Abstract:
Leading academic commentators in the fields of intellectual property and cyberlaw have expressed grave concerns about the "enclosure of the public domain" and the "one-way ratchet" of intellectual property protection. While these concerns are significant and rightly placed, a different, and perhaps more important, enclosure movement is currently taking place at the international level. Instead of the public domain, this concurrent movement encloses the policy space of individual countries and requires them to adopt one-size-fits-all legal standards that ignore their local needs, national interests, technological capabilities, and public health conditions. As a result of this enclosure, less developed countries are increasingly unable to protect their national interests and to respond to domestic crises within their borders.
The crisis that has received the most international attention thus far concerns the lack of ability by less developed countries to combat HIV/AIDS, malaria, tuberculosis and other public health crises. To respond to these crises and to mitigate the adverse impact of the TRIPs Agreement, members of the World Trade Organization have recently agreed to amend the Agreement to allow member states with insufficient or no manufacturing capacity to import generic versions of on-patent pharmaceuticals. This proposed amendment represented the first time the WTO amended a core agreement.
Using the access-to-medicines problem in less developed countries, this Article illustrates the complexity of decisions countries need to make at the national level and the symbiotic relationship of the various factors that could affect the outcome of these decisions. It then traces the development of the international enclosure movement and shows how the international intellectual property system was originally designed to preserve the autonomy of countries to devise their own intellectual property policies. Focusing on developments from the August 30 Decision of the General Council to the recently proposed article 31bis of the TRIPs Agreement, this Article further illustrates the danger of the international enclosure movement, in particular how countries were unable to reclaim their policy space once that space has been enclosed.
The Article concludes with suggestions on how countries can reform the international intellectual property system to preserve the autonomy needed to tailor policies to local conditions and how less developed countries can reclaim their lost policy space to facilitate greater access to essential medicines. In designing these suggestions, the Article focuses on three main attributes of the international enclosure movement: (1) the power asymmetry between developed and less developed countries, (2) the incentive-investment divide between national and foreign intellectual property policies, and (3) the globalization of intellectual property rights.
Peter. K. Yu, associate-professor of Michigan State University College of Law.
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