Global Policy Forum

By Kavaljit Singh

(Note: Excerpted from an Outside the U.S. FPIF commentary available in its entirety at: http://www.fpif.org/pdf/gac/OUS0204trips.pdf)

Against the backdrop of September 11th terrorist attacks in the U.S., the anthrax attacks in late 2001 raised highly controversial issues related to intellectual property rights. Just a few months earlier, the world had witnessed heated debates on the patent controversy when the Pharmaceutical Manufacturers' Association of South Africa (PMASA), a body representing South African subsidiaries of 39 drug transnational corporations (TNCs), took the South African government to court to prevent it from importing cheaper versions of patented drugs for patients suffering from Acquired Immuno Deficiency Syndrome (AIDS). However, under tremendous pressure generated by health activists and concerned groups around the world, the drug TNCs unconditionally dropped the lawsuit against the South African government.

No doubt, it is unfair to compare the AIDS pandemic in South Africa with the current anthrax crisis in America. As compared to over 4.7 million patients suffering from AIDS and nearly 300 AIDS patients dying every day in South Africa, the anthrax attacks in the U.S. only killed five people, made 13 others fall ill and caused more than 30,000 people to take precautionary antibiotics. Both instances relate to public health, but more importantly, the bone of contention revolves around the Trade-Related Intellectual Property Rights (TRIPs) agreement of the World Trade Organization (WTO).

The wider concerns for protecting public health were expected to usher in substantial changes to the existing TRIPs agreement at the Fourth WTO Ministerial Conference in Doha, Qatar held November 9-13, 2001. Not only health activists and NGOs, but also several poor and developing countries had shown determination to raise this vital issue at the Doha conference. But the outcome of the Doha conference was disastrous for the world's poor because it provides few concessions on the drug patents issue. Except for providing least-developed countries an additional 10 years to implement TRIPs and giving autonomy to governments to define public health emergencies in which TRIPs could be suspended, the Doha conference failed to resolve the fundamental conflicts between patents and public health. The lip service approach to this vital issue can be gauged from the fact that the declaration on the TRIPs agreement and public health was issued separately, not as part of the main Ministerial Declaration. With the key issues related to drug patents remaining unresolved, the world is likely to witness patents versus poor patients conflicts in the coming years.

The agreement reached at Doha for a new round of negotiations is a significant achievement for the U.S., the EU, and Japan as it opens up new opportunities for TNCs to further expand their global reach. It is important to highlight the hypocritical stand of Indian authorities on WTO issues, which was completely exposed during the Doha Conference. A few weeks before the Doha conference, Indian authorities took a strong posture seeking drastic changes in the TRIPs agreement as well as opposing any new round of negotiations until contentious issues related to the implementation of Uruguay round of negotiations were resolved. Not only the poor and developing countries, but also several Indian and international NGOs joined the ranks in support of Indian authorities. But within hours after asserting that "a new round of trade talks at the WTO is not necessary, it is evil," India's Commerce Minister, Murasoli Maran, agreed to a new round of formal negotiations without any major gains in key areas such as textiles, agriculture, TRIPs, and transfer of technology. This is hardly surprising given the fact that the same Indian government is not just pursuing amendments in domestic patent laws to conform with the WTO regime but also is pushing a liberalization agenda in several sectors of economy (for instance, financial sector) that are well beyond the purview of WTO.

Several inferences can be drawn from the anthrax crisis in the U.S. First, by sacrificing the public health concern of its own citizens to protect the private interests of drug TNCs, the U.S. has unabashedly acknowledged the supremacy of patents over public health. Second, the present patent regime not only poses a grave danger to public health in the poor and the developing world, even the developed world is also not immune to it. Hence, this episode should serve as a wake up call to the rest of the developed countries who usually follow the footsteps of the U.S. on patent issues. Poor and ordinary people, whether they live in New York or New Delhi, have a basic right to sound health, and therefore, safeguarding public health must take precedence over patents and monopoly profits of the drug TNCs.

Third, apart from universal health programs and other publicly funded interventions, it is of utmost importance that monopolies in the drug industry be dismantled to ensure that crucial drugs are made accessible to poor patients at affordable prices. Therefore, strict regulation of drug TNCs must be an integral component of building a public health system in the developed as well as the developing world.

Fourth, with critical support from the developed countries not forthcoming, the responsibility for demanding a comprehensive review of TRIPs, including reduction in the duration and scope of patent protection for drugs that are essential for public health, rests with the poor and developing countries. This calls for greater unity and solidarity among the poor and the developed world on issues of common interest at the WTO and other international economic negotiations.

Finally, it is high time that the primacy of national health policy over international agreements, including the WTO, be restored.

(Kavaljit Singh < This e-mail address is being protected from spambots. You need JavaScript enabled to view it > is the Director of Public Interest Research Centre, Delhi and is also associated with Asia-Europe Dialogue Project (online at www.ased.org).)

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