Research Handbook on the Protection of Intellectual Property under WTO Rules Intellectual Property in the WTO Volume I
Intellectual Property in the WTO Volume I
- Research Handbooks on the WTO series
Edited by Carlos M. Correa
Chapter 21: Data Exclusivity for Pharmaceuticals: TRIPS Standards and Industry’s Demands in Free Trade Agreements
21 Data exclusivity for pharmaceuticals: TRIPS standards and industry’s demands in free trade agreements1 Carlos M. Correa Introduction In his paper ‘Knowledge as a Global Public Good’, Stiglitz recalls Jefferson’s statement: ‘He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me’ as an accurate and early mirror of the modern concept of public good (1999: 1). Economists argue that knowledge can be categorized as a public good because it has the two basic and fundamental particularities that differentiate public goods from private goods: non-rivalry and non-excludability. Knowledge is non-rivalrous since it can be enjoyed by many people at the same time with no additional cost; and knowledge is also non-excludable because its enjoyment by one person does not exclude others from enjoying it too. As an example, once a particular scientific theory is created and divulged, it can be learned by many at a zero marginal cost and its ‘consumption’ does not mean the impossibility of another enjoying that knowledge as well. In the last twenty years, however, an expansive wave of protectionism has dramatically changed the balance between public and private interests concerning knowledge. While initiated in developed countries, the protectionist wave has extended to developing countries through coercion (via mechanisms such as the Special Section 301 of the US Trade Act), multilateral agreements (notably the WTO TRIPS Agreement) and free trade agreements (FTAs) (Correa, 2006). As a result, knowledge is increasingly subject...
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