TRIPS And Human Rights: Patents and Access to Medicines in the Malaysian Context

Abstract

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organisation (WTO). The phenomenon was peculiar given that the administration of multilateral agreements on intellectual property rights such as the Berne and Paris Conventions are under the purview of the World Intellectual Property Organisation (WIPO) and not the WTO. TRIPS is not the standard trade negotiations. Its very existence demonstrates a close relationship between trade and intellectual property. The introduction of TRIPS was shocking as it imposes a minimum standard for intellectual property protection on all members of the WTO. More explicitly, it is an attempt to harmonize intellectual property laws between the developed, developing and least developed countries based on the protection standard of intellectual property rights in the developed region – evidently, a standard relatively high for the developing and least developed country members. The Members would now have to introduce legislation to provide for intellectual property protection in accordance with the agreement when it was something left to the members internal governance and mechanism in the past. Yet another seemingly unrelated aspect of the law comes into play with intellectual property: human rights. Too strong a patent protection will potentially undermine human rights, which of particular interest here, is the access to medicines. As TRIPS requires developing countries to provide patents on pharmaceuticals, implications of limiting access to medicines grew apparent. Certain flexibilities are provided for by TRIPS to balance the protection of intellectual property rights and public health. However, developing countries are applying these flexibilities with apprehension when addressing internal public health concerns as there is a lack of clarity in the application of these flexibilities. Furthermore, despite the flexibilities offered by TRIPS, the mandatory implementation of a single standard pharmaceutical patent protection based on private interest to the compromise of public interests right to health may not necessarily manifest justification in the developing region as will be seen in the case of Malaysia.