Trade-related aspects of intellectual property rights, also referred to as TRIPS, is an agreement that ties trade and intellectual property together. Generally, developing countries have opposed non-tariff barriers, such as the protection of inventions, since they believe that it prevents them from trading competitively worldwide.

TRIPS Agreement Controversy

Therefore, there has been controversy between the TRIPS Agreement and other international agreements, including the Convention on Biological Diversity. The controversy involves the following issues:

  1. Access to creating similar chemicals, fertilizers, and drugs
  2. Access to using and growing patent-protected plant species, particularly if the patent holder is a large corporation that doesn’t actually do business in the farming industry
  3. Access to importing pharmaceuticals to under-developed countries that wouldn’t otherwise be able to produce such drugs

For these reasons, the TRIPS Agreement is consistently changing and evolving as these controversies and debates continue. But the TRIPS Agreement aims to balance its long-term goal of fostering research and development on new products with its short-term goal of ensuring that those businesses with products that can be easily copied or re-created can obtain patent protection to prevent other businesses from utilizing the invention.

Some developing countries believe that patents and other IP rights fail to contribute to the development or poverty reduction worldwide. They believe that their rights are being distorted in favor of larger, more established companies, which limits their opportunities. In turn, the poor nations become poorer and the wealthy nations become wealthier.

However, a counter-argument to this is that businesses are hesitant to invest in poorer countries since such countries don’t allow protection of their inventions. Therefore, anyone in that country can in fact steal the invention or product and create an imitation of it, thereafter selling it as his or her own. The counter-argument also states that protecting such IP rights further promotes research and development, as businesses would be highly reluctant to spend significant time and resources on new inventions if they know that their hard work and time spent on it isn’t protected from infringement.

WTO and the TRIPS Agreement

The WTO, or World Trade Organization, is an international organization that creates rules of trade between nations. As of February 2005, there were 148 member countries of the WTO. All member countries must adhere to 18 agreements that are annexed to the Agreement; the countries cannot choose to be a party to some but not others. The TRIPS Agreement is one of these 18 agreements, which has the greatest impact on the pharmaceutical industry to address drug-making processes and inventions.

TRIPS and Public Health

Over the years, there has been great attention on public health in developing countries, including HIV/AIDS. The TRIPS Agreement provides that under certain circumstances, anyone can manufacture or import patent products without the holder’s consent. This is known as compulsory licensing. In this type of licensing, the patent holder isn’t willing to sell or voluntarily enter into a license agreement on any reasonable terms. However, such compulsory license is limited to certain products under the TRIPS Agreement, which hinders developing countries to manufacturing or selling the patent holder’s drug that isn’t sold in that country. Therefore, those living in under-developed countries don’t have access to the types of pharmaceuticals that are available in the United States.

This public health problem was discussed in a Ministerial Declaration that was adopted at the Doha Ministerial Conference in 2001. The Declaration emphasized that TRIPS shouldn’t prevent any WTO members from protecting public health, even if that meant allowing compulsory licenses. Even if this does occur, however, under-developed countries might not have the ability to import compulsory-licensed pharmaceuticals. Specifically, Norway has been a big advocate on public health issues, and believes that compulsory licensing should be allowed in its country. An agreement was finally signed in 2003, which provides a waiver in relation to the TRIPS Agreement. It specifically allows pharmaceuticals that are manufactured under a compulsory license to be imported into poor countries that lack production capability. This waiver then became permanent language in the TRIPS Agreement, meaning that Agreement was fully amended to allow the exportation of such drugs.

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