On the impact of TRIPS on 'least developed countries': a tale of double standards?

Abstract

As the dynamics of economic integration keep working to alter existing equilibria in international trade relations, it seems useful that the ‘timeless’ debate about how and with what effect the rules governing intellectual property rights (IPRs) intervene in relations between developed and developing countries, be focused on the least developed countries (Article 66 TRIPs). This is not simply because said countries are obviously in the direst need to ‘catch up’, but also because they constitute today’s most relevant frontier of that international – better: geopolitical – trade competition issue that still divides the ‘two worlds’ sorted out from the colonial era. Indeed, the qualification itself of countries as ‘developing’ is increasingly subject to continuous revision in the face of the growth of economies like China’s, India’s, Brazil’s and others’. And it seems all too likely that the consequent new balance of power will act as a driving factor of decline of ‘unilateralism’ in international relations – even as concerns present intellectual property (IP) international regulation, largely framed by a traditionally dominant (even diplomatically boosted) ‘Washington consensus’. As Graham Dutfield has asked, ‘Will the United States government be so pro-patent when the proportion of domestic patents granted to Indian and Chinese inventors increases dramatically?’1 However, the hypothesis that the progress of international economic integration might per se ensure a general ‘rebalancing’ of the traditionally dominant IP law patterns is far from granted. Even the present global financial and economic crisis might play ambiguously on the emerging countries’ assessment of their own geopolitical interests and consequent IP policies. Will they act as drivers of the progress of the less developed, or will they ‘forget their past’ and coalesce with the developed world in maintaining, and indeed expanding, the scope of the deep ‘asymmetries’ of terms of trade, as also enhanced by existing international (TRIPs, in particular) regulation of IP, versus many countries (African, first and foremost, but not only) still struggling to achieve a reasonable economic and technological standard in vital societal sectors? In proceeding to my analysis, I will try to avoid the trap of generic politically inspired discourse on TRIPs by calling the readers’ attention to two specific normative profiles of the Agreement which draw less attention than deserved, and that can work to aggravate the LDCs’ weak position, especially as concerns the sharing of