1 See Tumwine-Mukubwa, G “Patents and technology transfer to underdeveloped countries” (1975–77) 7–9 Zambia Law Journal 1Google Scholar; Gold, ER et al “The unexamined assumptions of intellectual property: Adopting an evaluative approach to patenting biotechnological innovation” (2004) 18/4 Public Affairs Quarterly 299Google Scholar; Correa, CReview of the TRIPS Agreement: Fostering the Transfer of Technology to Developing Countries (2001, TWN)Google Scholar.

2 See Trebilcock, MJ “Economic analysis of law” in Devlin, RF (ed) Canadian Perspectives on Legal Theory (1991, Emond Montgomery) 111 at 111Google Scholar, where he writes, “if I plant corn on my farm but other people are allowed to help themselves to it when it is ripe, there is little or no incentive for me to use the land in this way. Similarly, if I spend considerable resources inventing a new product but others are able to copy my idea without making any such investments and without reimbursing me, I have little incentive to use my innovative talents in this fashion.” This viewpoint has been debunked by Stiglitz in that the motivation for creativity is not based on monetary returns, but the urge to influence ideas and to shape intellectual debate. Also, Trebilcock's corn/intellectual property products analogy is flawed in other respects. First, corn is a private good whose consumption can only be had by one person or few persons. But knowledge-based products, such as medicine, are a public good: a good whose consumption is non-rivalrous. Thus, sharing a knowledge based product does not result in knowledge exhaustion. In economic terms it is said that there is no marginal cost associated with the use of knowledge. Secondly, using the rationale for the strict protection of tangible property such as corn as a basis for the similar protection for intangible property rights is a non-starter. Tangible and intangible property rights are not the same. Intellectual property rights are not like property rights over corn. See Stiglitz, JE “Economic foundations of intellectual property rights” (2008) 57 Duke Law Journal 1693 at 1695Google Scholar; see also Diamond v Chakrabarty (1980) 447 US 303 at 304.

3 See Rai, RK “Effects of the TRIPS-mandated intellectual property rights on foreign direct investment in developing countries: A case study of the Indian pharmaceutical industry” (2009) 11 Journal of World Intellectual Property 404CrossRefGoogle Scholar.

4 See Drahos, P and Braithwaite, JInformation Feudalism: Who Owns the Knowledge Economy? (2002, Earthscan) at 2Google Scholar.

5 Paul Martin, then Canada's finance minister said, in his budget speech on 28 February 2000: “Today, the strength of a nation is measured not by the weapons it wields, but by the patents it produces; not by the territory it controls, but by the ideas it advances; not only by the wealth of its resources, but by the resourcefulness of its people. In such a world, successful nations will only be those that foster a culture of innovation. They will be those that create new knowledge and bring the product of that knowledge quickly to market. Our goal as a nation must be to lead the way”: available at: <http://www.fin.gc.ca/budget00/speech/speech1e.htm#New> (last accessed 30 December 2008) (emphasis added).

6 For a detailed discussion of the nexus between patent protection and industrial growth and development, see Schumpeter, JCapitalism, Socialism and Democracy (1976, Allen & Unwin)Google Scholar. For a discussion on the need for stronger protection of intellectual property, see: Rapp, R and Rozek, RP “Benefits and costs of intellectual property protection in developing countries” (1990) 75/77 Journal of World Trade 75Google Scholar; Gutterman, AS “The north-south debate regarding the protection of intellectual property rights” (1993) 28 Wake Forest Law Review 89Google Scholar; and Gould, DM and Gruben, WC “The role of intellectual property rights in economic growth” (1996) 48 Journal of Development Economics 323Google Scholar.

7 Agreement on Trade Related Aspects of Intellectual Property Rights: Annex 1C of the Agreement Establishing the WTO, signed in Marrakesh, Morocco on 15 April 1994. TRIPS is one of 28 agreements that make up the Final Act of the Uruguay round of multilateral trade negotiations. It came into force on 1 January 1995.

8 On the question of customary or existing rules (“primary rules”) being considered as impure and therefore in need of rules of legitimacy (“secondary rules”), see the discussion of Hart by Constable, MThe Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law, and Knowledge (1991, University of Chicago Press)Google Scholar in chap 4. In the same vein, the WTO rules had, since 1995, considered existing patent systems in developing countries to be relaxed and therefore in need of reform to comply with polished western standards. The promise was further backed by the threat of alienation from the community of trading nations if a country failed to comply with TRIPS.

9 For a discussion of the concepts of “dualism” and “monism”, and the reception of international law into domestic legal systems, see Oppong, RF “Re-imagining international law: An examination of recent trends in the reception of international law into national legal systems in Africa” (2006–07) 30 Fordham International Law Journal 296Google Scholar.

10 See Gold et al “The unexamined assumptions of intellectual property”, above at note 1 at 328.

11 Paris Convention for the Protection of Industrial Property 1883 (as subsequently revised, with the last substantive revision in Stockholm in 1967).

12 de Carvalho, NPThe TRIPS Regime of Trademarks and Designs (2006, Kluwer Law International) at 100Google Scholar.

13 Ibid.

14 't Hoen, EFMThe Global Politics of Pharmaceutical Monopoly Power: Drug Patents, Access, Innovation and the Application of WTO Declaration on TRIPS and Public Health (2009, AMB) at 9Google Scholar.

15 Drahos, P and Braithwaite, J “Who owns the knowledge economy: Political organizing behind TRIPS” (2004) Corner House Briefing 32 at 9Google Scholar, available at: <http://www.thecornerhouse.org.uk/item.shtml?x=85821> (last accessed 25 April 2009).

16 The Tower of Babel offers a metaphorical reminder of what happens when a shared “context” is completely shattered as a result of divergent opinions. See Bartlett, KT “Only girls wear barrettes: Dress and appearance standards, community norms, and workplace equality” (1993–94) 92 Michigan Law Review 2541 at 2550Google Scholar, citing Boyle, J “Modernist social theory: Roberto Unger's passion” (1984–85) 98 Harvard Law Review 1066Google Scholar.

17 See Sell, SKPrivate Power, Public Law: The Globalization of Intellectual Property Rights (2003, Cambridge University Press)CrossRefGoogle Scholar.

18 For a detailed discussion of the failure of the Enlightenment thinking which took humanity down the barbaric path of Nazism, see Horkheimer, M and Adorno, TWDialectic of Enlightenment (1995, Continuum Publishing)Google Scholar.

19 Id at xvi.

20 El-Said, M “The road from TRIPS-minus, to TRIPS, to TRIPS-plus: Implications of intellectual property rights for the Arab world” (2005) 8 Journal of World Intellectual Property 53 at 55CrossRefGoogle Scholar.

21 Id at 59–61.

22 See Bhagwati, J “What it will take to get developing countries into a new round of multilateral trade negotiations” (2001) 19 Trade Policy Research 21Google Scholar, available at: <http://www.dfait-maeci.gc.ca/eet/research/TPR_2001-en.asp> (last accessed 21 February 2009); and J Bhagwati “Don't cry for Cancún”, available at: <http://www.nytimes.com/cfr/international/20040101faessay_v83n1_bhagwati.html> (last accessed 21 February 2009).

23 On the issue of human need as the ultimate source of rights, see Woods, JM “Justiciable social rights as a critique of the liberal paradigm” (2003) 38 Texas International Law Journal 763 at 764Google Scholar.

24 Glendon, MARights Talk: The Impoverishment of Political Discourse (1991, Free Press) at 109Google Scholar (quoted in Woods, ibid).

25 See Manderson, D ‘“As if’: The court of Shakespeare and the relationships of law and literature” (2008) 4 Law, Culture and the Humanities 3CrossRefGoogle Scholar, arguing that it is faith that makes people believe in the law.

26 Sub-Saharan Africa comprises 48 developing and least developed countries.

27 See Bush, RPoverty & Neoliberalism: Persistence and Reproduction in the Global South (2007, Pluto Press)Google Scholar.

28 2007 AIDS Epidemic Update (2007, UNAIDS and WHO): UNAIDS/07.27E/JC1322E.

29 See Stiglitz “Economic foundations of intellectual property rights”, above at note 2; and Sell Private Power, Public Law, above at note 17.

30 See Namuchi, O “Kleptocracy and its many faces: The challenges of justiciability of the right to health care in Nigeria” (2008) 52/1 Journal of African Law 1Google Scholar.

31 Others call it “social disorganization” or “social dysfunction” in reference to the failures or inadequacies in the functioning of a given social system. See Smith, M and Smith, P “The problem of drug prohibition for drug users: A Mertonian analysis of everyday experience” (2005) Electronic Journal of Sociology 1Google Scholar.

32 Drahos and Braithwaite Information Feudalism, above at note 4 at 10.

33 Ibid.

34 Art 39.3 of TRIPS. See Timmermans, K “Intertwining regimes: Trade, intellectual property and regulatory requirements for pharmaceuticals” (2005) 8 Journal of World Intellectual Property 67CrossRefGoogle Scholar, noting that the protection of data further disables generic producers from entering the market until the end of the exclusivity period.

35 As Holmes has articulated, “[t]he rational study of law is still to a large extent the study of history”: Holmes, OW “The path of the law” (1896–97) 10 Harvard Law Review 457 at 469Google Scholar. History of how developed countries relied on a lax patent system that permitted technological theft has been recounted by several scholars. Now, the former beneficiaries of the lax system are clamouring for the stringent protection of drugs, among other things. See Sell Private Power, Public Law, above at note 17 at 9; and Ostergard, RLThe Development Dilemma: The Political Economy of Intellectual Property Rights in the International System (2003, LFB Scholarly Publishing LLC) at 76Google Scholar and 81–82.

36 An example of such a threat was issued against Mandela's government by the US for permitting the manufacture of generic versions of HIV/AIDS vaccines. See Ostergard, ibid. See also Stiglitz “Economic foundations of intellectual property rights”, above at note 2 at 1717.

37 See “The Doha declaration explained – TRIPS”, available at: <http://www.wto.org/english/tratop_e/dda_e/dohaexplained_e.htm> (last accessed 23 January 2009).

38 On the national treatment principle, art 3 of TRIPS (part 1) provides that each WTO member shall accord to nationals of other member states treatment no less favourable than it accords to its own nationals with regard to protection.

39 On the most favoured nation principle, art 4 of TRIPS (part 1) stipulates that any advantage, favour, privilege or immunity granted by a WTO member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other member states.

40 See Hill, S and Johnson, KEmerging Challenges and Opportunities in Drug Registration and Regulation in Developing Countries (2004, UK Department For International Development Health System Resource Centre) at 7Google Scholar.

41 See Smith, RD et al “Trade, TRIPS, and pharmaceuticals” (2009) 373 Lancet 684 at 688CrossRefGoogle ScholarPubMed.

42 Stiglitz “Economic foundations of intellectual property rights”, above at note 2 at 1717; and Finger, JM et al “Implementation of Uruguay round commitments: The development challenge” in Hoekman, B et al (eds) Developing Countries and the WTO: A Pro-active Agenda (2001, Blackwell Publishers) 115Google Scholar.

43 Stiglitz, id at 1701.

44 Id at 1717.

45 For instance, in 2001, 39 drug-makers in South Africa sued the government to strike down that country's Medicines and Related Substances Control (Amendment) Act 1997; that caused the US trade representative to blacklist South Africa under the US Special 301 watch list. On this point, see Bond, P “Globalisation, pharmaceutical pricing, and South African health policy: Managing confrontation with US firms and politicians” (1999) 29/4 International Journal of Health Services 765CrossRefGoogle Scholar.

46 Stiglitz “Economic foundations of intellectual property rights”, above at note 2.

47 Sell Private Power, Public Law, above at note 17 at 9.

48 Drahos and Braithwaite Information Feudalism, above at note 4 at 192.

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51 See the New Partnership for Africa's Development, available at: <http://www.nepad.org/2005/files/home.php> (last accessed 23 April 2009).

52 See UNAIDS Report on the Global AIDS Epidemic, 2008, available at: <http://www. unaids.org/en/KnowledgeCentre/HIVData/GlobalReport/2008/2008_Global_report.asp> (last accessed 23 March 2009). See also AVERT “HIV & AIDS in Africa”, available at: <http://www.avert.org/aafrica.htm> (last accessed 23 January 2009).

53 See Patent Situation of HIV/AIDS-Related Drugs in 80 Countries (2000, UNAIDS/WHO).

54 Bush Poverty & Neoliberalism, above at note 27 at 29.

55 Ganslandt, M et al “Developing and distributing essential medicines to poor countries: The defend proposal” in Fink, C et al (eds) Intellectual Property and Development: Lessons from Recent Economic Research (2005, World Bank and Oxford University Press) 207 at 212Google Scholar.

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57 Mswati III, king of Swaziland “State of the kingdom address on opening of the houses of Parliament” (7 February 2003), quoted in J Stewart Stewart's Quotable Africa (2004, Penguin Books) at 199.

58 See White, JB “Economics and law: Two cultures in tension” (1986) 54 Tennessee Law Review 162Google Scholar.

59 Ostergard The Development Dilemma, above at note 35 at 3.

60 UNAIDS Report 2008, above at note 52.

61 See Sell, S and May, C “Moments in law: Contestation and settlement in the history of intellectual property” (2001) 8 Review of International Political Economy 467CrossRefGoogle Scholar; See also Sell Private Power, Public Law, above at note 17 at 5.

62 For a discussion of terminologies such as “right”, “duty”, “privilege” and “power”, see AL Corbin “Legal analysis and terminology” in Henson (ed) Landmarks of Law, above at note 50, 196; see also Hohfeld, WNFundamental Legal Conceptions As Applied in Judicial Reasoning (2001, Ashgate)Google Scholar.

63 Stiglitz “Economic foundations of intellectual property rights”, above at note 2 at 1700.

64 Prindle, EJ, quoted in DF Noble America by Design: Science, Technology, and the Rise of Corporate Capitalism (1977, Knopf) at 89Google Scholar.

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66 Drahos and Braithwaite Information Feudalism, above at note 4 at chap 10; they define a “biogopoly” as a monopoly that arises from the stringent intellectual property protection of biotechnological processes and products.

67 See Temin, P “Technology, regulation, and market structure in the modern pharmaceutical industry” (1979) 10 The Bell Journal of Economics 429 at 440CrossRefGoogle Scholar.

68 See Smith, AThe Wealth of Nations (2003, Bantam) at 202–03Google Scholar.

69 Id at 87.

70 Stiglitz “Economic foundations of intellectual property rights”, above at note 2 at 1699.

71 Smith The Wealth of Nations, above at note 68 at 839.

72 See Boyle, JShamans, Software and Spleens: Law and the Construction of the Information Society (1996, Harvard University Press) at 179Google Scholar.

73 Heller, MThe Gridlock Economy: How too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives (2008, Basic Books) at 75Google Scholar.

74 Chapple v Cooper (1844) 13 M & W 252 at 258. As far back as 1844, Alderson B provided a traditional test for determining what should qualify as “necessaries”: “[t]hings necessary are those things without which an individual cannot reasonably exist. In the first place, food, raiment, lodging and the like. About these there is no doubt … But in all these cases, it must be out that the class itself is one in which the things furnished are essential to the existence and reasonable advantage and comfort … Thus, articles of mere luxury are always excluded, though luxurious articles of utility are in some cases allowed.” See also Nash v Inman (1908) 2 KB 1.

75 Sec 2(3) of the Ghana Sale of Goods Act 1962 (Act 137).

76 Ostergard The Development Dilemma, above at note 35 at 23.

77 Oguamanam, CInternational Law and Indigenous Knowledge: Intellectual Property, Plant Biodiversity and Traditional Medicine (2006, University of Toronto Press) at 23CrossRefGoogle Scholar.

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79 HC Havighurst “The right to compensation for an idea” in Henson (ed) Landmarks of Law, above at note 50, 399 at 402 (emphasis added).

80 Kihwelo “Indigenous knowledge”, above at note 78 at 348.

81 See Shiva, VBiopiracy: The Plunder of Nature and Knowledge (1997, South End Press)Google Scholar.

82 Shiva, V “TRIPS, human rights and the public domain” (2004) 7 Journal of World Intellectual Property 665 at 667CrossRefGoogle Scholar.

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84 Such a “defence” was raised when India successfully challenged the grant of a patent in the US for turmeric: US patent no 5,401,504 (filed 28 December 1993).

85 Oguamanam “Local knowledge as trapped knowledge”, above at note 83 at 41.

86 Ibid.

87 [2002] 4 SCR 153, 2002 SCC 77.

88 Id at 77.

89 Stiglitz “Economic foundations of intellectual property rights”, above at note 2 at 1701.

90 Ibid.

91 Id at 1717.

92 Id at 1714.

93 Hoen The Global Politics, above at note 14 at 71.

94 See FM Abbott and JH Reichman “Access to essential medicines: Lessons learned since the Doha declaration on the TRIPS agreement and public health, and policy options for the European Union”: EXPO/B/INTA/2007/14 June 2007 PE 381.392 (2007, European Parliament, Policy Department External Policies).

95 Morin, J-F “Tripping up TRIPS debates: IP and health in bilateral agreements” (2006) 1 International Journal of Intellectual Property Management 37CrossRefGoogle Scholar.

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97 See “The Doha declaration explained - TRIPS”, available at: <http://www.wto.org/eng lish/tratop_e/dda_e/dohaexplained_e.htm> (last accessed 22 January 2009).

98 WTO “Declaration on the TRIPS agreement and public health”, available at: <http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm> (last accessed 23 January 2009).

99 See “Neither expeditious, nor a solution: The WTO August 30 decision is unworkable” (2006, Médecins Sans Frontières), available at: <http://www.msf.ch/fileadmin/user_upload/uploads/communiques/images_2006/pdf/came_Neither_expeditious_nor_a_solution_-_August_30_and_the_JCPA_single_page.pdf> (last accessed 15 December 2009).

100 See Elliot, R “Delivering on the pledge: Global access to medicines, WTO rules, and reforming Canada's law on compulsory licensing for export” (2007) 3 McGill Journal of Sustainable Development Law and Policy 23Google Scholar; and Sell Private Power, Public Law, above at note 17 at 161–62.

101 WTO “Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and public health”, available at: <http://www.wto.org/english/tratop_e/trips_e/implem_para6_e.htM#fntext2> (last accessed 13 December 2008).

102 Srivastava, S and Satyanarayana, K “Amendment of article 31(f) is far from a ‘solution’” (2008) Indian Journal of Medical Research 84 at 86Google Scholar.

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104 Sampath, PG “India's product patent protection regime: Less or more of ‘pills for the poor’?” (2006) 9 Journal of World Intellectual Property 694 at 696CrossRefGoogle Scholar.

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106 See ibid.

107 L Taylor “Low-cost medicines for developing countries lost in red tape” (18 April 2009) Financial Post, available at: <http://www.canada.com/business/fp/cost+medicine+developing+world+lost+tape/1510996/story.html> (last accessed 23 April, 2009).

108 Bhagwati “Don't cry for Cancún”, above at note 22.

109 Ibid.

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115 Id at 330.

116 OW Holmes “Ideals and doubts” in Henson (ed) Landmarks of Law, above at note 50, 207 at 207.

117 Principle 1 of the Rio Declaration on Environment and Development 1992, available at: <http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163> (last accessed 13 December 2008).

118 Woods “Justiciable social rights”, above at note 23 at 775.

119 2002 (5) SA 721 (CC).

120 Republic v Chief Admin Officer, La Polyclinic; Minister of Health; Attorney General (High Court, 2003) (unreported).

121 Bush Poverty & Neoliberalism, above at note 27 at xiv.

122 Abbott and Reichman “Access to essential medicines”, above at note 94.

123 2002 SCC 34, [2004] 1 SCR 902.

124 Stiglitz “Economic foundations of intellectual property rights”, above at note 2 at 1704. For a detailed exposition on the patenting of basmati rice, see Chandola, HV “Basmati: Geographical indication or mis-indication” (2006) 9 Journal of World Intellectual Property 166CrossRefGoogle Scholar.

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126 Art 8(j) of the UN Convention on Biological Diversity 1992.

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131 Smith The Wealth of Nations, above at note 68 at 110–11.

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