ABSTRACT

Yet, despite the considerable flexibility accorded to WTO Members in dealing with competition policy, in general, and anti-competitive practices, in particular, coupled with the clear recognition in TRIPS that the latter are considered as particularly egregious, surprisingly little public attention has been accorded to the role of competition policy in advancing public health by increasing access to a sustainable supply of affordable essential medicines. While much has been said and written about the policy options available in terms of patent legislation (Berger, 2002; Correa, 2003a), surprisingly scant attention has been accorded to the interface between intellectual property and competition policy and the implications thereof for public health concerns. The literature on policy options, while not investigating the intellectual property/competition policy in any depth, clearly places the issue on the agenda. For example, Reichman (with Hasenzahl, 2003a, p5) notes that in ‘negotiations on the intersection between trade and competition policy, developing countries must remain vigilant in order to preserve the autonomy they need to curb the excesses of overly protectionist IPR [intellectual property right] policies’. The Commission on Intellectual Property Rights

(2002, p13), in discussing intellectual property and development, recommends the ‘establishment of effective competition policies in developing countries’. The Third World Network (2003, p95) also suggest that where a compulsory licence is granted to remedy an anti-competitive practice, countries ‘will have much room for flexibility with regard to its terms, and [it] will be an important tool for ensuring access to affordable medicines’.