The Doha Waiver and its Effects on the Nature of the TRIPS System and on Competition Law: The Impact of Human Rights

Abstract

The Doha Waiver and permanent exception on compulsory licensing for exportation of generic drugs marks the beginning of a new regulatory triangle of intellectual property rights, competition law and human rights. This paper restates the background of the Waiver and explores its regulatory implications. Following a discussion of its main contents and implications, in particular on the concept of territoriality of IPRs, a comparison is made with the TRIPS Agreement as adopted in 1995. The analysis indicates that the need to adopt a Waiver and the Amendment to the TRIPs Agreement was mainly due to the lack of appropriate competition policies, while the TRIPS Agreement itself offers sufficient scope to address the problem of access. The paper discusses established doctrines of competition, in particular the US and EU, focusing on innovation rather than distribution. It draws a number of lessons for future work in the field. The impact of human rights on distributive goals of competition policy needs further examination with a view to the adoption of common principles in future negotiations while leaving ample leeway to address diverging requirements in addressing basic needs protected by human rights.

Keywords: Trips agreement, Doha waiver, Human rights