10 Years Of TRIPS And Public Health: An Anniversary To Celebrate?

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It has been 10 years since the World Trade Organization adopted the Doha Declaration on TRIPS and Public Health. The declaration highlighting the public health aspects of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreed at the 2001 WTO ministerial conference in Doha, Qatar was considered a milestone in ensuring greater access to medicines for all.

One decade after the declaration’s adoption, the intergovernmental South Centre and non-governmental Knowledge Ecology International (KEI) held a panel event at the World Intellectual Property Organization on 14 November to review the extent to which the intellectual property and licensing flexibilities recognised in the declaration have helped developing and least developed countries gain access to essential medicines.

The Doha TRIPS and Public Health Declaration, available here, highlighted existing flexibilities and sovereign rights available to developing countries under TRIPS.

South Centre Executive Director Martin Khor moderated the session, entitled, “Ten Years of the Doha Declaration: The State of Implementation.” The South Centre also published in November a policy paper by the same name.

Khor opened the session with a question: “Is the 10 years of Doha an anniversary to celebrate?” Argentinian law professor Carlos Correa, special advisor on trade and IP at the South Centre, was the first speaker to take the floor.

Limited Implementation

While recognising that the Doha Declaration was an achievement, Correa emphasised that the “extent of use of compulsory licences has been quite limited.” Despite the recognition under the declaration that all member states have the right “to grant compulsory licences and the freedom to determine the grounds upon which such licences are granted,” he said. Correa discussed several obstacles blocking more developing countries from taking advantage of this flexibility.

In particular, he mentioned “the lack of sufficient information regarding the range of flexibilities,” citing observations made in the recently released External Review of WIPO Technical Assistance in the Area of Cooperation for Development [pdf]. “The review team found that when discussing international treaties, the orientation of plans was toward promoting accession to international treaties administered by WIPO,” Correa said. “While the importance of flexibilities was noted, practical and proactive advice on how to use such opportunities was limited.”

He said that another challenge developing countries are facing is bilateral free trade agreements (FTAs) that enhance developed countries’ intellectual property enforcement rights. “Paradoxically,” he said, “many of these enhancing enforcement FTAs actually cite the Doha Declaration.”

Another speaker, Michelle Childs, policy and advocacy director of the Campaign for Access to Essential Medicines at Médecins Sans Frontières (MSF, Doctors Without Borders), said that “Doha gave political recognition for first time that intellectual property and trade rules had a negative effect on access to medicines.” However, she argued that although Doha brought public health needs into the IP equation, today’s urgent global health challenges illustrate where Doha falls short.

“There is a need to bridge the gap between the standard of care received in wealthy countries and that in the developing world,” she said. There are still many grave challenges associated with HIV and AIDS today, especially in developing countries. Childs said that MSF is seeing growing patient resistance to antiretrovirals and that there “is an urgent need to secure access to expensive second- and third-line regimens in developing countries.”

New R&D Incentives

Beyond recognising the significance and limitations of Doha, many of the speakers also made suggestions for improving access to medicines in the future. Director of KEI, James Love, suggested that obstacles to access go beyond the legal parameters of the question and that the political forces at play have a greater bearing on limitations to access. He argued that a more fundamental change is needed in terms of the development of medicines.

“You have to deal with how you pay for innovation because until you have done that, you will never really have dealt with the access question,” he said. “In our opinion, they are completely interlinked.”

As a way forward, Love suggested an alternative reward mechanism for more equitable R&D funding. KEI, MSF, the Third World Network – which also participated in the panel event – as well as two other organisations have submitted a joint proposal called “An Essential Health and Biomedical R&D Treaty” [pdf] to a WHO working group on financing research and development for diseases particularly afflicting poor populations. The Consultative Expert Working Group on Research and Development: Financing and Coordination (CEWG) held its third meeting from 16-19 November and held an open briefing on the results of its work to date.

Mandated to “examine R&D financing and coordination proposals for diseases that principally affect developing countries,” the group recommended a binding convention for R&D related to diseases affecting developing countries. The CEWG plans to release a report in the first quarter of 2012 that will provide details on convention modalities.

A National Perspective

Other panellists included José Estanislau do Amaral from the permanent mission of Brazil to the WTO and other economic organisations in Geneva, and Sanya Reid Smith, legal officer from the Third World Network.

In his prepared remarks, available here [doc], do Amaral described the TRIPS agreement as a victory for developed countries on behalf of a small number of industries, and said the Doha Declaration was a landmark in clarifying the relationship between IP and public health, but that the “jury is probably still out on whether or not the declaration has fulfilled all the expectations placed on it.”

He criticised developed countries for continuing to push the standard of IP protection ever higher through bilateral and plurilateral agreements, even when implementation of the TRIPS agreement is still underway.

“What remains paradoxically odd, however, is that the apparent winners of the TRIPS negotiations do not appear to be satisfied with the outcome,” do Amaral said. “There seems to be no end, in brief, to the drive for ever more stringent rules to advance the protection of intellectual property.”

He detailed Brazil’s successful – and only – experience with a compulsory licence for public health in 2007, and said it will have saved the national AIDS programme nearly $240 million by the time the patent on the antiretroviral drug Efavirenz expires in 2012.

Khor closed the session with an answer to his opening question. “The Doha Declaration is a landmark and we should celebrate it. And we know that much more work needs to be done.”

William New contributed to this report.

Rachel Marusak Hermann may be reached at info@ip-watch.org.

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