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New Enforcement Mechanisms Challenge the Legality of Generics in the Name of Public Health: The Emergence of Anti-Counterfeiting Legislation in East Africa

New Enforcement Mechanisms Challenge the Legality of Generics in the Name of Public Health: The... NOTE NEW ENFORCEMENT MECHANISMS CHALLENGE THE LEGALITY OF GENERICS IN THE NAME OF PUBLIC HEALTH: THE JOHANNA VON BRAUN ∗ AND PETER MUNYI ∗∗ I. INCREASED FOCUS ON ENFORCEMENT In addition to substantive changes to intellectual property law put forward through a range of different mechanisms at the international, regional and national level over the last few years, another TRIPS-plus trend has emerged. This new trend seeks to increase the level of enforcement of intellectual property law in national jurisdictions in two broad ways. The first, aiming to deter piracy, seeks to increase the level of penalty associated with, for example, copyright infringement or the distribution of pirated goods. It also includes the empowerment1 of custom officials to engage in border inspections with or sometimes even without (ex officio) any official complaint expressed by the right holders. The second, which is the subject of this paper, is the inclusion of traditionally exempted forms of intellectual property rights (IPRs), such as patents and plant breeders’ rights into anti-counterfeiting legislation. The result of this ‘substantive expansion’ of the use of the term ‘counterfeit’ is a possible confusion over the status of perfectly legal generic products such as medicines which may http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png African Journal of International and Comparative Law Edinburgh University Press

New Enforcement Mechanisms Challenge the Legality of Generics in the Name of Public Health: The Emergence of Anti-Counterfeiting Legislation in East Africa

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Publisher
Edinburgh University Press
Copyright
© Edinburgh University Press 2010
Subject
Note; African Studies
ISSN
0954-8890
eISSN
1755-1609
DOI
10.3366/ajicl.2010.0007
Publisher site
See Article on Publisher Site

Abstract

NOTE NEW ENFORCEMENT MECHANISMS CHALLENGE THE LEGALITY OF GENERICS IN THE NAME OF PUBLIC HEALTH: THE JOHANNA VON BRAUN ∗ AND PETER MUNYI ∗∗ I. INCREASED FOCUS ON ENFORCEMENT In addition to substantive changes to intellectual property law put forward through a range of different mechanisms at the international, regional and national level over the last few years, another TRIPS-plus trend has emerged. This new trend seeks to increase the level of enforcement of intellectual property law in national jurisdictions in two broad ways. The first, aiming to deter piracy, seeks to increase the level of penalty associated with, for example, copyright infringement or the distribution of pirated goods. It also includes the empowerment1 of custom officials to engage in border inspections with or sometimes even without (ex officio) any official complaint expressed by the right holders. The second, which is the subject of this paper, is the inclusion of traditionally exempted forms of intellectual property rights (IPRs), such as patents and plant breeders’ rights into anti-counterfeiting legislation. The result of this ‘substantive expansion’ of the use of the term ‘counterfeit’ is a possible confusion over the status of perfectly legal generic products such as medicines which may

Journal

African Journal of International and Comparative LawEdinburgh University Press

Published: Sep 1, 2010

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