Technical and Financial Co-operation Needs for Implementation of the WTO TRIPS Agreement in Uganda
SummaryAs part of its decision of 29 November 2005 extending the transition period for Least Developed Countries (LDCs) to implement the Trade Related Agreement on Intellectual Property Rights (TRIPS Agreement), the World Trade Organization (WTO) Council for TRIPS also mandated LDC members to provide as much information as possible to the Council, preferably by 1 January 2008, on their individual priority needs for technical and financial co-operation in order to assist them in taking steps necessary for implementing the Agreement. To date, however, no LDCs have been able to respond substantively to this invitation and make such submissions to the Council.
The need to make better use of this valuable opportunity for LDCs was discussed by representatives from a group of developed and developing countries, international institutions and Non Governmental Organisations (NGOs) at the Intellectual Property Technical Assistance Forum (IPRTA Forum) meeting sponsored by the UK Department for International Development (DFID) in Bangkok in December 2006.1 As a follow-up to the meeting, a pilot project on “Improving Intellectual Property Technical Cooperation for Least Developed Countries to Facilitate the Implementation of the TRIPS Agreement” was established by ICTSD’s Programme on IPRs and Sustainable Development in partnership with Saana Consulting. The pilot project is aimed at providing technical support to undertake, upon request, a comprehensive diagnostic study and assessment of technical and financial assistance needs on IP and development in LDCs. The project also seeks to facilitate the response by LDCs and their development partners to the invitation made by the WTO Council for TRIPS in 2005.2
As part of the pilot project, a Diagnostic Toolkit was prepared to aid the assessment of needs for IPR technical and financial assistance (IPRTA) in LDCs.3 Based on an earlier version of a common IPRTA needs assessment tool developed by Mart Leesti and Tom Pengelly at Saana Consulting in December 2004, and an ongoing process of stakeholder dialogue, consultation and peer review organized by ICTSD, the Diagnostic Toolkit has been specifically adapted for use in LDCs as they face the challenge of implementing the objectives, principles, rights and obligations of the WTO TRIPS Agreement, whilst taking proper account of the objectives, principles flexibilities, safeguards and Special and Differential Treatment (S&DT) provisions they enjoy because of their LDC status and low levels of human, social and economic development.
Following consultations in Geneva and the online publication via the ICTSD website of the draft Diagnostic Toolkit in early May 2007, ICTSD received expressions of interest from a number of LDCs wishing to participate in conducting a national assessment of their needs for technical and financial co-operation, with a view to submitting the resultant information to the WTO Council for TRIPS. Two such pilot national needs assessments were undertaken in July 2007 in Sierra Leone4 and Uganda.5
The approach to the preparation of each needs assessment report has been based on the overall objective of providing a roadmap for Sierra Leone and Uganda, with their development partners, in building their national IP and technological infrastructure on a sustainable, pro-development basis, and taking the necessary steps for implementation of the objectives, principles, rights and obligations of the TRIPS Agreement.
Full account has been taken of the LDC status of Sierra Leone and Uganda and the country’s right to benefit from the S&DT provisions for LDCs under the TRIPS Agreement, specifically maximum policy flexibility in building a sound and viable technological base and safeguarding public health and nutrition; an extended transition period; and obligations of developed country members to provide technical and financial assistance on mutually agreed terms, as well as incentives for transfer of technology.
A common template has been used for the preparation of the needs assessment diagnostic study reports for both countries in the pilot project, based on the structure of the Diagnostic Toolkit. The two reports are structured as follows:
• Chapter 1 provides a summary of the priority needs for technical and financial co-operation identified in the diagnostic study.
• Chapter 2 describes the overall national development context, including poverty status, economic and innovation structure, form of government, natural resource base, and key human and social development indicators.
• In Chapter 3, the existing IP policy and legal framework is analysed and recent developments are described. Priority needs for technical co-operation and financial assistance are then identified and described.
• In Chapter 4, the existing arrangements for IP administration are analysed. Priority needs for technical co-operation and financial assistance are then identified and described.
• In Chapter 5, the existing arrangements for IP enforcement and regulation are analysed. Priority needs for technical co-operation and financial assistance are then identified and described.
• In Chapter 6, the existing arrangements for promoting use of the IP system for development and promoting innovation, technology transfer and creativity are analysed. Priority needs for technical co-operation and financial assistance are then identified and described. For both Sierra Leone and Uganda, responding to the identified priority needs for IPR technical cooperation, financial assistance and capacity building will need to be taken forward over the medium term in a comprehensive, sustainable manner, consistent with international agreed principles for aid effectiveness as set out in the 2005 Paris Declaration.6 In this case, for each country, the optimum solution is likely to be the development and implementation of a multi-partner, national IPR capacity building programme, co-ordinated by a lead ministry (such as the Ministry of Trade & Industry) and comprising several sub-projects led by relevant key agencies. The programmes could begin with an initial 5 year phase from July 2008 to July 2013. In all probability, further phases of the programmes would be required in both countries.
Such an approach would provide the best prospects for co-ordinating the delivery of technical and financial assistance in Sierra Leone and Uganda for developing the national IP and technological infrastructure on a sustainable basis and taking the necessary steps for implementation of the objectives, principles, rights and obligations of the TRIPS Agreement. In order to be effective, the programme approach should take account of lessons learned to date from IPRTA activities and, most importantly, the limited absorptive capacity and resources of institutions in LDCs. In specific terms, this entails that the programme approach should have the following key design features built-in:
• An initial heavy emphasis on building the capacity of relevant Government agencies to take the lead in co-ordinating, implementing and monitoring projects and activities within the programme and the linkages to related Government policies and programmes.
• A medium-term, strategic common planning framework, with a gradual, patient level of sustained activity supported by the Government and its development partners over the programme period rather than a series of ad hoc events, peaks, troughs and interruptions.
• A strong development focus to the programme, emphasising the need to involve a broad range of stakeholders from across government, the private sector and civil society and to gain their support for the protection of IPRs in the country by raising awareness and demonstrably contributing to national social and economic goals, building a sound and viable technological base and meeting international obligations.
Harmonized, predictable and transparent arrangements for programme funding, • management and co-ordination by development partners, with emphasis on upgrading and utilizing the Government’s own public financial and procurement systems as far as possible.
• Mechanisms for regular multi-partner joint reporting, review and evaluation of a common set of expected results, impacts and outcomes, as opposed to multiple discrete systems which place a heavy and unnecessary burden on the lead government agencies.
The detailed design development of such programmes in Sierra Leone and Uganda would require technical assistance and thorough consultations between Government, national stakeholders and the countries’ development partners. This would probably take at least 6-12 months to complete.
For both countries, the starting point for programme development could be based on the Outline Programme Planning Matrix of strategic objectives, needs identified, main activities proposed to address these needs, lead agencies involved, provisional timings, and possible development partners, provided at Annex A of both of reports of the national needs assessment diagnostic studies.
However, we note that the final decisions on when and how best to follow-up the reports of their needs assessment diagnostic studies, of course, rests with Sierra Leone and Uganda.
A specific issue which each country will need to consider relates to their membership of the ARIPO system for patents, trademarks, industrial designs and copyright, and in particular both countries’ present dependence upon ARIPO for most of their substantive patent examination functions. This therefore raises the question as to whether it would make sense for Sierra Leone and Uganda, as well as other ARIPO members, if an assessment of ARIPO’s needs for technical assistance and financial cooperation should be undertaken and implemented in parallel with their own national programmes.