E-drug: MSF's article in Le Monde on post Doha
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Don't renege on Doha, by Ellen 't Hoen and Pierre Chirac
In November 2001, the World Trade Organisation (WTO) summit in Doha
concluded with a number of agreements, including the famous declaration "on
public health", which was universally welcomed. This declaration can be
summarized by its Article 4, which states: "The TRIPS agreement does not and
should not prevent members from taking measures to protect public health."
This declaration has important political and legal implications. For the
first time since its creation, the WTO recognizes a hierarchy of values, the
primacy of public health over free trade, and more specifically that
medicines are not like any other commercial product. Other articles of the
Doha Declaration are more explicit in recognizing that States can exploit
safety clauses within TRIPS (compulsory licenses and parallel imports).
Compulsory licenses provide an essential balance within the patent system,
allowing governments to override a private monopoly when necessary for the
public good, for example if the patent holder abuses their dominant
position, or in case of public health need (refusal or incapacity of the
patent holder to sell their medicine in a country, inaccessible price,
and so on). The legitimacy of compulsory licenses is clearly affirmed in the
Doha Declaration. This recognition is crucial since, after the full
implementation of the TRIPS agreement, the possibility of obtaining quick
access to generics will depend on the possibility of issuing compulsory
licenses.
Some countries lacking a local industry will not be able to exploit this
safeguard, as this mechanism is foreseen by the TRIPS agreement only for a
predominantly domestic market. WTO Members recognized this problem at Doha
and tasked the TRIPS Council to propose a solution before the end of 2002.
The TRIPS Council will meet on 25 June in Geneva.
The TRIPS agreement imposes a policy of intellectual property copied from
those of industrialized ones. Until the signing of the WTO agreements, the
organisation of patents was based on the Paris Convention, to which
adherence was voluntary, and which did not oblige the patenting of all
technological domains, nor to provide a minimum period of patent protection.
The TRIPS agreement generalizes patents for a minimum of 20 years to all
sectors.
Developed countries took their time before adopting patent legislation,
often waiting until their industrial ability had reached a certain level.
These countries adopted patents in three steps : absence of patents, patents
on processes, then patents on products and processes. Through the TRIPS
agreement developed countries have succeeded in
preventing developing countries from taking this stepwise approach.
The application of the TRIPS Agreement is leading to a reinforcement of the
market monopoly and the disappearance of sources of affordable medicines
from other countries like Brazil and India. From now on, compulsory licenses
and parallel imports represent the only means of escaping from excessive
prices.
These safeguards are not a concession made to developing countries, but are
part of a panoply of measures used by developed countries. The US and
Canadian governments did not hesitate for an instant during the anthrax
scare of Autumn 2001 in considering the use of Indian ciprofloxacin (an
anthrax antibiotic), even though this drug is patented by Bayer.
Compulsory licenses are precisely described and framed within the TRIPS
Agreement. The patent holder is always compensated. As such, we are very far
from a situation of intolerable losses to the global pharmaceutical market -
for whom sub-Saharan Africa for example represents less than 2% of the
global pharmaceutical market.
The possibility of issuing and exploiting compulsory licenses is a
fundamental indicator of the balance within a patent system. Currently the
TRIPS Agreement benefits least those countries that are least-advantaged.
This is both a paradox and a profound injustice.
WTO members took a first step to resolving this problem in Doha. What
measures are now taken should be judged on their effectiveness in resolving
public health problems, in a just and equitable way, without discrimination
between countries.
But the process is unequal. The measures proposed today by industrialized
countries are accompained by numerous conditions which render the process
too burdensome for the countries that need them. Industrialized countries
have only put forward proposals with the greatest reticence, even ill-will.
The 'Spirit of Doha' has been completely forgotten, and the political
opening that was won half a year ago risks being ruined.
Ellen't Hoen, is the co-ordinator of the Globalisation project within
M�decins Sans Fronti�res Access to Medicines Campaign. Pierre Chirac is a
consultant for the campaign.
Copyright: Le Monde 2002.
pierchir@club-internet.fr
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