INTRODUCTION
Thomas Jefferson quoted, “If nature has made any one thing less susceptible than all others of exclusive property, it is the action of thinking power called an idea”[1]. But the technological advances of the modern times have not even left this one thing free. Even thinking processes are being commercialised and converted into intellectual property. The developed countries with immense resources at their disposal were the ones who pushed the demand for greater protection of intellectual property as they saw vast possibilities of appropriation of profits from such a property. Thus, an idea too began to be patented and protected. This gave rise to a `rat race’ between the Multinational National Corporations (MNCs) to increase the scope of their R&D activities and invent new products. Developed nations such as the U.S.A. where most of these MNCs are located too tried to develop an international policy which would enable these companies to expand their market base globally and to find ways of creating a monopoly market by way of protection given by the Intellectual Property Rights. Thus, efforts on the part of the developed countries began to strengthen the IPR protection. This led to various Conventions and finally materialized in the Trade Related Intellectual Property Rights or the TRIPS agreement[2]. Certainly, there are both strong advocates and strident critics of a global intellectual property regime. Advocates envision a flowering of innovative activity in developing countries and stronger supports for international technology markets. Critics see higher prices for patented medicines, restricted access to new seed varieties and the potential for monopolistic and abusive technology licensing practices. Generally, the critics far outnumber the advocates. But in reality, TRIPS Agreement is not that monstrous as it is projected to be. Although, it has led to the creation of monopoly markets and hence has led to price rise, making the patented goods almost impossible to fit into the consumption basket of the common man, the huge amount of benefits it is bestowing on the developing economies cannot be overlooked. If we weigh its pros against its cons then definitely the former will prevail. Moreover, by only criticizing this agreement and bringing into limelight solely its negative side then its very purpose would stand defeated. As the above discussion suggests, this paper attempts to present a more humane and just analysis of the Agreement which the developing nations love to hate.
TRIPS: THE GENESIS
After the Second World War, the U.S.economy tumbled. Negative consequences were very much evident at the end of the war. To a significant extent, this spurred the U.S.A. to pursue international multilateral cooperation. In this background the GATT or General Agreement on Tariffs and Trade was negotiated. GATT was not an international organisation but was a legal entity in its own right. GATT aimed at regulating trade at the international level. Its objective was to fully utilise and develop the resources of the world and the expansion of production and exchange of goods besides reciprocal and mutually advantageous arrangements involving a substantial reduction of tariffs and a progressive elimination of other barriers to trade[3]. But, the GATT remained unsuccessful in achieving its objectives. Though it was successful in moving countries to liberalise trade and to cooperate, its principles were often bent and regulations circumvented. Its dispute-solving mechanism was weak as it was only an inter-governmental body and had no legal status[4]. It was then increasingly felt by both the developed and developing nations that some sort of an institutional mechanism was needed to safeguard their position. This led to the Uruguay Round and finally the establishment of The World Trade Organisation (WTO) and the signing of the TRIPS Agreement in 1994[5]. The WTO is the legal and institutional framework of multilateral trading system as redefined and extended by the Uruguay Round of trade negotiations[6]. The WTO is quite unique in the family of international organizations not because of the wide scope of contractual obligations but because it is binding and enforceable through the integrated dispute settlement process. The WTO is thus not the usual `best-endeavours’ organisation. Hence, in the WTO there is no backing out without any retribution and the participation in the rule-making process is important[7]. There are three pillars of the WTO- the first is the revamped version of the GATT, the second pillar is the new agreement on trade in services or GATS and the third pillar is the TRIPS Agreement. The purpose of the TRIPS, in a broad sense is to stimulate research and development by granting owners of intellectual property exclusive rights for a limited period of time[8]. The reason for the inclusion of the IPRs in the negotiations at the Uruguay Round was the significant increase in the International Trade in goods during the Eighties. A number of industrialised countries felt threatened that as a consequence of weak protection extended to the IPRs their interests would be adversely affected. Hence, a demand for strengthening of protection to the IPRs was voiced. Several attempts such as the Paris Convention on Industrial Property and the Berne Convention on Literary and Artistic Works were made in the 19th Century to cover the issue of IPRs under the ambit of the international law. Both treaties were administered by World Intellectual Property Organisation (WIPO)[9]. In the 1970s developing countries sought to obtain more flexibility in the application of the provision of the above –mentioned treaties so as to secure greater access to foreign technologies with a view to promoting their economic and social development. These efforts led to the revision of Paris Convention in 1971. Similar efforts were made in order to bring about a revision of the Berne Convention where the developing countries called for a loosening of the copyright protection[10]. These conventions indicated that an atmosphere was created for the demand of stronger protection to IPRs. This along with other factors such as the growing competitiveness of newly industrialized developing countries in the manufacturing sector, the increasing globalization of the market place and the growing perception of intellectual property by the enterprises of the developed countries as a strategic asset contributed to the successful culmination of the TRIPS Agreement. TRIPS was a result of a number of negotiations which continued over a span of almost 20 years from Punta Del Este to Marrakesh. The idea of TRIPS was first mooted at the GATT meeting of trade ministers at Punta Del Este in Uruguay in 1986 and was formally concluded in April 1994 at Marrakesh, Morocco along with the other negotiations of the Uruguay Round[11]. When this round got underway, 14 negotiationg groups were established under the group of negotiation on goods, including the negotiating group on Trade related aspects of intellectual property rights. The draft of this agreement popularly known as the Dunkel Draft was heavily criticized by India as it led to the elimination of all options. Eventually, given the complexity, ambiguity and relative novelty in international law of several of the provisions of the TRIPS under the Dunkel Draft, all members were given one year from the entry into force of the WTO and TRIPS, to implement its provisions. It was also agreed that all other provisions of the TRIPS could be delayed by the developing countries upto January, 2000. Product patent protection for areas of technology not so protected by January 1995 could be delayed for a further period of five years, upto January 2005[12]. It is by far the most wide-ranging and far reaching international treaty on the subject of Intellectual Property to date and marks the most important milestone in the development of law in this area. Apart from being the first international intellectual property agreement to dramatically increase the level of minimum standards of such law, TRIPS is also the first international intellectual property law agreement[13] :
i) that obliges, in a single undertaking, new standards on as many as seven types of IPRs
ii) to be included as a part of the rules governing the multilateral trading system, thus marrying trade law and jurisprudence with intellectual property law, particularly making applicable to the swift and effective dispute settlement process of the WTO, which can impose trade penalties on members violating the agreement.
iii) That includes fairly detailed standards for domestic enforcement of IPRs, both internally and at the border.
iv) That covers new subject matter under existing types of intellectual property, at least for some developing countries such as product patents for food, pharmaceuticals, chemicals etc[14].
The TRIPS Agreement was a novel concept introduced in the arena of the IPRs. It had been materialised after a long period and after many controversies. Hence, problems in its implementation were inevitable. The developing countries since its inception were hesitant in adopting the TRIPS regime because compliance with it required amendments and modifications in their existing laws. This paper will further delve in to a detailed analysis of the effect of the TRIPS Agreement on the developing nations.
TRIPS and Developing Nations
TRIPS provides minimum standards for the protection of intellectual property rights or IPRs but does not envisage harmonization of these rights among all WTO members. The demand for the inclusion of intellectual property in the Uruguay Round was mainly put forth by the developed countries such as the U.S.A., EU, Japan etc[15]. Although, one of the reasons for the inclusion of the subject in trade negotiations may well have been the attractiveness of the trade enforcement mechanism, the trade forum was more importantly seen as one in which the chances of making progress from their perspective was higher because of the possibilities of making trade-offs with other areas. Though, the demand was put forward by the developed countries it was also supported and approved by the developing nations. Even if not all developing countries participated in these negotiations in equal measure, it would be fair to say that the developing countries’ perspective was represented[16]. The TRIPS Agreement continues to be the generally accepted point of reference for the protection that countries should give to the intellectual property of others. But, this does not make it immune from criticism. This agreement has been the subject of dual criticism. Developed countries question its effectiveness in providing adequate protection to their intellectual property rights and the developing countries find compliance with the TRIPS Agreement as an attack on their sovereignty. They feel that they have been discriminated against and the bounty is being enjoyed by the developed countries whereas the `left-overs’ are being thrown to them.[17] The main question that arises here is that if the developing nations found TRIPS so unfavourably disposed towards them then why in the first place did they accept it. One major reason for this muted acceptance of the TRIPS regulations is their stake in a successful conclusion of the Uruguay Round as a whole. They had an interest in the survival of a credible multilateral trading system and its reinforcement. This survival depended upon a successful culmination of the Uruguay Round for which it was accepted that a major outcome regarding the intellectual property laws was essential[18]. They also expected benefits from results in specific areas of the negotiations, such as textiles and agriculture. Thus, in return of trading benefits the developing countries agreed to change their intellectual property laws and to further strengthen the protection given to the IPRs. One major question that has been raging since the inception of the TRIPS Agreement and even before it is that are the developing countries discriminated against in matters of Intellectual Property Rights. Many arguments have been put forward in order to come to a satisfactory answer to this question but in vain. The author is of the opinion that the answer to this question should be in negative and has put forward contentions to support her viewpoint.
Intellectual Property can be defined as a category of intangible rights protecting commercially valuable products of the human intellect[19]. The National Consumer Council,1991 has defined it as information with a commercial value[20]. They have also been characterized as a composite of “ideas, inventions and creative expression” plus the “public willingness to bestow the status of property” on them[21]. It becomes explicit from the definition that intellectual property is a bundle of rights and hence it should be protected. Moreover, the subject matter of its protection are the valuable products of the human intellect. This shows that intellectual property rights protect the fruits of someone’s hard labour and skills. The TRIPS regime seeks to protect these rights of the individuals. The Research & Development skills of the developed countries are extremely sophisticated. They also have huge financial resources at their disposal in order to carry out research activities. It is the result of extensive cerebration processes of the best minds that a new product is invented. A large number of energy, money and other resources are spent on such an invention. It will be grossly unfair to the people who are responsible for this invention if they are not given the due credit for their work. Thus, the strengthening of protection extended to the Intellectual Property Rights is a much needed step in order to prevent free-riding and to accord rightful significance to the person or persons responsible for the innovation. But the situation created here is of a perpetual imbalance. If the Intellectual Property Rights are further concretised and protected then a situation of monopoly arises that creates a scarcity in the market which leads to the sky-rocketing of prices and hence makes the situation difficult for the common people especially in the developing countries. This is the main contention that the scholars of the developing countries argue upon. They contend that the TRIPS Agreement and a strong enforcement mechanism of the intellectual property rights are inhumane and opposed to the basic essence of humanity as they completely disregard the plight of the poor while protecting the interests of the rich. A counter-view of this contention can be that `Justice for one is Injustice for others’. The whole world is lopsided. Any attempt to create a perfect or harmonious balance is futile. If in order to accommodate the needs of the poor the rights of the rich are transgressed upon will this not amount to injustice? If the hard labour done by the scientists and other technocrats is not given due recognition will this not amount to a lack of incentive? These questions need to be answered before any measure to provide `justice’ to the masses is taken. The plight of the poor is visible and much talked about hence it has become the concern of every household in the world but what about the rights of the rich which are being trampled upon in the name of humanistic measures. If adequate protection to the Intellectual Property Rights is not provided then the very basis of granting such rights would become meaningless. `Free-riders’ would freely violate such rights and would get unjustly enriched at the cost of others’ labour and hard work. Such a miscarriage of justice should not be allowed to take place in the name of protection of the marginalised section of the world population. The TRIPS Regime led to the amendment of the existing intellectual property laws of the developing countries in order to bring it in conformity with its regulations. One of the major changes that these amendments brought about in the Indian Patent Act was the granting of product patents along with the process patents which were being granted earlier. This led to a huge uproar and furore among the pharmaceutical companies on the domestic front. This was because earlier by resorting to reverse-engineering methods they could produce the same product but now such `plagiarist’ methods were prohibited by the legislation. Again arguments based on humanistic notions were raised against this amendment. It was argued that such a strict implementation of Intellectual Property Rights would lead to the creation of a dominant producer and would adversely affect competition and hence would provide no choice to the consumers. It was also put forth that granting of product patents would lead to escalation in prices and would make the product non-affordable for the poor residing in the developing countries. It was primarily for this reason that reverse-engineering was allowed. Reverse engineering is the process of discovering how an invention works by inspecting and studying it, especially by taking it apart in order to learn how it works and how to copy it and improve it[22]. Thus, reverse-engineering in simple language is nothing but copying an existing process and making some improvements in it based on the original work. Thus, such a method cannot be called `healthy’ with respect to the protection of the intellectual property rights. It is a naked infringement of the IPRs and hence, granting of the product patents is essential in order to prevent such transgressions. The second contention in favour of the TRIPS regime is that such an extensive protection provides an incentive to Research & Development. A strong enforcement mechanism and patent protection system no doubt would lead to the stimulation of Research and Development efforts[23].
If the mechanism of enforcement is lax and weak then the rights of the inventors would be breached left and right. This would prove as a disincentive to them for applying their intellect and coming up with novel inventions. This would lead to a scarcity of innovative products in the market. For instance, taking the case of the pharmaceutical sector, if in order to accommodate the needs of the less fortunate we allow the rules to be flouted openly then no company would waste its resources, time or human capital on the invention of new drugs and there would be a scarcity of new, life-saving drugs. In short, the argument that the scholars of the developing countries are advocating is that if an equitable distribution of the product cannot be achieved then its production should be stopped which is a very impractical argument. The solution to the problem which these scholars are raising should be solved by the governments of the developing countries rather than the producers. The governments should provide subsidies to the poor who cannot afford the highly priced products. This subsidy should be borne by the government and not by the producer. Thus, the method being espoused by the scholars of the developing countries is unfair as they call for placing restrictions upon the protection being extended to the IPRs of the companies which produce these innovative products in order to curtail the prices. Moreover, the whole controversy that was set in motion after the adoption of the TRIPS regime is meaningless in the context that even before the inception of this agreement the developing countries were unfavourably poised as against the developed nations. In fact, in the Uruguay Round, the developing countries participated as equal partners and they even had a say in the matters[24]. Before this Round and before the conclusion of the TRIPS Agreement the developing countries were completely ignored in issues of international trade. Agreements such as Special 301 and Super 301 where developing countries were made to follow the regulations issued by developed countries such as the U.S.A by threatening to restrict the exports cannot certainly be termed to be fair. Section 301 of the US Trade Act of 1974 gives the President of the U.S.A the authority to retaliate against foreign trade practices which discourage US exports. What these practices could be was not mentioned in the legislation. The Trade and Competitiveness Act, 1988 introduced changes to S.301 rendering it even more threatening to foreign traders. The 1988 Act required formal investigation of private complaints, and created a new procedure called Super 301 which required the US Trade Representative (USTR) to create an inventory of unfair practices in foreign countries to select priority targets from that list, set deadlines for removal of the offending measures and restrict the export by these countries if the practices concerned were not eliminated. Super 301 was complemented by a Special 301 provision that pertained to the identification of countries whose protection of intellectual property was inadequate[25]. In a nutshell, these agreements were measures taken by the developed countries to ensure that the developing nations fell in line and formulated policies favourable for the former. Hence, it can be argued here that the deal which the developing countries were getting before the TRIPS Agreement was no less arbitrary and unfair than the latter. The GATT was basically in the nature of a club which was primarily of relevance to the developed countries. Developing countries did not participate fully[26]. On the contrary, at the initial stage of the Uruguay Round, developing countries fully participated in evolving WTO framework significantly expanding the global aspect of the organisation. It is in the Uruguay Round that the developing countries for the first time articulated their demands instead of praying for concessions. Thus, it would be erroneous to say that the Uruguay Round or the TRIPS regime in any way are prejudiced against the developing nations. Furthermore, one of the main reasons for the developing countries to participate in the Uruguay Round was their interest in gaining trading concessions in the agricultural and textile sector. The deal was that in return for according higher and stronger protection to the Intellectual Property Rights the developing nations would get trading benefits. The developed side of the globe fulfilled their promise as the Multilateral Fibre Agreement (MFA) in the textile sector was eliminated[27]. What was clear to the developed nations at the time of the agreement was that the alternative to negotiating multilateral intellectual property standards would almost certainly have been to negotiate bilateral trade and intellectual property agreements without commonly accepted multilateral points of reference and without functioning restraints on the threats of trade counter-measures. Indeed, when comparing Post-TRIPS to the Pre-TRIPS situation, it is fair to say that there has been significant movement away from the unilateral threats of the withdrawal of GATT market access benefits[28]. In an effort to secure protection of intellectual property and there has been a demand to conclude TRIPS-plus bilateral agreements and these are being concluded. Those countries that have agreed to such higher standards have presumably done so after weighing the market access and the other benefits being offered to them[29]. Thus, it can be said that the developing countries entered into and ratified this agreement not due to compulsion or force on the part of the developed countries but because of advantage that they were going to derive out of it. Keeping this in view, all the blame should not be wiped on the sleeves of the developed nations. In order to provide justification to the TRIPS Agreement an analogy can be drawn with the Indian Penal Code. This Code has been enacted in order to maintain law and order in the society and punish those offenders who disturb the peace and harmony of the society. Similarly, the TRIPS Agreement is an effort on the part of the countries world over to prevent infringement of the intellectual property rights so that the inventor gets due credit for his labour and innovation. The Indian Penal Code imposes fines as well as punishments upon those who breach the law irrespective of their financial condition in order to set an example to the society and to deter the criminals. In the same manner, the TRIPS regime in order to deter counterfeiting and imitation of products advocates strict implementation of its regulations irrespective of the economic status of the countries. When the Indian Penal Code is not placed under criticism for adopting such a non-humanistic approach then why the TRIPS Agreement should be condemned and termed as being discriminatory and violative of the rights of the poor. It is often argued that foreign firms avoid investing in countries with weak IPR Regimes. Hence, one of the greatest advantages of the adoption of this Agreement is the inc[30]rease in the flow of Foreign Direct Investment from the developed countries to the developing nations. As a result of their amended patent legislations and hence, a stronger protection to the intellectual property rights a large number foreign industries would be willing to invest in the developing economies. This would lead to increase in the cash flow in the market and would help improve the economic condition of the country. It would also serve as an incentive for large Indian firms to invest more in Research and Development in order to increase their markets and hence profits. Collaborations between the Indian and the foreign firms can also be seen. This proves to be mutually advantageous for them as the financial and technological resources are provided by the foreign companies and India’s skilled manpower at low cost can convert these inputs into an innovative finished product. IPR regimes also may influence trade flows. Discrepancies among national IPR regimes generate effects analogous to non-tariff barriers[31]. Exporters in the north face additional costs when they export to the south rather than to the other countries in the north, because they must engage in activities to inhibit local imitation. It can also be argued that the the international harmonization of IPR regimes will diminish the transaction costs of operating in different regulatory environments. One of the most traditional arguments for supporting the IPR protection in developing countries is that the risk of piracy makes technology owners less willing to transfer proprietary knowledge to countries with weak IPR regimes[32]. Thus, the demonic character attributed to the TRIPS Agreement is not completely true.
The viewpoint presented above has met with a stiff opposition especially in the developing countries where the negative effects of the TRIPS Agreement are being felt the most. The scholars of these countries argue that the new intellectual property regime is a direct attack on the sovereignty of their respective nations. According to these intellectuals, such a framework of rules would lead to `puppetization’ of the Economic South in the hands of the Economic North. They further contend that agreements such as the TRIPS are nothing but a tool in the hands of the developed nations to bleed the developing countries white and to strip them of their natural, financial and human resources. Some scholars have also termed the new regime as `GATTastrophe’[33]. They feel that through this mechanism the developing countries would be made even more subservient to the developed nations. They believe that the concept of global village has been transformed into global tillage and global pillage[34]. One of the major concerns of the intelligentsia belonging to the Economic South was the adverse effect the TRIPS Regime would have on public health. They were apprehensive that the stringent regulations of the TRIPS Agreement would have a negative impact on the public health systems of the developing countries. As a result of the high cost of Research & Development and huge amount of money being spent on the invention of new and innovative drugs its production cost rises. Hence, in order to earn profits, the prices of these drugs are fixed at a very high level. This makes such drugs practically unavailable to the common man. The scholars thus argue that the TRIPS Regime is inhuman and does not take into account the plight of the common man[35]. They further add that as a result of the unrealistic pricing of drugs, their access would become almost impossible for the general masses and hence public health would suffer. One of the major problems with the arguments posed by these scholars is that they are not at all frugal in criticising the existing regime but they fail to provide us with a better alternative. If the patenting of these drugs is not done then their would be no incentive for the companies to engage into Research and Development and create new life-saving medicines. A harmful consequence of this would be the production of inferior, adulterated and low quality drugs. That would be even worse than the present situation. Hence, it would be incorrect to assume that the TRIPS Agreement poses a threat to the public health systems of the developing nations. Moreover, developing countries’ apprehension that drug prices will shoot up manifold if the TRIPS regulations are complied with are uncalled for. The TRIPS Regime requires that along with process patents even product patents should be granted. It is true that the price of a drug protected by a product patent would be higher than what it would have been if it were not covered by the same. However, the extent of price impact depends upon a number of factors. First, the TRIPS regime will apply only to patent application filed after 1st July 1995. it takes around 7-10 years for a patented drug to come into world market from the date of the patent application. Thus, the pharmaceutical companies of the developing nations are free to produce and sell all those drugs which are already in the world market from the date of the patent application or that will newly come into the world market till the early years of the next century. Secondly, it is likely that the share of the patented drug in our market will not be more than 10-15% of the total drug market and there is no reason why the prices of drugs that are nor covered by the patents should shoot up. Thirdly, apart from the drugs that make a spectacular breakthrough alternative drugs prior to generation of patent drugs are usually available in the market. Their prices would act as a check on the newly introduced patented drugs. Lastly, it is open to use the compulsory licensing system where an essential drug is widely needed by the common man and yet it is not available at reasonable prices then a licence can be issued to any other company other than the patenting company to produce the drug in question[36]. Moreover, levelling such allegations against the TRIPS Agreement that it does not take into account humanistic values and is extremely rigid and dispassionate would be incorrect. Article 7 of the TRIPS Agreement provides that protection and enforcement of intellectual property rights should be done in a manner which is conducive to the social and economic welfare and to a balance of rights and obligations. Similarly, Article 8 of the same agreement states that “Members may, in formulating or amending their national laws and regulations, adopt measures necessary to protect public health and nutrition and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this agreement”[37]. But these Articles were misinterpreted by the developing nations and accusations were raised that these provisions are being misused and their true purpose is not being served. Consequently, as an outcome of the constant campaigning of the developing nations, a `Declaration on the TRIPS Agreement and Public Health’ was reached at the Doha Ministerial Conference of the World Trade Organisation in 2000. It was the result of staunch efforts by India Brazil and about fifty-five other African nations that such a compromise could be reached. This is one of the areas where there is an assurance that the restrictive clause under the TRIPS agreement on drug patents will not over ride public health concerns. It is a positive development that in TRIPS, a public health crisis has been included as an exception for granting compulsory license (CL). What is new in the Doha Declaration is that it recognizes the fact which was implicit under Articles 7 and 8 of TRIPS, that considerations of Public Good which includes public health could be the over riding factor while offering IPR protection for medicines for specified diseases and ‘epidemics’ particularly for Developing Countries and Least Developed Countries[38]. Hence, a more humane character was bestowed upon the TRIPS Agreement. Thus, it would be faulty to argue now that the TRIPS Agreement does not cater to public health issues. Hence, in the light of the above mentioned arguments, the TRIPS should not be viewed only as a coercive mechanism to exploit the poor but the benefits accruing from it should also be taken into consideration.
Conclusion
The TRIPS Agreement has always been looked upon as a demon unleashed upon the helpless poor. It has been termed as an exploitative tool in the hands of the developed countries. A misinterpretation of the agreement has been made by the scholars of the developing countries who believe that the agreement only has a negative impact on their economy and sideline its positive effects. What the author has tried to highlight here is the optimistic side of the TRIPS Agreement. The devilish character of this agreement has been exaggerated. It is an accepted fact that protection of rights of some leads to the transgression of rights of others. The strong protection accorded to the intellectual property rights and the consequent creation of a monopoly market has taken its toll on the general masses. They have been systematically denied the fruits of these innovations as they cannot afford to pay such high prices in order to avail them. Thus, it can be said that the `classes’ are enjoying at the expense of the `masses’. But to make the companies which utilise enormous amount of resources in order to create new and innovative products liable for this inequality would be incorrect. This wide gap between the rich and the poor and this inequality of distribution should be corrected by the government. This imbalance should be balanced by the subsidies given by the government. The government should give subsidies to the companies engaging in R&D in order to produce new products. This would serve both as an incentive for the companies and also as a cost-reducing measure. As the costs would reduce the prices too would come down. The government can also correct this tilt by introducing rationing of the essential commodities which have been patented and are not affordable by the poor. The approach which the developing countries suggest is detrimental to both their and the world economy. It is true that economic growth which leaves millions of people hungry, unemployed and oppressed is not growth in its true sense. But, instead of arresting these greater concerns such as poverty and unemployment by active government intervention if the causes of economic growth are eliminated then it would certainly not be called a wise solution to the problem. If the TRIPS Agreement is scrapped and the level of protection given to the intellectual property rights is lowered then a plethora of problems would arise such as lack of foreign investment, scarcity of new and better goods etc. Thus, in order to curtail one problem it should be taken care of that other problems do not arise. The TRIPS negotiations, although initiated at the insistence of certain developed countries, did take account of developing country perspectives, and the final text does provide considerable leeway in implementing this agreement. Such flexibilities have been clarified and further extended in the Doha Declaration on the TRIPS Agreement and Public Health in November, 2001[39]. Thus, it can be safely concluded that the TRIPS Agreement does not pose a threat to the developing economies and does not deserve only brickbats but bouquets as well.
References:
[1] V.R.Krishna Aiyer, “ Off The Bench”
[2] Daniel Gervais, The TRIPS Agreement- Drafting History and analysis, 3rd Edition, 2008,
[4] Ibid.
[5] Jayanta Bagchi, World Trade Organisation-An Indian Perspective, 2nd Edition, 2006, pp.2-5
[7] BM Hoekman, MM Kosteck, “The political economy of the world trading system: the WTO and beyond” 1st Edition, 2001
[8] George A. Bermann and Petros C. Mavroidis, WTO and Developing Countries, 1st Edition,2009, pp.147-148
[9] Supra n.1, p.47
[10] S.C.Scotchmer, “ The Political Economy of Intellectual Property Treaties”, Journal of Law, Economics and Organization, 2004
[11] G.W.Harrison & T.F.Rutherford, “ Quantifying the Uruguay Round”, The Economic Journal, 1997, www.JSTOR.com
[12] Jayashree Watal, Intellectual Property Rights in the WTO and developing countries, 1st Edition, 2001, pp. 35-37
[13] Supra n.8
[14] Supra n.4, pp. 3-4
[15] Supra n.11
[16] Supra n.2 p.129
[17] L.R.Helfer, “ Regime Shifting: The TRIPS Agreement and dynamics of international intellectual property lawmaking”, Yale Journal Of International Law, 2004, papers.ssrn.com
[18] Supra n.8
[19] Black’s Law Dictionary, 9th Edition
[20] National Consumer Council,1991
[21] R.M.Sherwood, Intellectual Property and Economic Development, 1st Edition,1990
[22] Black’s Law Dictionary, 9th Edition
[23] Uma Suthersanen, Graham Dutfield & Kit Boey Chow, Innovation Without Patents, 1st Edition,2007
[24] Will Martin & L.Alan Winters, “ The Uruguay Round And The Developing Countries”, www. books.google.com
[25] Supra n.1, p.10
[26] Supra n.4
[27] Supra n.8
[28] Ibid.
[29] Supra n.2 pp. 130-131
[30] S.Lall & R.Narula, “ Foreign Direct Investment and its role in economic development: Do we need a new agenda?”, The European Journal Of Development, 2004
[31] R.Stern, Intellectual Property, 1987
[32] Keith.E.Maskus, The WTO, Intellectual Property Rights and the Knowledge Economy, 1st Edition,2004
[33] Justice V.R.Krishna Aiyer, Off the Bench, 1st Edition,2008, p.108
[34] Supra n.16, p. 109
[35] Shyama V. Ramani & Augustin Maria, TRIPS: Its Possible Impact on Biotech Segment Of The Indian Pharmaceutical Industry, Economic And Political Weekly, Feb12-18, 2005
[36] Supra n. 1 pp. 65-66
[37] TRIPS Agreement
[38] Ashok Ram Kumar, Impact of TRIPS on Indian Pharma, The Chronicle, 2nd December, 2004
[39] n.2 p. 142