Meaning of Flexibilities

Member states of WIPO administered treaties enjoy an important degree of room for manœuvre in the implementation of their obligations, and experience has been gained through the implementation of all those treaties. Some experts believe that the foundation of the available flexibilities are to be found in the negotiation process of the TRIPS Agreement, where policy autonomy for implementation was agreed by Members, as trade negotiators favored an agreement with a great degree of built-in flexibility.

Moreover, the term “flexibility” is contained in certain provisions such as paragraph 6 of the Preamble of the TRIPS Agreement:

“[...] the special needs of the least-developed country Members in respect of maximum flexibility in the domestic implementation of laws and regulations in order to enable them to create a sound and viable technological base.”

The meaning of the word “flexibility” as used in the Preamble is explained by Article 66.1, which reads:

“In view of the special needs and requirements of least-developed country Members, their economic, financial and administrative constraints, and their need for flexibility to create a viable technological base, such Members shall not be required to apply the provisions of this Agreement, other than Articles 3, 4 and 5, for a period of...”

Nevertheless, in the experts’ view, it was during the negotiation process leading to the Doha Declaration on TRIPS and Public Health that the expression “flexibilities” gained widespread use, particularly by trade negotiators, and after the Declaration, this concept became part of the glossary of the IP community.

Much has been said and written about flexibilities, and many different opinions have been expressed, for example, it has been highlighted by experts and policy makers that flexibilities should not be an excuse to avoid compliance with TRIPS obligations, while, on the other hand, attention has been drawn to the fact that flexibilities are not always the solution for problems in the field of intellectual property due, among others, to different economic development levels. This wide range of opinion reflects an essentially political aspect of the concept of flexibilities.

Material on the meaning of flexibilities has been drawn from WIPO document CDIP/5/4 Rev.