Climate change is a serious challenge facing countries. Least developed countries (LDCs) are the most vulnerable to climate change impacts due to a lack of adequate resources, particularly technological resources, required to mitigate/adapt to climate change impacts within their territories. Some international agreements recognize this technology challenge faced by LDCs and thus provide for technology transfer from developed countries to LDCs. One of such agreements is the Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPS Agreement). Article 66.2 of the TRIPS Agreement specifically provides for technology transfer from developed countries to least developed countries. However, it is difficult to enforce this provision before the WTO adjudicatory bodies. This is because the provision is broadly worded, and this is exacerbated by the fact that the TRIPS agreement recognizes intellectual property rights (IPRs) as private rights. As a result, it may be difficult to compel state governments to transfer technology, especially where they do not have the relevant patent right or control of the technology or invention. Although it may be difficult to enforce Article 66.2 of the TRIPS agreement through WTO adjudicatory bodies, the provision has been recognized as binding.
At the meeting of the Council for TRIPS on 1st and 2nd December 1998, it was suggested that information should be requested from developed country members on how Article 66.2 was being implemented. This suggestion was adopted as a formal decision of the Council on 19th February 2003, and based on this, developed country members are required to submit annual reports on actions taken or planned in accordance with the provisions of Article 66.2 of the TRIPS agreement. Although this provision refers to technology transfer in general, developed countries also report on the transfer of climate technology. For example, the United Kingdom, through the programme, ‘Building Urban Resilience to Climate Change in Tanzania’, facilitates the transfer of technology in areas related to the use of survey drones and mapping instruments. Also, the United States runs a programme, Ambassador’s Water Expert Programme (AWEP) in Uganda. Under this programme, the US sends hydrologists to Uganda to provide technical assistance for water security amongst other objectives. Japan, through Japan International Cooperation Agency (JICA) runs a programme in Sudan, which is aimed at developing climate change resilient technologies for sustainable wheat production.
At the WTO annual TRIPS workshop in March 2021, Ambassador Ahmad Makaila of Chad, on behalf of the LDCs Group indicated that “modest progress has been made” with regards to technology transfer, including climate technology transfer, “but much remains to be done”. This raises a question that touches on the nature of developed countries’ obligations under Article 66.2 of the TRIPS agreement. For example, there is the question of whether the obligation of developed countries under Article 66.2 of TRIPS agreement is ad infinitum? Unlike Article 66.1 of the TRIPS agreement, there is no timeline or completion date for the implementation of Article 66.2. However, a response to this can only be deduced from the provisions of Article 66.2 of the TRIPS agreement.
Article 66.2 of the TRIPS agreement expressly provides that:
‘Developed country members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country members in order to enable them to create a sound and viable technological base’.
It can be deduced from this provision that Article 66.2 of the TRIPS agreement is comprised of two parts, an obligation and an objective. The obligation is for developed countries to provide incentives to promote technology transfer’, while the objective is to ‘create a sound and viable technological base’. Based on the reports submitted by developed countries, this obligation is being implemented to an extent. Nonetheless, it is necessary to ask whether the objective of Article 66.2 of TRIPS agreement is being achieved. This leads to our main question: is the obligation under Article 66.2 of TRIPS agreement ad infinitum? The answer to this question can be deduced from the second part, that is the objective, of Article 66.2 of the TRIPS agreement.
The objective for such incentives is to enable LDCs to set up ‘a sound and viable technological base’. Based on this, the obligation of developed countries to implement Article 66.2 ends when LDCs are able to ‘create a sound and viable technological base’. This raises further questions on the definition of a sound and viable technological base, who determines whether LDCs have attained a sound and viable base, and how long would it take for LDCs to have a sound and viable technological base? The answers to these questions lie with the LDCs as this depends on the extent to which LDCs assimilate the technology transferred by developed countries. This would require LDCs to report on technology transfer projects going on in their respective jurisdictions. Thus, Article 66.2 of the TRIPS agreement impliedly requires LDCs to report on whether the objective, sound, and viable technological base, has been achieved.
On the other hand, LDCs may be exempted from fulfilling the obligation of providing a report. Article 66.1 of the TRIPS agreement allows LDC members to submit a request for a transition period, this request exempts LDCs members from performing the obligations under the TRIPS agreement. Further to request from the LDC Group, the council of TRIPS extended the transition period from 1st July 2021 to 1st July 2034. This extension means that LDC members are not required to comply with any provision of the TRIPS agreement, except Articles 3,4 and 5. Despite this, there are a number of reasons why LDCs should submit a report pursuant to Article 66.2 of the TRIPS agreement.
Firstly, considering that developed countries spend several millions of dollars in pursuing an objective, it is important to know if the pursued objective is being achieved or not, and a report on this should not be based solely on reports submitted by developed countries. Secondly, an annual report from LDCs would prevent duplication of efforts and thus ensure that technology is transferred to areas where technical support is needed. Furthermore, a report from LDCs would promote transparency and accountability, and therefore ensure the sustainability of the projects or initiatives implemented by developed countries.
In conclusion, the transfer of technology is essential to address climate change concerns. Article 66.2 of the TRIPS agreement requires developed countries to provide incentives to facilitate the transfer of climate technology to LDCs. This obligation is not ad infinitum as it ends when the objective is achieved. The Council of TRIPS requires developed countries to produce an annual report on how Article 66.2 of the TRIPS agreement is implemented. However, there is a need to require LDCs to report on how achievements made under Article 66.2 of the TRIPS agreement is being sustained and the steps taken to establish a ‘sound and viable technological base’ based on the support provided by developed countries.
Frances Nwadike is a Ph.D. candidate at Newcastle University Law School.
Suggested citation: Frances Nwadike, Article 66.2 of TRIPS Agreement: LDCs and Technology Transfer, July 31, 2020, https://www.jurist.org/commentary/2021/07/frances-nwadike-trips-ldc/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org
