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Trade-Related
Aspects of Intellectual Property Rights, also known as TRIPS, was formulated by
the World Trade Organization (WTO) and came into effect in 1995. Its aim is to
protect intellectual property such as an article, a book, an invention, or a
newly discovered drug from being commercially used by others as their own. This
agreement consists of a wide range of topics—including copyright laws,
trademarks, trade secrets, and patents—all designed to protect intellectual
property.
TRIPS
is a huge agreement in itself, with patents related to the public health sector
being only part of it. The part of the agreement that deals with patents,
especially regarding the pharmaceutical industry, is what has sent ripples of
concern through the public health community. The WTO Web site has devoted a
whole section to clarify the relationship between TRIPS and pharmaceutical
patents.
TRIPS
and Intellectual Property
Patents
are defined by the WTO as providing “the patent owner with the legal means to
prevent others from making, using, or selling the new invention for a limited
period of time, subject to a number of exceptions.”
Although
the intention of this agreement is seemingly noble, developing countries have
been fretting over the logistics and conditions of flexibility regarding the
patenting of medication. Before the ratification of this agreement, rather than
depending solely on expensive imported medications, developing countries were
also producing drugs locally that were previously discovered elsewhere in the
world.
Although
it is the right of the inventor to have his or her product or process protected,
TRIPS has set approximately 20 years for the expiration of the patent, which has
evolved from its protective aim to that of a crippling condition. The WTO’s
section on “Philosophy: TRIPS attempts to strike a balance” claims that this
will help promote innovation. Yet many developing countries do not have research
and development institutes sufficient to compete on a global level, especially
with countries that have surpassed them by many years.
The
inability of countries to locally produce cheap drugs inevitably places a burden
on the people who cannot afford to pay the price of imported medications. This
could cause concern in continents such as Africa where fatal diseases like AIDS,
malaria, and tuberculosis are rampant.
Mercy
for the Poor
The
World Health Organization (WHO) estimates that about one third of the world’s
population lacks access to essential drugs, and that over 50 percent of people
in poor countries in Africa and Asia do not have access to even the most basic
essential drugs. Access to essential medicines depends on four critical
elements: rational selection and use, sustainable financing, reliable supply
systems, and affordable prices.
Civil
society groups and non-governmental organizations have criticized TRIPS on the
grounds that it imposes various costs on developing countries, such as expensive
imported drugs and technologies. For, according to TRIPS, not only is the
medication itself subject to patenting, but the processes and the technology
used to implement the processes are patented as well. Just buying the know-how
to do the work places a burden on some countries.
On
June 20, 2001, the WTO’s TRIPS council held a special one-day conference in
Doha, Qatar, in response to public concerns worldwide on how patents were
causing monopoly situations, such as the exorbitant prices of HIV/AIDS medicine.
The meeting was attended by 47 developing countries that unanimously called for
confirmation of the flexible interpretation of TRIPS, especially in relation to
the use of compulsory licenses 1
and parallel imports2.The TRIPS council was
requested to take steps to ensure that TRIPS does not, in any way, undermine the
legitimate right of WTO members to formulate their own public health policies
and implement them by adopting measures to protect public health. This concern
was clarified by adopting the Doha Declaration on TRIPS and Public Health. The
Doha Declaration affirmed the sovereign right of countries to take measures to
protect public health and to give priority to public health over intellectual
property. According to a response from Oxfam International, the details below
outline briefly the world health crisis in developing countries:
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There
are 40 million people living with HIV/AIDS, including more than 2 million
children. Around 3 million people die from AIDS each year, more than a third
of them in southern Africa.
-
Forty
percent of the world’s population is at risk of malaria. More than 300
million people get malaria each year, and at least 1 million die from it.
Malaria kills one African child every 30 seconds.
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Around
1.75 million people died from tuberculosis (TB) in 2003. One person is newly
infected with TB every second. TB is a very effective killer when combined
with HIV/AIDS.
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Today,
more than 2 billion people in developing countries lack regular access to
the drugs they need, partly because prices are too high.
According
to Oxfam, prices on drugs matter because most people in poor countries buy
medicines out of their own pocket. Many companies charge whatever they think
each market will bear. Their strategy in poor countries often depends on selling
low volumes of drugs to wealthier patients, but at prices similar to those in
rich countries. Companies can often set extremely high prices because, under WTO
rules, every country must grant 20-year patents on new medicines. This stops
competition from generic manufacturers who could otherwise produce cheaper
versions of the same drug.
In
2000, five international pharmaceutical companies announced price reductions on
anti-retroviral drugs for treating HIV/AIDS in Africa. Prices were reduced from
US$10,000 per patient yearly to under US$1,000. This was partly achieved as a
result of pressure from campaigners. It was also, however, the result of
embarrassment over offers from Indian generic manufacturers to supply the same
drugs for about US$360. The announcement led to a price reduction race among the
multinational companies. Currently, the price of generic Indian anti-retrovirals
is under US$200. In 2004, the number of Africans on treatment doubled. However,
as the numbers expand, the virus will develop resistance and the need for
second-line treatments will grow.
Pfizer
meanwhile rejects the notion of cheaper prices for poor countries, claiming that
it’s better to donate drugs. While donations may be useful, especially in
eradication programs, they are a drop in the ocean and serve public relations
more than public health.
Companies
are not charities. They must be socially responsible both in their practice,
such as in pricing policies, and in the rules and regulations they seek from
governments, states Oxfam International.
There
is the fear that access to medicine will be for the well-to-do only. As prices
of drugs are likely to skyrocket, companies will fear legal action either
locally or by the WTO for using protected and patented pharmaceutical processes.
References
Avert.org
World
Trade Organization
International
Council of Nurses
Third
World Network
Health
Care and Intellectual Property
**
Charles Mkoka
is an independent Malawian environmental writer with much experience in
environmental issues. He has worked in the field of environment and natural
resources since 1996, after graduating from the Malawi Natural
Resources College. Apart from being a writer, he is also a wildlife
educator, specialist and guide. You can reach him at: mkokach@yahoo.com
1-
Compulsory licensing is when a government allows someone else to produce the
patented product or process without the consent of the patent owner. But the
term “compulsory licensing” does not appear in the TRIPS Agreement. Instead,
the phrase “other use without authorization of the right holder” appears in
the title of Article 31.
Compulsory licensing is only part of this since “other use” includes use by
governments for their own purposes. Compulsory licensing and government use of a
patent without the authorization of its owner can only be done under a number of
conditions aimed at protecting the legitimate interests of the patent holder.
2-
Parallel imports are products marketed by the patent owner (or trademark- or
copyright-owner, etc.) or with the patent owner’s permission in one country
and imported into another country without the approval of the patent owner.
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