Abstract:
ABSTRACT
AIMS AND OBJECTIVES
1. To understand the nature of the Intellectual Property provisions
of the various Free Trade Agreements;
2. To understand the impacts of such IP provisions under the FTAs
on the access to medicines in developing countries;
3. To understand the role of the absence of the MFN exemption
under TRIPS agreement in giving the TRIPS plus provisions of
the FTAs a global face;
4. To identify the boundaries of TRIPS plus.
STATEMENT OF PROBLEM
TRIPS Agreement was entered into by WTO members as a means to
create a unified Intellectual Property regime across the world. The
provisions of TRIPS act as a minimum standard which has to be
followed by the member countries. TRIPS provisions had forced the
developing and least developed countries to create and follow an IP
regime which was not suitable for their technology and needs. One of
the severe impacts of following such a regime was on the public health
sector. Before TRIPS came into being, a large number of countries had
refused to grant patents for pharmaceutical products and even if the
same was granted the countries provided for a flexible compulsory
licensing procedure, enabling the growth of generic drug industries,
thus allowing the manufacture of essential drugs at a cheaper cost. This
flexibility was taken away by the TRIPS agreement which hampered the
capability of the developing and least developed countries to provide for
an effective public healthcare system. This disparity led to the Doha
Declaration and WTO Para.6 decision in 2003, allowing more flexible
provisions regarding compulsory licensing and thereby to some extends
resolving the issues. While these measures were being adopted which
were lauded by organs of UN and WHO, the developed countries went
on with TRIPS plus provisions in their countries. Recent years have
shown the world a new trend amongst the developed countries, wherein
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they, through the Free Trade Agreements (FTAs) with the developing
countries, impose TRIPS Plus Intellectual Property Standards. The
Regional Trade Agreements (RT As) and Bilateral Trade Agreements
envisaged under GAIT Agreement, had been negotiated mainly for
favourable tariff rates and lower customs barriers in the initial stage
acting as an exception for the MFN Rule. But recently as mentioned
earlier these Agreements are including within them Intellectual Property
chapters involving TRIPS Plus provisions. Unlike the GATT and GATS
Agreements, TRIPS Agreement does not include any provisions which
exempt the application of MFN principle for the Intellectual Property
provisions in FTAs. Thus the inclusion of IP chapters in these FTAs
results in an increase of the Intellectual Property standards prevailing
around the globe. This practice is defeating all the efforts taken by the
developing countries including India in Doha to ensure access to
medicines for the people of the developing countries and least
developed countries (LDGs) and is nullifying the fJexibilities under Doha
Declaration. If such a policy is allowed to be fOllowed, the flexibilities
and the safeguards under TRIPS will remain as a mere scarecrow and
in near future itself the TRIPS will lose its significance.
RESEARCH QUESTIONS
i. How did the Doha Declaration on Access to Medicines help to
overcome the short comings of TRIPS Agreement?
ii. What is the nature of the Intellectual Property provisions under
the Free Trade Agreements?
iii. What are the impacts of the Intellectual Property provisions
under the FTAs on effective access to medicines in the·
developing countries and LDGs?
iv. How do the measures like Data Exclusivity and prohibitions of
parallel importation defeat the flexibilities provided under the
Doha Declaration and WTO Para.6 Decision of 2003?
v. Whether the Articles 7 and 8 of TRIPS Agreement which calls for
ensuring social and economic welfare and protection of Public
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Health and the provisions of Doha Declaration on TRIPS and
Public Health and the WTO Para.6 decisions are to be
considered merely as minimum standards to be followed, which
could be overcome through TRIPS Plus IP chapters of FTAs?
vi. How can the FTAs be regulated so as to prevent them from
neutralising the flexibilities provided under Doha Declaration?
vii. Will the inclusion of a FTA related MFN exemption clause in the
TRIPS Agreement be able to resolve this issue?
HYPOTHESIS
The Intellectual Property law provisions under the FTAs are advocating
TRIPS plus provisions undermining the f1exibilities under Doha
Declaration and thus fracturing the measures taken by the Developing
countries and the LDCs to ensure effective access to medicines for their
citizens. The provisions under GATT, 1949 related to FTAs, especially,
Article XXIV should be amended so as to ensure the compatibility of the
FTAs with other agreements under WTO especially TRIPS. Further an
MFN exemption provision in a similar fashion as of the GATT and GATS
should be incorporated under the TRIPS Agreement.
RESEARCH METHODOLOGY
The researcher will be adopting analytical and doctrinal methods of
research in the course of his research.
CHAPTERISATION
1. Introduction
2. Journey from Trips to·Doha
3. Intellectual Property Chapters of the Free Trade Agreements
4. Impacts of the Ip Chapters of FTA's on Public Health: Actual and
Potential
5. FTAs' Knitting a Web of Higher Intellectual Property Standards
Globally?
6. Fencing the TRIPS Plus
7. Conclusion