Conflict And Harmonization Between TRIPS And Public Health Needs

It is no doubt that the founding of the intellectual property right protection legal system is one of the milestones in the development of legal knowledge and practice. It has renewed people's mind of the definition of "property". Ever since intellectual property law has been designed, the content of "property" has been widened from the former tangible-connecting-meaning to include intangible-connecting-meaning. People got to feel more and more the importance of intellectual power in the process of industrialization of higher grade. And emphasis of the high-standard-IP-protection has been repaid by large quality of social warfare gained through the new technology.Despite the great contributions that the intellectual property law has made, the legislators should never forget the essential problem which the first intellectual property law drafters had faced: to find the equilibrium between the protection of intellectual property and the public demand of using the intellectual result. On one hand, intellectual property must be protected. Otherwise, due to the extremely high cost of research and development and the extremely low cost of copying an existed intellectual product, no one would risk investing large amount of money in inventing something new and thus enhance the social technological and economical level. But on another hand, we must also take the following fact into account. That is, seldom can an invention appear without a certain social system: first, the inventor must receive education; secondly, it is most likely that he has relayed on some former invention in order to bring out his new idea. That means, nearly every innovation has benefited from the society. So it is quite understandable that the innovation should also play the role of a social-warfare-contributor. Actually, the necessity of contribution that any intellectual property must make to the society forms the explanation of the restriction articles of the domestic intellectual property laws. Take the compulsory licensing articles for example: on one hand, the legislators confess that intellectual property right shall not be hurt. On another hand, the legislators also pay attention to the situation under which rare circumstances such as emergency takesplace, then the owner of the intellectual property must let others use his intellectual products with getting a rational amount of royalty. And the articles of human-life-and-health or protection of animals or plants are also clear examples of the effort that legislators have made to attain the balance between protection of intellectual property rights and the public interest.But to maintain the equilibrium has never been an easy task, neither in the domestic field nor at the international level. The issue, which is under discussion in this essay, shows exactly how difficult it is to obtain the justice essence in international intellectual property legal system.There has already been some influential international treaties regulating international property protection matters. The similarity among them lies in that: every of them regulates only one aspect of the whole IP system. Therefore, when Trade-Related Intellectual Property Rights agreement was signed to form an important part of WTO, it was really an milestone, since this treaty has finally satisfied the needs of developed countries to build a treaty, which, on one hand, regulates all aspects of IP, and on another hand, is guarded by a strong executive mechanism. TRIPS has always been viewed as the developing countries' cost, which has to be paid in order to get something else in return. But when it comes to the problem of public health matters, the cost simply seems too high to be accepted.The global public health crisis emerged in around 1960s. Traditional disease as well as newly appeared disease like AIDS constitute huge threat to developing countries. Most of the developing countries are not capable to invent medicines against the terrible diseases. What they could do before the coming into force of TRIPS was to produce or import genetic medicines. However, generally speaking, TRIPS forbids genetic medicine production. And even when genetic medicine production becomes possible under certain exceptional circumstances, the genetic medicine can only mainly supply the domestic market. So it has been really difficult for countries that are not able to produce genetic medicines to release the domestic public health crisis by the way of importation. The conflict between TRIPS and public health crisis is the issue to be discussed in this essay.Chapter one gives some background information and then brings out the problem under discussion. Firstly, it introduces background information about how TRIPS was signed and how it has influent member states' IPR protection policy. Secondly, it goes on to look into the influence that TRIPS bought to accession to medicine. Thirdly, it collects some most important cases. It was exactly these cases that brought the conflict between TRIPS and public health crisis to the eyesight of legal professionals.Chapter two analyzes at different levels the reasons that caused the conflict. At first, the essay analyzes the text of TRIPS. Article 27 requires all member states to grant patent protection to medicines. In order to prevent misuse of patent right, Article 31 permits "other use without authorization of the right holder". Thus, in case of national emergency or other extremely urgent circumstances or in case of public noncommercial use, the government can issue compulsory license to allow production of patented products, for example, medicines. This restriction to patent right seems to be reasonable. And it seems that, although TRIPS forces all member states to protect patent right of medicines, when a developing member state requires, it provides flexibility to satisfy the need to struggle against urgencies like public health crisis. Unfortunately, this flexibility is restricted with Article 31 (f), which demand that any medicine produced under compulsory license shall be authorized predominantly for the supply of the domestic market of the member state authorizing such use. So a least developed member state without enough production capacity can not import enough medicine unless the exporting member state is threatened by the same disease and therefore can compulsorily authorize a large quantity of medicine. Since these requirements are too difficult to be met, from the perspective of TRIPS' legal text, it does constitute an obstacle to resolve the public health crisis. Then this essay does some research in the jurisprudence level. With the help of the two analytic instruments------the balance of interests theory and the instrumentalism theory, the essaycompares the private right aspect and the human right aspect of IPR, concluding that to balance both two sides of IPR is an inevitable task of IPR policy. At last, the essay cites some material to do analysis at the systematic level. "Systematic level" here means how the IPR policy stimulates innovation in pharmaceutical field and how thepoor are affected by the IPR protection system. Scholars who are for high IPR protection standard always argue that pharmaceutical IPR stimulates pharmaceutical innovations. But actually this is only half right. Even though developing countries adopt high IPR protection standard, they find almost no innovation, which works against diseases threatening the poor. Rather, they see only new pharmaceutical innovation fighting against diseases, which are commonly seen in developed countries. So it is really hard to say that the IPR protection of medicine has brought any advantage to developing countries. On the opposite, enhance in medicine prices resulted from the medicine IPR protection makes it even harder for the poor to obtain medicines.Chapter three aims at methods that can erase the conflict. At the beginning, it summaries efforts already made. They have partly resolved the problem, but not completely. Then it confirms that there exists theoretical background for the coherence of IPR policy and health policy. And at last the essay gives some suggestions of how to harmonize this two policies and solve the conflict between TRIPS and public health needs. The essay suggests that: the most effective way is to make authorized interpretation to Article 30 of TRIPS. This method has been brought out by developing countries before, but it was not accepted. Developing countries can make further effort in order to make this suggestion real. Beside, methods such as to incorporate health provisions to TRIPS and make full use of the trade policy review mechanism are all supporting methods.