Policy Space for Domestic Public Health Measures under TRIPs
The correlation between patents and access to drugs defines the motivation behind the evaluation of the impact of WTO TRIPs agreement on improving healthcare. The Doha Declaration together with a study on the benefits of TRIPs flexibilities in guiding the compliance efforts towards adoption of intellectual property rights to domestic policy among less developed countries. An understanding of the effect of policy space in influencing public health policies in less developed countries such a Bangladesh is critical in establishing the significance intellectual property rights in health care. Foundations A better policy framework should develop mechanism that will balance interests of both intellectuals contribution and safeguard the need to bolster drugs access to the public. Patents have been observed from time to time as an instrument of creating monopoly within a market.
Public health is an area that requires some collective engagement with different policy makers to put in place adequate legislation responsible for obliging to international agreements. Policy space for domestic public health measures under TRIPS agreement is an important concept for less developed countries such as Bangladesh. The concept seeks to establish the legislative latitude that less developed countries have in establishing a policy framework that recognizes both international and domestic obligations (FM’t Hoen, 2003, p. The setting up of a legal regime backed up by competent institutions that would help guide the process of establishing a system for intellectual property protection. The failure to combat the economic parlance of patent protection which establishes monopoly power demonstrates the reason behind the inability to embrace such an important provision responsible for enhancing pharmaceuticals quality.
The TRIPs Agreement, Patents and Policy Space The rights of governments and patent holders are the divisive subject that has made it difficult for the successful implementation of TRIPs agreement. Intellectual property rights have for a long time been the preserve of countries to independently determine whether to adopt for instance patenting on pharmaceuticals (Shadlen, Guennif, Guzmán, & Lalitha, 2011, p. However, the freedom was curtailed by the enactment of the TRIPs agreements seeking to recognize the role of intellectual property rights in recognition of the need to attract innovation in pharmaceutical research (Chorev & Shadlen, 2015, p. The debate on implementation of TRIPs agreements is faced by substantive questions on whether they are practical in less developed countries especially on how it limits the policy space.
Less developed countries cannot effectively enjoy sufficient policy space after enactment of the TRIPs agreement to attain their public health goals. Less developed countries are adversely affected by the TRIPs agreement due to the prevalence of diseases and poverty that makes the capacity to afford patented drugs improbable. The challenges suffered by less developed and developing countries made it imperative to adopt a series of flexibilities to help prevent patents from limiting access to medicines (Peng, 2009, p. Additionally, it is important to recognize the role of TRIPs flexibilities under article 8. 2; 30; 31 among others premised on creating a more public health friendly patent system. The WTO TRIPs flexibilities that were adopted during the Fourth Session Doha Ministerial Conference in 2001 was an initiative to help less developed countries continually balance between patenting and allowing access to drugs.
1 on the General Health Provisions provides member states with flexibilities on how they should further develop mechanism that will enhance their capacity in improving public health. However the provisions are not standard with a specific legal definition of the parameters that less developed countries should exploit and the points under which such freedom is curtailed. Article 7 provides the flexibilities for less developed countries to leverage on technology as an input to drive their capacity in responding to their social welfare challenges such as public health policy. The article is open ended and fails to reflect the conditions of less developed countries suffering from numerous political, social, economic and legislative capacity to advance the protection of intellectual property (Musungu, & Oh, 2005, p. The Doha declaration recognizes the gaps in technological and manufacturing capacity to improve the ability of less developed countries but equally does not establish credible support mechanisms.
Parallel imports is a measure that comes in handy in restricting monopolistic practices by patent holders to eliminate high prices making drugs not affordable for most households in less developed countries. The article offers protection of both parties by ensuring exploitation is extensively reduced and a control mechanism that ensures access and fair profits are attained in the market (Agitha, 2013, p. Article 6 limits less developed countries from manufacture of patented pharmaceuticals freely from 2005 hence providing only one option of purchasing the products at high prices. The Doha declaration paragraph 5 (d) does not develop an extensive indication of the principle of exhaustion of rights but simply reaffirms the freedom of members to decide. Even though paragraph 4 of the Doha declaration makes the international exhaustion principle a considerable solution for developing countries to engage in legitimate parallel import, it does not demonstrate the model to be adopted in such situations.
The economic capacity of less developed countries makes it untenable for countries such as Bangladesh to fully comply with the Intellectual Property Rights provisions and equally make drugs affordable. Public health is an important aspect in society since it determines how people live to enhance the quality of life hence access to drugs becomes essential. Moreover, it is imperative to underscore the fact that Bangladesh is a founding member of the World Trade Organization and it is obligated to comply with the TRIPs Agreement. Despite the financial, social and political challenges faced by Bangladesh resulting from their less developed countries status, the TRIPs agreement is binding to all member states. The Uruguay Round in 1994 set out an international framework that initiated the parameters for protection of intellectual property rights (Azam & Richardson, 2010, p.
In many parts of the world, public health has reached crisis level: Over 263. 5 million people are reported to be affected by HIV/AIDS, malaria, tuberculosis in 2016, 90% of which are in the developing world (WHO 2017). Worse, even when most of the illnesses are treatable or preventable with existing medicines, nearly one-third of the world’s population, as the World Health Organisation (WHO) estimates have no access or inadequate access to these essential medicines (Islam, 2011, p. The World Health Organization report in 2017 presented findings on the statistics of people across the world unable to access quality healthcare. The desperate situation pegs the challenges to lack of access to basic medicine a situation in need of policy restructuring to cure. The policy space in less developed countries has primarily focused on approaches that do not demonstrate the motivation to exploit the available flexibilities towards implementing TRIPs agreement (Islam, 2011, p.
Less developed countries such as Bangladesh have resorted to compulsory licensing and parallel licensing that limit the implementation of intellectual property rights. Nonetheless, Chorev & Shadlen (2015) have demonstrated the shrinking trend of the policy latitude available for developing countries to exploit when it comes creating a formidable legislative strategy. The recognition of patentability within a less developed country should fulfill both their national interest on one end and international trade obligations on the other. The WTO TRIPs agreement formulation has in most instances failed to recognize the disparities that exist when it comes to different developing nation’s needs (Azam & Richardson, 2010, p. The economic and social orientation of developing nations fails to provide the capital that will support such measures especially on a sensitive matter of public health where stakes are high to aid human survival together with quality healthcare.
Islam (2011) provide further input on a probable structure to address the challenges of TRIPs implantation through proposals of adopting a system based on alliances and coalitions to create a platform that factor in the use of policy instruments to enhance the implementation process. Nonetheless, they go ahead and define the underlying challenges present when it comes to relying on coalitions and alliances to assert conformity in the wake of divergent local conditions of each country (Azam & Richardson, 2010, p. The public policy space for developing countries such a Bangladesh finds it not sustainable to conform to the uniform structure set up by the WTO Trips agreement (Islam, 2011, p. The growth of quality public health care significantly depends on the recognition of the role of intellectual property rights as an incentive to inspire innovation for better pharmaceutical research.
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