Who Is Afraid of Compulsory Licences?
Who Is Afraid of Compulsory Licences?

Summary/Abstract: This article intends to focus on the insufficient use, by WTO Member States, of the flexibilities that have been created under The Agreement on Trade Related Aspects of Intellectual Property Rights (the TRIPS Agreement). It will show the paradox that, after intense debate regarding the access to essential medicines by the least developed and developing countries, after the Doha Declaration on the TRIPS Agreement and Public Health and the 2003 Decision, States have done surprisingly little to take advantage of the system they seemed to desire up to that point. The Article will also look into the general aspects with regard to the right to health within the TRIPS context, but since much has been written on this topic, it will focus more on the issue of compulsory licensing. In this sense, it will raise question marks of why States are reluctant to use a system designed to their advantage and why they prefer more burdensome obligations under Free Trade Agreements (WTO Plus Agreements). Therefore, the Article will show that the TRIPS Agreement in itself does not create a gap between trade and human rights, while also pointing out that the discussion regarding the access to essential medicines and intellectual property rights has often been misguided. This Article does not imply that the TRIPS Agreement always strikes the proper balance between the right to health (human rights, generally speaking) and intellectual property rights, but more that it is not the intellectual property rights themselves that limit the right to health. The discussion is more complex and it greatly involves the lack of commitment coming from WTO Member States, together with a poignant reluctance to the compulsory licensing mechanism.

• Details
• Contents