Daniele Archibugi and Andrea Filippetti[34] argue that the importance of the TRIPS Agreement in the process of generating and disseminating knowledge and innovation has been overestimated by its promoters. This point has been supported by the United Nations` findings, which suggest that many countries with weak protections regularly benefit from high levels of foreign direct investment (FDI). [35] An analysis of OECD countries in the 1980s and 1990s (in which the patent term of medicines was extended by 6 years) showed that while the total number of registered products increased slightly, the average innovation index remained unchanged. [36] In contrast, Jörg Baten, Nicola Bianchi and Petra Moser (2017)[37] find historical evidence that compulsory licensing – a key mechanism for weakening intellectual property rights covered by Article 31 of Travel – can indeed be effective in promoting inventions in certain circumstances by increasing the threat of competition in areas with low levels of competition. However, they argue that the benefits of weakening intellectual property rights depend heavily on the ability of governments to credibly commit to using them only in exceptional emergencies, as companies can invest less in research and development if they anticipate repeated episodes of compulsory licensing. Part II of the TRIPS Agreement deals with the different types of intellectual property rights and how they can be protected. The aim is to ensure that minimum standards of protection exist in all WTO Members. The starting point here is the obligations of the most important international agreements of the World Intellectual Property Organization (WIPO), which already existed before the creation of the WTO: however, the TRIPS Agreement is based on a certain conception of intellectual property as an idea, and internationalization can be problematic. This may be in the narrower sense that different societies place a higher priority on the common good on a variety of issues, and more broadly, that some forms of “traditional knowledge” (TK), as shared by indigenous communities, do not conform to the codified Western model of individual and exclusive ownership (Michalopoulos, 2003: 17-18). Recent advances in products of biotechnology have highlighted this contrast: for Western proponents, modern genetic research aimed at increasing human well-being is a quite respectable “bioprospecting”, a form of intellectual property that falls within the framework of the TRIPS Agreement. For indigenous peoples, on the other hand, the patenting of frozen resources such as neem extract[ii] can be seen as a form of “biopiracy” and represents the “dishonest repackaging of traditional knowledge to guarantee monopoly rents for biopiracy while excluding the original innovator from a claim of those rents” (Isaac & Kerr, 2004). At present, the TRIPS Agreement does not provide an agreed interpretation of what constitutes traditional knowledge or how it should be protected (ICRP, 2002b:73-87). It is also important to note that the concept of intellectual property, as contained in the TRIPS Agreement, stems from a particular interpretation of intellectual property rights that has developed in the Western tradition in recent decades alone.
Intellectual property was first highlighted as an international problem by the G77 group of developing countries in the 1960s and 1970s, when, as part of the campaign for a new international economic order, they unsuccessfully sought to dilute existing protection of intellectual property rights in order to close the technological gap with the developed world (May & Sell, 2006: 155-156). However, this debate also sparked various corporate actors in the United States – and to a lesser extent in Europe and Japan – who were increasingly concerned about losses due to trade in counterfeit goods. To implement this recommendation, Article 28.1(b) of the TRIPS Agreement, which sets out the rights of process patent holders, should be amended. This paragraph states that the rights of a process patent holder extend to the product obtained from the process and are not limited to the process itself, effectively removing the concept of a process patent from the TRIPS Agreement (6). Although these provisions have been included in the TRIPS Agreement since its inception, countries have never interpreted the provisions of the Agreement in a manner consistent with the promotion of public health. Some countries subject to the TRIPS Agreement would adopt laws that would maximize the protection of intellectual property rights, but ignore public health crises affecting developing areas. In addition, and perhaps even more harmfully, at the request of the influential pharmaceutical lobby, developed countries would threaten sanctions on countries that attempt to use parallel imports or compulsory licenses. For example, in 1997, the United States notoriously threatened South Africa with trade sanctions if it did not repeal a section of the Act to amend the Control of Drugs and Related Substances Act that allowed compulsory licensing and parallel imports, even if it was in compliance with TRIPS (3, 8). The potential social costs of the TRIPS Agreement for the poorest countries are now particularly evident in the issue of access to medicines, particularly with regard to antiretroviral drugs (Lanoszka, 2003).
Prior to the TRIPS Agreement, many countries did not patent medicines or provided less than the robust 20-year protection that was introduced later. However, the current TRIPS rules drive up costs to prohibitive levels by allowing monopoly prices and excluding cheaper “generic” alternatives. In 2001, for example, a group of 39 pharmaceutical companies sued the South African government in court to prevent the use of compulsory licenses for generics, despite intense public pressure eventually forcing them to drop the case (Sell & Prakash, 2004). However, the incident showed how multinational corporations are trying to use the TRIPS Agreement to make private profits at a clear cost to the public good[iii]. Although some flexibilities in the interpretation of the agreement have now been identified in light of public health concerns, as mentioned above, they often remain unused due to cost, complexity and the risk of trade retaliation (O`Farrell, 2008). Access to life-saving medicines is a fundamental human right and, as such, trumps all other claims in this area. The reason this issue is so complex and so hotly debated is that in order to satisfy this right, the right must be granted. In other words, in order to fund the development of life-saving drugs, the manufacturers of those drugs must be financially compensated by the users of the drugs they cannot afford in this case. Since access to life-saving medicines is theoretically a fundamental human right, those who cannot afford these medicines should have them provided free of charge or at a reasonable cost. The above argument defines the problem facing the TRIPS Agreement in the context of global public health: the fundamental human rights of people in developing countries must be respected without hindering the development of new medicines that serve to advance the realization of this right. The TRIPS Council will conduct a general review of the Agreement after five years; however, it also has the power to review it at any time in the light of relevant new developments that may warrant modification and addition (Article 71).
. all categories of intellectual property covered by Sections 1 to 7 of Part II of the Agreement (Article 1(2)). This includes copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout schemes for integrated circuits, and protection of undisclosed information. The TRIPS Agreement is an agreement on minimum standards that allows Members to provide more comprehensive protection of intellectual property if they so wish. Members are free to determine the appropriate method for implementing the provisions of the Agreement in their own legal system and practice. In a press release, WTO Director-General Supachai Panitchpakdi called the decision a “historic agreement.” Panitchpakdi continued: “This proves once and for all that [the WTO] can address both humanitarian and trade issues. This particular issue was particularly difficult. The fact that WTO members have managed to find a compromise on such a complex issue is a testament to their goodwill. (5) The Heads of State and Government of the developed world welcomed this decision as a dramatic development in international intellectual property law.
Kofi Annan, Secretary-General of the United Nations, said that “the protection of intellectual property is the key to advancing new medicines, vaccines and diagnostics that are urgently needed for the health of the world`s poorest people.