Book Review
A study on TRIPS implications and challenges for LDCs
The emergence of the TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights) represents a global solution to the concerns of protecting intellectual property rights (IPRs). To many, the TRIPS approach of globalising the higher standards of intellectual property is however found to animate some in-built controversies. The major controversy surrounding the TRIPS is directed at its ramifications of disregarding the “North South divergent perspective” on the scope of protecting IPRs.
During the TRIPS negotiation, the IPRs-using developing and least developed countries (LDCs) vigorously protested the uniform and strict IPRs protection under the TRIPS by arguing that such stringent standard-settings would harm their development prospects. Interestingly, the drafting of the TRIPS reconciled such concern by including a range of safeguards and options that the WTO members can exploit in their implementation of the Agreement. The conclusion of the TRIPS thus results in pushing the developing countries and LDCs to what Carolyn Deere calls “a second battle”—the battle of exploiting the flexibilities of the TRIPS.
With this sense of combating the battle, the developing countries and LDCs are trying to reconstruct their government regulation by relying on the objective and principles of the TRIPS that recognise the link between protection of IPRs and promotion of social and economic welfare. As a member of LDCs, Bangladesh is also in the need of proper strategy and policy arrangement for tailoring the implementation of the TRIPS in response to national economic and social priorities.
Considering the gravity of this fact, Dr. Mohammad Towhidul Islam, an Associate Professor of Law at Dhaka University, has recently accomplished a scholarly research on TRIPS implications and challenges that Bangladesh may supposedly face as a member of LDCs. His newly published book TRIPS Agreement of the WTO: Implications and Challenges for Bangladesh (published by Cambridge Scholars Publishing, UK) is the outcome of this research. This book is indeed a timely response to the demand of relocating the dream and dilemma of Bangladesh in the context of TRIPS. In essence, the book is built upon the promise of implicating IPRs linkage to trade in general, and assessing their impacts on agriculture, public health and economic development of Bangladesh in particular.
In this book, the author performs a deeper analysis of the TRIPS components, IPRs related treaties and IPRs laws of Bangladesh with a view to proposing a suitable avenue to reach in the progressive and public interest-oriented regime of intellectual property rights. By indentifying the gaps or constraints either in TRIPS or in Bangladesh IPRs laws, this book asks for fruitful reforms in the national IP regime, and offers possible ways to reduce the problems of international regulatory capture. As such, the most important feature of this work is that it possesses the potentials of influencing the policy framework for Bangladesh in protecting IPRs from people's perspective.
To map the baseline of determining TRIPS implication and challenges, this book begins in chapter one with an illuminating discussion on defending and discarding the TRIPS protectionism of IPRs in terms of trade liberalising features of the WTO. In this chapter, Dr. Islam becomes quite argumentative to defy the view that the TRIPS features occur with the WTO's neo-liberalising approach of freeing the trade of IPRs goods. In contrast, he thus goes to argue that “[t]he monopolisation of IPRs in the owner's hand, together with the restriction of comparative advantages leads to trade protectionism and appears to clash with the free trade principle of the WTO.” In addition, this chapter also clarifies the relation between justificatory theory and monopolization, and examines the relevancy of these theories in protecting IPRs in the context of developing countries and LDCs. The second chapter of this book is designed to revisit the problems and politics of international regulatory regime of IPRs, starting from the WIPO regime to the WTO. Offering a critical analysis of various regimes of IP protection, this chapter tends to present a picture of how the IPRs protection finds places in LDCs that have nothing to do with the protection of inventions but appropriate IPRs for meeting survival needs.
The subsequent three chapters of the book offer sector-wise examinations of TRIPS implications in the fields of agriculture, public health and economic development. The third chapter deals with protection of IPRs in agriculture by means of plant varieties protection. It examines relationship between the TRIPS and agriculture from the perspective of conflicting trends between the IPRs-owning countries that favor bio-prospecting of natural resources and the IPRs-using developing countries and LDCs, where the use of natural resources is a traditional practice. The forth chapter focuses on the patenting provisions of the TRIPS in relation to pharmaceuticals and examines its implications on public health. In particular, it investigates whether patenting in pharmaceuticals brings any positive result or deteriorates public health in countries like Bangladesh that have capacity constraints to afford patented medicine.
The series analysis of the TRIPS ends with chapter five which highlights TRIPS impact on or prospects for economic development. And finally, chapter six of the book concludes the study with a summary of recommendations for making balance between private sector-investment and public interest concern of IPRs, especially in the context of LDCs. In essence, this chapter provides a way forward to guard against the TRIPS vulnerability to the practice of private monopolization, and offers a policy framework for the promotion of public goods in the countries like Bangladesh.
In the breadth of all these chapters, the author's insight of the TRIPS implications has been uniquely nourished in the cram of political pragmatism coupled with a deeper sense of human rights and altruism. This has been reflected in the author's finding for Bangladesh that “although the present IPRs laws concur with the TRIPS and sometimes exceed its mandate, they do not take into account the general consumption needs of the great majority of the poor people living therein.” Again, the recommendation of the author for LDCs that they should press for the reframing of intellectual property in the human rights paradigm does also signify the truth of this claim.
Arguably, the most important contribution of this book remains with the fact that it is founded upon the objection to the applicability of “TRIPS' one-size-fits-all approach” compulsorily for all countries. The themes and structure of the book is however formulated with a conscious compromise between total rejection and strict compliance with the components of the TRIPS. As such, while this work demands constructive governmental regulation of exploiting the TRIPS flexibilities in one hand, it urges for a further negotiations by forming an alliance to raise concerns regarding the fulfillment of developmental needs of LDCs on the other.
Interestingly, the metaphor of this approach seems to speak so much for the governments of LDCs to behave like the “Machiavellian king” possessing the nature of both the lion and the fox -- the governments of LDCs should be as powerful as the lion to combat the anomaly of international regulatory capture, and at the same time they should be as careful as the fox to formulate national policy for exploiting the TRIPS flexibilities with the best of their bounds.
The reviewers are lecturer in law and LL.M. student at the University of Dhaka respectively.
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