This dissertation explores the effects of the Trade - Related Aspects of Intellectual Property Rights Agreement (the TRIPs Agreement) on developing countries with particular;ar emphasis on the pharmaceutical industry. The methodology used is that of analyzing secondary materials. India and South Africa are used as "case studies" inorder to asssess these effects. Before TRIPs, there was widespread piracy, copying and free riding of intellectual property rights in developing countries. The producers of the pirated and copied goods were mainly from developing countries and they were losing profits by the billions. The United States decided to demand for increased international property rights under the auspices of WTO. After eight years of negotiations, the TRIPs Agreement was signed by all member countries of the WTO.
The blatant piracy of intellectual property is obviously wrong and should be prohibited. Therefore the need for increased of intellectual property protection through TRIPs is understandable. However a problem arises in the pharmaceutical industry; due to increased patent protection, pharmaceutical products and product will become more expensive than they were in developing countries. This dissertation reaches a conclusion on how a balance is going to be achieved between the contrasting needs for legitimate intellectual protection and access pharmaceautical products.
India had a flourishing generic industry before TRIPs. The effect of the Agreement will be to wipe a high percentage of this industry out of business. However a research based industry may develop due to increased patent protection. The South African Government introduced drastic measures in 1997 in an attempt to provide cheap drugs for its dying AIDS patients. A no. of international pharmaceutical manufacturing companies brought an action against South Africa claiming that this legislation, the Medicines and Related Substances Control Amendment Act 1997, was not compatible with TRIPs. This dispute ended abruptly with the pharmaceutical companies dropping the case due to international pressure.
The outcome of this dispute has encouraged other developing countries to adopt similar legislation. The South African dispute was mainly concerned with the compulsory licensing provisions in TRIPs. This provisions put developing countries in a very difficult position. The outcome of the dispute may encourage other developing countries to challenge the other provisions in TRIPs which most adversely affect them.
The conclusion reached is that developing countries will experience both negative and positive effects on the implementation of TRIPs. However, these effects cannot be assessed accurately before 2005 when the transition period for the implementation of TRIPs in developing countries expires.On the whole it seems that the negative effects will out - way any positive effects. However if some provisions of TRIPs such as the compulsory licensing provisions are amended to better suit the developing countries, TRIPs may well be beneficial to developing countries in the long-run. The negative effects of the TRIPs will be easier to deal with if the implementation and long term application of the agreements surrounded by a climate of cooperation and understanding between developed and developing countries. It is through this cooperation that the developed and the developing countries will be able to reconcile their conflicting positions under the TRIPs Agreement.