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Members of the World Trade Organisation (WTO) have adopted a declaration on intellectual property rules that strongly backs the public health needs of developing countries.

Agreement was reached on the text of the statement during a ministerial summit in Doha, Qatar of representatives from WTO’s 142 member states after an all-night session on 14 November. Failure to reach agreement had threatened to undermine the outcome of the whole meeting.

In a special declaration on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and public health — in response to pressure over the past few months from both developing country representatives and non-governmental organisations (NGOs) — WTO members state “the TRIPS agreement does not and should not prevent members from taking measures to protect public health”.

Importantly, the declaration clarifies that members have the right to use “flexibilities” in the TRIPS agreement to the full, and states that “each member has the right to grant compulsory licences and the freedom to determine the grounds upon which such licences are granted”.

Compulsory licensing — authorising the production of a drug without necessarily obtaining the patent-holder’s consent — is seen by many as a key weapon in the battle against AIDS and other diseases that affect the poor. This is because compulsory licensing enables developing countries to locally produce cheaper generic versions of the patented drugs.

NGOs such as Oxfam are claiming to have won a major political battle on patent rules and access to medicines. "Doha sends a strong message that peoples’ health overrides the interests of big drug companies, who will find it much harder to bully poor countries over patents" says Michael Bailey, Oxfam's Senior Policy Advisor.

Other campaigning groups are similarly pleased with the outcome of Doha. The declaration ''is a major step forward in the quest to ensure access to medicines for all,'' said Ellen 't Hoen, head of the Access to Medicines Campaign with Medécins sans Frontières. ''The text that has been agreed upon now was unthinkable six months, six weeks, even six days ago,'' she said.

As expected, the declaration was met with less enthusiasm by the pharmaceutical industry, which maintains that strict intellectual property regimes are necessary to promote research and development into new drugs.

In response to the Doha declaration Harvey Bale, Director General of the International Federation of Pharmaceutical Manufacturers Associations, noted that it “is a political rather than a legal or binding instrument”. He added, "it is critical that the implementation of this declaration reflects a need to continue industry's substantial commitment to drug research on AIDS and other major disease threats”.

Despite their celebrations, campaigners say that certain aspects of the agreement were weakened during the Doha negotiations. For example, although the declaration recognises that some countries have “insufficient or no manufacturing capacities in the pharmaceutical sector” there is no explicit mention of parallel imports of generic drugs, which developing countries say are critical for ensuring access to cheap medicines.

Ellen t’Hoen said, "it is a missed opportunity that this ministerial conference did not offer a solution for countries without production capacity that want to make use of compulsory licensing.”
The ministers’ main declaration also contains a statement on TRIPS, which specifically refers to links between intellectual property and biodiversity — an issue that will become increasingly important in the run up to the World Summit on Sustainable Development in Johannesburg next September.

The TRIPS council has now been charged with investigating the relationship between the TRIPS agreement and the Convention on Biological Diversity (CBD). This is likely to be a difficult task given the potential conflict between the traditional view of intellectual property as belonging to individuals, and the CBD, which promotes national ‘ownership’ of biological resources.

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