How the concerns of the developing countries were reflected in the TRIPS Agreement

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discussion and the drafting of the agreement got underway.²⁴³ During the negotiation of the TRIPS Agreement international NGO’s and African states were not significant players. Although India and Brazil did formulate counter proposals, these were evaluated by counsel from the USA industry who had years of experience in IP protection and licensing.²⁴⁴

For DCs there were two potential benefits in negotiating the TRIPS Agreement. First, trade-offs which raised the possibility that in other areas of the Uruguay Round negotiations, developing countries could obtain benefits, for example access to markets for their textiles and agricultural products. In this regard, unfortunately for most DCs, it seems there have been fewer benefits than anticipated.²⁴⁵

Secondly, a further trade-off sought by developing countries from the negotiation of the TRIPS Agreement was the establishment of a multilateral mechanism for dispute settlement that would avoid unilateral action by developed countries. As a result of this concern, one of the express aims of the agreement has been to reduce ‘tensions by reaching strengthened commitments to resolve disputes on trade-related intellectual property issues through multilateral procedures.’²⁴⁶ After the entry into force of the TRIPS Agreement, any controversy should be subject to a multilateral procedure of dispute settlement, and only after the completion of the procedure may retaliatory measures be adopted.²⁴⁷

4.4 How the concerns of the developing countries were reflected in the TRIPS Agreement

243See The WHO (2000) ‘The TRIPs Agreement and Pharmaceuticals: II General Issues’ (2000) available at http://apps.who.int/medicinedocs/en/d/jh1459e/5.3.html (Date used 24 May, 2013.)

244See P.Drahos Global Property Rights in Information: The story at the GATT. Prometheus, vol 13, No. 1, June 1995 at page 7.

245See Carlos M Correa The TRIPS Agreement and Policy Options (2000) 11.

246Ibid.

247Thus, President Clinton’s submission (15 December 1993) to the US Congress of the Final Act of the Uruguay Round states that ‘if Members of the Dispute Settlement Understanding (DSU) do not comply with their obligations at the end of the dispute settlement process, trade actions under section 301 of the Trade Act of 1984 will be legitimised and there will be no risk of counter-retaliation’. Available at www.wto.org/english/thewto-/mimst-emin98-e/slide-e/ur1.htm

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The DCs were concerned that the hard-won flexibility achieved on compulsory licences in that there is no restriction on the grounds for the grant of such licences, could, for instance, be lost by the introduction of non-violation complaints.²⁴⁸

All these positions and concerns are reflected to some extent in articles 7 and 8 of the TRIPS Agreement, in which its objectives and principles are set out. This is particularly true of article 7 which refers to the balance that must be considered/effected/struck?? when developing national legislation to implement the agreement municipally.²⁴⁹ The article provides:

‘The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer of and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations’.

The reference to social and economic welfare and to a balance of rights and obligations could serve to justify exceptions to exclusive rights, where the right-holder has failed to participate in social and economic development or, in other words, has used his rights without performing his obligations.

Certain commentators have alluded to this argument with respect to pharmaceutical products claiming that protection of such products is not necessarily in the interest of DCs.²⁵⁰In this light, any country wishing to establish a violation of the TRIPS or a nullification or impairment, would be well advised to include sufficient data to substantiate its claimsin its submissions.

The drafting of this paragraph shows that the balance of rights and obligations should be assessed using well established principles of IP law. Indeed, the reference to ‘the promotion of technological innovation and to the transfer of technological knowledge’ is a summary of the

248See G DutfieldIntellectual Property Rights and the life science industries: A Twentieth Century History (2003).

249See The WHO ‘The TRIPs Agreement and Pharmaceuticals: II General Issues’ (2000) Available at http://apps.who.int/medicinedocs/en/d/jh1459/5.3.html (Date used 17 April, 2014.)

250Professor Tankoano argues forcefully that, while many African nations had patent laws superior to those of countries such as Korea and Turkey, more foreign investment went to those two countries than to any African nation. See AmadouTankoano ‘L’ accord relative aux aspects des droits de proprieteintellectuelle lies au commerce’

(1994) 20 Droitet prate du commerce international 428, 467 ff; see also C Correa ‘The pharmaceutical industry and biotechnology: Opportunities and constraints for developing countries (1991) December World Competition 56.

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most important of these principles.²⁵¹ For a number of DCs, patent documentation is viewed as an essential basis for transfer of technology and as a way to accelerate research and developmental efforts.²⁵²

During a meeting of the TRIPS negotiating group, a spokesperson for a group of fourteen DCs declared:²⁵³

‘… [We reaffirm] the vital importance to developing countries of the possibility of exclusion of certain products and processes from patentability on grounds of public interest, health or nutrition as provided in Article 28…. Article 30 on conditions and obligations of patent owners, should, in line with that text,²⁵⁴ clearly specify that working the patented invention in the country of grant was one of the obligations of a patentee.

Such working was an essential element upon which the patent system was based, and was part of the balance between the interests of patent owners and those of the country undertaking to protect the inventions.’²⁵⁵

In contradistinction to article 7, article 8 specifically allows government measures necessary to protect public health and nutrition, or to promote the public interest in sectors of vital importance to the socio-economic and technological development of the member, provided that such measures are consistent with the provisions of the Agreement. Price controls on pharmaceuticals, or any equivalent measure which could otherwise give rise to a non-violation-type or situation-type dispute, could, if the need arises, be defended under article 8.²⁵⁶

251See Michelle McGrath ‘The patent provisions in TRIPS: Protecting reasonable remuneration for services rendered or the latest development in Western colonialism?’ (1996) 7 EIPR 398.

252See ShahidAlikhanthe author of the chapter on ‘Intellectual Property, the Developing Countries and Economic Development’published by Rajiv Ghandi Institute for Contemporary Studies No. 14, 1994 at pages 14-15.

. This chapter has been published by WIPO. See Geneva,June 27, 2000 Press releases PR/2000/228 available at www.wipo.int/pressroom/en/prdocs/2000/wip_pr2000.228.html. The chapter was also published in the book

‘Intellectual Property rights/ed by BibekDebroy 1998 at pages 65-121.MrShahidAlikhan was formerly Deputy Director General of WIPO and Under Secretary General of the UN. The chapter highlights socio economic benefits of IP protection.

253See communications from Argentina, Chile, China, Cuba, Egypt, India, Nigeria, Pakistan, Peru, Tanzania, Uruguay and Zimbabwe. See Appendix II toMusunguS.F . (2008). The TRIPS Agreement,and Public Health in C Correa & A. Yusuf (eds) Intellectual Property and International Trade: The TRIPS Agreement, 2^ndEdition, Kluwer Law International, The Netherlands..

254Reference is made to DCs’ proposal for a TRIPS Agreement. See Doc.MTN.GNG/NG11/W/71.

255See Daniel J Gervais The TRIPS Agreement: Drafting History and Analysis 4 ed (2012).

256Violation-type complaints (WHATEVER THEY MAY BE??) may fail against price controls since the direct obligation is only to allow the patent owner the right to exclude third parties as provided for in art 28.

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The negotiating history of article 8 shows that there was an attempt to change the wording from the December-1990 version which read ‘provided that PARTIES do not derogate from the obligations arising under this Agreement’, either by inserting the words ‘or impair the benefits’

after the word ‘obligations’, or by inserting the words ‘or otherwise undermine’ before the words

‘the obligations’. Given the opposition, none of these suggestions was included in the final text, which now contains the words ‘provided that such measures are consistent with the provisions of this Agreement’. ²⁵⁷ A plausible interpretation, therefore, is that article 8 will provide a safeguard from certain of the non-violation complaints most relevant to DCs. If this were not the case, those proposing the amendments may have been less insistent during the negotiations on including the proposed words in order to accommodate non-violation complaints.

Article 8 is essentially a policy statement which explains the rationale for measures taken under articles 30, 31 and 40. Given the phrase added by negotiators, it would be difficult to justify an exception not foreseen under the agreement, unless it is an exception to a right not protected under other provisions of the TRIPS Agreement or those of other international instruments incorporated in the TRIPS Agreement.