Making Use of Trips Flexibilities: Implementation and Diffusion of Compulsory Licensing Regimes in Brazil and India

Abstract

As their economic clout increases, emerging powers are becoming policy-shapers in their own right. This chapter evaluates the ways in which emerging countries have made use of the flexibilities available under the TRIPS Agreement to espouse their social and economic concerns. We consider one of the most significant and controversial of these flexibilities: compulsory licensing as a tool for providing access to essential medicines. Our analysis focuses on India and Brazil as the two most vocal actors on the international scene opposing strong intellectual property (IP) protection. It compares Brazil and India’s patterns of domestic implementation so as to gain a more granular understanding of the law and practice of compulsory licensing in these countries. A further aim of the chapter is to determine whether coordination, learning or emulation has taken place between these countries. If it has, does it explain the diffusion of compulsory licensing practices and, if not, what has led to the particular implementation design chosen? The results are somewhat puzzling, but all the more interesting as they reveal that India and Brazil, despite their shared IP strategies at the international level, have chosen different TRIPS implementation paths domestically. We find no evidence of coordination but of processes of learning and emulation taking place.