MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI

TRIMESTER I-LLM 2017

Law & Justice In a Globalising World

GLOBALISATION AND ITS IMPACT ON IPR

REGIME

RESEARCH PAPER

SUBMITTED TO: S UBMITTED BY:

Prof. (Dr) Jitendra Kumar Afshan Nazir

Enrollment No.: LLM 2017 001

1. INTRODUCTION
“Wild globalisation has benefited some, but it's been a catastrophe for most1.”
~ Marine Le Pen~

Debate of present day Globalisation and its impact on every nook and corner, has been
concern of almost every individual of this world. It has entered into the blood of everything
in such a manner that it is difficult to imagine anything without its influence now. It
influences each and every minutest thing in such a manner that it becomes difficult to
describe this process in just few words or sentences. It hasn’t remained that definition
anymore, which could be cabined and caged within certain limits or boundaries. This process
influences each and everything: states, people, environment, culture, political systems, legal
systems, economic development and prosperity, even human psyche. It should be viewed as a
project, which influences everything in this world one way or other. This very little
expression ‘Impact of Globalisation on World’ hides histories, mysteries, sea deep concepts,
somewhere deep down inside. The questions like: what is globalisation, whether it’s positive
step toward development or not; or what are its impacts on different fields? Are all matters of
facts, which can’t be answered without going down into the history of ‘Globalisation’. The
thing is that, what is being presented in theory by the advocates of current wave globalisation
is totally different from what is being implemented in practice. The important question that
calls attention is: “whether current wave globalisation has truly taken world toward global
liberalisation or is it nothing but new form of colonialism?” Current wave globalisation has
taken almost every field in its grip: whether it is the field of science, social sciences, law, just
to name the few. Globalisation and international law are so inextricably entwined that it is
very difficult to separate and analyse these two independently. And these two together
influence domestic laws of every state in such a manner, that no state can now detach itself
from rest of the states or world and think of independent existence or absolute sovereignty. It
has to some extent diluted the obsolete concept of state boundaries – which now only seems
an instance of some fictitious story, a misnomer.
The basic point of this paper is to go to the root of the concept of globalisation and then
describe how it influences each and every thing today – whether alive or dead. The main
point of this paper is to find out how globalisation influences IPR (Intellectual Property
Rights) regime i.e. how and why there arose need of globalising IPRs?

1
Marine Le Pen Quotes (Aug.14, 2017. 6.0 PM), http://www.azquotes.co m/quote/1574038.
2. GLOBALISATION AND INTERNATIONAL TRADE
It is very hard to define anything which is inherently dynamic and keeps on changing its
stand with changing time and circumstances. Same is true with the concept of ‘Globalisation’
– its nature is so fluctuating that no hardcore definition has been set forth for it so far. It has
many perspectives and its meaning keeps on changing with the changing perspectives. If
looked from economic perspective, attempts have been made by many economists, writers
and even famous columnists of world to define it. Some have defined it as, “a process of
interaction and integration among the people, companies, and governments of different
nations, a process driven by international trade and investment and aided by information
technology. This process has effects on the environment, on culture, on political systems, on
economic development and prosperity, and on human physical well-being in societies around
the world.2”, while some define it as, “the process of increased interconnectedness among
countries most notably in the areas of economics, politics, and culture. McDonald's in Japan,
French films being played in Minneapolis, and the United Nations, are all representations of
globalization3”. Pulitzer Prize winning journalist and writer, Thomas L. Friedman in his book
on globalisation, defines globalisation as, “integration of markets, nation-states and
technologies to a degree never witnessed before – in a way that is enabling individuals,
corporations and nation-states to reach around the world farther, faster, deeper and cheaper
than ever before and in a way that is enabling the world to reach into individuals,
corporations and nation-states farther, faster, and deeper, cheaper than ever before4”. So from
all these definitions, what could be gathered is, globalisation means different thing to
different people, its meaning changes with the changing circumstances and ideologies. People
with capitalist ideology, may define current wave globalisation as positive and effective step
toward long term development, while people with opposite ideologies may put it in a totally
opposite manner. But to poor and marginalised people, this globalisation thing makes no
difference at all, because they can’t afford making choices like other classes of society. For
them it is always hard to make choice between two extremes. They can’t afford to give
answers to the questions like: whether globalisation is good or bad or whether it leads to
sustainable development or not? The present day globalisation appears in their lives in
2
Globalisation 101, What Is Globalization?, (Aug.15,2017. 5.0 PM), http://www.globalization101.org/what-is-
globalization/.
3
Colin Stief, Globalization- An Overview of Globalization and Its Positive and Negative Aspects, (Aug.17,
2017. 6.30 PM), https://www.thoughtco.com/globalization-positive-and-negative-1434946.
4
Thomas Friedman, The Lexus and the Olive Tree: Understanding Globalization,
(Kindle edition by Thomas L. Friedman), https://www.amazon.com/Lexus-Olive-Tree-Understanding-
Globalization-ebook/dp/B002F0X0LY.
different forms – “losing their jobs, being displaced from their indigenous places, having
their water supply cut, being evicted from their homes, being sent unpayable electricity and
water bills and uprooted from their land”5. Thus we can say that globalisation is like a new
form of ‘Colonialism’ to them. To put it more aptly, “Globalisation is a mutant variety of
colonialism, remote-controlled and digitally operated6”.

Globalization is not a novel concept, though. The very concept of globalisation existed long
before world wars. For long time before the advent of present day technology, people have
been buying from and selling to each other in lands at great distances, through various trade
routes like famed Silk Road across Central Asia that connected China and Europe during the
middle Ages. From the age of exploration, it went through different phases, until it reached its
current position. It started increasing its pace during industrial revolution – because that
period was the beginning of the age of technology and innovation – and continued its
journey till First World War. After World War First, it changed totally its direction to achieve
new feats. Though there are many commonalities between the current wave globalization and
to that prevailing before the outbreak of the First World War in 1914, but new technological
developments have induced increases in cross-border trade, investment, and migration so
large that many economic analysts, observers and even lay men believe that the world has
entered a qualitatively new phase in its economic development. Since 1950, for example, the
volume of world trade has increased by 20 times, and from just 1997 to 1999 flows of foreign
investment nearly doubled, from $468 billion to $827 billion7.

Repercussions of World War II were adverse: world powers turned economically wreck,
United States of America emerged as new super power with phenomenal economic growth
.this was the period when America started writing its own history. It started expanding its
trade horizons. It wanted to win laurels in the field of economy and development, for which it
had to develop new economic relations with other nations. With this, the need to set out new
rules and regulations arose, which could ensure free and fair trade between states at
International level. So after Second World War, United States of America, United Kingdom
and other allied states entered into a series of negotiations, at Bretton Woods Conference in

5
Arundhati Roy, We Must Globalise Dissent, In These Times, July 10, 2017,
http://inthesetimes.com/features/arundhati_roy_globalization_protest_dissent.html.
6
Arundhati Roy, Shall We Leave It to Experts, The Nation, 18 Feb, 2002, https://ratical.org/co-
globalize/AR021802.pdf.
7
Globalisation 101, What Is Globalization?, (Aug.15,2017. 5.0 PM), http://www.globalization101.org/what-is-.
Globalization/.
July 1944, to set fair rules for post-war International economy. These negotiations resulted
into the creation of two international economic sister institutions, what we call ‘Bretton
Woods Institutions’ – IMF (International Monitory Fund) and WB (World Bank). Later on in
1947, Twenty-three nations meeting in Geneva from April to October 1947 concluded
negotiations as to reduction of tariffs and imperial preferences and drafted a charter for new
institution – the International Trade Organization (ITO). The intention behind establishment
of this institution was to make trade easy for developing and impoverished countries – which
had gained independence from bogey colonialism after a long period of struggle – at
international level. Participants also signed the General Agreement on Tariffs and Trade
(GATT), designed not only to implement the agreed tariff cuts but to serve as an interim
codification of the rules governing commercial relations among its signatories until the ITO
was created. Although in March 1948 the finished charter of ITO was signed by the 53
representative countries, but it failed to function in reality because of its strong opposition in
the U.S Congress. Instead, it was the GATT that governed post-war international trade
relations for almost fifty years8. Until 1994, international trade relations between nations
were regulated by General Agreement on Tariffs and Trade (GATT), which got replaced by
World Trade Organisation (WTO) in 1995. From then onwards World Trade Organization
(WTO) started making rules and regulations to ensure what they call free and fair
International Trade.

3. GLOBALISATION AND IPR REGIME

3.1. Brief History of IPRs

The modern patent system was introduced by the Venetian Republic in 1474. The two
requirements laid down by the Venetian Republic – the usefulness and novelty of the
invention – are still in force today in almost all states. As in a Faustian bargain9, the inventor
and the government under-take a long-term pact: the inventor commits himself/ herself to
disclose all information of his/her invention, while the government guarantees that it will
provide legal protection to give exclusive rights on the economic returns of the invention.
IPRs have evolved substantially over the centuries but the Faustian bargain has remained
unchanged. By providing intellectual property rights, the government assures the inventor the

8
Bretton Woods-GATT, 1941–1947 , Office Of The Historian (Aug. 19, 2017, 3:31 PM).
9
‘ According to the legend, Doctor Faustus, an earnest alchemist, trades his soul to Mephistopheles to obtain 24
years of unrestrained creativity.’
right to exclude others from using the out-come of his/her creative activities without his/her
authorisation. Thus the government gives the inventor a legal monopoly to exploit his/her
invention and capture the economic benefits for a limited period of time. It provides an
incentive to individuals to invest their time and resources in creative activities. Once the
inventor has invented a new device or a musician has written a new symphony or any artist
has created some artistic piece of work, it becomes easy for others to exploit their out-comes
at very low costs. Without legal protection, inventors, artists, manufacturers and authors are
not in a position fully to exploit their works and claim the economic returns. As a result, in
the absence of public regulation there would be an under-investment in creative activities that
would be below a socially desirable level10. Thus we can say that, to protect the rights of
artists and inventors, Intellectual Property laws were recognised and inculcated by almost all
states in their respective legal systems. Every state thus has its own IPR regime in the form of
written and customary rules, which aims at providing protection to creative products
produced out of creative activities. In some countries, the government enforces strong
protection of IPRs and the holders are guaranteed that any infringements will be persecuted
by the law and compensation will be obtained. In some countries, the IPR protection is
much weaker and there is much less public interest in enforcing IPRs. Policing violation is
much more relaxed and courts are slow and/or permissive towards infringement11.
3.2 Globalising IPRs

Actual Reasons Behind Globalising IPRs:

To make society work as per its own desires is the age old practice of anyone that is in power.
By the mid-1980s, US trade policy undertook a major shift in response to threats to its
technological world hegemony. Beginning in the early 1980s, its annual trade deficit reached
unprecedented levels. According to US Department of Commerce report (2009), the US trade
deficit topped $100 billion in 1984 and peaked at a record $153 billion in1987. Linking the
loss of market shares to IP infringement by other countries, the need of policy action at
International level arose. US corporations hoped to find a remedy to their weakness – lack
of competitiveness – by making stronger IPRs in international markets. By the mid-1980s the
US administration also began to include international affairs in its pro-IPRs silent revolution.
US justified this – as it always justifies – by saying that free trade was no longer fair trade,
10
Christopher May, Susan K. Sell, Intellectual Property Rights: A Critical History (2006),
https://books.google.co.in/books/about/Intellectual_Property_Rights.html?id=k6SKQgAACAAJ&redir_esc=y.
11
Id.
because a substantial part of R&D (Research and Development) and innovative investments
financed by American corporations were appropriated without payment by competing firms
in other countries. As the former assistant general counsel of the United States Trade
Representative (USTR) said, ‘Our companies find that they must compete with the
unauthorized copies not only in the source country but in third countries as well’12
In short it was perceived that the US trade deficit was the result of the fact that other
countries had a more permissive regime of IPRs. As the then assistant secretary of commerce
argued, ‘there is a widespread bipartisan agreement that the protection of intellectual property
worldwide is a critically important factor in expanding trade in high technology products’.
The link between trade and IPRs was formally established in 1984 in the Trade and Tariff Act
in which, under section 301, IP protection became a motive for assessing other countries’
eligibility for nonreciprocal trade concessions. From 1984 until the signing of the TRIPS
Agreement of 1994 the USTR played a major role in bringing the interests of the US
corporations into the global arena. During the Uruguay Round the USTR was closely
connected with the major corporations through the International Intellectual Property Alliance
(IIPA) and the Intellectual Property Committee (IPC). The IIPA was created to promote the
copyright industry interest, while the IPC consisted of 12 chief executive officers
representing IPRs-intensive industries. These influential business associations provided the
USTR with several reports in which they pointed out the damages caused to US business by
IP piracy country by country. The IPC’s major achievement was involving European and
Japanese industry in their policy so that the US, Europe and Japan were united about the
inclusion of an IP code in the General Agreement on Trade and Tariffs (GATT). When
eventually the WTO replaced GATT in 1994, it included the TRIPS Agreement as one of its
core pillars. As Susan Sell explicitly claims, ‘twelve corporations made public law for the
world’. In return, developing countries obtained the liberalisation of international trade in
textiles and apparel through the Multi fibre Agreement13.

3.3 TRIPS Agreement In Theory

12
Susan K. Sell, Steve Smith, Thomas Biersteker, Private Power, Public Law –The Globalisation of Intellectual
Property Rights (2003), https://www.boomerangbooks.com.au/private-power-public-law/susan-k-
sell/book_9780521525398.htm.
13
Christopher May, Susan K. Sell, Intellectual Property Rights: A Critical History (2006),
https://books.google.co.in/books/about/Intellectual_Property_Rights.html?id=k6SKQgAACAAJ&redir_esc=y.
TRIPS Agreement or The Agreement on Trade related Aspects of Intellectual Property
Rights is considered as one of the main agreements of the World Trade Organisation (WTO).
This Agreement was negotiated as part of the eighth round of multilateral trade negotiations
in the period 1986-94 under General Agreement on Tariffs and Trade (GATT) commonly
referred to as the Uruguay Round. It appears as Annex 1 C of the Marrakesh Agreement
which is the name for the main WTO Agreement. The Uruguay Round introduced intellectual
property rights into the multilateral trading system for the first time through a set of
comprehensive disciplines. The objectives of TRIPS Agreement are: to reduce distortions and
impediments to international trade, to promote effective and adequate protection of
intellectual property rights, and to ensure that measures and procedures to enforce intellectual
property rights do not themselves become barriers to legitimate trade14.
The TRIPs Agreement is divided into seven parts and consists of seventy three articles. Its
seven parts include:
Part I – deals with general provisions and basic principles;
Part II – deals with standard concerning the availability, scope and use of intellectual property
rights;
Part III – deals with the enforcement of intellectual property rights;
Part IV – deals with acquisition and maintenance of intellectual property rights and related
inter-parts procedures;
Part V – deals with dispute prevention and settlement;
Part VI – deals with transitional arrangements; and
Part VII – deals with institutional arrangements and final provisions15.
The main aim behind TRIPS Agreement was to strengthen previous standards by making its
enforcement mandatory to all member countries and by reforming the Dispute Settlement
procedure within the WTO. Article 4 of the TRIPS Agreement adds more important clause –
the Most Favoured Nation clause to the IPRs 16. Article 9.2 confirms that copyright protection
shall extend to expressions and not to ideas, procedures, and methods of operation or
mathematical concepts as such. Article 10 allows the copyright protection of software and
data sets, and fixes the term of protection for not less than 50 years. Article 27.1 of the TRIPS

14
V K Ahuja, Law Relating To Intellectual Property Rights (2nd ed. 2013).
15
Supra
16
The Most Favoured Nation clause establishes that whatever more favourable treatment is agreed for two or
more countries is automatically extended to all the other nations: in this case to all the TRIPS signatories.
TRIPS. Art.4 states: ‘With regards to the protection of intellectual property, any advantage, favour, privilege or
immunity granted by a Member to the nationals of any other country, shall be accorded immediately and
unconditionally to the nationals of all other Members’.
Agreement requires Member countries to make patents available for any inventions, whether
products or processes, in all fields of technology without discrimination, subject to the
normal tests of novelty, inventiveness and industrial applicability. It is also required that
patents be available and patent rights enjoyable without discrimination as to the place of
invention and whether products are imported or locally produced17.
There are three permissible exceptions to the basic rule on patentability. One is for inventions
contrary to ordre public or morality; this explicitly includes inventions dangerous to human,
animal or plant life or health or seriously prejudicial to the environment. The use of this
exception is subject to the condition that the commercial exploitation of the invention must
also be prevented and this prevention must be necessary for the protection of ordre public or
morality (Article 27.2)18.

The second exception is that Members may exclude from patentability diagnostic, therapeutic
and surgical methods for the treatment of humans or animals (Article 27.3(a))19.

The third is that Members may exclude plants and animals other than micro-organisms and
essentially biological processes for the production of plants or animals other than non-
biological and microbiological processes. However, any country excluding plant varieties
from patent protection must provide an effective sui generis system of protection. Moreover,
the whole provision is subject to review four years after entry into force of the Agreement
(Article 27.3(b))20.

Article 33 establishes that the protection of patents shall not end before 20 years. Article 35
requires member countries to protect the layout designs of integrated circuits in accordance
with the provisions of the Treaty on Intellectual Property in Respect of Integrated Circuits,
negotiated under the auspices of the World International Property Organisation (WIPO) in
1989. Part 3 of the TRIPS Agreement is dedicated to the enforcements of IPRs, and Article 61
requires that members should provide civil as well as criminal remedies for the infringement
of IPRs. This implies that all WTO members should develop or modernise their judicial
systems and enforcement procedures to comply with TRIPS21.
4. TRIPS AGREEMENT IN PRACTICE
17
WTO intellectual property - overview of TRIPS Agreement, (Aug. 22,2017. 5.0 PM),
https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm.
18
WTO intellectual property - overview of TRIPS Agreement, (Aug. 22,2017. 5.0 PM),
https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm.
19
Id.
20
Id.
21
Id.
4.1 Impact of TRIPS on Developing Countries
Nelson Mandela22, commenting on the Uruguay Round, said: “The developing countries were
not able to ensure that the rules accommodated their realities… it was mainly the
preoccupations and problems of the advanced industrial economies that shaped the
agreement.” He added that, “rules applied uniformly are not necessarily fair because of the
different circumstances of members”.

TRIPS Agreement has become one of the most controversial issues in the whole world with
respect to its development related issues. Some favour it by considering it as a gate way
toward the economic development, while some oppose it because they believe that it only
serves the interests of developed countries and transnational corporations. According to WTO
and supporters of TRIPS Agreement, various wider benefits to society are said to accrue from
the imposition of temporary monopolies and other limitations that result from private IPRs 23.
By instituting legal protection – tackling piracy and counterfeiting – the disclosure of new
knowledge and creativity is encouraged, and the significant costs associated with the creative
process (such as with research and development) can therefore be recouped and remuneration
earned. Innovation is thus both rewarded and further promoted. The scope and reliability
offered by a global IPR regime should not only stimulate domestic innovation, but the
security offered to developed world patent holders and others can also encourage foreign
direct investment, technology transfer and licensing, and the diffusion of knowledge to the
developing world. TRIPS is therefore able to play a significant role in the overall promotion
of trade and economic development24.

Arguments favouring TRIPS seem less than the arguments made against it. One of the
principal criticisms made to the TRIPS agreement is that it offers an inappropriate uniform
standard across a diverse range of states. Developed countries already possess suitable levels
of IPR protection, and are home to the overwhelming majority of IP rights-holders that stand
to benefit from increased protection. Most developing countries, on the other hand, incur
significant costs from raising domestic standards to the required level – taking scarce
resources away from other crucial sectors – and from the increased payments to be made to
developed world rights-holders. A 2001 World Bank report suggested that in the short term

22
Nelson Rolihlahla Mandela – First Black Head of South African State
23
Ben Willis, The Arguments For And Against The TRIPS Agreement, (Aug. 24, 2017. 6.30 PM), http://www.e-
ir.info/2013/12/23/the-arguments-for-and-against-the-trips-agreement/.
24
Id.
TRIPS effectively constitutes an annual $20 billion transfer of wealth from technology-
importing developing countries to technology-exporting developed countries25. Similarly,
Philip Mc Calman estimates that the beneficiaries of TRIPS are just a handful of developed
countries: primarily the USA and various Western European states. Countries from India to
Brazil – and even South Korea – meanwhile suffer through their reliance on technology
imports. While most countries could still benefit in the long-term, McCalman argues that the
advantages will nonetheless be distributed overwhelmingly amongst the leading developed
countries. The Commission on Intellectual Property Rights also arrived at similar conclusions
in its 2002 report on IPRs and development – assessing the argument that a stronger IPR
regime would offset short-term implementation costs over the long-term, they concluded
that26, “…for most developing countries with weak technological capacity, the evidence on
trade, foreign investment, and growth suggests IP protection will have little impact. Nor is it
likely that the benefits of IP protection will outweigh the costs in the foreseeable future. For
more technologically advanced developing countries, the balance is finer. Dynamic gains
may be achieved through IP protection, but at cost to other industries and consumers.”

In 2001, the UK government established a Commission on Intellectual Property Rights to

look at how IPRs might work better for poor people and developing countries. The
Commission's report "Integrating intellectual property rights and development policy" was
published in September 2002, and covers the following areas: intellectual property and
development; health; agriculture and genetic resources; traditional knowledge, access and
benefit sharing and geographical indications; copyright, software and the Internet; and patent
reform. The document contains some quite far-reaching recommendations directed at the
global IPR system including the institutions within it (such as the WTO and the World
Intellectual Property Organisation), and national IPR policy-making27.

Overall, the Commission expressed serious doubts that the international IPR regime in its
present form, and current processes to further strengthen IPR protection, are in the interests of
the poor. It also considered that the TRIPS agreement imposed onerous costs on most
developing countries. The Commission presents well-documented historical evidence to

25
Cited In Dutfield & Suthersanen, 2004.
26
Ben Willis, The Arguments For And Against The TRIPS Agreement, (Aug. 24,2017. 6.30 PM), http://www.e-
ir.info/2013/12/23/the-arguments-for-and-against-the-trips-agreement/.
27
Trips And Its Impact On Developing Countries, (Aug. 28, 2017, 6 A.M), http://www.scidev.net/global/policy-
brief/trips-and-its-impact-on-developing-countries.html.
support the view that at certain stages of development, weak levels of IPR protection are
more likely to stimulate economic development and poverty alleviation than strong levels28.

Thus we could say that ‘globalising IPRs’ and TRIPS agreement, have so far proved
beneficial to developed countries only; developing countries – which were nascent at the time
of ‘globalisation of IPRs’ and had totally different environment from that of developed
countries – could not bear its bogey consequences. Globalisation of IPRs has affected lives
of poor people in developing countries drastically. It has given rise to many issues: like health
issues, agricultural issues, sovereignty issues, biodiversity issues, just to name the few.

4.2 TRIPS And Public Health Issues

Advances in medicine and technology have boosted health and extended life expectancy –
but not for everyone. New medicines for diseases like HIV/AIDS, Cancer are priced out of reach of the
millions of sick people in the developing world, in part due to global patent rules which
restrict the availability of affordable generic versions of patented medicines. In 2001, all members
of the World Trade Organisation adopted the ‘Doha Declaration29’, promising to prioritize public
health over private patent rights and to promote ‘access to medicines for all’. But United States
always seemed to contravene this commitment by using technical assistance, bilateral and regional
trade agreements, and the threat of trade sanctions to increase patent protection in developing
countries. This policy benefits the influential U.S. pharmaceutical industry while pushing
medicines further out of the reach of the poor and marginalised people. Trade ministers recognized that
WTO patent rules – known as TRIPS – lead to higher drug prices, placing medicines out of reach of
patients in poor countries and undermining public health. They made a commitment to interpret patent rules
in a way that prioritized health standards, and to ensure that countries too poor to buy branded
drugs and unable to make cheap generic substitutes could obtain medicines more easily, but nothing
happened in practice. The United States signed the Doha Declaration, promising to promote
‘access to medicines for all’. But since its signing of Doha declaration, it has not only failed
to uphold this commitment but has actively undermined the letter and spirit of the Declaration.
The U.S. Trade Representative is pursuing standards of patent protection which go far beyond WTO Patent
rules, and it is doing so regardless of the devastating impact that this could have on the capacity of
developing countries to treat health problems such as Acquired Immune Deficiency Syndrome
(AIDS). It is believed that the U.S. government is pursuing this pro-patent agenda on behalf of its powerful
pharmaceutical lobby. The industry has an interest in strong patent protections, which limit generic
28
Id.
29
Declaration adopted by the WTO Ministerial Conference of 2001 in Doha ( Nov. 14, 2001).
competition and therefore protect its market share and profits. In the year 2000, the industry
contributed approximately $20,142,583 in campaign contributions, 76 per cent of which went
to the Republican Party30.
In 2003, the industry gave $29,371,406, with$21,719,527 of that money going to Republicans.
In addition, it spends approximately $120 million each year on lobbying. This is just a drop in the ocean
compared with its yearly sales: an estimated $400 billion in 2002. The ten largest U.S. drug
companies made $35.9 billion profit in 2002, with a rate of return for shareholders of 27.6 per cent, more than
two and a half times the Fortune 500 average of 10.2 per cent31.

On the other hand patients in developing countries almost account for 59 per cent of the 56.5 million annual
global deaths from non-communicable diseases such as cardiovascular disease, cancers,
diabetes, respiratory disease, obesity, and others. Much of this suffering and deaths could be
prevented if people had regular access to medicines, yet one-third of the world’s population does
not. Many factors are responsible, including poverty, lack of finance, and poor health-service
infrastructure – but the high cost of new patented medicines is a key factor. The absence of cheap
generic versions of these medicines means that poor people must simply go without the drugs that could save
or prolong their lives. Poor countries with fewer resources to dedicate to healthcare and medicines need
access to the cheapest drugs available to fight problems of public health. But the cheapest generic
versions of new patented drugs are being blocked from developing-country markets by U.S. trade
policies on intellectual property, at the instance of the drug companies that benefit from the monopoly
position conferred by these patents. During all these years since Doha declaration, the U.S. has
contravened the goal of the Declaration – ‘access to medicines for all’ – by pressuring developing countries
to implement ‘TRIPS-plus measures’. The U.S. bullies countries into increasing patent
protection by threatening them with trade sanctions under section 301 of the Trade Act of 1974; nearly all
those targeted are developing countries, including countries in compliance with their WTO
obligations32.
4.3 TRIPS And Agricultural Issues
U.S-led WTO agricultural policies do not meet the food needs of a growing world population.
These policies promote food availability through trade and discourage countries from
developing food self-sufficiency. Most developing countries are short of foreign exchange
and cannot afford to buy food from the world market, despite of low pricing and availability.

30
B.S Chimni, TRIPS And Public Health: The Next Battle, (Sep.15, 2017, 8 A.M),
https://www.scribd.com/document/52829592/TRIPS-and-Public-Health-The-next-battle.
31
Id.
32
Id.
New rules regarding plant information have both agricultural and medical implications. The
Trade Related Intellectual Property Rights Agreement (TRIPS) fiercely protects the rights of
corporations but easily allows the shared knowledge of indigenous communities to be
patented by others. When fully implemented, developing countries lose billions in rent
transfers to rich countries, as TNCs continue to control virtually all the patents of developing
countries. TRIPS provides the U.S. biotechnology industry with a very favourable legal
environment. But biotechnology is not the answer to food shortages. Genetically modified
seeds and plants (GMOs) raise costs for farmers and promote monocropping, which increases
the incidence of diseases and pests, encourages the use of chemicals, and threatens the
biodiversity and genetic purity of plant species. In the last twenty years, after India embraced
the free market, followed by international agreements like TRIPS, almost two hundred and
fifty thousand farmers have committed suicide, because they have been driven into debt.
Furthermore, although the U.S. has not done long-term research on the health impact of
GMOs, other countries is unable to halt their imports unless those countries can present
scientific proof of harmful effects. In sum, TRIPS has turned catastrophic for both health and
sustainable agricultural systems in developing countries33.
That said, however, developing countries could resist pressures to implement TRIPS-plus measures, by
making full use of the TRIPS flexibilities, in order to gain access to medicines, in sync with
the Doha Declaration. Instead of all these commotions regarding TRIPS, developing
countries should look at its loopholes and exceptions and try to find out where it could be
diluted and accordingly should try to cope up with it. Let’s for example take provision of
compulsory license:
Compulsory License: while Article 27 of TRIPS provides, “that patents shall be available
for any inventions, whether products or processes, in all fields of technology”. However,
Article 27(2) allows members to exclude inventions from patentability to protect public order
or morality, including protection of health34. To the same extent is laid down under Articles 30
and 31 of the Agreement if interpreted carefully. Thus developing countries in order to
mitigate rigour of Article 27 can use Articles 27(2), 30 and 31 and provide compulsory
licences35 to their generic companies. Here domestic courts of developing countries can play
their phenomenal role.
33
Aileen Kwa, WTO and Developing Countries, (Aug.27, 2017, 5 P.M), https://www.saylor.org/site/wp-
content/uploads/2013/04/ECON307-2.3-WTOandDevelopingCountries.pdf.
34
WTO intellectual property - overview of TRIPS Agreement, (Aug. 22,2017. 5.0 PM),
https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm.
35
“A Compulsory License is a Licensing agreement With Government in Which a Licensing fee is paid for the
use of a work subject to Patent Law, Copyright Law and related laws”
4.5 Role of Domestic Courts:
The Hon’ble Supreme Court of India, in Bayer Corporation case36, in December, 2014 upheld
India’s first compulsory license by dismissing a Special Leave Petition filed by Bayer
Corporation. The Apex Court upheld the decision of the Intellectual Property Appellate Board
and the Bombay High Court, sanctioning the grant of a compulsory license for Bayer’s anti
cancer drug ‘Nexavar’. The Court expounded on the view that patent protection was now
often viewed as “the ugly face of globalization, seemingly a hazard to public health and
travesty of social justice.” Consequently, Bayer’s appeal was dismissed. It was for the first
time, after India became a signatory to trade related aspects of Intellectual Property Rights
(TRIPS) followed by the Doha Declaration in 2001 and the amendments to the Patent Act in
2003 and 2005 that the issue of Compulsory License had come up for the consideration
before the authorities37.
Similarly landmark judgement of Hon’ble Supreme Court of India in A G Novartis38 case,
dismissing the petition of Novartis AG will remain as ‘historic decision’ with positive global
implications.
Brief summary of the material facts of the case: Novartis AG through an application had
claimed a patent for a new salt form (imatinib mesylate), a medicine for the treatment of
chronic myeloid leukaemia. Novartis sells this medicine in several countries under the brand
name Glivec (Gleevec). The Indian patent office had rejected the patent application on the
ground that the claimed new form was anticipated in a US patent of 1996 for the compound
imatinib and that the new form did not enhance the therapeutic efficacy of the drug. The
decision was upheld by the Indian Patents Appellate Board (IPAB)39.
The legal challenge from Novartis had alarmed patients groups, governments of developing
countries and some international organizations in view of the possible negative implications
for access to affordable medicines for patients in those countries if the petition of Novartis
were to be allowed by the Supreme Court. Most developing countries strongly rely on Indian
generic pharmaceutical companies for the supply of affordable medicines. Any weakening of
section 3 (d)40 of Indian Patent Act would have enabled multinational pharmaceutical

36
Bayer Corporation v. Union of India & Ors,
(Spcl. Leave to App. (C) NO.(S).30145/2014, Supreme Court of India).
37
Bayer Corporation v. Union of India & Ors (Aug.27, 2017, 7.00 P.M),https://www.escr-
net.org/caselaw/2013/bayer-corporation-and- anr-v-union-india-ors .
38
Novartis AG v. Union of India, 6 SCC 1 (Supreme Court of India: 2013).
39
Id.
40
“the mere discovery of a new form of a known substance which does not result in the enhancement of the
known efficacy of that substance or the mere discovery of any new property or new use for a known substance
or of the mere use of a known process, machine or apparatus unless such known process results in a new
companies to extend their patent monopolies based on frivolous incremental improvements
which – as in the case of imatinib – could delay the generic supply of essential medicines for
the treatment of HIV/AIDS and other diseases41.
In this context, the decision by the Indian Supreme Court is very significant. In interpreting
section 3(d), the judgment took into account the legislative history of Section 3(d). The
Supreme Court observed that this section was introduced in the Patents Act by the 2005
Amendment to ensure that while India allowed product patents on medicines in accordance
with its TRIPS obligations, it did not compromise public health through ‘evergreening 42’ of
pharmaceutical patents43.
The Court, hence, took into account the concerns about the impact of TRIPS on public health
and on the development of an indigenous pharmaceutical industry. Moreover, it considered
the implications of the Novartis case for the availability of essential medicines at affordable
prices globally44.
The Supreme Court decision fully reproduced two letters from Dr. Jim Yong Kim, the former
Director of the Department of HIV/AIDS at WHO (current President of the World Bank) and
from UN AIDS to the Indian Minister of Health and Family Welfare expressing the concerns
relating to the continuous availability of affordable drugs supplied by Indian firms in other
developing countries45.
Positive Implications of The Decision: This decision of Hon’ble Supreme Court of India has
positive global implications. By this India not only protected its leading role in supplying
affordable medicines to other developing countries but also gave clear message to these Big
Brothers – who call themselves as protectors of Human Rights – that no silence can be
maintained when basic human rights are under significant threat of bilateral trade and
investment agreements. It sort of acted as messiah for other developing countries – who have

product or employs at least one new reactant”, is not invention within the meaning of Indian Patent Act.
41
Id.
42
“Evergreening is any of various legal, business and technological strategies by which producers extend their
patents over products that are about to expire, in order to retain royalties from them, by either taking out new
patents (for example over associated delivery systems, or new pharmaceutical mixtures), or by buying out, or
frustrating competitors, for longer periods of time than would normally be permissible under the law.”
43
Novartis AG v. Union of India, 6 SCC 1 (Supreme Court of India: 2013).

44
The South Centre, South Centre Welcomes the Indian Supreme Court Decision on Novartis Case (Aug.
20, 2017.6.0 PM), https://www.southcentre.int/question/south-centre-welcomes-the-indian-supreme-
court-decision-on-novartis-case/.

45
Id.
been relegated to dark alleys by this so called globalisation. With this, India for the first time
set global precedent by leaving new prints on the sands of time.
5. CONCLUSION

So this again goes back to question set in this paper whether globalisation has truly taken
world toward global liberalisation or is it nothing but new form of Colonialism? Different
global conventions, agreements, rules, schemes, policies made by international organisations,
from time to time no doubt in theory connote messages of peace, concepts of global
liberalisation and harmonisation, but in practice these all smell of lie and conceit. These all
global policies are made according to the requirements and needs of these International
Bosses. They set rules of game/competition, lay down goals, fix their own umpires and
referees and then tell poor, incompetent fellows to run a race and compete. Results are quite
obvious: some fail at the very outset of the game, some manage to run few miles and then
turn frustrated and some slowly keep on going, because they know no other way than this.

All the conventions, agreements, policies, rules, just to name the few, framed at international
level by the international organisations like WTO, IMF, WB and other international bodies, if
looked into properly and carefully, clearly reveal the imperialistic taste that heads and key
members of these world organisations have. Behind the veils there are same old ‘Nazis’ and
‘Fascists’ dictating their own terms to the world, with only one difference – which is the way
of implementation of these Fascist rules. This new wave of globalisation has changed only
the ways of implementation of old Fascist rules. Earlier these developed nations would resort
to wars to show their strength and hegemony, now those old wars have been replaced by this
silent global war, carried in the name of ‘international trade and liberalisation’. So this so
called global liberalisation can be termed as global colonialism or imperialism. In order to
resist this wave of Globalisation and continue long walk toward real liberalisation and
development, developing countries need to take right steps. In theory it seems easy to provide
solutions to this problem in the form of suggestions but in practice it is very hard to get a
proper solution for this silent killer – ‘Globalisation’. Unless and until there is new, complex
but transparent Internationalism as suggested by B.S Chimni in his beautifully crafted paper
work ‘International Institutions Today: An Imperial Global State in the Making’, no
suggestion can be provided as a panacea to this problem. So in the words of B.S Chimni It
requires a powerful global social movement to change the rules and structure of International
Institutions and Organisations. It seems difficult but is not impossible, because, “as you start
to walk out on the way, the way appears”. Only the determined struggle of developing
countries along with other international human rights organisations can liberate world from
this new form of colonialism.

References

1. Books Consulted:
a) V K Ahuja, Law Relating To Intellectual Property Rights (2nd ed. 2013)

b) Christopher May, Susan K. Sell, Intellectual Property Rights: A Critical History

(2006),https://books.google.co.in/books/about/Intellectual_Property_Rights.html?
id=k6SKQgAACAAJ&redir_esc=y

c) Susan K. Sell, Steve Smith, Thomas Biersteker, Private Power, Public Law –The
Globalisation of Intellectual Property Rights (2003),
https://www.boomerangbooks.com.au/private-power-public-law/susan-k-
sell/book_9780521525398.htm

d) Thomas Friedman, The Lexus and the Olive Tree: Understanding Globalization,
(Kindle edition by Thomas L. Friedman), https://www.amazon.com/Lexus-Olive-
Tree-Understanding- Globalization-ebook/dp/B002F0X0LY

2. Online Articles:

a) Globalisation 101, What Is Globalization?, (Aug.15,2017. 5.0 PM),

http://www.globalization101.org/what-is- globalization/

b) Colin Stief, Globalization- An Overview of Globalization and Its Positive and

Negative Aspects,(Aug.17, 2017. 6.30 PM),
https://www.thoughtco.com/globalization-positive-and-negative-1434946

c) WTO intellectual property - overview of TRIPS Agreement, (Aug. 22, 2017. 5.0
P.M), https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm

d) Ben Willis, The Arguments For And Against The TRIPS Agreement, (Aug.
24,2017. 6.30 PM), http://www.e-ir.info/2013/12/23/the-arguments-for-and-
against-the-trips-agreement/.
 e) World Trade Organisation, India – Patent Protection for Pharmaceutical and
Agricultural Chemical Products (Aug.27, 2017, 7.15 A.M),
https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds50_e.htm.

f) Trips And Its Impact On Developing Countries, (Aug. 28, 2017, 6 A.M),
http://www.scidev.net/global/policy-brief/trips-and-its-impact-on-developing-
countries.html.

g) Arundhati Roy, Deceptiveness of Development, Feb. 22, 2013,

http://www.buddhistpeacefellowship.org/arundhati-roy-on-the-
deceptiveness-of-development/.

h) The South Centre, South Centre Welcomes the Indian Supreme Court Decision
on Novartis Case (Aug. 20, 2017.6.0 PM),
https://www.southcentre.int/question/south-centre-welcomes-the-indian-supreme-
court-decision-on-novartis-case/.

i) Arundhati Roy, Globalisation Is Ripping Through People’s Lives, Socialist

Worker.Org, September 27, 2002, http://socialistworker.org/2002-
2/423/423_06_Roy.shtml.

j) B.S Chimni, TRIPS And Public Health: The Next Battle, (Sep.15, 2017, 8 A.M),
https://www.scribd.com/document/52829592/TRIPS-and-Public-Health-The-
next-battle.

k) B.S Chimni, International Institutions Today: An Imperial Global State in the

Making,https://www.google.co.in/search?q=g%29%09B.S+Chimni
%2C+International+Institutions+Today
%3A+An+Imperial+Global+State+in+the+Making&ie=utf-8&oe=utf-
8&client=firefox-b&gfe_rd=cr&dcr=0&ei=honYWbCZJsiL8Qf69IT4BA.

l) Aileen Kwa, WTO and Developing Countries, (Aug.27, 2017, 10 A.M),

https://www.saylor.org/site/wp-content/uploads/2013/04/ECON307-2.3-
WTOandDevelopingCountries.pdf

3. Newspaper Articles
a) John Vidal, Real Battle For Seattle, The Guardian, Dec. 5,1999,
https://www.theguardian.com/world/1999/dec/05/wto.globalisation
b) Joseph Stiglitz, Distant Voices, The Guardian, March 12, 2004.
https://www.theguardian.com/world/2004/mar/12/usa.globalisation
4. Case Laws
a) Bayer Corporation v. Union of India & Ors, (Spcl. Leave to App. (C) NO.(S).30145/2014,
Supreme Court of India).
b) Novartis AG v. Union of India, 6 SCC 1 (Supreme Court of India: 2013).