NGOs urge support for pro-public health interpretation of TRIPS

by Kanaga Raja

Geneva, 19 Sep 2001 - Several NGOs have come out in support of developing countries’ proposals to, among others, ensure that public-health objectives take priority over multilateral rules on intellectual property.

Forty-six developing countries presented Wednesday their proposals for a Ministerial Declaration on TRIPS and Public Health. The developing countries drew up their proposals after extensive consultations among themselves, and after receiving inputs from NGOs.

The civil society groups made the call for pro-public health interpretations, as the WTO convened its TRIPS Council sessions on 19-20 September, to discuss, among others, the review of Art. 27.3(b) of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement and examine the whole issue of intellectual property rights and public health.

Art. 27.3 (b) of the TRIPS refers to patent protection for life forms and natural processes, and also for the protection of plant varieties (for plant varieties, the WTO members have the choice of patent protection, a sui generis system or a combination of both).

Developing countries are calling for a substantive review of Art.27.3 (b). The Africa Group has strongly opposed the patenting of life.

At the Seattle WTO Ministerial Conference in 1999, the Group called for a decision to clarify that “plants and animals, as well as micro-organisms and all other living organisms and their parts cannot be patented, and that natural processes that produce plants, animals and other living organisms should also not be patentable.”

The Africa Group proposal has gained broad support from other developing countries in the WTO and also from civil society groups.

The civil society groups in particular have called for the Doha Ministerial Conference to agree to the immediate undertaking of the mandated and substantive review of Art.27.3 (b).

On the eve of the TRIPS Council session that will discuss Art. 27.3 (b) related issues, and TRIPS and public health, a statement by Medicins Sans Frontieres (MSF) says that it welcomes the discussions in the TRIPS Council on access to medicines.

“Most members of the WTO seem genuinely prepared to correct the present imbalance between the sanctity of patents and the health of people,” said Ellen ‘t Hoen of MSF.

She further points out that “access to essential medicines should not be a luxury reserved for the wealthy but should be reinforced as a critical component of the human right to health.”

MSF says that it supports developing countries’ proposals for a Ministerial Declaration in Doha that would ensure that nothing in the TRIPS agreement shall prevent members from taking measures to protect public health. MSF advocates a balanced intellectual property system that takes into account the specific needs and priorities of developing countries, and follows the principles outlined in the TRIPS. In other words, patents should benefit the innovator and those needing access to the innovation.

Numerous civil society groups from around the world are in Geneva to express opposition to the TRIPS agreement and its wide-ranging implications on health and human rights.

Many transnational pharmaceutical corporations and their lobby groups are also in Geneva to lobby the major industrial nations against any erosion of corporate rights.

On Monday at a meeting organized at the World Council of Churches premises, some of the speakers, which include a leader of the San group of South Africa, farmers from the Philippines and Pakistan, and a doctor from India, provided real life testimonies about the impacts of the TRIPS agreement in their lives and their responses.

One such speaker, Leopolodo Guilaran, a rice farmer from Southern Philippines, says, “Realising how TRIPS can hurt small farmers’ interests and sustainable agriculture in general, I have undertaken my own advocacy against TRIPS. I am campaigning to fellow farmers not to respect this system, which should be more aptly referred to as Trade Related Intellectual PIRACY. We will not submit ourselves to such a regime, and continue to uphold our rights as farmers to do whatever is necessary to protect, conserve and improve our seeds”.

Oxfam, another NGO, has urged industrialized countries, especially the US, to support proposals put forward by African countries, to agree to an in-depth review of TRIPS, and to cease putting pressure on developing countries to implement unduly restrictive patent measures.

Oxfam warns that on the eve of the Doha Ministerial Conference, lack of progress on the issue of patents and access to medicines threatens to undermine still further, public confidence in the WTO and alienate its developing-country members.

Oxfam points out that prior to the 1999 Seattle WTO conference, the majority of developing countries called for changes to the TRIPS agreement to make it less damaging for public health and development. However, says Oxfam, these proposals have fallen on deaf ears.

Although widespread concern has since forced many industrialized countries to shift their positions, Oxfam points out that progress is only possible if the WTO and most notably, the US government, changes its policy.

Transnational companies, being by far the greatest beneficiaries of globalized intellectual property rules, have large interests at stake. Last year, US companies earned US$36.5 billion abroad from royalties and licensing fees alone.

With respect to health, Oxfam notes that the essential flaw of TRIPS is to oblige all countries to grant patent protection for new medicines for at least twenty years, thereby delaying production of the inexpensive generic substitutes.

There is no upside, laments Oxfam, as the increased profits generated by the international drug companies from developing-country markets are not ploughed back into more research into poor people’s diseases.

Many rich countries argue that TRIPS does give countries sufficient freedom in the design of national laws and provides safeguards for protecting public interest, such as leeway to override patents on health grounds.

However, in practice, says Oxfam, the US government is pressuring developing countries into passing ‘TRIPS-plus’ legislation based on the most restrictive interpretation of TRIPS and containing levels of intellectual property protection that go beyond anything mandated by TRIPS.

Oxfam adds that these pressures, which have affected countries like Brazil, South Africa, the Dominican Republic and Thailand, are backed by the threat of unilateral trade sanctions, which can be invoked either through Section 301 of the US Trade Act or by successfully taking it up at the WTO’s dispute settlement system.

However, Oxfam cautions that these measures, and the use of other investment agreements and the FTAA, are a risky strategy for the industrialized countries.

Oxfam points out that the refusal to countenance even pro-public health interpretations of TRIPS would provoke a backlash against the patent system, reduce the chances of consensus over a new round of trade talks, and further damage the public standing of the WTO.

Oxfam urges the industrialized countries:

·        to support the interpretation of TRIPS put forward by the African countries for approval at Doha; the proposal affirms the primacy of public-health objectives and strengthens the safeguards, and is backed by many Latin American and Asian countries,

·        to support a commitment at Doha for an in-depth review into the health and development impact of TRIPS, with a view to amending the length and scope of pharmaceutical patents and other IP rights,

·        to cease putting pressure on developing countries to implement ‘TRIPS plus’ or unduly restrictive patent measures, whether through bilateral economic agreements or the threat of sanctions

A number of civil society groups have also issued a joint NGO statement calling for “a fundamental rethinking of the TRIPS in the WTO”.

The statement (see #SUNS 4968), issued on 17 September, on the eve of the TRIPS Council session (19-20 September), has attracted about 131 signatories, so far.

In their statement, the NGOs have called on the Doha Ministerial to undertake a fundamental review and reform of TRIPS; end bilateral pressures and bullying tactics with developing countries; extend implementation deadlines for developing countries; place a moratorium on dispute settlement action; and review whether TRIPS belongs within the WTO.

According to ActionAid Pakistan’s food policy officer Aftab Alam (ActionAid was one of the principal signatories of the NGO statement), a worldwide movement is building that demands proof of the benefits of TRIPS as promised by big governments and business.

“The world’s poorest people are at the forefront of the fight against TRIPS,” he said.

“With the Doha Ministerial around the corner, now is the time to stand up to the  pressure being exerted by powerful countries such as the US and EU,” he adds. – SUNS4970

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