Info Service on Health Issues (December 06/08)
WHO’s mandate on IPRs under US attack
the recent meeting of WHO’s international working group on public health,
innovation and intellectual property, the US challenged WHO’s work on
the impact of Intellectual Property Rights (IPRs).
the working group meeting, the US had tried to influence some developing
countries’ position in the WHO alleging that the WHO was attempting
to go beyond its competency in dealing with IPRs and trade issues and
that these issues should be discussed at the WTO and WIPO.
the US position was strongly opposed by several developing countries
including Brazil, Iran, Chile and Cuba.
report below highlights the discussions at the meeting.
is reproduced with the permission of South-North Development Monitor
(SUNS) # 6161, 13 December 2006.
Health: WHO's mandate
on IPRs defended by South against US attack
By Riaz K Tayob, Geneva,
12 December 2006
The United States seemed
to be challenging the mandate of the World Health Organisation to deal
with issues relating to intellectual property rights and public health,
when the WHO's inter-governmental working group on public health, innovation
and intellectual property met here last week.
It was the latest in a series of recent US actions to counter the WHO's
work on the impact of IPRs on public health.
At the working group's meeting last Thursday, the US argued that the
group should take into consideration the mandate of the World Trade
Organisation and the World Intellectual Property Organisation, and that
the WHO group's work should not "creep into" the mandate of
these other two organisations.
It was an apparent attempt by the US to limit the scope of the working
group's mandate, discussion and conclusions.
The US position was strongly opposed by several developing countries,
including Brazil, Iran, Chile and Cuba. They stressed not only that
the WHO had a legitimate role but the leading role (among international
organisations) in the area of IPRs and health, and opposed suggestions
(including in a WHO secretariat paper) that the WHO group should take
into consideration the work and mandates of the WTO and WIPO.
The clash on the mandate of the WHO's group, and by proxy of the WHO
itself, in dealing with IP issues was reflective of the underlying differences
among member states during the working group's initial meeting, held
on 4-8 December.
When the meeting ended last Friday, it could not agree on establishing
"areas of early implementation", and this inability to reach
a decision will be reported to the WHO's Executive Board next January.
Another evidence that the US would like to confine IPR issues to the
WTO and WIPO and to limit and reduce the WHO's mandate in this area
of work is in an email document sent by the US to selected developing
countries before the working group's meeting, informing them that the
WHO was attempting to go beyond its competency in dealing with IPRs
and trade issues, and that the WTO and WIPO were the right fora to deal
A report in the internet-based IP-Watch information service dated 11
December revealed that the US appears to be using the bilateral free
trade agreements (FTAs) it has signed with developing countries to influence
these countries' positions in the WHO.
Developing countries that have FTAs with the US received an email in
the form of a "demarche" from the US government before the
WHO working group meeting, which stated that it had become apparent
that the WHO was trying to go beyond its competency and address intellectual
property rights and trade, which could have impact on the scope and
effect of FTAs, according to the IP-Watch report.
The email added that this and the proposed global framework described
in this year's World Health Assembly resolution WHA59.24 could potentially
harm the patent system. The US was therefore proposing a more "pragmatic"
solution, as it appeared that the WHO tried to go beyond its technical
expertise. The email noted that these issues should be discussed at
the WTO and WIPO.
[In bilateral FTAs involving the US, the countries typically take on
obligations to have IPR standards higher than those required by the
WTO's TRIPS agreement, and agree to restrictions in the use of flexibilities
such as compulsory license that are allowed by TRIPS.]
The existence of the US' email "demarche" as revealed in the
IP-Watch report throws more light on the exchange that took place at
the working group's meeting on 7 December.
One of the papers discussed by the group was "Elements of a plan
of action" redrafted by the WHO Secretariat. A paragraph on "Building
innovative capacity" stated that "activities proposed should
take into consideration the work and mandates of other agencies such
as WIPO and WTO."
Several developing countries questioned this wording, as they felt that
the issue before the group should be dealt with by the WHO and that
the group should not have to refer to WIPO and WTO.
Brazil asked for further elaboration on what the paragraph meant. Stating
that the mandate of WIPO is intellectual property per se and that of
the World Trade Organisation is trade liberalisation, Brazil said that
WHO deals with access to health, and that this is the priority.
Brazil added that the WHO should do its work based on its own mandate
from its own decision-making body, with the main objective being access
to health. The group should not import mandates from other agencies.
The WHO should analyse IP as it relates to health concerns, and take
a health perspective on IP as the objective should be "access to
Cuba and Iran expressed full support for Brazil's position. Iran on
behalf of the Eastern Mediterranean Region (EMRO) said it was not necessary
to make reference to other agencies. It proposed deletion of this section
of the text because "we are talking about health, not trade."
Iran added that the mandate of WHO may sometimes conflict with the mandates
of WIPO and the WTO, which may create obstacles for access to medicines.
In this context, the priority should be the WHO mandate, that is, health.
Chile said that it is quite normal in WHO to address intellectual property.
It pointed out that no committee in WIPO addresses public health.
In contrast to the developing countries, the US said the language of
paragraph 4 is not strong enough to make sure that the Group's work
does take into consideration the mandate of WIPO and WTO, adding that
the WHO group's work should not "creep" onto the other two
The European Commission said that the WHO "can and should have
an active role in such a way that it can add value to the work done
in other agencies, and should not aim at duplicating the work."
Brazil said, regarding the duplication of work, that it is not a concern
for WIPO nor WTO to look at IPRs in the light of access to affordable
medicines and affordable health treatment in developing countries. It
is not within their mandates or work programs. Members, Brazil added,
should not be concerned about duplication in those other UN agencies.
Brazil stressed that this particular working group has its own mandate
given by the World Health Assembly and it must give consideration to
public health, innovation and intellectual property. It does have mandate,
Brazil said, and should "not place health at the mercy of concerns
Delegations that seek to pursue an approach "compatible with the
mandate and with the mission" should show dissatisfaction at the
way this issue has been addressed in other bodies, Brazil said.
In addition, Brazil said it cannot support "relations of subordination."
It said that the agencies are equal in respect of their mission. By
referring to the mandate of third organisations, we are "actually
saying who is subordinated." This group has received a mandate
on its own and "the mission is access to health and no other objectives
are more important than this one." WHO can and should make recommendations
to other agencies.
The mandate is not just IP but "also research funding, the mechanism,
the works" and the overriding concern is to promote better access
to health for developing countries. Brazil stressed that issues of affordability
and access to medicine are overriding issues.
Brazil expressed concern that the documents did not refer to medicines
as being considered a public good or that access to health is an overriding
human right. Brazil expressed support for patent pools and said they
should be included in the document.
In addition, Brazil said that in specific relevant areas, "there
really isn't any work being done by other agencies." On test data
exclusivity, Brazil said that this is being negotiated in bilateral
agreements and extends patents beyond the 20-year international standard
for medicines. A similar problem occurs with "me too" patents
and "ever greening" where patents that should have fallen
into the public domain have not. Brazil added that the WHO could look
at whether the enforcement of the WTO's TRIPS agreement and its flexibilities
is done in a way that provides greater access.
The health NGO Medecins Sans Frontieres, which was invited to be a member
of the working group as an expert, said that WHO "should not shy
away from making recommendations to WIPO and WTO."
Canada proposed that "each of the above actions is a challenge
and requires further action from WIPO, WTO and other bodies."
The US criticised Canada and said the language was far too weak. Finland,
on behalf of the European Union, said that WHO should engage with other
agencies and try to improve their understanding.
Brazil added that it is concerned about not importing the WIPO agenda
into the WHO or from other agencies. Brazil said this is "not respectful
of the specialised concerns of the agencies."
Another issue of contention was whether the working group should be
taking up the issue of counterfeit drugs.
Brazil said it opposed the attempt to have the working group deal with
the issue of enforcement against counterfeit medicines, saying that
said this was not within the purview of the group.
Such an attempt would amount to importing a mandate. Brazil said that
this issue is thoroughly dealt with at WIPO and is raised regularly
in the WTO TRIPS Council. This issue of enforcement, it said, is duplicative
and falls outside the mandate of this group and the WHO.
A representative of the WHO Secretariat said that WHO is working with
an international task force to look at counterfeit medicines and products.
The task force is interdisciplinary and the work is "moving very
Brazil said the question (before the working group) is not about counterfeit
drugs. It said that the main issue for WHO is a process to guarantee
access to quality drugs and it is not about having a "police section"
for counterfeited drugs.
Finland, on behalf of the EU, said that they would like to see an improvement
in regulation and quality control instead of a "mere emphasis on
The discussions at the working group and the email document of the US
to selected countries show that there are deep divisions at how some
of the member states view not only the work of the group, but of the
WHO as an organisation, on the issue of IPRs and access to medicines.
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