WTO summit ‘must address access to medicines’

The World Trade Organisation (WTO) is expected to come under strong pressure to revise its rules on the handling of patents and other forms of intellectual property when it holds its ministerial summit in Doha, Qatar next month.

In parallel with recent protests over the patenting of seeds by multinational corporations, other groups are highlighting the issue of access to medicines. The latter are claiming, for example, that inflexible intellectual property regimes are hindering access to medicines in the world’s poorest nations.

More than 50 developing country delegations — supported by campaign groups including Medécins sans Frontières (MSF), Oxfam and the Third World Network (TWN) — have backed a declaration that expresses fundamental concerns over the TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement.

TRIPS and access to medicines

The TRIPS agreement is described by the WTO as “an attempt to narrow the gaps in the way [intellectual property] rights are protected around the world, and to bring them under common international rules.” As the agreement stands, all 142 member countries of the WTO must conform to these rules by 2006.

But campaigners say that TRIPS is facing a “crisis of legitimacy” by ignoring its objective to contribute to the “mutual advantage of producers and users of technological knowledge”, and shifting the balance too far towards commercial interests. They argue that the agreement is in need of long overdue revision.

The developing countries and campaigners are hoping that the proposed declaration will be adopted by the WTO summit. The declaration points to references in the existing TRIPS agreement that relate to the issue of access to medicines, and suggests ways of either reinforcing or amending these clauses.

But persuading all those attending the Doha meeting to endorse a declaration will be an uphill task. The proposals for reform are likely to be opposed by the United States and countries such as Japan and Switzerland — all large pharmaceutical producers — but may be supported by members of the European Union.

And even if their demands are endorsed in Qatar, campaigners acknowledge that this would be just the first step towards seeing them implemented. “The process [of revising TRIPS] should start in Doha, but the substantive process must continue afterwards”, says Cecilia Oh of TWN.

Calls for ‘clarification’

The proposals being put forward by the campaigners do not challenge the content of the TRIPS agreement directly, but claim to seek ‘clarification’ on a number of aspects of the agreement. The proposal section of the declaration opens with the statement that “nothing in the TRIPS agreement shall prevent members from taking measures to protect public health”.

“For most of us it is really this over-arching principle that we need to be clear about”, says Cecilia Oh. She explains that adhering to the principle would be important in the interpretation of the agreement, for example in cases of dispute. “It is both a political and legal point.”

The rest of the proposals deal with specific issues such as compulsory licensing — the process by which countries should be able to bypass the patent authorisation process if deemed necessary. An amendment to the rules governing the implementation of TRIPS would allow developing countries to issue a licence to another member. This would enable them to import a cheaper ‘generic’ version of the original patented medicine, for example if they lacked manufacturing capacity.

Another important point relates to the resolution of ‘dispute settlements’, the legal procedure by which complaints can be brought against WTO members. Developing country members have found themselves under pressure when seeking to exploit flexibilities in the patent rules.

Brazil, for example, recently found itself at the centre of a legal battle after producing its own, cheaper version of HIV/AIDS drugs. The United States accused Brazil of misusing its national patent laws but eventually dropped its complaint, agreeing instead to enter into a newly created US-Brazil consultative mechanism.

In a recent policy briefing, Oxfam claims that, “the United States and others have exploited the lack of detail in the agreement to impose their own, highly restrictive interpretation on weaker countries”. The proposals from the campaigners call for “restraint in initiating and pursuing dispute settlement proceedings”.

Opposition to proposals

The developing countries’ declaration follows months of preparation that culminated at the TRIPS special council meeting in Geneva on 19 September. Michael Bailey, senior policy adviser at Oxfam UK, says that while the proposals could have been more demanding, the developing countries have gone for a “modest and pragmatic approach, calling for the most pro-public health interpretation of TRIPS”.

Even so, their demands may be blocked by industrialised nations at Doha. A coalition made up of the United States, Switzerland, Australia, Canada, Japan, New Zealand and the Czech Republic also released a statement at the TRIPS council meeting. “The very fact that they have put out a ‘counter-proposal’ shows their intention to dilute and negate the developing countries’ proposals and the whole process,” says Cecilia Oh.

The views of the counter group appear to reflect those of major drug companies, which dispute claims that intellectual property protection reduces access to medicines in developing countries. These companies cite other factors such as financing of healthcare and the lack of infrastructure to deliver medicines as being the real obstacles to access.

In response to the developing countries’ declaration, the International Federation of Pharmaceutical Manufacturers Associations issued a news release saying that, “measures which focus on weakening intellectual property rights in the name of ‘improving access’ will actually divert decision-makers away from addressing the real barriers to access”.

There appears to be some evidence for their viewpoint. A recent study of access to HIV/AIDS drugs in sub-Saharan Africa by the International Intellectual Property Institute — which describes itself as a non-partisan organisation, although is widely seen to reflect the views of the pharmaceutical industry — concluded that the TRIPS agreement is not the problem and that to blame it is “overly simplistic and wrong”.

Possible compromise ahead

Campaigners recognise that intellectual property is not the only problem facing developing countries. “We’d never say that pills are the answer to public health, but we do violently disagree when pharmaceuticals try and spirit the pricing issue out of the picture”, says Michael Bailey.

But they argue that, for example, a 20-year patent protection on medicines is inappropriate for the desperate situation faced by the developing world because it delays the production of inexpensive generic substitutes.

They also say that the counter group are struggling to find reasons to oppose their claims, and are confident that there is, in fact, significant support for their demands for TRIPS to be reviewed among WTO members. “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.

The European Union (EU) may hold the key to brokering the discussions in Doha, and has already hinted at supporting the developing country position. In its own draft declaration, circulated on 21 September, the EU says that the “TRIPS agreement shall be implemented in a way as to ensure access to affordable medicines for all in the context of public health policies”. Now, says Oh, “it is time for the EU to put its cards on the table”.

© SciDev.Net 2001

Related external links:

Developing countries draft ministerial declaration
Developed countries draft ministerial declaration
World Trade Organisation: intellectual property rights
Medécins sans Frontières: access to medicines campaign
Oxfam: ‘health before wealth’ campaign
Third World Network homepage
Institute for Intellectual Property homepage
Frederick Abbott (2001) “The TRIPS agreement, access to medicines and the WTO ministerial conference”