Steps towards an Alignment of Intellectual Property in South-South Exchanges: A Return to TRIPs

By Rutschman, Ana Santos | Denver Journal of International Law and Policy, Summer 2015 | Go to article overview

Steps towards an Alignment of Intellectual Property in South-South Exchanges: A Return to TRIPs


Rutschman, Ana Santos, Denver Journal of International Law and Policy


I. INTRODUCTION

Some of the most instrumental players in shaping the course of intellectual property policies in the South are the so-called BRIC countries. (1) The acronym BRIC originally encompassed Brazil, Russia, India and China. In 2011, South Africa formally joined the BRIC countries, which are now referred to either by the original acronym or by BRICS. (2) While categorizations like BRICS attract a fair amount of criticism, with questions surrounding the criteria used to aggregate disparate economies, (3) the concept of emerging economies in the Global South seeking to advance similar development agendas has become accepted currency in multiple fields, from institutional cooperation to financial analysis and investment. (4)

Since the first BRIC summit in 2009, the range of areas on which the BRICS cooperate or plan to cooperate has expanded considerably. (5) One of the issue areas that gained increasing attention from BRICS policy-makers is intellectual property. This has been particularly true since 2013, when these countries signed their first agreement on cooperation between intellectual property offices. (6) The agreement, known as the Roadmap, focuses primarily on cooperation in patent matters, and has the potential to trigger an alignment of patent policies in the South--or, more accurately, in the most economically-empowered arenas of the South.

As the Roadmap comes into force, this article explores options for further cooperation between BRICS--and, potentially, developing countries in general-- beyond the patent field. It begins by noting that patent law, in the form of flexibilities within the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS Agreement" or "TRIPS", (7) has consistently been at the heart of the boldest and most controversial intellectual property measures adopted by some of the leading economies of the South. (8) It then describes the main features of the recent Roadmap, with an emphasis on its patent-centric design. The article proceeds to propose a set of TRIPS-compatible measures outside patent law that countries seeking to advance development agendas have yet to explore. In an era in which post-TRIPS and post-World Trade Organization ("WTO") approaches (9) often relegate treaty interpretation to a residual position, these measures are derived from TRIPS and have the potential to further the innovation agendas of developing countries without increasing the overall levels of domestic intellectual property protection.

II. CONTOURS OF A PROGRESSIVE ALIGNMENT OF INTELLECTUAL PROPERTY: FROM COMPULSORY LICENSING IN THE BRICS TO THE 2013 ROADMAP

A. An Overview of Compulsory Licensing in the BRICS

So far, the greatest intellectual property showdowns between the South and the North have taken place in the patent field, specifically in the pharmaceutical arena, with generics being at the center of most political and legal disputes. (10)

Tensions between manufacturers of patented drugs in the North and generic industries (11) fueled the first years of TRIPS implementation and continue to the present day, amid trade threats (12) and WTO disputes. (13) Unsurprisingly, several of the BRICS have been at the center of these controversies. India, which grew a globally competitive generics industry by not recognizing pharmaceutical patents for several decades after 1972, finally amended its patent law in 2005 to comply with TRIPS obligations. (14) In the late 1990s and early 2000s, South Africa underwent a long war with manufacturers of patented drugs in an effort to curb its AIDS epidemics. (15) Today, South Africa is revising its intellectual property laws to position itself as a leader in generic drug manufacturing. (16)

Brazil is often credited with being the savviest of developing countries in playing the "court of public opinion" to jump-start the generics industry. (17) In 1997, a local working requirement was incorporated into Brazilian domestic patent law. …

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