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VI.c)
What is next?
Whereas the adoption of TRIPS was a one big change in the international system
of IP protection, the RTAs are introducing the changes rather gradually. Step by step,
the TRIPS-plus provisions of RTAs are making medicines more expensive and less
accessible both in the developed and developing countries. The changes are slower,
but dangerous. The reason why the US are able to push through dangerous changes
in IP protection to their trading partners is their economic power combined with
the convenience of bilateral of regional forum. Moreover, the US have sophisticated
negotiation strategies, which were explained earlier. Propositions that could never be
accepted on the playfield of the WTO are much easier to push through in the RTAs.
The economic power of the US and their negotiation abilities are not going to
change any time soon. As long as the IP chapters are parts of Free Trade Agreements,
small countries are going to compromise on intellectual property protection in order
to obtain economic benefits from the US. This is not necessarily a wrong move from
the developing countries; whereas flexible IP protection is important for access to
health care, economic prosperity of a country is equally important for public health.
As long as the negotiations of RTAs are driven by the interests of the US, there are
few options for a change for the better. However, one of the few possible hopes for
public health protection are future disputes under the WTO Dispute Settlement sys-
tem, concerning TRIPS.
VII. Conclusion
This paper analysed some of the most controversial TRIPS-plus provisions in RTAs
concluded with the US as a signatory, including TPP. It showed that the TRIPS-plus
provisions are facing a trend of increasingly restrictive IP provisions that mostly go
beyond the protection offered by TRIPS. The reason why the TRIPS-plus provisions
are becoming more extensive is the negotiation power of the US. Given that the US
concentrate most of the world’s research and development in pharmaceutical industry,
their goals are largely affected by the interests of the pharmaceutical industry. The US
are using bilateral and regional playground to achieve the objectives that would be
impossible to reach on the multilateral level of the WTO. In the TPP negotiations,
the power of the US was once again predominant. Nevertheless, some of their most
controversial proposals were not accepted. For example, the data exclusivity for biolog-
ics was set to be five years, instead of the US-proposed twelve years. However, it is not
clear whether it is a defeat of the US negotiators, or whether it was a part of the US
negotiation strategy.
The extensive TRIPS-plus protection of IP rights for pharmaceutical companies is
often justified by public health interests. It is claimed that the protection is neces-
sary in order to support research and development in the pharmaceutical industry.
However, this is not necessarily the case. Evidence shows that the development of new