A Structurationist Analysis of Differing Policies Oriented to the Pharmaceutical Industry: Turkey and Brazil

Introduction

Intellectual property rights have historically developed by following a way which reflects social relations, regardless of how they are examined. In this context, intellectual property rights are a tool used to analyze the ones who own these rights and the social reaction against them (Evanson & Putham, 1987: 403). The ones who own intellectual property rights gain special rights during that time in return for making the invention, which they developed, socially prominent. However, the right owners and the relationships among society determine the answers to questions such as what will be the scope of this period and what are the special rights to be gained? Another actor in the determination of the scope of the intellectual property rights is the state. The state regulates the rules of intellectual property rights in such a manner that they reflect social relations and it plays an important role in the social acceptance of these rules (May, 2000: 16-17). Furthermore, the state is expected to execute these rules without disrupting fundamental duties such as national security, social equity, and development. Intellectual property rights which occur within the framework of owners/state/society interaction represent a historical dynamic process in both time and space.

The great transformation that intellectual property rights have undergone in a quarter of a century is actually the result of the dynamic process mentioned above. On one hand, the “weightless economies” (Quah, 1997) which feature the knowledge and information technologies and service industries of developed countries, and on the other hand, the increasing technological capacities of some developing countries have made intellectual property rights which have been subject to national and international regulations an important factor of multilateral trade negotiations. It is possible to evaluate the problems intended to be solved by the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) with reference to Dutfield and Suthersanen’s study as three topics: prevention of copyright piracy, prevention of unauthorized usage of trademarks, and prevention of generic pharmaceutical manufacturers in the pharmaceutical industry (Dutfield & Suthersanen, 2005: 132). Besides, tightening of the rules which regulate intellectual property rights has not been limited only to the TRIPS Agreement under the World Trade Organization (WTO). The function of the World Intellectual Property Organization (WIPO) which has been in service as an agency of the United Nations since 1974 changed after the TRIPS agreement and turned into intellectual and pecuniary capacity construction devoted to regulations beyond the TRIPS Agreement (TRIPS-plus)¹ (May, 2007: ch.4).

The pharmaceutical industry is the leading industry to be affected by the process of the global tightening of the rules which regulate intellectual property rights. During the historical process, states limited the protection of intellectual property rights oriented to pharmaceutical industry, both in terms of time and rights. Not only the vital importance of the pharmaceutical industry for societies, but also the pharmaceutical industry’s close relations with development, security, and social justice have caused the limitation of intellectual property regulations oriented to this industry. However, the decreasing efficiency of the industry due to its internal dynamics (Yaşgül, 2009: 120-125) and increasing pharmaceutical production capacities of developing countries, as well as regulations and inspections (PhRMA, 2008) oriented to the industry in developed nations, have made the pharmaceutical industry an important factor of the TRIPS Agreement. When both the dominant positions in world markets and the risks created by the increase in generic pharmaceutical production originating from developing countries are evaluated together, it is possible to figure out why US companies form the group that most strongly supports the occurrence and application of the TRIPS Agreement under the auspices of the WTO (Drahos & Braithwaite, 2002; Sell, 2003).