Since the adoption of the TRIPS agreement in 1994, the impact of intellectual property on

409 Pages·2017·1.87 MB·English

by  Christine Middleton

Actor-Network Theory and Socio-Legal Objects:
Analysing TRIPS and Pharmaceutical Patents in the
Republic of Djibouti

By Emilie Cloatre, LLM, MA.

Thesis submitted to the University of Nottingham
For the degree of Doctor of Philosophy, November 2005

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ABSTRACT

This research analyses the role and action of the Trade Related Intellectual
Property Agreements (TRIPS) and pharmaceutical patents in the public health
network of Djibouti, by using an approach largely inspired by actor-network
theory (ANT). In doing so, it addresses issues that run beyond the specificities
of this case study and relate more broadly to the relevance of ANT to socio-
legal analysis.

The relation between TRIPS, pharmaceutical patents and public health in
developing countries has been a widely debated issue in the past decade.
However, the field remains limited by a relative uniformity in the range of
approaches and case studies chosen in existing research. This project aims to
address some of these limits, by looking at the role of TRIPS and
pharmaceutical patents in a small country with no local pharmaceutical
industry, no pre-existing official system of intellectual property, and with a
largely undocumented public health system.

Using ANT in this project allowed for the complexity of the mechanisms of
both TRIPS and pharmaceutical patents to be highlighted. It participated in
emphasising that they need to be understood as made of multiple, co-existing
dimensions. By demonstrating how specific connections and associations have
shaped what TRIPS and pharmaceutical patents are and do in the networks of
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Djibouti, this research emphasises the artificiality of the dichotomy between
social and legal, and proposes an understanding of social connections as
symmetrical and co-dependent. It discusses the more general relevance of this
approach to socio-legal research.

The example of Djibouti also allows for new questions to be raised in relation
to the actual impact of TRIPS and pharmaceutical patents in “developing
countries”. In particular, it emphasises the need to return to a more balanced
approach to the relation between pharmaceutical patents and health in poor
countries.

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Acknowledgements

I would like to thank my supervisors, Prof. Robert Dingwall, Prof. Tamara
Hervey and Dr. Paul Street for all their help, advice and support during my
PhD.

I am also most grateful to all those who helped me by reading and discussing
aspects of my work, and those who introduced me to new, much needed
vocabulary and helped me correct the most clumsy of my sentences.

The past three years – and even more so the last few months – would never
have been as manageable without the great support that I enjoyed from my
friends, in England and in France. Although I cannot thank everyone
individually, I want to put a special note to Jemima Agyare and Juliette
Salabert who have been the most efficient answer to any stress attack I might
have had in the last few months. In the same way, and as always, I am very
grateful to my family for simply caring and being there, and for always
encouraging and supporting me.

I also need to thank everyone in Djibouti for making my fieldwork not only
possible and instructive, but a highly enjoyable experience.

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Finally, I need to give the biggest thanks to my partner, Pritesh Shah, for all his
patience, care and support, which made the last three years not only possible,
but also very happy times.

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TABLE OF CONTENTS

INTRODUCTION p.1

CHAPTER 1 - TRIPS, PHARMACEUTICAL PATENTS AND
PUBLIC HEALTH IN “DEVELOPING COUNTRIES” p. 18

SECTION 1: PATENTS BEFORE TRIPS – A VARIETY OF APPROACHES
JUSTIFIED ON ECONOMIC GROUNDS p. 20
SECTION 2: TRIPS AND THE FRAMING OF PHARMACEUTICAL
PATENTS AS A PUBLIC HEALTH ISSUE p. 53

CHAPTER 2 - INTRODUCING ACTOR-NETWORK THEORY p. 77

SECTION 1: SOCIOLOGICAL RESEARCH AND
MOBILITY OF ORDERINGS p. 79
SECTION 2: UNDERSTANDING TRIPS AND
PHARMACEUTICAL PATENTS THROUGH ANT p. 105

CHAPTER 3 - METHODOLOGY p. 116

SECTION 1: HOW TO BE A “CONSTRUCTIVIST”
AND A “SCIENTIST”? p. 118
SECTION 2: NARROWING DOWN THE FOCUS OF ANALYSIS p. 130
SECTION 3: METHODS FOR DATA COLLECTION p. 138
SECTION 4: ETHICS p. 158
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SECTION 5: APPROACH TO DATA ANALYSIS p. 163
SECTION 6: ASSESSING THE VALIDITY OF RESEARCH
METHODS AND FINDINGS p. 166

CHAPTER 4 - FINDING TRIPS AND PATENTS: AN
INTRODUCTION TO THE VIEWPOINTS CHOSEN p. 174

SECTION 1: INTRODUCING DJIBOUTI p. 176
SECTION 2. DJIBOUTI AND IPR LAW – PRE-TRIPS
“IPR SYSTEM” p.183
SECTION 3: PUBLIC HEALTH IN DJIBOUTI: DEFINING
SOME TERMS AND NETWORKS p. 188
SECTION 4: DEVELOPMENT OF A LOCAL PHARMACEUTICAL
INDUSTRY IN DJIBOUTI – IS IT A TRIPS ISSUE? p. 203

CHAPTER 5 - TRIPS AND “LEGAL” ASSOCIATIONS-
UNDERSTANDINGTHE ROLE OF TRIPS
AS PRESCRIPTION p. 210

SECTION 1: TRIPS IS CHANGING WRITTEN, NATIONAL LAW… p. 212
SECTION 2: … BUT DOES IT REALLY MATTER? p. 219
SECTION 3: ACTION AND CIRCULATION IN DJIBOUTI p. 230

CHAPTER 6 - EMBEDMENT OF PHARMACEUTICAL
PATENTS IN THE DRUGS USED IN DJIBOUTI p. 249

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SECTION 1: PHARMACEUTICAL PATENTS AS
DETERMINANT TO THE LOCAL PHARMACEUTICAL MARKET p. 251
SECTION 2: ENROLMENT AND ACTION OF PATENTS IN THE
PHARMACEUTICAL MARKET OF DJIBOUTI
– HOW DO THEY GET THERE? p. 262

CHAPTER 7 - TRIPS, PHARMACEUTICAL PATENTS
AND HEALTH IN DJIBOUTI - UNDERSTANDING TRIPS
IN ITS NETWORKED EFFECTS p. 287
SECTION 1: UNDERSTANDING THE LINKS BETWEEN TRIPS,
PATENTS AND HEALTH p. 289
SECTION 2: RE-ORDERING OF HEALTH NETWORKS
AND DISLOCATED EFFECTS OF TRIPS p. 298

CHAPTER 8 - CONCLUSION p.329

SECTION 1: EXPECTATIONS AND DISRUPTIONS:
TRIPS AND PHARMACEUTICAL PATENTS IN ACTION IN DJIBOUTI p. 331
SECTION 2: UNDERSTANDING SOCIO-LEGAL
OBJECTS THROUGH ANT: STRENGTHS AND LIMITS
OF THE METHOD p. 346

BIBLIOGRAPHY p. 354

APPENDIX I: LIST OF INFORMANTS

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INTRODUCTION

This research discusses the role and impact of pharmaceutical patents and the
Trade Related Intellectual Property Agreement (TRIPS) on health networks in
Djibouti. Based on actor-network theory (ANT), it provides an understanding
of these two instruments as multi-dimensional and fragile systems, enrolled in
a multiplicity of mobile and changing social networks. It emphasises their
nature as “socio-legal objects”1. Overall, this research explains how the
complexity of the links between TRIPS, pharmaceutical patents and health can
best be understood by looking at the different roles and mechanisms of each
instrument within the several networks of which they are part. The impact of
these instruments on health can then be explained while acknowledging the
complexity of the changes generated, as the result of the multiple actions and
shapes of both TRIPS and pharmaceutical patents as complex actor-networks.

1 Although the term will become clearer throughout the following chapters, the notion of
“socio-legal objects” needs to be briefly explained. First, the term “socio-legal” is used
throughout when designating TRIPS and pharmaceutical patents, as a way to emphasise the
absence of dichotomy between what is sometimes understood as two “fields” or “dimensions”,
but is considered throughout this project as series of fluid and interrelated associations. Second,
it should be emphasised that the term “object” should not be understood as pre-determining
any form of “passivity” – partly because ANT puts forward the idea that any entity is always
both acting and acted upon. Although the term “actant” used in some ANT writings could have
more explicitly emphasised this idea, it was decided that the less “cryptic” notion of “socio-
legal object” would be used throughout, while emphasising early in this project that this should
not preclude their active role.
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TRIPS and pharmaceutical patents in a least developed country

Although intellectual property has been a matter of national law and policy for
a long time, the adoption of the TRIPS agreement in 1995 has created new
international standards and requirements in the field. The adoption of TRIPS
has generated important debates and disagreements amongst actors. Opposition
to the text focused in particular on the potential risks and benefits that these
new intellectual property (IP) standards would have for poorer countries.

Within TRIPS, pharmaceutical patents has been one of the most controversial
areas, and has been taken up as a key ethical problem in a wide range of arenas.
They have generated oppositional discourses and positions, in which TRIPS
and pharmaceutical patents have been framed and understood in a
fundamentally different way by different groups.

Broadly, the relation between TRIPS, pharmaceutical patents and health in
poor countries has been fitted within two main sets of discourses. On the one
hand, many have expressed the view that pharmaceutical patents in the form
required by the TRIPS agreement would create obstacles to access to health.
Based on the idea that stronger patents would have a negative effect on the
availability of generic drugs, and therefore on the cost of medical treatment
worldwide, this position explained how strengthening patents would make
modern drugs unaffordable for people already in a critical health situation. This
idea has been reframed in similar terms in the media, and has resulted in a
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