Stanford Center for International Development, Working Paper No. 308, Dec. 2006

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A powerful agenda for adoption of high levels of intellectual property protection, including related regulatory protection, is being advanced by the United States (and certain other developed countries) for developing countries, including developing and emerging market countries of Asia. This agenda essentially reflects a TRIPS II exercise, but is largely being carried out in bilateral and regional negotiations, as well as in WTO accession negotiations. 

The TRIPS II agenda, as the TRIPS I agenda, is explained by strong mercantile interests seeking to increase technology and expression rents. Circumstances since the launch of the GATT Uruguay Round in 1986 have changed substantially. In 1986, OECD industries were principally concerned with preventing weak developing country industries from substituting low-cost and often lower quality “copied” versions of products on local markets, but were not threatened with competition in their home markets or with respect to originator and high-quality products. The OECD industry groups driving the TRIPS II agenda are (1) the copyright-dependent audio-visual industry concerned with unauthorized duplication and distribution of video and audio content and (2) the pharmaceutical (and agricultural chemical) industry concerned with competition from generic producers and, in a forward-looking sense, emerging originator enterprises. 

This paper focuses on the implications of the TRIPS II agenda for the pharmaceutical sector in the Asian region. Copyright protection has significant implications for “access to knowledge”, in addition to entertainment, and this paper acknowledges the public welfare implications of developments with respect to copyright. However, the applicable legal norms and public welfare analysis differ substantially as between the copyright-dependent and patent-dependent industry sectors, and this paper will focus on the latter.