1st November 2001
Streamlining Africa’s Responses to the Impact of Review and Implementation of the Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement
There are few issues in the world today that have received as much scholarly and popular analysis as the debate on the health and development implications of the WTO Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs). Granted, the notoriety of the WTO and the impact of its regulations on multilateral trade policy, and development and health challenges in the developing world, particularly stemming from virulent diseases such as AIDS, tuberculosis and malaria, have served to increase awareness, and to polarize the debate at every turn, due to specific regional concerns and challenges.
This paper seeks to contribute to this debate, by highlighting some of the key issues from a uniquely African perspective. It is hoped that this paper will contribute to informing African policy makers about the full implications of implementing the TRIPs Agreement and its impacts on their respective economies. It outlines and analyses the existing African Group proposals concerning the implementation and review of TRIPs and suggests measures that African countries could take in the pursuit of their sustainable development objectives.
The paper argues that the TRIPs Agreement is based on the western concept of individual ownership of rights that customarily fails to provide coverage for traditional knowledge in a manner satisfactory to its holders. It calls for appropriate amendments to recognize and protect the rights of traditional knowledge-holding communities and recognizes the need to protect them from misappropriation. It has been demonstrated that some of this knowledge has the potential for profitable commercial exploitation. Ideally, such a proposal should go beyond what the Convention on Biological Diversity offers, since the latter merely recognizes such rights but provides no specific protection measures.
The paper suggests that African countries consider with caution proposals to remove Article 27.3 (b) from the TRIPs Agreement, and rather see that the freedom to exclude plants as well as plant varieties from patentability is retained together with the currently recognized freedom of African countries to establish sui generis systems that suit their national interests. It urges other WTO members to accept that for African countries to take advantage of compulsory licensing, special measures are necessary to encourage foreign direct investment and technology transfer targeted at the development of pharmaceutical manufacturing capacity.
Since the time we set out to cover this very controversial subject, important developments have taken place. As far as the Doha agenda is concerned, a separate declaration sets two specific tasks. The TRIPs Council has to find a solution to the problems countries may face in making use of compulsory licensing if they have too little or no pharmaceutical manufacturing capacity, reporting to the General Council on this by the end of 2002. The Doha Declaration on TRIPs and Public Health also extends the deadline for least-developed countries to apply provisions on pharmaceutical patents until 1 January 2016. The debate on geographical indications continues, especially as to whether the so called ‘outstanding implementation issues’ are up for negotiation.
Clearly, the important public policy concerns that have to be addressed in the on-going debate need input from a broad cross-section of players. Public participation needs to be continually nurtured and sustained. We have worked with the author toward this objective with stakeholders in dialogues in Africa and Geneva and as discussions proceed, we at ICTSD will look forward to the opportunity to further contribute to it by continuing to bring to the table both sustainable development perspectives and the weaker and/or excluded actors.