Trade-Related Aspects of Intellectual Property Rights for Developing States Essay

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The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) is undeniably the most contentious in relation to its impact on development. The TRIPS agreement requires all member states to implement a number of diverse forms of intellectual property rights (henceforth IPRs).1

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I will start the discussion with a brief overview of the essay. Generally, the TRIPS agreement is not a monster. However, there are certain provisions in the TRIPS agreement that have had a negative impact on developing countries. The most controversial provision is Article 27. This provision includes pharmaceuticals as patents. This provision has had a negative impact on developing nations. This is in context of public health. The patents drugs have become expensive hence inaccessible to many people in developing nations. The provisions on copyrights have also had a negative on developing nations. Article 9 of the TRIPS agreements provides that member states have to comply with the Berne Convention. Article 2, paragraph 1 of the Berne Convention provides for the protection of Literary and Artistic Works. Providing strict rules on copyrights affects the flow of information in developing nations. Yet, this information is necessary for the nations’ survival and development.

The paper will take the human rights approach. These human rights are found in the Universal Declaration of Human Rights. The Universal Declaration of Human Rights propounds that all human beings have the right to access information. Therefore, in my opinion, restricting the flow of information to developing countries is an infringement of this right. This provision is provided for under Article 19 of the declaration.

Article 19 states:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”2

Article 3 of the Universal Declaration of Human Rights provides for the right to life. Therefore, denying poor countries accessibility to drugs is tantamount to their survival. This means that patenting of pharmaceutical drugs will have a negative impact on developing nations.

This paper takes the approach that the Trips agreement has had a negative impact on developing countries. This is in relation to health matters and education.

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The main arguments in this essay are that developing countries have been adversely affected by the TRIPS agreement. This is in relation to pharmaceutical drugs and the flow of information to such countries. As result, the quality of education and health has been compromised. To prove these arguments, the paper will use South Africa as a case study. South Africa is a country that was facing an AIDS pandemic at the height of implementing the TRIPS agreement. It was caught at crossroads between implementing the TRIPS agreement and public health.

This essay is divided into two main parts. That is patents and copyrights. Under patents, the paper discusses the impact of patenting pharmaceuticals. This is in relation to developing countries. The paper will use South Africa as a case study. The paper will further discuss the Doha declaration. The DOHA declaration seeks to resolve the conflict between public health and Intellectual property rights. The second part of the paper discusses copyrights and their impact on developing countries. The paper notes that copyrights affect the quality of education in developing county. South Africa is also used as a case study. Finally, the essay will end with a conclusion.

Theoretical Approach of the Study

This paper will use a case study as its theoretical approach. The paper will study south Africa. The tools used for the study will be scholarly articles from journals. The paper will discuss what other scholars have said about the TRIPS agreement and its effect on South Africa. South Africa is a developing nation that has had a share of setbacks in implementing the TRIPS agreement. Hence, it is the perfect example. The reason for taking this approach was time and finances. I was able to carry out research within a short time. Unlike other methods, it does not require samples and questionnaires that consume a lot of time. Furthermore, it is a cheap method since no money is spent when carrying out the research. Historically, lecturers have used case studies as tutoring methods. In addition, Professors have used case studies as part of professional growth. This is particularly in business commerce studies and in legal learning. The importance of using this method in analyzing the law is many. For instance, case study technique permits investigation of answers; case study expands the knowledge of what scholars already know, and lastly, case studies stress the full background analysis of a limited number of proceedings or circumstances and their associations. This method is used in various areas of law. The method is applied mostly in relation to international law. This is because; using other methods like questionnaires can be very expensive. Therefore, this method is also effective in my area of study. This is because; my area of study is in relation to international law.

The impact of TRIPS Agreement on South Africa in relation to Patents

Prior to the passing of the TRIPS Agreement, patent protection for pharmaceutical products was virtually nonexistent in poor developing nations.3 The effect was that the generic drug market thrived. The generic market made the prices of pharmaceutical drugs to be moderately low. As a result, the reproduction of drugs became widespread. This was another form of accessing low-cost but unlawful forms of patented drugs.

The situation changed after the enactment of the TRIPS agreement. Article 27 of the TRIPs agreement included pharmaceuticals to be patented. Article 27 states:

“Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step, and are capable of industrial application. (5) Subject to paragraph 4 of Article 65, paragraph 8 of Article 70, and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology, and whether products are imported or locally produced.” 4

This provision gives a wide range of products that can be patented. Pharmaceuticals fall in the category of process and products. This means any member state who encouraged the use of generic drugs was infringing the violating the TRIPS Agreement.

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At the time of enforcing this Agreement South Africa was facing a health catastrophe. The country was going through the AIDS epidemic. South Africa was caught at crossroads. This was the realization of internationally pharmaceutical patent legislation and the want to retain cheap drugs within needy the community.

In 1997 the South African government enacted the Medicines and Related Substance Amendment Act (no, 90).5 The main purpose of the Act was to present a legal structure for the regulation of national drugs rules. The Act permitted the Minister of health to ignore the patents rights of pharmaceutical drugs. He was to ignore these rights based on public health. The effect of this provision is that the minister can allow the use of analogous importing and mandatory licensing.

The effect of this Act prompted the US government to complain to the World Trade Organisation. In addition, forty pharmaceutical companies instituted lawsuits against the South African government. The lawsuits attracted a considerable amount of attention from both the press and the civic societies.

In South Africa’s defense, the minister for health stated that South Africa could not afford the patented drugs. He went ahead and stated that it was expensive to distribute, monitor, and administer their use. This was even if the drugs were available without any costs. Furthermore, the new laws were used to purchase drugs to battle the infections such as Tuberculosis that are closely connected with HIV infection.6

A lot of pressure was on the US government. In 1999, the US government withdraw its action against South Africa. The US government stated that it was dedicated to assisting developing nations to get access to necessary pharmaceutical drugs. Also in 2001, the pharmaceutical companies withdrew their lawsuit. This was a result of the reiteration by the South African government to honor the TRIPS agreement. The agreement was a sign that determination between the competing demands of a state battling to control the AIDS pandemic and the patent rights of pharmaceutical corporations could only come from collaboration rather than lawsuits.7

Supporters of stringent pharmaceutical patent legislation stress the probable benefits that pharmaceutical producers and consumers can accomplish because of safeguarding intellectual property on a global scale.8 However, there are situations that legalize the subordination of international intellectual property rights. For instance, where there is an issue between patent rights and public health, public health prevails.

The negative impact of the TRIPS Agreement on developing countries led to the enactment of the DOHA declaration. The DOHA declaration was in relation to public health. This was a countermeasure by World Trade Organisation.

The Doha Declaration on the TRIPS Agreement and the Public Health was significant to develop countries in specific, public health. 9The Declaration propounds that, in circumstances where there is a disagreement between IPR and public health, public health shall supersede IPR. Article 17 of The Doha Declaration states that the TRIPS Agreement, “can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health and, in particular, to promote access to medicines for all,”10 This provision allows for interpretation and reduces the effect of two-sided demands. It also reduces the possibility of potential disputes connected to the TRIPS agreement and the execution of national health legislation.

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The impact of the TRIPS Agreement on South Africa in Relation to Copyrights

Scholars have argued that the TRIPS agreement and the Berne Convention favors developed countries and copyright holders, predominantly multi-national enterprises.11 This is because developed nations are the major creators of copyright-protected works. In addition, they have been the sole receivers of extensive intellectual property protection.

It is important to note that, developing nations are the main copyright consumers. Yet, they receive the least gains. In the present situation, greater copyright protection equals increased outflows of foreign currency from LDCs to developed countries.12

Article 9 of the TRIPS agreements provides that member states have to comply with the Berne Convention. Article 2, paragraph 1 of the Berne Convention provides for the protection of Literary and Artistic Works. Article 2 of the Berne Convention states:

“The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expressions, such as books, pamphlets, and other writings; lectures, addresses, sermons and other works of the same nature…………..”13

It is important to note that Internet has not progressed in developing nations. Hence, this paper will look at copyrights issues linked to the usual hardcopy. This includes information from journals and books.

Copyright limitations have affected the flow of information in South Africa. This is in situations where information should be more reachable to the public domain. In South Africa, doctors, nurses, and other medical personnel are constrained from disseminating copyrighted information. This information is vital in enlightening society about HIV/ AIDS, how to prevent infections, and the symptoms related to HIV/AIDS. The medical personnel has an obligation to pay royalty fees, before using this kind of information. The effect is that the distribution of such information is limited.

Information is lost in the event the copyrights owners do not grant permission. The result is that doctors cannot convey the information to the people who need the information urgently.

Harward Chakava laments:

“In such situations, where the copyrighted material is for the public in an critical situation (as is the AIDS pandemic), surely this material should be available for non-commercial educational purposes, without having to get permission and pay high costs for it. 14

It is important to note that the education sector has also suffered because of Article 9 of the TRIPS Agreement. In South Africa, many educational establishments reimburse copyright owners with thousands of rands yearly for copyright royalties. However, not all educational establishments have the aptitude to pay royalties. This as a result affects the frequency of information. In addition, the quality of information passed to students is compromised.

Joseph Stiglitz Notes that:

“Ultimately, this will affect the whole educational system as the divide between the haves and the “have-nots” will widen. Rural educational institutions will provide a far inferior product to their students than more affluent urban institutions. Those needing the most assistance in accessing information will be the most hindered as they will only be able to get their information if they pay large sums of money to reproduce it.”15

Therefore, it is important to take note that, infringement of copyrights should not be legal. However, specific exceptions are essential for educational purposes, particularly in poor nations.

Alan Story points out that:

“Copyright should primarily serve the instrumentalist function of satisfying social goals and values: the creation, spread, and sharing of knowledge and information, and public use and access. In the current era, and particularly with regard to LDCs, the presumptions of copyright are ripe for wholesale reconsideration. The biases and interests of developed countries are monopolising the international copyright agenda; the interests of LDCs have been ignored and, in any event, copyright, a Western concept, is not a prerequisite for the production of works in LDCs.”16

The Declaration on Human Rights propagates for the doctrine of freedom of access to information and freedom of expression. Therefore, it is important to note that copyright should support the access of information and not confine information.

To support the above argument, Justice Sandra O’Connor of the U.S. Supreme Court stresses this assertion very well:

“The primary objective of copyright is not to reward the labour of authors but to promote the progress of Science and the useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art”.17

Conclusion

The appropriate function of IPRs in the context of a globalizing economy continues to be challenged. The complexity arises from contradictory notions of property and ownership. Diverse legal ideologies subsist from nation to nation. The different legal ideologies arise from specific social and political experiences of each country. Before the TRIPS Agreement, IPRs protection varied from very open governments that did not safeguard private IPRs to highly protectionist governments that safeguarded both products and processes.18 It is important to note that both arguments pro and against strict IPRs protection, are strong. However, there is little tangible proof to show that IPRs laws will lead to socio-economic and technological progress.

In the end, the TRIPS Agreement is the kind of international safeguard of IPRs that developed nations have been looking for. However, Lee Petherbridge states that, “the TRIPS Agreement simultaneously narrows the developing countries’ access to technology, discouraging the rapid diffusion of new technology needed for economic growth.”19

Some developments were made in Doha. This was in relation to tackling the problems faced by developing nations in context of the TRIPS Agreement. However, the equilibrium between developing private inducement and encouraging technology transmission for the advantage of the public has not been accomplished. After the DOHA Declaration, it is evident that the TRIPS Agreement should not restrict developing states from tackling public health needs.

It is important that a balance between individual IPRs and the interests of developing is achieved. As noted earlier, enforcement of copyrights and patents infringe on the public rights to information and life, respectively. While one may argue, that allowing free access to information will infringe the copyrights of the proprietor. Therefore equilibrium of both interests has to be achieved.

Finally, it is important to note that the TRIPS agreement has taken steps to assist developing countries.20 Article 67 of the TRIPS Agreement, obliges industrialized nations to help developing nations. This is in the relation to developing nations’ endeavours to improve their domestic IPRS policies. In addition, the TRIPS agreements states that developed nations should provide incentives to manufacturers and institutions for the promotion of technology in developing nations.

Regardless of these measures to support developing nations, it remains uncertain whether the TRIPS Agreement actually promotes the attainment of technology by developing nations.

Reference List

Agreement On Trade-Related Aspects Of intellectual Property Rights (TRIPS Agreement)(1995).

Berne Convention for the Protection of Literary and Artistic Works (1979).

C Correa, ‘Intellectual Property in the Field of Integrated Circuits: Implications for Developing Countries’, World Competition vol 2, no 7, 1990, pp 29.

Chakava H, ‘International Copyright and Africa: The Unequal Exchange in P. Altbach ed., Copyright And Development: Inequality In The Information Age’,2nd edn, Chestnut Hill, Bellagio Publishing Network Research and Information Center 1995, pp 24.

Fleet J, ‘U.N. Approach to Access to Essential AIDS Medications, Intellectual Property Law and the WTO TRIPS Agreement’ Emory International Review ,vol.3. no.10,2003, pp 451.

Kang P, ‘IP, Trade, and U.S./Singapore Relations — Significant Intellectual Property Provisions of the 2003 U.S. – Singapore Free Trade Agreement,’ Journal of World Intellectual Property,vol.6, no.5, 2003, pp 721.

Kongolo T, ‘Public Interest versus the Pharmaceutical Industry’s Monopoly in South Africa’, World Intellectual Property, vol. 4, no. 65, 2001,pp 609.

O’Connor S, ‘The Objectives of the copyrights Legislation in Countries’, Cambridge Law Review, vol 3, no.18,2001 pp 129.

Palombi L, ‘Equity for traditional owners, the developing world and intellectual property’ Pennsylvania Journal International Economics Law, vol.1,no 25, 2005,pp 133.

Petherbridge L, ‘Intelligent TRIPS Implementation: A Strategy for Countries on the Cusp of Development’, Pennsylvania J. International Economics,vol.1, no.47,2004,pp 133.

Reichman J, ‘From Free Riders to Fair Followers: Global Competition Under the TRIPS Agreement’, New York University Journal of International Law and Politics,vol.1, no.29,1996,pp 11.

Sherwood R, ‘The TRIPS Agreement: Implications for Developing Countries’, IDEA, vol.1 no.21, 2004, pp 491.

Stiglitz J, ‘Intellectual-Property Rights and Wrongs’ World Information (IP Edition),vol.1,no.4, 2005,pp127.

Story A, ‘Study On Intellectual Property Rights, The Internet, And Copyright’ World Intellectual Property,vol.2, no.6, 2004,pp 123.

Suber P, ‘Open Access to Science in the Developing World’ World Information (IP Edition),vol.3,no.7,2005.pp88.

The DOHA WTO Ministerial Declaration, 2001.

The Universal Declaration on Human Rights,1948.

Trade Related Intellectual Properties Agreement (TRIPS Agreement),1995.

Weissman R, ‘A Long, Strange TRIPS: The Pharmaceutical Industry Drive to Harmonize Global Intellectual Property Rules, and the Remaining WTO Legal Alternatives Available to Third World Countries’, Pennsylvania J. International Economics, vol.2, no.17, 2004, pp 179.

Wojahn P, ‘A Conflict of Rights: Intellectual Property under TRIPS, The Right to Health, and AIDS Drugs’ UCLA Journal International Law & Foreign Affairs,vol.6,no 34,2002,pp 463.

Yu P, ‘Ten Common Questions About Intellectual Property and Human Rights’, Georgia State University Law Review,vol.1,no.23,2007,pp145.

Footnotes

  1. C Correa, ‘Intellectual Property in the Field of Integrated Circuits: Implications for Developing Countries’, World Competition vol 2, no 7, 1990, pp 29.
  2. The Universal Declaration on Human Rights(1948)Article 48
  3. T Kongolo, ‘Public Interest versus the Pharmaceutical Industry’s Monopoly in South Africa’, World Intellectual Property, vol. 4, no. 65, 2001,pp 609.
  4. Trade Related Intellectual Properties Agreement (TRIPS Agreement)(1995)Article 27.
  5. R Weissman, ‘A Long, Strange TRIPS: The Pharmaceutical Industry Drive to Harmonize Global Intellectual Property Rules, and the Remaining WTO Legal Alternatives Available to Third World Countries’, Pennsylvania J. International Economics, vol.2, no.17,2004,pp 179.
  6. J Fleet, ‘U.N. Approach to Access to Essential AIDS Medications, Intellectual Property Law and the WTO TRIPS Agreement’ Emory International Review ,vol.3. no.10,2003, pp 451.
  7. P Wojahn, ‘A Conflict of Rights: Intellectual Property under TRIPS,, The Right to Health, and AIDS Drugs’, UCLA Journal International Law & Foreign Affairs,vol.6,no 34,2002,pp 463.
  8. L Petherbridge, ‘Intelligent TRIPS Implementation: A Strategy for Countries on the Cusp of Development’, Pennsylvania J. International Economics,vol.1, no.47,2004,pp 133.
  9. P, Yu, ‘Ten Common Questions About Intellectual Property and Human Rights’, Georgia State University Law Review,vol.1,no.23,2007,pp145.
  10. The DOHA WTO Ministerial Declaration (2001) Article 17.
  11. J, Reichman, ‘From Free Riders to Fair Followers: Global Competition Under the TRIPS Agreement’, New York University Journal of International Law and Politics,vol.1,no.29,1996,pp 11.
  12. R Sherwood, ‘The TRIPS Agreement: Implications for Developing Countries’, IDEA,vol.1 no.21, 2004,pp 491.
  13. Berne Convention for the Protection of Literary and Artistic Works (1979) Article 2.
  14. H. Chakava, ‘International Copyright and Africa: The Unequal Exchange in P. Altbach ed., Copyright And Development: Inequality In The Information Age’,2nd edn, Chestnut Hill, Bellagio Publishing Network Research and Information Center 1995, pp 24.
  15. J Stiglitz, ‘Intellectual-Property Rights and Wrongs’, World Information (IP Edition),vol.1, no.4, 2005,pp127.
  16. A.Story,’ Study On Intellectual Property Rights, The Internet, And Copyright’ World Intellectual Property,vol.2, no.6, 2004,pp 123.
  17. S O’connor, ‘The Objectives of the copyrights Legislation in Countries’, Cambridge Law review, vol 3, no.18,2001 pp 129.
  18. P Kang, ‘IP, Trade, and U.S./Singapore Relations — Significant Intellectual Property Provisions of the 2003 U.S. – Singapore Free Trade Agreement,’ Journal of World Intellectual Property,vol.6, no.5, 2003, pp 721.
  19. L Palombi, ‘Equity for traditional owners, the developing world and intellectual property’ Pennsylvania Journal International Economics Law, vol.1,no 25, 2005,pp 133.
  20. P Suber, ‘Open Access to Science in the Developing World’, World Information (IP Edition),vol.3,no.7,2005.pp88.
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