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Pharmaceuticals, Patents, Polemics and Pretoria
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4. Pretoria, TRIPS and the pharmaceutical companies
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The TRIPS Agreement lays down only minimum standards of protection of IP (based on the US and European models), which domestic IP protection legislation exceeded even before South Africa signed the TRIPS Agreement in 1995.24 The country's IP legislation is based on European legislation. Under the apartheid regime, South Africa entered trade negotiations during the Uruguay Round as a developed country. Although other WTO members were willing to grant it 'transition' status in 1995, the EU insisted that South Africa take on the obligations of developed countries.25
This did not present the South African government with immediate implementation problems in the case of the TRIPS Agreement, as it already had minimum standards of protection.
Three years after signing the TRIPS Agreement, the Minister of Health, Dr Nkosazana Dlamini-Zuma, proposed a bill to parliament, The Medicines and Related Substances Control Amendment Act (Medicines Act). This would allow for compulsory licencing (generic manufacturing) and parallel importing of essential medicines (produced in India and other developing countries under their more 'flexible' patent laws) in national health emergencies. This was particularly necessary to secure access to medicines to treat HIV/Aids-related opportunistic infections, given that the rate of HIV/Aids infections was taking on emergency proportions in South Africa.26
However, despite appeals from civil society, President Mbeki and Health Minister Zuma refused to declare a national health emergency in South Africa; such a declaration was thought to have dire economic consequences, particularly for South Africa's international credit ratings and foreign investment (which was already paltry).
In response to the Minister's proposed Medicine Act, the Pharmaceutical Manufacturers' Association (PMA) of South Africa (representing US and European pharmaceutical companies) instituted domestic legal proceedings against the South African government for 'violating' its TRIPS commitments. US pharmaceutical companies also lobbied the US government to apply pressure on the South African government not to enact this version of the Medicines Act, and put South Africa on the 'Super 301' Watch List of states which violate IPRs. The dispute was resolved diplomatically and the bill has finally been enacted, but in a much watered-down form. Grey imports of genuine products can be authorised only under the strictest conditions, and generic medicines will be subject to patent law. This will exacerbate the HIV/Aids crisis in South Africa, as most South Africans cannot afford HIV/Aids medicines, which are all protected by patent law.
This demonstrates that the principles and substance of the TRIPS Agreement do not take account of the public interest, and supplies a good argument for an exception being made for essential medicines, as determined by national health emergency situations.
The case of Pretoria versus the pharmaceutical companies illustrates the truth about IP: Today IPRs are principally about money and profit. The developed countries of the North seek to rationalise the regulation of IPRs internationally by employing the language of global liberalism. Yet behind all its justifications concerning making the knowledge public (at a price) and the rights of the inventor, the North's arguments in favour of a stricter protection of IP in the globalised world order are about commercial advantage. With an altered conception of 'national security' that now more than ever stresses the importance of positive trade balances, IPRs are a tool in the arsenal of developed states' search for economic prowess. The North's superior power is based on the WTO discipline and a highly cynical use of the liberal discursive environment within which it is functioning, whilst its power in terms of relations with the South is demonstrated by the threat of retraction of GSP benefits and the continued use of unilateral trade measures.
Footnote:
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South Africa has a comprehensive and modern IPRs regime covering patents, industrial designs, copyright and trademarks. Patents may be registered under the Patents Act of 1978 and are granted for 20 years. Trademarks can be registered under the Trademarks Act of 1993, are granted for 10 years, and may be renewed for an additional 10 years. New designs may be registered under the Designs Act of 1967, which grants copyrights for five years. Literary, musical and artistic works, cinematographic films, and sound recordings are eligible for copyrights under the Copyright Act of 1978 (amended in 1992 to include computer software). South Africa is also a member of the Paris Convention, which provides rights of priority to foreigners based on their place of origin applications for patents, trademarks, and designs. The government has also acceded to the Patent Co-operation Treaty, which allows a foreigner to extend the right of a patent in South Africa for up to 30 months. The Berne Copyright Convention, to which South Africa is a signatory, protects copyright works of foreigners as if they were nationals of South Africa.
- IGD, International Investment Agreements in South Africa. Report prepared for the Centre for Research on Multinational Corporations, June 2000, p.37.
- South Africa has approximately 4.2 million people living with HIV/Aids.
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