Reimagining the Technology Transfer Obligation in Article 66: A Reform Proposal

Article 66.2 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which directs developed countries to facilitate technology transfer (TT) to Least Developed Countries (LDCs), is supposed to facilitate a balance of rights and interests, ensuring that TRIPS benefits the most vulnerable members of the World Trade Organisation (WTO). Although Article 66.2 has been operational for two decades, doubts abound regarding its viability and functionality. This thesis contends that the most critical issue is to consider whether Article 66.2 is fit for purpose. Departing from dominant trends in literature, this thesis queries whether, as currently framed, Article 66.2 can facilitate TT and help LDCs build a viable technological base as envisaged. Probing the historical foundations of TT obligations, reflecting on the ideas that have shaped them, and analysing the systemic conditions that precipitated Article 66.2’s inclusion in TRIPS, the thesis contends that the TT model in Article 66.2 is flawed. By analysing implementation reports submitted by developed countries between 1999 – 2020, the thesis provides a rich longitudinal view of how the interpretation and implementation of Article 66.2 have evolved across two decades. Combined with insights gleaned from minutes of TRIPS Council meetings between 1998 and 2020, it demonstrates that the problem with Article 66.2 is not necessarily implementational, but the faults are localised in its foundational design. The thesis thus advances strong arguments for reforms. The reimagined approach proposed in the thesis, rooted in distributive justice, advocates LDCs’ active participation in interpreting and implementing Article 66.2. It proposes new concepts, institutions and implementational mechanisms that sidestep current conceptual and implementational limitations in Article 66.2. The reimagined framework aims to create a TT model that prioritises effectiveness, measurability, and accountability without over-burdening developed countries and other technologically-advanced developing countries with TT obligations.