The Global Governance of HIV/AIDS

The Global Governance of HIV/AIDS

Intellectual Property and Access to Essential Medicines

Elgar Intellectual Property and Global Development series

Edited by Obijiofor Aginam, John Harrington and Peter K. Yu

The Global Governance of HIV/AIDS explores the implications of high international intellectual property standards for access to essential medicines in developing countries. With a focus on HIV/AIDS governance, the volume provides a timely analysis of the international legal and political landscape, the relationship between human rights and intellectual property, and emerging issues in global health policy. It concludes with concrete strategies on how to improve access to HIV/AIDS medicines.

Chapter 10: Building IPC4D to promote access to essential medicines

Peter K. Yu

Subjects: development studies, law and development, law - academic, health law, intellectual property law, international economic law, trade law, law and development, politics and public policy, international relations, public policy


On 6 December 2005, shortly before the World Trade Organization (WTO) Ministerial Conference in Hong Kong, WTO member states agreed to accept a protocol of amendment to the Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPs Agreement). This proposed amendment sought to provide a permanent solution to implement paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health (Doha Declaration). If ratified by two-thirds of the WTO membership by December 2013, the proposed Article 31bis of the TRIPs Agreement will allow countries with insufficient or no manufacturing capacity to import generic versions of on-patent pharmaceuticals. To facilitate the supply of essential medicines to countries with insufficient or no manufacturing capacity, the proposed amendment creates a special arrangement not only for the affected countries, but also for those belonging to a regional trade agreement. Such an arrangement allows less developed countries – including both developing and least developed countries – to aggregate their markets to generate the purchasing power needed to make the development of an indigenous pharmaceutical industry attractive (Yu, 2007b, p. 848). The provision also paves the way for the development of regional supply centres, procurement systems, and patent pools and institutions, while facilitating technical cooperation within the region (Abbott and Reichman, 2003, pp. 973–7; Musungu, Villanueva and Blasetti, 2004, pp. xv–xvi). Unfortunately, because Article 31bis specifically requires that least developed countries make up at least half of the membership of any beneficiary regional trade agreement, the provision would benefit only a limited number of less developed countries,

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