Jason Nardi
HONG KONG, Dec 19 2005 (IPS) – The hidden story behind the final draft of the World Trade Organisation ministerial conference s declaration lies in TRIPs, or trade-related intellectual property rights.
Folded into the technical language are many clauses and binding provisions that could have as many activists are denouncing devastating effects on peoples lives, denying them access to fundamental resources.
India s Trade Minister Kamal Nath was emphatic in his official statement last week when he asked the ministerial meeting to pave the way for the launch of serious negotiations on the issues pertaining to relationship between the TRIPs and the Convention on Biological Diversity.
We are up against a wall of obduracy in a handful of developed countries, he added on Saturday, the day before the final declaration of the five-day meet was issued.
Recognition of rights to biological resources and traditional knowledge, as opposed to private intellectual property rights, is certainly a development issue, he said.
The reference to the Convention on Biological Diversity practically disappeared in the last draft, leaving the status of biodiversity, traditional knowledge, and cultural expressions unsettled.
But the paragraph on public health concerns probably constitutes the most urgent test case to at least maintaining sufficient flexibility for the public interest under the TRIPs agreement.
Late on Saturday evening, U.S. Trade Representative Rob Portman announced that his country had formally accepted an amendment to the WTO Agreement on TRIPs an important step in the global effort in providing the best access to life-saving drugs.
The amendment was agreed Dec. 6, a week before the trade talks in Hong Kong began, so as to ease the difficulties that countries with insufficient or no manufacturing capacities in the pharmaceutical sector could face in making effective use of compulsory licensing.
A temporary waiver that was approved on Aug. 30, 2003, allowing exports and imports of drugs manufactured under compulsory license, was made permanent (though the waiver will remain in effect until the amendment enters into force).
While the United States and WTO Director-General Pascal Lamy, as well as Harvey Bale, director of the International Federation of Pharmaceutical Manufacturers, heralded it as a success that showed the WTO is contributing towards humanitarian and development goals, many public health experts and leading non-governmental organisations, including Nobel-winning Médecins sans Frontières (Doctors Without Borders), were of a different opinion.
With millions of people dying from tropical or preventable diseases, HIV/AIDS on the increase and the risk of an avian flu pandemic, the recent decision by the WTO General Council to approve a flawed and highly criticised amendment to the TRIPS on exports on generic medicines shows the WTO is ignoring those with expertise on public health and intellectual property, charges Richard Lloyd, head of the Britain-based Consumers International.
The 149-member trade body is bowing to pressure from big pharmaceutical companies, who supported the change, he said.
The direction of policy making on intellectual property within the WTO will have catastrophic repercussions for human health across the globe, added Lloyd.
The waiver allows pharmaceutical exports to developing countries that face grave public health problems but which cannot produce drugs for themselves. Many of the waiver s provisions seek to prevent imported generic versions of the drugs from finding their way back to rich country markets, where they would be competing against the original brand- name drugs.
In the words of the U.S trade representative: To ensure that the regime serves its humanitarian purpose, the amendment contains vigorous safeguards to ensure that drugs are delivered to poor people in need and not diverted to other markets.
But the system s eligibility, notification and control requirements were so complicated that not a single country signaled its intention to use it as an importer in the last two years.
According to the European AIDS treatment group, a German NGO, the amendment goes against the primacy of health over trade, a principle that was unanimously approved in Doha (at the 2001 ministerial conference) by the same WTO.
TRIPs was introduced against the will of developing countries, under the pressure of multinational companies from the U.S. and Japan, Sanya Reid Smith, of the Third World Network, told IPS.
It is now in place. But TRIPs was not enough for them, so now they are going for TRIPs plus, which means even stronger intellectual protection, said the activist.
TRIPs plus is now implemented in bilateral free trade agreements where countries like the United States require that they get higher standards of intellectual property protection from partner countries, in line with the U.S. standards.
Obligation to patent all products and processes, continued Reid Smith, will have major impact on society s access to affordable medicines, food and knowledge. Before TRIPs, international laws on patents, especially in developing countries, would not allow the patenting of food and drugs and other essential products.
If TRIPs plus were to be integrated into TRIPs, the situation would change drastically.
It has gotten to a point, said Reid Smith, where even if a country abides by the letter of TRIPs, they follow everything they are supposed to do, but they violate the spirit of the agreement that is, if the U.S. for instance expected to obtain a larger compensation from them, then they can be sued, and then they face trade sanctions on their most valuable exports.
Many WTO members have spoken out against this provision, and are demanding that the organisation s dispute settlement mechanism be transparent, predictable and equitable.
The mere fact that a member has the possibility of bringing a complaint, even if the other member is in full compliance with the WTO agreements, reintroduces the power imbalance that occurs in bilateral agreements, which a multilateral agreement under the WTO is supposed to overcome, agree trade justice activists.
There has been a moratorium on the provision, and it was in brackets in the final declaration draft of the Hong Kong ministerial.
The TRIPs requirements make it very difficult for governments to obtain medicines, including in emergency situations like an epidemic.
A potential avian flu pandemic is a clear case of an emerging global threat for human health and life that would be affected by the even more rigid regime of intellectual property rights, proposed (but not yet agreed) in the current round of trade talks.
Hoffmann-La Roche (Roche), the Swiss pharmaceutical company which produces Tamiflu, the recommended antiviral drug to combat bird flu, received a worldwide commercialisation licence in the United States.
Stocks of Tamiflu are in great demand and Roche is backlogged for years into the future. World health authorities including the UN s World Health Organisation (WHO) are urging Roche to license other companies to make the drug.
But the company is resisting, claiming the drug-making process takes a year, that it would take new makers three years to get tooled up, and that the main ingredient is in limited supply.
According to health activists, Tamiflu is a sort of updated version of an ancient Chinese treatment for coughs and flu. The fruit of the star anise tree is the starting point in the manufacture of this modern drug. Chinese medical practitioners have used a tea of this licorice-tasting spice to treat respiratory problems for hundreds, if not thousands of years.
