E-drug: IPRs vs Medicines: Third World Network report (fwd)
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TWN INFO SERVICE: 8 July 2000
BATTLE BETWEEN IPRs/TRIPS AND ACCESS TO MEDICINES
A Report on What Happened at the Social Summit Geneva June/July 2000
Dear friends and colleagues
The World Conference on Social Development was held in Geneva on
26 June to 1 July 2000. It was a special session of the UN General Assembly
to review the five years since the Copenhagen Social Summit of 1995. Many
NGO activities were also held in parallel events.
One of the key issues in both the official and NGO events was the right
of people to essential medicines at affordable prices, for diseases such as
AIDS and malaria, and how this right was being undermined by patents and the
IPRs regime established by the WTO's TRIPS Agreement.
Attached is a Report on how this issue was treated at the UN General
Assembly special session on social development, and at a NGO event,
in Geneva. The Report is written by Cecilia Oh of the Third World
Network.
This is distributed as part of Third World Network's information service
for NGOs and the public. For further information, please contact us at
twnet@po.jaring.my. Also, check the TWN website at www.twnside.org.sg.
With best wishes
Martin Khor (TWN).
Patents versus Affordable Medicines at Geneva 2000
By Cecilia Oh, Third World Network (twnet@po.jaring.my)
Geneva, July 8, 2000
One of the key decisions of the UN General Assembly Special Session
(UNGASS) on Social Development that ended last Saturday, was that
governments may freely exercise the options available to them under
international agreements to protect and advance access to life saving
and essential medicines.
One would be forgiven for thinking that this is hardly headline-making
material. But the negotiations, the trade-offs and the behind-the-scene
manoeuvrings that had gone into getting such an agreement does make
for some interesting reading. Indeed, the issue of patents and
essential medicines
had become one of the most talked about and controversial topics among both
governments and NGOs at UNGASS.
Was anything achieved? In terms of real progress for addressing the need of
developing countries and poor peoples' access to life-saving drugs, perhaps
not much. In terms of bringing to light the efforts of some of the developed
countries in pushing the agenda of pharmaceutical corporations, quite a bit.
The high cost of patented medicines, especially for AIDS treatment, has been
a matter of great concern to the developing countries, especially African
countries because of the high incidence of AIDS in the region.
Prior to the UNGASS in Geneva, discussions had already taken place in the UN
in New York, during the preparatory sessions. There, developing countries
had proposed that countries should be allowed to make use of the existing
provisions in the TRIPS Agreement, for circumvention of patent rights over
pharmaceutical products, so as to enable life-saving medications to be
provided at affordable cost in developing countries.
In particular, South Africa had proposed that governments should recognise
that "intellectual property rights under the WTO-TRIPS Agreement should not
take precedence over the fundamental human right to the highest attainable
standard of health care", nor should it take precedence over "the ethical
responsibility to provide life saving medications at affordable cost to
developing countries and people living in poverty".
The US and EU had objected to this proposal. The EU countered the South
African proposal with an alternative text, which acknowledged the importance
of intellectual property rights, whilst recognising the limited exceptions
to normal patent rights that may be used in particular case, such as that of
a national emergency.
Both these texts came to Geneva in square brackets, denoting disagreement.
In Geneva, the developing countries in the Group of 77, proposed a new and
even stronger text, which would exclude patentability of essential and
life-saving medicines in order to advance access to such medicines at
affordable prices. This language further recognised that intellectual
property rights under the TRIPS Agreement should not take precedence over
the human right to health care, and the ethical responsibility to provide
life-saving medicines at affordable prices.
Again, the developed countries - US, EU, Canada, Japan and Australia -
objected to this proposal. In a dialogue session with the NGOs, an EU
delegate explained that the EU opposed the G-77 text because the exclusion
of patentability would reduce incentives for drug companies to carry out
research and development.
Thus in Geneva, the EU proposed an alternative text stating the importance
of IPRs in providing incentives for research and development. The EU text,
however did point out the inherent flexibility of the TRIPS Agreement, which
could be used to improve access to drugs for developing countries.
The G-77 position was similar to the stand taken by several NGOs involved in
the health, development and human rights areas. One of the more interesting
NGO-organised events during the week in Geneva was a workshop on "Shameful
Profits: AIDS, Drugs and TRIPS", organised by the Norwegian Forum for
Environment and Development.
Health NGO leaders, including Zafrullah Chowdury of Bangladesh and Ellen't
Hoen of M�dicins Sans Fronti�res (MSF) expressed outrage on how
pharmaceutical companies were making large profits through patents on
their products, by which they secured monopolies, enabling them to
charge high prices at the expense of the poor people.
�Medicines cannot be treated as mere commodities, access to medicines is a
question of life or death�, asserted Ellen�t Hoen, the Drug Policy
Consultant of MSF. She cited several examples of how patenting of drugs has
resulted in consumers having to pay exorbitant prices for branded essential
medicines, many times more than the cost of generic alternatives.
She also stressed that the proper role of intellectual property protection
was to balance the private rights of innovators, against the broader
interest of the public. In a policy paper for MSF, she advocated that the
future review of the TRIPS Agreement should include an exception for
essential health care products from patenting. "Protecting public health
should have primacy over commercial interests", she added.
It was obvious that the developed country governments did not share the same
perspective as the G-77 or the NGOs, during the Geneva negotiations. They
fiercely resisted the G-77 proposal to exclude essential medicines from
patentability. There were also varied attempts on their part to de-link
human rights (or the right to health) from intellectual property rights and
the TRIPS Agreement, including through the use of commas and full stops in
the text.
The attempts to drastically dilute the G-77 position succeeded. However, the
G-77 managed to fight for a compromise text, in which the rights of people
to health and the rights of national governments to exercise their options
freely within international agreements were affirmed.
It may be argued that the G-77 only managed to include what was already
within the rights of its member countries. Nevertheless, the explicit
stating of these rights and in such a manner, was seen by many of the
delegations as a moral victory.
The final agreed text is in four separate sentences. The first two sentences
affirm the human right to the "highest attainable standards of physical and
mental health" and "the critical importance of access to essential medicines
at affordable prices".
The third sentence acknowledges the "contribution of intellectual property
rights to promote further research, development and distribution of drugs,
and that these intellectual property rights should be contribute to the
mutual advantage of producers and users of technological knowledge and in a
manner conducive to social and economic welfare". The EU and the US had
insisted on the reference to the contribution of intellectual property
rights; however, the G-77 managed to balance this with the rest of the
sentence with language from Article 7 of the TRIPS Agreement.
The final sentence reaffirms that "countries may freely exercise, consistent
with national laws and international agreements acceded to, in an
unrestricted manner, the options available to them under international
agreements to protect and advance access to life-saving and essential
medicines".
The G-77 saw this as a crucial statement to make because of the negative
experiences of countries such as South Africa, which had recently come under
intense pressure from the US when they attempted to introduce national laws
on medicines that would have given their governments the ability to
implement compulsory licensing provisions (which are, in fact, allowed under
TRIPS).
Thus, the references to "freely exercise" and to "an unrestricted manner"
were seen by the G-77 as strengthening their right to resist unilateral
pressures from the US or any other country, if and when they choose to
exercise the right to opt for compulsory licensing and other measures, as
allowed in international agreements (such as TRIPS).
Some public groups point to the irony and double standards involved when the
US puts pressure on developing countries not to introduce compulsory
licensing. "In fact, the United States laws have very good provisions on
compulsory licensing, which are used all the time. Why should the developing
countries not be able to use similar provisions?", asked Ellen 't Hoen of
MSF.
Perhaps, it is true from a legal standpoint that paragraph 80 of the UNGASS
text on patents and essential medicines may not have been much of an advance
in the realm of international law, for the interests of the consumer or
developing countries. However, the process of hard negotiations in the
formulation of the paragraph served a useful purpose in raising the
awareness of both the governments of developing countries as well as NGOs,
on the threat posed by the present intellectual property rights regime, to
the attainment of health care.
What can be predicted is an increase in NGO action and campaigns to promote
health care above the corporate ownership of patents. As a health activist
said in Geneva last week, " It is no exaggeration to say that hundreds of
millions of lives are at stake, given the AIDS epidemic and the resurgence
of diseases. It is obscene that corporations can be given patents to make
monopoly profits at the expense of these lives. Something has to give. And
that something should be the patent regime, and not those hundreds of
millions of lives."
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