The WTO is a forum for continued negotiations to strengthen intellectual property obligations, as in other areas covered by WTO agreements. However, the agreement stipulates that members must provide for the protection of plant varieties, either through patents, through an effective sui generis system (i.e. a system specially designed for this purpose), or by some combination of the two. Developing countries that are not the least developed countries had to apply the membership provisions until 1 January 2000. In 2000 and 2001, the TRIPS Council reviewed the legislation of the following members whose transitional periods expired on 31 December 1999: Article 63.2 of the TRIPS AGREEMENT stipulates that members must disclose laws and regulations relating to the purpose of the agreement (availability, extent, acquisition, enforcement and prevention of abuse of intellectual property rights). Article 27.3, point b), allows members to exclude certain types of plant and animal inventions from patentability in their country. The Commission stressed that developing countries need different IP protection strategies depending on their level of development. Contrary to what TRIPS members claim, “rapid growth is more often associated with lower intellectual property protection” and only becomes significant when a country falls into the higher middle income category (CIPR: 2002b:22). Therefore, while the WTO can claim to take into account the needs of developing countries, the emphasis on the need for a uniform high level of DRRs appears to run counter to historical evidence. In fact, Ha-Joon Chang notes, with regard to Europe and the United States, that they themselves “until the 20th century systematically violated the rights of marginal right-wing supplements from other countries” (2001: 10).
The flexible application of IP rules to promote economic interests was also successfully adopted by East Asian countries such as Korea and Taiwan, until recently, where counterfeiting and reverse engineering were seen as important methods of developing technological and innovative capabilities (CIPR, 2002b: 19-20). Strong protection of IP authorities therefore appears to be a consequence rather than a cause of economic development. Specifically, if, on the date of the ON TRIPS agreement (January 1, 1995), a developing country did not deny product protection in a given technological field, it has up to ten years (until 1 January 2005) to implement protection (Article 65.4). In accordance with Article 4, (d) a member may exempt from the duty of the most favoured nation any advantage, privilege, privilege or immunity of that member under international intellectual property protection agreements that came into force before the WTO agreement came into force, provided that these agreements are not notified to the TRIPS Council and do not constitute arbitrary or unjustified discrimination against other members. Here you will find the most recent list of countries (and customs zones) applying to join the WTO, as well as a list of all WTO members and their WTO accession dates. Another advantage inherent in the TRIPS agreement is the “flexibility” offered to all members in interpreting various sections of the agreement (Vandoren, 2001). Article 27.3, for example, allows members to exclude certain inventions and objects from patentability, and allows the protection of others – such as plant varieties – through compatible sui generis systems. The Doha Declaration reiterated that developing countries have the right to issue compulsory licences or to authorize parallel importation of medicines under Article 31 to deal with “national emergencies or other extreme emergencies” – and that public health crises such as HIV/AIDS, malaria and other epidemics can be declared as such (WTO, 2001).