Protecting Developing Countries through the Trips Agreement: What is the Real State of Play?

Wiseman Ubochioma is a doctoral candidate at Osgoode Hall Law School of York University and is taking the Intellectual Property Theory course.

The TRIPS Agreement has always been heralded as a milestone achievement recorded in the field of intellectual property. It provides a minimum standard of intellectual property protection among WTO members and reduces the differences among national rules.

The debate on the impact of TRIPS Agreement on developing countries has generated much furore. Daniel Gervais’ article titled “Intellectual Property, Trade and Development: The State of the Play” provides us with a debate on the important role that intellectual property protection plays in Foreign Direct Investment (FDI) and the transfer of technology. He considers how developing countries can take advantage of policy flexibilities in TRIPS Agreement to meet their needs.

Attempts to arrive at a definite result on the impact of high levels of Intellectual property protection in developing countries proved futile. Two scenarios emerged from the studies used in the article. First, post-war Japan which emphasized on high IP protection, especially in patent rights enjoyed higher FDI. Second, China with weak IP protection has more FDI than most African countries that have higher levels of IP protection after the TRIPS Agreement. A more astonishing position emerges from Ha-Joon Cheng and Ilene Grabel’s piece titled “Strong IPR Regime: Not in the Interest of Developing Countries”. The paper reveals that the absence of patent laws in Switzerland made her attractive to foreign investors. The logical outcome of this is that there are other factors, other than higher level of IP protection, that lead to FDI.

While we await critical studies to address this dilemma, Gervais’ position is that by embracing “policy flexibilities” embedded in TRIPS Agreement and other policy measures, developing countries can domestically develop their IP regime. He pointed to Article 45(3) which gives room for implementation based on availability of resources by member states. Gervais embraced the TRIPS Agreement on the basis of its provision of minimum standard of IP rules. He also frowned at the TRIPS Plus agreements that are being deployed and argued that the TRIPS Agreement should be integrated and used as a reference and/or defense point against demands in most TRIPS Plus Agreements.

To effectively review the thoughts of Gervais, some instances on the real state of IP protection in developing countries under the auspices of the TRIPS Agreement need to be presented. Professor Vijaya in his article “Sri Lanka at a Disadvantage from the Global TRIPS Agreement” published in Sunday Times of May 2009 noted that the TRIPS Agreement disallows the concept of process patents which were pivotal to the rampant growth of Indian’s pharmaceutical industry. Further, by advocating the protection of test data in this area, TRIPS has restricted another valuable avenue for developing countries to prosper.

In Gayatri’s piece, “TRIPS: Consequences for Developing Countries”, he argued that the imposition of the minimum standard does not benefit developing countries. The minimum standard under the TRIPS are already fixed at the present high level of protection in developed countries who achieved this level through a gradual process of building intellectual property regime and implemented forms of protection tested by experience in other countries. These processes may not be available to developing countries. An Oxfam report titled “Drug Companies vs Brazil: The Threat to Public Health” narrated how the major drug companies, backed by the United States government, are trying to ensure that Brazil buys expensive patented drugs that large pharmaceutical firms manufacture rather than making cheaper generic drugs in Brazil or buying generic drugs from countries such as India.

The area of traditional medicine also provides a clue of the precarious position of developing countries in global IP regime. While efforts are made by developing countries to protect traditional and indigenous knowledge, developed countries sometimes oppose the efforts. Gayatri’s work revealed how the United States opposed the introduction of a new system of registration for medicinal genetic resources and traditional healer’s knowledge by Thai’s government. Even before the draft became public, the Thai patent officer received a very aggressive worded letter from the United States ambassador claiming that the proposal would violate the TRIPS Agreement.

While I applaud his sentiment that developing countries should take advantage of the policy flexibility in the TRIPS Agreement, I think that broader political and economic imbalances that exist between developed and developing countries should be addressed. These issues are like siamese twins in any proposal that is aimed at enhancing the position of developing countries in the global intellectual property regime. Without addressing these issues, the policy flexibilities in the TRIPS Agreement will succeed only in turning the existing “gap” between developed countries and developing countries on IP issues into a “gulf”.