Trade Policy Note Final-rev08 - Development

TRIPS and MDGs
The implications of the TRIPS Agreement (and of subsequent bilateral pressures on
developing countries to further tighten its provisions) for the attainment of the MDGs
- notably MDG 6, have already been recognized by the international community. The
Declaration on TRIPS and Public Health was agreed by the international community
to ensure that the TRIPS Agreement’s prioritized public health concerns. Developing
countries must also draw up IPR legislation that ensures that the attainment of the
MDGs will not be frustrated, while protecting the right of poor people to use their
traditional knowledge and genetic resources.
Developing countries are faced with policy decisions at three levels, first to ensure
that the results of the current multilateral review of the TRIPS regime, and related
initiatives in WIPO 83 are supportive of their pursuit of the MDGs; second, to draw up
national legislation and regulations aimed at achieving these goals and targets within
the framework of their international obligations ; and third to effectively thwart
pressures to accept “TRIPS plus” commitments at the bilateral level. The manner in
which developing countries adapt to the TRIPS regime and pressures from developed
countries is crucial to their attainment not only of the MDGs directly related to health
(e.g. MDG to combat HIV/AIDS, malaria and other diseases, MDG8 provision of
access to affordable essential drugs in developing countries), but given the relevance
to the agricultural sector, that of eradicating poverty and hunger (MDG1) as well.
One of the key elements of FTAs has been the inclusion of “TRIPS plus” provisions
dealing with (a) restrictions on the use of compulsory licences, (b) restrictions on
parallel imports, (c) greater protection of undisclosed data through market exclusivity,
(d) broadening of the spectrum of patentability, (e) extension of the duration of
patents and (f) links between patents and health registration.(see Section X).
Health
There had been concern that the TRIPS Agreement will have a negative impact on
human development by resulting in higher prices for essential medicines in poor
countries. It was a result of concerted action by private firms and some countries to
pressure developing countries into giving up certain crucial rights under the TRIPS
Agreement that provoked the negotiation of the Doha Declaration on TRIPS and
Public Health. The Declaration was agreed at the Doha Ministerial Conference to
confirm the right of governments to impose compulsory licenses when faced with
national public health issues. However, one aspect, that of permitting countries having
no domestic capacity to produce medicines to issue compulsory licenses to producers
in other countries for import into the affected country, required an amendment to the
TRIPS Agreement. This was finally accomplished in December 2005 after a period of
protracted negotiations. 84
83 Negotiations of a Substantive Patent Law Treaty have been initiated in WIPO. For an analysis of the
development implications, see Correa, Carlos, An Agenda for Patent Reform and Harmonization for
Developing Countries, paper presented to Open Forum, 1 March 2006, available at
www.wipo.int/meetings/2006/sep_of_ge_06/presentations . See also GRAIN, “One global patent
system? WIPO's Substantive Patent Law Treaty”, GRAIN briefings 2003
(http://www.grain.org/briefings/?id=159).
84 WTO document, Amendment of the TRIPs Agreement, Decision of 6 December 2005 (WT/L/641).
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