The TRIPS Agreement and Public Health
Analyzing the Impact on Access to Medicines
Keywords:
public health law, intellectual property rights (ipr), global health equity, innovation vs. access, covid-19 and ip waiver, neglected tropical diseasesAbstract
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) adopted under the World Trade Organization has introduced comprehensive and enforceable standards of intellectual property (IP) for its member states. While it has been touted for its role in innovation and global harmonization of IP protection, TRIPS has engendered a great deal of controversy in public health, especially with reference to its impact on access to essential medicine in developing countries. This research paper attempts to explore the relationship between the TRIPS Agreement and public health and examine how the provisions of TRIPS affect the availability and affordability of life-saving medicines.
The study looks at the legal framework of TRIPS with a special focus on pharmaceutical-related provisions and with a particular emphasis on flexibilities emanating from the Doha Declaration on TRIPS and Public Health, adopted in 2001. Through a case-study-based comparative analysis of India, Brazil, and South Africa, the paper critically engages with a number of ways in which countries have exploited TRIPS flexibilities such as compulsory licensing in balancing the enforcement of IP with public health needs.
In addition, the research notes regulatory and geopolitical obstacles impeding the effective implementation of TRIPS flexibilities, including political pressure from developed countries and restrictive provisions in TRIPS-plus agreements. It concludes with a discussion of emerging patterns, such as the suggested TRIPS waiver addressing the COVID-19 pandemic, and proposes reforms to establish a globally applicable IP regime that is fair and health-oriented.
In sum, the paper asserts that, while presenting formidable obstacles to access to medicines, TRIPS does incorporate built-in flexibilities that offer legal opportunities that can, with genuine support and Implementation, promote public health without stamping on innovation.
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