TRIPS and Brazil

In Brazil the economic growth is predominantly agro based. The agricultural business in turn is based on the export of primary products and meat. These products can not be regarded as manufactured out of technologically advanced systems or expertise. However these products can also be made as value added by using improved fertilizers and genetically engineered organisms. These are high technology oriented goods and needs lot of efforts on research and development. Since Brazil has a large area of bio-diversity it is possible to consider the application of genetic resources, in the pharmaceutical industry.

In order to comply with the commitments made by Brazil the country passed the Industrial Property Law in the year 1996. The law was enacted with the specific purpose of getting more foreign direct investment inflows into the country. In effect the law wanted to achieve the aims of offering more protection to the rights and bring up the Brazilain patent system to the highest standards comparable to international standards. This applies more specifically in the pharmaceutical industry. The law overcame the objections of suppression of patentable rights except for few rights in the biotechnology.

However it is considered by many Brazilian economists that such a strong protection of patents may not really result beneficial to the country except that the foreign companies would be able to take advantage there of. But the fact remains that the country did not have any patents developed over a period of 70 years up to the implementation of the TRIPS Agreement and there was absolutely no development in the local pharmaceutical industry. This gave a boost to the patenting of the medicines and redefining policies of public health amidst suspicions.

The Brazilian economy in order to keep up a rapid pace of development needed the promotion of foreign trade and the marketing of the Brazilian goods in the markets of other countries. The assessment is required in identifying the intellectual property rights especially the patent rights. The boldness with which the idea of patenting the pharmaceutical industry as well as in other areas of intellectual property rights on the pretext of implementing the TRIPS  Agreement had really helped the Brazilain economy to get a fillip to its growth as compared to the developing countries of Bangladesh and UAE.

Especially in Bangladesh when there were ample opportunities for the development of the pharmaceutical industry with its leadership position in the least developed countries, it could have easily taken advantage of patenting the important medicines and made a remarkable growth of the industry. The TRIPS Agreement left some issues undecided which made the application of the rules enacted under the Agreement difficult.

Firstly, there are no precise definitions of the geographical units that the agreement is talking about as to whether it should be a country or it represents a region within a country. Theses definitional problems were finally had to be referred to a Dispute Settlement Panel. Excluding the GIs with the country names and adopting the names only with the regions within the country posed a problem for smaller countries. It also posed difficulties in the case of products where the quality is considered to be the widespread skills of the local people belonging to a particular country or region.

Examples in this context are Thai Silk or Canadian Whiskey. Including such products for protection by offering the GI resulted in high fragmentation of the market domestically in the countries concerned. In addition such inclusion also presented difficulties for the WTO to comply with its own rules based on the concept of ‘like products’. The EU challenged the GIs based on the countries that since have been ceased to exist, like for example the ‘ceylon tea’.

However this move could be countered by the argument that the customer information is adequate to identify the quality of the product irrespective of the political name change in respect of the country concerned. Another problem was posed by the plant varieties like ‘basmati rice’ that can be grown in any place. It so happened in the case of wine that the TRIPS rules under Article 24:6 allowed the use of varietal labels for the products from some regions even in cases where the name is used as a GI by another region or country.

There were problems with the protection of “Traditional Expressions” like “vintage” or “ruby” for port because of the various definitions the term carried. The issues were related to the quality issues due to the availability of the goods from various geographical locations and hence it would be difficult to control the quality fully. (Josling, Roberts and Orden, 2004, p. 135) The area of Geographical Indication is one that potentially may lead to certain disputes among the members of the WTO.

“There are competing claims to entitlement to the names of strains of rice and varieties of tea that are popular among consumers around the world, and which originated in particular geographic regions” . The main objective of the TRIPS council is to embark upon more precise rules to bring an end to the different arguments from the competing nations by arriving at a comprehensive solution.

Bibliography:

  • Ali Dualeh Abdulla ‘Copyright and Knowledge Advancement: A Case Study on the UAE Copyright Law’ http://libwebserver. uob. edu. bh/sla07/Papers_pdf/English/Copyright. pdf. https://www.col.org/