Uniform Trade Related IP Rights For All? Analyzing Law From a Third World Perspective
Updated: Nov 13, 2020
Author : Rohit Sharma
IP regimes are significant to be understood in light of international business transactions where the entire world is global village. These IP regimes are different inter-se concerning socio-economic, technological and political impact in a particular nation.
However, Trade-Related Intellectual Property Systems (TRIPS) is one of the agreements which focuses on providing a uniform mandate on all the members of the World Trade Organization (WTO) to implement national systems of intellectual property rights following an agreed set of minimum standards. The author in this piece will argue that these minimum standards were formed merely by the lobbying of a handful of developed nations who devised the IP regime to safeguard their own interests by maintaining a new form of colonialism, which shall be discussed in light of Article 27.3 of TRIPS.
The author shall also focus on managing to curb the gulf between the third world and other developed nations, focusing on the fear of third world countries in the arena of internationalization of property rights.
Delving Into TRIPS : Uniform Applicability?
The problem with TRIPS started right from its limited application to only World Trade Organization members which in itself was a supposedly hegemonic creation of the West to promote the market movements by giving priority to western nations (mostly pro-American) as opposed to developing country (especially against the countries having non-American approach). The developed nations backed norms were made ‘law’ and the signatories took full advantage of TRIPS to foster their industrialization, through its patenting provisions.
However, while enforcing a mechanism of uniform applications, the agreement itself suffers from a lack of uniformity and consensus on elements of compensation and access benefit sharing of rights for the member countries.
Even though many countries claimed the TRIPS agreement to be inclusive, it has been well establish that the agreement have potential to be used against the developing and least developed nations concerning compliance and enforceability of their TRIPs obligations. In addition to this inherent conflicting position, TRIPS didn’t recognize the unique socio-economic needs of each country and forces and mandate them to follow a uniform mechanism to follow the Intellectual Property rights regime. The author also believes that the TRIPs Agreement silently ignores concerns of third-world country on access to technology for country’s development assistance and sharing of royalties. Many scholars believed that this silence is reflected in the ‘best endeavor’ practice, which doesn’t mandate the first world countries to aid the developing nations to reach a fair playing arena in global politics. bThe next part of the paper will address Article 27.3, one of the most problematic section of the TRIPS from the third world perspective.
Concerns of Third World with Article 27(3)(b) of TRIPS
The bare text of Article 27(3)(b) of The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) mentions that the “members may also exclude from patentability: (b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.”
The article means that countries need not include the plants and animals in their patent laws. Nevertheless, the countries are mandated to provide IPR protection through patents or by effective sui generis system or combination thereof.
In multiple TRIPs Council, many third-world countries signed more than ten proposals to protect and promote the protection of biodiversity and indigenous knowledge.These proposals were led by the Africa Group’s which proposed making the provision temporary for a while and extending the deadline to implement Article 27.3(b) for developing countries. This attempt of the global ‘South’ to equitably demand rights was seen as an attack on the hegemonic provisions of the agreement. The western block of Europe and the United States tried to counter their assertion with the claim of the time period of implementation being reasonable. The author believes there are Article 27(3)(b) needs to have a provision to protect the vulnerable third world marginalized groups from giant corporates of West.
The first criticism of the Article is the lack of uniform standards as to the elements of ‘sui generis system’ or ‘effective parameters’. Another reason why the Article is meant for handful of countries is that it doesn’t discuss any benefit-sharing model, nor does it provide any remedy on biopiracy by the developed countries and their exploitative companies. The inherent bias against farmers, tribes, localized economy is reflected as non-existence of any clause to legally define the term, ‘traditional knowledge’ and the exploitation of such knowledge by biotechnologists from the first world. The final suggestion on the provision is inclusion in the form of a proviso to the Article should be made which can establish a Traditional Knowledge repository notification process to curb erroneous patenting. India has been leading the repository step and has averted erroneous patent applications globally to its benefit through the platform. This Traditional Knowledge Digital Library primarily deals with individual medicinal plants and formulations. As per World Intellectual property organization, this library can ‘facilitates access to information not easily available to patent examiners, thereby minimizing the possibility that patents could be granted for “inventions” involving only minor or insignificant modifications.’
Looking into TRIPS from Third World's Approach
The author believes that even though scholars can claim intellectual property as a basic human right, that right in the post-colonial order is not equitable. The reason of non-possibility of such uniform right lie in: “(i) the inherent inequalities within the structures of international governance; (ii) the asymmetries of power between the North and the South; (iii) the imbalances between states in the global economy; and (iv) the lopsided military domination of the world by the Western Nations.” These reasons meant that the implementation will have a totally different impact on different countries. The reason why developing countries and underdeveloped countries will keep on seeing the international law with suspicion is owed to colonization phase. The international law then “sanctioned their previous subjugation and exploitation and stood as a bar to their emancipation.” The third World countries argue that their political independence should also ensure independence, and the people in their countries should have the legal right to freely dispose of their natural resources.
In the modern world, international law also entered the territory of personal rights. This interference in property rights through the international legal regime is considered as “internationalization of property rights”.
Most of the rules which are created under TRIPS and implementation thereof through World Trade Organization Dispute Settlement System (DSS hereafter) are biased in favor of western developed nations. The implementation problem with DSS is that developing countries don’t have access to same level of resources or financial backing and expertise to pursue their rights and obligations under DSS. The WTO Dispute Settlement allows granting differential beneficial treatment to “developing country” members. This can be illustrated by Article 8 of Dispute Settlement Understanding which mentions that the WTO panel shall “include at least one panelist from a developing country Member” when a dispute is between developing and developed country members and the developing country member so requests. However, the provisions which prima facie appears in favor of developing nations, silently uses the declarative language, not obligatory. These special provisions have been rarely invoked in favor of developing nations and hence have been of little relevance till now.
As famous third world scholar Chimney said ‘TRIPS [i.e., Agreement on Trade-Related Aspects of Intellectual Property Rights] marks the beginning of the global property epoch. In these third world countries, luring is done to acquire property of third world countries by offering them loans and in case of payment failure acquiring their property through the medium of international financial institutions and international monetary law. Initially, all the property in the field of intellectual property was argued to be the common heritage of mankind. However, fearing that it will ultimately go into the hands of western country and later onto the corporate system, the laws were made to make sure that independence and sovereignty with respect to natural resources is given to third world nations.
Nevertheless, this independence was also exploited by virtue of biopiracy and violation of traditional knowledge safeguarded by global patent regime. The substantive rules within TRIPS and WTO Dispute mechanism are tilted against third world countries and don’t help them in terms of market access. This continuous ignorance of third-world countries marks inception of ideological resistance against TRIPS and arguments for a more inclusive diverse representative equitable mechanism along with additional safeguards which are discussed in the next part of this paper.
TRIPS For Third World : A Need Of The Hour
As mentioned in the previous section, the developing countries are demanding a more inclusive diverse representative equitable mechanism TRIPS for Third World wherein the regulations would be equitable to all the countries, their nationals and their economy.
Intellectual Property Right regime in neo-global world is an instrumental thing to maintain monopoly of profits by enterprises and individuals through innovation. The reason, IPR regime is claimed to be exclusive is because the infrastructural development which took place in West and placed them in a better suited situation was because of the historical exploitation of the third world countries.
Now when the erstwhile colonizers are in a better-suited position after taking away resources of colonized, they are mandating their model of development and innovation, which will further their interests. Through this continuous repression, developing countries will lag behind in innovation and research as most of the essential patents were owned in early 90s and now the new rules will make sure that they remain dependent of West.
Some scholars argue that the main problem is that knowledge is a (global) public good which is being made exclusive. If intellectual property rights regime is made liberal or the countries are given autonomy to use the market will under-supply knowledge, and research will not be adequately incentivized.
Even though the TRIPS looks like an open system with free-flowing information, the ground reality suggests that the regime has created more barriers which are beneficial to already developed countries. These countries have prioritized individual entity’s profit over socio-economic rights of individuals as observed in pharmaceutical world. At the same time, they have also made sure that they exploit traditional knowledge or biodiversity of third world nations.
An IPR regime which was made by western countries in early 90s should not be acceptable to third world countries and they should bargain for themselves and their citizens’ welfare over exclusivity to few in terms of protection.
The TRIPS Agreement sets minimum standards in the international rules governing patents in multiple sectors. These common standards are being followed by member country of the WTO. The author suggests that the patentability of any product needs to be left to the countries in some cases. The agreement envisaged protection of patent against unfair commercial use which in case of Indian Medicine Industry made several basic medicines as exclusive to big US pharmaceutical companies. However, in the aftermath of the Novartis judgment, Indian jurisdiction is straightforward along with countries like Brazil and Thailand wherein they will determine whether particular inventions can be given patent protection in the backdrop of different social and economic conditions or not. One size fits all approach has to be rejected for all the countries. Till the time, third world countries are not treated at par with western countries, the IPR regime should not be called global in any sense.
The author believes that within the TRIPS there can be multiple improvements that can be incorporated keeping in mind the existence and problems faced by third world countries. The future of intellectual property rights should not be just limited to what West offers us to do, but the third world must keep on bargaining for similar treatment in this regime as once done by them in Cold war era.
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