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Intellectual Property Rights Series

Rethinking IPRs and
the TRIPS Agreement

Martin Khor

TWN
Third World Network

Rethinking IPRs and the TRIPS Agreement

Martin Khor

TWN

Third World Network

Rethinking IPRs and the TRIPS Agreement
is published by
Third World Network
121-S, Jalan Utama,
10450 Penang, Malaysia.

© Third World Network

Printed by Jutaprint
2 Solok Sungei Pinang 3, Sg. Pinang
11600 Penang, Malaysia.

1st Printing 2001
2nd Printing 2003

CONTENTS
1.

Introduction

2.

Some Serious Problems Caused by IPRs and
TRIPS
a) Effects on consumer access to essential and
other products
b) Adverse effects of TRIPS on development and
industries in developing countries
c) IPRs, biological materials and biopiracy
d) Questionable claims and unkept promises

7
10
12

Conclusions and Proposals

14

3.

References

1

4
5

18

1 I

ntroduction

THE Trade-Related Aspects of Intellectual Property Rights Agreement
(TRIPS) was established as part of the World Trade Organisation (WTO)
in 1995. It established minimum standards for a set of Intellectual
Property Rights (IPRs) that WTO Members have to institute through
national legislation. Many developing countries had tried to resist the
entrance of IPRs as a subject in the Uruguay Round, and had then tried
to limit what they saw as the more damaging aspects of the proposals
coming from developed countries. But at the end of the Round, the
developed countries (and the companies and industries of the North that
were the driving forces and lobbies behind the proposals and negotia­
tions) succeeded in getting most of what they had hoped for in the TRIPS
Agreement. TRIPS has been considered by some economic experts of
developing countries as the WTO agreement that has the potential of
causing the most damage to the prospects for development.
In the six years since TRIPS was established, there has been increasing
evidence of many social and economic problems (some of them quite
dramatic and very serious), caused by the introduction of stricter IPRs
laws as a result of implementation of TRIPS. This is leading to increased
public awareness around the world that the present IPRs system is
heavily tilted in favour of IPRs holders and against the public interest.
This awareness is giving rise to disenchantment with the IPRs regime and
with TRIPS. In an increasing number of cases, this dissatisfaction has
given rise to public outrage and street demonstrations.

1

Among the problems are:
•

The jacking up of prices of consumer products (including some
essential items such as medicines) by companies owning IPRs,
reducing consumers' access and affecting their welfare, health and
lives;

•

The high cost to firms in developing countries which have to pay
high royalties for use of technology, or are unable to get permission
from IPRs holders to use modern technologies, thus affecting a
country's ability to modernise; and

•

The phenomenon of "biopiracy" in which corporations (mainly of
the North) have been able to patent biological resources and the
knowledge of their use (most of which originate in the South).

In the first case, consumers in developed and developing countries lose
out. In the second case, producers in developing countries are severely
constrained from upgrading their technology, ha the third case, farmers
and indigenous people (especially in the South) have their knowledge
appropriated, and on top of that, their ability to continue to use their
resources and knowledge may be adversely affected, and consumers
everywhere also lose out. In all cases, the IPRs holders, which are mainly
large corporations of the North, are given the special privilege of mo­
nopoly rights which prevent competition from other or potential produc­
ers, and are enabled to obtain super and monopoly profits. This rentier
income is at the expense of consumers and the fulfilment of human needs;
other producers; researchers and scientists, who in many cases are
prevented or constrained from making use of patented materials; eco­
nomic development, as well as the environment.

As the imbalances and problems generated by TRIPS become more
obvious, there is mounting public demand for change. The range of
demands include: more time, flexibility and freedom to choose options
2

for developing countries in the implementation of the agreement; re­
straint by developed countries and their corporations from taking action
against developing countries; a review and revision of TRIPS to remove
the problematic aspects and to enable better operationalising of positive
aspects (such as provisions on technology transfer); as well as the
removal of TRIPS altogether from the WTO.

3

2

Some Serious Problems
Caused by IPRs and TRIPS

IPRs are not "natural rights" but rather privileges granted to inventors to
reward them for inventions. This conferment of the privilege of mo­
nopoly is supposed to be an incentive for innovation, and to enable
recovery of cost. Any IPRs system has to balance the privilege given to
inventors and corporations owning the IPRs with the public interest. The
public interest includes consumer welfare, the right of other producers to
use technology, the right to development, and environmental protection.

The TRIPS Agreement has resulted in a very significant shift in the
balance in the IPRs regime away from the public interest towards the
monopolistic privileges of IPRs holders. Since TRIPS is a legally-binding
international framework enforceable in the WTO through the threat of
trade sanctions, it has been able to effectively disseminate a model of IPRs
regime throughout the world to its over 130 Member states. TRIPS has
therefore instituted a basically "one-size-fits-all" system of IPRs, where
similar standards are set for countries of differing levels of development.
It is in the developing countries where the unsuitability and effects of
many of the inappropriate provisions are most adversely and acutely felt.
And even in the developed countries, consumers, the public and the
scientific community in general also suffer adverse effects.

4

The following are some of the problems caused by TRIPS and its model
of IPRs regime:

(a) Effects on consumer access to essential and other products

Consumers are becoming aware that prices of many IPRs-protected
products are jacked up, in some cases many times above the cost of
production, because the corporations owning a patent or copyright are
enabled to prevent competition from other or potential producers. The
IPRs owners enjoy super and monopoly profits, whilst consumers have
reduced access.
In the pre-TRIPS period, countries were able to set their own IPRs policies
and legislation. Most developing countries exempted essential consumer
items, especially pharmaceutical drugs, food products and biological
materials (including seeds and plant varieties) from patentability. Under
TRIPS, exclusions can be made only for products where the option for
exclusion is explicitly stated. Drugs and food products are not explicitly
mentioned as products that can be excluded; some biological materials
and processes appear to be included as items that must be allowed for
patenting; and plant varieties must also be allowed to be protected.
Prices of some consumer products are fixed by companies owning IPRs
far above the levels that would prevail had there been free competition.
The most obvious and outrageous example is pharmaceutical drugs, as
shown dramatically in the recently highlighted case of AIDS medicines.

A year's supply of a combination of AIDS medicines costs USD10,000 to
15,000 in the USA. The price for a similar combination offered by an
Indian generic drug producer is around USD300. The margin of profit for
the branded product covered by patent is thus astronomical. TRIPS
requires that if a patent for a medicine has been registered in a developing
country, other producers are not permitted to produce, import or sell the

5

medicine (without the permission of the patent holder). Patients in
developing countries will thus be even more unable to afford medicines
that are patented, as the AIDS drugs example shows.
TRIPS does allow that in the case of "national emergency" a government
is allowed to make use of "compulsory licensing" provision to suspend
the patent right, and thus allow production or import of the product.
However, when South Africa introduced such legislation in respect of
AIDS drugs, it was put under pressure by some developed countries, and
then sued in court by over 30 transnational drug firms. Developing
countries are thus coming under pressure not to exercise their right,
under TRIPS, to relax IPRs in certain circumstances. This kind of bullying
has given TRIPS, which already has a bad name, an even worse image as
it has become obvious that the TNCs that own patents, and governments
of some rich countries, are so adamant in putting the right to make
monopoly and super profits above the right of patients to health and life.

When public outrage over this was expressed in South Africa and other
developing countries, and echoed in developed countries through re­
ports and actionsby groups such as Medicine Sans Frontier, Oxfam, RAFI
and GRAIN, and through the media, one of the drug firms announced it
would supply a combination of two AIDS drugs at USD600 to developing
countries, a price level at which, it said, it would not make a profit. There
was thus an implicit admission that the profit margin for selling the drug
at USD10,000 and above (in the US) is astronomical. The reduction in the
price for developing countries is read by some as an attempt by the
company to limit the public outrage, save the patent system from a
possible basic challenge, and offset the need of developing countries to
exercise their option of compulsory license.

In the case of another product, computer software, the prices are also
usually far above the cost of production. If they have to purchase
software products at the high market prices, most consumers in develop­
ing countries would be unable to afford them, and this would shut them
6

out of an important part of the "knowledge society" and be a major
contribution to the global "digital divide." In many countries, consumers
have obtained copies of software freely or cheaply. However there is
increasingly strict enforcement of copyright laws, made mandatory by
TRIPS, in many countries, with raids by government enforcement agen­
cies together with representatives of multinational software companies.
As enforcement becomes more effective, the would-be users of software
(individual consumers as well as companies and educational institu­
tions, etc.) will find their access shut off or significantly reduced.
(b)

Adverse effects of TRIPS on development and industries in
developing countries

Historically, technology transfer has played a key role in industrialisa­
tion, and a large part of this transfer took place by firms imitating or
copying the technologies used by others. Producers in developing coun­
tries will find it difficult or impossible to copy technology which is IPRs
protected when TRIPS and associated national legislation takes effect.
Domestic firms that wish to make use of the technology would have to
obtain permission from the patent holder (which may or may not grant
the permission, even if the applicant intends to pay the commercial rate),
and pay expensive royalties. Many firms may not be able to afford the
fees; and those that can would find that the high cost reduces their ability
to be competitive. The TRIPS IPRs regime thus places high obstacles to
developing countries' efforts to upgrade technology levels, to modern­
ise, and to industrialise.

The one-size-fits-all or rather one-standard-fits-all approach of TRIPS is
a great disservice to developing countries. Many of the present-day
developed countries did not adopt IPRs legislation, or strict IPRs stand­
ards, when they were going through the stages of development that the
developing countries of today are attempting to go through. In Switzer­
land a hundred years ago, as a rule, Swiss industrial inventions could be
patented abroad where patent legislation was in effect, but as Switzer­
7

land had no patent laws, Swiss industries were free to copy foreign
inventions without restrictions (Gerster 1999). When most of the nowdeveloped countries established their patent and other IPRs laws in the
19th century, all of these IPRs regimes were highly "deficient" by the
standards of today (Chang 2000). Few of them allowed patents on
chemical and pharmaceutical substances until the last decades of the 20th
century. Pharmaceutical products were patented only in 1967 in West
Germany and France, 1979 in Italy and 1992 in Spain. Chemical sub­
stances were patented only in 1967 in West Germany, 1968 in Nordic
countries, 1976 in Japan, 1978 in Switzerland and 1992 in Spain (Chang
2000).

If at their stage of development the developed countries had had to
adhere to the minimum standards set by TRIPS, it is most doubtful many
of them would have attained the levels of technology and industrialisa­
tion that they achieved. Yet the developing countries of today are asked
to adhere to IPRs standards that would effectively prevent them from
taking the same technology path as the developed countries. It is hard to
avoid the conclusion that TRIPS is a protectionist device designed not
only to advance the monopoly privileges of the large corporations but
also to prevent developing countries from being successful competitors
to the developed countries.
As Correa (2000: pl8-19) concluded: "The strengthening and expansion
of IPRs are likely to adversely affect the conditions for access to and use
of technology, and thereby the prospects for industrial and technological
development in developing countries...Under the TRIPS agreement,
reverse engineering and other methods of imitative innovation - that
industrialised countries extensively used during their own processes of
industrialisation - shall be increasingly restricted, thereby making tech­
nological catching-up more difficult than before."

8

An example of difficulties facing local firms in developing countries is
that of Indian industry attempting to adjust to India's implementation of
its obligations under the Montreal Protocol, in which Parties have agreed
to phase out their use of CFCs and other ozone-damaging substances by
target dates. Indian-owned firms have been producing CFCs that are
used in the manufacture of refrigerators and air-conditioners in India.
The Indian CFC producers wanted to shift from making CFCs to an
environmentally-sound substitute, HFC 134a. A few companies in devel­
oped countries control the patents to HFC 134a. An Indian company
seeking access to the technology of producing HFC 134a was quoted a
very high price (USD25 million) by a transnational company holding the
patent. The supplier proposed to the Indian firm two alternatives to the
sale: that it be allowed a majority share in a joint venture with the Indian
firm; or that the Indian firm agree to restrict its exports of HFC 134a
produced in India. Both options were unacceptable to the Indian firm,
and the quoted price was also far too high as it was estimated that the fee
should at most have been USD2 to 8 million (Watal 1998).
This case shows not only the difficulty for a developing country firm and
industry to modernise its technology, but also for a developing country
to meet its commitments under a multilateral environment agreement
(MEA). Even if a local firm is willing to pay the market rate to obtain
permission to use patented technology, the patent holder can quote an
unreasonably high price, or impose unacceptable conditions, or even
refuse permission outright. Moreover, although some MEAs may have
financial-assistance, technology-transfer and technology-assisting clauses
supposedly to benefit developing countries, in practice developing coun­
tries are finding that the developed countries may not fulfil their obliga­
tions on assistance, and developing countries find difficulties and disad­
vantages in fulfilling their environmental obligations.

9

(c) IPRs, biological materials and biopiracy
Another major controversy is the way TRIPS has facilitated the patenting
of life-forms as well as "biopiracy", or the exploitative appropriation by
transnational companies of the biological resources and traditional knowl­
edge of local communities based mainly in developing countries.
Before TRIPS, most countries had excluded patenting of life-forms,
biological resources and knowledge on their use. This changed with
TRIPS. Article 27.3b of TRIPS allows patent exclusion only for plants and
animals (but not microorganisms) and exclusion for essentially biologi­
cal processes for production of plants and animals (but not for nonbiological and microbiological processes). Thus it appears that WTO
Members have to allow patents for certain types of life-forms and living
processes; and it is being debated whether this also applies to naturally
occurring life forms and processes. If it applies, then the basic foundation
on which the patent system rests is undermined, for patents must be
given for what are at best discoveries and not inventions. In any case,
there is no scientific basis for allowing exclusions for certain organisms
and not for others, and for certain living processes and not for others. This
contradiction sticks out like a sore thumb.

Several scientists also argue that there is no scientific basis for the
patenting of life forms even if they are genetically modified. The patent
system is an inappropriate method for rewarding innovations in the field
of biological sciences or in relation to biological materials and processes
(Shiva 1995, Tewolde 1999, Ho and Traavik 1999). A fundamental cri­
tique of life patenting has been made by B. G. E. Tewolde, the African
scientist, who is also general manager of the Ethiopia Environment
Authority, and chairperson of the Africa Group in the Convention on
Biological Diversity (CBD). According to Tewolde (1999), the patent
system was drawn up to reward innovation in relation to mechanical
processes, and this system is inappropriate when applied to biological
processes as living things are not invented, and they also reproduce
10

themselves, unlike mechanical things and processes. This is also true of
genetically modified organisms. He further argues that discoveries relat­
ing to life forms and living processes should also be rewarded, but not
through the patent system. "Distorting the meaning of patenting in order
to make it applicable to life only serves to attract the rejection of the whole
system. Who ever worried about the legitimacy of patenting before the
1990s, before it became known that the USA was allowing the patenting
of living things? But now, opposition is growing all the time, opposition
not only to the legitimacy, but also to the legality of patenting."

Article 27.3b also requires Members to grant IPRs for plant varieties,
either through patents or a sui generis system. Previously, few developing
countries granted IPRs protection for plant breeding and plant varieties.
TRIPS opens the road for either patenting or a system of plant breeders'
rights that may restrict the right of farmers to save, exchange and use
seeds.
Many developing countries in the WTO have argued that Article 27.3b
should be amended. The Africa group has proposed that the TRIPS
review process "should clarify that plants and animals as well as micro­
organisms and all other living organisms and their parts cannot be
patented, and that natural processes that produce plants, animals and
other living organisms should also not be patentable." It also proposed
that the review clarify that in implementing their option on plant varie­
ties protection, developing countries should be allowed to institute a sui
generis law that protects the knowledge and innovations of indigenous
and local farming communities, and provides for continuation of tradi­
tional farming practices including the right to save, exchange and use
seeds and sell their harvest.
Meanwhile TRIPS has opened the floodgate to the corporate patenting of
life, and to biopiracy. The London-based Guardian's special report on
The Ethics of Genetics (15 November 2000) found that as of November
2000, patents are pending or have been granted by 40 patent authorities

worldwide on over 500,000 genes and partial gene sequences in living
organisms. Of these there are over 9,000 patents pending or granted
involving 161,195 whole or partial human genes.
Patents have been given on genes or natural compounds from plants that
are traditionally grown in developing countries (including rice, cocoa,
cassava) and on genes in staple food crops originating in developing
countries (including maize, potato, soybean, wheat). Patents have also
been granted on plants used for medicinal and other purposes (e.g. as an
insecticide) by people in developing countries. Examples include a US
patent for the use of tumeric for healing wounds (this was successfully
challenged by the India government on the ground that it has been
traditionally used by Indian people for healing wounds), and the patenting
by American scientists of a protein from Thai bitter gourd after Thai
scientists found its compounds could be used against the AIDS virus.

The thousands of cases of life patents and the increasing evidence of
biopiracy has aroused indignation among a wide range of people and
institutions, including governments of the South and their delegations at
the CBD and the WTO; organisations of farmers and indigenous people
worldwide, particularly in the South; development NGOs in the South
and North; the environment community; and also the human rights
community. As Tewolde noted, the controversy has threatened the
legitimacy and questioned the legality of the IPRs system and TRIPS.
(d) Questionable claims and unkept promises
Disenchantment over TRIPS and the IPRs regime has also arisen because
some of the claims made on behalf of a strict IPRs regime have not been
borne out, whilst some promises of benefits have not been fulfilled.

It was claimed that a strict IPRs regime is needed in order to promote
innovation and research by providing incentives. However, there has
been criticism from many quarters that in fact IPRs discourage or help to
12

prevent scientific research. In developing countries most patents are held
by foreigners, and local R and D can be stifled since the monopoly rights
conferred by patents restrict the research by local researchers (Oh 2000).
Dr. Gahuur Alam (1999) of India points out that the changes to the IPRs
policies in developing countries raises concerns that a strong IPRs system
will be "extremely detrimental to local research" in the area of new plant
varieties and genetically engineered plants. Researchers and librarians in
the North are also concerned that current IPRs practices and trends in
information technology will constrain and stifle the flow and use of
information.

TRIPS has many references and provisions that deal with technology
transfer. Article 7 on objectives states that IPRs should promote innova­
tion and transfer technology. Article 66.2 on LDCs states that developed
countries shall provide incentives to their enterprises and institutions to
promote technology transfer to LDCs. However, little or nothing has
been done by developed countries to either provide concessions, or
provide incentives to their enterprises to transfer technology to develop­
ing countries.
There has thus been an erosion of confidence in the sincerity or intentions
of developed countries to fulfil their claims and obligations, and corre­
spondingly an erosion of confidence and image of the IPRs system and of
TRIPS.

13

3 C

onclusions and Proposals

THE IPRs system under the influence of the TRIPS framework has tilted
the balance between owners and users of technology and knowledge
much too far in the favour of IPRs holders. Moreover, in the balance of
rights and obligations of IPRs holders, their privileges and rights have
been overly protected whilst their obligations to social and economic
welfare of the public, and to technology transfer, have been under­
fulfilled or unfulfilled. There are also asymmetries between North and
South in the balance of benefits and costs.
Developing countries are overwhelmingly dependent on innovations
made in the North; patent applicants from developing countries consti­
tuted less than 2 per cent of all applicants in the US between 1977 and
1996; and the developed countries dominate the trade in medium and
high tech goods. Thus, the worldwide establishment of strict IPRs stand­
ards under TRIPS will result in benefits accruing overwhelmingly to the
developed countries, paid for by the increased costs accruing to the
developing countries. It is time to redress these imbalances and
asymmetries.

The following are some proposals:
1.

14

Many developing countries are facing difficulties in implementing
TRIPS at the national level. Taking this into account, the transition
period for developing countries should be extended until after a
proper review of TRIPS is carried out and appropriate changes are
made to the agreement.

2.

In implementing TRIPS through national legislation, developing
countries must be allowed the flexibility to choose between different
options, without undue and inappropriate influence asserted on
them. The various options should be explained to developing coun­
tries, together with the advantages and disadvantages of each
option. Within the scope and space enabled by the flexibility and
provisions of TRIPS, developing countries should make strong
efforts to choose the options that are least damaging and that best
protects national and public interests (TWN 1998; Correa 1998).

3.

Pressures should not be put on developing countries either through
bilateral means or regional arrangements or the process of accession
to WTO, to get them to agree to implement IPRs standards even
higher than those in TRIPS. Such pressures have been and are being
applied by some developed countries.

4.

Similarly, pressures must not be put on developing countries to give
up the use of options available to them under TRIPS. For example,
pressure had been applied to some countries, including South
Africa, not to exercise their right to resort to compulsory licensing in
the case of medicines to treat AIDS patients.

5.

The mandated review of Article 27.3b of TRIPS should resolve the
artificial distinctions made between certain organisms and biologi­
cal processes (which are allowed exclusion from patentability) and
other organisms and processes which are not allowed exclusion.
This may be resolved through following the proposal of the Africa
Group in WTO: that the review should clarify that all living organ­
isms and their parts, and all living processes, cannot be patentable.
This clarification can be done through a suitable amendment to
Article 27.3b. Changes in national legislation should be carried out
in line with this amendment. The transition period for implement­
ing Article 27.3b should be extended to five years after the review is
completed.
15

6.

Plant varieties are part of living organisms. The exclusion of
patentability should also apply to them. Countries can however
devise a suitable system of reward or incentive for plant breeders, if
they so desire, but this should not be compulsory and should be left
to each country to decide on; such a system should however not
compromise the rights and practices of local communities. Coun­
tries may also wish to institute policies and legislation that protect
and promote traditional knowledge and the rights of local commu­
nities to their resources and their knowledge.

7.

In relation to medicines that are needed for serious and life-threat­
ening ailments, countries should be allowed the flexibility to ex­
clude from patentability. Indeed, countries should be allowed to
exempt pharmaceutical drugs in general and the drug industrial
sector from being subjected to patent protection. This can be done
through an amendment to TRIPS. (A proposal by developing coun­
tries, that "the list of exceptions to patentability in Article 27.3b of
TRIPS shall include the list of essential drugs of the WHO", is part
of para 21 of the Draft Seattle Ministerial Text of 19 Oct 1999 and is
under the active discussion on implementation issues currently
before the WTO.)

8.

Countries should also be allowed to exempt environmentally-sound
technology from patentability.

9.

The transfer of technology provisions and objectives of TRIPS
(including Articles 7 and 8 and 66.2) should be made legally obliga­
tory and operationalised. Developed countries and their enterprises
should be obliged to put into effect the transfer and dissemination of
technology to developing countries.

10. Developing countries should also be given flexibility to exempt
certain products and sectors from IPRs protection (or have a longer

16

transition period), on grounds of public welfare and the need to
meet development objectives.

11. Finally, WTO Members should seriously reconsider whether TRIPS
belongs to the WTO. IPRs is not a trade issue. Moreover high IPRs
standards constitute a form of protection that prevents or constrains
the international transfer of technology; they constitute the institu­
tionalising of monopoly privileges that result in rentier incomes and
that restrains competition and promotes anti-competitive behav­
iour. It is an aberration that TRIPS is located in a trade organisation
whose main functions are supposed to be the promotion of trade
liberalisation and conditions of market competition, whilst TRIPS is
protectionist and curbs competition. The reality is that TRIPS was
placed in the WTO because the developed countries wished to make
use of its dispute settlement system in order to ensure effective
enforcement of disciplines on developing countries.
Recently, there have been calls made to governments to transfer
TRIPS out from the WTO. The joint NGO statement, "WTO: Shrink
or Sink", formulated in March 2000 and endorsed by a thousand
NGOs worldwide, has called for the removal of TRIPS from the
WTO. Recently, in a letter to the Financial Times, the free-trade
economist, Jagdish Bhagwati, has argued that intellectual property
protection does not belong in the WTO, and declared support for the
NGO statement "asking for the IP leg of the WTO to be sawn off". He
argues tha t the WTO must be about mutually gainful trade, whereas
intellectual property protection is a tax on poor countries' use of
knowledge, constituting an unrequited transfer to the rich produc­
ing countries. "We were turning the WTO, thanks to powerful
lobbies, into a royalty-collection agency, by pretending, through
continuous propaganda that our media bought into, that somehow
the question was 'trade related'," Bhagwati remarked. The review of
TRIPS should therefore include on the agenda the question of its

17

removal from the WTO so that that trade organisation can return to
its mission of promoting balanced trade relations.

References
Chang, Ha-Joon, 2000, "Intellectual property rights and economic development:
historical lessons and emerging issues".
Correa, Carlos, 1998, "Implementing the TRIPS Agreement: General Context
and Implications for Developing Countries", Third World Network, Penang.
Correa, Carlos, 2000, "Intellectual Property Rights, the WTO and Developing
Countries", Third World Network, Penang.
Gerster, Richard, 1999, "Patents and development", Journal of World Intellectual
Property, July 1998.
Ho, Mae-Wan and Terje Traavik, 1999, "No scientific basis for patenting under
TRIPS Article 27.3b", Third World Resurgence, June 1999, Third World
Network, Penang.
Oh, Cecilia, 2000, "IPRs and biological resources: implications for developing
countries", Third World Network Briefing Paper.
Shiva, Vandana, 1995, "Patents on life forms: playing God?", Third World
Resurgence, May 1995, Third World Network, Penang.
Tewolde E. G., 1999, "Patenting life is owning life", Third World Resurgence, June
1999, Third World Network, Penang.
Third World Network, 1998, "Options for Implementing the TRIPS Agreement
in Developing Countries", Third World Network, Penang.
Watal, Jayashree, 1998, "The issue of technology transfer in the context of the
Montreal Protocol: Case study of India".
WTO, "Preparation for the 1999 Ministerial Conference: Ministerial Text Re­
vised Draft", 19 October 1999.

18

RETHINKING IPRs AND THE TRIPS AGREEMENT
The Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRI PS) has been considered by some economic experts of developing coun­
tries as the World Trade Organisation agreement that has the potential of
causing the most damage to prospects of development. In the six years
since TRIPS was established, there has been increasing evidence of many
social and economic problems caused by the introduction of stricter intel­
lectual property rights (IPRs) laws as a result of the implementation of
TRIPS, as well as rising public disenchantment worldwide.

This paper argues that the current IPRs system is heavily tilted in favour
of IPRs holders and against public interest. According to the author, the
worldwide establishment of strict IPRs standards under TRIPS will result
in benefits accruing overwhelmingly to the developed countries, paid for
by the increased costs accruing to the developed countries. Tracing the
implications for consumers, local and indigenous communities, and pros­
pects for development and industrialisation in the South, the author as­
serts that it is time to redress the imbalances and asymmetries of the present
IPRs regime and the TRIPS Agreement.

MARTIN KHOR is the Director of Third World Network, a network of several
NGOs in different parts of the developing world. An economist trained in Cam­
bridge University who has lectured in economics in the Science University of
Malaysia, he is the author of several books and articles on trade, development and
environment issues.
He is also the Honorary Secretary of the Consumers' Association of Penang in
Malaysia and a board member of the International Forum on Globalisation. He
was formerly a Vice Chairman of the UN Commission on Human Rights Expert
Group on the Right to Development and a consultant in several research studies
under the United Nations.

TWN INTELLECTUAL PROPERTY RIGHTS SERIES
is a series of papers published by Third World Network to provide
a critical analysis of intellectual property rights protection from a
Third World perspective. A particular focus is given to the WTO
Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) and its implications for developing countries.

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