Corporate wealth or public health? WTO/TRIPS flexibilities and access to HIV/AIDS antiretroviral drugs by developing countries

Between 1994 and 2003, the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement of the WTO was refined to allow for flexibilities in the use of compulsory licences to import and export ‘generic’ varieties of pharmaceutical products, including ARV drugs for the treatment of HIV/AIDS. After summarising this process, and assessing its implications in practice for developing countries, this article briefly places the current regime in a longer-term context of the institutional protection of patents in Britain and Europe dating from the nineteenth century. It traces how that pattern, which benefits major patent holders, continues to be present in TRIPS. The article goes on to demonstrate the continuity of corporate influence over the state, as expressed in the ‘TRIPS-plus’ conditions, which are appearing in bilateral free-trade agreements between the USA and either individual developing countries or regional groupings. This array of what amount to institutional obstacles to the sustained availability of cheap drugs presents serious problems for future operations of the supply chain for many imported medicines and, in the case of HIV/AIDS, has negative implications for the long-term clinical effectiveness of the most widely used drugs.