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Africa wants Special TRIPS Council meet on patents and drugs

by Chakravarthi Raghavan

Geneva, 4 Apr 2001 -- The range of issues relating to essential medicines at affordable prices, patents and Trade-Related Intellectual Property rights, are now expected to be brought up and discussed at a Special session of the WTO Council on TRIPS in June.

The African group of countries at the WTO have mooted the proposal and said they want a special session of the TRIPS Council, preferably to be held before the summer break, to address the issues relating to TRIPS, patents and access to medicines, to ensure a speedy resolution of the crisis, and for the outcome “to feed” into the preparatory process for the fourth ministerial conference.. The African proposal received wide support from other developing countries - and has clearly put the major industrialized nations, the pharmaceutical industry and the WTO secretariat on the defensive.

The WTO secretariat and the secretariat of the World Health Organization have convened a workshop of experts next week in Norway to discuss the issue of ‘Differential Pricing and Financing of Essential Drugs’.

Judged by the background papers for the meeting produced by the two secretariats, the ideas they have floated far from moving in the direction of a solution, may in fact prove to become part of the problem. In floating the idea of differential pricing by pharmaceutical companies in different markets, the WTO paper in effect would bring in the concept of pricing on what the market can bear, segmentation of markets, and national and international regulations to prevent ‘leakage’ from a lower-priced to a higher-priced market. Also mooted in this connection would be anti-competitive, monopolistic and oligopolistic technology restrictive practices and other practices that are normally considered anti-competitive.

Some of the ideas have been cloathed in questionable economic concepts..

At an informal meeting of the TRIPS Council Wednesday morning, the US and EC suggested that the issue could be considered at the next June regular session, devoting if needed one day to the issue. The Zimbabwe statement said that there was now a crisis of public perception about the IPR system and the role of TRIPS leading to a crisis of legitimacy for TRIPS, and members of the WTO could not shut their eyes and ears but must discuss the range of issues and respond adequately and appropriately.

In informal consultations before the meeting, when the Africans said they wanted a Special Session to discuss this issue, major industrialized countries preferred discussing the issue at the next (June) ordinary regular session of the Council. This would serve to lower the profile of the issue, at the same time give the image of the WTO being concerned with the plight of the developing countries and the poor in getting access at affordable prices to essential drugs. This would also have helped to diffuse the mounting civil society criticism outside that is raising questions of legitimacy, not only about patents. and the global monopolies provided to the pharmaceutical firms, but the Intellectual Property System and its illegitimate place in the trading system itself.

However, the African group appears to have decided to have the issue discussed at a one-day Special Session, rather than allow it to be merged into the TRIPS Council agenda, and gradually bottled up.

In their statement, the African Group said they want the issue to be addressed and a speedy resolution to the crisis obtained, rather than the two-yearly review of implementation of TRIPS envisaged in Art 71.1.

The statement by Zimbabwe at the TRIPS Council said that given the urgency of these matters, the African group had deliberately avoided raising the issue under Art. 71.1 of the TRIPS (review of implementation of the agreement) and would insist upon it “in order to ensure a speedy resolution of the crisis.” The discussions of the issue at the TRIPS Council, the African group said, should feed into the preparatory process for the 4thMinisterial meeting at Doha.

In raising the issue, the African group said, it was neither intending to be accusatory nor deliberately provocative, but wanted to bring into the Council an issue that had aroused public interest and was being actively debated outside the WTO, but one which the WTO could not afford to ignore, especially give the need to clarify the role of IPR protection in dealing with pandemics like AIDS and other life-threatening diseases.

The issues raised in the debate, Zimbabwe’s Tadeus Chifamba said, ranged from the recognition of the importance of providing incentives for Research and Development in the development of new and effective pharmaceutical products to the question of affordable access to such products by people in need, especially those in developing countries.

Within the context of this public debate, the African group statement pointed out, affordable access is linked to prices/pricing and patent protection is linked to exclusive and monopoly rights which at times led to uncompetitive practices.

The public interest in the issue, the African group pointed out, has been aroused by the extremely high prices of some medicines, including those needed to treat serious and life-threatening diseases.

The most outstanding example is the high cost of drug treatment for AIDS—“the cost being charged is many times above the cost of production, including investment into research and development.” Although medicines is an obvious example, “there are also many other cases of the prices of patented medicines for other diseases being way beyond the reach of millions of people, especially in the developing countries.

Prior to TRIPS, the African Group pointed out, countries were able to decide themselves whether or not to exclude pharmaceutical products from patentability.  And many countries had chosen to do so on the ground that medicines are essential products required by their people to save lives, treat diseases and promote health.

Although the TRIPS Agreement allowed developing countries the flexibility to apply patents in ways that still enable the protection of the health of their people, Zimbabwe said, “recent legal challenges by the pharmaceutical industry and some members in national law and the WTO/DSU have highlighted the lack of legal clarity on the interpretation and/or application of the relevant provisions of the TRIPS Agreement.”

“Moreover, attempts have been made by some developed countries through bilateral and regional arrangements to get developing countries to apply TRIPS-plus measures, or to forego their rights.

“All this has further aroused public interest and led to the conclusion, in some quarters, that patents have enabled drug companies to raise prices of their products far above the levels that can be afforded by a great number of people.  Further, it is argued that contrary to the principles and objectives of the TRIPS Agreement, the present model of intellectual property rights protection is too heavily tilted in favour of rights holders and against public interest.

“In the same manner, patent protection is seen whether rightly or wrongly, as shielding drug firms from competition from other firms and other products.”

“A human tragedy of mind-boggling dimensions and emergency proportions,” Zimbabwe said, “is now at hand. In some countries, more than a quarter of the adult population has HIV, and life expectancy in these countries is projected to decline dramatically in the next ten years. Besides AIDS, the death toll is also unacceptably high, as annually, eleven million people (most of them from developing countries) are dying from preventable and treatable infectious diseases.”

“As the recent upsurge of public feelings and even public outrage over AIDS medicines has shown, there is now a crisis of public perception about the IPR system and about the role of TRIPS which is leading to a crisis of legitimacy for TRIPS.

“Whilst this storm is raging outside the WTO, and legitimately so, we as Members inside the WTO cannot shut our eyes and ears. Each of us, from developing and developed countries, must respond, and respond adequately and appropriately.

“It is for this reason that the Africa Group wishes to table a proposal at the June session of the TRIPS Council, for the convening of a Special Session of the TRIPS Council preferably before the summer break, to address the issues relating to TRIPS, patents and access to medicines.

“Given the importance and urgency of this matter, we have deliberately avoided to raise it under Art. 71.1 and we shall insist that this be so, in order to ensure a speedy resolution of this crisis. We anticipate that the outcome of this special session will feed into the preparatory process of the 4th ministerial conference. We look forward to the support of members in this noble endeavour.”

Zimbabwe added on behalf of the African group: “We wish to reiterate that this initiative is in no way meant to undermine or to discourage investment into R & D for new drugs. Given the highly mutative nature of the AIDS virus as well as resistance to conventional drugs by some new strains of STDs and other diseases, the case for continued and intensified R&D into new pharmaceutical products cannot be overstated.

“Our challenge is to address the question of affordable access to drugs in a manner that is fair and equitable to all stake-holders; a way that seeks to avoid the abuse of patent protection through recourse to uncompetitive practices; a way that seeks to provide legal clarity in the interpretation and application of the relevant TRIPS provisions which allow the adoption of certain measures to enable the protection of health; indeed, a way that seeks to realise the objectives and principles of the TRIPS Agreement, and to restore confidence in a rules-based multilateral trading system.” –SUNS4870

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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