Drahos, P. (2002). Developing countries and international intellectual property standard-setting. J. World Intell. Prop., 5, 765.

This paper delves into the intricate dynamics surrounding the impact of international intellectual property standards on developing nations, particularly exemplified by the case of the Philippines. These standards, predominantly shaped by the interests of powerful entities such as the United States and the European Union, present significant challenges for countries with fewer resources and less representation in global negotiations. The erosion of influence of developing countries on these standards, partly attributed to shifts in global alliances and leadership roles, raises concerns about the preservation of national sovereignty and hindered development, particularly in critical sectors like agriculture, health, and education.

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Before the TRIPS agreement, developing nations navigated intellectual property regimes often influenced by colonial powers, shaping laws and regulations to suit their own economic and societal needs. For instance, Vietnam's IP laws reflected Soviet influence prior to 1986, while the Philippines' patent laws underwent transformations from Spanish to U.S. influence post-1898, eventually aligning with TRIPS in 1997. The historical legacy of colonization is evident in the spread of IP laws, with British copyright law leaving its mark on countries like Malaysia. Similarly, the Berne Convention served as a tool for colonial powers to extend copyright laws to their territories, perpetuating economic interests that often disadvantaged newly independent nations. In response to these imbalances, developing countries engaged in reforms tailored to their contexts, with India's patent law reforms leading to a thriving generics industry. However, attempts by developing nations to reshape international intellectual property standards have often been met with resistance, as seen in the contentious debates over compulsory licensing of patented technology.

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The creation of TRIPS was framed as a product of fair negotiations among sovereign states, yet questions persist regarding the inclusivity and fairness of these processes. Democratic bargaining theory offers insights into the conditions necessary for equitable negotiations, including representation, access to information, and the absence of domination. While countries like India and Brazil participated in TRIPS negotiations, not all developing nations were adequately included, underscoring the need for better representation and capacity building in future international dialogues.

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The negotiations surrounding the TRIPS agreement were deeply influenced by historical patterns of exclusion and power dynamics, particularly evident in the tactics employed by the United States to advance its intellectual property agenda. Leveraging its position within the General Agreement on Tariffs and Trade (GATT), the U.S. historically favored exclusionary practices that sidelined the voices of developing countries, allowing it to shape discussions to its advantage. The "Green Room" process, characterized by closed-door negotiations among key stakeholders, served as a platform for powerful nations, notably the Quad States comprising the U.S., European Community, Japan, and Canada, to drive the agenda in alignment with their business interests. Private sector influence, particularly from the U.S., wielded significant sway over TRIPS negotiations, amplifying the disparities in representation between developed and developing nations.

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Informal groups like "10+10" and "3+3" emerged as instrumental in streamlining discussions and finalizing agreements, yet the influence of these groups was predominantly wielded by developed nations, with developing country groups finding themselves marginalized in the decision-making process. The hierarchical nature of the TRIPS negotiations further entrenched power differentials, with key decisions resting in the hands of a select few powerful entities.

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Least Developed Countries (LDCs) found themselves on the periphery of influential circles, lacking the access to information and resources enjoyed by their wealthier counterparts. The asymmetrical distribution of power was underscored by the U.S.'s utilization of Section 301 of its Trade Act, enabling it to impose penalties on countries perceived as not adequately protecting U.S. intellectual property rights. The imposition of mechanisms like "Special 301" and alterations to trade policies like the Generalized System of Preferences (GSP) served as tools of coercion, pressuring developing countries into compliance with U.S. intellectual property standards. Bilateral agreements between the U.S. and developing nations further eroded resistance to TRIPS, coercing reluctant countries into acquiescence through threats and incentives.

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Throughout the negotiation process, developing countries faced a conundrum of limited options, compelled to engage in negotiations under the looming specter of U.S. trade actions and multilateral pressure. Despite initial resistance, the realities of geopolitical power dynamics and economic dependencies gradually coerced developing nations into aligning with the TRIPS agreement, albeit often against their own interests and developmental priorities. The globalization of intellectual property (IP) norms since the 1980s, facilitated by agreements such as NAFTA and TRIPS, has significantly reshaped the landscape of international trade and governance. These agreements, while establishing minimum standards for IP protection, have granted countries the autonomy to adopt stricter regulations if they so choose. However, the implementation of these standards has not been uniform across nations, leading to disparities in IP enforcement and expertise.

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In this context, organizations like the World Intellectual Property Organization (WIPO) have played a pivotal role in expanding global IP norms and providing technical assistance to developing countries. WIPO's initiatives, including the preparation and review of draft IP laws, as well as the provision of workshops and training courses, have aimed to bridge the knowledge gap and empower nations in navigating complex IP frameworks. Nevertheless, developing countries often grapple with challenges such as limited local expertise in IP law, resulting in reliance on external consultants whose perspectives may not align with national interests. Moreover, the pursuit of harmonized IP laws has sometimes led to the adoption of TRIPS-plus models, influenced by the preferences of IP owners and bilateral agreements, potentially undermining the developmental goals of these nations. Historically, developing countries have sought international mechanisms to enhance technology access and regulate multinational corporations, yet these efforts have faced numerous obstacles. Attempts to amend existing conventions, such as the Berne Convention and the Paris Convention, have often faltered, while initiatives like UNCTAD's work on technology transfer encountered stagnation in the face of entrenched interests.

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The TRIPS Agreement, heralded as a landmark in global IP governance, has reinforced IP laws worldwide but has offered limited assistance to developing countries, exacerbating disparities in technological access and innovation capabilities. Moreover, the continued advocacy of developed nations, particularly the U.S. and EU, for stricter IP rules without commensurate technology transfer obligations has further marginalized developing countries in the global intellectual property regime. In response to these challenges, civil society organizations and regional blocs, notably the African Group, have emerged as influential actors in post-TRIPS engagement, advocating for equitable access to essential medicines and biodiversity resources. The Doha Declaration, a testament to the collective efforts of developing countries and NGOs, represents a significant milestone in addressing public health crises like HIV/AIDS, yet its long-term impact on intellectual property standards remains uncertain. The evolution of international intellectual property standards underscores the complex interplay between power dynamics, economic interests, and developmental imperatives. As developing countries navigate the intricacies of the global IP regime, concerted efforts must be made to ensure inclusive governance frameworks that promote equitable access to knowledge and innovation for all.

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The ongoing debates surrounding intellectual property (IP) rights in developing countries underscore the complexities inherent in navigating global governance frameworks. Despite high levels of dialogue on issues like traditional knowledge and the intersection between TRIPS and the Convention on Biological Diversity, tangible outcomes remain elusive, highlighting the challenges of consensus-building in diverse stakeholder environments. Forming alliances between developing countries and non-governmental organizations (NGOs) on IP issues presents further hurdles, as divergent priorities and unity issues often hinder effective collaboration. Intellectual property topics such as patenting life and geographical indications can further exacerbate divisions among developing nations, reflecting the nuanced and multifaceted nature of IP governance. NGOs themselves exhibit a spectrum of viewpoints on IP matters, with differing perspectives on issues like patenting seeds and their implications for health outcomes. While Western NGOs can wield influence through media attention, their impact is often contingent on crises such as the AIDS epidemic, underscoring the role of external factors in shaping advocacy efforts.

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Within the World Trade Organization (WTO), decision-making by consensus empowers powerful countries to block initiatives, impeding the ability of developing country alliances to effect meaningful change. Despite potential long-term losses, developing countries often sign agreements with the U.S. and EU for market access, highlighting the trade-offs inherent in global economic negotiations. To address the challenges posed by high IP protection standards, developing countries could leverage existing mechanisms like the Council for TRIPS and the WTO Trade Policy Review Body to increase transparency and assess the impact of IP policies on development. Collecting data on patent trends and economic indicators can further inform policy decisions and strengthen negotiating positions in future TRIPS negotiations.

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Forming strategic alliances among leading developing countries, akin to the Cairns Group's role in agriculture negotiations, could enhance collective bargaining power and expertise sharing. However, the effectiveness of current loose group structures remains compromised by vulnerabilities to divide-and-conquer tactics employed by stronger states. Critically reassessing the role of institutions like WIPO in development aid is imperative for developing countries, particularly in light of conflicting interests between promoting IP and affordability for less developed nations. Conducting independent cost-benefit analyses of WIPO's development spending and exploring avenues for financial support to UN development projects can inform more equitable IP governance frameworks.

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Moreover, addressing the lack of knowledge and resources among developing country representatives regarding IP as a development tool is essential for fostering meaningful public discourse and informed decision-making. Countries like India and Brazil can offer valuable insights into the impact of Western IP systems, highlighting the need for greater inclusivity and capacity-building initiatives within the global IP governance landscape. The influence of international intellectual property (IP) standards on developing countries has become a focal point of global governance discussions, with implications spanning health, agriculture, and food sectors. Developing nations seek to assert their interests in institutions like the World Intellectual Property Organization (WIPO) by adopting coordinated approaches to IP regulation, leveraging expertise from diverse sectors to shape regulations that align with their developmental goals.

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However, the current influential community shaping IP regulations within WIPO poses challenges for less developed countries (LDCs), as it often prioritizes narrow interests over broader welfare and development concerns. Non-governmental organizations (NGOs) have emerged as key actors in highlighting the impact of international IP standards on developing nations, particularly through campaigns focused on access to medicines. To maintain effectiveness, NGOs must transition from campaign-focused efforts to active participation in the IP policy process, including engagement in policy advisory committees that influence national patent offices.

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Yet, these committees are typically dominated by multinational companies and patent law experts, sidelining broader welfare considerations. WIPO's recruitment of experts from this narrow community further perpetuates the marginalization of developing countries in the creation of international IP standards. To address this imbalance, NGOs must seek membership in IP policy committees to influence long-term standards effectively.

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Developed countries have a pivotal role in supporting initiatives aimed at reforming patent regulations and reviewing WIPO's role in shaping global IP governance. Additionally, supporting the involvement of the Convention on Biological Diversity in Trade-Related Aspects of Intellectual Property Rights (TRIPS) negotiations can ensure greater consideration of environmental and developmental concerns. Trade negotiations between developed and developing countries often prioritize economic gains over the welfare of poorer nations. Despite understanding the implications for the poor, development, environmental, and health ministries are frequently sidelined in these discussions. However, the Doha trade round presents an opportunity for development ministries to assert a more significant role, potentially through the implementation of a development test using indicators from institutions like the World Bank to assess the impact of trade deals on key sectors such as health, education, and agriculture. Western countries and intellectual property owners wield significant influence in setting international IP standards, often using economic pressure to enforce rules. Before TRIPS, developing countries had more flexibility in avoiding strict IP regulations, but increased compliance has limited their strategies, pushing many towards TRIPS-like paths. This underscores the urgency for equitable representation and inclusive decision-making processes to address the evolving challenges faced by developing nations in the global IP governance landscape.

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