The WTO’s TRIPS and TRIPS-Plus Agreements: Economic Development in the Global South, Human Rights and IP Protection

I just wrapped up reading a fairly short but illuminating policy brief produced by the Geneva-based human rights and development research and advocacy group Three-D entitled “How Human Rights Can Support Proposals for A World Intellectual Property Organization (WIPO) Development Agenda”. The brief was released back in February of last year, but the timeliness and importance of its conclusions for economic development makes them just as significant now as they were a year and a half ago.

According to the report, we are living in an increasingly technology driven world (it’s rather difficult, I think, to mount a serious argument against this observation), and that the protections currently afforded to the pharmaceutical and software industries in terms of intellectual property (IP) rules is directly “affecting development policies, human rights and other public-interest goals more than ever.”

The authors of the report explain:

Strict IP rules have had an adverse impact on the ability of many governments to fulfill their human rights obligations, [including ensuring] access to affordable medicines, educational goods and adequate food. This trend towards higher IP protection has been stimulated by the adoption of the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in the 1990s, and the harmonization initiatives at the World Intellectual Property Organization (WIPO).

At WIPO, concerns about this trend prompted developing countries to put forward since 2004 a series of proposals in support of a WIPO Development Agenda. The proposals aim to ensure that international IP policy within WIPO takes into account development goals and is coherent with the international obligations of States, including obligations under human rights treaties. Human rights law and mechanisms can support this push for greater development coherence of the international IP regime, and accountability in IP decision-making.

The report goes on to provide some important historical context:

The TRIPS Agreement, which came into force in 1995, set minimum standards of IP protection which all members of the WTO have to implement. Despite international concerns about the impact of the TRIPS Agreement on development, IP standards worldwide continue to increase. These strict IP standards, known as “TRIPS-plus” standards, have emerged in investment agreements, trade agreements and in WIPO treaties. Moreover, the WIPO Secretariat has also been criticized for promoting TRIPS-plus standards at the expense of development concerns in its technical assistance and norm-setting activities.

There have been particular concerns that WIPO’s technical assistance has too often failed to properly take into account the range of public policy goals relevant to IP policymaking in developing countries and tailor advice to respond to their particular economic, social and cultural development needs and circumstances.

These are exactly the kind of concerns you would expect those advocating for improved development policies directed toward the South to have. And I can’t exactly say I was surprised that WTO, WIPO or any of the other institutions created by the North have been bending over backwards to ensure the profitability of MNCs – even when doing so predictably comes at the expense of the poorest citizens in the Least Developed Countries.

The report offers a sobering prognosis if the world’s wealthiest countries don’t begin putting the public health of the world’s poorest and most at-risk population ahead of protecting patent rights for multi-billion dollar pharmaceutical manufacturers:

If this race to the top at WIPO and in other fora continues, the scope for developing and least developed countries to adopt IP policies that respond to their development needs will be further compromised. In so doing, the push for ever-stronger IP standards also stands to undermine the promises in a series of international political commitments such as the United Nations Millennium Development Goals (MDGs), the Johannesburg Declaration on Sustainable Development, and the Sao Paulo Consensus at UNCTAD XI (which promotes the use of “policy space” for development).

Furthermore, if countries are required to implement the high IP standards sought through new multilateral agreements or inappropriate technical assistance, they risk violating their legal obligations under international human rights law, including the right to life, the right to health, the right to education, the right to food, the right to an adequate standard of living, the right to access information, the right to take part in cultural life and to enjoy the benefits of scientific progress.

I recommend reading the whole report to get a very basic understanding of the issues at play here. Some other good resources online include this portal at choike.org, and these other publications from 3D.

Notwithstanding all of the acronyms and complicated-sounding jargon being tossed around by the so-called policy elites on this issue, this is really a fairly straightforward matter at the end of the day. That is to say, it is a matter of determining what the priority of these international bodies should be: Protecting corporate profit margins or saving the lives of millions by ensuring access to the drugs and treatment needed for survival.

However, the horrific reality is the very multilateral organizations created to eliminate poverty in the Developing World have internalized the values and agendas of their managers almost without exception hailing from the Developed World. The continuation of poverty and death in the Least Developed Countries, as well as the phenomenon of increasing inequality of wealth between the wealthiest individuals and nations and the poorest, are direct and foreseeable consequences of these biases.