Least-developed countries, transfer of technology and the TRIPS Agreement

This paper examines the background of Article 66.2 of the TRIPS Agreement, the nature of this obligation on developed country Members that pertains to the promotion of technology transfer to LDC Members and how it is being implemented and how such implementation is being monitored in the TRIPS Council. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) mandates to developed country Members to provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least developed country (LDC) Members in order to enable them to create a sound and viable technological base. This paper introduces the background to this legal obligation; Part 2 provides an understanding of the definition of LDCs in the World Trade Organization (WTO), and thus identifies the potential beneficiaries of this obligation. Part 3 recounts the role of LDCs in the TRIPS negotiations in the Uruguay Round and how their demands were reflected in the final outcome. Part 4 focuses on the text of Article 66.2 and breaks out its main elements in order to analyse the scope and extent of this obligation. Part 5 tracks the monitoring phases of the implementation of Article 66.2 in the TRIPS Council: (a) 1995-1998: not present in the Council's agenda, (b) 1998-2000: inclusion in the agenda and notification of the first reports, (c) 2001-2003: negotiating a monitoring mechanism resulting in the Decision on Implementation of Art. 66.2 of 19 February 2003, with specific provisions on the periodicity and content of the developed country reports, (d) 2003-2016: the implementation of the monitoring mechanism, detailing the first annual review in 2003, the Secretariat-organized workshops from 2008 onwards between developed country and LDC members to review Art. 66.2 annual reports, and revised reporting format proposed by LDC Group in 2011. Part 6 analyses the reports submitted by developed country members from 2003 to 2016. The analysis focuses on the number of reports received, the broad areas of technology in which incentive programmes are being reported and how it has evolved between 2003 with 2016, which LDCs have been beneficiaries of the reported incentives and in which areas of technology. Part 7, highlights the differences in the understanding of terms "transfer of technology" and "incentives". Part 8 concludes that both developed country Members and LDC Members should take steps to improve the implementation of Article 66.2 in order to assess the impact of the Article 66.2 incentives on ground in the beneficiary LDCs.