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Pharmaceuticals, Patents, Polemics and Pretoria
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2. The North-South debate over TRIPS
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The Northern/OECD countries
The position taken up by the Northern countries argues that strong IP protection is needed to reward inventors. R&D are investment activities that must yield profits if they are to be viable or worth the investors' trouble.
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Inventors must receive payment for their creative enterprise in order to encourage them to invent even more. In the liberal global order, the market must (be forced to) reciprocate through regulation. Pecuniary reward will enhance or motivate invention, the application of which will improve the living conditions of everyone. This is the utilitarian argument. It is reflected in Article 7 of TRIPS, which states that the protection and enforcement of IPRs should contribute to
the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare.
The treaty thereby acknowledges that there has to be a balance between the rights of producers of intellectual property, and those of users.
The 'moral' argument is also utilitarian in its general trend. It states that, since strong IP protection benefits mankind by facilitating the invention of technologies that improve global living conditions, piracy (for example through reverse engineering, industrial espionage and simple imitation) takes away inventors' money and diminishes the incentive to innovate, decreases mankind's applicable knowledge, and in the long run hurts everyone. Both arguments support a strong IP regime.
The developing countries
Many developing states hold the position that knowledge should not be the exclusive preserve of the advanced industrialised states. Knowledge-the applicable factor of scientific and technological activity-cannot be owned by anyone, just as the sea cannot be owned by anyone. Nature/God provides biomes and intellectual capacity that should be used, made applicable, and distributed for the global (and not merely the local or national) good. They contend that the motivation of monetary reward and legal monopoly is repulsive when viewed against the prevalence of global indigence and disease. Boyle12
identifies the South's conception of information as a free, public good; its diffusion internationally is imperative for the sake of economic efficiency. For the North information is a commodity and therefore is associated with ideas of economic gain and incentive. The developing countries accuse the North of hypocrisy, stating that IP protection is tantamount to rationalised managed trade, which is contrary to the North's own neo-liberal rhetoric. TRIPS as an agenda in the Uruguay Round, it is argued by the South, was contradictory to the spirit of the General Agreement on Tariffs and Trade (GATT), which sought to promote free, uninhibited, and deregulated trade.
The more liberal argument supported by the South contends that knowledge should flow across national borders unhindered. Such free flow would hardly inhibit innovation, since innovators such as multinational corporations (MNCs) will realise that the only way in which to maintain or acquire market lead is continual innovation and improved products.13
The developing world argues that, since knowledge is seen as incremental, the North is actually infringing on their right to development-IP protection actually hijacks the South's ability to develop by grabbing or monopolising the keys of innovation.
The example that illustrates this 'imperialism of the future' as cited by the South is the exploitation of Southern biomes for pharmaceutical products.14
The TRIPS Agreement contains no protection for traditional knowledge or informal innovations, which means large seed or pharmaceutical companies may patent both the seed varieties bred by traditional farmers over many generations and the medicinal uses of certain plants by traditional healers. The Agreement also facilitates the practice of 'biopiracy' by large food and pharmaceutical companies, who have the right to patent animals, plants, and even micro-biological processes, thus increasing the risk of loss of biodiversity.
According to Steidlmeier and Falbe,15 the moral order of the established IP regime is centred around four principles:
- the right to liberty and self-realisation;
- the right to livelihood;
- the right to the fruit of one's labour and effort; and
- efficiency and social benefits as part of the common good.
All four of these principles are taken by the North to justify its insistence upon strong IP protection. However, the South can use these very principles to ground their emphasis on communitarianism:16
thus, for example, developing countries stress a people's right to liberty and livelihood, not just an individual's. They also view technological knowledge as a common human effort which, on the level of ideas, should remain common property.
The North and the South thus argue from within differing paradigms. Since these paradigms are essentially mutually exclusive, it is difficult to envisage a bargaining window which can accommodate both positions.
Steidlmeier & Falbe17 do, however, have a suggestion that might have a clarifying, more accommodative effect on this North-South debate: IP rules should be based on a unified ethical logic rather than trade coercion. This is an interesting idea, but it is difficult-in view of the above-to foresee and anticipate a possible marriage or confluence of ideas on such matters of ethics as individualism and communitarianism.
Footnotes:
- Park WG & JC Ginarte, 'Intellectual property rights in a North-South economic context', in Science Communication, 17, 3, March 1996, p.380.
- Boyle J, Shamans, Software, and Spleens: Law and the Construction of the Information Society. Cambridge: Harvard University Press, 1996, p.39.
- Robinson RD, op. cit., p.131.
- Van Wijk J & G Junne, Intellectual Property Protection of Advanced Technology- Changes in the Global Technology System: Implications and Options for Developing Countries. UNU/INTECH Working Paper, 10, October 1993, p.29.
- Steidlmeier P & C Falbe, 'International disputes over intellectual property', in Review of Social Economy, 52, 3, 1994, p.351.
- Ibid., p.351.
- Ibid., p.351.
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