Pharmaceutical napsters? A comparative study of state response to the pharmaceutical imperatives of the agreement on trade-related aspects of intellectual property rights

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was endorsed by all member states of the General Agreement on Tariffs and Trade (GATT) during the Uruguay Round (1986–1994). Since 1995, it has been governed by the World Trade Organization (WTO). I focus my dissertation on some of the policy dilemmas the treaty presents for pharmaceuticals. The TRIPS Agreement is inherently controversial because it removes the power of pharmaceutical patent decision making away from national governments and entrenches it within an international organization. It poses clear policy dilemmas for health objectives and commercial goals for many developing states that have free-riding pharmaceutical firms (rogue drug firms). I argue that the implementation of the TRIPS Agreement reveals how politicians in developing states are playing a complex two-level game between the imperatives of the international economy and domestic policy win-sets. Using a basic game theory model, I show that the best strategy for a politician in a developing state is to shirk the terms of the TRIPS Agreement to the maximum and to commit to its terms to the minimum. I present three case studies—Brazil, India, and Romania—to illustrate in detail key variables which define domestic policy win-sets and to examine whether the strategy I advance is being employed. Finally, I propose possible resolutions to the dilemmas international law for pharmaceutical patents presents and put the onus on the World Bank to assume a key role as a broker between developing states and the international research-based pharmaceutical industry.