SpicyIP Scholarship: IP and the Transformation of Generic Supply

1. IP and the Transformation of Generic Supply:

In an outstanding article, Ken Shadlen examines the relationship between intellectual property (IP) and public health, with a focus on the extension of AIDS treatment in the developing world. It’s titled “The Political Economy of AIDS Treatment: Intellectual Property and the Transformation of Generic Supply” and the citation is “International Studies Quarterly 51 (September 2007), pp. 559-581”.

I reproduce the abstract below:

“While most of the literature on IP and health examines the conditions affecting poor countries’ capacities to acquire essential medicines, I show the distinct—and more complicated—polit- ical economy of production and supply. IP regulations alter the struc- ture of generic pharmaceutical sectors in the countries capable of supplying essential medicines, and changes in market structure affect actors’ economic and political interests and capacities. These new con- stellations of interests and capacities have profound implications for the creation and maintenance of political coalitions in support of on-going drug supply.

The result is that the global AIDS treatment campaign becomes marked by mismatches of interests and capacities: those actors capable of taking the economic, legal, and political steps necessary to increase the supply and availability of essential drugs have diminished interest in doing so, and those actors with an interest in expanding treatment may lack the capacities to address the problem of under- supply. By focusing centrally on actors’ interests in and capacities for economic and political action, the article restores political economy to analysis of an issue-area that has been dominated by attention to inter- national law.

And by examining the fragility of the coalitions supporting the production and supply of generic drugs, the article points to the limits of transnational activist networks as enduring agents of change.

Those interested in a copy may write to Professor Shadlen at [email protected]

2. BRICS and their Role in Access to Essential Medicines:

In an excellent article, Professor Peter Yu posits:

“Most discussions on the public health implications of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights focus on the right of less developed countries to issue compulsory licenses and the need for these countries to exploit flexibilities within the TRIPs Agreement. While these issues remain important, there are other means by which countries can enhance access to essential medicines. Instead of revisiting the debate on the TRIPs Agreement or its compulsory licensing arrangement, this article explores the possibility for greater collaboration among the BRICS countries (Brazil, Russia, India, China, and South Africa) and between these countries and other less developed countries.

This article begins by offering a brief discussion of each BRICS country in the area of international intellectual property protection. It advances the hypothesis that, if the BRICS countries are willing to join together to form a coalition, it is very likely that this coalition will precipitate a negotiation deadlock similar to the historic stalemate between developed and less developed countries shortly before the negotiation of the TRIPs Agreement.

The article nevertheless questions whether the BRICS countries can build a sustained coalition in light of their very different historical backgrounds; the divergent levels of political, social, economic, and cultural developments; and the well-documented historical failures for less developed countries to build or maintain effective coalitions. This article therefore suggests that it may be more realistic for less developed countries to enter into alliances with one or more of the BRICS countries.

The article concludes by highlighting the role that the BRICS coalition or these partial BRICS alliances can play in the international intellectual property regime. It discusses four coordination strategies through which less developed countries can strengthen their collective bargaining position, influence negotiation outcomes, and promote effective and democratic decisionmaking in the international intellectual property regime. These strategies include (1) the initiation of South-South alliances; (2) the facilitation of North-South cooperation; (3) joint participation in the WTO dispute settlement process; and (4) the development of regional or pro-development fora.”

Shamnad Basheer

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

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