South Africa says international markets have no inbuilt conscience
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Hello,
On Thursday April 19th 2001, the pharmaceutical giants have uncondi-
tionally withdrawn from a legal case that held in hostage during
three years a South-African law on medicines and related substances
which would have permitted to import cheap antiretroviral drugs or
even to produce them for keeping HIV/AIDS patients in live. In
KwaZulu-Natal, in Lusaka and other parts of sub-Saharan Africa, chil-
dren orphans of parents who died of AIDS are left on their own, often
grouping around older unrelated grand-parents. Keeping HIV/AIDS pa-
tients in health is not only an act of humanity, it is also an impor-
tant element of securing development, education, economies, tradi-
tional knowledge, agriculture, etc.
This spectacular end of a court case was in part possible by the
popular support that the South African government obtained world-wide
among "common persons" for its cause to provide access to affordable
medicines for the poor. 280,000 persons in 130 countries in less than
a month time signed an e-petition from Medecins Sans Frontieres (No-
bel Peace Price) asking the 39 pharmaceuticals to drop their case
(http://www.msf.org). For comparison the e-petition asking to keep a
Europe free of patents on softwares was signed by 74,000 persons in
10 months (http://petition.eurolinux.org).
The South African government said it is its intention to obey by the
international treaty on trade of which it is one party (member state
of the WTO). The industry is consequently claiming that it has a deal
in hand and that South Africa will implement the "intellectual
pseudo-property" in its laws (copyright and patent related treaty).
However South Africa did not say that, but said instead: <<The reso-
lution of this court case only confirms our view that international
markets, which play an increasingly important role in all our lives,
have no inbuilt conscience. But governments and ordinary people act-
ing collectively have a precious responsibility to make the huge com-
panies that dominate the markets accountable for how they respond to
the most critical issues of our times.>> Dr. Manto Tshabalala-
Msimang, Minister of Health, Republic of South Africa, 19 April 2001
(http://www.gov.za).
If analysed in more details, it reveals a series of contradicting
facts. Indeed in South Africa for a while, there were claims that
some MDs were forced to write on death certificates that children
died of malnutrition instead of AIDS; this is not the brightest part
of the South African history, but it is changing as young AIDS asso-
ciations (one of them the TAC invited to join the court case earlier
last month, <http://www.tac.org.za>) are pushing the older ruling
generation to change its views on HIV/AIDS, sexuality and the effect
of antiretrovirals.
But more importantly, the South African law will be in contradiction
with the TRIPS treaty that requests that all WTO countries implement
a normalisation of their patent and copyright laws before 2005. What
will prevail: the local law or the global norm (WTO rules such as the
TRIPS)?
Basically South Africa has until 2005 to experiment with its 1997 law
and to scientifically measure the benefit of it. It will need some
solid evidences, facts and statistics in order to know how to best
plan its next-step regarding the mandatory implementation of the
TRIPS.
In a first stage, many - if not all - African countries will pass
similar laws to that of South Africa so that they may import generic
versions of patented drugs for HIV/AIDS, TB, malaria, cholera, syphi-
lis, etc. Then it will become clear that if implemented the TRIPS
could jeopardise the benefit of compulsory licensing and of generic
production.
On another front, the copyright orthodoxy could force developing
countries to spend more funds on copyright-access than on education
and research. Companies such as the Institute for Scientific Informa-
tion are now forcing contracts that ask libraries to remove from
their computers the CD-ROM versions they own and to put instead a
web-based access to a server in the US which allows a US company to
monitor every library search queries on a individual basis (using
web-cookies) and every scientific-, social- or academic-document that
readers download. A single company could soon build a profile of each
researcher of the world that use the "WebOfScience". Libraries world-
wide could soon close as they would be no-more than an uncomfortable
computer station service with no more books on their shelves (see
also http://www.publiclibraryofscience.org).
What could follow is a new momentum among developing countries (e.g.
the 33 non-aligned countries) to tip-off the TRIPS treaty and to re-
quest that it is simply cancelled in order to keep the WTO afloat.
This is what the European Parliament identified last month when it
argued that the South African court case could put future WTO nego-
tiations to an halt.
But another direction emerges. Should the world follow the authori-
tarian course of the globalisation? Should treaties impose a norm on
all people on Earth, or should they serve as an inspiration? Where
will the dissidents of world fly away when the global world will be
legally normalised into a global commercial "nirvana"?
So many treaties were never put into application when it came to hu-
man suffering, to the protection of plant diversity, to the genuine
respect of animals, to the pollution of rivers and seas or to climate
changes, etc.! Why then should trade treaties enjoy the special
status of being implemented under such near "fanatic orthodoxy"?
These market questions are worth more than two cents, aren't they?
Christian Labadie
mailto:CLabadie@t-online.de
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Legal roadshow rolls on to Brazil
http://www.guardian.co.uk/aids/story/0,7369,475629,00.html
Special report: Aids
Sarah Boseley, health editor
Friday April 20, 2001
The Guardian
The collapse of the drug companies' court case against the South Af-
rican government is likely to be just the first victory in the battle
for cheaper medicines in developing countries.
Although the spotlight is on Pretoria, which has not yet shown any
inclination to use the Aids drugs which it can now legally obtain at
lower prices, a second legal front has already been opened in Brazil,
a country hailed as a shining example of Aids treatment in the devel-
oping world.
It is richer than South Africa and has 500,000 fewer HIV-positive pa-
tients, but that does not diminish its achievement in distributing
life-saving anti-retroviral drugs to the vast majority of patients
who need them.
It has done so by making cheap generic copies of some drugs and buy-
ing others from generic manufacturers in India. Since 1996, when it
began to provide free anti-retroviral drugs, it has halved the Aids
death rate and reduced the number confined to hospital by 80%.
But now Brazil is coming under serious attack.
Washington, at the behest of the pharmaceuticals companies, is taking
it to a disciplinary tribunal of the World Trade Organisation.
It alleges that Brazil is in breach of the Trade-Related Aspects of
Intellectual Property Rights (Trips) agreement, which enshrines pat-
ent protection for 20 years.
If Brazil loses the case it will be forced to change its laws or face
trade sanctions.
Brazil has made or imported 10 types of drugs quite legally, because
they were patented before Brazil's Trips-compliant law came into
force in 1997. Its battle is for drug patented since then.
The action lodged by the US at the WTO in January takes issue with
Article 68 of Brazil's 1996 Industrial Property Act, which says it
can legally make or import a generic version of a drug if the patent-
holding company fails to manufacture it in Brazil - local production
making it cheaper - within three years.
The clause has not yet been used. Campaigners say that the companies
and their allies are picking a fight with local legislation to in-
timidate developing countries into buying medicines at prices set by
the big companies.
Michael Bailey, a senior policy adviser to Oxfam, said: "It is part
of the systematic intimidation of Brazil and developing countries to
say if you step out of what we define as the line on intellectual
property, we will clobber you in the courts."
Developing countries are supposed to endorse Trips by 2005, and Oxfam
sees the Brazilian case as a clear signal to Argentina and India,
both of which make generic drugs and are preparing their own Trips-
compliant law.
Brazil recently won a battle with Merck, manufacturers of efavirenz,
one of the two patented drugs on which Brazil spends a third of its
Aids drugs budget.
The state pharmaceutical company imported efavirenz made in India,
saying it wanted to research the possibility of making its own copy.
Merck threatened legal action, but it has now reduced the price of
its brand of Efavirenz, Stocrin, by more than half.
Brazil is trying the same tactics on Roche, producers of the second
drug, Nelfinavir.
Despite the publicity disaster in Pretoria, the US will be reluctant
to withdraw its case against Brazil.
The biggest nightmare for the pharmaceutical industry is the possi-
bility that cheap generic versions of their new drugs may end up in
the US.
Guardian Unlimited (c) Guardian Newspapers Limited 2001
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