AUTHOR
Göran Collste
ABSTRACT
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was introduced within the World Trade Organisation (WTO) in 1994. Through the agreement literary and artistic works under copyright as well as patents for inventions and trademarks are globally protected. While the basis of the agreement is the protection of copyrights and patents, TRIPS are subject to a number of limitations and exceptions “…aimed at fine-tuning the balance that has to be found between the legitimate interests of right holders and of users” (WTO homepage).
The TRIPS agreement is controversial. Jan Aart Scholte writes: ”TRIPS has raised the cost of access to advanced technologies and medicines beyond the reach of many poor countries”. Especially three applications have raised controversies; patent for pharmaceuticals, patent for genetic material, e.g. plants and copyright to computer software.
TRIPS are legal rights, uphold by an international institutional scheme. Their underpinnings are both prudential and moral. TRIPS are in the interest of the inventor, the company that owns the rights and the home country of the inventor and company. However, TRIPS are also justified by moral arguments. One kind of moral arguments is right based. The legal right to intellectual property is based on a moral right. According to this argument, a person who has invented or created something, say a computer programme, also has the sole right to control his or her invention or creation, e.g. he or she has the right to determine what shall be done with the programme. Another kind of arguments for IPR is consequentialist in character. The purpose of intellectual property rights (IPR) is to encourage and reward creative work. Furthermore, as a consequence of IPR companies have incentives to develop new technology which in the long run will gain everybody.
The discussion of TRIPS indicates that their justification is questioned. For example, Oxfam argues that in the light of the global gap between rich and poor TRIPS will result in “…further excluding poor people from access to medicines, seeds, computer software and educational material.“ Hence, according to this objection, TRIPS are obstacles to the fulfilment of peoples’ rights to health care, food, information and education.
In particular, the TRIPS agreement has been criticised for limiting access to pharmaceuticals, e.g. medicines for HIV/AIDS treatment. According to the critique, as a consequence of TRIPS, the high price on HIV-medicines set by pharmaceutical companies would make the medicines unobtainable for the great majority of the population in poor countries, stricken by the HIV epidemic. In response to the critique the WHO Doha Ministerial Conference in 2001 decided that the TRIPS agreement should not prevent members from taking necessary measures to protect public health. In situations of national emergency and extreme urgency, compulsory licensing of necessary drugs is permissible, according to the declaration. Compulsory licensing means that a nation has the right to produce for example patented medicine without permission. Exemptions on pharmaceutical patent protection were for the least developed countries extended until 2016.
The decision in Doha in 2001 illustrates the prima facie character of TRIPS. The right to health was considered as more important than the protection of property rights. Hence, the TRIPS were seen as valid as long as there are no other values or rights that take precedence. The decision in Doha raises two relevant ethical questions; one theoretical and one practical. First, how can conflicting rights be reconciled in a coherent ethical system? Secondly, are there also other rights besides the right to health, for example the right to food or the right to information that can take precedence over TRIPS?
The Doha decision also raises questions of a practical ethical and legal nature. Given that, as in the Doha decision, the right to health limits the scope and application of IPR, are there perhaps also other important rights that may have the same implications? If TRIPS not only limit access to vital medicines for the poor, but also to vital crops and information resources, would that then justify exemptions on patent and copyright protection? An answer to this question presupposes a theory of vital needs and urgent rights.