TRIPS Implementation in Developing Countries

This chapter sketches future scenarios of TRIPS implementation in developing countries by looking at past experience, current trends and by comparing historical and cross-country patterns. The chapter focuses on the three largest emerging economies - Brazil, India and China (BICs), since they are those with the highest potential to shape the intellectual property regime. Through international contestation, domestic implementation and even novel rule-making, they have been able to ensure that some flexibilities in the implementation of TRIPS remain. Their domestic policies and coalition-building efforts have been followed by many other developing countries. Shifts in the political economies of Brazil and India towards 2025 due to increased patenting and rise in innovation could mean that they will calibrate or even drop their opposition to TRIPS. China will likely be an innovation giant by then and eager to join the club of proponents of strong and enforceable intellectual property (IP) rights. In the area of access and benefit sharing of genetic resources and related traditional knowledge (ABS), the BICs are likely to remain opposed to stringent IP, and could even become active rule-makers. A degree of homologation between the TRIPS and the Nagoya Protocol, which has codified ABS, appears likely. In general, access to health, as one of the typically contentious domains of IP law and policy, is likely to remain a hotly debated issue. Challenges to pharmaceutical patents by developing countries that use TRIPS flexibilities will continue, as will the efforts by industrialized countries to constrain the available flexibilities through bilateral and regional trade agreements. Overall, the domain of IP law and policy is likely to remain complex and dynamic, with different interests colliding. This may reduce the chances of new multilateral law-making - for instance in the area of substantive patent law, while increasing the chances of new rule-making through domestic practice by BICs in the shadow of the TRIPS