Artikkeliväitöskirja (G5)

Intellectual Property, Developing Countries and the Law and Policy of the European Union : Towards Postcolonial Control of Development




Julkaisun tekijät: Acquah Daniel Opoku

Kustantaja: IPR University Center

Paikka: Helsinki

Julkaisuvuosi: 2017

ISBN: 978-952-68788-0-5

eISBN: 1796-8194

Verkko-osoite: http://urn.fi/URN:ISBN:978-952-68788-0-5

Rinnakkaistallenteen osoite: http://urn.fi/URN:ISBN:978-952-68788-0-5


Tiivistelmä

The control of knowledge and information in the 21st century is a battleground. The reason is simple: information has become a ‘prime resource’ in modern economic life. The complex ecosystem of information is encapsulated in legal parlance as intellectual property. Characteristically intellectual property regimes create policy restrictions, in the form of exclusive rights to commercial use, on the otherwise free availability of knowledge and information in order to compensate for the cost of production of the knowledge or information. The exclusive rights, in effect, make access a saleable commodity and create the basis of markets for knowledge and technology. While these exclusive rights enable knowledge and technology markets, they also create social tension over the price of access and the lack of access. We have seen this tension played out in relation to access to medicines and biomedical technologies.

This thesis attempted to provide the first integrative analysis of how the EU’s rulemaking on intellectual property, both at home and abroad, impacts the ability of developing countries to utilize the flexibilities flowing from the TRIPS Agreement to promote public health and access to medicines. The EU’s intellectual property policy has been conceptualized as comprising two distinct but intertwined normative regimes – the internal and external. The thesis argues that the EU’s internal and external intellectual property policies have developed in manners that are tightly intertwined and detrimental to developing countries’ ability to promote public health and access to medicines. It problematizes the issue in the context of postcolonial theory, supplemented by other theories. This theory underscores the notion that the overly compliant attitude of most developing countries towards international intellectual property laws – despite their obvious effects on their economies – goes beyond contemporary political and economic circumstances. It can be attributed to the colonial roots and neo-colonial structures of this body of law, perpetrated through the EU’s internal and external policy. The development of this law has been complicit in legitimizing the economic control of developing countries at the expense of their development.

The overall finding is that the current EU intellectual property policy making approach, both at home and abroad, does not offer the necessary freedom for development in developing countries. It simply works to protect the EU’s industrial interest, with serious implications for public health. This observation is supported by the findings of five individual essays, which recommends, among others, for the EU to streamline its development, industrial and trade policies in ways that could simultaneously meet the development and health care needs of developing countries and the EU’s economic interest. Externally, it recommends that developing countries should not be forced to adopt the kind of laws discussed in this thesis through Free Trade Agreements. If they are, the following measures should be considered: (1) inclusion of a clause on transitional arrangements for developing countries specific to intellectual property in the Free Trade Agreements; (2) inclusion of a mandatory clause that clearly links the objectives for intellectual property protection and enforcement to a balance between the promotion of technological innovation and access to medicines; (3) framing the provisions on public health in the Free Trade Agreements as mandatory requirements or express exceptions, which will stipulate that the implementation of the Free Trade Agreement cannot lead to derogation from the protection of public health; (4) the inclusion of strong and comprehensive sustainable development chapters in the Free Trade Agreements, which are to be effectively implemented and enforced; and (5) allowing for reservations within the meaning of Article 19, Vienna Convention on the Law of Treaties in future Free Trade Agreements. Finally, the concept of substantive equilibrium has been proposed as a means of delinking the EU’s intellectual property policy from post-colonialism.


Last updated on 2021-24-06 at 08:26