30 Changing Global Norms through Reactive Diffusion: The Case of Intellectual Property Protection of AIDS Drugs (2012)

Nitsan Chorev

Most theories on the creation of global norms and international laws do not discuss the conditions under which these norms and laws may change once in place. Yet experience suggests that norms, laws, and the interpretation given to specific provisions do transform over time. What conditions and processes allow for policy transformations? In this article, I explore this question by looking at the case of intellectual property protection. In 1994, an international agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), signed under the auspices of the World Trade Organization (WTO), obliged all member states to pass laws to improve the protection of patents.

The TRIPS agreement contained provisions describing a number of permissible exceptions, or flexibilities, in the protection of intellectual property rights, but the U.S. government was initially able to enforce a narrow interpretation of those provisions. In the years since, however, many states passed intellectual property laws with explicit references to the controversial exceptions. These exceptions include (1) compulsory licensing in which, without the patent holder’s consent, the government makes direct use of the patent or grants a license to a third-party manufacturer to commercialize a patented invention; (2) parallel importation in which a government buys a patented ...

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