Less-developed countries will Say No

Although the Doha Round began as a development round and has subsequently led to greater accommodation of needs, interests, and conditions in less-developed countries, developed countries have actively pushed for heightened intellectual property protection and enforcement in the WTO. For example, during the TRIPS Council meeting in June 2006, the European Union called for an "in-depth discussion" of enforcement issues. 84 Together with two earlier proposals,85 the EU effort to push for greater discussion of intellectual property enforcement in the TRIPS Council represented the first attempts by a WTO member to revive such discussion since 1997.86 That effort also reflected the directions of the new EU IPR Enforcement Strategy,87 which the European Commission adopted in November 2004.88

In response to the EU efforts, leading developing countries such as Argentina, Brazil, China, and India registered their strong opposition, citing distractions from WTO trade talks, which they claimed were "supposed to focus on development" in the Doha Round.89 As noted by a Chinese official, the TRIPS Council is "not the right time or right place" to discuss intellectual property enforcement. 90 In China's view, those issues should be handled by the DSB instead.9'

In the next TRIPS Council meeting in October 2006, the European Union, with formal support from Japan, Switzerland, and the United States, submitted to the Council a joint communication seeking to strengthen the implementation of the enforcement provisions in the TRIPS Agreement.92 As the communication declared: "The TRIPS Council is an appropriate forum to examine and assist Members in the implementation of enforcement provisions of the TRIPS Agreement. The work of the TRIPS Council in this regard should complement Members' efforts to use other cooperative mechanisms to address IPR enforcement. ' 93 Citing ongoing challenges in the area, the European Union and the paper's cosponsors: - Invite other Members to engage in a constructive discussion of how to implement the enforcement provisions of TRIPS in a more effective manner. - Invite other Members to engage in a constructive discussion of accompanying measures which could enhance the effectiveness of national implementing legislation and enforcement efforts, such as for example promoting interagency co-operation, fostering a higher public awareness, and reinforcing institutional frameworks. - Ask the Secretariat to prepare a synopsis of Members' contributions to the Checklist of Issues on Enforcement1941 that would serve as a basis for the above-mentioned discussion. - Stand ready, in cooperation with recipients of technical assistance and with relevant international organizations, to better focus the technical assistance they provide in favour of developing countries in order to facilitate the implementation of enforcement provisions.95

When the European Union sought to make a formal presentation of this proposal, less-developed countries objected largely on procedural grounds.96 As a result, the European Union could not formally present its proposal; it made a statement instead, and the proposal was subsequently rejected.97 The reactions from less-developed countries were understandable. These countries were already concerned about the rather high standards required by the TRIPS Agreement, with which they had great difficulty complying following the expiration of the agreement's transitional periods. 98 In effect, less-developed countries were dealing with what Bernard Hoekman and Petros Mavroidis have described as the "Uruguay Round 'hangover'" 99-to be more precise in the intellectual property context, "TRIPS veisalgia." These poorer countries were also very concerned about the growing TRIPS-plus and TRIPS-extra obligations that developed countries had pushed upon them through new bilateral and regional trade and investment agreements. 100

Moreover, less-developed countries feared that a greater discussion of the implementation of the TRIPS Agreement would eventually open themselves to future challenges over non-compliance in the enforcement area.101 To many of these countries, compliance issues should be addressed only through the use of the mandatory WTO dispute settlement process. 102 Some of these countries also feared that a greater discussion of enforcement issues in the TRIPS Council would lead to unconstructive "finger pointing" that would slow down the Council's work while creating unnecessary distractions. 10 3