promote the OAU Model Law as an alternative to UPOV 1991 suffered due
to long delays in financing a translation of the law into French. The efforts
of UPOV critics were further frustrated by the fact that staff of national IP
offices, who were those most directly involved with the revision process, were
already the captive audience of the OAPI and UPOV Secretariats. Furthermore,
the two secretanats were also actively reaching out beyond IP offices to
reassure officials in Ministries of agriculture of the benefits of a UPOV 1991
approach.
On 28 July 1999, the UPOV Secretariat transmitted an aide-mémoire to
OAPI governments regarding the ratification of the revised Bangui Agreement
and the accession to the UPOV Convention. In September, during the sessions
of the WIPO Assemblies, delegates from a number of OAPI SNLs visited the
UPOV Secretariat to discuss the steps to be taken for accession. From 24 to
26 November 1999, UPOV’s Vice Secretary General participated in a technical
and ministerial meeting of the Conference of Ministers of Agriculture of West
and Central Africa (CMA/AOC) held in Côte d’Ivoire. Among the conclusions
of the Conference was a recommendation that OAPI member states ratify
the revised Bangui Agreement. In the following years, UPOV wrote to several
countries in the region, including Côte d’Ivoire (1999), regarding the proce-
dure for accession to UPOV.192
In May 2001, a conference in Addis Ababa highlighted the growing ten-
sions between those in favour of the OAU model law and the preferences
of WIPO and UPOV. The OAU hosted the conference to seek comments
on the OAU Model Law.193 WIPO and UPOV each submitted substantive

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documents expressing concerns about the principles embedded in the Model

Law approach and its practical implications.194 Arguing that many provisions
of the OAU Model Law were either ‘too vague’ or ‘ineffective’, UPOV’s ten-
page submission to the conference reworked more than thirty of the provi-
sions in the Model Law with the goal of making them more practical and
usable.195 This effort raised concerns among critics that UPOV was simply
redrafting the Model Law to match UPOV 1991 standards, thus effectively
asserting its own Convention as the ‘one and only “model” for the imple-
mentation of TRIPS’.196 Frustrated by the WIPO and UPOV submissions, the
conference Chair, Dr Egziabher, reminded each of the agencies that they had
not been invited ‘to change the essence of the Model Law’. He called for
the support and recognition of ‘the OAU’s right to lead Africa, especially on
emerging critical issues’.197 In a press release after the meeting, GRAIN com-
plained dramatically of ‘an undisguised attempt from the side of industrial
interests to subvert the whole OAU process’ and UPOV’s ‘iron-fisted bash’ on
the OAU initiative.198
In late 2001, GRAIN hired a full-time member of staff to lead its work on
IP and biotechnology-related issues in the region, and started producing a
monthly publication Essences de la Biodiversité from early 2002.199 As NGOs
called on several parliaments to get involved, some concerned officials in
environment and agricultural ministries posed questions to IP offices about
the appropriateness of the UPOV 1991 approach. In February 2002, GRAIN
again issued a press release calling on governments to defer the enactment of
the revised Bangui Agreement and to consider the OAU Model Law instead.200
These efforts failed, however, and the Agreement entered into force several
days later.

7.4.2.2. THE DEBATE ON PUBLIC HEALTH

Public health advocates became engaged in debate on the Bangui accords only
after the revised Agreement was signed. Since 1999, debate between IP rules
and access to medicines had been gathering pace at the international level, but
few health ministries or NGOs in francophone Africa were active on the issues.
While the scale of health challenges such as HIV/AIDS were high, few of the
OAPI countries had developed a national strategy to secure adequate supply of
essential medicines. Attention to policy debates on access to medicines among
local or international NGOs involved in health projects on the ground in the
OAPI region was limited. Only Médecins Sans Frontières (MSF) was directly
active in international IP debates and also on the ground in the region.201
In February 2000, a joint mission to the region by representatives of MSF,
WHO, and UNAIDS sparked a debate about the implications of the revised
Bangui Agreement for access to HIV/AIDS drugs and other essential medicines
in the region. The report of the joint mission expressed a series of reservations
about the Agreement, including that it sacrificed the TRIPS transition periods

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for LDCs.202 In a press release in May, MSF argued that the Agreement’s TRIPS-
plus provisions would constrain the availability of generic drugs in the region
with the risk that essential drugs could become ‘ten to twenty times’ more
expensive.203 MSF then launched a campaign calling on the twelve OAPI
member states that had not yet ratified the Agreement to postpone or refrain
from so doing,204 and to revise the Agreement to take full advantage of the
TRIPS transition periods for LDCs and the available TRIPS safeguards.205
Side-stepping the OAPI Secretariat, concerned NGOs and staff from UNAIDS
and the WHO made numerous visits to national governments in the region
to provide advice, training, and analysis to decision-makers about the impli-
cations of different approaches to TRIPS implementation for public health.
Together, a coalition of WHO, MSF, and the Health Action International
(HAI) affiliates in the region, as well as international NGOs, such as the AIDS
Coalition to Unleash Power (ACT UP) and CPTech, began to lobby OAPI
government officials in Geneva and in capital cities, to raise public and media
awareness, and to publish research.206 NGOs also financed several conferences
on issues related to TRIPS and public health in the region. In April 2001, MSF
brought together thirteen Ministers and thirty officials from health and trade
ministries in the OAPI countries, who issued a joint resolution stating that the
revised Bangui Agreement should be amended to make better use of the TRIPS
flexibilities and to take public health considerations into account.207
At WHO’s 2001 Annual World Health Assembly (WHA), the Ministers of
Health from the OAPI region, with the support of MSF, reiterated this pro-
posal. Simultaneously, international debate on the relationship between pub-
lic health and IP protection intensified. While the local media still remained
largely silent on the subject, MSF’s campaign for a boycott of the revised
Bangui Agreement prompted the OAPI Secretariat to issue a formal public
statement to ‘reassure the general public’, that the conclusions drawn by MSF
and UNAIDS were ‘erroneous’.208 The Secretariat argued that the provisions of
the revised Bangui Agreement were ‘in no way incompatible’ with TRIPS and
that OAPI countries do indeed have the possibility ‘to grant non-voluntary
licences’.209
Still not satisfied that OAPI countries had the legal security and flexibility
needed to spur them to use compulsory licences to address public health
needs,210 MSF and its allies sustained their call for a boycott of the revised
Bangui Agreement throughout 2001. Concurrently, they helped to galvanize
the call by African countries for WTO action on TRIPS and public health in
Geneva and in developed country capitals.211 Where possible, representatives
of NGOs, UNAIDS, and the WHO participated in conferences sponsored by
WIPO and bilateral donors in order to convey a public health perspective.
While these efforts did generate some debate, the public health advocates
could not match the scale of training, financial aid, institutional resources,
and legal support supplied by WIPO and bilateral donors. In October, when

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only two more ratifications were needed to achieve the two-thirds of the
membership required for the revised Agreement to enter into force, MSF called
for no further ratifications.212 In November, with the 2001 Doha Declaration
on TRIPS and Public Health in hand, MSF again called on the OAPI countries
to delay ratification of the Agreement and to ensure that countries could
benefit fully from the flexibilities affirmed in the Declaration (in respect of
compulsory licences and parallel imports) and the extended deadlines for
LDCs.
Despite the efforts of public health advocates, only in Senegal and
Cameroon did health ministries publicly take up their cause. Even in these
countries, the challenges of coordination frustrated the ability of health
ministers to gain traction with the relevant IP and trade officials, or with
their counterparts in other countries on the issue.213 To diffuse tensions,
the OAPI Secretariat continually reassured IP officials, prompting the leader
of a local NGO in Burkina Faso to lament that IP officials in the region
seemed captivated by the ‘simple mission of protecting the works of patent
holders’.214

7.4.2.3. THE ENTRY INTO FORCE OF THE REVISED

BANGUI AGREEMENT
By February 2002, ten countries had ratified the revised Bangui Agreement,
allowing it to come into force: the supporters of early and strong TRIPS-
plus implementation had prevailed. All that remained was a decision by the
OAPI Administrative Council, scheduled to meet that May, on which Annexes
would enter into force and their implementation date.215
NGOs were still not yet ready, however, to concede. They used the period
before the meeting of the OAPI Administrative Council to continue to push
their case. Health groups active in the region called on the governments they
judged to be most sympathetic to their cause, such as Burkina Faso, to refuse
implementation of the revised Agreement, arguing that the ‘[t]he accomplish-
ments of Doha risk being dashed’.216 In Burkina Faso, for instance, MSF joined
with a coalition of 150 local and international health groups to issue a press
release petitioning the Burkinabe President and Government to reject the
revised Bangui Agreement. Burkinabe President Blaise Compaore was known
in the region for a personal commitment to the fight against AIDS in Burkina
Faso – one of the three countries with the highest HIV/AIDS infection rates in
francophone Africa.217 Accusing the OAPI governments of bowing to industry
pressures, ACT UP similarly called on the OAPI Administrative Council to
‘cancel the implementation’ of the revised agreement, arguing that the revised
Agreement threatened to reduce the Doha Declaration ‘to nothing’.218 The
OAPI Secretariat responded by publishing a second information memo on
its website.219 In this note, the Secretariat reiterated its scepticism about the
usefulness of compulsory licences to the region, and declared that there was

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‘no risk of conflict between the revised Bangui Agreement and any possible
laws ensuing from the Doha Declaration’. The OAPI Secretariat insisted that
‘the revised Bangui Agreement enables each OAPI member state to take mea-
sures likely to enhance the protection of public health in general and facilitate
access to medicine in the light of the Doha Declaration’.220
Ultimately, the concerns raised by critics regarding the revised Bangui
Agreement’s potential impact on public health and farmers’ livelihoods did
not result in any substantive changes to the content of the revised Agreement
or to its Annexes. With time, concerned government officials outside IP
offices recognised that their call for substantive debate would bear little fruit,
particularly as the IP offices responsible for liaising with OAPI on the issues
expressed minimal interest in contradicting the advice of the OAPI Secretariat
and the preferences of donors.
When the OAPI Administrative Council met in mid-2002, one of their deci-
sions stood out. Namely, the Ministers decided to delay the entry into force
of the revised Bangui Agreement’s annex on plant variety protection and its
annex on integrated circuits. In both cases, the Secretariat cited institutional,
technical, and financial constraints, and recommended a delay in order to
develop the necessary procedures and expertise within the region.221 Notably,
the decision to postpone was not linked to the force of advocacy calling to
question the Agreement’s provisions on plant variety protection or to any
other substantive concerns about the text. Rather, the delay was motivated by
the fact that the lack of expertise and experience on the subject matter of these
two Annexes was total rather than marginal, both in national governments
and in the OAPI Secretariat.

7.4.3. The Post-ratification Phase (2002–7)

After the entry into force of the revised Bangui Agreement, debate on OAPI’s
approach to TRIPS implementation continued. A number of IP scholars in the
region published critiques of the Agreement.222 The number of NGOs active
on the issues in the region began to multiply.223 In July 2002, a policy dialogue
in Senegal co-sponsored by Geneva-based and local NGOs brought together
for the first time the range of groups and experts with concerns about public
health, agriculture, environment, and traditional knowledge in the revised
Bangui Agreement.224
In 2002, the efforts of NGOs and the WHO to raise awareness in national
governments about the implications for public health of the Bangui Agree-
ment’s TRIPS-plus standards for public health also began to gain traction
with several Geneva-based diplomats from OAPI countries. Two Geneva-
based trade delegates, from Mauritania and Senegal, participated in the 2002
meeting in Senegal and published their remarks in Passerelles, the most widely
read French-language review of news on trade and sustainable development

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in the region.225 They each drew attention to the inconsistency of the Bangui
Agreement with the Doha Declaration and called for the OAPI member states
to take advantage of the flexibilities for which they had fought at the WTO. In
his article, the Mauritanian diplomat emphasized the need not just to defend
the Doha flexibilities at the international level but to take advantage of them
nationally, and noted the ‘problems posed by the revised Bangui Agreement
in bringing it into conformity’ with the flexibilities affirmed in the Doha
Declaration.226
In 2004, these pressures intensified when diplomats from the OAPI region
held a meeting in Geneva where they emphasized the need to reconsider the
Bangui Agreement in light of the Doha Declaration.227 In the meantime, while
NGOs such as MSF maintained that the Bangui Agreement should be amended
to better reflect the Doha Declaration, the focus of their activities shifted from
lobbying for revisions to helping countries use the flexibilities that the OAPI
Secretariat insisted were available under the Bangui Agreement.228
In 2005, collaboration between local and international NGOs yielded the
first request for a TRIPS-compliant compulsory licence for three patented AIDS
drugs under the revised Bangui Agreement. The petition was made by a U.S.
non-profit pharmaceutical company, Essential Inventions, Inc., with close ties
to two of the key U.S.-based NGOs active on TRIPS issues (i.e. Essential Action
and the Consumer Project on Technology (CPTech)).229 (The request was still
pending at the time of publishing.)
From 2006, representatives of several SNLs finally began openly to press the
OAPI Secretariat to facilitate a revision of the Agreement that would ensure
full use of the Doha flexibilities regarding the patentability of pharmaceutical
products, and remove other TRIPS-plus elements of the Agreement (including
several of the limitations it poses in the area of compulsory licensing and
provisions that enable second-use patents).230 According to these delegates,
the main impediments to such revisions were resistance from the OAPI Sec-
retariat and their own difficulties briefing Ministers about the importance of
the matter given the technical legal issues involved.
A second dynamic was that OAPI countries attracted greater attention from
U.S. trade officials in the post-ratification phase. While the United States did
not subject any OAPI countries to its Special 301 process or make any specific
criticisms of TRIPS implementation efforts in the region, several new trade
arrangements reinforced the compliance-oriented atmosphere.231 In April
2002, eight of the OAPI countries that comprised the West African Economic
and Monetary Union (WAEMU) signed a Trade and Investment Framework
Agreement (TIFA) with the United States. In the agreement, they recognized
‘the importance of adequate and effective protection’ of IP rights and noted
that ‘for the purposes of further developing their trade and investment . . . they
may conclude further agreements, particularly in the areas of commerce,
taxation, intellectual property, labor, and investment (emphasis added)’.232

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When AGOA entered into force in 2002, the inclusion of IP protection as

one of the eligibility criteria for maintaining preferences under that scheme
reinforced the pressure on OAPI countries not to raise questions or take
actions on the IP front that might antagonize powerful trading partners.233
While no OAPI countries have yet had their AGOA preferences withdrawn
on the grounds of IP, the fact that several countries were disqualified for
other reasons reinforced the perception that domestic actions that displeased
foreign trading partners could indeed put a range of economic, trade, and
environment interests in jeopardy.234 Recall here that the OAPI countries were
all small players in the global trading system. Heavy dependence on exports
as a proportion of GDP, and on just one or two export products, rendered
OAPI countries very vulnerable to changes in access to export markets and
policy shifts in key trade partners.235 When debate on TRIPS and Public Health
intensified at the WTO in 2002, the United States made its preferences clear.
On 25 October, African trade ministers received letters from the Assistant
U.S. Trade Representative for Africa, Rosa Whitaker, the same U.S. official
responsible for the AGOA arrangements, calling on them to instruct their
Geneva delegations to support the U.S. position in the ongoing negotiations
on TRIPS and public health at the WTO.236
The WTO Secretariat’s continued monitoring of IP reforms by OAPI mem-
bers reinforced the pressure on governments to push ahead with ratification.
In its TPR reports between 2002 and 2007, the WTO Secretariat noted that two
of the Bangui Annexes were not yet in force, emphasized weak enforcement
of IP laws in the region, and highlighted the need for countries to join the
various WIPO treaties.237 Despite completing six TPRs on OAPI countries after
the 2001 Doha Declaration, the 2005 TPR report on Guinea was the first
to mention the extended deadline it grants LDCs for patent protection of
pharmaceutical products.238 In 2006, interviews with the heads of three SNLs
revealed that none of them were aware of the fact that their countries had,
in November 2005, been granted a further extension until 2013 for their
implementation of the entire TRIPS Agreement.
In the post-ratification phase, WIPO, OAPI, bilateral donors, multinational
companies, and industry associations all actively supported the creation of
new constituencies and interest groups supportive of stronger IP protection
in the region, including groups of local musicians and publishers, as well as
users of the IP system, such as patent attorneys, and inventors keen to develop
and commercialize their works. The results of such efforts included the for-
mation of a regional network of authors’ societies,239 an association of patent
attorneys (l’Association pour la promotion de la propriété intellectuelle en
Afrique – APPIA).240 At the national level, groups such as l’Association Nigéri-
enne pour la promotion de l’invention et de l’innovation (ANPII) expanded
their activities.241 Notably, patent agents in the region became more vocal in
favour of stronger IP protection; the more applications filed through national

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IP offices or the OAPI Secretariats, the more business that patent agents would
accrue. Together, the WIPO and OAPI Secretariats collaborated in hosting
a series of regional meetings that brought together such stakeholders with
government officials.242
In the meantime, the OAPI Secretariat, with the support of the French
government and UPOV, set about building the necessary institutional and
technical capacity to implement the Bangui Agreement Annex on plant
variety protection. The need to put this protection in place was reinforced
by multinational seed companies, such as Monsanto, Syngenta, and Dow
Agrosciences, which insisted that plant variety protection was essential to
their efforts to introduce biotechnology products in the region.243
In September 2005, the UPOV Secretariat reported to its members that
OAPI’s Annex 10 would come into force on 1 January 2006, noting that
this would put the OAPI members in a position to join the Convention
(as their regional standards would now be equivalent to those set out
in UPOV 1991).244 Surprisingly perhaps, this statement came some three
months before the OAPI Administrative Council formally made a decision
in December 2005 to approve entry into force of the Annex. The exclusive
nature of decision-making was such that neither OAPI nor any member
state issued a public statement of the decision beyond the minutes of the
Council meeting available on the OAPI website. There was no public reaction
from the media or NGOs. Recalling that the delayed entry into force of
the Annex on plant variety protection had been justified on the grounds
of need to bolster technical capacity, rather than to consider the need for
substantive revision, NGOs concluded that further campaigning to revise the
Agreement would be futile. They turned instead to focus on issues such as
biopiracy,245 the growing presence of biotechnology companies in the region,
and the introduction of GMOs without adequate regulatory systems and
public consultations.246 The OAPI countries subsequently made contact with
the Council of UPOV to initiate the procedure for becoming members of the
Union.247

7.5. Capacity-building and Delegation

in a Policymaking Vacuum

Among the factors that impacted TRIPS implementation in francophone

Africa, the process-tracing above has highlighted the primary role that
capacity-building and delegation to a regional organization had on the Bangui
revision process. This section offers a deeper exploration of how these two
factors operated and reinforced each other and why they exercised so much
influence over national IP offices and the ultimate outcome.

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7.5.1. The Power of Capacity-building

The core providers of capacity-building in the region – WIPO, INPI, the EPO,
the WTO, and UPOV – pursued two goals: (a) early and swift compliance
with TRIPS and (b) to promote the importance of IP protection generally.248
Their efforts were effective because they combined superior technical knowl-
edge, infrastructural support, and know-how with direct financial support to
government offices and officials in the region. The combination of training,
legal advice, seminars, and conferences enabled donors to influence staff of
the OAPI Secretariat and national IP offices through socialization (through
repeated participation in seminars and conferences); conversion (through
training); co-option (through personal or institutional incentives); or a com-
bination thereof. Together, donors cultivated a community of IP experts and
officials at OAPI and in the SNLs that supported stronger IP protection, either
because they believed it would be good for national development or because
it was what they thought their donors would reward.
At both the national and regional levels, individual civil servants from
IP offices and the OAPI Secretariat perceived good relations with donors
as a means to sustain a range of personal benefits. Attached to technical
assistance and capacity-building were professional and financial incentives
for institutional loyalty and cooperation. National IP officials were usually
mid- or junior-level professionals. The highest salaries that IP officials in
the region could expect to make were around US$3,000 per year, and many
earned far less. Personnel of the OAPI Secretariat earned far better salaries than
most of the citizens in their region. But these salaries were still lower than
those available to IP practitioners in developed countries or in international
organizations, such as WIPO. Individual financial and career aspirations thus
became a weak point for soft pressure and co-option by donors.249 At the
national and regional level, training and travel opportunities yielded lucrative
per diems and career advancement prospects in Geneva and beyond.250 WIPO
financed, for example, the participation of SNL officials in its annual General
Assemblies. Without this support, most SNLs would not otherwise have been
able to send their officials. For most SNL delegates, the cash per diem they
received for this annual two-week event would almost have matched their
annual salary. Further, the prospect of consultancies and/or future employ-
ment at WIPO was extremely enticing to many OAPI Secretariat officials, as to
SNL staff, and staff of diplomatic missions in Geneva. Not surprisingly, many
national IP officials expressed strong sympathies with the purpose and goals of
stronger IP protection in the region and offered support for WIPO initiatives
in Geneva and at the regional level.251
The policymaking vacuum on IP issues in OAPI governments heightened
the vulnerability of SNLs to preferences articulated by external donors. Exter-
nal support was often a significant source of funding for national IP offices and

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national copyright offices. Indeed, technical assistance, capacity-building, and

training were vital to the operation of these offices and to the expansion of
their size, activities, and staffing over the revision period. At the same time,
IP offices attracted little oversight from other government departments. As
noted earlier, IP was considered a technical issue with little relevance to core
policy challenges facing the country. Minimal financing from central govern-
ments shielded IP offices from the scrutiny that might otherwise have arisen
during national budget debates. Instead, national governments left IP offices
largely to their own devices in terms of financing, TRIPS implementation,
and the negotiation of capacity-building for IP reforms. Not surprisingly, IP
offices were the central focus of donor support for IP issues within OAPI
countries.252
The single biggest supplier of capacity-building to national IP offices in
the OAPI region was WIPO, operating primarily through its Economic Devel-
opment Bureau for Africa. Industrial property and copyright offices were
not only the primary interface between WIPO and national governments
for capacity-building, but also for matters related to the negotiation and
implementation of IP treaties and issues related to the governance and man-
agement of WIPO. In conjunction with WIPO’s LDC division, the Africa
Bureau worked to modernize IP offices in OAPI countries and to support
infrastructure and human resources development.253 WIPO was also involved
in human resources development, providing study visits, training courses (in
the region and at WIPO’s Worldwide Academy in Geneva), workshops, and
seminars at the national, sub-regional and regional levels for national poli-
cymakers and administrators, judges, law enforcement and customs officers,
police, as well as business people, IP professionals and lawyers, researchers,
performers, creators, and academics.254 WIPO’s Africa Bureau also provided
resources to improve enforcement of IP standards and conducted activities in
the region to promote the development and commercialization of IP assets,
inventive activity and innovation, and the use of the IP system by cultural
industries.
The key bilateral providers of capacity-building to national IP offices were
patent offices, namely INPI, the EPO, and the USPTO. INPI and the EPO
were the most active, providing training to IP staff in the region and general
support to national IP offices. Each year, an INPI expert visited the different
national offices of OAPI countries, gathering data and reviewing procedures.
The USPTO’s involvement in IP policy in the region was more limited, but
included the provision of training courses and seminars in the region and in
the United States with the involvement of USAID, the U.S. Department of
Commerce, and USTR.255
Staff in national IP offices perceived cooperation with donors and their
IP priorities to be critical to maintaining external institutional and financial
support at the organization level. This cooperation also included support for

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the institutional priorities of WIPO. The decision by francophone Africa LDCs

to accede to WIPO’s 1996 WIPO Internet Treaties emerged from the perception
that support for the treaties clearly favoured by the Secretariat was a necessary
quid pro quo for capacity-building.256 Of all the possible signatories to these
new conventions, LDCs had the least capacity to implement them and little to
gain economically from their implementation.257 Nonetheless, six LDCs from
the OAPI region were among the first countries to sign and ratify the Internet
Treaties.
Capacity-building also influenced the revision process by reinforcing the
technical authority of the OAPI Secretariat over its member states, and con-
solidating its close but opaque relationship with the WIPO Secretariat. The ties
between the OAPI Secretariat and its donors further undermined the account-
ability of the OAPI Secretariat to its members and bolstered its autonomy from
them. Through its capacity-building, WIPO maintained the OAPI Secretariat
as its client and quasi-subsidiary at the regional level.
The OAPI Secretariat has depended on organizational, technical, and finan-
cial support from BIPRI and then WIPO since its inception.258 During his
thirty-four-year career with BIPRI and WIPO, Arpad Bogsch (who served as
WIPO’s Director-General from 1973 to 1997), actively supported a strong link
between the two organizations by supporting the development of the OAPI
Secretariat, and built a strong professional rapport with OAPI’s first Director-
General, Denis Ekani.
During the Bangui Agreement revision process, the WIPO Secretariat finan-
cially supported the upgrading of much of OAPI’s institutional infrastructure,
including computerization of their administration procedures, establishment
of collections of patent documents of developed countries, and connections to
international patent facilities and databases. WIPO also provided legal advice
to the OAPI Secretariat, supplied free-of-charge patent searches, and hosted
OAPI’s website.
The special relationship between the OAPI and WIPO Secretariat was sus-
tained through regular contact between their staff. Each year, the OAPI
Director-General and selected senior staff attended the annual WIPO General
Assemblies and other major WIPO committee meetings and conferences in
Geneva, such as the Standing Committee on Patents, the Standing Commit-
tee on Copyright, and the Permanent Committee on IP and Development
(PCIPD). By contrast, national IP offices could far less afford to attend WIPO
meetings; national IP staff only travelled to key meetings such as the Gen-
eral Assemblies for which WIPO covered their expenses. The OAPI Director-
General also liaised with WIPO staff in the preparation of the agenda for OAPI
Administrative Council meetings and for advice regarding relations with SNLs
and national ministers.259 The close links were further demonstrated in 2007
when OAPI’s membership elected Paulin Edou Edou, formerly the head of the
LDC Division at WIPO, to be the new OAPI Director-General.

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In collaboration with WIPO, bilateral donors also provided significant assis-

tance to the OAPI Secretariat. From 1985, the EPO forged cooperative agree-
ments with OAPI to improve its institutional, administrative, human resource,
and information technology capacities.260 The French INPI provided training,
legal expertise, and financial support to many OAPI projects through bilateral
means, and also multilaterally through WIPO and the EPO.261 INPI placed
particular emphasis on IP issues of strategic interest to France, such as a project
for the promotion of African geographical indications in collaboration with
OAPI, WIPO, and the French Institut national des appellations d’origine (INAO).
Bilateral donors forged numerous partnerships to improve the efficiency and
effectiveness of their support to the OAPI Secretariat, including joint training
courses, regional seminars, and conferences.262

7.5.2. The Downside of Regional Delegation

Delegation to the OAPI Secretariat was a second critical factor in the TRIPS
implementation story in francophone Africa. In theory, under the terms of the
Bangui Agreement, the work of the OAPI Secretariat was governed by its mem-
ber states. In practice, however, the ability of OAPI member states (the prin-
cipals) to monitor and manage the Secretariat (their agent) was undermined
by lack of budgetary control, low national expertise, limited articulation of
national priorities, and weak processes for ensuring internal accountability
and coordination within OAPI countries. Further, the institutional design of
the OAPI system frustrated the prospects for member state control. Decisions
made in the 1960s about how OAPI member states would delegate to the OAPI
Secretariat served over time to consolidate the Secretariat’s technical capacity
and authority. Arguably, this is precisely what France had in mind from the
outset, a strong regional authority capable of protecting French investment in
the region. With significant institutional resources, financial autonomy, and
superior financing to its members, the OAPI Secretariat became the authority
and leader on IP decision-making in the region and consequently dominated
national IP offices. Moreover, it became the voice and force for stronger IP
protection in the region.
A central source of the OAPI Secretariat’s power in relation to national IP
offices was its financing. In most IOs, member state control of the budget
is a critical, albeit imperfect, tool for promoting accountability. In contrast
to most agreements establishing IOs, the Bangui Agreement does not call
for annual financial contributions from OAPI member states.263 Rather, like
WIPO, the OAPI Secretariat raises the majority of its revenue from fees
charged for services to IP right-holders. An average of 95 per cent of OAPI’s
revenue is derived from fees charged for patent and trademark applications
and renewals, with 60 per cent coming solely from trademark-related ser-
vices. As 85 to 90 per cent of applications are filed by foreign companies,

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OAPI is largely financed by foreign private companies. OAPI’s remaining

revenue, and significant in-kind institutional support, comes from foreign
donors. In 1999, for instance, the OAPI Secretariat received over US$850
000 in donor support. Between 1993 and 2007, the Secretariat’s revenues
grew and its annual budget quadrupled from less than US$2 million to over
US$8 million.264
The OAPI Secretariat also made annual financial contributions to the
national IP offices of each of its member states (generally around 7 per cent
of its revenue, that is, around US$250,000 per country).265 As most national
IP offices received little support beyond staff costs from national budgets,
financing from the OAPI Secretariat was critical to their operations. In some
years, this amount was far lower (i.e. contributions dropped significantly
in 1996 in response to a spike in OAPI expenses, largely due to personnel
costs).
The implications of these financial arrangements for the Bangui revisions
were stark. The principals (OAPI member states) were dominated by their
agent (the OAPI Secretariat) throughout the revision process. Lack of IP poli-
cymaking capacity in OAPI members meant that principals did not articulate
clear positions. Rather than working to rectify this shortfall, the OAPI Secre-
tariat and foreign donors exploited it. The absence of clear leadership from
principals subsequently made it more difficult for them (and other external
critics) to claim their agent was deviating from their preferred course. Several
SNL representatives described the OAPI Secretariat and its former Director-
General in ‘regal’ terms. Evidence cited to illustrate OAPI’s arrogance with
respect to its members included difficulties extracting information from the
OAPI Secretariat, and the Secretariat’s control of the agenda and discussion in
annual Administrative Council meetings with national ministers. In the wake
of the 2001 Doha Declaration, some SNL representatives expressed frustration
with their inability to push the OAPI Secretariat to respond to their call
for reforms to the revised Bangui Agreement so that it better incorporates
TRIPS flexibilities. From 2002, the inversion of control between the OAPI
Secretariat and its member states was further illustrated by disputes regarding
the Secretariat’s refusal to provide on a full basis the annual payments due to
each of the SNLs for them to conduct their activities. In some cases, national
IP officials resented the regional arrangement on the grounds that revenues
from IP protection accrued directly to the OAPI Secretariat rather than to
national IP offices.
To illustrate the significance of regional delegation to how OAPI countries
responded to TRIPS implementation, the area of copyright protection pro-
vides a useful counterfactual example. Copyright is the only issue covered
by the Bangui Agreement for which administrative responsibility lies at the
national level, not the OAPI Secretariat, and where national governments
must supplement the regional legal framework for copyright protection with

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parallel national copyright legislation. In contrast to those areas of TRIPS

implementation where the OAPI Secretariat was responsible, national govern-
ments progressed far more slowly on copyright reforms. The irony is that of all
the areas covered by TRIPS, enhanced copyright protection is one of the areas
where OAPI countries were most expected to gain some national economic
benefits.266 To aid countries’ efforts in copyright reform, WIPO submitted
draft copyright laws for consideration to the Congo, Guinea, and Mali, and
provided general legal advice on copyright issues to Benin, Cameroon, and
the Congo. The WIPO Secretariat also presented comments on draft laws
prepared by Côte d’Ivoire, Congo, Gabon, and Niger to help them put new
copyright laws in place.267 Despite these efforts, in late 2007, several OAPI
members still had no copyright laws at all (Guinea Bissau, Mauritania, and
Equatorial Guinea), and only three OAPI members (Burkina Faso, Cameroon,
and Chad) had amended or adopted new legislation to harmonize their
domestic law with the revised Bangui Agreement. Several of the remaining
countries (including Benin, Mali, and Senegal) have been discussing draft
laws for several years. As observed by the former OAPI Director-General, the
processes for upgrading national laws in francophone African countries were
time-consuming and unwieldy. The slower pace of change on the copyright
front highlights how central the OAPI Secretariat was to the pace of the Bangui
revisions. Despite WIPO’s efforts, the absence of a regional focal point around
which to mobilize for copyright reform meant that capacity-building did not
have the same traction.
Similarly, national performance in the administration and enforcement
of copyright laws also lags behind the performance on industrial property
for which the OAPI Secretariat holds most responsibility. In 2007, the OAPI
Secretariat, together with counterparts in the ARIPO Secretariat, generated a
first draft regional law on traditional knowledge – an outcome which would
otherwise have taken several years to emerge from an intergovernmental
negotiation among OAPI members. In short, IP reforms advanced fastest
where the OAPI Secretariat was in the lead. Further, the efforts of donors
in favour of strengthened IP protection were most effective when the OAPI
Secretariat was harnessed as their partner.
The significance of regional delegation is also illustrated by the case of com-
pulsory licensing. According to the Bangui Agreement, compulsory licensing
is a domestic issue in which the OAPI Secretariat is not involved. To date,
no OAPI country has actually issued a compulsory or government-use licence
(although, as noted above, Cameroon did declare its intention to do so). The
constraints, according to officials in the region, have been fourfold: the fact
that the revised Bangui Agreement limits their potential to import generic
drugs from beyond their region; the difficulty of finding manufacturers within
the region able to take up the production of generics; the fact that no national
authority has yet felt itself competent technically and legally to actually issue

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such a licence; and lack of assistance from OAPI, WIPO, or any bilateral
donors.
To exert greater control over the OAPI Secretariat, strategies that OAPI mem-
bers might have pursued was to bolster collaboration among themselves, and
to harness any political expertise on TRIPS held by Geneva-based government
delegates. But the potential to replicate the coordination that had emerged
at the international level, notably through the Africa Group at the WTO,
was circumscribed by several factors. IP offices had only sporadic contact
in between OAPI meetings. Telephone and internet connections were too
unreliable to facilitate ongoing interaction. The fact that responsibility for IP
matters rested with different ministries depending on the country in question
further limited the prospect that Ministers might discuss matters when they
met on other occasions.268 Collaboration between the staff of national IP
offices and Geneva-based diplomats familiar with international IP debates
was also constrained by inadequate resources, scant political leadership, and
the difficulties of interdepartmental coordination within governments. In
general, national Geneva-based diplomats, such as those covering the WTO,
were not invited to meetings between the Secretariats, OAPI and WIPO, or
between SNLs and WIPO. Geneva-based diplomats rarely made official visits
back to their capitals and were often housed in ministries other than those
responsible for IP.
Finally, over the course of the Bangui revision process, the socialization
of regional and national IP officials into the global IP profession and pro-
IP community diminished the prospect of any fundamental backlash. Public
statements by OAPI government officials that mirror the ideas, assumptions,
and logic advanced by donors highlight how successful the latter were in
promoting a pro-IP logic in the region and instilling the idea that IP protection
was a necessary downpayment for future political and economic favours. Like
staff from the WIPO Secretariat, the OAPI Secretariat’s senior leadership made
frequent public assertions about the importance of stronger IP protection
as a tool for a broad range of national goals, including industrialization,
innovation, FDI, technology transfer, and development. In 2001, for exam-
ple, the OAPI Secretariat enthused that stronger IP protection would help
to ‘enhance creativity, protect the inventor’s rights, guarantee investments
[and] facilitate technology transfer’, as well as to ‘fight against poverty, and
see to the well-being and security of the population of member states’.269 SNL
staff were also frequently heard espousing the benefits of FDI for national
development and of IP protection for stimulating innovation and attracting
investment, even though the evidence remains deeply contested for the poor-
est countries.270 Setting aside the question of whether these officials actually
believed what they said, they were certainly cognisant that rhetorical support
for strengthened IP was good for national branding and might also bring
personal professional rewards.

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7.6. Conclusion

Throughout the process of revising their joint regional IP framework (the

Bangui Agreement), the OAPI Secretariat operated without effective oversight
from its member states, granting it considerable room for independent action.
This autonomy was bolstered by its financial independence and its special
relationship with international partners, particularly its core donors WIPO,
the EPO, and the INPI. The OAPI Secretariat was able to set positions for
national IP officials through a combination of technical ability, financial
resources, and regional coordination. Together, the OAPI Secretariat and these
donors pushed through a TRIPS-plus agreement and then went about building
the organizational capacity for its administration and enforcement.
National IP officials only spoke publicly in favour of altering the revised
Bangui Agreement to better respond to public health needs after the Agree-
ment entered into force, and even then, largely upon prompting from health
ministries, NGOs or Geneva-based diplomats. Notably, there were important
developments in national IP capacity in several of the key OAPI states in
the post-ratification phase, but this did not translate into any deeper or
broader questioning of the TRIPS-plus Bangui revisions. At least three OAPI
countries developed a formal inter-agency coordination process to guide
their responses to WTO obligations, including international IP obligations:
Senegal, Togo, and Cameroon. In each case, cordination was promoted to
assist with the implementation, enforcement, and revisions of IP laws after
the Bangui Agreement process was completed. The impetus appears to have
been twofold: to generate some local benefits from the IP system and to
respond to international demands to better fight piracy. Several national
governments also increased their contributions to growing national indus-
trial property and copyright offices. Higher technical and institutional capac-
ity of these IP offices, and stronger awareness of international IP debates,
prompted stronger interest in the protection of traditional knowledge and
folklore, as well as promoting greater commercial use of the opportunities
presented by IP. Starting in 2006, national IP offices also began efforts to
exercise greater member-state control over the budget and activities of OAPI,
including with respect to the appointment of the new Director-General for the
organization.271

Notes

1. The members of OAPI are Benin, Burkina Faso, Cameroon, the Central African
Republic, Chad, Congo, Côte-d’Ivoire, Gabon, Guinea, Guinea-Bissau, Equatorial
Guinea, Mali, Mauritania, Niger, Senegal, and Togo. Of these, Equatorial Guinea is
not a WTO member and thus has no obligations to implement TRIPS.

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2. OAPI is usually described as organization of francophone African countries. French

is widely an official language, sometimes alongside local languages. This does not,
however, imply that French is the primary language or a well-understood language
in the region. In addition, two OAPI countries were never ruled by France, namely
Guinea Bissau (formerly a Portuguese colony) and Equatorial Guinea (formerly a
Portuguese then Spanish colony).
3. Eight of its ten annexes also came into force in 2002, as discussed below.
4. See OAPI (2001).
5. Adewopo (2003) and Ngombé (2005, 2006). For praise of the revised Bangui
Agreement, also see Gazaro (2006).
6. Nnadozie (2003).
7. Kongolo (2000a).
8. RAFI (1999a).
9. GRAIN (2002b).
10. See GRAIN (2001). For similar arguments see Gavin (2002a), MSF/WHO (2000),
and MSF (2003).
11. MSF (2000).
12. WTO (1999a).
13. Maskus (2000a) and UNCTAD (2007).
14. The seven poorest countries (e.g. Burkina Faso, the Central African Republic, Chad,
Mali, Niger, Togo, and Guinea Bissau) all share annual per capita incomes of
under US$1 per day and rank among the lowest on the UN Human Development
Index. Oil revenues play a large role in the higher GDP per capita of Cameroon,
Equatorial Guinea, and Gabon. See UNDP (2007).
15. In 2002, the richest countries in the region were the Côte d’Ivoire and Cameroon
with US$11.7 billion and US$9.1 billion respectively. Between 1999 and 2002, the
national income of Equatorial Guinea more than doubled due to the discovery
and exploitation of new oil reserves. See UNDP (2004).
16. Côte d’Ivoire has the largest population with around 16 million people. See UNDP
(2007).
17. UNDP (2007).
18. A list of WFP food aid recipients is provided at http://www.wfp.org/country_
brief/index_region.asp.
19. Ibid.
20. In 2002, only one OAPI member, Equatorial Guinea, was among the top five
African recipients of FDI, receiving US$1.7 billion, largely for investment in oil
and mining. In 2005, the African region as a whole attracted just 3 per cent of
global FDI, primarily in the natural resources sector for oil and mining. See UNDP
(2002, 2003a), and UNCTAD (2005).
21. In a review of OAPI statistics of the 6,004 patents registered by the OAPI during the
years 1971–90, a 1995 study found that only forty-one patents had been exploited
in the region. See Yusef (1995). Also see World Bank (1996).
22. See, for example, Kongolo (2000c) and Sakho (2003).
23. See Sakho (2002) and Tankoano (2003).
24. Karachalios (2002).
25. OAPI (2005a).

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26. These figures exclude South Africa and are drawn from the annual reports of the
US Department of Commerce’s International Trade Administration on U.S. trade
and investment with sub-Saharan Africa, available at http://hotdocs.usitc.gov.
27. Ibid.
28. UNCTAD (2007).
29. In 2002, for example, local scientists approached OAPI to patent five drugs for
the treatment of HIV/AIDS and diabetes based on traditional medicines. Similarly
in 2004, a Burkinabe herbal healer patented one of his drugs, also based on
traditional medicines, for the treatment of stomach ulcers. See PANA (2002, 2004).
30. Endeshaw (1996: 122), Kongolo (1998), and Verma (1996).
31. Kongolo (2000a: 286), for example, highlights the need to ‘combat the widespread
piracy and counterfeiting of African traditional and modern intellectual property
assets’ (emphasis added).
32. Ringo (1994).
33. See for instance, Bayart (2000), Clapham (1996: 180–1, 201–7), Mosley et al. (1991:
136), and Wallerstein (1986).
34. Houngnikpo (2005: 212). Le Vine (2004) and Oyono (1993) make similar argu-
ments.
35. Houngnikpo (2005: 212). The importance of the region to France is signalled by
the fact that it attracts around 22 per cent of French aid flows. By contrast, in
2002, aid to the region accounted for less than 2 per cent of U.S. development
assistance, around 7 per cent of Germany’s, and almost 9 per cent of the EU’s. See
http://www.oecd.org/dataoecd/61/5/2068096.pdf/
36. For a discussion of the ways in which France continues to exert educational and
culture influence in the region, including through organizations such as l’Agence
pour la Francophonie and l’Agence Universitaire de la Francophonie, see Maack
(2001).
37. In 2002, seven OAPI members had ODA/GDP ratios higher than 10 per cent which
earned them the designation as ‘highly aid dependent’. These countries included
Burkina Faso (15.1 per cent), Chad (11.6 per cent), Guinea-Bissau (29.2 per cent),
Mali (14 per cent), Mauritania (36.7 per cent), and Niger (13.7 per cent). See UNDP
(2006). For critical analysis of this dependence, see Bayart (2000).
38. van de Walle (2001).
39. Williams (2000: 572). See also Stewart (1994).
40. Cruise O’Brien (1991) persuasively describes the sovereignty of West African states
as ‘a political drama with an audience more or less willing to suspend its disbelief’.
41. Williams (2000: 570–2). See also Harrisson (2004), Plank (1993), and Williams
(1996). Amprou et al. (2001) offer case studies on aid and reforms in specific
African countries. The push for increased donor coordination is described in
OECD (1988, 2003).
42. Mustapha and Whitfield (2008).
43. Boone (2003), Dunn (1978), and Dunn (2001: 4).
44. Examples of instability include a civil war in Côte d’Ivoire starting in 2002, a
military coup in Burkina Faso, fighting in neighbouring Sierra Leone and Nigeria,
rebellion in Niger and Mali in early 1990s, a dictatorship in Togo which lasted
until 2005, and famine in Niger and Mali.

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45. See Bayart (1993), Clark and Gardinier (1997), Cruise O’Brien et al. (1989), and
Bergamaschi (2007).
46. See Mustapha and Whitfield (2008). These authors observe that despite continu-
ities, moves towards greater electoral competition and the growing activity of non-
government actors in African societies have altered the way in which practices
such as clientelism occur.
47. For critical perspectives on the limited attention of IR scholars to the African
continent, see Brown (2006), Clapham (1996), and Lavelle (2005).
48. For further discussions of African foreign policymaking and the international rela-
tions of African states, see Clapham (1996), Clark (2001), Harbeson and Rothschild
(1995), Khadiagala and Lyons (2001), Lavelle (2005), Lemke (2003), and Taylor
(2004).
49. See Mustapha and Whitfield (2008) and Manning (1988).
50. Where oppositional parties and active NGO communities have emerged in the
wake of democratic reforms, governments have faced criticism of their interna-
tional economic relations. See Delgado and Jammeh (1991) and Weissman (1990).
In Senegal, for example, civil society groups actively criticized the government in
the late 1980s and early 1990s for acquiescence to the onerous policy conditions
attached to structural adjustment programmes and other donor assistance. See, for
example, Taylor (2004). Similarly, some national NGOs campaign warned against
onerous concessions in international trade negotiations. In addition, concerns
about WTO negotiations on cotton have stimulated heated parliamentary debate
in Senegal and Mali about the trade-offs of WTO membership.
51. The limited engagement of the domestic public and parliaments in the process
of trade decision-making in francophone Africa is discussed in Oyejide (1990)
and Soludo et al. (2004). Further, Musungu (2004a) highlights that while African
governments have increased their participation in international IP policymaking
over the past decade, in only a few countries has this been matched by expanding
efforts to consult with domestic constituencies.
52. For background on the origins of the first regional economic organizations in the
region, see Ajomo (1976).
53. The OAPI countries participate in several pan-African political, security, and
economic initiatives, including the African Union, NEPAD, and the African
Development Bank as well as the African Group at the WTO. Countries in
the region have a common currency (the CFA franc) pegged to the euro and
managed through two separate central banks, the West African Economic and
Monetary Union (UEMOA) and the Central African Economic and Monetary
Community (CEMAC). Other examples of regional cooperation include the Eco-
nomic Community of West Africa States (ECOWAS), (established in 1975 and
headquartered in Nigeria); the Organization for the Harmonization of Business
Law in Africa (OHADA) (agreement signed in 1993); the Economic Commu-
nity of Central African States (CEEAC) (created in 1983 and headquartered in
Gabon) and the Community of Sahel-Saharan States (COMESSA) (created in
1998).
54. In the early years of independence, for instance, Côte d’Ivoire was reluctant to
advance some aspects of regional integration, particularly those which required it

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to help pay for the weaker countries in the region, and preferred to enjoy a special
relationship with France.
55. Reno (2001).
56. See South Centre (1999), Bilal and Grynberg (2007), and Santa Cruz (2006).
57. This effort had been ongoing for several decades, particularly because in several
individual countries in the region, historical loyalties were divided. In Cameroon,
for example, Germany, France, and the UK all had significant historical involve-
ment. See Manning (1988).
58. While the United States was not a major aid donor to the OAPI countries during
the period under review, U.S. military aid to the region increased from 1998 and
significantly outweighed development aid. Prompted by concerns that terrorist
groups would recruit and train in the region, the U.S. military focused on train-
ing, military preparedness, and the provision of weapons. From 1999 to 2003,
for example, Mali received annual support from the U.S. International Military
Education and Training (IMET) programme. In addition, from 2002 to 2004, the
U.S. Pan-Sahel Initiative (PSI) provided training and equipment to the security
forces of Mauritania, Chad, Niger, and Mali. For a review of the evolution of U.S.
military engagement in the region, see ICG (2005), Roan (2006), and Williams
(2006).
59. Bilal and Grynberg (2007).
60. This effort is exemplified by the launch by African leaders of the New Economic
Partnership for Africa’s Development (NEPAD). See Taylor (2005).
61. For an analysis of the history and asymmetric nature of these agreements,
see Cosgrove-Sacks (1978), Frey-Wouters (1980), Hurt (2003), Long (1980), and
Zartman (1971).
62. Cazenave (1989) and Endeshaw (1996: 154).
63. See Allot (1996) and Endeshaw (1996: 155).
64. Nnadozie et al. (2002) and Okediji (2003a).
65. For a broader history of colonial legal arrangements in Africa, see Roberts and
Mann (1991).
66. Endeshaw (1996: 151–2) and Salacuse (1969: 21, 10).
67. Even within that format, the state and format of laws differed across the French
colonies. See Endeshaw (1996: 155) and Salacuse (1975: 156).
68. See Endeshaw (1996).
69. Of particular concern was that countries might follow the Malian independence
strategy whereby Mali had sought alliances with the USSR and China, and to break
ties with its former colonial ruler.
70. Endeshaw (1996).
71. According to Seidman, ‘save for the constitutional provisions, the legal order at
Independence remained unchanged’ (1969: 37).
72. Lazar (1971).
73. This UAM meeting spawned several additional regional institutions, including Air
Afrique (based in Abidjan) and a regional postal authority (based in Brazzaville).
The UAM, founded in 1961, became the OCAM between 1965 and 1966. See
Mytelka (1974) and Tall (1972).
74. Meyo-M’Emane (1990).

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75. Anderfelt (1971). The twelve countries that signed the Libreville Agreement were
Cameroon, Central African Republic, Chad, Congo, Côte d’Ivoire, Dahomey (now
Benin), Upper Volta (now Burkina Faso), Gabon, Mauritania, Senegal, Niger, and
the Malgasy Republic.
76. This point was made in a 2005 speech by INPI Director-General, Benoit Bastelli.
See EPO (2005).
77. For historical background on OAPI, see Bogsch (1992), Camara (1987), Cazenave
(1989), and Mossinghoff and Kuo (1998: 544). See also http://www.oapi.wipo.net.
78. For reviews of copyright in the 1977 Agreement, see Kingué (1985), Kongolo
(1999a), and Ndiaye (1982).
79. See interview with former OAPI Director General Denis Ekani in ICICEMAC
(2005).
80. The High Commission of Appeal is composed of three members (selected by the
drawing of lots) from a list of representatives designated by member states. The
Commission is charged with ruling on appeals following the rejection of applica-
tions for industrial property protection, for the maintenance or extension of terms
of protection, for the reinstatement of rights, and for decisions on opposition
requests.
81. Leesti and Pengelly (2002).
82. Teyib (2004).
83. OAPI (2001).
84. Article 43 of the revised Bangui Agreement states that the treaty will come into
force two months after ratification by at least ten (two-thirds) of the contracting
members of the 1977 Bangui Agreement (which had fifteen members). In addition,
it states that the various Annexes to the Agreement will come into force upon a
decision of OAPI’s Administrative Council. While the Agreement provided mem-
bers two years (until 24 February 2001) to ratify the new Agreement, nine of the
countries ratified after that deadline.
85. This followed a Council decision in December 2005, described in more detail
below. See OAPI (2005b).
86. The original Bangui Agreement included indications of source or appellations of
origin as subjects for protection. See Kongolo (1999b). For a broader discussion of
geographical indications in the African region, see Grant (2005).
87. Article 67 of the revised Bangui Agreement defines folklore as the ‘literary, artis-
tic, religious, scientific, technological and other traditions and productions as a
whole created by communities and handed down from generation to genera-
tion’. For a summary of the Agreement’s provisions in this respect, see Kongolo
(1999b).
88. For OAPI’s procedures in this respect, see http://www.oapi.wipo.net. For applicants
living outside the OAPI member states, applications are submitted to OAPI either
through an agent appointed in one of the member states or through WIPO using
procedures laid down in the Patent Cooperation Treaty (PCT). In the latter case,
applicants pay a fee to WIPO, part of which is retained by WIPO as part of its PCT
applications, and part of which is passed on to OAPI to cover its application fee.
For those living in the OAPI member states, applications are filed either through
the SNL, directly with OAPI, or through an agent appointed in one of the member

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states. In the case of applications made through SNLs, the fees are levied by OAPI
directly on the applicant. If the patent is issued, the relevant rights remain in force
subject to payment to OAPI of annual fees.
89. The revised Bangui Agreement states that OAPI members can also take advantage
of provisions in the Paris, Berne, and Universal Copyright Conventions, as well as
TRIPS, ‘in all cases’ where such provisions are more favourable ‘in protecting the
right deriving from intellectual property’, but makes no accompanying mention
of the flexibilities and options available in those agreements.
90. Article 3(1) of the revised Bangui Agreement affirms that the various rights arising
from the Annexes are ‘independent national rights subject to the legislation of
each of the Member States in which they have effect’. See Kingué (1985: 36) and
Ngombé (2006).
91. See Verbauwhede (2002) and Ngombé (2006).
92. Kongolo (2000c: 725).
93. The Agreement states that novelty can be destroyed by publication anywhere
(whether in writing or orally), by use, or otherwise such that the disclosure is
sufficient to enable the invention to be worked.
94. This figure reflects the exchange rate in August 2007 for 3,000,000 CFAF.
95. Kongolo (2000c).
96. For reviews of the revised copyright text, see Ngombé (2004: 123–35, 2005).
97. See Kongolo (2000b, 2000c: 726).
98. There is debate among legal experts about the actual legal effect and practical
impacts of many of these provisions (particularly where the effect of provisions
relies on subsequent enforcement or administrative decisions by member states
or by OAPI). For a positive perspective, see Botoy (2001). For concerns, see Gavin
(2002a), GRAIN (2002b), and RAFI (1999a).
99. Cameroon and Gabon ratified the revised Bangui Agreement by their 2000 TRIPS
deadline while Côte d’Ivoire and Congo had both ratified by October 2001. (Table
7.4. lists the ratification dates for each OAPI country.)
100. WTO (2001a).
101. See WTO (2001a, 2005c).
102. According to Article 48 of the agreement, any member of OAPI may denounce the
Bangui Agreement by written notification to the Director-General and thus exit
from any obligations under it.
103. Article 56 of the Bangui Agreement provides that when a patented invention is of
vital interest to national defence, public health, or the national economy, or where
non-working or insufficient working of such patents seriously compromises the
satisfaction of the countries’ needs, the competent minister of the OAPI member
state concerned can make an administrative decision to issue a non-voluntary
licence.
104. The revised Bangui Agreement requires the member state to specify the beneficiary
organization, the duration, conditions, and the scope of the non-voluntary licence
as well as the amount of royalties. Applications for non-voluntary licences before
the civil courts must be accompanied by evidence of the effort made by the
applicant to obtain a licence agreement on reasonable commercial terms from
the patent owner within a reasonable time. The granting of a non-voluntary

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licence must be accompanied by ‘equitable’ compensation to the patent owner.

See Kongolo (2000c).
105. The revised Bangui Agreement provides three grounds for compulsory licences:
(a) if the patented invention is not worked on the territory of the member state
at the time the request is made; (b) if the working of the patented invention does
not meet, on reasonable terms, the demand for the protected product or if the
patentee refuses to grant licences on reasonable commercial terms and procedures;
and (c) if the establishment or development of industrial or commercial activities
on such territory is unfairly and substantially prejudiced (unless the owner of the
patent provides legitimate reasons for the non-working of the invention). A non-
voluntary licence may also be granted in the case of dependent inventions that
cannot be worked without infringing on each other.
106. The revised Agreement also omits clauses found in some other countries that
subject the duration of a patent to its local exploitation. It also enables the
patentee to preclude any person from stocking products for the purposes of use
or sale. In addition, the revised Bangui Agreement removes prior working as a
condition for the launching of an infringement action by either a holder of a
patent right or utility model. See Kongolo (2000c: 720).
107. For further discussion of the issue of exhaustion of rights in the OAPI region, see
Kiminou (2001).
108. Kiminou (2001).
109. See Gavin (2002a).
110. Second-use patents are also known as patents of addition and refer to patents for
new uses of known products. See Tankoano (2001).
111. While the revised Bangui Agreement does not take the TRIPS-plus step of spec-
ifying a fixed period of data exclusivity, the revised Bangui Agreement may in
fact provide even stronger protections because it offers an expansive prohibition
on such use without any time frame attached. See Kongolo (2001b) and Samb
(2002). According to the 2001 Doha Declaration on TRIPS and Public Health and
a subsequent decision of the TRIPS Council, LDCs are not obliged to provide
any such protection for pharmaceutical test data until 1 January 2016. See WTO
(2001a, 2005c).
112. By slowing the entry into the market of cheaper, generic products, this automatic
extension prevented a range of possible public health benefits in the region.
In 1988, for instance, OAPI granted Pfizer a ten-year patent for the molecule
azytrhomicine (commercial name is Zythromax). Once the patent expired in 1998,
the company Wockhart produced a generic version lowering the price from $2.50
per treatment to $0.175, enabling treatment of fourteen times more patients.
Under the new Bangui Agreement, this kind of price reduction on drugs patented
under the terms of the original Bangui Agreement was postponed for an additional
ten years. See Jourdain (2002). Also see ICAM (2002: 7).
113. Indeed, much of the text in the Annex on plant variety protection is the same
as that found in the UPOV 1991 Convention and the related model law used by
UPOV in its technical assistance. See Tankoano (2003).
114. The revised Bangui Agreement was found to be compliant with UPOV 1991 by the
UPOV Council in April 2000. See UPOV (2000).

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115. For a summary of these debates, see Correa (1999a), and Gaia Foundation and
GRAIN (2000).
116. WTO (1999a). Also see Abass (2002). Equatorial Guinea, which is not a WTO
member, is the only OAPI country which does not belong to the African Group.
117. While in general other countries can no longer formally belong to UPOV 1978,
OAPI members could have used the 1978 Convention as a basis for their sui generis
system even without being members of UPOV. Several other developing countries
have taken this approach. (See Chapter 3.)
118. The OAU became the African Union in 2001.
119. See Cullet (2001: 103), Musungu (2004a), and WTO (2000b).
120. Chad, Guinea Bissau and Mauritania each had no national copyright laws. Equa-
torial Guinea was not yet a OAPI member at that time and also had no copyright
law. Ngombé (2005) argues that in these cases the regional text would apply as law
in those countries.
121. The conditions for translation were also limited under the original Bangui Agree-
ment. The original Annex indicated that ‘licences shall not be granted for the
publication of literary or scientific works of which a French-language edition is
available abroad unless such publication on the national territory has considerable
advantages for the distribution desired’. See Kongolo (2000a, 2000c).
122. The national copyright law of Côte d’Ivoire has similar provisions.
123. Ekani completed a doctorate on industrial property in the region. After leaving
OAPI, he held positions in the government of Cameroon and now practices as an
attorney in the region. See Ekani (1973, 1982).
124. Author’s interview with Ibrahima Camara, Professor of Law and Intellectual Prop-
erty, University of Dakar, Senegal, May 2007.
125. Author’s interviews with Jaqves Verone at INPI, Paulin Edou Edov at OAPI, and
Michele Weil at WIPO, July 2008. The collaboration of WIPO, UPOV, and INPI
in drafting the initial text was also affirmed through author’s interviews with
academics and NGO representatives involved in the subsequent debate on the
revised Bangui Agreement.
126. Ibid.
127. OAPI (2001).
128. Equatorial Guinea joined OAPI in 2000.
129. Author’s interview with Camara, see note 124.
130. From 1998 to 1999 Guinea-Bissau and Congo were embroiled in civil wars.
Chad suffered political instability throughout the 1990s, and Côte d’Ivoire was
afflicted with internal conflicts. For reviews of the political situation within and
among countries in the francophone African region, see Herbst (2000) and Kaplan
(2000).
131. This point was also made during author’s interviews with officials involved in the
process and by NGOs. See RAFI (1999b) and GRAIN (2002b).
132. Key scholars in this group included R. Kiminou, A. Tankoano (Professor in the
Economics and Law Faculty of the Abdou Moumouni University of Niamey), T.
Kongolo (who was at that time in Japan), L. Ngombé, and I. Camara. There was
also a broader group of scholars focused on the issue of the protection of folklore
in the region.

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133. This conclusion draws from a review of WIPO’s country briefs on member states.
See http://www.wipo.int/members/en.
134. This programme is located at the University of Yaoundé II, which also has its own
association of graduate IP law students (ADEPIY).
135. Author’s interview with Falov Samb, former Senegalese TRIPS delegate, February
2006.
136. Patent attorneys had direct economic interests in boosting the use of the IP system
as it would enable them to accumulate more fees.
137. Author’s interview with Camara, see note 124 above.
138. Ibid.
139. The five OAPI countries without representation in Geneva are Central African
Republic, Chad, Guinea Bissau, Niger, and Togo. In countries without missions
in Geneva, responsibility for following WTO negotiations is usually allocated to
their missions in Brussels.
140. The two individuals were Falou Samb and André Basse, both of whom worked at
the Permanent Mission of Senegal to the United Nations in Geneva.
141. While francophone African countries have subsequently added their names to
submissions on TRIPS matters by the African Group at the WTO, only a very
small number of diplomats from the region have substantive capacity and time
to engage actively with TRIPS matters. The more dominant players from the
African region in the TRIPS discussions have been Egypt, Kenya, Morocco, South
Africa, and Zimbabwe – all of which relied on collaboration with NGOs, IGOs, and
external legal experts to make proposals at the international level.
142. Left alone to navigate the diplomatic manoeuvring of the WIPO Assemblies,
author’s interviews with several representatives of SNLS affirmed that their pri-
mary guides and interlocutors when in Geneva were WIPO officials with whom
they negotiated technical assistance and capacity-building programmes, and other
OAPI SNLs.
143. Author’s interview with Anthoumiane Ndiayé, OAPI Director-General, Sept 2005.
144. Ibid.
145. OAPI (2001).
146. For information on the 1991 Act of UPOV and dates of accession see
http://www.upov.int. At that time, of the twelve developing country members
of UPOV 1978, the only African members were South Africa and Kenya (which
joined the 1978 Act in May 1999 just before it was closed to further members).
147. The meeting documents are available at: http://www.wipo.int/meetings/en/details.
jsp?meeting_id=3669.
148. Author’s interviews with Professor Tshimanga Kongolo, WIPO Academy Geneva,
Jun 2006 and Professor Johnson Ekpere, former OAU official responsible for the
development of the OAU’s model law, Feb 2006.
149. Interview with Johnson Ekpere, see note 148.
150. WTO (1995).
151. With the exception of its first WTO TPR report in 1995 (on Cameroon), the
WTO Secretariat made no further mention of the LDC transition period for OAPI
members until its 2001 report on Guinea. See WTO (2005e). See Table 7.5 for a list
of the dates of the WTO TPR reports on OAPI countries.

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152. WTO (1997b, 1998a, 1998b, 1999c).

153. Japan posed questions to Mali and Burkina Faso regarding measures taken to
combat piracy and counterfeiting. The United States asked these countries and
also Togo what steps they had taken to bring the Bangui Agreement into line with
TRIPS. The United States also requested information on the legal framework for,
and practical application of, Benin’s intellectual property legislation. They asked
‘when the draft copyright law would be ratified and how Benin intended to deal
with the problem of informal trade in applying the measures for the protection
of intellectual property rights at the border’. In the case of Togo, one of the three
formal discussants also underscored the importance of implementing the Bangui
Agreement, and in the case of Benin one of the formal discussants noted ‘that
violations of intellectual property law were not punished’. See WTO (1997b: 21;
1998b, 1999c).
154. The Rural Advancement Foundation International (RAFI) is an international civil
society organization headquartered in Canada, dedicated to the conservation and
sustainable use of biodiversity, and to the socially responsible development of
technologies useful to rural societies.
155. See RAFI (1999b: 1). While it is possible that national newspapers provided some
coverage, a search of all African and world newspapers in French and English
available on LexisNexis for the revision period from 1 January 1995 to 30 June
2003 revealed only nine articles related to OAPI. Only three of these news stories
were on the revision process, and only one appeared before the revised Bangui
Agreement was signed.
156. GRAIN is an international NGO which promotes the sustainable management and
use of agricultural biodiversity based on people’s control over genetic resources
and local knowledge.
157. RAFI (1999e).
158. GRAIN (1999c).
159. In 1999, in a RAFI (1999b: 1) press release, Hope Shand argued that ‘[c]onceivably,
a new trade round could render compliance unnecessary’.
160. RAFI (1999c, 1999f ).
161. Masood (1999).
162. RAFI (1999f ).
163. Ibid.
164. Ngangoue and Oeudraogo (1999).
165. Ibid.
166. Interviews with Johnson Ekpere and Falou Samb, see notes 148 and 135.
167. See Kiminou (2001), Kongolo (2000a: 265–6), and Tankoano (2001, 2002).
168. MSF (2000), RAFI (1999b), and Mangeni (2003).
169. This analysis is based on author’s interviews conducted with representatives of ten
of the sixteen OAPI SNLs.
170. ARCT is an intergovernmental organization established in 1977 under the aegis
of the United Nations Economic Commission for Africa (UNECA) and the African
Union. Headquartered in Dakar, Senegal, ARCT has a membership of thirty-one
African countries.
171. The minutes of these meetings are at http://www.wipo.int/africa/en/partners_org/
quadripartite/index.html.

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172. Ibid.
173. WTO (2001c).
174. WTO (2001d).
175. In the case of Mali, Benin, and Burkina Faso, the WTO highlighted those particular
WIPO agreements to which the OAPI members had not yet acceded. See, for
example, WTO (1997b: 55).
176. Among other elements, each agreement offered the exchange of trade pref-
erences (such as duty-free and quota-free access to selected products) for a
series of commitments by African countries to open up the regional econ-
omy and protect U.S. business and investment, including through IP pro-
tection. At that time, eight African Trade Ministers (including two OAPI
countries) issued a joint statement welcoming the Act. See Trade Compass
(2000). For a critical discussion of the Act and its history, see South Centre
(1999).
177. Mkandawire (2004), Gray et al. (1990), and Williams (2000: 569).
178. At that time, while some OAPI member states already exported some products
under GSP arrangements to the United States, many of the OAPI countries had
not otherwise been beneficiaries of any U.S. GSP benefits.
179. The campaign that ensued resulted in an Executive Order on Access to HIV/AIDS
Pharmaceuticals and Medical Technologies issued by President Clinton (discussed
in Chapter 4).
180. RAFI (1999f ).
181. GRAIN (2001).
182. GRAIN (2002b).
183. GRAIN (2001).
184. Seuret and Brac de la Perrière (2000). For further details of concerns about patents
on local traditional knowledge from the region, see BEDE (2000), RAFI (1999d),
and GRAIN (2002a). From 1993, the University of Wisconsin filed for patents
related to brazzein sweetener, an ultra-sweet sugar replacement derived from the
berry of a plant found in Gabon. The sweetener was subsequently licensed to
biotechnology companies working to introduce the sweetener into fruits so that
they taste sweeter with fewer calories.
185. Nnadozie et al. (2002), Zoundjihekpon (2001), GRAIN (1999b), RAFI (1999d), and
APM (1999).
186. RAFI (1999e).
187. Egziabher (1999a, 1999b) and Ekpere (1999).
188. Author’s interview with Matthew Stilwell, former Managing Attorney, Center for
International Environmental Law, Geneva, October 2003.
189. RAFI (1999e).
190. Article 27.2 of TRIPS allows members to exclude from patentability inventions
of which commercial exploitation is considered to go against ‘public order’ (e.g.
social values or morality).
191. In their statement, the African Group cited two reasons for postponing the dead-
line for implementation of Article 27.3(b): (a) the ongoing debate on the issue in
other forums, such as the FAO and CBD, and (b) in order to enable countries to set
up the infrastructure required for implementation. For NGO statements of support
for the African Group, see GRAIN (1999c), RAFI (1999b), and TWN (1999). For the

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official text of the statement and a subsequent statement by Kenya on behalf of

the Group, see WTO (1999a, 2000b).
192. WIPO (1997).
193. For a report on the OAU meeting, see GRAIN (2001).
194. WIPO noted, for example, that the OAU Model Law’s prohibition of patents on
life forms goes against TRIPS. While it is true that Article 27.3(b) requires patents
on at least micro-organisms, this observation ignored the fact that the African
Group at WTO had taken the position, formally endorsed by OAU, in the context
of the TRIPS Council’s review of Article 27.3(b) that TRIPS should instead ban the
patenting of micro-organisms, as well as other life forms. WIPO warned against
the model law’s provision regarding bio prospecting and set out the difficulties in
defining and operationalizing community rights. On neither issue did WIPO offer
any suggestions for ways forward at that time. See GRAIN (2001).
195. Author’s interview with Maurice Batanga, OAPI Secretariat, May 2007.
196. GRAIN (2001).
197. Ibid.
198. Ibid.
199. The newsletter had a distribution of around 700 stakeholders in the region.
200. GRAIN (2002b).
201. Boulet (2000), Boulet and Forte (2000), and MSF/WHO (2000).
202. MSF/WHO (2000).
203. MSF (2000).
204. Ibid. By May 2000, Cameroon, Côte d’Ivoire, Gabon, and Senegal had ratified the
agreement.
205. Their core concerns were that the revised Bangui Agreement imposed more con-
ditions on the use of compulsory licences than were required by TRIPS (such
as the requirement for preliminary negotiations with patent holders even in
cases of public health emergencies, and for a judicial procedure); prohibited
parallel imports from countries outside the region (thus excluding the possibility
of importing generic drugs from India and Brazil, the two principal producers
of generic antiretrovirals); extended the duration of validity of a patent from
ten to twenty years (not at that time required until 2006 for LDCs), and that
it considered importation sufficient for a patent to be considered as exploited
(rather, for example, than subjecting the duration of a foreign patent to its local
exploitation). See MSF/WHO (2000) and MSF (2000).
206. To reach francophone experts, a senior WHO staff member published an article
in a leading French-language law journal highlighting the importance of parallel
imports and international exhaustion to access to medicines. See Velasquez (2000).
207. MSF (2000).
208. OAPI (2001).
209. Ibid.
210. Author’s interview with Pascale Boulet, a legal advisor at MSF, Feb 2006 and
Catherine Gavin, a former MSF legal advisor, Aug 2008.
211. Sell (2003c).
212. MSF (2000).
213. Author’s interview with Falou Samb, see note 135.

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214. Ibid.
215. Ouedraogo (2002).
216. Cited in Ouedraogo (2002).
217. Ibid.
218. ACT UP-Paris (2002).
219. OAPI (2002).
220. In the memo, the OAPI Secretariat noted that ‘a patent may be exploited with-
out the permission of its owner under certain conditions’ and further explained
that ‘when a member State, for purposes of public health, deems that access to
medicines should be improved, the competent Minister may, by an administrative
decision, designate an administration or an organization to benefit from the non-
voluntary licence regime to manufacture, import or sell products protected by
patents’. See OAPI (2002).
221. Gazaro (2006).
222. See, for example, Abass (2002) and Sakho (2003).
223. In Cameroon, for instance, l’Initiative Camerounaise pour l’accès aux médica-
ments (ICAM) was launched in 2002. See ICAM (2002). In 2003, a Réseau Accès
aux Médicaments Essentiels (RAME) was created in Burkina Faso, forming a
network of people active in the battle for improved access to medicines. See
http://www.rame-bf.org
224. The meeting was called the Regional Dialogue on Trade, Intellectual Property, and
Biological Resources in Central and West Africa and was co-sponsored by ENDA
Tiers Monde, ICTSD, and Solagral with the collaboration of Oxfam (West Africa)
and the Quaker United Nations Office (QUNO).
225. Ould Hemet (2002) and Samb (2002).
226. Ould Hemet (2002). A similar view was expressed by Cameroon in 2004 in doc-
uments related to the TRIPS Council Review of its IP legislation. On the topic
of patent protection for pharmaceutical products, Cameroon stated that ‘studies
are continuing to bring our legislation into line with the spirit of the Doha
Declaration’. WTO (2004a: 19).
227. Interview with Falou Samb, see note 135.
228. Notably, MSF stepped back from its campaign for the reform agenda because for
practical purposes many countries in the region allowed the import of generic
drugs irrespective of the IP regime. MSF switched attention to encouraging coun-
tries to use the system. Catherine Gavin, a Legal Advisor to MSF’s Campaign
for Access to Essential Medicines claimed that OAPI’s memo ‘clearly indicates
that imports of generics are possible in the OAPI countries, on the basis of a
simple administrative decision from the competent Minister, so actually through
governmental use’. See Gavin (2002b).
229. The petition called for the issuance of nonexclusive ‘open’ non-voluntary licences
for all patents relevant to importation, manufacture, and sale of generic versions
of nevirapine, lamivudine, and the fixed-dose combination of lamivudine and
zidovudine, medicines used in the treatment of HIV/AIDS. Essential Inventions
framed its request such that, when approved, ‘licences would be available to any
organization or business seeking to supply these AIDS medicines to patients in
Cameroon’. See Essential Innovations (2005).

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230. Interviews with Falou Samb and representatives of several OAPI SNLs in 2005 and
2006.
231. The U.S. National Trade Estimates routinely monitor and report on key U.S.
trading partners, including the status of their IP protection. Among the OAPI
countries, only Cameroon (from 1999 to 2006) and Côte d’Ivoire (from 2004
to 2006) have been the subject of such reports. While the reports on Cameroon
included several factual errors about IP protection standards in Cameroon, there
was no criticism of the standards of IP protection offered or regarding TRIPS
implementation in the reports from 1999 to 2002. From 2003, however, the
observations on Cameroon included concerns about piracy and counterfeit rates
in the country, and the difficulty in attaining effective enforcement through the
judicial system. The National Trade Estimate reports on Côte d’Ivoire expressed
similar concerns and also included significant factual errors. In describing the
revised Bangui Agreement, for example, the report detailed the provisions of
the 1977 and not the 1999 Agreement. The full texts of all U.S. National Trade
Estimate Reports from 1994 to 2006 are available at http://www.ustr.gov.
232. A copy of the TIFA is available at http://www.ustr.gov.
233. Three OAPI countries have faced the withdrawal of AGOA preferences for violating
eligibility criteria, sending a signal that the United States would take the range of
conditions for market access seriously (Central African Republic in 2004, Côte
d’Ivoire in 2005, and Mauritania in 2006).
234. Author’s interview with Samb, see note 135.
235. The nine most export-reliant countries are Cameroon, Côte d’Ivoire, Gabon,
Guinea, Guinea-Bissau, Mali, Mauritania, Senegal, and Togo which rely on exports
for 20 per cent or more of their GDP. Only the four non-LDC members of OAPI had
exports worth over US$2 billion in 2002: Côte d’Ivoire (US$4.4 billion), Gabon
(US$2.6 billion), Congo (US$2.2 billion), and Equatorial Guinea (US$2.1 billion).
Countries in the region generally depend either on unprocessed agricultural
exports (such as cotton) or just one or two raw commodities (such as diamonds,
oil, and iron ore).
236. Raghavan (2002).
237. Of the required treaties, the Berne, Paris, and WIPO Conventions were already
ratified by all OAPI members before the Bangui revisions. Few OAPI members have
ratified the other required agreements and none have ratified either the UPOV
1991 Convention or the Budapest Agreement. Beyond those international IP
agreements required by the Bangui Agreement, a handful of OAPI member states
also belong to the Brussels Satellite Convention, the Film Register Convention,
and the Patent Law Treaty.
238. WTO (2005e).
239. CISAC (2004).
240. In June 2005, APPIA held a conference covering issues from IP and public health
to copyright, plant varieties and R&D in agronomy, and geographical indications.
It was attended by around seventy people from various African countries includ-
ing civil servants to WHO, artists, students, scientists, university professors and
lawyers, MSF, and CPTech. See Gallochat (2005).
241. http://www.invention-ifia.ch/afriquefrancophone/Associations_inventeurs_Niger.
htm.

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242. These included a regional WIPO/OAPI Colloquium on IP and the Protections of

Expressions of Folklore and Traditional Knowledge in Côte d’Ivoire (April 2002); a
WIPO/OAPI Roundtable on legal options and general policy regarding the pro-
tection of traditional knowledge, genetic resources and expressions of folklore
in Cotonou (December 2003), and a WIPO/OAPI Workshop entitled ‘Intellec-
tual Property: Tool for Economic, Social and Cultural Development’ in Yaoundé,
Cameroon (October 2004).
243. Specifically, multinational seed companies lobbied governments in Burkina Faso,
Mali, and Côte d’Ivoire to allow the introduction of transgenic cotton. While
Benin declared a five-year moratorium on GM crops and Mali banned their import,
field trials of GM cotton later commenced in Burkina Faso, Senegal, and Mali
with the assistance of USAID, Monsanto, Syngenta, and Dow Agrosciences. See
IUB/BEDE/GRAIN (2002: 6), GRAIN (2004: 18), and GMO Indaba (2005).
244. UPOV (2005).
245. McGown (2006).
246. NGOs involved in these campaigns included GRAIN and RAFI as well as local
NGOs such as Friends of the Earth. See IUB/BEDE/GRAIN (2002).
247. Email message from Yolanda Huerta, Senior Legal Officer, UPOV, 30 January 2008
(on file with author).
248. MSF (2003).
249. Abdel Latif (2005).
250. Bogsch (1992: 87).
251. The pervasiveness of such pressures on national IP officials was affirmed in
author’s interviews with a range of national delegations to WIPO as well as by
current and prior WIPO employees.
252. In general, negotiations for IP-related capacity-building and technical assistance
were handled by representatives of the national IP offices, which are also the key
liaison between each country and WIPO.
253. According to its website, the work of the Africa Bureau is guided by decisions
of WIPO’s member states; the WIPO Permanent Committee on Cooperation for
Development Related to Intellectual Property (PCIPD); a resolution of the Assem-
bly of Heads of State of the African Union (AU); and the priorities set out in
NEPAD. To guide its work, WIPO develops country or region-specific action plans
with individual governments. See http://www.wipo.int/africa/en
254. The topics of the seminars varied from the economic impact of intellectual prop-
erty, effective management and dissemination of intellectual property informa-
tion, support of small and medium-sized enterprises, and training regarding licens-
ing and distribution of royalties. See http://www.wipo.int/africa/en/activities/
capbuild.htm
255. This information was derived from an online database of U.S. activities related to
IP technical assistance, sponsored by the Bureau of Economic and Business Affairs
of the U.S. Department of State. See http://www.training.ipr.gov.
256. Author’s interviews with officials from SNLs and several former Geneva-based
delegates of OAPI countries. When the first ratifications of the WIPO Internet
Treaties occurred in 2002, four OAPI LDCs were among the first members. The
OAPI members that belong to the WCT and their years of accession are as follows:
Benin (2006), Burkina Faso (2002), Gabon (2002), Guinea (2002), Mali (2002),

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Senegal (2002), and Togo (2003). The OAPI members that belong to the WPPT
and their years of accession are: Benin (2006), Burkina Faso (2002), Gabon (2002),
Mali (2002), Senegal (2002), and Togo (2003). Among these countries, only Gabon
is not an LDC.
257. Okediji (2004a).
258. Bogsch (1992: 87) and Anderfelt (1971).
259. Authors’ interviews with Falou Samb and Johnson Ekpere, see notes 135 and 148.
260. EPO activities in the OAPI region included a range of training activities, as well
as support to develop and install hardware and software to aid in retrieving
and evaluating patent documentation and to make patent information readily
available to IP offices and the public. This included funding a link from OAPI to
WIPOnet and to its own database system esp@cenet® and to establish an IT unit to
handle the administration of IP applications. With WIPO, the EPO also completed
the electronic publication on CD ROMs of OAPI patent data since the begin-
ning of its operations. Information on EPO activities in the African region can
be found at: http://www.epo.org/about-us/office/international-relations/projects/
africa-middle-east_fr.html (accessed 1 February 2008).
261. A summary of these activities is provided in EPO (2005).
262. Konstatin Karachalios (2002), the head of the EPO’s technical assistance activities,
notes that ‘EPO activities in the region are closely co-ordinated with INPI to
achieve the best possible results and a regular exchange of information takes
place’.
263. Beyond an initial contribution levied by the Administrative Council upon new
members of OAPI, there is no further membership fee. If necessary to balance the
budget, an exceptional contribution may be required of member states (Article
26).
264. OAPI (2005a).
265. See Article 38 of the revised Bangui Agreement, which provides that the Admin-
istrative Council may pay to each member state the share of any budgetary
surplus that accrues. The Agreement further states that surpluses shall be shared
equally among the states. In so doing, OAPI returns to national governments a
portion of the potential revenues they might have received had industrial property
administration been undertaken at the national level.
266. Okediji (2004a). Importantly, while improvements in copyright protection could
offer potential benefits for national cultural industries, such as increased returns
for local artists, creators, and national folklore, there is also a risk that increases in
the scope and term of protection could simultaneously generate significant social
costs, such as higher prices for educational materials.
267. WIPO (2005a).
268. Beyond the OAPI meetings, some SNL officials may otherwise have met annually
at the WIPO General Assemblies in Geneva.
269. OAPI (2001).
270. Moran et al. (2005) and UNCTAD (2007).
271. Author’s interviews with SNL officials in September 2006 and 2007 in Geneva and
May 2007 in Dakar, Senegal.

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 8
The Implementation Game and
the Variation Puzzle

The TRIPS Agreement reflects a global system in which unequal economic

and political strength limits the capacity of developing countries to influence
the outcomes of their international economic relations. The international IP
rules that TRIPS established in 1994 were far stronger and more intrusive
than any developing countries had previously encountered. To implement the
Agreement, developing countries faced the challenge of undertaking major IP
reforms at the national level.
In the period from 1995 to 2007, the approach developing countries took to
TRIPS implementation varied widely. The timing of reforms differed as did the
use of TRIPS flexibilities. Over half of the WTO’s developing country members
did not meet their 2000 deadline for TRIPS implementation. On the other
hand, over half of the WTO’s least developed country members implemented
TRIPS in advance of their general 2013 deadline. Most developing countries
included a mix of TRIPS-minimum and TRIPS-plus standards in their suite
of IP laws. But the number of countries with TRIPS-plus standards grew
steadily over the post-TRIPS decade. In many instances, the flexibilities for
which governments fought (and are continuing to fight) at the international
level were forfeited at the national level. At the same time, some developing
countries did tailor TRIPS implementation to take advantage of specific TRIPS
flexibilities. Further, some countries covertly tiptoed around implementation
of particularly contested aspects of the Agreement.
The broad scope of TRIPS and the diversity among developing countries
mean that there is no parsimonious explanation for how they behaved with
respect to TRIPS implementation. In this book, I have argued that explaining
variation in TRIPS implementation demands attention to the interplay of:
(a) post-TRIPS global IP debates; (b) international pressures on developing
countries; and (c) national economic and political factors within developing
countries. This final chapter draws together my findings as to why developing
countries drew the line differently. I summarize why so many countries, but

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curiously not all, went beyond TRIPS-minimum requirements, and also why
some countries did indeed use certain TRIPS flexibilities. I also review why
some TRIPS flexibilities were used more than others. Stepping back from the
variation puzzle, I then draw attention to the simultaneous fragmentation
and consolidation of developing country perspectives on IP in the face of
an increasingly complex global IP system. Looking ahead, I preview several
emerging policy debates and trends likely to shape the environment for
ongoing efforts to implement TRIPS and other international agreements. I
conclude by distilling some of the policy implications of this research and
propose five strategies for actors working to ensure IP reforms in developing
countries advance development goals.

8.1. Global IP Politics

After a decade of tense North–South debates, TRIPS emerged a contested

agreement. It was quickly apparent that far from a final deal, TRIPS was rather
the starting point for further negotiations, sometimes in the spotlight of the
international media but more often away from public scrutiny.
Immediately upon the conclusion of the TRIPS negotiations, developed
countries called for faster implementation than the Agreement requires, more
stringent enforcement, and even stronger international IP standards. By con-
trast, developing countries sounded a collective alarm at the scope of TRIPS
obligations.1 They called for the modification of TRIPS to better reflect their
different levels of development and committed themselves to defending,
and where possible expanding, TRIPS flexibilities.2 Developing countries were
joined by critics who questioned the legitimacy of TRIPS, raising concerns
both about the coercive nature of the TRIPS negotiations and the terms of
the final deal. The result was an ongoing, often acrimonious, debate about
the impact of TRIPS on development and the appropriate scope of global IP
regulation.
The TRIPS implementation process became an intense political game. The
playing field was a global political arena in which countries fought to amend,
twist, and duck TRIPS rules. Two teams, one of rich countries and one of
poorer countries, were the key players, flanked by multinational companies
and NGOs respectively. Each team had support from international organiza-
tions and a raft of experts. One team sought stronger IP protection and swift,
compliance-plus approaches to TRIPS implementation, while the other team
pursued a tailored, development-oriented approach to TRIPS implementation
that made use of TRIPS flexibilities. The teams engaged in a globe-wide strug-
gle to influence both international IP rules and the IP reforms developing
countries undertook on the ground.

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TRIPS implementation took place amidst immense changes in the global

economy and the global IP system. Alongside the growing importance of IP
protection to the profit margins of multinational companies in the pharma-
ceutical, software, agrochemical, entertainment, and manufacturing sectors,
the technological possibilities of perfect imitation of many goods with high
IP-content rose. The political and economic power of China, India, and Brazil
was growing; and North Asia boosted its technology production. Between
1995 and 2007, the number of international IP agreements proliferated as
the did the range of international fora where IP issues were discussed.
Changing commercial opportunities and the expansion of social move-
ments concerned about TRIPS drew a multiplying array of players agitating
for or against stronger IP protection into the implementation game. The
contested nature of TRIPS spurred a dynamic interaction between implemen-
tation efforts and ongoing international negotiations where the competing
teams sought to remake the terms of the original TRIPS bargain and assert
their perspectives on the appropriate scope and nature of international IP
regulation. The intensity of the implementation game was amplified by the
fact that decisions in one country might set a precedent for others. Decisions
developing countries took nationally fed back into international negotiations
as governments used them to advance, dispute, or consolidate particular
interpretations of TRIPS rules and flexibilities. At the WTO, for instance, some
developing countries called attention to their national laws against the misuse
of traditional knowledge to bolster their case for also including commitments
to protect such knowledge in TRIPS. Using the same logic, developed countries
worked to secure TRIPS-plus copyright laws in developing countries as a way
to build momentum for the eventual incorporation of such standards into
TRIPS. International IP debates were also harnessed by each team to challenge
or defend controversial IP reforms taken on the ground.

8.2. International Pressures

This book has shown that accounting for variation in TRIPS implementation
demands a nuanced account of power, one that delineates different kinds of
power, specifies mechanisms through which it is expressed, and acknowledges
a range of sources of countervailing power.
International pressure from developed countries and multinational compa-
nies was a consistent and omnipresent part of the context for TRIPS imple-
mentation for all developing countries. Developing country governments
faced intense international pressures to go beyond minimum TRIPS require-
ments, limit their use of TRIPS flexibilities, and introduce IP protection at a
faster pace than TRIPS requires.

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The Implementation Game

Developed countries deployed a suite of economic pressures on develop-

ing countries, using bilateral trade, IP and investment deals, WTO accession
agreements, trade sanctions, the threat of sanctions, and the WTO DSU
process. In particular, developed country governments used the provision
and withdrawal of market access and investment (or the threat thereof) to
make developing countries undertake specific IP reforms they were unlikely
otherwise to have pursued. The United States, for instance, frequently threat-
ened to withhold market access, withdraw trade preferences, or retract foreign
aid unless developing countries changed their IP rules. In some cases, actual
sanctions followed. Multinational corporations with strong IP interests also
worked to link progress on IP reforms to the global reputation of developing
countries and their prospects for attracting foreign direct investment (FDI).
For developing countries, the combination of economic dependence on U.S.
and EU markets and the desire for good political relations with global powers
limited, to varying degrees, their capacity to resist TRIPS-plus pressures.
The impact of the different economic pressure tools on how countries
implemented TRIPS varied as well. Whereas bilateral IP agreements and
threats of sanctions often took years to yield results, TRIPS-plus. WTO acces-
sion agreements and bilateral FTAs incorporated mechanisms to force swift
TRIPS-plus reforms. If developing countries failed to fulfil their IP commit-
ments in FTAs, for instance, the United States could credibly threaten to
withdraw market access benefits. Even for countries not directly subjected to
them, economic pressures reinforced an international policy climate in which
it was clear that taking steps toward stronger IP protection would be favoured
by powerful donors, foreign companies, and trading partners. Still, economic
pressures did not always achieve the anticipated results. The fact that the
terms of TRIPS-plus trade deals differed highlights the need to acknowledge
how the intensity of economic pressures varied by country and how national
politics in developing countries impacted their vulnerability. The focus of
pressure varied according to the economic importance of different developing
country markets (e.g., market size) and the profile of their economies (e.g.,
their role in the export of IP-related goods and services). The pressure was
greatest where markets were most attractive or the threats to corporate profits
were highest.
Importantly, several TRIPS-plus outcomes cannot be explained by reference
to direct economic pressures, most notably where African LDCs went beyond
TRIPS-minimum standards. No African LDC has ever been cited on the U.S.
Special 301 list or subject to a WTO dispute. Further, no such country had a
bilateral FTA with substantive TRIPS-plus obligations at the time TRIPS-plus
laws were put in place. TRIPS-plus outcomes in these countries highlight the
need for, a more nuanced approach to power, one that considers the role of
ideational pressures.

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 The Implementation Game and the Variation Puzzle

Ideational pressures were a subtle but important complement to economic

power in generating variation in TRIPS implementation. Ideational power
operated through efforts to influence, build, or alter institutional capacities,
ideas, and discourses. Both teams of players in the implementation game used
ideational power to reframe global and national IP debates, transform national
expertise and knowledge, and persuade developing country officials. To exert
ideational power, governments, industry, international organizations (IOs),
and NGOs used an array of tools, including training, research, monitoring,
capacity-building, international conferences, public education, and outreach
to international media. The ability of players to so exercise ideational power
derived from factors like their technical knowledge of IP issues, access to
information and financial resources, and links to communities of scholars and
activists with shared assumptions and preferences.
An intense struggle to dominate international perceptions about the appro-
priate terms of TRIPS and global IP regulation ensued. IP-holding corpora-
tions, developed country governments, and IOs, such as WIPO, used training,
research, and outreach to frame stronger IP protection as vital for economic
development. The WTO’s Trade Policy Review process and TRIPS Council
meetings, together with bilateral and industry monitoring initiatives, rein-
forced a global policy environment that favoured rapid TRIPS compliance,
strong enforcement, and TRIPS-plus standards.
During the Uruguay Round, TRIPS proponents had promoted IP protection
as desirable in its own right, most notably as a stimulant for foreign direct
investment (FDI), technology transfer, and innovation, and as a quid pro quo
for trade concessions by developed countries. In the post-TRIPS political envi-
ronment, the pro-IP team sustained the argument that IP and development
goals were mutually supportive, but also went further. The push for ever-
stronger IP protection was re-packaged as a precondition for political and
economic benefits that went far beyond the trade arena. The pro-IP team
now framed TRIPS-plus IP protection as the new basis for bargaining between
developed and developing countries. This reinforced the compliance-plus
political environment for TRIPS implementation. To signal their commitment
to doing the ‘right thing’ in the global economy, many developing country
governments had already embarked on a process of mimicking developed
country policies on a range of issues, often without efforts to adapt them
to national needs or to consider alternatives. Acquiescence to developed
countries on IP issues was frequently a similar reputation-building gesture.
Even in developing countries that were more sceptical, high dependence on
access to developed country markets and development assistance reduced
their perceived leeway for resisting TRIPS-plus pressures.
To challenge the IP-centric discourse, the pro-development team also
used ideational tools. Their counter-discourse was a central part of the

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implementation game: by maintaining a question mark over the fairness

and legitimacy of TRIPS, and keeping alive the debate about the Agreement,
the pro-development team hoped to make it more politically difficult for
developed countries to push for early or strong implementation and enforce-
ment. In addition, developing countries sustained a critical discourse about
TRIPS in order to maintain a tactical bargaining chip in broader multilateral
trade negotiations. By insisting that TRIPS was a bad deal (and that devel-
oped countries had not yet delivered on the trade concessions promised in
exchange), developing countries hoped to bolster their negotiating power to
extract concessions and resist pressures from developed countries. The idea
that TRIPS already represented a deal that had gone ‘too far’ was also used to
contest the push for TRIPS-plus commitments in bilateral and regional trade
arrangements, and at WIPO.
Critical discourse about TRIPS was also considered vital to defending
and affirming the flexibilities already in TRIPS (such as the right to use
compulsory licensing), expanding those flexibilities (such as extensions to
implementation deadlines), and amending the agreement to better protect
their own intellectual assets (such as traditional knowledge associated with
genetic resources). Even those developing countries that went beyond TRIPS-
minimum standards in some aspects of implementation objected to the bind-
ing nature of TRIPS rules upon their policy options. They wanted to define and
defend space within global regulatory frameworks to devise and implement
policies necessary for national development.
Although NGOs and IOs such as UNCTAD and the WHO wanted to counter
economic pressures and challenge the influence of pro-IP discourse on the
media and public opinion, they could not match the financial resources
and institutional capabilities of their opponents. The pro-development team’s
efforts to advance a countervailing agenda in favour of a tailored approach
to TRIPS implementation and more balanced global IP rules did, however,
yield important victories. Their first major success arose from their atten-
tion to the impact of TRIPS on the affordability and availability of essen-
tial medicines. In 2001, an international backlash provoked multinational
pharmaceutical industries and the U.S. government to withdraw pressures on
South Africa to alter its IP laws. An important lesson was that developing
country diplomats learned was that international media attention and civil
society allies could boost their political scope for using TRIPS flexibilities.
Determined to defend developing countries from pressures against the use
of TRIPS flexibilities related to compulsory licensing of drugs and data pro-
tection, the pro-development team also fought for and won the WTO’s 2001
Declaration of the TRIPS Agreement and Public Health (the Doha Declara-
tion), which confirmed and clarified the existence of flexibilities within the
TRIPS Agreement. In 2004, the call by developing countries for a WIPO Devel-
opment Agenda was another successful effort to reframe global IP debates.

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By the end of 2007, the issue of development was firmly back on the global
IP agenda.
Throughout the implementation game, IOs were active in both the pro-
IP and pro-development teams. Equipped with distinctive mandates from
member states, IOs used ideational power to project competing institutional
priorities (i.e., in favour of public health, development, food security, or
stronger IP protection). In so doing, IOs sometimes expressed the power of
particular countries or interest groups. In some instances, they also advanced
their own bureaucratic agendas or those of particular senior staff. The sources
of IO influence included their legal and technical authority on IP issues,
control over capacity-building resources, and ability to convene decisionmak-
ers and define meeting agendas. Alongside developed country governments,
companies, industry associations, and NGOs, IOs competed to use capacity-
building to affect how developing countries implemented TRIPS. Here, WIPO
emerged as a central actor. Urged on by the pro-IP companies that finance
the majority of its budget, WIPO’s capacity-building activities in developing
countries generally focused on early and strict TRIPS compliance. By contrast,
advice and technical assistance from IOs such as UNCTAD and the WHO
prioritized development and health issues, and promoted the use of TRIPS
flexibilities. In each case, the relationship between IOs and national govern-
ments was channelled through particular ministries and agencies. At WIPO,
for instance, the main interlocutors were national IP offices, whereas WHO’s
main partners were health ministries.

8.3. The National Dimension

While developing countries usually worked collectively at the international

level to advance their views on the reform of TRIPS, they largely stood alone
when implementing TRIPS at the national level. Despite the efforts of the
pro-development team to bolster developing country confidence in using
the TRIPS flexibilities, the ability of countries to absorb that assistance and
resist pro-IP pressures varied. Further, developing countries did not respond
in identical ways to similar international pressures and such pressures did not
always achieve the desired results. While, in many countries, international
pressures clearly did impact the timing and strength of IP reforms, they cannot
explain the range of variation, including for example, help explain why some
countries did make use of TRIPS flexibilities, why the use of flexibilities varied
by sector, or why some countries succeeded in delaying TRIPS implementa-
tion. To account for this variation, consideration of national circumstances
and politics is also required.
In spite of the TRIPS-plus global political environment, several larger devel-
oping countries had sufficient economic independence and support from

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domestic interest groups to resist some TRIPS-plus pressures. In addition, in

some countries, changing economic opportunities and the reconfiguration of
domestic industry interests gave rise to national lobbies in favour of stronger
IP regulations in certain areas in concert with international pressures.
Internal political dynamics within developing countries also modified the
influence of international pressures on how governments approached TRIPS
implementation. Three elements of national politics were particularly rele-
vant: government capacity on IP-related matters, the degree of public engage-
ment with governments regarding TRIPS implementation and IP reforms,
and government coordination with respect to domestic and international IP
decision-making. Depending on the country at hand, these elements either
amplified or diminished the influence of international power pressures on
government decisions.
The technical expertise and organization of government institutions with
respect to IP decision-making made a difference to how countries responded
to TRIPS commitments. While a handful of developing countries emerged
from the TRIPS negotiations with specialized knowledge of IP regulation, most
only began the process of building such expertise during the implementation
process. Most developing countries still lacked critical, development-oriented
expertise on both public policy and technical/legal considerations at the time
TRIPS implementation decisions were made. Only a few developing countries,
such as Brazil, Argentina, South Africa, and India, had access to national
or regional experts capable of tailoring the implementation of international
IP obligations to foster national development objectives. Where IP experts
were available in developing countries, they were usually part of the pro-IP
community working for national IP offices, WIPO, multinational companies,
or law firms with multinational clients.
National institutional arrangements also mattered. Within developing
countries, decision-making on TRIPS implementation was usually left in the
hands of technocrats in IP offices who were sympathetic to the push for
stronger IP protection and separated off from broader national development
policy debates and strategies. The deference of governments to legal experts
in IP offices resulted in a concentration of power with respect to IP decision-
making.
In most developing countries, governments also formally delegated signif-
icant authority to national patent and copyright offices. Such offices were
simultaneously responsible for devising the legislative agenda for compliance
with international treaties, policy advice, IP administration, adjudication of
disputes, IP promotion and outreach, participation in international norm-
setting negotiations, and securing technical assistance and capacity-building.
The consolidation of expertise in IP offices in the absence of effective oversight
from other parts of government exacerbated already weak public account-
ability. The strength of IP offices was reinforced by limited coordination on

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IP matters across government ministries, either with respect to national IP

reforms or positions taken in international fora. Few IP offices had processes
for drawing on national expertise outside government such as from con-
sumers, local innovators, or users of the IP system.
The IP community, where one existed within developing countries, tended
to be trained narrowly in the technicalities of IP law, and had little exposure
to broader public policy considerations. The result was an approach to IP
decision-making frequently driven more by concerns for compliance with
international law and by the expectations of trading partners and donors than
by national development priorities.
In the context of weak IP expertise, concentrated decision-making, and
policy-making vacuums in most developing countries, donor efforts to build
capacity and provide technical advice had a significant impact on TRIPS
implementation. Most national IP offices relied heavily on financing from
external sources, namely fees paid by foreign IP rights holders and grants
from international donors, such as developed country IP offices and WIPO.
At the national level, it was usually IP offices that governments charged with
negotiating technical assistance for implementing TRIPS and modernizing
IP protection. Not surprisingly, the majority of aid and support from the
larger IP donors, especially WIPO, was subsequently directed to national IP
offices. The consistent supply of training, advice, and institutional support
from such donors to IP offices bolstered the latter’s dominance in national
IP decision-making and reinforced a compliance-oriented approach to
implementation.
Countries with the lowest technical capacity on IP were particularly vul-
nerable to pro-IP capacity-building. In cases where government institutions
were generally weak or where elites were preoccupied with their own power,
attention to coherent policymaking and implementation was minimal – thus
heightening their vulnerability to international donors keen to ‘fill the capac-
ity gap’ as a way to advance their particular objectives. Even in countries
with greater IP expertise, officials generally had a positive disposition toward
stronger IP protection. In these cases pro-IP capacity-building served to rein-
force the dominance of technocrats in national IP debates and to consolidate
a compliance-plus approach to TRIPS implementation. Over the period under
study, IP capacity was strengthened in many developing countries, but the
focus continued to be on building a proficient cadre of IP technicians rather
than expertise and processes that would place IP laws in the context of public
policy goals and development. Given the limited salaries and professional
prospects in many developing countries, the influence of donors was not just
institutional but also personal. Training, seminars, and international confer-
ences provided attractive incentives for many developing country IP officials
to advance the agenda of donors in their countries and, at the same time,
were tools for the continual socialization of officials into the international

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community of pro-IP professionals.3 In some cases, officials were persuaded by

arguments in favour of stronger IP protection, and in other instances officials
perceived that they had little choice.
Even though NGOs and IOs, such as UNCTAD and the WHO, provided
alternative advice and training to IP offices and to other parts of government,
their budgets were far smaller than those of WIPO, industry, and pro-IP
bilateral donors. Further, the pro-development team’s efforts to encourage use
of TRIPS flexibilities often came after the most significant pieces of legislation
related to implementation had already been passed. That said, there were
important cases where technical advice and legislative assistance from the pro-
development team did result in the use of TRIPS flexibilities by developing
countries. In addition, technical support from the pro-development team
helped several developing countries defend the inclusion of particular TRIPS
options and safeguards in their legislation against political attacks.
The existence or absence of a broader policy framework for IP regulation
also made a difference to TRIPS implementation decisions. Where govern-
ments had the capacity to filter their decision-making on TRIPS implemen-
tation through a broader national policy framework, or through consultative
processes with the parliament or interest groups, a more tailored approach to
TRIPS implementation emerged. Most developing countries, however, lacked
systematic processes for gathering expert and stakeholder input into their
trade or IP decision-making.4
Those countries that accumulated institutional capacity and technical
expertise on TRIPS during the negotiations (such as Argentina, Brazil, India,
and Peru) were among those who demonstrated the greatest determination
to tailor their national implementation efforts to address their development
priorities, and to defend these actions in the face of external pressure. Among
developing countries, Brazil stood out for having a strategic approach to TRIPS
implementation based on a broad policy framework on development and
industrial priorities. India has also had several decades of informed discussion
about appropriate IP policies. More recently, after international pressure on
South Africa to revise its Medicines Act provoked a national public outcry,
it then helped stimulate a public policy framework and processes for future
national debate on IP issues.
The degree of engagement by national parliaments and interest groups in
the process of IP reform, and the responsiveness of governments to them,
also impacted TRIPS implementation outcomes. Interest groups, both those
in favour and those against stronger IP protection, sometimes enabled or
pushed developing countries to resist external pressures. Developing country
governments with the greatest access to expertise, receptiveness to citizen
input were able, at the margin, to counterbalance the impact of compliance-
plus pressures. In countries such as Argentina, Brazil, India, and South Africa,
for instance, interest groups lobbied national parliaments and governments

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agencies in response to national social challenges (such as high rates of

HIV/AIDS infection) or to protect national industries (such as generic drugs
industries). New interest groups also emerged with changing economic oppor-
tunities (such as the potential to conduct ‘outsourced’ research for multi-
national R&D companies). The role of local civil society groups and NGOs
when developing countries in national IP debates varied. In some countries,
NGO interest began with concerns about biopiracy and then moved toward
issues such as access to medicines and educational materials. National debate
on IP laws sometimes helped to generate and build capacity on the public
policy implications of IP laws. In addition, interest group politics impacted
the degree of enforcement governments pursued. In many cases, governments
knew that tackling piracy and counterfeiting would impact on poor commu-
nities that relied either on cheap copies of foreign goods or on jobs linked to
copying and imitation. By clamping down on piracy and counterfeit products
and industries many governments would risk losing the support of national
voting constituencies while the primary beneficiaries would be foreign com-
panies. Developing country responses to TRIPS were also influenced by the
broader politics of national trade policymaking. In the context of pressure
for TRIPS-plus trade deals, the way governments made decisions on trade
policy, and which, if any, interest groups they consulted in this process had
important implications for IP laws and policies.
Within developing countries, the line between national and interna-
tional interest groups was often blurred. ‘National’ interest groups often had
alliances with international counterparts that shaped their perspective and
activities. International NGOs and multinational corporations, for instance,
forged ties with local affiliates, partners, and scholars. In many countries,
‘domestic’ industry groups had strong links with international lobbies work-
ing to advance their interests on the national political stage. International
stakeholders undertook a range of activities within national borders as well –
locating part of their activities in a country, engaging directly in national
politics, pursuing legal challenges in national courts, and providing technical
assistance. In some cases, national actors were in fact direct subsidiaries or
members of international lobby groups or NGOs (such as the Business Soft-
ware Alliance and Oxfam). Local scholars engaged by national governments
to provide advice to regarding TRIPS implementation were sometimes simul-
taneously employed by foreign companies, NGOs, law firms, or IOs. Many
national IP law firms and experts had multinational firms as clients, and
represented their views in national IP debates. In some countries, national
NGOs had interests that extended beyond national IP reforms and were part
of transnational campaigns to influence international IP regulations.
The final aspect of national politics that influenced variation in TRIPS
implementation was the degree of coordination among government institu-
tions. In some countries, sporadic debates occurred between IP offices and

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ministries of health, culture, or agriculture on the use of TRIPS flexibilities, but

only occasionally did this spur collaboration in favour of their use. In most
countries, mechanisms for internal coordination were absent, which eased the
way for TRIPS-plus pressures to sway IP offices and overcome internal dissent.5
Developing country diplomats working on IP issues in Geneva frequently
expressed frustration with IP reforms underway at home that sacrificed TRIPS
flexibilities. In the absence of instructions from capitals, developing country
diplomats sometimes forged collaborations with international NGOs to gal-
vanize strategies for international negotiations and explore options for TRIPS
implementation. In some cases, these individuals became influential players
in global IP politics. Few Geneva-based diplomats succeeded, however, in
bridging the communication gap with their capital-based counterparts from
the same ministry, let alone overcoming the challenges of communication
with officials in other ministries or in national IP offices. This lack of coor-
dination worked to the advantage of those in favour of stronger IP protec-
tion. Armed with the resources to provide an extensive range of training,
advice, and seminars at the national and regional level, donors such as WIPO
bypassed more critical Geneva-based diplomats and focused their attention on
national IP offices. Similarly, when contentious issues arose in international
negotiations, the pro-IP team often sought to diffuse opposition by com-
municating with trade and foreign affairs ministries in capitals, sometimes
calling on them to rein in diplomats in Geneva who expressed critical
perspectives.
The degree to which governments coordinated their external and domestic
affairs was particularly relevant where countries delegated significant respon-
sibility for IP matters to the regional level. While over thirty African countries
belonged to regional IP organizations, most members lacked the capacity to
hold their secretariats accountable. Over time, delegation of technical matters
relating to the granting of IP rights to the regional level also meant that
national IP offices did not accumulate the expertise necessary to monitor,
guide, and evaluate the work of regional secretariats. In francophone Africa,
for instance, the combination of limited national capacity on IP issues,
delegation to a regional organization over which members exercised little
oversight, and the pressures of capacity-building from international donors
resulted in a TRIPS-plus outcome. The scale of capacity-building needs among
governments in the region and the IP policy vacuum at the national level
gave donors considerable scope to influence national and regional IP officials.
By consistently financing improved infrastructure, donors also diminished
the ability of OAPI members to claim, as other countries had, that they
lacked the resources to implement TRIPS quickly. Governments in the region
were further swayed by the promise of a far larger bargain – that strong IP
protection would bring reputational gains that could be used to secure foreign
aid, investment, and trade deals.

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8.4. Further Findings on Variation

This study has generated several specific findings regarding why countries
used TRIPS flexibilities in one area of IP (such as copyright) or another (such
as patent). The limited use by most developing countries of flexibilities in
the copyright area was directly linked to the technical assistance and leg-
islative advice offered by WIPO, which was a particularly dominant source
of capacity-building on these issues. Many countries adopted wholesale draft
laws prepared with the close assistance of WIPO, which based its interventions
on model laws that did not fully reflect TRIPS flexibilities. In addition, the
implementation of TRIPS-plus copyright provisions in some countries fol-
lowed their ratification of TRIPS-plus multilateral treaties such as the WIPO
Internet Treaties and bilateral pressures from the United States to implement
them (and to sign the treaties where countries had not already done so).
In the area of plant variety protection, many developing countries expressed
interest in adopting sui generis approaches. In practice, however, governments
were constrained by limited expertise, institutional capacity, and experience
in this area. In lieu of devising completely new laws, most countries were
persuaded by technical assistance providers to adopt or adapt the ‘off-the-
shelf’ solutions supplied by the Union for the Protection of Plant Varieties
(UPOV). Many governments had also signed bilateral trade deals in which
they committed to joining the UPOV system.
In the area of patents, the use of flexibilities was perhaps most widely
debated. The interest of multinational pharmaceutical companies in develop-
ing country actions was particularly strong in the areas of data protection,
exclusive marketing rights, and patent-related flexibilities, such as the use
of compulsory licensing. Here, developing countries faced a full suite of
economic and ideational pressures from the pro-IP team. In response, the pro-
development team mounted countervailing pressure in favour of the use of
flexibilities by providing technical assistance, campaigning to promote the
political space for countries to use flexibilities and defending the rights of
countries that had chosen to incorporate them. The intensity of the struggle
over medicines and public health help explain why the use of the patent-
related flexibilities in TRIPS was particularly varied.
Finally, the timing of reforms impacted the use of TRIPS flexibilities. In
general, those countries that implemented reforms before 2000 omitted the
use of many flexibilities in their laws, though some later revised their laws
in this respect. After 2000, growing global IP debates produced more varied
results. On the one hand, pressure on some countries via bilateral TRIPS-plus
trade deals intensified. On the other hand, the pro-development team was
now better organized to provide alternative advice and expertise to countries
on their options with respect to TRIPS implementation, which some countries
sought out and used in their decision-making.

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8.5. Developing Countries in Evolving Global IP Debates

As TRIPS implementation advanced, there was a consolidation of developing

country discourse in global IP debates. As the pro-development team became
increasingly concerned about the rise of TRIPS-plus agreements at the bilateral
level and at WIPO, diplomats, NGOs, and academics convened numerous
meetings to consider appropriate responses to the ‘forum shifting’ strategy
of the pro-IP team. A range of NGOs and scholars published papers to raise
critical awareness of the politics of IP capacity-building, the challenges posed
by bilateral trade agreements, and the push for TRIPS-plus standards. Together,
these critics worked with a core group of diplomats to expand and coordinate
the pro-development team’s efforts beyond the WTO, including through the
call for a WIPO Development Agenda.
With the proliferation of fora in which IP policy issues were discussed,
fragmentation and contradictions in developing country discourse emerged
as well. In the face of multiple negotiating processes, the coordination among
and within developing countries often faltered.6 There was weak commu-
nication among the many diplomats and branches of national government
(foreign affairs, trade, environment, health, industry) that engaged with the
growing array of international IP-related negotiations. While countries such as
Brazil and Argentina expressed broadly consistent views across international
fora, most governments could not coordinate so effectively. As proposals for
strengthened IP protection emerged at WIPO, many developing countries
expressed positions that contradicted the spirit of their statements at the
WTO.7 Some governments articulated positions on IP at UNESCO, FAO, and
CBD meetings that diverged from those advanced by their negotiators at the
WTO. A core reason for this was that government delegates to the WTO and
other international fora often hailed from distinct ministries. In Geneva, for
example, many developing countries maintained two separate missions, one
for the WTO and one for the United Nations. Even where representation was
combined in one mission, delegates to WIPO were rarely also those responsi-
ble for TRIPS. Diplomats covering TRIPS usually represented either the Depart-
ment of Trade or Foreign Affairs, while representatives of national IP offices
flew in periodically to WIPO meetings. The limited ongoing engagement
of Geneva-based developing country diplomats in WIPO’s work constrained
effective and substantive engagement on new negotiations. Indeed, for most
IP officials, the primary purpose of travel to WIPO meetings was to secure
further capacity-building.
The fragmentation among developing countries was exacerbated by the
growing number of bilateral IP agreements. While most developing countries
continued at the multilateral level to question the legitimacy of TRIPS, those
engaged in bilateral negotiations frequently used TRIPS as a defence against
pressures for TRIPS-plus standards. By appealing to TRIPS as the maximum

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international standard, they implicitly reinforced its legitimacy. Further, many

LDCs, generally the least informed at WIPO meetings and the most dependent
on WIPO capacity-building, frequently sided with the Secretariat and devel-
oped countries in supporting the promulgation of new TRIPS-plus multilateral
agreements. Several African LDCs were, for instance, among the strongest
proponents of a proposed broadcasting treaty and were among the first sig-
natories of WIPO’s 1996 Internet Treaties.8
Looking ahead, with billions of dollars at stake, the determination of
the most powerful states to defend and advance their share of the global
knowledge economy for key commercial interest groups will continue to
translate into intense bilateral pressures on developing countries to defect
from developing countries coalitions and/or adopt positions preferred by key
developed countries and industries. Key strategies in these efforts will include
promises of more IP assistance, informal diplomatic pressures, and efforts to
sideline Geneva-based diplomats in favour of less politically aware technocrats
in capitals.
As a greater number of developing countries acquire stronger national IP
standards and move up the technological ladder, developing country coali-
tions may further fragment. Already, developed countries question the cred-
ibility and sincerity of some developing countries fighting against stronger
international rules, particularly where governments have already eschewed
flexibilities or adopted TRIPS-plus standards in their national laws. Further, as
some developing countries become more active users of the global IP system
and their companies generate economic returns, their support for agreements
such as WIPO’s Patent Cooperation Treaty (PCT) is likely to mount.9 In 2006,
developing countries comprised almost 80 per cent of the members of the
PCT, but still only accounted for 8.2 per cent of all international patent
filings.10 (This small percentage included the patent filings by Brazil, China,
India, Malaysia, Mexico, Republic of Korea, Singapore, and South Africa,
among others. LDCs made very few filings). That said, WIPO estimated in
2007 that countries in North Asia (most notably China and South Korea)
issued over 20 per cent of the world’s patents and that the share of several
of the stronger developing countries will continue to rise.11
Even with such changes, we can still expect most developing countries
to continue arguing against binding international IP obligations that would
disproportionately bolster richer countries. At the WTO, their critical dis-
course about TRIPS and calls for more flexibility will persist so that they can
use IP protection as a bargaining chip in ongoing trade negotiations. More
broadly, developing country diplomats will continue to refer to TRIPS as a
symbol of imbalances in the rules governing the global economy. ‘Southern
solidarity’ on TRIPS will remain a central theme in the larger political effort of
developing countries to reform those rules and address the inequalities they
generate.

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Looking ahead, many of the debates that emerged when TRIPS imple-
mentation began will remain in play. Debates on compulsory licensing
will likely arise each time a country attempts to use this mechanism to
ensure low-cost access to essential medicines, technologies, or other knowl-
edge products. With the introduction of patent protection for pharmaceu-
tical products in India, groups like MSF express grave concerns about the
cheaper, generic medicines. They also highlight that many second-line drugs
for the treatment of HIV/AIDS now face patent protection.12 Meanwhile,
concerns about the skewed allocation of investment in scientific research
remain (i.e. a small portion of medical research is devoted to addressing
neglected diseases most prevalent in developing countries). Beyond pub-
lic health, there is growing interest in questions regarding access to infor-
mation and educational materials.13 The issue of the relationship between
TRIPS and the Convention on Biological Diversity remains unresolved as
does the call by developing countries for amending TRIPS to better protect
their genetic resources and traditional knowledge against misappropriation
and/or uncompensated use. The support among a sub-set of developing
countries for expanded rules on geographical indications signals the emerg-
ing nuances and tensions in developing country positions on IP regula-
tion. Whereas developing countries still widely express discomfort with the
terms and objectives of TRIPS, and the rationale and assumptions under-
pinning IP regulation more generally, some simultaneously support more
expansive IP protection in certain areas. At the same time as many devel-
oping countries challenge developed countries to provide compelling evi-
dence of the links between IP and development, many appear convinced that
stronger IP protection will boost the growth of their creative and cultural
industries.14 Across developing countries, there are debates between those
who seek new IP protections for traditional knowledge and those who seek
to defend such knowledge against IP claims from others. There are those
who believe traditional knowledge should properly be considered in the
public domain and others who argue in favour of deference to customary
laws for the management and sharing of knowledge. Some groups within
developing countries push for more open access to knowledge, information,
and educational materials, while others are keen to find ways to protect local
music, textiles, and designs from unauthorized use and copying by foreign
producers.
Several new themes are also emerging. There is growing interest in collabo-
rative approaches to stimulating innovation and recognition of the impor-
tance of a public domain of ideas, knowledge, and technologies in that
respect.15 In addition, global concerns about climate change have stimulated
interest in the intersection of IP rules and the effort to promote transfer of
sustainable and energy-efficient technologies.16

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Finally, we can expect mounting pressures on developing countries in the

coming decade to improve the international framework for IP enforcement
and their performance at the national level. As debates on competitiveness
and fairness in the global economy intensify, so too will the concerns of major
multinational corporations about piracy and counterfeiting in developing
countries. The level of effort required to secure effective IP protection varies
significantly in practice from country to country as does the scale of piracy
and counterfeit challenges at hand. There will be debate on the fiscal implica-
tions for developing countries of greater IP enforcement effort, and the public
health and safety impacts of some counterfeit goods. Developing countries
will be pushed to commit more resources to public awareness-raising and to
improve coordination of a broad range of government ministries (e.g. trade,
industry, culture, and agriculture) and domestic regulatory institutions (e.g.
the judiciary, police, copyright and IP offices, collective rights management
organizations, and customs and taxation authorities).
To date, the effectiveness of IP enforcement in developing countries has
varied significantly depending on the government agencies involved and
the distribution of responsibilities and leadership among them. Some gov-
ernments are proactive, adopting specific efforts to improve coordination
among law enforcement agencies and to partner with private industry. In
most cases, the push toward stronger enforcement is the result of targeted
pressures from the United States, Japan, and Europe.17 Even in countries with
the greatest institutional and administrative capacity and resources, political
will to improve enforcement is limited.18 Importantly, the bureaucratic chal-
lenges of improving the efficiency of their adjudication and enforcement of
IP rights are linked to far broader challenges. In most developing countries,
the judicial system is slow, disorganized, and under-resourced for a whole
range of national laws – not just those related to IP.19 Tasks such as training
enforcement personnel and courts to address IP matters are likely to take
many years. In many developing countries, the absence of a prior culture of
private IP rights increases the enormity of the task of raising public awareness
about piracy and counterfeit goods. For most countries, building enforcement
capacity will be a major institutional task, requiring political will, training,
new infrastructure, and coordination among many different departments.20
In the meantime, many governments simply ignore technically illegal prac-
tices. Given the scale of public health problems they face, a number of African
governments, for instance, turn a blind eye to the illegal import of generic
versions of medicines patented in their countries, unless there is some addi-
tional justification (such as safety risks).21 As noted above, some governments
similarly overlook counterfeiting activities because they provided an impor-
tant source of employment for otherwise poor segments of the workforce.22
In China, where responsibility for IP enforcement falls to local government

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offices and courts, many officials believe it is not in the economic interest
of their constituency to crack down on piracy.23 In countries challenged by
extensive corruption in government, institutions responsible for the collec-
tion of licensing fees and royalties also face significant obstacles.24
In the coming decade, the challenge for developing countries will be to
devise a coordinated and proactive development-oriented strategy for the
range of multilateral and bilateral discussions on IP enforcement, and also for
cooperative initiatives with governments and with industry. Few developing
countries will want to risk appearing pro-piracy. Instead, their priority will be
to keep the focus of the enforcement debate on the fairness and appropriate-
ness of the international IP norms to be enforced.

8.6. A Development-Oriented IP Agenda

The analysis advanced in this book suggests several political strategies that
would help developing countries to exploit and expand their room for
manoeuvre in the implementation of TRIPS and other international IP com-
mitments, and to advance a more development-oriented system of global
rules for IP protection.25 To conclude this book, I outline five strategies,
starting with a focus on the importance of coalitions at the global level to
constrain and manage coercive pressures, followed by improved cooperation
among developing countries to advance their own agenda at the interna-
tional level, and then finally looking to actions that should be considered
within developing countries. A holistic, long-term strategy will demand well-
coordinated actions through time on several levels by different coalitions of
actors.
First, alliances at the multilateral and regional level among developing
country governments, IOs, scholars, and civil society groups that share
development-oriented perspectives will be critical. The ability of develop-
ing countries to use, defend, and expand TRIPS flexibilities will depend on
coordination and information exchange across the range of international
processes where IP issues are discussed. The experience of the past decade has
shown that international NGO campaigns questioning the legitimacy of the
TRIPS-plus agenda also helped to mitigate pressures on developing countries.
Within developed countries, collaborative efforts by the public interest IP
community to push for a more development-oriented perspective in their
own government agencies will be vital, particularly among officials charged
with trade and IP. So long as developed country officials responsible for IP
remain captured by a narrow set of corporate interests, the prospect of a more
balanced global IP system will remain weak.
Coalitions to promote progress on the WIPO Development Agenda will be
central to promoting a more balanced, pro-development global IP system.26 A

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core action item must be to explore collective strategies for improving the
accountability of the secretariats of the WTO, WIPO and regional organi-
zations such as OAPI and ARIPO to their members and to public interest
considerations. This in turn calls for careful assessment of how to change
the political and financial incentives, and internal cultures at play within
each organization. It should also prompt the creation of new mechanisms for
consultation with a broader range of external stakeholders than traditional
pro-IP constituencies. For each of these IOs, reform will rely on the commit-
ment by developing countries to more consistent and critical engagement in
their work. Participation in international processes is most difficult for those
countries with least diplomatic capacity and particularly those that depend
on IOs to finance their travel to international meetings. In this context, the
more active and better-resourced developing countries must devote greater
effort to listening to and exchanging views with a broad range of countries,
particularly the poorest countries. Across the global IP system, the presence
of a range of public-interest NGOs as observers to international meetings
provides developing countries with potential allies for many reforms.
Second, advancing a pro-development agenda for national and interna-
tional IP regulation will demand quantitative and qualitative research and
data on the circumstances and needs of countries as well as the relationships
between particular IP provisions and public policy goals. Methodologies to
assess the impact of IP laws on different policy goals are urgently needed, as
are benchmarks to help governments discern the appropriate level of IP pro-
tection given their socio-economic circumstances and objectives in different
sectors. At present, the robustness of the IP reform process in developing coun-
tries and of debates at the international level is severely undermined by the
lack of empirical data to support assertions on all sides of the debate. There is
also a need for the development of benchmarks and indicators against which
governments, donors, and IOs can undertake evidence-based evaluations of
their IP-related capacity-building and its contribution to development.
Third, better coordination within national governments would help ensure
that IP policies and laws are designed and implemented in ways that support
national goals, particularly in the areas of innovation, public health, educa-
tion, and technological development. IP decision-making must not be viewed
as a technical issue that can be delegated to a small, technocratic community
of IP officials, lawyers, and experts (whether IP proponents or sceptics) or to
narrow commercial interests. Top priorities for developing countries should be
to correct the relative autonomy of their IP offices in decision-making about
national IP regulation and to instead embed that decision-making within a
broader, development-oriented public policy framework.
The prospect for development-oriented IP reforms will be highest where
governments have processes for interagency coordination and public con-
sultation. While there have been a growing number of steps in the right

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direction, most developing country governments still lack effective systems

for internal coordination within government on IP decision-making. Further,
there is minimal engagement of legislative branches in IP decision-making
and limited consultation with non-government stakeholders and experts in
the assessment and promulgation of IP policy and laws.
Building policy expertise on IP issues (rather than just legal expertise)
is a multidisciplinary task that should involve civil society, industry, and
academic analysts active in the fields of IP, investment, innovation, devel-
opment, science, and technology. The full range of government agencies
charged with public policy in areas impacted by IP reforms must participate
as well (e.g., health, education, cultural, agricultural, and industrial agencies).
Consultations should also include the full range of groups potentially affected
by the outcomes of IP reforms (e.g. farmers, consumers, authors, small and
medium-size enterprises, universities, musicians, artists, scientists). Exper-
tise, experience, and analysis from these stakeholders would help countries
design IP laws and policies that reflect the diversity of public policy goals,
whether fostering innovation, promoting technology transfer, supporting cul-
tural industries, ensuring affordable access to knowledge, or expanding value-
added employment and export industries. In devising consultative processes,
a core challenge is the lack of capacity on IP issues within many relevant
stakeholder groups. The influence of some interest groups will not necessarily
match the role they deserve in the determination of appropriate IP policy.
The business sector may, for instance, be better organized to engage in con-
sultative processes than consumers, educators, or health-care advocates who
may require help to have their voice heard. In the area of copyright, relevant
stakeholders include students, student and academic authors, academic users,
libraries, universities, and commercial publishers. In the area of patents, they
include domestic industries, plant breeders, farmers, providers of health ser-
vices, patent attorneys, and patients.
Fourth, to advance development-oriented approaches to TRIPS implementa-
tion and IP reforms more generally, many developing countries will continue
to need advice and training on international IP obligations, the options
available to them, and the costs and benefits of these options in light of
their development goals. The political nature of capacity-building demands
that developing countries better negotiate the terms of assistance to ensure
its form and content reflect their needs and to avoid conflicts of interest
that may arise with advisors linked to industry. Progress in this respect will
depend on greater efforts by developing country governments to identify and
articulate their goals in the area of IP policy and their needs with respect to
IP technical cooperation. Core priorities must be to acquire assistance that
helps countries devise policy frameworks for the consideration of IP reforms,
conduct impact assessments, establish structured inter-ministry/department
coordination, build research capacity on key issues of national interest,

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harness the IP system for national development, and consult broadly with a
range of stakeholders. Greater acknowledgement of donor biases would help
governments manage capacity-building so that it bolsters rather than erodes
their ability to filter international pressures. At the international level, a set of
principles and guidelines for IP-related capacity-building would help donors
and recipients better negotiate capacity-building.27 Such principles could also
be employed as standards against which civil society organizations could
monitor and assess the work of the various providers of capacity-building.
Finally, the debate on IP policy reform ought not to rely solely on assess-
ments of the past, but also on scenarios for the future. Over the past decade,
there has been a rapid expansion of collaborative models for promoting
innovation and sharing knowledge. The evidence that some aspects of the
IP system are constraining rather than enabling innovation and creativity has
already prompted many scientists, research companies, and artists to explore
new business models, incentive systems, and public–private collaborations.
As the knowledge economy grows, government agencies, scientists, public-
interest groups, and industries from developing and developed countries will
share priorities and concerns with respect to IP policy that defy a North–South
divide. At the international level, the Access to Knowledge (A2K) movement
is also galvanizing interest in new models for ensuring public access to the
knowledge, ideas, and information people need in order to address social
problems. As such initiatives advance and novel approaches to national and
global IP regulation are tested, developing country governments must be sure
to access and apply the lessons learned.

Notes

1. Finger and Schuler (2001) and Sell (1998).

2. See statements from the Group of 77 (1999), and Group of 77 and China (2000,
2001, 2003a, 2003b).
3. The importance of socialization as a mechanism through which power is exercised
is explored by Ikenberry and Kupchan (1990).
4. Abdel Latif (2005) and Halle and Wolfe (2007).
5. Krikorian (2007, 2008).
6. Abdel Latif (2005).
7. Ibid.
8. Okediji (2004a).
9. See WIPO (2007a, 2008a, b).
10. Ibid.
11. WIPO (2008).
12. MSF (2007).
13. MSF (2001).
14. Barrowclough and Kozul-Wright (2007), and Rizk (2007).

323
The Implementation Game

15. FTC (2003), Jaffe and Lerner (2004), and Bessen and Meurer (2008). In each
instance, the authors allude to concerns that the increasing strength of IP pro-
tection may impede the rate of progress and innovation by increasing the price of
knowledge that is the vital input into research.
16. EPO (2006a, b) and Barton et al. (2007).
17. Biadgleng and Tellez (2008) and Drahos (2004a).
18. Kostecki (2005) and Pengelly (2005).
19. Watal (2001).
20. To date, scholarly analyses of piracy, counterfeiting, and enforcement are most
prominent in the fields of economics and business studies. See, for example,
Samahon (2000) and van Kranenburg and Hogenbirk (2005).
21. Author’s interviews with Pascal Boulet, MSF and James Love, CPTech, Feb 2006.
22. Schlatter (2005), and Fink (2008).
23. Yu (2008).
24. Ibid.
25. Abbott (2000), Abdel Latif (2005), CIEL (2007), Deere (2006), Drahos (2004b),
Musungu (2004b, 2005). Several of the following proposals have already been set
forth in Deere (2005b, 2006, 2007a, 2007b, 2008).
26. The interest of scholars and NGOs in this agenda is expanding. In 2008, two books
were scheduled for publication on the topic following conferences held in 2007 on
the implementation of the WIPO Development Agenda, one at UCLA Law School
in March on Intellectual Property and Developing Countries: The WIPO Development
Agenda. Also in 2007, Transatlantic Consumer Dialogue (TACD) sponsored a topic
on the subject. See TACD (2007). In 2008, Yale University will sponsor its Third
Annual Conference on Access to Knowledge, this time in Geneva.
27. A proposal for such principles and guidelines for technical assistance was an integral
part of the Development Agenda. In an elaboration of their initial proposal, the
Friends of Development called in 2006 for the adoption by WIPO of a Code of
Ethics to be applied to individual providers of its technical assistance as part of the
broader set of principles and guidelines for WIPO’s technical cooperation. See WIPO
(2006). Core elements of such a Code of Ethics could include principles regarding
professional conduct, confidentiality, corruption, and conflict of interest. See Deere
(2005a) and Correa and Deere (2005).

324
 APPENDIX 1

Selection of interviews

Interview date Name of interviewee Title/affiliation of interviewee

Government officials
Oct. 2004 Johannes Bernabe Permanent Mission of Philippines to the WTO, TRIPS delegate
Oct. 2004 Frederico Alberto Cuello Camilo Ambassador, Permanent Mission of the Dominican Republic to the WTO
Oct. 2004 Atul Kaushik First Secretary, Permanent Mission of India to the United Nations, Geneva, TRIPS delegate
Oct. 2004 Mohan Kumar Indian Ambassador to Sri Lanka, former Indian TRIPS delegate in Geneva
Oct. 2004 Cameron MacKay Permanent Mission of Canada to the United Nations, delegate to WIPO and TRIPS
Nov. 2004 Edward Chisanga TRIPS delegate, Permanent Mission of Zambia to the WTO
Jan. 2005 Betty Berendson Minister Counsellor, Permanent Mission of Peru to the United Nations, Geneva, TRIPS delegate
Feb. 2005 Ron Marchant Chief Executive and Comptroller General, UK Patent Office
May 2005 María Carmen Domínguez Permanent Mission of Chile to the WTO, TRIPS delegate
May 2005 Paul E. Salmon Patent Attorney, Office of International Relations, US Patent and Trademark Office (USPTO), WIPO
delegate
Jun. 2005 Mathias Daka Deputy Permanent Representative, Permanent Mission of the Republic of Zambia to the United
Nations and Other International Organizations
Jun. 2005 Debabrata Saha Deputy Permanent Representative of India, Permanent Mission of India to the United Nations, Geneva
Jul. 2005 Vera Bampo-Addo State Attorney, Registrar Central’s Department, Ghana
Sep. 2005 Toufiq Ali Ambassador, Permanent Mission of Bangladesh, Geneva
Sep. 2005 Leonardo de Athayde Second Secretary, Permanent Mission of Brazil to the United Nations, TRIPS and WIPO delegate
Sep. 2005 M.S. Grover Deputy Permanent Representative of India, Permanent Mission of India to the United Nations
Sep. 2005 Konstantin Karachalios Economic Development Bureau of the European Patent Office
Sep. 2005 Ahmed Abdel Latif First Secretary, Permanent Mission of Egypt to the United Nations, TRIPS and WIPO delegate
Sep. 2005 Nelson Ndirangu Minister Counsellor, Permanent Mission of Kenya to the United Nations, Geneva, TRIPS delegate
Sep. 2005 Guilherme Patriota Counsellor, Permanent Mission of Brazil to the United Nations, TRIPS and WIPO delegate
Sep. 2005 Santiago Roca Presidente del Directorio, Instituto Nacional de Defensa de la Competencia y de la Protección de la
Propriedad Intellectual (INDECOPI)
Sep. 2005 Preeti Saran Counsellor, Permanent Mission of India to the United Nations, Geneva, WIPO delegate
Sep. 2005 Paul Sciarone Deputy Permanent Representative, Permanent Mission of the Kingdom of the Netherlands to the
325

United Nations, Geneva

(cont.)
326

Appendices
Interview date Name of interviewee Title/affiliation of interviewee

Oct. 2005 Adrian Cristobal Secretary General, Philippines Patent Office

Oct. 2005 Thosapone Dansuputra Head, Office of the Deputy Minister, Ministry of the Deputy Minister
Oct. 2005 Alberto Dumont Ambassador, Permanent Representative of Argentina to the United Nations, Geneva
Oct. 2005 Marta Gabrieloni Counsellor, Permanent Mission of Argentina to the United Nations, WIPO and TRIPS delegate
Oct. 2005 Faizel Ismail Head of Delegation to the WTO, Permanent Mission of South Africa to the United Nations
Oct. 2005 Dr. Roberto Juagaribe Director, Brazilian Industrial Property Institute (INPI)
Oct. 2005 Henrique Choer Morales Secretary, Intellectual Property Division, Brazilian Ministry of External Relations
Oct. 2005 Phil Thorpe Deputy Director, UK Patent Office
Dec. 2005 Eduardo Pérez Motta President, Comision Federal de Competencia, Mexico, formerly Mexican Ambassador to the WTO and
Chair of the TRIPS Council
Dec. 2005 Alejandro Neyra First Secretary, Permanent Mission of Peru to the United Nations, TRIPS delegate
Feb. 2006 Hekmat Ghorbani Counsellor, Permanent Mission of the Islamic Republic of Iran to the United Nations Office
Feb. 2006 Soledad Leal Permanent Mission of Mexico to the WTO, TRIPS delegate
Feb. 2006 Usman Sarki Minister Counsellor, Permanent Mission of Nigeria to the United Nations
Jun. 2006 Begona Venero Aguirre INDECOPI (Peruvian Intellectual Property Office)
Jun. 2006 Angelica Navarro Llanos Ambassador, Permanent Mission of Bolivia to the WTO
Jun. 2006 Souheir Nadde Senior Trade Specialist, Head of Multilaterals Unit, Intellectual Property Expert, UNDP Project, Ministry
of Economy and Trade, Lebanon
Sep. 2006 Ajay Dua Secretary, Department of Industrial Policy and Promotion, Indian Ministry of Industry
Oct. 2006 Dayaratna Silva Minister, Permanent Mission of the Democratic Socialist Republic of Sri Lanka to the United Nations,
TRIPS delegate
Feb. 2007 Manzoor Ahmad Ambassador to the WTO, Pakistan
Feb. 2007 Toufiq Ali Ambassador to the WTO, Bangladesh
Feb. 2007 Trevor Clarke Ambassador to the WTO, Barbados
Feb. 2007 Manuel Teehankee Ambassador to the WTO, Philippines
Feb. 2007 Guillermo Valles Ambassador to the WTO, Uruguay
Oct. 2007 Beatrice Dove-Edwin Director, Policy, Planning and Research Division, Ministry of Trade and Industry, Sierra Leone
Nov. 2007 Debapriya Bhattacharya Ambassador to the WTO, Bangladesh
Staff of international organizations
Oct. 2003 Lynn Mytelka Director, Institute for New Technologies, the United Nations University
Oct. 2004 Germán Velásquez Head of Access to Essential Medicines Programme, WHO
Nov. 2004 Amb. Rita Hayes Director, Copyright Division, WIPO.
Feb. 2005 Charles Clift Former Director of CIPR report for DFID and for CIPIH report for WHO
Feb. 2005 Jayashree Watal WTO Secretariat, TRIPS Division
 Mar. 2005 Kiyoshi Adachi Legal Officer, UNCTAD
Mar. 2005 Paul Hunt Special Rapporteur on the Right to Health, United Nations High Commission for Human Rights
Mar. 2005 Douglas Lippoldt Senior Trade Policy Analyst, Trade Policy Dialogue, Trade Directorate, OECD
Sep. 2005 Shakeel Bhatti Legal Officer, Global Issues Division, WIPO
Sep. 2005 Nuno Pires de Carvalho Acting Director–Advisor, Legislation for Public Policy & Development, WIPO
Sep. 2005 Lucinda Jones Senior Legal Officer, Copyright, E-Commerce, Technology and Management Division, WIPO
Sep. 2005 Christophe Spennemann Economic Officer, UNCTAD
Sep. 2005 Hannu Wager WTO Secretariat, TRIPS Council
Oct. 2005 Sisule Musungu Acting Director of IP Programme, South Centre
Nov. 2005 Carsten Fink Senior Economist, World Bank Institute
Dec. 2005 Leo Palma Deputy Director, Advisory Centre on WTO Law (ACWL)
Sep. 2006 Carlos Mazal Senior Counsellor, WIPO
Sep. 2006 Pedro Roffe Senior Fellow, ICTSD, formerly UNCTAD
Sep. 2006 Roger Kampf WTO Secretariat, TRIPS Division
Oct. 2006 Hunter Nottage Counsel, Advisory Centre on WTO Law (ACWL)
Oct. 2006 Cecilia Oh Legal Officer, WHO
Dec. 2006 Carlos Correa Law Professor, South Centre/University of Buenos Aires
Nov. 2007 Sivaramen Palayathan Deputy Permanent Representative of the Permanent Delegation of the African Union in Geneva
Apr. 2008 Denis Croze WIPO, Acting Director–Advisor, Copyright and Related Rights Sector
Apr. 2008 Wolf Meier-Ewert TRIPS Division, WTO Secretariat
July 2008 Roger Kampf TRIPS Division, WTO Secretariat
Aug. 2008 Adrian Otten Director, TRIPS Division, WTO Secretariat.
Academics
Sep. 2004 Michael Blakeney Senior Lecturer, Queen Mary Intellectual Property Research Institute, University of London
Oct. 2004 James Otieno Odek Senior Lecturer, University of Nairobi
Oct. 2005 Maristella Basso Professor, University of Sao Paulo
Oct. 2005 Graham Dutfield Senior Lecturer, Queen Mary Intellectual Property Research Institute, University of London
Oct. 2005 Jakkrit Kuanpoth Senior Lecturer, University of Wollongong
Dec. 2005 Frederick Abbot Law Professor, Florida State University
Dec. 2005 Peter Drahos Senior Lecturer, Queen Mary Intellectual Property Research Institute, University of London
Feb. 2006 Ruth Okediji University of Minnesota
Feb. 2006 Susan Sell Professor of Political Science, Department of Political Science, George Washington University

Appendices
Sep. 2006 Duncan Matthews Senior Lecturer, Queen Mary Intellectual Property Research Institute, University of London
Oct. 2007 Sheila Page Senior Research Associate, Oveseas Development Institute
Staff of NGOs and industry groups
Oct. 2003 Alejandro Argumedo ANDES Association, Cusco, Peru
327

Oct. 2003 Susan Finston Pharmaceutical Researchers and Manufacturers of America (PhRMA)
(cont.)
328

Appendices
Interview date Name of interviewee Title/affiliation of interviewee

Oct. 2003 Ruth Mayne Oxfam UK

Jan. 2005 Amy Kapczynski Postdoctoral Fellow in Law and Public Health, Yale Law School/Yale School of Public Health
Mar. 2005 Davinia Ovett Programme Officer, 3D→Trade, Human Rights, Equitable Economy
Mar. 2005 Leo Palma Senior Counsel, Advisory Centre on WTO Law
Jun. 2005 Leonardo Burlamaqui Program Officer, Ford Foundation
Jun. 2005 James Love Director, Consumer Project on Technology/Knowledge Ecology International
Jun. 2005 Manuel Ruiz Legal Counsel, Sociedad Peruana de Derecho Ambiental
Aug. 2008 Eric Noehrenberg Director, International Trade and Market Issues, IFPMA
Oct. 2005 Hanan Sboul Secretary General, The Jordanian Association of Pharmaceutical Manufacturers
Oct. 2005 David Vivas IP Programme Manager, ICTSD, formerly Permanent Mission of Venezuela to the U N, TRIPS delegate
Dec. 2005 Tenu Avafia Researcher, Trade Law Centre for Southern Africa
Dec. 2005 Peter Bloch Director of Operations, Light Years IP
Dec. 2005 Geoff Tansey Quaker United Nations Office
Dec. 2005 Martin Watson Representative, Global Economic Issues, Quaker United Nations Office
Feb. 2006 Pascale Boulet Access to Essential Medicines Campaign, MSF
Feb. 2006 Ellen t’Hoen Director, Access to Essential Medicines Campaign, MSF
Apr. 2006 Ricardo Meléndez Ortiz Executive Director, ICTSD
May 2006 Maria Julia Oliva Center for International Environmental Law
Feb. 2007 Miguel Rodriguez Senior Fellow, ICTSD, former Venezuelan Ministry of Industry and Trade negotiator
Feb. 2008 Sangeeta Shashikant Third World Network
Sep. 2005 Gwen Hinze Legal Officer, Electronic Frontier Foundation
Case study interviews – government officials
Feb. 2006 Falou Samb Formerly TRIPS delegate, Permanent Mission of Senegal, Geneva
Sep. 2006 Soro Nagolo Director, Ivorian Intellectual Property Office, Côte d’Ivoire
Oct. 2006 Raphael Etendo Director, IP Office of Togo
Oct. 2006 Ndeye Adiji Dio Sall Chef de Service de la Propriété Industrielle, Ministry of Craft and Industry, Senegal
Oct. 2006 Kanda N’na Sary Director-General, Institut National de la Propriété Industrielle et da la Technologie, Togo
May 2007 Binazon Augustin Technical services chief, National Center for Intellectual Property, Benin
May 2007 Julienne Kanda Director, Institut National de la Propriété Industrielle et da la Technologie, Togo
May 2007 Boumediana Mohamed Ministry of Industry, Mauritania
May 2007 Marisella Ouma Executive Director, Kenya Copyright Board, Kenya
May 2007 Kaba Ousmane National Service of Intellectual Property, Guinea
 May 2007 Adji Diop Sall Director of Intellectual Property, Ministry of Industry, Senegal
May 2007 Leye Yama Department of Trade, Senegal
Case study interviews – international organizations and bilateral donors
Sep. 2005 Geoffrey Onyeama Director, Economic Development Bureau for Africa, WIPO
Feb. 2006 Francis Mangeni African Union Office in Geneva
Jun. 2006 Tshimanga Kongolo Head, Senior Lecturer, Professional Development Program, WIPO Worldwide Academy
May. 2007 Christopher Kiige African Regional Intellectual Property Organization (ARIPO), Zimbabwe
May. 2007 Falou Samb Consultant, International Trade Center
Jul. 2007 Konstantin Karachalios European Patent Office
Aug. 2008 Michele Weil Director of Cabinet, WIPO
Aug. 2008 Jacques Verone French National Intellectual Property Office (INPI)
Case study interviews – OAPI Secretariat
Sep. 2005 Athoumiane Ndiaye Director-General, OAPI
May. 2007 Maurice Batanga Chef de service, OAPI
Aug. 2008 Paulin Edou Edou Director-General, OAPI
Case study interviews – NGOs and academics
Mar. 2005 Kent Nndadozie Consultant, Nigeria
Feb. 2006 Pascale Boulet Legal Advisor, MSF
Feb. 2006 Joseph Ekpere Formerly, OAU Secretariat
Jul. 2007 Hope Shand Senior Policy Advisor, RAFI
May. 2007 El Hadji Diouf Programme Coordinator – African Trade Program, ICTSD
May. 2007 Camara Ibrahima Professor, University of Dakar, Senegal
May. 2007 Dalindyebo Shabalala Programme Director IP, Sustainable Development, CIEL
May. 2007 Dieye Cheick Tidiane Trade Programme Officer, ENDA
Jun. 2007 Ituku Elangi Botoy Faculty of Law, University of Geneva
Aug. 2008 Catherine Gavin Former Legal Advisor, NSF

Note: This table refers to both formal interviews and informal discussions. Interviews with individuals who asked not to be named are not listed.

Appendices
329
 APPENDIX 2
330
Timeline of international IP agreements

Agreement Date Topic

Paris Convention (WIPO) 1883 Concerning protection of industrial property, including patents, marks, industrial designs, utility models,
trade names, geographical indications, and the repression of unfair competition
Berne Convention (WIPO) 1886 Concerning the protection of literary and artistic work
Madrid Agreement (WIPO) 1891 Concerning the international registration of marks
Hague Agreement (WIPO) 1925 Concerning the international deposit of industrial designs
Universal Copyright Convention (UNESCO) 1952 Concerning the protection of literary and artistic works
Nice Agreement (WIPO) 1957 Concerning the international classification of goods and services for the purposes of registration of marks
Lisbon Agreement (WIPO) 1958 Concerning the protection of appellations of origin and their international registration
Rome Convention (WIPO) 1961 Concerning protection of performances of performers, phonograms, producers of phonograms, and
broadcasts of broadcasting organizations
Convention for the Protection of New 1961 Concerning protection of new varieties of plants
Varieties of Plants (UPOV)
WIPO Convention 1967 Establishing the World Intellectual Property Organization
Locarno Agreement (WIPO) 1968 Establishing a system of classification for industrial designs
Patent Cooperation Treaty (WIPO) 1970 Enabling applicants to file an ‘international’ patent application simultaneously in many countries
Phonograms Convention (WIPO) 1971 Concerning the protection of phonograms
Strasbourg Agreement (WIPO) 1971 Establishing the International Patent Classification (IPC) system
Vienna Agreement (WIPO) 1973 Establishing a system for the classification for marks
Brussels Convention (WIPO) 1974 Relating to the distribution of programme-carrying signals transmitted by satellite
Budapest Treaty (WIPO) 1977 Concerning the international recognition of the deposit of micro-organisms for purposes of patent procedure
Nairobi Treaty (WIPO) 1981 Concerning the protection of the Olympic symbol
Film Register Treaty (WIPO) 1989 Concerning the international registration of audio-visual works
Washington Treaty (WIPO) 1989 Concerning the protection of integrated circuits
Madrid Protocol (WIPO) 1989 Rendering the Madrid system more flexible and more compatible with the domestic legislations of certain
countries which had not been able to accede to that Agreement
Trademark Law Treaty (WIPO) 1994 Establishing more user-friendly national and regional trademark registration systems
TRIPS Agreement (WTO) 1994 Establishing minimum international standards for WTO members for most categories of IP
Copyright Treaty (WIPO) 1996 Introducing new international rules and clarifying the interpretation of certain existing rules in order to
respond to the impact of information and communication technologies on the creation and use of literary
and artistic works
Performances & Phonograms Treaty (WIPO) 1996 Introducing new international rules responding to the impacts of information and communication
technologies on the production and use of performances and phonograms
Patent Law Treaty (WIPO) 2000 Harmonizing and streamlining formal procedures in respect of national and regional patent applications
 APPENDIX 3

Examples of increase in IP standards in

developing country WTO members from
1988 to 2007

Country Term of patent protection Exemption from patent protection for

pharmaceutical products

1988 (years) 2007 (years) In relevant law (1988) In relevant law (2007)

Least developed countries

Bangladesh 16c,a 16c,a X X
Benin 10a,d 20 X –
Burkina Faso 10a 20 X –
Burundi 20a 20 – –
Cambodia ˆ 20 ˆ X
Central Afr. Rep. 10a,d 20 X –
Chad 10a,d 20 X –
Ghana 10a 20 X –
Mali 10a,d 20 X –
Mauritania 10a,d 20 X –
Nepal 7e 7e X X
Niger 10a,d 20 X –
Rwanda 20a 20 – –
Sierra Leone 20a,∗ 20 – –
Swaziland 20a,∗ 20 – –
Togo 10a,d 20 X –
Uganda 20a,∗ 15 – –
Tanzania 20a,∗ 20 – –
Developing countries
Argentina 5, 10, 15c 20 X –
Bolivia 15c 20 X –
Botswana 20a,∗ 20 – –
Brazil 15a 20 X –
Cameroon 10a 20 – –
Chile 15 20 – –
China 15a 20 X –
Colombia 5c,d 20 X –
Congo 10a,d 20 – –
Costa Rica 12 20 # –
Côte d’Ivoire 10a,d 20 – –
Cuba 10a,d 20 X –
Dominican Republic 5, 10, 15c 20 – –
(cont.)

331
Appendices

Country Term of patent protection Exemption from patent protection for

pharmaceutical products

1988 (years) 2007 (years) In relevant law (1988) In relevant law (2007)

Ecuador 5c,d 20 X –
Egypt 15a,d 20 X –
Gabon 10a,d 20 – –
India 14b 20 X –
Jordan 16a 20 – –
Kenya 20a,∗ 20 – –
Malaysia 15c 20 – –
Mauritius 14a,d 20 – –
Mexico 14c 20 X –
Morocco 20a 20 X –
Nigeria 20a 20 – –
Pakistan 16c,d 20 – –
Peru 5c,d 20 X –
Philippines 17c 20 – –
Senegal 10a,d 20 – –
South Africa 20a 20 – –
South Korea 15a,d 20 X –
Sri Lanka 15c 20 – –
Thailand 15a 20 X –
Trinidad & Tobago 14c 20 – –
Tunisia 5, 10, 15, 20a 20 X –
Uruguay 15c 20 X –
Venezuela 5, 10c 20 X –
Zimbabwe 20a 20 X –

Source: Data for 1998 draws from Dutfield (2000). The 2006 data was compiled by author based on the WTO
Secretariat’s Trade Policy Review reports on members.
a
From filing date.
b
From publication date.
c
From grant date.
d
Extension possible – typically five years.
e
Extension possible – renewable twice for seven years.
∗
At this time, countries offered a system of registration of UK patents. The duration was from the date of the UK
patent for as long as the patent remained in force in the UK.
#
Pharmaceutical patents were valid for one year from grant.
∧
No patent law in 1988.

332
 APPENDIX 4

Variation in use of copyright flexibilities by selected developing country

WTO members in the Asia-Pacific

Type of flexibility Cambodia China India Indonesia Malaysia Mongolia Philippines Thailand

Keep the duration of copyright protection to the minimum:

√ √ √ √ √ √
• literary and artistic works: life of author plus 50 years x •
√ √ √ √ √ √
• cinematographic works: 50 years x x
√ √ √ √ √
• anonymous works or pseudonymous works: 50 years x x
√ √ √
• works of applied art insofar as they are protected as artistic x x x x x
works: 25 years
Allow parallel import x x • x • x x x
√ √
Use compulsory licensing options for translation, reproduction, x # • # # •
and public of copyright works
√
Make ‘fixation’ in material form’ a condition for conferment of x x x x x x x
copyright
√ √ √ √ √
Incorporate a provision on idea–expression dichotomy x x x
√ √
Provide for power to deal with anti-competitive practices x x x x x x
√
Include a general fair-use provision x x x x x x x
Incorporate the maximum flexibilities available in the teaching
exception:
√ √ √
• allow the utilization of the whole of a work for teaching • • • x •
√ √
• no limitation on types and forms of utilization for teaching x x x x x x
√ √
• extend the teaching exception to all classes of education, • x x x x x
including distance education
√ √ √ √ √
• no restriction on number of copies that may be made of x x x
illustrations for teaching
Incorporate the maximum flexibilities available in the quotations
exception:
√ √ √ √
• no restriction on ways quotations can be made • x • x
√ √ √ √ √ √
• no limitation on types of work that can be quoted x x
333

(cont.)
334

Appendices
Type of flexibility Cambodia China India Indonesia Malaysia Mongolia Philippines Thailand

• liberally interpret the requirement that work quoted must x x x x x x x x

have been ‘lawfully made available to the public’
√ √ √ √
• no limitation on the length of quotation x • x x
√ √
• no limitation on the purposes of quotation • x x x x x
√ √ √ √ √ √
Exclude altogether official texts and their translations from • •
copyright protection
√
Exclude altogether political speeches and speeches delivered in x x x x x • x
the course of legal proceedings from copyright protection
Allow the use of copyright works in broadcasts x x • • • x x x
Formulate ‘minor’ reservations for educational purposes in respect x • • x • x • •
of performing, recitation, broadcasting, recording, and
cinematographic rights

Source: Consumers International (2006).

√
Limitation or exception was incorporated into national legislation.
• Part of the limitation or exception was incorporated into national legislation.
# Limited part of the limitation or exception was incorporated into national legislation.
X Limitation or exception was not incorporated into national legislation.
 APPENDIX 5

Examples of developing countries with bilateral agreements that include

IP provisions

U.S. bilateral agreements∗ Other agreements∗

Trade agreements with IP Investment agreements IP agreements EU and other bilateral WTO accession
provisions agreements with IP provisions

Group 1 (TRIPS-plus)
Bahrain TIFA 2002; FTA 2004 (2006) 1999 (2001)
Cambodia TIFA, 2006 Trade Relations and IPR 2004
Agreement 1996
Cameroon 1986 (1989)
Chile FTA 2002 (2004) EU Association Agreement 2002
Colombia FTA 2006, amended 2007,
not in force
Congo 1990 (1994)
Costa Rica CAFTA 2005, amended
2007, not in force
Dominican Republic DR-CAFTA 2005 amended
2007, 2005 (2007)
El Salvador CAFTA 2004, amended 2007 1999 (not in force)
(2006)
Guatemala CAFTA 2004, amended 2007
(2006)
Honduras CAFTA 2004, amended 2007 1985 (2001)
(2006)
Jordan Jordan FTA 2000 (2001) 1997 (2003) FTA MOU on Issues Related EU Association Agreement 2000
to the Protection of IPR 1997, 2002
2000
Mexico NAFTA 1994 (1995) Economic Partnership, Political
Coordination and
335

Cooperation Agreement 2000

(cont.)
336

Appendices
U.S. bilateral agreements∗ Other agreements∗
Trade agreements with IP Investment agreements IP agreements EU and other bilateral WTO accession
provisions agreements with IP provisions

Morocco FTA 2004 (2006) 1985 (1991) Association Agreement 1996,

2000
Nepal 2004
Nicaragua CAFTA 2004, amended 2007 1995 (not in force) IPR Agreement 1998
(2006)
Saudi Arabia TIFA 2003 2005
Senegal 1983 (1990)
Singapore TIFA 1991; FTA, 2003 (2004) EFTA, 2002 (2003)
Tonga 2005
Vietnam TIFA 2007 Copyright Agreement 1997 Switzerland IPR Agreement 2007
1999
Group 2 (Mixed use of TRIPS flexibilities)
Argentina 1991 (1994)
Bangladesh 1986 (1989) EU Cooperation Agreement
2001
Bolivia 1998 (2001)
China Implementation of the 1995 2001
IPR Agreement1996; IPR
MOU 1992; IPR MOU
Action Plan 1995
Ecuador 1993 (1997) IPR Agreement 1993 1996
Egypt 1986 (1992) EU Association Agreement
2001, 2004
India IPR MOU 2006
Jamaica 1994 (1997) IPR Agreement 1994
Korea FTA 2007, not in force IPR and Insurance
Understandings
1985,1986
Mongolia 1994 (1997) 1997
Oman FTA 2006 (2006) 2000
 Panama TPA 2007, not in force 1982 (1991), amended 1997
2000 (2001)
Paraguay IPR MOU 2004
Peru TPA 2006, amended 2007 IPR MOU 1997
(2007)
Philippines TIFA 1989 IPR Understanding 1993
South Africa TIFA 1999 EU Trade, Development and
Cooperation Agreement 1999
Sri Lanka 1991 (1993) IPR Agreement 1991 EU Cooperation Agreement
1995
Taiwan Agreement on Copyright 2000
1992; Agreement on IPR,
1992; Agreement on
Trademark, 1993
Thailand TIFA 2002
Trinidad & Tobago 1994 (1996) IPR Agreement, 1994
Tunisia TIFA 2002 1990 (1993) EU Association Agreement
1995, 1998; EFTA 2004
(2006)
Turkey 1985 (1990) EFTA 1991 (1992)
Uruguay 2005 (2006)
Group 3 (Yet to complete TRIPS reforms)
Congo, DR 1984 (1989)
Haiti 1983 (not in force)
Mozambique 1998 (2005)

Source: Compiled by author from USTR, EC, and WTO websites.

∗
Dates in brackets indicate year the agreement entered into force. Note that countries listed here are LDCs, and have yet to reach deadlines for TRIPS implementation.
TPA Trade Promotion Agreement
FTA Free Trade Agreement
TIFA Trade and Investment Framework Agreement

Appendices
337
 APPENDIX 6

Variation in TRIPS-plus provisions of

selected U.S. FTAs

Provision in US-FTA Agreements Allowed variation from TRIPS-‘plus’ provision

Patent protection – patent term

r Vietnam, Jordan Extension given for delays caused by regulatory approval
process
r Singapore, Chile, Morocco, Extension given for delays caused by regulatory approval
Australia, Bahrain, DR-CAFTA process. Additionally, extension given when a delay in the
granting of the patent exceeds 4 years from the filing of
the application; (5 years for U.S.–Chile) or 2 years after a
request for examination (3 years for U.S.–Chile)
Patent protection – second-use patents
r Vietnam, Jordan, Singapore, Chile, No specific provision
DR-CAFTA
r Morocco, Australia, Bahrain Obligation to provide patents for new uses of known
products
Patent protection – patenting of life-forms
r Vietnam Certain plants and animals may not be excluded from
patentability
r Jordan, Singapore, Chile No general exclusion of plants and animals from patentability
r Morocco Explicit obligation to provide patent protection for plants and
animals
r Australia Exclusions only allowed for moral, health, and safety reasons
r DR-CAFTA ‘Reasonable efforts’ have to be undertaken to provide for
patentability of plants
r Bahrain Explicit obligation to provide patent protection for plants,
but animals can be excluded
Patent protection – compulsory licences
r Vietnam, Jordan, Singapore, Compulsory licences limited to national emergencies, public
Australia non-commercial use, and as antitrust remedy
r Chile, Morocco TRIPS standards apply
Patent protection – linkage between patent status and drug marketing approval
r Vietnam No specific provision
r Jordan Patent owner must be notified when marketing approval is
sought during the patent term
r Singapore, Chile, Morocco, Marketing approval of a generic drug is prohibited during
Australia, Bahrain, DR-CAFTA the patent term, unless authorized by the patent owner.
Further, the patent holder must be notified of the identity
of the generic company requesting approval

338
 Appendices

Provision in US-FTA Agreements Allowed variation from TRIPS-‘plus’ provision

Patent protection – test data protection for pharmaceutical products

r Vietnam Data exclusivity for a ‘reasonable’ period, normally not less
than 5 years
r Jordan TRIPS standards apply. Additionally, length of protection
should be the same as in the originator’s country
r Chile Data exclusivity for 5 years
r Singapore Data exclusivity for 5 years. Additionally, where drug
regulators rely on foreign marketing approvals, data
exclusivity applies automatically at home
r Morocco Data exclusivity for 5 years. Additional 3-year data exclusivity
triggered by ‘new clinical information’
r Australia, Bahrain, DR-CAFTA Data exclusivity for 5 years. In addition, data exclusivity
applies in all FTA member countries, once first obtained in
another territory. In the case of U.S.–Bahrain, additional
3-year data exclusivity is triggered by ‘new clinical
information’ (with equivalent provisions on cross-border
application)
Patent protection – parallel imports of patented products
r Vietnam No specific provision
r Jordan, Chile, Bahrain, DR-CAFTA TRIPS standards apply
r Singapore Patent holders may limit parallel imports of pharmaceutical
products through licensing contracts
r Morocco, Australia Patent holders may limit parallel imports through licensing
contracts
Patent protection – side letters on public health
r Vietnam, Jordan, Singapore, Chile, No
Australia
r Morocco, Bahrain, DR-CAFTA Yes
Copyright protection – term of copyright protection
r Vietnam Same as TRIPS if determined by life of author, 75–100 years
otherwise
r Jordan Same as TRIPS
r Singapore, Chile, Morocco, Life of author plus 70 years. If decided on a basis other than
Australia, Bahrain, DR-CAFTA the life of the author, the term is 70 years from the
publication or creation of the work
Copyright protection – technological protection measures
r Vietnam No specific provision
r Jordan ‘Adequate’ protection and ‘effective’ remedies against acts of
circumvention. Ban on circumvention devices
r Singapore, Chile, Morocco, ‘Adequate’ protection against acts of circumvention. Ban on
Australia, Bahrain, DR-CAFTA circumvention devices. Civil liability in case of wilful
infringement. Criminal liability in case of wilful
infringement for commercial purposes. Exempted are
non-profit libraries, archives, educations institutions, and
acts related to troubleshooting, reverse engineering,
protection of minors, computer or network security, or
lawfully authorized government activities
Copyright protection – liability of Internet service providers (ISPs)
r Vietnam, Jordan No specific provision
r Singapore, Chile, Morocco, Limited liability of ISPs on condition they block infringing
Australia, Bahrain, DR-CAFTA content upon notification by the copyright holder

(cont.)

339
Appendices

Provision in US-FTA Agreements Allowed variation from TRIPS-‘plus’ provision

Copyright protection – burden of proof in case of copyright infringement

r Vietnam No specific provision
r Jordan, Singapore, Chile, Morocco, Burden of proof placed on the defending party to show that
Australia, Bahrain, DR-CAFTA works are in the public domain. However, copyright
owners still have to prove infringement
Copyright protection – parallel importation of copyrighted works
r Vietnam No specific provision
r Jordan, Morocco Copyright holder has right to block parallel imports
r Singapore, Chile, Australia, TRIPS standards apply
Bahrain, DR-CAFTA
Enforcement of intellectual property rights – institutional flexibility in IP reinforcement
r Vietnam, Jordan, Australia No specific provision
r Singapore, Chile, Morocco, Resource constraints cannot be invoked as an excuse for not
Bahrain, DR-CAFTA complying with specific enforcement obligations
Enforcement of intellectual property rights – border measures
r Vietnam Apply to imported and exported goods
r Jordan Scope of border measures not specifically defined
r Singapore, Chile, Morocco, Apply to imported, exported, and transiting goods
Bahrain, DR-CAFTA
r Australia Apply only to imported goods (similar to TRIPS)
Enforcement of intellectual property rights – civil and administrative procedures
r Vietnam, Jordan, Singapore, Chile, Obligations to fine infringers of copyright and trademark
Morocco, Australia, Bahrain, rights; irrespective of the injury suffered by rights holders
DR-CAFTA
Enforcement of intellectual property rights – criminal procedures and remedies
r Vietnam Similar to TRIPS
r Jordan Scope of criminal procedures and remedies not specifically
defined
r Singapore, Chile Similar to TRIPS. Criminal procedures apply in case of
financial gain or wilful infringements
r Morocco, Australia, Bahrain, Similar to TRIPS. Criminal procedures apply in cases of
DR-CAFTA financial gain or wilful infringements; and specifically for
known trafficking in counterfeit labels affixed to certain
copyrighted works (e.g. CDs, software)

Source: Adapted from Fink and Reichenmiller (2005).

340
 APPENDIX 7

U.S. Special 301 pressure on developing country WTO members and WTO
disputes filed (1995–2007)

Watch List Priority Watch List Out of cycle review Further U.S. actions

Group 1
Bahrain 1995–8
Chile 1995–2007 2006
Colombia 1995–2001, 2003–7 2002 2002
Costa Rica 1995–2000, 2002, 2004–7 2001 Other observation: 2006
Dominican Republic 1997, 2004–7 1998–2000
Ecuador 1996, 1999, 2000, 2003–7 1997, 1998
El Salvador 1996
Guatemala 1995–8, 2001–6 1999, 2000
Honduras 1997–8
Jordan 1997–9 Other observation: 1995–6
Mexico 1999, 2003–7 2002 Other observation: 1996–8
Panama 1997 Other observation: 1996, 1998
Peru 1995–8, 2001–7 1999, 2000
Saudi Arabia 1996–2007 1995 2005–6
Group 2
Argentina 1995 1996–2007 WTO legal dispute: 1999 (US) WTO legal
dispute: 2000 (US)
Belize 2004–5, 2007 2006
Bolivia 1997, 1999–2007 1996, 1998, 2000
Brazil 1996–7, 1999–2001, 2007 1995, 2002–6 2007 WTO legal dispute: 2000 (US)
China 1995 2005–7 2004 Priority foreign country: 1996 Section 306 List:
1997–2004 WTO legal dispute: 2007 (US)
Egypt 1995–6, 2003 1997–2002, 2004–7
India 1995–2007
341

Indonesia 1995, 2000, 2007 1996–9, 2001–6 2002, 2005–6 WTO legal dispute: 1996 (US)
(cont.)
342

Appendices
Watch List Priority Watch List Out of cycle review Further U.S. actions

Jamaica 1998–2007
Korea 1997–9, 2002–3, 2005–7 1995–6, 2000–1, 2004 2003
Kuwait 1996–7, 2000–3, 2006–7 WTO legal dispute: 1996 (US)
Malaysia 1989–90, 2002–7 2000–1 1999, 2004
Oman 1996–2000 1998–9, 2004–5 Other observation: 1995
Pakistan 1995–2003, 2006–7 2004, 2005 2007 WTO legal dispute: 1996 (US)
Paraguay 1996 1997 Priority foreign country: 1998 Section 306
List:: 1999–2007 Other observation: 1995
Philippines 1995–2000, 2006–7 2001–4, 2005 2002, 2005
Qatar 1998–2000, 2002 Other observation: 1995–7
South Africa 1995, 1998–9 Other observation: 1996
Taiwan 1995, 1999–2000, 2005–7 2001–4 2004 Priority foreign country: 1992 Other
observation: 1996
Thailand 1995–2006 2007 2002
Turkey 2001–3, 2007 1995–2000, 2004–6
United Arab 1995–2000 2002
Emirates
Uruguay 1999–2000, 2003–5 2001–2 Other observation: 1997–8
Venezuela 1995–2004 2005–7 Other observation: 1995–6
Vietnam 1997–2006

Source: USTR Special 301 Reports and USTR website.

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395
 Index

Abbot, Frederick 29–30, 58, 62, 105, 107, 111, Article 66.2 70
143, 145, 193, 231, 236–7 criticism of 90, 91, 186, 276, 289, 299
Abdel Latif, Ahmed 31, 122, 145, 147, 193–5, Declaration on the TRIPS Agreement and
236, 301 Public Health 27, 68, 69, 82, 86, 120, 123,
Access to Knowledge (A2K) 131, 135–6, 174, 126, 156, 178, 182, 255–7, 259, 273, 293,
207, 327 308, 347
Access to medicines campaign 126, 134, 173, flexibilities in 2, 4, 5, 12, 13, 17–18, 20, 25,
208, 211, 229, 234, 237, 272, 298–9, 312 33, 64–5, 68, 72, 74, 76, 91, 97, 98, 100–4,
ActionAid 135, 136, 193, 235 115, 119, 120, 126, 131, 138, 150, 161, 172,
Action Group on Erosion, Technology and 177, 182–4, 197, 203, 207, 212–14, 231,
Concentration (ETC) 28, 136, 211 also see 243, 255–9, 303–15, 317, 320
RAFI general obligations 61
ACT-UP 136, 229, 273–4 limitations and exceptions, see flexibilities
Advisory Centre on WTO Law 135, 329–30 mailbox requirement 69, 105, 190
Africa Growth and Opportunity Act -minimum implementation 13, 98, 303–4,
(AGOA) 247, 268–9, 276–7, 300 306, 308
African Agricultural Technology Foundation -minus implementation 4, 13, 72, 98
(AATF) 193 notifications 25, 59, 70, 106, 144–5, 177,
African and Malagasy Patent Rights Authority 221, 292, 341
(OAMPI) 38, 250 also see OAPI ‘Objectives and Principles’ 64, 175
African, Caribbean, and Pacific Group -plus standards 4, 13, 18, 20, 29, 64, 73, 82,
(ACP) 123, 143, 145, 153, 188 84–5, 90, 92, 97–8, 102, 104, 114–16, 129,
African Group 121, 123, 125, 131, 142, 145, 136, 150–86, 210, 220–4, 256, 258–9, 269,
258–9, 271, 289, 293, 295, 297 275–6, 286, 293, 303, 306–9, 312–20
African Intellectual Property Organization -plus in bilateral agreements 152, 172, 220,
(OAPI) 38, 75, 79, 97, 140, 180, 198, 221
240–86, 302, 314, 321 -plus in WIPO agreements 241
African Regional Industrial Property -plus in WTO accessions 155, 156
Organization (ARIPO) 38–9 relationship with CBD 123–5, 131, 133, 297,
African Regional Intellectual Property 318
Organization (ARIPO) 38–9, 97, 140, 180, relationship with ITPGRFA 131
202, 219, 236, 266–8, 284, 323 relationship with WIPO 24, 51, 61, 128–9,
African Trade Network 136 131–41, 152, 180–5, 201–4, 215–16, 233,
African Union 140, 289, 293, 296, 301, 331 241, 261–3, 268, 272, 297, 316–17, 328,
also see OAU 330
Agreement on Trade-Related Aspects of Reviews of implementing legislation 25, 28,
Intellectual Property Rights (TRIPS) 32, 119–20, 177–8, 193, 233, 299, 307
Article 8 65, 76, 81, 94 special and differential treatment
Article 27 68, 70, 77, 86, 87, 108, 121, 123–5, regarding 12, 43, 123, 241
145, 186, 243, 258, 263, 265, 271, 297 surveillance 16, 159 also see monitoring
Article 27.3(b) 125, 145 transition periods in 13, 68, 272–3
Article 30 80, 81 TRIPS Council 11, 16, 25, 30, 70–3, 106, 117,
Article 31 82 119–22, 125–6, 128–9, 143, 161, 177, 255,
Article 39 81, 84, 85, 177, 228, 258 293, 297, 307

396
 Index

also see compulsory licensing, copyright, Benin 51, 71, 76, 98, 101, 145, 171, 252, 257,
enforcement, geographical indications, 262, 264, 266, 283, 286, 290
patents, trademark and WTO Berendson, Betty 234
agricultural biotechnology 78, 115, 143, 184, Bernabe, Johannes 122, 191, 236, 327
209, 272, 297 Berne Convention
agricultural subsidies 39, 144, 166, 378 Appendix to 43, 259
agriculture 8, 55, 85, 102, 135, 174, 185, 207, Principles 36
210, 213, 238, 265, 269, 270, 275, 314, 319 Protocol to 43
also see seeds and plant varieties negotiations 37
American Academy for the Advancement of U.S. accession to 59
Science (AAAS) 134 incorporation in TRIPS 66, 67, 90, 91, 105,
American Bioindustry Alliance (ABIA) 116 157
Andean Community 39, 58, 77, 79, 81, 85, 89, limitations in 41
93–4, 96, 180, 217–19, 236 membership 40, 42, 250, 362
Angola 73, 93, 97–8, 101, 145, 198, 206 moral rights 204, 250
anti-competitive practices, see competition Bhagwati, Jagdish 2, 27, 60, 118, 144, 193
policy and laws bilateral intellectual property agreements
Anti-Counterfeiting Code see International (BIPS) 50, 339, 341
AntiCounterfeiting Coalition (IACC) 115 bilateral investment treaties (BITs) 50, 62,
Anti-Counterfeiting Trade Agreement 151–2, 154–5, 161, 188–9, 276, 339
(ACTA) 117 biological diversity 55, 90, 96–7, 106, 123, 133,
Antigua and Barbuda 71, 85, 93, 97, 145, 167, 136, 207, 265, 270, 296, 318
204 biopiracy 55, 123, 125, 134, 143, 174, 208, 278,
anti-trust, see competition policy and laws 312, 346, 362, 385
Argentina biotechnology
intellectual property laws 39, 40, 41, 49, industry 78, 115, 143, 209, 272, 278, 297,
52–4, 71, 76, 82–4, 88–9, 96, 100–2, 107, 352, 356, 359, 385, 388
116, 121, 127–8, 134–5, 165, 175, 177, 184, corporate consolidation 357, 390
198, 206–10, 225, 236, 310, 333 patentability issues 77, 125, 340
patent system 42, 77–8, 79, 88, 333 genetically-modified organisms 78, 270
pharmaceutical industry 55, 63, 73, 157–60 Biotechnology Industry Organization
artistic and literary works, see copyright (BIO) 115
Asia 30, 46, 91, 121, 123, 155, 183, 204, 210, Bio-Thai (Thai Network on Community Rights
220, 229, 233, 235, 305, 317, 335–6 also see and Biodiversity) 136
specific countries Boehringer Ingelheim 212
Asia-Pacific Economic Cooperation Forum Bogsch, Arpad 59, 60, 140, 148–9, 281, 290,
(APEC) 123 301, 350
International Association of Plant Breeders Bolar exception 79, 81, 108, 159
(ASSINSEL) 143 Bolivia 39, 57, 71, 76, 88–9, 93, 96, 98, 101,
Association Internationale pour le Protection 121, 128, 217, 219, 223, 237, 328, 333, 338,
de la Propriété Industrielle (AIPPI) 116, 343
144, 170, 210, 235 Botswana 76, 79, 93, 101, 131, 145, 236, 335
Association of Southeast Asian Nations Boulet, Pascale 162, 195, 298, 327, 332–3
(ASEAN) 140, 153, 181, 220, 236 Boyle, James 147, 193
Attaran, Amir 192 Brazil 8, 10, 13, 25–6, 37, 40–4, 47, 49, 50–5,
Australia 114, 178, 187–8, 342, 343, 344 62, 71, 73–9, 82–5, 88–9, 92–3, 101–2, 107,
Ayuhuasca 125, 234 116, 119–22, 128, 130–1, 134, 136, 157–8,
164, 165–6, 171–4, 184, 191–5, 198–202,
Bahrain 71, 85, 93, 98, 101, 119, 152, 172, 187, 206, 207–8, 212, 213, 215–16, 223, 230–1,
337, 340–3 235, 236, 298, 305, 310, 312, 316 327, 328,
Bale, Harvey 116 333
Bangladesh 41, 51, 73, 89–90, 93, 98, 101, 107, Bristol-Myers Squibb 226–7
145, 184, 187, 208–9, 234, 327 broadcasting 59, 90, 199, 204, 253, 256, 317,
Bangui Agreement 57, 81, 107, 219, 240–85 332, 336
Basmati rice 125 Broadcasting Treaty 132, 375
Belgium 37, 41, 249 Budapest Convention 154
benefit-sharing agreements 373 Budapest Treaty 78, 332

397
Index

budget power 241, 301, 310, 320

developing country 2, 180, 200, 251 also see coercion
development assistance 10 collaborative research 134, 318, 320, 323
capacity-building 180–6, 194, 279 collecting societies 35, 67, 204, 251, 254
IP offices 233, 251, 280, 283 collective management of IP 204, 233
NGOs 301, 312, 377 Colombia 39, 51, 53–4, 57, 63, 71, 76, 89,
OAPI 251, 282, 286, 302 92–3, 100–1, 121, 152, 172, 210, 212,
research and development (R&D) 168 217–18, 221–3, 237, 333, 337, 342
UPOV 241 colonial
WIPO 138, 142, 241, 279, 309 approaches to IP protection 249
Burkina Faso 51, 71, 76, 93, 98, 101, 145, 171, decolonization 37, 39, 245, 249
252, 257, 264, 266, 274, 284, 286–8, 290, era 8, 34, 40, 197
295–6, 299–301, 331, 333 powers 34–8, 102, 248–9
Business for Affordable Medicines (BAM) 134 Commission on Intellectual Property,
Business Software Alliance (BSA) 115, 164, 210, Innovation and Public Health (CIPIH) 139,
235 328
Commission on Intellectual Property Rights
Cambodia 29, 71, 73, 76, 79, 82, 85, 89, (CIPR) 28, 77–8, 108, 175, 193, 195, 204,
92–3, 98, 101, 145, 155, 156, 236, 333, 232–3, 328
335–7 Committee on Economic, Social, and Cultural
Canada 11, 29, 37, 66, 81, 83, 115, 123, 126–7, Rights (CESCR) 130, 147, 389
154, 158, 179, 188, 296, 327 Committee on the Rights of the Child
Cancun Ministerial 126 (CRC) 131, 147
Cannabrava, Francisco 122 Common Market for Eastern and South Africa
capacity-building 12, 16, 20–3, 30–1, 131, (COMESA) 139–40, 153
136–7, 140, 151, 167, 171, 180–6, 200–1, Commonwealth Countries 123
215–16, 220, 223, 242–3, 262, 278–85, 295, Communauté Financière Africaine (CFA) 311
301, 309–11, 316–17, 321–3 also see competition
technical assistance authorities 95, 212, 213
Caribbean 35, 37, 48, 121, 153, 155, 220, laws 6, 94–5, 167, 312
235 policy 94, 111
Caribbean Basic Economic Recovery Act competitiveness 5, 27, 46, 49, 51, 319
(CBERA) 48 compliance
Cartagena Protocol on Biosafety 58 with international laws 15, 22, 23, 311
Center for International Environmental Law with WTO dispute settlement decisions 156,
(CIEL) 270, 297, 330 165
Central American Free Trade Agreement compliance-plus 18, 116, 156, 304, 307,
(CAFTA) 85, 93, 223, 337–42 311–12
Chamber of Commerce 31, 33, 42, 115, 171, compulsory licence 6, 7, 11, 13–14, 47–8, 54,
209 68, 72, 76, 82–3, 86, 91–2, 109, 119, 125–7,
Chidyausiku, Boniface 122 143, 152–4, 157–8, 163, 165, 173, 184–5,
Chile 122, 127, 131, 152, 159, 188, 198–9, 210, 202–3, 212, 220, 229, 254–7, 276, 284, 308,
221–2, 237, 315, 327–9, 333, 337, 340–3 315, 318, 323, 342
China 12, 17, 32, 33 and medicines 127, 157–8, 165–6, 193, 203,
and IP enforcement 230, 380, 391 212, 224, 229–31, 273–4, 276, 292, 298
and IP standards 305, 317, 323, 335 related to copyright 43, 59, 91, 92, 127
clinical trial 84, 208, 224 related to patents 6, 7, 13, 47, 109
Cipla 164, 230, 366 related to plant variety protection 86
civil society 56, 109, 125–6, 131, 134–5, 147, also see non-voluntary licence
166, 174, 207–8, 211, 212–13, 223, 223–5, concentration
270, 272, 289, 296, 308, 312, 322–4 also see of R&D in multinational corporations 54
non-governmental organizations (NGOs) of expertise in IP offices, 311–12 also see
Code of Conduct on the Transfer of Technology consolidation
(CCTT) 45 concessions (for developed countries) 11, 12,
coercion 30, 175 49–50, 118, 165–6, 307–8
coercive Code of Conduct on Transnational
diplomacy 2, 19, 94, 118, 165, 304 Corporations 45

398
 Index

consensus-building 53 cultural industries 7, 9, 15, 280, 302, 324–5 also

consolidation see creative industries
of expertise 197
of developing country discourse 317–19 data exclusivity 85, 156, 223–4, 293, 341
conservation 123, 125, 131, 296 data protection 68, 83–5, 154, 223, 258, 293,
Consultative Group on International 317, 341
Agricultural Research (CGIAR) 174 databases 66, 134, 153, 188, 199, 281
Consumer Project on Technology database protection, see databases
(CPTech) 135–6, 146, 211, 226–9, 238, 273, de Athayde, Leonardo 122, 327
324 also see Knowledge Ecology delegation also see principal-agent theory
International (KEI) to regional organizations 23, 214–19, 238,
consumers 6, 7, 10, 171, 206, 210, 311, 322 242–3, 278–85, 314
Consumers International 33, 110, 136, 148, to IP offices 197–205, 211–20
228, 233, 336 Demarche 226
contract law 103 developed countries
Convention on Biological Diversity (CBD) 96, pressure on developing countries 5–12,
123–5, 131, 133, 216, 265, 270, 297, 318, 34–56, 114–18, 150–86, 345–7
321 developing countries
coordination resistance to TRIPS 5–12, 37–46, 118–29
WIPO and other international concerns about IP 5–12, 37–46, 114–18
organizations 215, 217 concerns about WIPO 128, 131, 138–40,
within governments 211, 213, 236, 274, 313, 174–5, 179–86
317, 320, 323 membership of WIPO 36–46
corporations, see multinational corporations membership of UPOV 41–2, 86–8
copyright 2, 5–7, 10–11, 12–14, 26, 28, 33, capacity on IP issues 197–220
37–8, 41, 43, 57–9, 66–8, 71–4, 76, 90–112, Development Agenda, see WIPO
117, 129, 134, 138, 146, 151–2, 160–1, Development Alternatives Inc (DAI) 224–5,
172–3, 176, 182–3, 187, 197, 199, 203–4, 293, 331
208, 218–20, 236, 249–55, 259, 279–80, development
283–4, 290–1, 305, 311, 318, 322, 334, economic 6, 68, 169
337–8, 341, 343–4 also see fair use, industrial 9, 39, 184–5, 241
enforcement, software, Internet Treaties human 138
Correa, Carlos 135, 222, 236–7, 329 social 44
corruption 142, 198, 246, 248, 321, 326 Digital Millennium Copyright Act (DMCA) 111
Costa Rica 71, 76, 78, 79, 85, 88, 93, 96, 101–2, diplomatic threats 161–3
214, 222, 333, 337, 343 disclosure of origin 75, 96–7, 123, 125–6
Côte d’Ivoire 71, 92, 93, 98, 101, 206, 246–7, discourse 19–20, 31, 34, 118, 142, 167, 169–70,
252, 257, 264, 271, 283, 287–90, 292, 294, 172–6, 248, 307–8, 317–18, 321
298–300, 330, 331, 333 disputes, see WTO dispute settlement
Cotonou Agreement 153, 188, 247, 268, 300, Dominguez, Carmen 122, 237
362, 364, 366 Dominican Republic 41, 57, 71, 75–6, 79, 81,
counterfeit 9, 14, 26, 46–8, 52, 54, 61, 66–7, 85, 89, 92–3, 96, 98, 101, 108, 121, 127–8,
116–17, 157, 174, 184, 268, 288, 295, 299, 145, 152, 190, 327, 333, 337, 343
312, 320–1, 325, 342 also see piracy Drahos, Peter 50, 168, 329
countervailing pressure 4, 151, 167, 185–6, Duovir 164
308, 314, 317 Duration 47–8, 253, 256
courts 67, 84, 108, 163, 197, 202, 209, 257, of copyright 26, 93, 259, 266, 337
292, 314, 322–3 of patents 26, 47, 48, 106, 212, 257, 264,
Cox, Robert 32, 60 292, 293, 298
Creative Commons 135, 327 of plant variety protection 87–8
creative industries 9, 15, 348 also see cultural of data protection 83–6, 153, 343,
industries Dutfield, Graham 168, 329
criminalization of IP infringement 14, 67,
160 Economic Commission for Africa (ECA) 38, 296
Cuba 41, 52–4, 57, 93, 98, 107–8, 121–2, Economic Partnership Agreements (EPAs) 153,
126–8, 145, 204, 333 248
cultural heritage 97 economic power, see power

399
Index

Ecuador 37, 39, 50–1, 76, 88–9, 93, 98, 101, fair dealing 91
121–2, 128, 131, 155–6, 167, 187, 217, 223, fair use 6, 7, 91, 93, 105, 110, 335
237, 334, 338, 343 farmers’ rights 88, 89, 106, 134, 213, 258, 266,
education 5, 7, 9, 15, 41–2, 59, 81, 90–2, 102, 270
106, 135, 199, 207, 212, 222, 245–6, 259, farmers’ privilege 110
268, 288, 290, 302, 312, 320, 323–4, 335–6, film and music industries 208 also see
341 entertainment industry
Egypt 25, 31, 40, 52–4, 63, 71, 76–9, 85, 88–9, Finston, Susan 116, 329
93, 96, 98, 100–1, 107, 120–2, 128, 182, folklore 39, 75, 97, 123, 126, 176, 219, 253,
184, 187–8, 190, 193, 195, 199, 214, 216, 286, 291, 294, 300, 302 also see cultural
295, 327, 334, 338, 343 heritage
Ekpere, Johnson 110, 140, 234, 270, 295, food security 9, 123, 131, 224, 308
296–7, 301, 331 Ford Foundation 137, 330
El Salvador 37, 57, 71, 93, 101, 108, 127, 131, foreign aid 20, 170, 217, 225, 242, 248, 305,
337, 343 314
Electronic Frontiers Foundation (EFF) 111, 136 foreign direct investment (FDI) 9, 19, 39, 103,
elites 198, 246–7 164, 170–2, 225, 242, 244, 307, 314, 371,
elite security 246 373
and decision-making 198, 246–8, 311 foreign donors 20, 216, 245–6, 280, 282, 311
technocratic 30 forum-shifting 129, 146, 317
empty promises 16, 30 framing 19, 167–79, 192, 307–8
enforcement 1, 4, 8–15, 18, 25–6, 29, 32, France 35–8, 41–2, 161, 183, 188, 228, 241,
47–51, 61, 65, 67, 70–1, 74, 95, 111, 245–50, 263, 266, 282, 286, 288–9, 378
116–17, 120, 128, 130, 153–6, 157, 160–4, francophone Africa 20, 23–4, 36–8, 73–5, 88,
165–7, 171, 176–82, 188–89, 197, 199, 212, 93, 102, 171, 197, 206, 214, 219, 232,
220, 225, 248, 251, 254, 256, 264, 267, 277, 240–85, 286–99
280, 284, 286, 292, 304, 307, 312, 320–1, free trade 153, 162, 171, 187 also see Free Trade
342 also see piracy and counterfeiting Agreements (FTAs)
entertainment industry 8–9, 47, 114, 171, 179, Free Trade Agreements (FTAs) 55, 78, 85, 93,
208 95, 129, 131, 148, 151–3, 159, 162, 164–5,
epistemic community 30, 168, 192 also see 171–2, 186–8, 209–10, 218–19, 221–4, 238,
knowledge communities 269, 306–7, 337–42
Essential Action 276 Free Trade Area of the Americas (FTAA) 165,
European Commission 50, 53, 62, 81, 117, 136, 172, 223
158, 179, 183, 227 free-riding 46
European Free Trade Area (EFTA) 129, 154 French National Institute for Intellectual
European Free Trade Association (EFTA) 129, Property (INPI) 35, 128, 181, 249–51,
148, 154, 188, 338–9 260–1, 263, 267, 269, 278–82, 285, 290,
European Neighborhood Policy (ENP) 153, 188 294, 302, 331
European Patent Convention 77 Fundacao Getulio Vargars (FGV) 136
European Patent Office (EPO) 181, 182–3, 201, funding, see budget
285, 327, 331
European Union (EU) 8, 30, 48, 50–1, 66, 71, G-8 117, 172
78, 107, 114–15, 117–18, 126–9, 153, Gabrieloni, Marta 122, 190, 328
156–7, 176, 183, 187, 194, 202, 231, 246, Gene Campaign 136
248, 268, 306 General Agreement on Tariffs and Trade
European-ASEAN Intellectual Property Rights (GATT) 1, 44, 48, 50–2, 54, 62, 65, 105,
Cooperation Program (ECAP) 181 157–8
exclusive marketing rights 68–9, 116, 127, General Assembly
157–8, 189, 191, 221, 255, 317 of WIPO 128, 132, 147
exhaustion regime 75–6, 215 also see parallel of United Nations 42, 44, 45, 59, 60
imports Generalized System of Preferences (GSP) 49,
expertise 51–3, 55, 61, 160, 162, 165, 166, 177, 191,
intellectual property 36, 180, 198, 311, 316 228, 297
legal: 10, 55, 68, 198, 203, 261, 282, 324 generic medicines 79, 83, 166, 190, 212, 224–5,
technical: 4, 23, 141, 167–9, 197, 201, 214, 272, 284, 298–9, 312
242, 262, 266, 311, 315 Generic Pharmaceutical Association 134

400
 Index

Genetic Resources Action International economic 350, 395

(GRAIN) 63, 109, 134, 136, 137, 143, 195, also see ideational power
210, 265, 269, 272, 287, 292–4, 296–7, 301 Idris, Kamal 27, 140–2, 170, 192, 365, 374
genetic resources imitation 10, 46, 243, 305, 312
origin of 75 implementation game 3, 186, 196, 304, 313,
disclosure of origin of 75, 96, 125 323
genetically-modified organisms (GMOs) 278 incentives 6, 31, 64, 96, 114, 137, 176, 181,
also see biotechnology 184, 216, 279, 311, 322
Geneva Declaration on the Future of WIPO 137 India 8, 10, 15, 25–6, 34–6, 39–42, 47–55, 58–9,
geographical indications 5, 10, 26, 41, 70, 106, 63, 71, 74, 76, 85, 88–96, 98, 100–1, 105–9,
143, 220, 291, 343 112, 116, 119–22, 125–7, 130, 134, 136,
Gerhart, Peter 22 157–9, 162–5, 168, 171, 175–6, 184, 188,
Germany 37, 188, 201, 288, 289 189–92, 198–9, 201, 203–8, 212, 213, 227,
Ghana 71, 73, 76, 79, 83, 85, 93, 98, 100, 136, 230, 232, 234, 258, 298, 305, 310, 312, 315,
145, 152, 164, 194, 198, 209, 230, 236, 248, 319, 327, 334–6, 338, 343
327, 333 indigenous peoples 125, 136, 208, 223
Gillespie-White, Lee 192 Indigenous Peoples’ Biodiversity Network
Glaxo 164, 212, 227, 258 (IPBN) 136
globalization 2, 20, 236 Indonesia 51, 53, 63, 71, 76, 83, 85, 91–3,
Gore, Albert 226, 229 98, 101, 121, 152, 189, 230, 236, 335–6,
Gorlin, Jacques 63, 116 343
Greengrass, Barry 140, 186 industrial designs 7, 10, 37, 67, 141, 219–20,
‘Group of 77’ 27, 54, 119, 144, 145, 175, 193, 253–4, 332
325 Industrial Property Organization for
Group of Friends of Development 128, 326 English-Speaking Africa (ESARIPO) 38
GRULAC 130 industry associations 25, 33, 115, 171, 184,
Guatemala 37, 66, 71, 76, 78–9, 85, 88–9, 93, 209, 277
98, 101, 108, 127, 184, 223, 237, 337, 343, Industry Functional Advisory Committee
351, 373–4 (IFAC) 115, 122, 143, 225
Guinea 71, 76, 83, 92, 93, 98, 101, 145, 206, industrial
230, 243–4, 252, 257, 259, 264, 277, 283–4, applicability 79, 80, 108, 202
286–8, 293–5, 300–1, 330 designs 7, 10, 37, 67, 141, 219, 220, 253,
Gulf Cooperation Council (GCC) 172, 188, 254, 332
217, 220 development 9, 39, 184, 241, 252
Gurry, Francis 149 property office/service 67, 252–3
information age 377
Haddad, William 134, 147 infringement 14, 36, 67, 92, 108, 157, 160,
Hague Agreement 37, 332 184, 188, 254, 266, 293, 341, 342 also see
Haiti 37, 41, 92–3, 98, 101, 145, 339 piracy and counterfeit
harmonization 23, 129, 187, 220, 240, 289 innovation 5, 6, 9, 15, 20, 28, 36, 43, 51, 64–5,
Health Action International (HAI) 55, 134, 210, 81, 92, 99, 103, 119, 134–5, 169, 170, 173,
273 175–6, 222, 244, 281, 285, 308, 321,
Health Gap 136 323–5
HIV/AIDS 118, 126, 144, 148, 164, 190, 208, Institute for Agriculture and Trade Policy
213, 229–30, 235, 243, 272, 274, 287, 297, (IATP) 135
299, 312, 319 institutions, role of 8, 11, 35, 92, 100, 139,
Honduras 57, 71, 75–6, 79, 85, 88, 93, 100, 143, 148, 171, 196–8, 212–13, 217, 232,
108, 121, 127, 160, 165, 191, 337, 343 247, 249, 263, 290, 310–11, 313, 320–1,
Hong Kong Ministerial 126 341
Human Genome Project 174 institutional capacity 2, 15, 19, 34, 198, 219,
human rights 16, 22, 130–1, 135, 147, 173, 242, 286, 315–16
211, 224 institutional power, see power
intellectual property 1, 28, 30, 34, 45, 50, 52,
Iceland 129, 154, 195 94, 107, 114, 118–19, 139–40, 155, 171–3,
ideas 183, 188, 193, 204, 217, 227, 252, 260, 263,
about reputation 16, 20, 105, 248, 267, 305, 266, 269, 276, 288, 291, 295, 301
307, 314, 356 abuses of intellectual property rights 109–10

401
Index

intellectual property (cont.) International Treaty on Plant Genetic Resources

offices 3, 15, 20, 22–3, 95, 109, 118, 125, 133, (ITPGRFA) 130–1
161, 171, 179, 181–2, 184–5, 196–221, 232, internet 64, 94, 111, 116, 125, 129, 134, 152,
237, 242–3, 250, 261–2, 266, 269, 271–2, 174, 184, 221, 262, 280, 284, 301, 316, 341,
275, 277–86, 301–2, 309–16, 318, 320, 343 also see WIPO Internet Treaties
323 also see copyright offices and patent Interpol 117
offices interoperability 90, 93
Intellectual Property Committee (IPC) 53, 61, interplay
63, 332 of negotiations and implementation 3, 4,
Intellectual Property Owners, Inc 143 151, 197, 314
Intellectual Property Watch (IP-Watch) 25, 142, of domestic and global politics 4, 17, 20,
195 113, 212, 220, 229, 231, 241, 303, 304
interest groups 5, 7, 15, 20, 24, 134, 137, 142, inventive step 14, 80, 87, 202
182, 184, 205–9, 222, 227, 233, 266, 277, investment 7, 9, 16, 19–20, 39, 46, 50, 58, 103,
308, 312–13, 315–16, 318, 325 119, 129, 151, 154, 218, 224, 225, 240–2,
Intergovernmental Working Group on Public 247–9, 269, 276, 282, 287, 296, 305, 307,
Health, Innovation, and Intellectual 314, 319, 323, 337
Property (IGWG) 132 in R&D 7, 28, 46, 99, 173, 262, 266, 321
international agreements 16, 22–3, 29, 140, IP-health 135
205, 255, 259 Ismail, Faizel 122, 145, 234, 238, 328
International Anti-Counterfeiting Coalition Italy 37
(IACC) 115
International Centre for Trade and Sustainable Jamaica 71, 85, 93, 100, 107, 127, 145, 154,
Development (ICTSD) 29, 61–3, 106–7, 183, 200, 236, 338, 344
109, 135–7, 139, 149, 163, 188, 215, 234–7, Japan 8, 36, 46, 51, 53–4, 114, 117–18, 129,
299, 329, 330–1 143, 154, 156, 161, 178, 180, 183, 188, 194,
International Chamber of Commerce (ICC) 33, 201, 205, 264, 294–5
42, 115, 143, 365 also see Chamber of Japan Patent Office (JPO) 180, 201
Commerce Japanese International Cooperation Agency
International Federation of Libraries (JICA) 181
Associations (IFLA) 106, 136, 365 Jordan 66, 78–9, 81–2, 89, 92–3, 98, 101, 107,
International Federation of Pharmaceutical 152, 154, 156, 159, 172, 184, 187–8, 221,
Manufacturers and Associations 237, 330, 334, 340–3
(IFPMA) 33, 115–16, 330 Jorge, María Fabiana 134
International Federation of the Phonographic
Industry (IFPI) 143, 192 Kaletra 231
International Institute for Sustainable Kenya 71, 72, 76, 79, 83, 85, 88, 89, 93, 95, 98,
Development (IISD) 115 101, 109, 120–2, 127–8, 145, 190, 198, 204,
International Intellectual Property Alliance 208, 211, 234–6, 295, 297, 327, 330, 334
(IIPA) 115 Khor, Martin 29, 109, 136, 144, 239, 367
International Intellectual Property Institute knowledge communities 19, 167–8 also see
(IPPI) 116, 184, 194 epistemic communities
International Monetary Fund (IMF) 53 Knowledge Ecology International 135, 330,
international organizations (IOs) 3, 16–18, 20, also see CPTech
22–4, 31–2, 39, 129, 132, 137–40, 148–9, Korean Intellectual Property Office (KIPO) 181,
162, 164, 167, 172, 180–5, 190, 210, 214, 201
267, 280, 282, 306, 308–9, 311, 313, Krappie, Patrick 122
322–3
authority of 138–41, 186, 242, 281–2, Latin America 8, 29, 35, 37, 41, 44, 50, 58,
308 121, 130, 134, 154, 161, 187, 191, 195,
Secretariats in 22, 25, 36, 137, 138, 139, 204, 233
179–80, 277, 281, 324 also see WIPO least-developed country (LDC) 3, 12, 13, 21,
international political economy 21, 22 28–9, 68–73, 84, 92, 98, 100, 102–3, 116,
International Publishers’ Association (IPA) 119, 121–2, 126–8, 145–6, 155–6, 181,
143 208–9, 240, 243, 245, 255–9, 263–5, 272–4,
International Telecommunications Unions 277, 280–1, 293, 295, 298, 300–1, 303, 306,
(ITU) 180 315, 318–19, 399

402
 Index

leadership effect of IP on access to 6, 9, 13, 69, 75, 82–4,

individuals 122, 137, 140, 315 108, 202, 209, 213, 237, 241–2, 243, 272,
international organizations 139–42, 266, 322
268, 285 Menon, Gopal 122
within governments on IP 214, 285, 320 Merck 108, 163, 166, 213, 226, 230
legal security 47, 209, 273 Mercosur 186, 220, 236
legitimacy 18, 175, 186, 304, 307, 318, 322 Mexico 25, 35, 37, 39–41, 47, 51–3, 55–8, 63,
Lehman, Bruce 116 71–2, 78, 89, 92–3, 98, 100–2, 108, 112,
Lesotho 38, 93, 98, 101, 145, 224, 236 116–17, 122, 127, 153, 171, 187–8, 192,
libraries 90, 206, 255, 324, 341 198, 207, 218, 319, 330, 334, 337, 343
Libreville Agreement 38, 250, 290 micro-organisms 68, 77–8, 157, 297, 334
licensing Microsoft 164, 210, 235
arrangements 28, 135 Mongolia 78, 91, 92, 93, 98, 156, 335, 336,
contracts 341 342
costs 257 monitoring 16, 19, 22, 49, 70, 133, 147, 159,
fees 10, 42, 244, 321 160, 167, 169, 176, 177–9, 196, 242, 262,
royalties 10, 39, 42, 91, 205, 218, 233, 244, 264, 307–9 also see surveillance
292, 301, 321 monopoly 1, 43, 45, 216, 244, 312
technology transfer through 19, 28, 39, 44, privilege 6, 172
45, 51, 70, 103, 120–3, 126, 144, 170, 175, Monsanto 28, 163, 174, 225, 278, 300
240, 260, 285, 307, 324 Mooney, Pat 136
Lichtenstein 129, 154, 195 moral right 105, 110
limitations and exceptions (to copyright) 11, Morocco 40, 57, 71, 75–6, 78–9, 89, 93, 98,
90, 91, 106, 111, 203 100, 102, 107, 151, 171, 186–7, 221–2, 295,
lobbying 16, 30, 115, 169, 185–6, 206–7, 225, 334, 338, 340–2
231, 233, 276, 306 most-favored nation (MFN) treatment 65, 68,
lobbyists 1, 51, 114, 116, 134, 164, 168, 208 75, 105, 154, 188
local working 157–9, 166 Mozambique 83, 93, 98, 101, 145, 152, 198,
Love, James 136, 193, 208, 226, 229, 327, 332 229, 236, 339
Lusaka Agreement 38 multilateral
agreements 116, 175, 318
Maca 125 fora 50, 117, 128
Macarthur Foundation 137 negotiations 52, 133, 160
Madrid Agreement 37, 235, 332 multinational corporations 2, 3, 10, 18, 139,
Malawi 73, 76, 79, 85, 93, 98, 101, 145, 236 168–9, 182–5, 188, 209, 241, 306–7, 314,
Malaysia 35, 41, 51, 53, 63, 71, 76, 79, 83, 85, 322
88, 92–3, 98, 101–2, 109, 152, 171, 187, and associations 33, 115, 141, 143, 169,
212, 230, 236, 319, 334, 340 171–2, 183, 207
Maldives 93, 98, 101, 106, 128, 145–6 and consolidation 197, 304, 318–20
Mandela, Nelson 277 and lobbying 1, 16, 30, 115, 135, 164, 169,
Maskus, Keith 26, 28–30, 33, 111–12, 144, 193, 184–5, 206–7, 225, 231, 233, 236, 302
287
Matthews, Duncan 28, 30–2, 57–8, 61, 63, 106, Namibia 71, 89, 90, 93, 97, 100, 101, 145, 224
145–6, 148, 194–5, 331 Napoleonic Code 35
Mauritius 38, 76, 79, 85, 88, 93, 101, 145, 152, National Academies for Science (NAS) 134
194 national treatment 36, 50, 62, 65, 68, 75, 104,
Max Planck Institute for Intellectual Property, 105
Competition and Tax Law 116 Navarro, David 140
May, Christopher 28, 31, 57, 60, 61 Ndirangu, Nelson 122, 327
Médecins Sans Frontières (MSF) 25, 30, 135–6, Neem tree case 125
139, 147–9, 185, 193, 195, 210, 223, 235, negotiations, on IP 2, 5, 8–9, 24, 28, 51–2, 55,
237, 241, 272–4, 276, 287, 296, 298–9, 69, 72–6, 81, 86, 106, 114, 116, 120, 128,
300–1, 319, 325–6, 330–1 134, 142, 159, 175, 198, 218, 261, 304–5,
medicines 311, 313
access to 40, 83, 126, 134–5, 173, 208, 211, Nepal 25, 29, 71, 73, 93, 98, 101, 145, 155–6,
229, 234, 237, 245, 258, 272, 274, 298–9, 207, 333, 338
312 Netherlands 37, 137, 188, 327

403
Index

New International Economic Order (NIEO) 8, Otten, Adrian 106, 140, 194
44, 60 Oxfam 25, 30–1, 135–6, 144, 210, 237–8, 299,
New Partnership for Africa’s Development 314, 330
(NEPAD) 192, 289–90, 301
Neyra, Alejandro 122, 234, 328 Pakistan 41, 54, 71, 76, 79, 82, 85, 88–9, 93,
Nicaragua 77–9, 85, 89, 93, 100–1, 108–10, 98, 101, 107, 121–2, 127, 152, 157–8,
131, 155, 336 160–3, 190, 200–1, 328, 334
Nigeria 35, 52–4, 71, 76, 79, 92–3, 98, 101, 121, Pan American Health Organization (PAHO)
127, 145, 152, 198, 205, 247–8, 288–9, 328, 140
331, 334 Paraguay 51, 57, 71, 76, 79, 93, 100–1, 107,
non-governmental organizations (NGOs) 3, 15, 121, 127, 155, 237, 339
17, 18, 22, 24–5, 30–1, 55, 107, 114, parallel imports 11, 75, 76, 127, 144, 225,
117–18, 123, 125–6, 128, 130–41, 146, 148, 227–9, 258, 273, 298, 335, 341–2 also see
164, 166–9, 172–5, 179–80, 182, 183–6, exhaustion regimes
190, 194–5, 207–15, 219, 221, 223, 226, Paris Convention
240, 262, 265–76, 278, 286, 289, 294–5, incorporation in TRIPS 48, 50, 57, 66–7, 105,
301, 303, 307, 308, 311–17, 322, 326, 329, 109, 332
331 also see civil society and social membership 36–7, 42, 45, 47
movements Union 37, 41–3, 45, 57–9
NGO campaigns 19, 55, 117, 126, 128, 131, patent 6, 7, 11–13, 26, 35–9, 42–5, 47–8, 51,
134–6, 169, 171, 174–5, 193, 207–8, 66, 69–87, 96–7, 100–2, 106–9, 114–16,
210–13, 234, 267, 269, 270–3, 278, 289, 123–6, 134, 141, 152–8, 160, 163–9, 172,
297–9, 301, 313, 322 also see access to 176, 182–5, 189, 191, 197, 200–3, 206–7,
medicines campaigns 212–13, 219–21, 224, 227, 230–5, 244,
non-violation complaints 65, 113, 126 250–8, 264–5, 274, 277, 280–2, 287, 291–3,
non-voluntary licence, 83, 230, 254, 273, 292, 298–9, 301, 310, 317, 319–20, 326, 332–4,
299 also see compulsory licence 340
norms patentability, scope of 6, 7, 11, 14, 40, 47–8,
role of 50, 62, 128, 158 68, 74, 76–80, 86, 106, 125, 157–9, 191,
civil society 128, 158, 321 202, 219, 255, 276, 297, 340
North American Free Trade Agreement Patriota, Guilherme 122, 327
(NAFTA) 55, 93, 218, 337 perceptions
Norway 129, 154 of government 102, 169
Novartis 163–4, 191, 231 of IP protection 8, 171, 179, 217, 306
per diem 181, 279
Office Africain et Malgache de la propriété Perez Motta, Eduardo 122, 328
industrielle (OAMPI) 38, 250 Peru 39, 51–5, 63, 71, 76, 93, 95, 98, 100–1,
Oman 93, 98, 101, 108, 152, 156, 219, 235, 120–2, 125, 128, 130, 152, 165, 171, 208,
328, 344 212–13, 217–19, 221–3, 234, 237, 315, 327,
open access journals 135 330, 334, 339, 343
Open Society Institute 137 Peruvian Intellectual Property Office 328
open source movement 134, 135 Pfizer 163, 210, 293
software 174 Pharmaceutical and Research Manufacturers
optical disc 73, 94, 161, 221 Association of America (PhRMA) 33,
ordre public 77, 270 114–16, 142, 162, 194, 225–7, 238, 329
Organisation Africaine de la propriété pharmaceutical
intellectuelle (OAPI) 38, 75, 79, 85, 88–9, companies, 47, 126, 163, 167, 168, 174, 183,
93, 97, 107, 111, 140, 180, 198, 219, 236, 191, 209, 210, 213, 223–9 also see individual
240–302, 314, 322, 331 companies
Organization of African Unity (OAU) 140, industry 9, 132, 139, 162–5, 177, 182, 191,
234, 259, 265–7, 269–72, 293, 295, 297, 223, 225, 227–8, 230, 317
331 process patents 49, 67, 79, 254
Organization for Economic Cooperation and product patents 73, 79, 202–3
Development (OECD) 112, 168, 183, 188, products 11, 40, 47, 51, 69, 73, 82, 107, 114,
194, 288, 329 153, 155, 157, 176, 209, 213, 221, 225, 230,
Organization of American States (OAS) 44, 203, 234, 253, 256–7, 276–7, 299, 319, 333–4,
210 341 also see medicines

404
 Index

Pharmaceutical Manufacturers of South Africa public policy

(PMA) 163, 226, 238 goals 6, 77, 138, 184, 199, 323–4
Philippines 30, 36, 38, 50, 55, 71, 75–6, making 5, 21, 54, 169, 172, 201, 261, 264,
79, 85, 88–9, 91–3, 96, 98, 108, 119, 311–13, 317, 323, 329
121–2, 127, 130, 136, 147, 155, public research funding 173
163–5, 183–4, 195, 199, 201, 206–8, 210, publishers 26, 35, 43, 277, 324
212, 214, 224–5, 236, 327–8, 334–6, publishing industry 134
339
Philippines Intellectual Property Office (IPO) Quaker United Nations Office (QUNO) 135,
184 137, 215, 299, 330
pipeline protection 74
piracy 25–6, 47, 55, 67, 94, 100, 102, 113, 117, reformist IP agenda 39–40, 44, 218
123, 125, 134, 143, 157, 171–4, 184, 193, regional IP agreements 97, 187, 206, 217, 220
208, 268, 278, 286, 288, 295, 299, 312, also see Andean community, ARIPO, OAPI,
320–1, 325 GCC
plant breeders rights 5, 10, 42, 86–8, 266, 324 regional organizations 211, 232, 314, 323 also
also see Article 27.3 (b), farmers’ privilege, see regional IP agreements
farmers’ rights regulatory capture, 46, 138, 200, 206, 242, 322
plant variety protection 11, 25–7, 30, 71–2, 74, see capture
86–9, 110, 125, 152, 186, 199, 203, 208, Reichman, Jerome 27, 29, 61, 105, 135, 190,
211–14, 218, 224–5, 236, 243, 253, 254, 193
258–9, 263–9, 270–1, 275, 277, 293, 316 reputation
also see plant breeders’ rights and Article building 16, 20, 105, 307
27.3 (b) role of intellectual property rights in
Poland 116 improving 16, 248, 267, 305, 314
policymaking vacuum 242, 261, 278–85 research and development (R&D) 7, 10, 15, 40,
Portugal 37, 249 46, 81, 103, 173, 208, 234, 244, 262, 300,
post-agreement bargaining 22, 31 312, 325
post-TRIPS strategy 113, 118, 125, 128, 142, reverse engineering 9, 46, 92–4, 110, 134, 341
144, 154, 202, 204, 268, 303, 307 rights
power patent holders’ 39, 47, 67, 84, 212, 274, 298,
economic power 1, 19, 54, 114, 151, 161, 341
164, 166–8, 305–6 indigenous peoples 125, 136, 208, 223
ideational power 19, 20, 151, 167, 180–2, human 16, 22, 130–1, 135, 147, 173, 211,
186, 306 224
institutional power 32, 148 farmers’ 88–9, 106, 134, 213, 258, 266, 270
structural 32, 42, 53, 289 plant breeders’ see plant breeders’ rights
pressure Roche 108, 230, 231
economic pressure 4, 16, 19–21, 151, 186, Rockefeller Foundation 136, 148, 366, 382
305–6, 308–9, 315 Roffe, Pedro 57–61, 106, 109, 140, 146, 235–7,
ideational pressure 19–20, 167–86, 151, 232, 329
317 Rome Convention 332
principal-agent theory 148 royalties 10, 39, 42, 91, 205, 218, 233, 236,
prior art 80, 125 244, 292, 301, 321
prior informed consent (PIC) 96–7 Rural Advancement Foundation International
private sector 115, 139, 143, 207, 209, 252 also (RAFI) 135, 136, 211, 265, 269–70, 287,
see multinational corporations and 292, 294, 296–7, 300, 331 also see ETC
industry Russia 116
protectionist 54, 118, 172 Rwanda 73, 83, 93, 98, 100–2, 127, 145, 204,
public health 7, 9, 11, 17, 33, 55, 65, 68–9, 333
82–3, 85, 102, 105, 109, 122, 123, 126–7,
130, 131, 132, 133, 134, 136, 138–9, 146–8, Saint Lucia 71, 85, 93
160, 162, 164–5, 173, 184, 186–7, 191, 207, sanctions, trade 49, 151, 159–60, 164, 229,
208, 211–12, 214, 221–4, 228–9, 243, 245, 305
269, 272–5, 277, 286, 292–3, 298, 300, 311, threat of 19, 55, 119, 151, 159–60, 164, 229,
319–20, 323, 341 306
Public Health Institute 85, 109 science 44, 173, 198, 213, 232, 234, 270, 323

405
Index

scientists 21, 206, 232, 244, 251, 287, 300, Sudan 41, 79, 98, 206, 236
324 sui generis system 11, 42, 68, 86, 125, 176, 256,
secretariats, see international organizations 258, 293 also see plant variety protection
seed companies 9, 28, 114, 155, 208, 270, 278, and UPOV
300 Sulston, Sir John 174
seeds, access to surveillance 159, 164, 176, 213, 225 also see
farmers’ varieties 10, 30, 55, 86, 88, 90, 110, monitoring
154, 208, 245, 270 web of 36
patents 27, 28, 30, 52, 147 sustainable development 16, 139, 275
Sell, Susan 52, 60–3, 148, 160, 191, 193, 234, Sweden 137, 183
329 Swedish International Development Agency
semiconductor 46, 106 (SIDA) 137
Senegal 71, 76, 93, 98, 100–1, 108, 122, Switzerland 28, 37, 54, 117, 129, 143, 154, 164,
145, 193, 205, 211, 214, 235, 246–7, 251–2, 179, 183, 188, 195, 338
257–8, 263–4, 274–5, 284, 286, 289–90,
294–6, 298, 300–2, 330–1, 334, 339 t’hoen, Ellen 136, 330
Shiva, Vandana 63, 193 Taiwan 46, 50, 83, 89, 122, 155–6, 179, 194,
Singapore 53, 55, 63, 71, 76, 78, 89, 93, 98, 339, 344
100, 108, 122, 152, 188, 221, 236, 319, 338, Tanzania 52–4, 76, 79, 85, 93, 98, 101, 128,
340–2 145, 236, 335
Smith, Eric 28, 116 technical assistance 12, 16, 31, 122–3, 128,
social contract 80 131, 139–40, 145, 171, 179, 180–8, 194–5,
socialization 170, 182, 217, 236, 279, 285, 311, 200–1, 203, 209, 216, 220, 224, 235, 242,
325 279, 293, 295, 301–2, 306, 309, 310–11,
social movements 135, 176, 192, 208, 305 also 313, 314–16, 318, 328 also see capacity
see non-governmental organizations building
(NGOs) and civil society technical capacity 23, 132, 200, 221, 243,
soft law 170, 279 277–8, 282, 311, 315
software industry 92, 171, 192, 209 technocratic 30, 141, 184, 202, 323
software piracy 163, 192 also see piracy trust 184, 202
South Africa 13, 57, 75–9, 81, 89, 93, 95, 97–8, technological capacity 36, 99, 102–3, 176,
101–2, 108, 114, 122, 126, 128, 136, 145, 241
150, 153, 160, 163, 165, 187, 198, 205–8 technological protection measures (TPMs) 94,
211–13, 220, 224–30, 234, 238, 287, 295, 111, 341
308, 310, 312, 319, 328, 334, 339, 344 technology
South Centre 29, 31–2, 104–5, 109–10, 132–3, access to 45
135, 139, 142, 144, 163, 195, 215, 233–4, transfer of 44–5, 65, 94, 126, 141
236, 289, 296, 329 Code of Conduct 44–5
South Korea 49, 53, 55, 63, 71–2, 93, 98, 100–2, concerns of developing countries 319
108, 152, 190–1, 334 effects of TRIPS implementation 1, 12, 44,
Southeast Asia Regional Initiatives for 66, 69–70
Community Empowerment (SEARICE) negotiations 123, 125, 234, 323
136 and relationship to intellectual property
Southern African Customs Union (SACU) 187, 10, 78, 102–3, 114–15, 120, 208–9, 213,
224 282
Spain 37, 107, 249, 265 telecommunications industry 134
Sri Lanka 50, 71, 76, 78, 79, 80, 89, 92, 93, test data protection, see data protection and
101, 121, 127, 155, 187, 327, 328, 334, data exclusivity
339 textiles 8, 56, 144, 245, 320
Stiglitz, Joseph 2, 26–7, 144, 174, 193 Economic Community of West African States
Strategy Targeting Organized Piracy (STOP!) (ECOWAS) 248, 289
116 Terminator technology 174
Structure nationale de liaison (SNL) 25, 279, Treatment Action Campaign (TAC) 136, 211,
283, 291, 302 213, 235
subsistence farmers 243 Third World Network (TWN) 25, 109, 132–6,
Substantive Patent Law Treaty (SPLT) 129, 130, 142, 195, 210, 232, 235, 269–70, 297,
132, 146 332

406
 Index

trade agreements National Trade Estimate Reports 25, 111,

bilateral 19, 50–2, 64, 66, 78, 92, 98, 129, 299, 300
136, 148, 151–3, 161, 170, 187, 193, 212, ‘Special 301’ 22, 25, 32–3, 49–53, 55–63, 111,
224, 305, 317 114–15, 129, 159–65, 176–7, 179, 190–1,
multilateral 1, 29, 308 225, 227, 229, 276, 343–4
trade deficit 46 Omnibus Trade and Tariff Act of 1988
trade policy 46, 48, 115, 172, 209, 217, 229, (Omnibus Trade and Competiveness Act of
313, 316 1988) 49
trade secrets 6, 10, 71, 83–5, 106, 190 Patent and Trademark Office (USPTO) 61,
trademark 5, 7, 10, 14, 39, 47, 57, 67, 71, 76, 116, 118, 143, 150, 161, 184, 201, 206, 208,
94, 100, 117–18, 141, 160, 173, 181, 183–4, 327
189, 202, 207, 218, 220, 235, 244, 250–4, Priority Watch List 49, 52, 159, 165, 177,
282, 327 306, 343–5 also see Special 301
traditional knowledge (TK) 38, 55, 75, 90, Section 301 48, 191
96–7, 105, 123–6, 130, 208, 219, 245, Section 306 159, 343–4
275, 284, 286, 297, 300, 305, 307, Section 337 49, 50, 61–2, 160, 190
319–20 Tariff and Trade Act of 1984 48
training 36, 70, 99, 169–70, 180–8, 200, 216, Trade and Development Agency (USTDA),
235, 261, 263–4, 273, 280–1, 282, 290, 301, also see USAID 184
306, 311–15, 321, 324 also see technical Trade Representative (USTR) 25, 31, 33, 46,
assistance 48–9, 52, 55, 114–15, 117, 136, 143, 150,
transnational corporations 45 also see 159–60, 165, 171, 176, 188–9, 206, 221–3,
multinational corporations 226–9, 233–4, 238, 269, 280, 306, 341,
transnational NGO campaigns 211 346
transparency 47, 178 Trade Act of 1974 49
Treatment Action Campaign (TAC) 136, 211, Watch List, see Special 301
213, 235 Uganda 25, 76, 79, 93, 98, 100–1, 122, 131,
Trilateral Patent Offices 118, 129, 144 145, 161, 164, 175, 211, 236, 333
TRIMS, see WTO Ukraine 116, 160, 165
Trinidad and Tobago 41, 71, 76, 79, 85, 89, 93, undisclosed information 10–11, 83, 221
108, 145, 155, 334, 339 unfair commercial use 84, 157, 256
TRIPS Action Network (TAN) 135 Union for the Protection of New Variety of
TRIPS Council, see WTO Plants (UPOV)
TRIPS, see Agreement on Trade-Related Aspects Convention 42, 59, 104, 154, 180, 182,
of Intellectual Property Rights 224–5, 241–2, 256, 258, 260, 263, 265–7,
Tunisia 37, 40, 71, 76, 78–9, 85, 89, 93, 100–1, 270–4, 332
107–8, 187, 334, 339 membership 89
Turkey 71, 73, 89, 93, 102, 107–8, 121, 127, provisions 86, 88
188, 195, 339, 344 relationship with WIPO 59, 139, 186, 269,
271–2
United Kingdom Union of Industrial and Employers’ Federations
Department for International Development of Europe (UNICE) 115
(DFID) 137, 174, 193, 328–9 United International Bureaux for Intellectual
Patent Office 180, 327–8 Property Protection (BIRPI) 36, 42–3, 60,
also see Commission on Intellectual Property 149, 250
Rights United Nations
U.S. see United States Resolutions 42, 44–5, 59, 60–1
United States WIPO’s status as a specialized agency of 45
Agency for International Development UN Development Programme (UNDP) 28,
(USAID), also see USTDA 181, 184, 223–4, 138–9, 149, 162, 180, 195, 287–8, 328
280, 300 UN Economic and Social Council
Administration 48 (ECOSOC) 42, 44–5
Bush Administration 166 UN Education, Scientific and Cultural
Clinton Administration 159 Organization (UNESCO) 41, 59, 130, 180,
Executive Order 118, 144, 297 216, 250, 318, 332
International Trade Commission (ITC) 116, UN Food and Agriculture Organization
118, 160, 190 (FAO) 31, 55, 130–1, 194, 297, 311, 318

407
Index

UN Industrial Development Organization World Customs Organization (WCO) 117, 130,

(UNIDO) 44 180
UNAIDS 138–9, 147, 180, 184, 195, 267, World Economic Forum (WEF) 25, 100, 102,
272–3 112
United Nations Conference on Trade and World Health Organization (WHO) 18, 24, 130,
Development (UNCTAD) 18, 24, 27–30, 132, 137, 138, 140, 159, 162, 164, 179, 184,
43–5, 60–3, 106–7, 111, 130, 132, 135, 190, 216, 225, 228–9, 267, 273–5, 287, 298,
138–40, 148, 162, 180, 184, 188–9, 191, 308, 309, 311, 328
193, 233, 287, 302, 307, 308–11, 329 World Health Assembly (WHA) 138, 162,
United Nations Environment Programme 228, 273
(UNEP) 131 World Intellectual Property Organization
United Nations High Commission on Human (WIPO)
Rights (UNHCHR) 130 association with UPOV 39, 59, 269, 271–2
Universal Copyright Convention (UCC) 41–3, Bureaux internationaux réunis pour la
59 protection de la propriété intellectuelle
Uruguay 41, 53, 54, 76, 79, 81, 85, 89, 93, (BIPRI) 42–3, 250
100–2, 107, 236, 328, 334, 339, 344 Convention 47, 61, 140, 268, 300, 332
Uruguay Round 1, 8, 12, 21, 27, 34, 51–2, 55–6, Copyright Treaty (WCT) 94, 146–7, 332
62, 116, 118, 134, 138, 144, 155, 159, 205, Development Agenda 128, 130–2, 135, 142,
262, 303, 307 147, 175, 186, 308, 317, 320, 324
utility models 5, 67, 75, 96, 105, 253–4, 293, Director-General of 141 also see Idris, Kamil
332 Industry Advisory Commission (IAC) 141,
149
variation Internet Treaties, 64, 111, 125, 129, 152,
in IP protection 96–104 184, 280, 301, 316, 318 also see WCT and
in IP standards 12–14, 64–96 WPPT
in timing of TRIPS implementation 5, 64, Intergovernmental Committee on
70–2 Intellectual Property and Genetic
in enforcement 4, 14, 67, 70 Resources, Traditional Knowledge and
in IP protection pre-TRIPS 10, 191, 203 Folklore (IGC) 126, 130
in use of TRIPS flexibilities 64–106, 337 International Bureau, see Secretariat
in bilateral trade agreements 64, 92, 98, 129, Patent Cooperation Treaty (PCT) 129, 141,
340–1 201, 204, 235, 291
in government capacity 197–205 Performance and Phonograms Treaty
in public engagement 205–11 (WPPT) 94, 146, 301
variation in government relationship with other international
coordination 211–20 organizations 140
Velásquez, Germán 139, 140, 162, 195, 237, Secretariat 129, 131, 139, 140–1, 170, 176,
298, 328 182, 281, 283, 285
Venezuela 25, 51, 53, 57–8, 76, 88, 93, 98, Substantive Patent Law Treaty (SPLT) 129–30,
101–2, 121, 128, 201–2, 212, 217–18, 132
236–7, 334, 344 treaties administered by 61, 332
Vietnam 29, 36, 47, 50, 73, 76, 78–9, 85, 89, World Summit on Sustainable Development
92–3, 107, 155–6, 201–2, 236, 340, 342–4, (WSSD) 131
346 World Summit on the Information Society
(WSIS) 131
Watal, Jayashree 28, 29, 62, 105, 108, 111, 140, World Trade Organization (WTO)
190, 192–3, 195, 325, 328 accession negotiations 189
Weissman, Robert 226, 237, 289 Cancun Ministerial 126
Wellcome Trust 134 cooperation agreement with WIPO 181, 337,
West Africa 210, 249, 276, 288–9, 299, 331 338, 339
West African Economic and Monetary Union dispute settlement 11, 12, 19, 31, 65, 81,
(WAEMU) 152, 276 107, 109, 111, 156–9, 166, 191, 343
wines 70, 114, 127, 253–4 Doha Ministerial 127, 347, 370, 398
World Bank 10, 53, 58, 149, 162–4, 180, 183, Seattle Ministerial 351
191, 246–7, 287, 329 negotiations at 22, 131, 214, 232, 289, 295

408
 Index

relationship with WIPO 24, 25, 180, 284 Yu, Peter 59, 61, 148, 326
Secretariat 25, 71, 106, 176–82, 189, 264, Yugoslavia 52, 53, 62
268, 277, 295, 330–1, 336
Trade Policy Reviews 25, 28, 32, 71–2, 83, Zambia 38, 76, 79, 83, 89, 90, 93, 98, 101, 145,
93, 98, 111, 178, 227, 238, 264, 307, 192, 208, 224, 230, 236, 329, 372, 398
334 Zimbabwe 54, 76, 79, 83, 88, 89, 93, 98, 101,
Working Group on Technology Transfer 109, 122, 145, 193, 214, 230, 236, 295, 331
(WGTT) 120, 123, 126, 145 Zoellick, Robert 172

409