INTELLECTUAL PROPERTY RIGHTS

Intellectual Property Rights

Intellectual Property Rights

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) negotiated in the 2006 Uruguay Round under the auspices of the General Agreement on Tariffs and Trade, the institutional predecessor of the World Trade Organization (WTO), incorporated substantial and uniform protections of Intellectual Property Rights (IPRs) into the international trade system (WTO 2006:.45). All developing-country members of the WTO agreed to respect relatively stringent worldwide norms of patent protections no later than 2010. A few least-developed countries remain exempt from protecting patents until 2013 and patents on pharmaceuticals until 2016 (Reichman 2009:247). In the past decade, the United States (US) has pursued a number of bilateral and regional Free Trade Agreements (FTAs) in different parts of the world. These 'TRIPS plus' agreements include the North American Free Trade Agreement (NAFTA) and the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR). It is a distinct feature of many of these bilateral agreements that they go beyond the multilateral standards on IPRs imposed by the TRIPS agreement (Fink and Reichenmiller 2010: 165). 1 A large body of contemporary academic literature suggests that IPRs as implemented in the TRIPS agreement and various US FTAs give rise to a number of ethical problems. This review paper seeks to give an overview of what these problems are. Moreover, it offers an outline and discussion of a number of proposals as to how these problems might be alleviated. The paper is primarily descriptive in character. This means that though a personal perspective is sometimes offered, the primary ambition of the paper is not to argue for, and defend, a particular kind of answer to the issues discussed. The ambition is rather to highlight, explain and put into perspective a number of important arguments in the debate on the ethical nature of IPRs so that policy-makers and other stakeholders are relatively well-equipped to make up their own mind on the issue. Before moving on to a more detailed outline in the next section of how IPRs, as implemented in the aforementioned trade agreements, are a cause for ethical concern, it is instructive to add one last introductory remark. The ethical problems raised by IPRs are most pertinent when it is socially valuable goods such as life-saving medicines and genetically modified seeds that are given Intellectual Property (IP) protection. The discussions in this paper will almost exclusively revolve around just one product type in order to bring out the broader theoretical problems/issues caused by the implementation of IPRs. In line with much contemporary literature on the ethical dimensions of IPRs, the product type in question is lifesaving medicines.

TRIPS, IPRs and the problems of access and availability

Pogge (2010) offers a good overview of how innovation is currently incentivized under the TRIPS agreement and how this agreement might lead to ethically problematical outcomes. It is an expensive, time consuming and financially risky endeavor to produce new and safe drugs for the market. Advanced chemical research and long clinical trials must be undertaken, and in ...