WTO
Colombia’s birthday present to the World Trade Organization: a proposal to review the implementation of the TRIPS Agreement: Article 71.1
On 15 April 2024, the World Trade Organization (WTO) published a document, IP/C/W/712, entitled, Review of the implementation of the TRIPS Agreement: Article 71.1; this date marks 30 years after the establishment of the WTO. Colombia’s proposal can be found here: W712
As Health Policy Watch (HPW) reported in November 2023, at the 7th round of negotiations of the WHO pandemic accord, Simon Manley, Ambassador and Permanent Representative, UK Mission to the WTO, UN and Other International Organisations (Geneva), stated:
“Speaking as one of those Geneva ambassadors who has the good fortune to cover both the United Nations and the World Trade Organisation, I do need to reaffirm our conviction that the WTO is the appropriate forum to discuss our obligations on intellectual property.”
Perhaps mindful of the United Kingdom’s exhortation, Colombia submitted a proposal for a comprehensive Article 71 review of the WTO TRIPS Agreement.
ARTICLE 71 AS AN OPPORTUNITY FOR DIALOGUE
1. A comprehensive review of the implementation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) is both an unfulfilled commitment and a necessity. Carrying out the review mandated in Article 711, along with the 30th anniversary of the TRIPS Agreement, will provide an opportunity to: i) increase dialogue and transparency on the impact of international rules on Intellectual Property (IP) issues; ii) start overcoming the existing impasse of the TRIPS discussions and negotiations at the TRIPS Council; iii) support political and technical discussions that are taking place in other forums and settings; iv) identify/produce relevant metrics to inform better implementation in the future.
2. Colombia considers that after 30 years of the TRIPS Agreement implementation, a Member driven policy discussion, supported by metrics and data, should provide the basis for a review on best practices, identification of obstacles, potential implementation improvements, among other elements. The discussions will provide added clarity and transparency, offer learning experiences for every Member to enhance their strategies within the general balance among the policy goals underlying the TRIPS agreement.
3. The World Trade Organization is a relevant forum for these discussions, as the host of the strictest framework that binds intellectual property laws worldwide. The valuable experience accumulated by other International Organizations, primarily WIPO, WHO and UNCTAD should inform the WTO discussion.
Colombia provided this policy rationale for its proposal:
8. In summary, the TRIPS Agreement norms provide a significantly stricter framework than what existed under the WIPO substantive agreements, despite its important menu of options. Moreover, TRIPS exhibits important differences or peculiarities when compared with other WTO Agreements. The Agreement entailed a new institutional framework, both at the international and domestic levels, which has been described as a “watershed event”.
9. These provisions entailed a change of paradigm: A different version of the balance of the triangle of policy goals associated with intellectual property protection was achieved: i.e., the promotion of innovation on one side; the broad access to technologies on another, and the promotion of national competitiveness-industrial policy on the third. It must be underscored that the TRIPS Agreement’s balance is a set of normative choices that reflects the ideas, experiences, and conditions prevalent in the early 1990s. The whole notion of including a review clause hints at the negotiators acknowledgement that contexts might change in time and that the permanent and periodic review of the implementation of the agreement should remain an integral part of the Members actions at the WTO. However, the review mechanism has not been carried out since the TRIPS adoption. Now, after 30 years of implementation, it is just the right time to do so.
Paragraph 12 of Colombia’s submission delineates its approach:
12. Regarding the substantive content, Colombia aims to engage in collaborative discussions at the WTO to identify (or produce) relevant analytical metrics and data, which are currently non-existent, incomplete, or not appropriately used, to better assess the implementation of the TRIPS Agreement over the years, and better guide the discussions and domestic policymaking process of Members. These new metrics could become part of a permanent source of information at the TRIPS Council, at Trade Policy Reviews of individual Members, or at the Trade Monitoring exercise by the Secretariat, among others. For the attainment of these objectives, Colombia proposes to address discussions on the following implementation aspects:
a. To analyse both domestic and international concentration of production in knowledge intensive sectors over the years, based on relevant metrics.
b. A global stocktake on royalties paid in and out by country for the use of Intellectual Property Rights, as expressed in the Balance of Payments of countries.
c. A global stocktake on the use of Compulsory Licences since 1996, with a focus on the problem of export limitations faced by ´sandwich´ countries (not too small, not too large).
d. A global stocktake on the residency/nationality of innovators across Members, coupled with an examination of Patenting activity by Office of Subsequent Filing -OSF- (to better understand who is patenting internationally and domestically, and the incentive mechanisms that exist for innovators to go abroad).
e. A related discussion on the exploitation of ´disclosures´ after IPRs finish their terms of protection. As an implementation matter, are these innovations/creations publicly available? Are they used by Members (especially developing ones)? Are they available for training of artificial intelligence models? (optional trigger questions).
f. The utilization of Article 44(2) of TRIPS by WTO Members.
It is notable that as part of the proposal for an Article 71 review of the TRIPS Agreement, Colombia calls for scrutiny into the “utilization of Article 44(2) of TRIPS by WTO Members”.
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WTO General Council (March 2024): Colombia’s intervention on TRIPS for Development: Post MC13 work on TRIPS-related Issues – Communication from Bangladesh, Colombia, Egypt and India
On Friday, 22 March 2024, Ambassador Mauricio Alberto Bustamante Garcia, Permanent Mission of Colombia to the World Trade Organization (WTO) delivered the following statement at the WTO General Council in relation to the submission by Bangladesh, Colombia, Egypt, and India on TRIPS for Development: Post MC13 work on TRIPS-related Issues – Communication from Bangladesh, Colombia, Egypt and India.
The proposal can be found here: https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/GC/W925.pdf&Open=True
The communication (WT/GC/W/925, IP/C/W/708) by Bangladesh, Colombia, Egypt, and India stated:
1. We, keeping in mind the upcoming 30th anniversary of the TRIPS Agreement, call upon the Council for TRIPS to undertake and finalize its first review under Article 71 on the implementation of the TRIPS Agreement.
2. Pursuant to paragraph 19 of the Doha Ministerial Declaration, we request the Council for TRIPS to expedite ongoing work to examine the relationship between the TRIPS Agreement and the Convention on Biological Diversity, and the protection of traditional knowledge and folklore.
3. We also call upon the TRIPS Council to examine how the TRIPS Agreement could facilitate transfer and dissemination of technologies to developing countries including LDCs.
4. We further call upon the Council to examine the TRIPS Agreement, the Doha Declaration on the TRIPS Agreement and Public Health of 2001 and the Ministerial Decision on the TRIPS Agreement of 2022, to review and build on the lessons learned during COVID-19, with the aim to address the concerns of developing countries including LDCs in the context of health emergencies including pandemic.
5. In undertaking this work, the TRIPS Council shall be guided by the objectives and principles set out in Articles 7 and 8 of the TRIPS Agreement and shall take fully into account the development dimension and shall provide a report on the progress made, including any recommendations, to the Ministers at the 14th Ministerial Conference.
__________
Colombia opened by noting:
-
“Just 2 or 3 years ago the world experienced a pandemic that paralyzed our societies and gave rise to the most critical debates on intellectual property. Global health became one, and discussions about equity and access to medicines took on a renewed role in all our discussions. The TRIPS rules were pushed to the limit and harshly questioned by a very significant number of countries.”
Today, a few meters from here, a pandemic treaty to better respond to future pandemics is being discussed by our same countries at the WHO, with difficult and profound discussions about the role of IP in the diversification of production, equity and access.”
On climate change, Colombia stressed:
“At the same time, the world faces a climate crisis. We all agree that we need the rapid dissemination of green technologies for mitigation and adaptation. The more competition there is, the more economic actors are authorized to participate, then the more effective and equitable our response to the challenges of climate change will be. However, the existence of exclusivity rights over technologies slows down and makes this dissemination more difficult. Collectively assessing the balance between greater speed and diffusion, on the one hand, and the promotion of innovation by some actors on the other, is of course a crucial issue in today’s world.”
In terms of WTO in dealing with the intersection of IP and health, climate change, and geopolitical tensions in technology, Colombia noted:
“And the strictest intellectual property rules belong here, to the WTO. Not to WIPO, not to the UN, whose treaties or provisions are much less strict. The WTO TRIPS Agreement is the basis of the existing institutional rules scheme regarding intellectual property, and its monitoring and discussion belongs and should happen in this house, in the WTO.
And yet… at the WTO Ministerial we decided not to talk about any of this.”
The original intervention in Spanish and the English translation are reproduced here.
Intervención de Colombia
Consejo General OMC 21 y 22 de marzo de 2024
PUNTO 5
LOS ADPIC PARA EL DESARROLLO: LABOR POSTERIOR A LA CM13 SOBRE LAS CUESTIONES RELACIONADAS CON LOS ADPIC – COMUNICACIÓN DE BANGLADESH, COLOMBIA, EGIPTO Y LA INDIA
Español
Gracias señora presidenta y gracias a los copatrocinadores de este punto de agenda.
El escenario asociado a la propiedad intelectual ha venido cambiando de manera vertiginosa en los últimos años.
Hace apenas 2 o 3 años el mundo vivió una pandemia que paralizó a nuestras sociedades y originó los más álgidos debates en propiedad intelectual. La salud global se hizo una sola y las discusiones sobre equidad y acceso a medicamentos adquirieron un rol renovado en todas nuestras discusiones. Las reglas del ADPIC fueron llevadas al límite y duramente cuestionadas por un número muy significativo de países.
Hoy se discute, por nuestros mismos paises, un tratado pandémico en la OMS para responder mejor a las futuras pandemias, con discusiones difíciles y profundas sobre el rol de la propiedad intelectual en la diversificación de la producción y en la equidad en el acceso.
Por otro lado, los costos en salud que afectan los presupuestos de todos nuestros países han venido creciendo de manera sostenida y drástica en los últimos años de la mano de nuevas tecnologías.
Esto ha hecho que todas nuestras economías estén tomando medidas y que incluso las economías más grandes en esta sala estén tomando decisiones audaces sobre flexibilidades en el marco del ADPIC y sobre control de precios de medicamentos. Eso quiere decir que sí se puede, que hay margen para mejorar el acceso a los medicamentos. El gasto público global tiene un componente en salud que crece sin parar, fuertemente atado a derechos de exclusividad que por naturaleza incrementan los costos.
Al mismo tiempo, el mundo enfrenta una crisis climática. Todos estamos de acuerdo en que necesitamos la rápida diseminación de tecnologías verdes para la mitigación y la adaptación. Ahora bien, la existencia de derechos de exclusividad sobre las tecnologías ralentiza y dificulta esta diseminación. Evaluar colectivamente el equilibrio entre una mayor velocidad y difusión, por un lado, y la promoción de la innovación de algunos actores, por otro, es un tema crucial en el mundo actual.
Ahora bien, la propiedad intelectual está también en el centro de los debates sobre desarrollo tecnológico, autonomía, sofisticación de las cadenas productivas e incluso seguridad nacional. Los grandes debates geopolíticos se explican fácilmente en términos tecnológicos. La brecha tecnológica entre paises en desarrollo y desarrollados, o la creciente competencia tecnológica entre actores estatales, tiene un componente fundamental en la propiedad intelectual.
En suma, la propiedad intelectual está en el centro de los debates más importantes de nuestro tiempo:
Salud humana,
Cambio climático,
Sostenibilidad presupuestal,
Desarrollo económico del mundo en desarrollo,
Tensiones geopolíticas en tecnología.
Y las reglas de propiedad intelectual más estrictas están acá, en la OMC. No en la OMPI, no en la ONU, cuyos tratados o disposiciones son menos estrictas.
Y sin embargo… en la MC13 decidimos no hablar de nada de esto.
Varios países dijeron de manera explícita y reiterada que no se hablaría sobre propiedad intelectual en la CM13. A pesar de ser uno de los tres pilares de esta Organización junto con los bienes y los servicios, y a pesar de ser la base de los principales problemas de nuestro tiempo, resulta entonces que era mejor no hablar de propiedad intelectual.
Solo un párrafo valioso, pero en todo caso repetido de la Ministerial previa, y finalmente una decisión sobre reclamaciones no basadas en una infracción que entró a los resultados ministeriales “in extremis”. Esos fueron los únicos y magros puntos que se lograron.
Sin embargo, había otros puntos sobre propiedad intelectual que se propusieron discutir en la Ministerial, sin éxito. Colombia manifestó su descontento desde el momento en que las modalidades y la agenda propuesta para la ministerial no incluían ninguna discusión de propiedad intelectual. Es irónico que luego de la Ronda de Uruguay, en la cual un número de países, especialmente en desarrollo, decía que la propiedad intelectual no debía de ser parte de la OMC, mientras que otros, especialmente desarrollados, decían que era fundamental incluirla en la OMC. Hoy los roles se han invertido. El mundo en desarrollo quiere tener una conversación al respecto. El mundo es cada vez más dependiente de tecnologías protegidas por la propiedad intelectual y, sin embargo, no queremos hablar de eso.
Y hay que decirlo: no fue solo la Ministerial. El Consejo de los ADPIC, medicamente hablando, está anémico. A pesar del gran trabajo de la Embajadora Pimchanok de Tailandia y de la Secretaría, y sus esfuerzos en intentar hacer avanzar el Consejo del ADPIC, su agenda ha permanecido prácticamente la misma desde hace décadas y el Consejo no avanza en ninguno de los temas globales asociados a la propiedad intelectual que interesan a todos.
En el Consejo del ADPIC se reúne un nicho técnico de excelentes funcionarios, relativamente reducido en tamaño, pero francamente se dejó de lado la discusión de política pública en torno a los objetivos que persigue esta Organización y el Acuerdo de propiedad intelectual.
Señora Presidenta, con este punto de agenda, de la mano de nuestros copatrocinadores, queremos invitar a los Embajadores a retomar este tema; a que se involucren más; a que desmitifiquemos las discusiones sobre propiedad intelectual y las hagamos más plurales y abiertas; a que le perdamos el temor a abordarlas más allá de sus tecnicismos. El ADPIC no es física nuclear, es política pública que busca un equilibrio entre la innovación y el acceso y es uno de los pilares de la OMC. Por lo tanto, estas discusiones no deberían ser eliminadas en las Ministeriales, o limitadas a un nicho de expertos específico.
El grupo de países que solicitamos este ítem de agenda tiene ideas y propuestas para comenzar a abrir más la discusión. No son las únicas, animamos a todos a traer propuestas sobre este Acuerdo al centro de esta Organización, al centro donde pertenece y cada vez con más fuerza. Colombia, en particular, hará una serie de propuestas asociadas a la revisión periódica de la aplicación del acuerdo que se debe hacer según su artículo 71.
Nos dijeron que éste es un tema que se debe tocar en el Consejo del ADPIC y no en la Ministerial; allí estaremos haciendo propuestas concretas y esperamos que allí por fin se le dé cumplimiento después de 30 años de espera .
Gracias presidente.
(English)
Thank you very much, Madam President, and many thanks to the co-sponsors of this Agenda Item.
The scenario associated with intellectual property has been changing rapidly in recent years.
Just 2 or 3 years ago the world experienced a pandemic that paralyzed our societies and gave rise to the most critical debates on intellectual property. Global health became one, and discussions about equity and access to medicines took on a renewed role in all our discussions. The TRIPS rules were pushed to the limit and harshly questioned by a very significant number of countries.
Today, a few meters from here, a pandemic treaty to better respond to future pandemics is being discussed by our same countries at the WHO, with difficult and profound discussions about the role of IP in the diversification of production, equity and access.
On other hand, health costs that affect the budgets of all our countries have been growing steadily and drastically in recent years, and this caused mostly by new technologies. This has made all our economies to take action, and even the largest economies in this room are now taking bold decisions on flexibilities under TRIPS and on drug price controls. That means that this is possible, there is room to improve access to medicines and health products. Global public spending has a steadily growing health component, strongly tied to exclusivity rights that by nature increase costs.
At the same time, the world faces a climate crisis. We all agree that we need the rapid dissemination of green technologies for mitigation and adaptation. The more competition there is, the more economic actors are authorized to participate, then the more effective and equitable our response to the challenges of climate change will be. However, the existence of exclusivity rights over technologies slows down and makes this dissemination more difficult. Collectively assessing the balance between greater speed and diffusion, on the one hand, and the promotion of innovation by some actors on the other, is of course a crucial issue in today’s world.
Further, intellectual property is also at the center of debates on technological development, autonomy, sophistication of production chains and even national security. The great geopolitical debates are easily explained in technological terms. The technological gap between developing and developed countries, or the growing technological competition between state actors, has a fundamental component in intellectual property.
In short, intellectual property is at the center of the most important debates of our time:
Human Health,
climate change,
budgetary sustainability,
economic development of the developing world,
geopolitical tensions in technology.
And the strictest intellectual property rules belong here, to the WTO. Not to WIPO, not to the UN, whose treaties or provisions are much less strict. The WTO TRIPS Agreement is the basis of the existing institutional rules scheme regarding intellectual property, and its monitoring and discussion belongs and should happen in this house, in the WTO.
And yet… at the WTO Ministerial we decided not to talk about any of this.
Several countries explicitly and repeatedly said that intellectual property would not be discussed at the ministerial. Despite being one of the 3 pillars of this organization along with goods and services, and despite being the basis of many of the main problems of our time, it turns out that it was better not to talk about intellectual property. Only a valuable paragraph, but in any case a repeated paragraph from the previous ministerial, and further a decision on non violation claims that entered the ministerial results ‘in extremis’. Those were the only, and meager, points that were achieved.
However, there were other points on Intellectual Property that were proposed as discussions for the Ministerials, to no avail. Colombia expressed its discontent from the very moment that the modalities and agenda proposed for the ministerial did not include any discussion of intellectual property. It is even ironic that after the Uruguay Round, in which a number of countries, especially developing ones, said that intellectual property should not be part of the WTO and others, especially developed ones, said that it was essential to include it in the WTO, today the roles have been reversed. The developing world wants to have a conversation. Indeed, the world is increasingly dependent on IP-protected technologies, and yet we don’t want to talk about it.
And it must be said: it was not just the Ministerial. The TRIPS Council, medically speaking, is anemic. Despite the great work of the Ambassador Pimchanok of Thailand and the Secretariat, and its efforts to advance the TRIPS Council, its agenda has remained practically the same for decades and the Council has not made progress on any of the global issues associated with intellectual property.
The TRIPS Council brings together a very technical niche of excellent officials, relatively small in size, but frankly the public policy discussion regarding the objectives pursued by this Organization and the Intellectual Property Agreement is missing.
Madam President, with this agenda item, together with our co-sponsors, we want to invite the Ambassadors to return to this topic, to get more involved; to demystify discussions about intellectual property and make them more plural and open; to lose the fear of addressing them beyond their technicalities. The TRIPS is not nuclear physics: it is public policy that seeks a balance between innovation and access, and is one of the pillars of the WTO. Therefore these discussions cannot continue to be abandoned in the Ministerials, or limited here to a very narrow niche of experts.
The Group of countries that requested this agenda item has ideas and proposals to open the discussion more. About the review, about the Biodiversity Convention, about learning from the pandemic, about the technological evolution of developing countries. These are not the only issues, we encourage everyone to bring proposals related to the rules of the Agreement to the center of this Organization, where it belongs, and with increasing importance. Colombia in particular will make a series of proposals associated with the periodic review of the implementation of the agreement that must be done according to its article 71. We have been told that this is an issue that must be addressed at the TRIPS Council, so we will be making concrete proposals, and we hope that such a mandated discussion will finally be fulfilled after 30 years of waiting.
Thank you president
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Industrial Policy in Turkey: Rise, Retreat and Return – review
In Industrial Policy in Turkey: Rise, Retreat and Return, Mina Toksoz, Mustafa Kutlay and William Hale analyse Turkey’s industrial policy over the past century, highlighting the interplay of global paradigms, macroeconomic stability and domestic institutional contexts. The book offers a timely analyses of industrial policy’s past and possible future trajectories, though it stops short of interrogating exactly how cultural, social, political and economic factors shape state-business relations and bureaucracy, writes M Kerem Coban.
Industrial Policy in Turkey: Rise, Retreat and Return. Edinburgh University Press. 2023.
Is industrial policy back? The Biden administration’s Inflation Reduction Act and the CHIPS and Science Act, or the 2016 UK industrial policy are only two contemporary examples. These policies seek to address value chain bottlenecks, as well as the question of how to “take back control” in manufacturing and key sectors, along with concerns about gaining or sustaining economic edge and autonomy
In this context, the Turkish experience is illustrative for making sense of the trajectory of industrial policy in a major developing country. Mina Toksoz, Mustafa Kutlay and William Hale examine the evolution of industrial policy in Turkey. They present an accessible, detailed account of the trajectory and evolution of the policy since the establishment of the Republic, which argues that we had better study “the conditions under which state intervention works, rather than whether the state should intervene in the economy” (26, emphasis in original).
[The authors] suggest that effective industrial policy is the outcome of the interaction between global development policy paradigms, macroeconomic (in)stability, and the domestic institutional context.
The book is divided into five chapters. Chapter One discusses the political economy of industrial policy and sets out an analytical framework. The authors assert that analyses should go beyond dichotomies (eg, horizontal vs. vertical policies; export-led vs. import-substituting industrialisation) and that a broader understanding requires identifying the factors and conditions of effective industrial policy. They suggest that effective industrial policy is the outcome of the interaction between global development policy paradigms, macroeconomic (in)stability, and the domestic institutional context. Global development policy paradigms evolved from étatism of the 1930s, import-substituting industrialisation in the 1960s and the 1970s, neoliberalism of the 1980s, and the return of industrial policy after the 2008 Financial Crisis. Macroeconomic (in)stability drives (un)certainty regarding economic policies and instruments and the trajectory of economy, which, in turn, regulates investment decisions. Finally, the domestic institutional context concerns how state-society, or state-business, relations are structured, whether the state capacity is sufficient to resolve conflicts, discipline and coordinate actor behaviour, and whether bureaucracy has capabilities to formulate and implement policies. Figure 1 seeks to summarise the main argument of the book.
Figure 1: Flow chart summarising the book’s main argument. Source: M Kerem Coban.
Chapter Two focuses on the longue durée between 1923 and 1980. From the ashes of incessant wars that ruined the already unsophisticated infrastructure and demographic challenge, the new Republic had to build a new nation. Yet the rise of the state interventionist era in the 1930s drove policymakers towards the first industrialisation plan and the opening of many industrial sites across the country. When the Democrat Party assumed power, the interventionist, planning-based industrial policy was scrutinised for liberalisation that even included state-owned enterprises to be released to set up their own prices (73).
At the same time, business was encouraged to invest. For example, the fruits of these included Otosan or BOSSA (75). Between 1960 and 1980, the authors underline the second planning period with the establishment of the State Planning Organisation (SPO). SPO boosted bureaucratic and planning capacity and capabilities for disciplined, systematic industrial policy during the era of import-substitution.
Between 1980 and 2000 […] Turkey shifted to export-led growth and liberalised trade and financial flows. These shifts had profound implications for bureaucracy
The third chapter examines demoted industrial policy between 1980 and 2000 when Turkey shifted to export-led growth and liberalised trade and financial flows. These shifts had profound implications for bureaucracy: SPO was sidelined, parallel bureaucratic networks of Ozal were implanted with the opening of new offices or agencies. Consequently, the role of state became less coherent, as political uncertainty driven by unstable coalitions eroded the market-shaping role of the state. The financial sector did not help industrial policy, since banks were dominantly financing chronic budget deficits during a period of high inflation (111). What is more, business, including Islamic conservative SMEs in Anatolia, reduced or ignored investments in manufacturing given the clientelist state-business relations that incentivised construction, real-estate development (115), emphasis in original). Finally, the external conditions were not disciplinary: accession to the Customs Union with the European Union and the World Trade Organization ruled out export support and import restricting measures, among other trade regulatory instruments.
The fourth chapter claims that industrial policy retreated between 2001 and 2009. The first years of this period was marked by political instability and a local systemic banking crisis and its resolution, and Justice and Development Party (AKP in Turkish) assumed power. During this period, industrial policy was dominated by institutionalisation of the regulatory state and the privatisation of state-owned enterprises, the establishment of autonomous regulatory agencies and are structured banking sector. While the regulatory capacity of the state increased, privatisation and the regulation of the market were highly politicised. For example, “a major cycle of gas privatisation saw ‘politically connected persons’ winning fifteen out of nineteen metropolitan centres and serving 76 percent of the population” (161). In such a politically compromised setting, which was accompanied by the institutionalisation of the capital inflow-dependent credit-led growth model that prioritised “rent-thick” sectors, industrial policy could not flourish.
While the regulatory capacity of the state increased, privatisation and the regulation of the market were highly politicised.
The fifth chapter locates the policy within the global ideational and political economic context that marks the return of industrial policy in various forms. In line with policy documents such as the 11th Development Plan, horizontal measures, private and public R&D spending on high-tech initiatives, electric vehicle manufacturing attempt, and most notably the advancements in defence sector have constituted the revival of industrial policy. At the same time, the authors point to several challenges such as eroded academic research and quality and a lack of investment in ICT skills. Additionally, R&D subsidies or other industrial policy measures require thorough performance criteria and measurement to discipline actor behaviour and regulate the incentive structures.
Industrial Policy in Turkey is a timely contribution to the current debate. Its historical account and analysis of current policies, instruments, and the potential trajectory of industrial policy are its main strengths. Still, there are several caveats. First, the book’s framework is not systematic, which causes some confusion. For example, the book does not demonstrate a convincing link between the role and impact of autonomous agencies on industrial policy. Second, the book leaves the reader with more questions than answers, one of which relates to the effect of bureaucratic fragmentation in shaping industrial policy. Another is around the implications of state-business for bureaucracy, and consequently, industrial policy.
The book leaves the reader with more questions than answers, one of which relates to the effect of bureaucratic fragmentation in shaping industrial policy.
Third, the trajectory of industrial policy cannot be considered independently from the shifts in growth models. Yet the fact these shifts occur because the country depends on hard currency earnings for capital accumulation and to finance consumption and investments: Turkey either relies on capital flows or export earnings, in addition to tourism and (un)recorded (illicit) flows. Pendulums between these channels imply that the country cannot design and implement disciplined, systematic industrial policy. Put differently, there are macroeconomic and financial structural impediments against generating hard currency earnings. Industrial policy is one of the remedies, however, the macroeconomic and structural transformative consequences of the latest episode of emphasis on industrial policy and the export-driven growth experiment in Turkey are yet to be seen.
Finally, and perhaps most importantly, the book tends to relegate a core problem of coordination, long-term policy design and implementation to “governance issues”. Deeper cultural, social, political and economic factors determine the clientelist state-business relations and their effect on bureaucracy and bureaucratic autonomy. Such deeper ties have been masked by instrumentalised “democratisation reforms” or higher economic growth rates in the previous years. In this context, is the more critical problem the purposefully immobilised or challenged infrastructural power to coordinate societal actors? If that is true, then should we make interdisciplinary attempts to identify this problem’s core determinants?
Note: This interview gives the views of the author, and not the position of the LSE Review of Books blog, or of the London School of Economics and Political Science.
Image credit: Chongsiri Chaitongngam on Shutterstock.
WTO charts a course for addressing the role of IP in the preparedness for future pandemics
Nearly 18 months of tortuous negotiations on the extension of the June 17, 2022 Ministerial Decision on the TRIPS Agreement to COVID-19 diagnostics and therapeutics, in February 2024, the TRIPS Council threw in the towel after consensus could not be reached. As described in document IP/C/100, (Report to the General Council, Paragraph 8 of the Ministerial Decision on the TRIPS Agreement, IP/C/100, 13 February 2024)
4. While delegations remain committed to the common goal of providing timely, equitable and secure access to high-quality, safe, efficacious and affordable medical technologies for all, disagreement persists on whether an extension of the Decision to cover the production and supply
of COVID-19 diagnostics and therapeutics is necessary or appropriate to address any inequitable distribution of such COVID-19 related products.
10. The Council recognizes the considerable efforts Members have made to support a fact- and evidence-based discussion on paragraph 8 of the MC12 Decision on the TRIPS Agreement. Despite these efforts, consensus could not be reached.
An earlier version of the draft report of the TRIPS Council (JOB/IP/73, 26 January 2024) circulated by the Chair of the TRIPS Council, Ambassador Pimchanok Pitfield (Thailand) cast a more dismal outlook on the state-of-play of WTO negotiations on the extension of the June 2022 Ministerial Decision on the TRIPS Agreement to COVID-19 diagnostics and therapeutics.
The draft report stated:
10. The Council acknowledges that discussions are exhausted and that there is no consensus on an extension of the Decision to COVID-19 diagnostics and therapeutics. It therefore recommends the conclusion of the discussion under paragraph 8 of the Decision.
After opposition from some WTO Members, references to “exhausted” and “conclusion” were deleted. The wording in the final report (IP/C/100) reads as follows:
10. The Council recognizes the considerable efforts Members have made to support a fact- and evidence-based discussion on paragraph 8 of the MC12 Decision on the TRIPS Agreement. Despite these efforts, consensus could not be reached.
The report traced the arc of negotiations from Paragraph 8 of the June 2022 Ministerial Decision on the TRIPS Agreement.
1. Paragraph 8 of the Ministerial Decision on the TRIPS Agreement1 adopted on 17 June 2022 (the “Decision”) provides that [n]o later than six months from the date of this Decision, Members will decide on its extension to cover the production and supply of COVID-19 diagnostics and therapeutics
2. Since the adoption of the Decision in 2022, Members have held extensive discussions in this regard in informal consultations in various formats, as well as at all formal and informal meetings of the Council for TRIPS in 2022 and 2023
.
Although the endgame of the 18 month WTO negotiations on the extension of the Ministerial Decision on the TRIPS Agreement to COVID-19 diagnostics and therapeutics resulted with a damp squib, progress was made in relation to the TRIPS Council’s work program on the role of IP in addressing future pandemics. In the report of the TRIPS Council to the WTO General Council on Paragraphs 23-24 of the WTO Ministerial Declaration on the WTO Response to the COVID-19 Pandemic and Preparedness for Future Pandemics (IP/C/99, 13 February 2024), the report stated:
5. The Council for TRIPS will continue its work as directed by the Declaration, to review and build on all the lessons learned and the challenges experienced during the COVID-19 pandemic, to build effective solutions in case of future pandemics, in an expeditious manner.
Perhaps of greater significance is that the TRIPS Council report (IP/C/99) flagged the following concerns raised by many countries: “many Members expressed interest in deepening the discussion on this matter, including on voluntary licensing, technology transfer, the operation of the Medicines Patent Pool (MPP), geographical limitations of voluntary licences, and the operation of Article 31(f) of the TRIPS Agreement.” In terms of the WTO’s future engagement on the role played by intellectual property in addressing future pandemics, the TRIPS Council’s examination of the geographical limitations of voluntary licences and the operation of the MPP will be key. However, the TRIPS Council should also explore non-Article 31(f) solutions including (but not limited to): Article 30, Article 31(k), Article 44, and Article 73.
Ellen ‘t Hoen, (Director, Medicines Law & Policy) provided the following response:
“The failure of the WTO to extend the Covid decision to include the very products the decision would have been most useful for, will increase the the pressure on the negotiations of the Pandemic Accord which enters its last round of talks next week at the WHO to ensure strong provisions on technology transfer and IP sharing.”
Luis Villarroel, (Director, Innovarte) stated:
“Non-article 31(f) flexibilities, such as Article 30, Article 31(k) and Article 44 are widely under-exploited by developing countries vis-à-vis countries like the United States, putting them in a a position that undermines their capacity to respond to public health needs. The Council for Trips should ask themselves why this is happening and what can be done to overcome it.
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13th WTO Ministerial (Abu Dhabi): WTO adopts decision to extend the moratorium on non-violation and situation complaints
At the closing to the 13th WTO Ministerial in Abu Dhabi, the World Trade Organization adopted a decision to extend the moratorium on non-violation and situation complaints.
The text of the decision (WT/MIN(24)/39) is reproduced here:
The Ministerial Conference decides as follows:
We take note of the work done by the Council for Trade-Related Aspects of Intellectual Property Rights pursuant to our Decision of 17 June 2022 on “TRIPS Non-Violation and Situation Complaints” (document WT/L/1137), and direct it to continue its examination of the scope and modalities for complaints of the types provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 and make recommendations to the 14th Ministerial Conference. It is agreed that, in the meantime, Members will not initiate such complaints under the TRIPS Agreement.
Earlier in January 2024, in a communication from the Chair of the TRIPS Council (ICN/IP/11, 26 January 2024), Ambassador Pimchanok Pitfield (Thailand) signaled that there was no consensus on this issue.
The communication stated:
TRIPS non-violation and situation complaints
With respect to TRIPS non-violation and situation complaints (NVSCs), delegations indicated no movement in positions since the last informal Council meeting on 29 November 2023. A draft decision on TRIPS NVSCs (JOB/IP/72) had been circulated for Members’ consideration after that meeting. However, during my consultations, Members were no closer to taking a decision on this matter.
In light of these consultations, and in order to make all efforts to complete work here in Geneva as much as possible before we go to Abu Dhabi next month, I have prepared the following draft reports for Members’ consideration:
1. A draft report on Paragraph 8 of the Ministerial Decision on the TRIPS Agreement (JOB/IP/73)
2. A draft report under Paragraphs 23-24 of the Ministerial Declaration on the WTO Response to the COVID-19 Pandemic and Preparedness for Future Pandemics (JOB/IP/74)
It would be my suggestion that Members agree on these reports still before the General Council meeting scheduled for 14 February 2024, with a view to concluding these matters before the Ministerial Conference.
As regards TRIPS non-violation and situation complaints, I also remain hopeful that Members can agree on a recommendation still here in Geneva.
In Abu Dhabi, at the 11th hour, the delegation of Colombia intervened. On Friday, 1 March 2024 at 23:11 Gulf Standard Time, Dr. Germán Umaña Mendoza – Ministro de Comercio, Industria y Turismo (Colombia) delivered an intervention on non-violation complaints. Here below is the unofficial English translation of his intervention:
Thank you President, Minister Al Thani,
Before we start, we want to table an agenda item in the negotiations for which we all came prepared since the first versions of the agenda, I refer to non violation complaints under the TRIPS Agreement. The practice suggested by the president of the council, Ambassador Pimchanok, must be maintained. This point should be part of the “Ministers’ Actions” at this meeting. So unless someone objects, we understand that the intellectual property moratorium is extended.
A video of Colombia’s intervention can be found here: https://twitter.com/ThiruGeneva/status/1765403690100273216
After Colombia’s intervention, the WTO Ministerial adopted the decision to extend the moratorium on non-violation and situation complaints.
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WTO: Prospects to adopt proposed decision text on the extension of the 17 June 2022 Ministerial Decision to Covid-19 therapeutics and diagnostics appear grim
On 4 December 2023, the World Trade Organization (WTO) published a document (WT/GC/W/913, IP/C/W/694/Rev.1) entitled, “Decision text on extension of the 17 June 2022 Ministerial Decision to COVID-19 therapeutics and diagnostics”. This document is a communication from Bangaldesh, The Plurinational State of Bolivia, Egypt, India, Indonesia, Pakistan, South Africa, and the Bolivarian Republic of Venezuela on behalf of the Co-Sponsors of the IP/C/W 669/REV.1 Proposal (the TRIPS waiver proposal). The content of this proposal (IP/C/W/694) was originally published on 6 December 2022.
This updated decision text (WT/GC/W/913, IP/C/W/694/Rev.1) is on the agenda of the WTO General Council meeting scheduled for 14-15 December 2023 (Agenda item 3(III). The chapeau of this document states:
- On 17 June 2022, WTO Members adopted a Ministerial Decision on the TRIPS Agreement, document WT/MIN(22)/30 [WT/L/1141]. This Decision is far removed from the comprehensive TRIPS waiver proposal contained in documents IP/C/W/669 and IP/C/W/669/Rev.1 (“original TRIPS waiver proposal”) co sponsored by 65 WTO Members (co-sponsors).
- A more comprehensive waiver decision as envisaged in the original TRIPS waiver proposal would support the efforts to ensure timely, equitable and universal access to safe, affordable and effective therapeutics and diagnostics, ramping up of production and expanding supply options. The MC12 Ministerial Decision on the TRIPS Agreement (document WT/MIN(22)/30) is the result of over one and a half years of arduous and lengthy discussions on the original TRIPS waiver proposal and intense negotiations heading towards the 12th Ministerial Conference in the midst of a global crisis. It is of limited scope covering only vaccines.
- Diagnostics and therapeutics are essential tools for a comprehensive approach to fight the pandemic, that it is not over. Omitting these vital tools will deter the effectiveness of the decision that aims timely and affordable access to effective vaccines against the ongoing COVID-19 pandemic. Cosponsors have provided extensive facts and evidence, among others, in documents IP/C/W/670, IP/C/W/672, IP/C/W/673 IP/C/W/674, IP/C/W/684 and RD/IP/49 as well as submissions in the TRIPS Council. Much of which has been supported by distinguished health experts.
- At a minimum, the extension of the policy tools provided in document WT/MIN(22)/30 to therapeutics and diagnostics will result in a holistic approach to enable developing countries to address those IP barriers that prevent the expansion and diversification of production and increase accessibility to crucial life-saving COVID-19 tools. The current outcome represents a narrow-conditioned Decision due to demands of some WTO Members, requiring significant compromises on the part of the co-sponsors that had hoped for greater solidarity among WTO Members during a public health emergency and consequently a more comprehensive waiver decision as envisaged in the original TRIPS waiver proposal that would support ramping up of production and expanding supply options.
The proposed decision reads as follows:
General Council Decision on Extension of the 17 June 2022 Ministerial Decision to COVID-19 Therapeutics and Diagnostics (hereafter referred to as ‘Therapeutics and Diagnostics Decision’)
The General Council
Having regard to the 17 June 2022 Ministerial Decision on the TRIPS Agreement, document WT/MIN(22)/30
Decides as follows:
The MC12 Decision on the TRIPS agreement is extended mutatis mutandis for the production and supply of COVID-19 therapeutics and diagnostics.
An eligible Member may apply the provisions of this Therapeutics and Diagnostics Decision until 5 years from the date of this Decision. Any extension of the MC12 Decision on the TRIPS Agreement pursuant to paragraph 6 shall apply to this Decision as well.
However, based on positions expressed at the most recent TRIPS Council meeting in June 2023, it remains unlikely that the impasse on the extension of the MC12 Decision on the TRIPS agreement to Covid-19 therapeutics and diagnostics will be resolved by the end of 2023.
Here is a snapshot of WTO Members’ view from the June 2023 TRIPS Council not amenable to the proposed extension (Source: Minutes of the TRIPS Council, IP/C/M/108/Add.1).
Switzerland
“Switzerland’s view on a possible extension of the MC12 TRIPS Decision to COVID-19 therapeutics and diagnostics is well-known. Switzerland does not support an extension. We are convinced that an extension is unnecessary and would be counterproductive to our common goal of ensuring timely, affordable and equitable access and to pandemic preparedness.”
European Union
“The discussions are difficult and the situation is complex. Views vary, as we can also see in the present discussion. One important element that, in our view, adds to the complexity is the lack of a clear definition of these products, contrary to the situation of COVID-19 vaccines.
In addition there are multiple factors that affect their accessibility and affordability, such as available financing, licensing, procurement mechanisms or regulatory procedures, to name just a few. Following the discussions in the TRIPS Council in the last year and this one, it is clear that for a number of delegations open questions remain, especially as regards to the adequacy of the supply of COVID-19 therapeutics and diagnostics, the effect of mechanisms that are run by Medicines Patent Pool, UNICEF or the Global Fund on access to these products and, more generally, the assessment of various factors that contribute to the accessibility and affordability of COVID-19 therapeutics and diagnostics in low and medium-income countries.”
Japan
“In order to prepare for future pandemics, it is necessary to have mechanisms that provide strong incentives for the research and development of vaccines, diagnostics and therapeutics. From this perspective, intellectual property rights and the TRIPS Agreement play a crucial role in the research and development of vaccines, diagnostics and therapeutics.
With regard to paragraph 8 of the Ministerial Decision, Japan continues to believe that consideration and discussion about its extension for diagnostics and therapeutics should be based on facts and evidence regarding the multifaceted impact of IPRs and the TRIPS Agreement upon the production and supply thereof, within the context of COVID-19. In this regard, we understand that facts and evidence regarding various points of view from many stakeholders are included within the documents submitted and the ongoing investigation by USITC, and we appreciate these efforts.
Japan has shared various types of facts and evidence during past meetings for the purpose of holding a constructive discussion in order to reach a consensus-based decision among Members, and we are ready to continue contributing to this discussion in a constructive manner.”
United Kingdom
“The MC12 Decision on COVID-19 vaccines was brokered in a particular context of the pandemic and was clear in its scope and applicability. The landscape for COVID-19 vaccines is very different to that for therapeutics and diagnostics, both in terms of supply and demand dynamics, and the scope of products covered. At present, the United Kingdom has not formed a conclusion on an extension and we are still considering our position. The United Kingdom supports discussions, led by evidence and facts, as a necessary step to determine whether an extension is required, taking into account other factors, including unintended consequences that a broader scope may bring.
We welcomed the discussion papers circulated last year, by Mexico and Switzerland, and Chinese Taipei, as important contributions to the discussion. We understand that pertinent questions raised by these submissions are yet to be addressed. These relate to, among other things, identifying if any barriers to accessing COVID-19 therapeutics and diagnostics are caused by IP, how product scope could be defined, the current supply and demand dynamics for these products, as well as concerns over the broad scope of a possible extension.
Chinese Taipei’s paper raised two fundamental questions: whether IP rights are the cause of insufficient accessibility, and whether an extension of the Decision will help? Their paper also notes the role of patents in incentivizing innovation and how weakening patent protection could adversely affect collective efforts to fight the pandemic.”
More recently, on 17 October 2023, the United State Trade Representative (USTR) released the following statement upon publication of the United States International Trade Commission’s report, “COVID-19 Diagnostics and Therapeutics: Supply, Demand, and TRIPS Agreement Flexibilities.”
“Our office will carefully review the USITC’s findings alongside our colleagues throughout the Biden-Harris Administration. We look forward to having Congress and all stakeholders review this report too.
I would like to thank Chairman Johanson and the USITC for conducting this important investigation. We hope that the facts in this report and the record the USITC has meticulously gathered will help inform a thoughtful and constructive policy discussion and deliberative process here at home, around the world, and at the World Trade Organization on matters so critically important to global public health and economic resilience.”
With no clear timeline in sight for USTR, Congress, and all stakeholders to review the USITC’s 497 page report, the prospects for the extension of the 17 June 2022 Ministerial Decsion (on vaccines) to diagnostics and theraeutics appear grim.
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