TRIPS Versus Public Health – Deadline December 2019
Developed countries, after concluding the General Agreement on Tariffs and Trade also referred to as the Tokyo Round of the World Trade Organization in 1979, started insisting upon introducing Intellectual Property (IP) to the agenda of the World Trade Organization. These countries linked IP to trade, claiming that any breach of IP was a barrier to trade since it hindered market access to legitimate goods. Subsequently, an agreement was concluded in 1994, known as the Trade Related Intellectual Property Rights (TRIPS) Agreement.
The TRIPS Agreement governs several aspects of IP rights, including those related to public health. The protection of public health is also the third Sustainable Development Goal (SDG) advocated by the United Nations.
In 2001, at the Doha Round of WTO, the significance of public health was deliberated upon by WTO members. The negotiations resulted in the Doha Declaration on Public Health.
Para 4 of the Declaration highlighted that neither did the TRIPS Agreement prevent members from taking measures to protect public health, nor should it.
Para 5 further mentioned that in situations involving a national emergency, WTO members could issue a compulsory licence for manufacturing generic medicines domestically. A compulsory licence is issued by a government authority or court to make certain uses of a patented invention without the consent of the patent holder. Article 31(f) of TRIPS stated that the products made under compulsory licensing must be “predominantly for the supply of the domestic market”. This Article was particularly restrictive for lesser developed countries that had little or no manufacturing facilities to make use of the compulsory licensing mechanism.
However, under Para 6, such concerns of the least developed countries that had little or no manufacturing facilities to manufacture generic medicines domestically was referred to the TRIPS Council. Subsequently, these concerns were catered to in December 2003 when article 31(f), which did not allow parallel importing by developing countries, was waived. In December 2005, article 31(f) was amended to article 31bis which allowed parallel importing of generic medicines by developing countries upon the issuance of a compulsory licence by the country of exportation.
Although, theoretically, the WTO has tried to resolve the problem faced by countries with little resources to make generic medicines, practically speaking the amendment protecting public health is difficult for developing countries to use. The use of the amendment is costly and causes a delay in transportation of the generic medicine to developing countries. The global redistribution effect of such money is the distribution of wealth from developing to developed countries.
Furthermore, neither does TRIPS currently provide an agreed interpretation of what constitutes traditional knowledge, nor does it provide any details as to how this traditional knowledge should be protected, which is particularly important for developing countries making use of it. In essence, the notion of access to medicine for developing countries requires a weaker protection of IP rights and the waiving off of protection and promotion of innovation, which is a dilemma.
Therefore, a balance needs to be maintained between private rights of ownership and public good which is for the broader welfare of the community, through shared knowledge.
It is yet to be seen if all WTO members give assent to this amendment and contribute towards the cause of access to medicine for developing countries. As per WTO General Council’s decision in 2017, the deadline for acceptance of the amendment by the remaining members has been extended till December 2019.
 “Arguments For and Against TRIPS Agreement”, Ben Willis
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