Compulsory Licensing and domestic policy space - A view

I had written about compulsory licensing, TRIPS and the exercise of domestic policy space, albeit in a judicial context, here. 

An interesting piece titled "Compulsory Licences for pharmaceuticals: An inconvenient truth?" by Sivaramjani Thambisetty on the recent grant of compulsory licenses in India highlights the various principles involved. As summarized by the author, the case brings to the fore these issues:

"Irrespective of the outcome of this case on appeal, the decision of the IPAB plays a crucial role in building up alternative and legitimate legal narratives around TRIPS and the ability to meet the public health needs of populations in all parts of the world. Despite the explicit legal grounds to grant compulsory licenses, they have been used relatively rarely in developing countries. There are many poorly reasoned and inadequately articulated fears that have prevented their wider use: fears that a CL will be seen as protectionist and incompatible with the TRIPS agreement; fear that it will chill foreign direct investment; or fear that a CL will draw the kind of political pressure and sanctions that were common prior to the TRIPs agreement. These fears appear in many cases to trump the reasonable legal conditions that have to be met in all cases where CLs are granted as well as widespread precedents from developed countries where CLs are used to tackle anti-competitive measures. (For instance, see here and here. )"

Issues of the violation of TRIPS, defining public interest, exercise of domestic policy space, developing country needs in the context of multilateral rules as well as public health concerns are raised here. Definitely more food for thought.

A wonderful read.

TRIPS, Compulsory Licensing and Domestic Policy Space

Attended a seminar on "Compulsory Licensing and Developing Countries" organized by the Centre for WTO studies recently. Very enlightened discussion on how a recent case of the use of the Compulsory Licensing provision is, inter alia, in consonance with the TRIPS Agreement.

Kudos to Shamnad Basheer (an authority on IP law and the founder of the hugely popular blog SpicyIP), Yogesh Pai (the force behind Trade, Law and Development Journal) and Madhukar Sinha for their brilliant presentation and interventions. It was interesting for me to see the possibility of yet another WTO provision being used as a domestic policy tool by a developing country within the framework of international trade rules to further one's national interest. I have often argued in this blog that critics of globalization tend to suggest that domestic policy space is totally curtailed in the context of the WTO, especially in the context of TRIPS. Though I am not an expert on patents and TRIPS, the seminar brought to light the fact that the use of Compulsory Licencing as per Indian Law can be reconciled with TRIPS provisions. Hence, a creative and flexible interpretation (or some would argue a literal interpretation) of Article 31 of TRIPS does provide that policy space.

This is another example that one must explore possibilities of using the existing multilateral legal framework to further one's national interest. The recognition that international economic law provides that flexibility is in itself a step forward.