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

DC Field Value Language
dc.description학위논문 (석사)-- 서울대학교 대학원 : 법학과 지적재산권법전공, 2016. 8. 정상조.-
dc.description.abstractThe 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 interest’s right to health may not necessarily manifest justification in the developing region as will be seen in the case of Malaysia.-
dc.description.tableofcontentsI. Introduction 1

II. Trade, Intellectual Property and Public Health : A Tripartite Interplay 5
1. Defining Patents and Access to Medicines 7
2. Access to Medicine: The Landscape Today 10
3. Conceiving and Developing a Drug 28
4. Conflict between Patents and Access to Medicine 37

III. Patent Law 49
1. International Patent Law 49
2. Rationales of Patent System 53
3. WTO/GATT System 58
4. Introduction of TRIPS 62
5. The Malaysian Patent Law 67

IV. Justification of Patents on the Interference of Access to Medicines 71
1. Human Rights Justification of Material Interests 71
2. Incentive for Future Research 73
3. Local innovations, FDIs, and Technology Transfer 79

V. Access to Medicines as a Human Right 87
1. International Human Rights Law 88
2. The Human Rights Dichotomy 89
3. Justiciability and Enforceability of Right to Health 91

VI. Attempt of a Balanced Approach: TRIPS Agreement Flexibilities 97
1. Flexibilities 97
2. The Doha Declaration 106
3. Effectiveness of TRIPS Flexibilities 110

VII. Conclusion 119
1. Possible Solutions 121
2. Challenges Ahead 127

References 133

Abstract in Korean 148
dc.format.extent1645183 bytes-
dc.publisher서울대학교 대학원-
dc.subjectIntellectual Property Law-
dc.titleTRIPS And Human Rights: Patents and Access to Medicines in the Malaysian Context-
dc.contributor.affiliation법과대학 법학과-
Appears in Collections:
College of Law/Law School (법과대학/대학원)Dept. of Law (법학과)Theses (Master's Degree_법학과)
Files in This Item:
  • mendeley

Items in S-Space are protected by copyright, with all rights reserved, unless otherwise indicated.