TRIPS is one of the World
Trade Organisation (WTO) agreements that underpin the international trade
system. Intellectual property has been recognised, in various forms and with
different levels of protection, since the eighth century A.D. in China and the
sixteenth century in Europe.
Originally intellectual
property grew out of a perceived need to protect the expression of ideas
(cultural documents protected by the Chinese emperors, for example). However,
in Europe much of the development of the concept of intellectual property
revolved around trade marks (which are difficult to define as an expression of
a creative idea) and patents (which are concerned more with invention than
with expression). Thus copyright, which more strictly deals with expression
and is more easily perceived as an individual right, is confused with patents,
which are more the result of industrial research and investment.
This policy paper concentrates
on patents and invention and the legal protection of the investment in
invention. There are circumstances under which trade marks, or even copyright,
may affect the state’s obligations and capacity to protect the rights to life
and to health, but the current debate over access to drugs is dominated by the
question on whether or not to protect the rights of patent holders to
essential medicines in developing countries, and this policy paper will
concentrate on this aspect.
Musungu, F “The right to health in the global economy, reading human
rights obligations into the patent regime of the WTO-TRIPS agreement,” in
International yearbook of regional human rights masters programmes
(2001) 194 208 – 209.
