Compromising TRIPS: Brazil’s Approach to Tackle the HIV/AIDS Imbroglio

Abstract

The General Agreement on Tariffs and Trade (GATT), of which the TRIPS Agreement was an integral part, mandates the implementation of a harmonized patent system applicable to all member countries. Patents are instruments which provide exclusive rights for a limited period on the patentee for dealing with the product or process of his innovation and prevents others from using them without due authorization. These rights often result in monopolistic pricing of drugs making them unaffordable to large number of populations particularly from economically backward developing countries. A very relevant case is that of HIV/AIDS drugs which are not available at affordable prices to millions of patients living in African, Latin American and South East Asian countries. This article is an attempt to understand the strategies adopted by one such affected country, Brazil. The compulsory licenses provisions under Articles 30, 31 of TRIPS as well as Para 6 of the DOHA Declaration of 2001 which proclaims that public interest will supercede private interests particularly in the area of health and drugs are yet to make an impact on the problem. Whether the Brazilian model is tenable across the cross section of countries similarly affected is yet to be established. Other strategies for making the required drugs available for the control of this and similar life threatening and intractable diseases also need to be explored side by side.