It has been sixteen years since the World Trade Organization (WTO) adopted the "Declaration on the Trade-Related Aspects of Intellectual Property (TRIPS) Agreement and Public Health." The organization made the declaration at its annual Ministerial Conference that took place in Doha. For this reason, the declaration is also known as the "Doha Declaration." The adoption of this change implied that it was now compulsory for WTO member states to apply for licensing of their pharmaceutical businesses under the WTO TRIPS Agreement. The licenses were to be given to pharmaceutical patents by the government of the member state thus enabling them to use patented innovation without the permission of the patent title holder. For instance, to encourage investment in drug development sector, pharmaceutical companies responsible for creating the drug have the right to apply for "intellectual property rights." These rights protect the investment made by the innovator in creating the drug by preventing other companies interested in producing a similar drug for a fixed time-span. During this period, the creator of the drug and the company interested in creating the same drug will have adequate time to negotiate payment for the adoption of the creation by the interested party.
Before the formation of WTO, the guidelines for the enforcement of intellectual property rights differed in different states. After the establishment of WTO, many countries started to adopt conventional rules and regulations for trade. This change ensured that the flow of commerce was smooth, and free as possible in different parts of the world. After its formation in 1995, one of the primary changes WTO embraced was the introduction of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. This document attempts to consolidate the protection of intellectual property rights, including patents under common international rules and regulations. However, the introduction of TRIPS came with changes in Compulsory Licensing (CL) activity. Most economists doubted if TRIPS will live up to its vision of promoting access to medicines for all and the protection of public health. Some economic analysts from different countries predicted that the impact would be limited. They highlighted barriers to CLs. They argued that some of the least-developed nations still lacked the production capacity, distribution networks, and purchasing power needed to use the compulsory licenses (CLs) effectively.
Also, some of the skeptics dismissed the claim that patents are the critical barriers to access of drugs in developing and least-developed countries and thus CLs were not the best option. Research also found that only close to 5% of drugs listed by WTO as the most essential was developed recently enough to earn the patents. To add, even most of the newly produced drugs did have copyrights in their countries, therefore, lacking a local market to protect. Studies also indicated that globally, patents only existed in about 1.4% of the states concerning pharmaceutical companies available. Still, over the decades, TRIPS has seen the increase in access of medicines in least-developed countries. For instance, this improvement is evident in the recent increase in the entrance of antiretroviral treatment in some of the world's poorest countries. However, this scale-up cannot be entirely credited to TRIPS. Other factors that may contribute to this development include the activities of philanthropists and non-governmental organizations, bilateral aid, as well as public-private partnership. Therefore, the purpose of this paper is to analyze the impacts of TRIPS compulsory licensing to public health sector since the signing of TRIPS Agreement in 1995.
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