Nirav Bhatt is an LLM candidate at Osgoode Hall Law School.
During the early 1990s, the extent of protection and enforcement of Intellectual Property (“IP”) rights varied widely around the world. As IP became more important in trade, these differences became a source of tension in international economic relations. New internationally-agreed trade rules for IP rights were seen as a way to introduce more order and predictability, and for disputes to be settled more systematically. Eventually in 1994, negotiators at the Uruguay Round of the General Agreement on Tariffs and Trade (“GATT”) developed an agreement to narrow the gaps in the way these IP rights were protected around the world, and brought them under common international rules. This agreement, The Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement” or “Agreement”), establishes minimum levels of protection that governments have to give to the intellectual property of fellow WTO members.
Current proponents argue that the Agreement strikes a balance between the long term benefits and possible short term costs to society. Society benefits in the long run because IP protection encourages creation and invention especially when the period of protection expires and the creations and inventions enter into the public domain. To address the potential adverse short term costs the TRIPS Agreement sets out different exceptions for developed and developing countries with respect to transition periods and the WTO has extended until 2016 the transition period during which Least Developed Countries (LDC) do not have to provide protection to pharmaceutical patents.
The raises a fundamental question: Is the TRIPS Agreement a stringent law which is unjust for developing nations or does the agreement foster innovation so that benefits are eventually redistributed from wealthy societies to poorer ones?
My research proposal will analyze the TRIPS Agreement and examine whether it is a manifestation of structural power in the global political economy. When TRIPS came into being, the trade related issues of IP rights moved from the arcane area of legal analysis to the epicenter of global policy making. The TRIPS Agreement has enormous implications in terms of public health, food security and state sovereignty yet it was placed on the WTO agenda in a surreptitious manner. Only in the aftermath of its appearance as part of the Uruguay Round was the TRIPS Agreement scrutinized in a manner befitting its significance.
My research intends to identify some of the key areas or problems that have been overlooked from the perspective of developing nations. It is my intention to clarify the issues and generate some proposed solutions through a critical analysis and a comparative study of the trade in IP goods between the developing and the developed nations.
I also intend to examine how conflicts are resolved under the WTO Dispute Settlement Body (“DSB”).
My research will begin with an analysis of how the regulation of IP rights differs between developing and developed countries. As outlined below, there are three possible contexts for this analysis.
(1) The first context involves examining one specific IP right: pharmaceutical and biotechnology patents. To examine this, I will compare pharmaceutical and biotechnology patents in one developing country to those in a developed country.
(2) The second context is the examination of IP rights in the public health sector of developed and developing countries. The issue of TRIPS Agreement and public health is to see how to assist the developing countries with insufficient or no manufacturing capacities in the pharmaceutical sector to make effective use of compulsory licensing under the TRIPS Agreement. My research paper will render valid reasons for not implanting non-violation complaints into the settlement of the TRIPS related disputes and provides a new insight into this issue from a primary perspective of public health.
(3) The third context of this research paper will be the issue of parallel imports. A parallel import is a non-counterfeit product imported from another country without the permission of the intellectual property owner. Parallel imports are often referred to as grey product, and are implicated in issues of international trade, and intellectual property. In most of the cases, the product flows from the developed country to a developing country. The underlying issue is that although the products may have been made to comply with the laws and customs of their place of origin, these products or their use may not be compliant in those places where they are used.