Health

TRIPS-plus and Public Health

By Dweep Chanana ⋅ November 17, 2006 ⋅  Email this post ⋅ Post a comment

Oxfam has released a report reviewing the patent and public health landscape 5 years after the Doha Decleration, titled, Patents versus Patients. The report is clear in its conclusion, and its criticism of the USA in particular:

Trade rules remain a major barrier to accessing affordable versions of patented medicines (generic medicines)…The USA, at the behest of the pharmaceutical industry, is uniquely guilty of seeking ever-higher levels of intellectual property protection in developing countries.

The TRIPS agreement, which forms one of the three pillars of the World Trade Organization (WTO), came under fire in the late 1990s when it started affecting developing countries’ access to cheap HIV treatments. Under the agreement, countries had to provide strict product patent coverage for a period of 20 years. This prevented India and other countries from producing and exporting cheap generic versions, that were credited with bringing down the price of HIV anti-retroviral (ARVs) treatments in Africa. The Doha Declaration was a response by developing countries to have their concerns regarding public health addressed, and one of the few examples of them successfully negotiating a favorable outcome at the WTO:

We agree that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health and, in particular, to promote access to medicines for all.

In this connection, we reaffirm the right of WTO members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose.

In spite of the declaration, or rather because of it, TRIPS is now increasingly irrelevant. Unable to achieve its goals of universally strong patent legislation through the WTO, the USA has been signing bilateral free trade agreements that require partner countries to legislate norms stronger than TRIPS (TRIPS-plus).

The USA has negotiated numerous bilateral and regional free trade agreements (FTAs) that impose what are known as ‘TRIPS-plus’ intellectual property rules, weakening or eliminating the public health safeguards allowed under TRIPS. Patented medicines thus have even higher levels of intellectual property protection than required under TRIPS, delaying the availability of affordable generics. The USA has also pressured countries for greater patent protection through threats of trade sanctions and through the WTO accession process.

Many other strong arm tactics are also used by the USA to further this pro-pharma industry agenda. When the WHO country representative to Thailand, William Aldis, criticized the US-Thailand FTA negotiations on grounds of public health, he was simply reflecting the WHO’s official policy. However, under pressure from the USA, he was recalled after 16 months in a 4 year assignment.

Some countries, India and Kenya in particular, have managed to keep some safeguards in place. These are also countries that have not signed US FTAs yet. However, the overall picture is bleak for the developing world. The international trade agenda reflects a general trend away from multilateral negotiations towards bilateral ones. In such negotiations, developing countries are the inevitable loosers, unable to negotiate as a group or bring civil society pressure to bear. And because individual safeguards are cumbersome and case-specific, they do not change the overall policy framework, which discourages patent reform.