Time to rethink I.P. regime?March 6, 2018 @ 8:48AM
By JEONG CHUN PHUOC
I REFER to the opinion piece by Jomo Kwame Sundaram (“IP hinders equity, progress” — NST, Feb 26).
The argument by the writer, and views by Joseph Stiglitz, Dean Baker and Arjun Jayadev in Innovation, Intellectual Property and Development may be true in the empirical and economic aspects.
But this does not mean that the world must start dismantling Intellectual Property (IP) laws or that the World Trade Organisation’s Trade-Related Aspects of Intellectual Property Rights (WTO-TRIPS), which were put in place after Gatt (the General Agreement on Tariffs and Trade) was terminated in 1995, is stifling.
The Gatt years (1948-1995), from Havana to Marrakesh, was to regulate world trade. It was intended to usher in a change in international trade since World War 2, where developed countries would help developing countries on shared common goals in economic justice. Has this been achieved under TRIPS, especially on the issue of access to medicine by poor countries?
As a general rule, IP does promote innovation. This is the position endorsed by the World Intellectual Property Organisation (WIPO): “IP plays an important role in facilitating the process of taking innovative technology to the market place.”
The question now is, how? From an IP law perspective, there has been much argument on the role and objectives of the IP regime. IP, specifically patent legislation, remains a challenge due to the monopolistic rights given to patent owners (for example, the constant patent wars in the IT industry presently waged by Apple and Samsung).
The long period of patent protection, compounded by stifling “patent thickets” and “patent trolling” are a disservice to IP law and the system as they block knowledge-sharing and innovation. This is not what TRIPS had in mind. TRIPS’s component, in fact, provides much allowances for developing countries to make use of IP for medical wellbeing, i.e. “rights of government”.
WIPO, intellectual property offices and government agencies worldwide are aware that IP laws and related systems are part and parcel of a wider innovation ecosystem that are supposed to promote just economic progress.
But, Stiglitz’s article, “Wealth before health? Why intellectual property laws are facing a counterattack”, represents a rethink of the philosophy and rationale of the IP regime, especially its “one-size-fits-all” standards, which are against developing countries’ interest, in particular, the accessibility to essential medicines.
The problem, perhaps, is in the execution. Among business practitioners, implementation of IP, especially patents, has shown to be problematic in developing countries that are in need of access to critical medicines (which are protected under patent law). However, this does not prevent a developing country from activating compulsory licensing in view of public health urgency. But, the process is tedious, because of TRIPS’s mechanism.
For instance, on Aug 4, the cabinet approved the use of “Rights of Government” under the Malaysian Patents’ Act 1983 to create and manufacture the 400mg Sofosbuvir tablet (still under patent law protection) to treat Hepatitis C (Government to introduce generic medication for Hepatitis C, 20 times cheaper; NST, Sept 20, 2017).
The government had activated “compulsory licensing” in the interest of public health.
Knowledge is a global public good, and every nation, especially the developing bloc, can use it freely to promote its diffusion of knowledge towards global innovation’s wellbeing.
Perhaps it is time for developing nations to re-examine the TRIPS agreement and redefine a new direction to have access to essential medicines and resolve the public health factor.
Developed countries (in the Organisation for Economic Cooperation and Development and WTO) need to be reminded that developing countries must be given fair IP standards to join in the innovation race without legal or trade barriers. This is to ensure equitable implementation of IP laws for the developing bloc towards achieving Agenda 2030 (17 SDG) for global knowledge, public health, peace and economic equilibrium.
Malaysia, as one of the top 25 most competitive economies, therefore, needs to strike a strategic balance in protecting IP and enforcing IPRs, especially patent-related rights in essential medicines. Perhaps, this can be re-examined by looking into existing public-private partnerships with pharmaceutical conglomerates.
The time has come to reform existing IP legal barriers (within TRIPS) and to endorse a true form of economic balance — one where developed countries join hands to help poor countries achieve public health integrity.
Perhaps, a special kind of help propounded in simple terms by T’Challa: “In times of crisis, the wise build bridges, while the foolish build walls.” (T’Challa is the king of a fictional African nation called Wakanda in Marvel’s Disney’s Black Panther).
Or, change TRIPS for a better set of approaches for the 21st century.
Jeong Chun Phuoc
Shah Alam, Selangor, Malaysia