International Rules on Intellectual Property Rights - Case Study Example

TRIPS AND THE RIGHT TO HEALTH Name Course Unit &Code Lecture’s name Institution Town Date Introduction The global countries balancing the trade-differences based on their protections in the intellectual property due to the conflict between economic interests and human health rights through public health proves to be challenging issue that might be tragic at some point. In this situation, to fully position the right to health in the existing laws within the intellectual property revolution, member’s states involved need to conduct studies and identify what basically entails the expected rights towards the individual health in a functioning society. As such, the international business rights adjudicate the involved countries towards balancing the intellectual property rights while focusing on the management of the public health. Contrarily, the societal regulations toward health are often sacrificed by the involved majority of member states towards favoring the economic interest. Globally, people and majority of the organizations presume that health is one of the greatest goods. As such, it leads to the structuring of the rights of health whereby it can easily be accessed through health care services offered in the country and the right for individuals to enjoy the positioned pre-conditions of health. Arguably, the content being discussed involves the right to health that occurs through prioritization in the international intellectual property hence posing critical issue. The basic challenge is how the rights of health need to be incorporated either in TRIPs or different policies existing within TRIPs rights. This can easily be justified by the international human rights institutions (WTO) failing in the provision of detailed information regarding the understanding of the right to health and its involved policies (Gurry, 2012). The paper tends to analyze and offer provisions through case studies by proposing the human rights approaches in the international intellectual property revolution that might help the member states in realizing the challenges between the intellectual property law and health rights. As such, the paper analyzes the tension and failure towards the rights to health and how the challenges might easily be curbed. Additionally, the paper analyzes the TRIPs current scope of the right to health, the FTAs and the economy, environmental implications in the international trade and the policy recommendations, all developed to refute the unjustified intellectual property protection that is against the rights of health. Analysis Tensions Regarding the ability to balance trade-off between economic demands and the promotion of health rights proves to be challenging and chances of it failing are high. The main aspects that contribute to such tensions include the level of justice issued, fairness while issuing health policies and equity in service delivery spearheaded by the diverse pressure of trade, basically among the vulnerable states and continent at large. As such, controversies that is on the ground at which both the developed and developing states focus on the global undertakings of the intense management of the public health. Additionally, it can be easily argued that, it is the approach towards decision-making and priority setting that foresees the right to health while the economic considerations are seen at the forefront. As such the individual rights to health are mostly sacrificed under the international intellectual property right while the greater effort is made towards countries economic interests. Although some of the already developed countries have tried to be more illustrative of policy regarding the rights to health. A good example is the U.S.A whereby its illustrative policy on HIV/AIDS positions the security of intellectual property rights arguing that medical company and institutions promise the innovations findings on medicines and cure hence a crucial driver to attain the standard level of public health (Ellen, 2012). Additionally, the TRIPS agreement is supportive of the approach indicating that intellectual property protection is the suitable method of future accessibility to affordable health standards. However, based on the U.S.A illustrative policy and the applicability of the TRIPS agreement in the country towards protection of the implemented intellectual property, chances are that the involved commitments towards patents management might arise at an expense of access to medical facilities for the less fortunate in society (Mishra, 2014). The WTO based on trade liberalization has contributed towards the monetary and regulatory changes. The changes have an impact in health and disease by limiting the personal management over the health issues while widening the consequences of society determinants of health. As such, the international trade organizations have spearheaded member states to take strategies on the procedural actions that tend to inhibit trade activities that are likely to pose threats to human life or health rights (Alwan, 2012). Tension is foreseen when the WTO appellate countries have the ability to identify the level of protective health that it is considered to be appropriate in a given environment. As such, it is likely that the member states might choose the desired level of health management that basically fails to influence the economic interest of the members through selectivity approach. Additionally, TWO Declarations adjudicated that TRIPS agreement needs to be implemented and positioned in a way that it easily supports the WTO members rights to protect the members right either on issues regarding the health and access to medication for all. Additionally, the agreement needs to adjudicate the members state to apply exceptions in the TRIPS agreement through licensing provisions so as to address health rights crisis nationally while in the position to determine grounds at which the licenses are issued. In the year 2003, the WTO council positioned its member state to align its required licenses within its own pharmaceutical company, design the unoriginal versions of treatment and later distribute the health related products to the states that are in demands of such medications (Froman, 2015). As such, it can easily be stated that the decision tends to resolve the technical legal problem that occurred when Doha Declaration report failed to indicate how the required licensing should be filed to assist states that are short of the manufacturing facilities so as to meet the demand of the medication expected. Failures Based on the international trade laws structured to best suit the TRIPS while observing the Doha Declaration structured regulations in early 2003, the member countries are assigned rules to have the flexibility on imposing powers that prevent the international trade to secure the rights of human health (Halajian, 2013). Additionally, the laws are structured to issue trade sanctions especially during the phases whereby the country faces the health issues crisis. Arguably, it can be observed that no vacant is positioned for the health requirements structured within the global laws in the business regimes. As such, structuring new policies need to accommodate the needed exceptions to the basic demands of liberation business that might inhibit the identified failure. As such, the inclusive of the provisions would play a major role in the provision of affordable health care rights by eradicating the health crisis. TRIPS Scope agreement towards Health Rights The TRIPS agreements inclusive of other international trade documents are structured in a way that spearheads challenges of ambiguity and non-structured of its application into functionality. Based on the Doha Declaration, its member countries have powers to state the ground for the issuance of the licenses without a structure provision on how to examine the content of the field of the national emergency (Correa, 2012). Based on the scope, it can critically be evaluated that the member states have the possibility to interpret the public issue as not an emergency hence prioritizing the economic interest over the public health right without layout justifications and vice versa. Additionally, the Doha Declaration lacks the validity to expound on the various diseases known to be pandemic or contributes towards health crisis management such as HIV/AIDS, tuberculosis and malaria, while a state can choose to identify obesity as health crisis while other members fail to recognize it due to the ambiguous scope of the TRIPS agreement. As such, it would be wise to restrict the scope of agreement whereby specified health-related issues are identified as the national emergency based on global health crisis. A good case study is the U.S.A state and South Africa State. Both countries showcased the disputes based on compulsory licensing. The U.S.A government compulsory licensing concession focused on HIV/AIDS towards the South African government and not licensing the country towards the pharmaceutical manufacturing (SEATINI AND CEHURD, 2013). Critically, the U.S government might not have backed down towards South Africa through sections on the legality of compulsory licensing but rather among other factors to be considered such as harsh political pressure hence the interest of the country rather than rights towards health standards. Thailand case study is easily positioned on issues regarding the compulsory licensing. The patentability intervention exclusion regarding the necessity in the article 27(2) of the TRIPS agreement, Thailand decision posed for the definition of flexibility that enabled the country to determine the right to health and the economy interest based on necessity (Turk, 2013). As such, Thailand supplied its compulsory license for patented heart challenges as a pandemic disease hence not a stricter standard for the international property. The approach saw the U.S government positioning Thailand on its much to watch list activity by issuing sanctions while additionally, a top pharmaceutical institution stopped producing new drugs in Thailand state (The IP Commission Report, 2013). Regarding the above findings, it doesn’t imply that the international business institutions need to offer a list of pandemic disease only. As such, restructuring of the TRIPS agreement should focus on theoretical foundation and justifications that easily identify the national emergencies that are closely associated with the public health and alters the rights towards the public health. The FTAs and the Economy in Health Rights The bilateral free trade agreements (FTAs) positions the securing of the intellectual property agreement much more strictly in comparison to the level quality positioned by the TRIPS agreement hence the enhancement approach is known as TRIPS-plus. Though based on the FTAs provisions to enhance the patent-arising barriers for majority of the society accessibility to the cheap generic health products while the FTAs continues’ to incur illegality on the rights to health. The FTAs exclusivity of the data prevents the generic companies producing health products into the market in a timely manner so as to meet the demands. The challenge arises because the generic companies are not in a position to use the previous collected test information that needs to be filed in a new document in health manufacturing company’s purposefully for the position to apply for the market approval. As such, the majority of the social class family especially the middle and the lower social economic position are denied the chance of accessing the drugs when needed. Additionally, the data exclusivity impacts the government towards the issuance of the required license which is regarded as a valuable mechanism towards reducing of the medical products and facilities hence meeting the demands of the different economic class in the society. Based on the case study of U.S. and Malaysia FTA, the United States government advised the Malaysia regulatory agencies to advocate for the patent infringement while the U.S ignores that the Malaysian Government has the capability of analyzing the patent right (Bowie, 2013). The approach through the issued law extends that the duration of the original owner’s market exclusion that tends to prolong the time phases of copy pasted health products to move into the market and accepted. Additionally, the FTAs includes the applicability of international property flexibility hence perceived as critical law analysis hence the TRIPs laws ability in curbing health issues whilst it is effectively restricting the society people from the access to affordable medical requirements (Policy Brief, 2013). As such, it can easily be argued that, applying limited levels in the international property rights standards in the TRPs signed documents and powerful intellectual property on the health products, the U.S government might easily succeed in the application of the required documents of both the TRIPs regulations and the Doha document. Critically, through analysis, the minimal level identified in the TRIPs agreement tends to poses the difficulties in avoiding the equality towards the ability to manage the health rights and the intellectual property economy situated within the laws of TWO. Regarding the economic development of developing and developed countries, the FTAs pose an impact in the power asymmetries of different member states. It is the asymmetric power that positions the countries to showcase threats to its members, sanction its aids and proliferation of bilateral investments within the third world countries. In other words, the economic coercion is a contributing element towards the failures of the majority developing states towards the provision of affordable health care services that are of standard. Arguably, the situation can easily be rectified by involving both the developed and developing countries to select an agenda criteria regardless of the countries voluntarily personalities. As such, the countries will be able to move forward and examine the existing-trade differences within the intellectual property and public health rights issues. Contrarily, based on the scope of the intellectual property rights that is ambiguous and has unstructured provisions, prevents the capability of designing an independent assessment approach that can be monitored hence posing adverse effects of public health issues. Environmental Implication of International Trade Policy in Health Right The current environment positions the existing international property right indicating that the right to the individual health overcomes the economic interest of various countries. Through analyzing the various humanitarian laws and bodies involving various institutions, the global agreement of social in society, corporate economic society and cultural rights indicate how states international trade policy fails to secure and achieve the right to health mentioned within the global human right bodies. Additionally, it is the environmental implication that identifies the purposes of the international trade policies through prejudice, stereotypical attitudes and the irrational fear that might legitimate the health rights of the societal beings. As such, the evaluation of the policy purpose assists in analyzing the impact of the country intervention regarding the right towards health. Policy Recommendation Conclusively, the TRIPs revolution based on its scope that tends to be ambiguous and vague needs to offer a welcoming flexibility and discretions to its member states to easily impose a sign to intellectual property right especially when it conflicts with the right to health. For the settlement of the conflict, the members states need to apply the human rights procedural towards the international intellectual property regime, the involved states need to come up with objectives and design monitor able standards that might be helpful to manage the conflicts arising within the TRIPs and the individual rights to health. The recommended policy should observe the country varied obligations on the required rights to the individual health in society. As such, having structured laws need to focus on member state to realize the legal obligation assigned towards the basic requirements of rights of health while undergoing ethical obligation to continue realizing the non- moral objectives towards the rights to health. As such, countries have the obligation to adequately manage, secure and achieve rights to health standards based on the importance of the priority objectivity and the non- identified objective towards the right to health. As such, based on the TRIPs policy, the policy needs to cover minimal health standards of society and the wider scope of health standards in a similar society. Conclusion Conclusively, it is arguable to pinpoint that the burden of the right to health might outweigh the different pursued economic interests. As such, it might be helpful to identify and analyze the potential infringements within TRIPs that then to impact the health care rights. Through the process, various involved bodies will be able to clarify and state the purpose of the TRIPs hence not applied to cause impact conflict within the freedom of health. As such, clear policies need to be implemented. The approach would imply that if the trade-off relationship indicates that the weight of the restricted health freedom is much more in comparison to the economic interested, the state need to abandone the TRIPs policy and structure a new policy. Additionally, through assessments, the involved states through theoretical basis within the society hence the ability to settle conflicts between the TRIPs and the right to health. References List Alwan, A. (2012) Global Status Report of World Health Organization on Non- Communicable Chronic Disease. Bowie, N. (2013) M’sians Must Reject the U.S Trade Deals. Correa, C. (2012) Implications of the Doha Declaration on the TRIPS Agreement and Public Health. The Health Economics and Drugs, EDM Series No. 12 Ellen, F. (2012) The Global of Politics of Pharmaceutical Monopoly Power. Drug Patents, Access, Innovation and the Application of the WTO Doha Declaration on TRIPs and Public Health. AMB Publishers, Diemen, Netherlands. Froman, M. (2015) The 2015 National Trade Estimates Report on Foreign Trade Barriers. Office of the United States Trade Representatives. Gurry, F. (2012) The Enforcement of the Intellectual Property Right. A Case Book, 3rd Edition. World Intellectual Property Organization. Halajian, D. (2013) Inadequacy of TRIPS and the Compulsory License: Why Broad Compulsory License is not a Viable Solution to the Access of Health Rights. Brooklyn Journal of Law, Vol. No. 8, Issue. 3, Article. 7, p. 1192. Mishra, L. (2014) Medicine and Marginalization: How Intellectual Property Laws Provides a Generic Solution to a Grave Human Rights Problem. International Human Rights Working Paper Series, Vol. 2, No. 6, p. 28. Policy Brief. (2013) Access to Challenges for HIV treatment among People with HIV and Key Population in Middle –Income Countries SEATINI AND CEHURD. (2013) Literature Review on Bottlenecks to Essential Medicine Production and Procurement in East and Southern Africa. Regional Network in Health in East and Southern Africa. Center for Trade Policy and Law EQUINET, Paper No. 6 The IP Commission Report. (2013) The Report of the Commission on the Theft of American Intellectual Property. The National Bureau of Asian Research, U.S.A. Turk, M. (2013) Bargaining the Intellectual Property Treaties: The Case for a Pro-Development Interpretation of TRIPS but not TRIPS PLUS. Journal of International Law and Politics, Vol. 42, No. 98, p. 983. Read More