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Pharmaceuticals, Patents, Polemics and Pretoria
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3. The Doha ministerial meeting and TRIPS
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At the Doha meeting of WTO members in November 2001, developing countries-including the influential Southern leaders of Brazil, India and South Africa, which are emerging economies-wanted TRIPS reassessed. This was to ensure that in a national health emergency they could either produce affordable generic drugs (compulsory licensing) or buy them from elsewhere (parallel imports). Developing countries cannot afford to pay the prices asked by the Northern pharmaceutical companies for the drugs which these companies have develpoed and produced, which often include the only effective treatment for national health emergencies such as the HIV/Aids pandemic.
TRIPS does give signatory governments the right to adopt measures 'to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development'.
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These measures have to be consistent with the provisions of the Agreement, which means that very limited transgressions on the IPRs of inventors are permitted. Article 31 of the TRIPS Agreement provides that the law of a member country may 'allow for other use (such as compulsory licensing or parallel importing) of the subject matter of a patent holder without the authorisation of the right holder'-but this may only happen if the proposed user has made efforts to obtain authorisation from the holder of the IP, and is paying royalties to the patent holder. In the case of national emergencies (such as an epidemic that drastically threatens public health) this requirement may be waived, but the right holder still needs 'adequate remuneration'.
Although Doha hardly signalled 'the end of TRIPS', the developing countries succeeded in winning some concessions from developed country signatories.
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The ministerial meeting stressed the importance of implementing TRIPS in a manner supportive of public health, by promoting both access to existing medicines, and R&D into new medicines.
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A separate Declaration on the TRIPS Agreement and Public Health was adopted, in which the ministers 'recognize the gravity of the public health problems afflicting many developing and least-developed countries, especially those resulting from HIV/Aids, tuberculosis, malaria and other epidemics'.
20 It was accepted that the TRIPS Agreement should be interpreted and implemented in a manner supportive of members' right to protect public health and to gain access to essential medicines. Members were given more flexibility in the granting of compulsory licences, being permitted to determine through their own national legislatures the grounds upon which such licences are to be granted, and to decide what constitutes a national public health emergency. Developed countries undertook to provide incentives to promote and encourage technology transfer to less developed countries.
The Doha Declaration nevertheless reaffirmed the developed world's utilitarian argument for strong IPR protection, stating that this was necessary for the development of new medicines and would encourage incremental medical innovation. This implies that developing states can only resolve their public health crises and service the 'public interest' through the WTO discipline of TRIPS and IP.
Prior to Doha, the United States (US) and the European Union (EU) had already softened their position on the compulsory licencing and parallel importation of HIV/Aids drugs under patent.21
Washington has indicated that for the next five years it will not seek to impose sanctions should South Africa ignore the IPRs of pharmaceutical companies in its efforts to obtain affordable drugs, although this concession appears to have been overlooked, given the government's dithering, legal obfuscation and prevarication. This is due to the government's entertaining dissident viewpoints on the causes and treatment of HIV/Aids, and its consequent reluctance to make anti-retroviral treatment available under the public health system. Similar concessions have been made to other developing states; in their case, the moratorium on implementation will last for a further 10 years, with a number of African countries benefiting until January 2016 at least.22
Interestingly, the timing of these concessions occurred a few weeks prior to the Doha ministerial meeting in Qatar. 'The Quad' group-the US, EU, Japan and Canada-are particularly keen to launch a new round of trade talks, although the developing countries are more anxious to address issues of implementation, that is the undertakings and commitments (such as trade liberalisation and market access) made by the developed countries towards the developing countries during the Uruguay Round, which remain unfulfilled.23
It is believed in some developing world circles-particularly South Africa, Nigeria, Malaysia and India-that the unfinished business of the Uruguay Round and the biased nature of the multilateral trading regime should be addressed in a new round. The concessions on HIV/Aids drugs could be interpreted as part of the North's strategy to 'encourage' the launch of this proposed new multisectoral Millennial Round of negotiations.
Footnote:
- Agreement on TRIPS, Article 8.
- WTO, Ministerial Declaration, Doha, 14 November 2001.
- WTO, Declaration on the TRIPS Agreement and Public Health, Doha, 14 November 2001.
- On 27 January 2000 the US gave Thailand permission to issue compulsory licences for HIV/Aids drugs under patent in Thailand. On 10 May 2000, the then US President, Bill Clinton, issued Executive Order 13155 Access to HIV/AIDS Pharmaceuticals and Medical Technologies.
- The Star, 7 November 2001.
- See Keet D, The Challenges Facing African Countries Regarding the WTO Trade Regime Since the Third Ministerial Meeting in Seattle. Institute for Global Dialogue (IGD) Occasional Paper, 25, 2000.
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