Professor Dr. Mohammad Towhidul Islam teaches intellectual property law at the University of Dhaka and has published his PhD thesis titled “TRIPS Agreement of the WTO: Implications and Challenges for Bangladesh” from Cambridge Scholars Publishing in 2013. Emraan Azad from Law Desk talks to him on the following issues:
Law Desk (LD): Would you please tell us about implication or challenge that the TRIPS Agreement has protecting intellectual property rights (IPRs) for Bangladesh?
Mohammad Towhidul Islam (MTI): The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) with its 'one size fits all' approach for the protection of intellectual property rights has created both options and challenges for Bangladesh in the fields of public health, agriculture and development.
The TRIPS has provided Bangladesh with unique opportunities for its informal and rural SMEs, inter alia, to create niche market for geographically indicative goods like Jamdani or Hilsha Fish, Fazli Mango, traditional medicinal plants like Turmeric and Neem. Further, despite being a consumer of industrial property related IPRs-goods like patents, or industrial designs, Bangladesh has some booming sectors like software, textiles, ship-building and ICT where it can be an IPRs-owner country.
However, enforcement of IPRs like patents would create some serious challenges for its subsistence needs like public health or agriculture. For example, our pharmaceutical companies can reverse-engineer the medicines to supply the generics at a cheaper price. With the strict enforcement of patent rights in pharmaceuticals as required by the TRIPS would push up the prices rendering them inaccessible for the poor Bangladeshis.
LD: Like on pharmaceuticals sector, does the TRIPS have any impact on Bangladesh's agriculture and farming sector?
MTI: Yes, it has. Patents or plant breeders rights (PBRs) as required by the TRIPS to ensure plant variety protection (PVP) would seriously inhibit the traditional farming practices for the Bangladeshi farmers. The necessary monopoly created by IPRs in plant varieties would go to the seed giants and would leave the farmers with limited rights to sell or exchange seeds on non-commercial basis resulting in dysfunctional food security.
LD: How do you evaluate the significance of TRIPS transition period flexibility?
MTI: Having recognised the insufficiency in infrastructure and policy regime for enforcing the stringent IPRs standards, the TRIPS itself has provided 'special and differentiated treatment' for the LDCs. These differentiated agenda provides various flexibilities including transition period.
While the initial 'period of transition' to compliance for the LDCs was until 1 January 2006, the TRIPS provided that, the TRIPS Council “shall upon duly motivated request by a least developed country member, accord extensions of this period” (article 66 of the TRIPS Agreement). Accordingly, there have been three subsequent extensions since the commencement of the TRIPS. Two of them were plenary i.e. applicable to all IPRs as included in the TRIPS Agreement and the other one (para.7 of the Doha Declaration 2001) was applicable for only pharmaceuticals and agricultural chemicals. The 2005 extension of “transition period” for the LDCs was up to July 2013. On the eve of the deadline, the TRIPS Council extended the transition period until 2021 starting from 1 July 2013 in pursuance of a proposal sponsored by the LDC Group. The decision of 11 June 2013 has removed the condition introduced in the earlier 2005 decision that LDCs cannot roll-back the level of implementation of the TRIPS that they have already undertaken in their national legislation. Further, the special transition period for pharmaceuticals is further extended until 2033 starting from 1January 2016 at the request of the LDC Group with Bangladesh in the chair.
LD: What is the objective of the LDC transition arrangement?
MTI: The objective as stated in article 66.1 is to accommodate “the needs and requirements of least developed country Members…and their need for flexibility to create for a viable technological base”. This strategic advantage enables the generic producers of the LDCs to freely copy medicines patented elsewhere for domestic consumption needs and export purposes. Like many WTO flexibilities, the primary benefit of an extended transition period lies in the preservation of policy space for the LDCs – conserving the autonomy of the LDCs to determine appropriate development, innovation, and technological promotion polices pursuant to local circumstances and priorities.
LD: Has Bangladesh been successful in utilising the TRIPS-flexibilities?
MTI: Production and export of generic pharmaceuticals is not a proof for successful utilisation of the TRIPS transition period. To do this, we have to update our age-old Patents and Designs Act by prohibiting patent ever-greening, inserting the provisions of waiver decision, and parallel imports. Further, we have not yet enacted laws in the areas of PVP, traditional knowledge (TK) and traditional cultural expressions (TCEs).
LD: What could be the legal challenges for Bangladesh at the end of transition period?
MTI: Once the transition period is over, Bangladesh would have to face the reality of the TRIPS in complying with the TRIPS minimum standards for patents, trademarks and other forms of IPRs. The current practices like reverse engineering of drugs patented elsewhere would be penalised. The seed giants would claim patents or PBRs for plant varieties curbing the traditional farming practices of our farmers for saving and re-sowing seeds. Bangladesh may also face challenges in accessing to foreign market if it is not TRIPS compliant during the post-TRIPS era.
LD: Are we ready to face the post-TRIPS transition period?
MTI: I think, Bangladesh's legal and technological base is not ready to face the harsh realities of post-transition period since the Patents and Designs Act has not prohibited patent-ever greening; no sui generis PVP legislation is enacted recognising farmers as breeders and upholding their right to access to benefit sharing and prior informed consent while using their germplasm.
LD: What is your suggestion to improve our IPRs enforcement system?
MTI: For effective IPRs enforcement, the Government should focus on IPRs education for raising awareness, establish an appellate tribunal comprising of experts, create a special unit of law enforcing agencies, and appoint special judges for disposing of IPRs disputes.
LD: Thank you, sir for you addressing the queries.
MTI: It was pleasure to talk to you.