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Date: Mon, 16 Dec 2002 12:24:48 -0500
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Subject: Africa: Backsliding on Trade & Health
Africa: Backsliding on Trade & Health
Date distributed (ymd): 021216
Document reposted by Africa Action
Africa Policy Electronic Distribution List: an information
service provided by AFRICA ACTION (incorporating the Africa
Policy Information Center, The Africa Fund, and the American
Committee on Africa). Find more information for action for
Africa at http://www.africaaction.org
+++++++++++++++++++++Document Profile+++++++++++++++++++++
Region: Continent-Wide
Issue Areas: +health+ +economy/development+ +security/peace+
+US policy focus+
SUMMARY CONTENTS:
Access to affordable generic medicines is essential to enable
African and other developing countries to confront the HIV/AIDS
pandemic, malaria, tuberculosis, and other urgent health needs. Yet
in talks in Geneva rich countries, led by the USA, have blocked
implentation of last year's Doha Declaration that public health
needs take priority over restrictive patent legislation. In
Nigeria, meanwhile, health activists succeeded in revising draft
legislation to protect the right to affordable medicine. These
trade issues are cloaked in complex language, but their outcome is
a matter of life and death. This posting contains several of the
more readable articles we have found summing up the current status,
as well as links to additional resources.
+++++++++++++++++end profile++++++++++++++++++++++++++++++
Africa Action Note
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Lancet http://www.thelancet.com
14 December 2002
No agreement reached in talks on access to cheap drugs
At a meeting on Nov 25-27 in Geneva, Switzerland, the Council for
the Agreement on Trade Related Aspects of Intellectual Property
Rights (TRIPs) was expected to finalise a plan that would enable
generic drug manufacturers in countries such as Brazil, India, and
China to export drugs still under patent, under certain
circumstances, to countries with little or no manufacturing
industry. Instead the TRIPs Council meeting, which followed a
"mini-ministerial" meeting held earlier in November (see Lancet
2002; 360: 1670), ended without any prospect of reaching agreement.
During the meeting the USA, Japan, and Canada argued in favour of
the introduction of a temporary waiver against bringing disputes to
the WTO if the case concerns generics that are to be imported to
the least developed countries. Other countries, particularly
developing countries, supported by groups such as Oxfam and
MTdecins Sans FrontiFres, preferred a permanent amendment of TRIPs.
This, they suggested, would offer certainty to all parties and an
encouragement to manufacturers of generics to gear up for
larger-scale production.
At present, a WTO agreement interpreting TRIPs, known as the "Doha
Declaration", allows countries to issue compulsory licences during
national emergencies such as HIV/AIDS, malaria, tuberculosis, and
other epidemics. In these circumstances, a local third-party
manufacturer may produce the necessary drugs for domestic use and
reasonable compensation must be paid to the patent holder.
At the meeting, the USA attempted to limit the diseases that might
be covered by the new agreement to HIV/AIDS, tuberculosis, and
malaria, and "other infectious epidemics of comparable gravity and
scale that may arise in the future". This restrictive language was
not acceptable to other members, however. Disagreement also arose
at the meeting as to what might constitute reasonable compensation
and who might be liable to pay it.
The USA further endeavoured to limit the number of countries that
might benefit from the importation of cheaper generic versions of
patented drugs. The Council agreed that the 49 least developed
countries should be automatically entitled to benefit, but no
agreement was reached on the extension of this to other developing
countries. Developing countries rejected this division.
The US position is undoubtedly in line with the desires of
industry. A letter dated 25 Nov, 2002, from 20 pharmaceutical
companies to the US Trade Representative, Robert Zoellick, states:
"An open-ended or unclear exception to the standards for patent
protection would seriously undermine our interest and set back the
long-term public health objectives Doha was designed to achieve. We
urge you to negotiate a solution that is specifically limited to
the diseases that were the focus of the Doha Declaration, namely
HIV/AIDS, TB and malaria and other epidemics of similar scale. In
addition, it should be clear that only truly disadvantaged
countries in sub-Saharan Africa, be the recipient of the changed
rules." - Bebe Loff
************************************************************
http://www.twnside.org.sg/title/5246a.htm
TRIPS consultations on implementing Doha recessed
[brief excerpts only; for full text see link]
Geneva, 29 Nov (Chakravarthi Raghavan) -
... The African position was set out in a statement at the TRIPS
Council by Kenya on behalf of the group, and received the support
of other developing countries from Asia and Latin America. "If
discussions continue on the same lines as has been conducted to
date, then it is unlikely that a desired solution will be
forthcoming, particularly one meant to address the public health
problems afflicting Africa," said the Kenyan Ambassador Ms Amina
Chawahir Mohammad at the meeting of the TRIPS Council Friday
afternoon in a statement for the African Group.
The decision of the African group was reached after an assessment
by them in the light of the US moves to restrict the scope of any
decision to implement para 6 of the Doha declaration to epidemics
as a result of three specific diseases (HIV/AIDS, TB and Malaria),
Japan's call to exclude 'vaccines', and the EC's to place severe
restrictions on suppliers and exporters of generic pharmaceuticals
in developing countries.
Though the positions of these three, and of Canada and Switzerland,
seemed different, trade diplomats of developing countries said
that in effect, they were each defending and promoting one or the
other particular interests of the big pharmaceutical TNCs, and
together making sure that the Doha declaration about available
flexibilities cannot be implemented.
...
With the US trying to limit the recourse to the three specific
diseases, Japan trying to exclude 'vaccines', and the EC placing
such restrictions that no developing country generic producers
would supply or export to other countries, the African group
decided to call a halt. ...
The Kenyan ambassador said: "... some of the proposals (in the
Motta text of 24 November) appear to be replacing the Declaration
and adding extra obligations on members instead of addressing the
difficulties identified in paragraph 6. For instance we have spent
a lot of our time in defining the scope and coverage of diseases
and products while the Declaration is very clear on this.
Similarly we have laboured on defining which member qualifies to
benefit from the solution, yet paragraph 6 of the Declaration is
definite enough. And frankly, we appear to be getting nowhere on
the issue of technology transfer and domestic markets, as well as
the main approach to adopting the solution."
...
"Due to the foregoing," the Kenyan envoy said, "the African Group
is disappointed and frustrated by the progress made so far. The
Group feels that if discussions continue on the same line as they
have been conducted to date, then it is unlikely that the desired
solution will be forthcoming, particularly one meant to address the
public health problems afflicting Africa.
"Members may wish to seriously reflect on the reasons why the
African Group raised this issue in the TRIPS Council prior to Doha
and their subsequent expectations after Doha as stated in various
communications to the TRIPS Council. This will probably give them
a better understanding of the nature of the solution Africa
expects." ...
Trade diplomats and observers said that they expect the US and the
EC to try and apply more pressures in the African capitals to get
their way.
After attempting to divide the developing countries as between
Africans and the Asians and Latin Americans, the majors in recent
days also sought to divide the Africans themselves, and all this
has now become counter-productive. ...
************************************************************
CBC (Canadian Broadcasting Corporation) Radio One
3 December 2002
http://cbc.ca/insite/COMMENTARY/2002/12/3.html
Transcript:
Introduction:
The latest round of talks on drug patents is deadlocked at the
World Trade Organization. At issue: what access should poor nations
have to cheaper generic drugs. Richard Elliott is a lawyer for
Canada's HIV/AIDs Legal Network. On Commentary he says Canada
should change its position.
Richard Elliott:
The World Health Organization estimates one-third of the world's
people lack access to essential medicines. Last week, the UN
reported that 42 million people around the world have HIV. Most
live in developing countries, with no access to affordable
medicines.
One factor is the high cost of drugs protected by patents, which
give the patent-holder a monopoly on making or selling the drug.
Access to cheaper, generic drugs would make the limited health care
budgets of developing countries go further.
One way to achieve this is compulsory licensing - breaking patent
monopolies by authorizing another company to make a generic
version, with payment of a royalty to the patent-holder.
Industrialized countries have used this approach. Last year, during
the anthrax scare, the US and Canada threatened to break the patent
on the drug ciprofloxacin. In response, the company holding the
patent agreed to reduce its price.
Brazil, a developing country, can provide free treatment to over
100 thousand people with HIV because government labs currently
manufacture several drugs not under patent in Brazil. In the case
of patented drugs, Brazil can credibly threaten to issue compulsory
licenses, leading drug companies to lower their prices.
But most developing countries cannot use compulsory licensing,
because they lack this capacity to make their own drugs. So, they
must import them from a country that can manufacture. And where the
drug is under patent in that country, a compulsory license will
likely be needed in order to produce generic drugs for export.
Enter the World Trade Organization and the hypocrisy of some
industrialized countries.
The WTO's patent treaty says compulsory licenses may only be used
"predominantly" for supplying the domestic market of the country
issuing the license. This severely restricts the production of
generic drugs for export to developing countries. A year ago, trade
ministers at the WTO agreed to solve this problem by the end of
this year.
But negotiations stalled last week because wealthy countries such
as the US, the European Union, Switzerland, Japan - and Canada -
insisted on unacceptable limits. They want to restrict any solution
to a handful of diseases such as HIV/AIDS or other "pandemics". But
what about cancer or dengue fever or river blindness or a host of
other illnesses? Why should wealthy countries, who are ready to
circumvent patents for a few anthrax cases, dictate to poor
countries the diseases for which they can get generics? This is
hypocrisy of the highest order and with deadly consequences.
The government's recent Speech from the Throne declared that Canada
"will contribute to reducing the global divide between rich and
poor." The Prime Minister should instruct his trade officials to
stop imposing double standards at the WTO. Canada's current stance
belies its professed concern for the welfare of the developing
world.
For Commentary, I'm Richard Elliott in Toronto.
Richard Elliott
Director, Policy & Research / Directeur, politiques et recherche
Canadian HIV/AIDS Legal Network /
Reseau juridique canadien VIH/SIDA
890 Yonge Street, Suite 700, Toronto, Canada M4W 3P4
Tel : +1 (416) 595-1666 Fax +1 (416) 595-0094
E-mail: [log in to unmask] Web: http://www.aidslaw.ca
The Canadian HIV/AIDS Legal Network is a partner organisation of
the AIDS Law Project of South Africa. -- Le Reseau juridique
canadien VIH/SIDA est un organisme partenaire du AIDS Law Project
de l''Afrique du Sud.
*************************************************************
IP bill:Advocates win provisions for public health
November 26, 2002
By Olayide Akanni
Email: [log in to unmask]
Nigeria-AIDS eForum
[To subscribe, send a blank email to:
[log in to unmask]
View message archives at http://www.nigeria-aids.org/eforum.cfm
The Nigeria-AIDS eForum is a project of Journalists Against AIDS
(JAAIDS) Nigeria. http://www.nigeria-aids.org]
A meeting to revise final drafts of an Intellectual Property (IP)
bill for Nigeria ended in Abuja last Friday, with health advocates
winning vital clauses that would protect right of Nigerians to
access to cheap and affordable treatment.
The new bill is being drafted in compliance with the Agreements on
Trade-Related Aspects of Intellectual Property Rights (TRIPS), to
which Nigeria is a signatory. The Abuja meeting was particularly
important as it made final decisions on the draft bill, which will,
among other things, regulate mechanisms for access to affordable
medicines by the Nigerian government in public health emergencies,
such as HIV/AIDS.
Jointly organized by the Commercial Law Development Programme of
the United States Department of Commerce, the federal ministry of
commerce, the Nigerian Copyright Commission, National Office of
Technology Acquisition and Promotion (NOTAP) and the Nigerian
Intellectual Property Bar, the meeting was funded by the US Agency
for International Development.
Extensive deliberations over the three-day meeting, which held at
the Nicon Hilton Hotel, resulted in the inclusion and
simplification of important language in the bill, relating to
safeguards for the protection of public health.
The bill now includes stronger provisions authorizing the
implementation of health safe guards such as compulsory licensing,
parallel importation and Bolar exceptions, recommended under TRIPS.
The provisions were not won easily however. Critical civil society
groups in Nigeria had been excluded from preparations for the
meeting and only became aware of its importance barely a week to
the event. Health advocates, under the platform of the Treatment
Action Campaign (TAM) - a coalition of civil society groups working
in the area of HIV/AIDS treatment and care - had immediately
protested to organizers about their non-inclusion and demanded for
an invitation to participate at the Abuja meeting. TAM members also
circulated press statements and called a press conference in Abuja
on the eve of the meeting to register their displeasure over non-
involvement of treatment groups in such and important policy-making
process.
The activists argued that the absence of input especially of people
living with HIV/AIDS (PLWHA) in the drafting process could likely
jeopardize the on-going national antiretroviral (ARV) treatment
programme, particularly if important health safeguards such as
Bolar exceptions, compulsory licensing and parallel importation are
not explicitly included in the bill.
Following the protests, seven representatives of TAM were able to
fully participate in the meeting. The representatives were Mohammed
Farouk, Rolake Nwagwu and Mary Ashie (AIDS Alliance in Nigeria),
Obatunde Oladapo (Positive Life Association of Nigeria), Ebenezer
Durojaye and Ifeanyi Okekearu (Centre for the Right to Health) and
Olayide Akanni (Journalists Against AIDS Nigeria). Dr. Nasir
Sani-Gwarzo of the federal ministry of health and Dr. Jerome Mafeni
of Policy Project/Nigeria also attended the three-day meeting.
Delegates attending the workshop were drafted into three working
groups and were expected to review and make final recommendations
on corrections made in an earlier draft of the bill developed at a
meeting last April. The working group on Patents and Designs dealt
with the sections containing the health safeguards and many of the
health advocates attending the meeting naturally gravitated towards
that group.
Reviewing the draft bill, the advocates found out that many of its
provisions concerning the health safeguards were confusing and not
expressed in clear language. After extensive deliberations,
participants were able to come up with clearer working language for
the draft sections of the proposed Patent and Industrial Designs
Act.
Some of the mechanisms now included in the draft bill were: the
setting-up of an administrative procedure which will govern the
issuance of compulsory licensing, extension of authority to issue
a compulsory license to health commissioners, and the deletion of
confusing clauses in the provisions under parallel importation.
The reviewed draft IP bill is to be presented to the Ministries of
Commerce and Justice before its passage to the National Assembly
and eventual enactment into law.
Members of TAM have pledged to follow the progress of the draft
bill through these various stages in order to ensure that the IP
Act that would be passed into law by the national assembly truly
reflects the full interests of public health.
************************************************************
Additional Current Documents
Patents, Pills and Public Health - Can TRIPS Deliver?
Panos Institute, December 2002
http://www.panos.org.uk
Includes section on "Access to unpatented medicines in Nigeria"
Commission on Intellectual Property Rights
(Independent commission set up by British government)
Final Report, September 2002
http://www.iprcommission.org
Report finds intellectual property rights impose costs on most
developing countries and do not help to reduce poverty.
Consumer Project on Technology
Page on Patent Exception for Exports to Address Health Needs
http://www.cptech.org/ip/wto/p6/
Comprehensive documentation on negotiations. Includes details on
U.S. unsuccesfull attempts to bully African countries into
agreeing to U.S. position, and statements by CPTech, Oxfam, Third
World Network, Medecins sans Frontieres
Pharma's Relentless Drive for Profits Explains U.S. Trade
Negotiations
Professor Brook K. Baker, Health GAP, December 10, 2002
http://lists.essential.org/pipermail/ip-health/2002-December/
003831.html [type URL on one line}
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