Trips and Developing Countries Introduction

Since its inception in 1994, the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) has embodied the orthodox view that enforcing strong intellectual property rights (IPRs) is necessary to solve problems of trade and development. The Doha Declaration of 2001 offered short periods of special dispensation, especially to least developed countries, and proclaimed one goal to be the promotion of “access to medicines for all.” Nonetheless, it is important to recognize that the Declaration did not disturb the orthodox view of strong IPRs reflected in TRIPS. The editors of this collection reject this view and the traditional development theory that underlies it, particularly the theory’s binary model of the world as comprising developed countries and all the rest who must follow the IPR-laden path to development. The editors share the conviction that the TRIPS regime of strong IP rights is increasingly out of phase with the shifting geopolitical dynamics of multilateralism in international relations, a multilateralism in which human rights has become a progressively more influential factor in shaping trade and development policy. The editors of this collection ask, How can TRIPS mature further into an institution that supports a view of economic development which incorporates the ensemble of human rights now seen as encompassing a more comprehensive set of collective interests that includes public health, environment, and nutrition? In particular how can this 21st century congregation of human rights provide a pragmatic ethic for accomplishing a rapport with IPRs in the new landscape of development policy? Addressing such questions, the chapters in the first part of the collection shed new light on recent deployments of human rights ethics, international treaty obligations, and domestic law that have had success in reshaping IPRs, deployments made in developing countries and the BRIC group. The chapters in the second part make new proposals and recommendations for the further use of human rights and related ethics to resolve conflict over IPRs in ways that can benefit less developed countries. Before summarizing the chapters, the Introduction briefly discusses the conflict between intellectual property and human rights, a seemingly inevitable clash, especially between patent rights, given their continuing expansion in the pharmaceutical and biotechnology sectors, and human rights, which now comprise a wider array of collective interests. The conflict between patent rights and human rights is widely understood as expressing a particularly difficult form of the familiar tension between efficiency and dispersion, between encouraging innovation and promoting fair distribution. This dominant view of the conflict bears scrutiny. Why? Because the economic case for patent rights as the engine of economic growth is not well-supported. In consequence, it cannot be taken for granted that the moral virtue of wider distribution of patented goods, especially pharmacological products, exacts a high price on economic growth and development. In this light, the Introduction concludes with some useful principles for human rights activists to counter what should be recognized as the uneasy case typically made for strong protection of patent and other IPRs.