It is the general presumption that the intellectual property rights as they are being dealt with TRIPS are meant only to enhance the monopolistic abuses favouring the owners of such properties. It is also being increasingly felt that the TRIPS Agreement has not given serious consideration to the broader global issues of unemployment, proper use of world resources and protection of the environment.
However it is also claimed that TRIPS do have some authentic features that contribute the sharing of the benefits of the innovations and newly developed knowledge by the whole mankind despite the fact that the intellectual property rights are very monopolistic in nature. The application of competition rules to anti-competitive practices in the post-grant of protection to IP rights gives rise to various legal implications. The claims that the rights holders have engaged in the anti-competitive activity are really complex and involve a fair amount of legal expertise to interpret the claims.
In the developing countries there are the following issues that are connected with the legal implications of monopolistic abuses: The formulation of regulations governing the monopoly pricing on the fear of potential abuse. It would be difficult to frame the conditions relating to selling practices and licensing restrictions. This is so because of the lack of guidelines in the complicated markets of information and technology. “Several potential competitive problems are raised by the exploitation of IPRs. One is potential cartelization of horizontal competitors through licensing agreements that fix prices, limit output, or divide markets.
”(Keith E. Maskus) Another issue relates to the attempts to acquire market power beyond a firm’s own protected technology or product. This may happen by acquiring the exclusive rights to products and technologies which compete with each other. In the matter of public health it is claimed that the TRIPS has not been effective in curtailing the prices and enable the developing countries to manufacture and sell medicines especially for public health purposes at lower prices. On the contrary the prices of patented medicines are placed at higher levels because of the freedom allowed by the patenting under TRIPS.
Another criticism leveled against is that under TRIPS, there is a 20-year minimum patent protection period for products and processes. This longer duration of the protection period has the effect of conferring an exclusive monopoly for the manufacture, distribution and sale of medicines much to the detriment of the poor and needy. With such kind of monopolies granted to the manufacturers of pharmaceuticals are often able to eliminate competition from alternative, low-cost producers and to charge exorbitant prices for the medicines which make some medicines far from the reach of common man.
There is a growing need in the developing countries to adopt appropriate national legislation that provide for compulsory licensing and parallel imports, to regulate the activities of all the intermediaries in the pharmaceutical industry to ensure that the pharmaceutical products are available at competitive prices in the world market (TWN) TRIPS provide for adequate measures to control this area in the form of compulsory licensing, parallel imports and other exceptions to patent rights.
In spite of this protection, the developing countries are unable to implement the provisions of TRIPS agreement fully due to the bilateral pressures and bullying tactics of the developed countries. The developing nations are in a disadvantageous position to succumb to these pressures as there is a definite need for them to have the compulsory licensing and parallel imports to enable them to have an adequate access to affordable medicines.
It has been the contention of the most of the developing countries that the developed countries often assume that whatever is good for them, will automatically suit to the developing nations also which is not the reality. According to the Commission on Intellectual Property Rights on its final report to the British Government there are no potential advantages resulting from the adoption of the intellectual property rights system, for the developing countries in many sectors like health, agriculture, education and information technologies.
The system has a detrimental effect of increasing the costs of access to many products and technologies that are required for the fast development of the economies of the developing countries. It has been the apprehension of the developing nations that there are potential dangers in adopting the IP Chapter or TRIPS Plus regime in Free Trade Agreements. This is due to the fact that the provisions under TRIPS Plus regime provide better protections than the earlier international IP agreements.
The developing nations expect to have major impediments on the development of various sectors like education, libraries and public health as TRIPS Plus provisions seriously hinder the access to information, educational and learning materials as well as cultural resources that are crucially important for the development in general and more particularly in these sectors.