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| Kathmandu, Tuesday January 07, 2003 Paush 23, 2059. |
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Human rights vs IPRs
By HIRAMANI GHIMIRE
Member governments of the WTO have failed to
meet the year-end (2002) deadline for agreement negotiations on access to essential
medicines for people in poor countries with insufficient or no capacities to manufacture
such drugs. The deadline was agreed at the fourth ministerial conference of WTO in
November 2001 with a view to do justice to poor communities in developing countries. When
one reads the Doha text from a public health perspective, one gets the impression that
TRIPs is being given a ‘human face’. The failure to meet the above deadline
belies all expectations in this regard. The much-cited Doha Development Agenda has itself
received a severe blow from its more powerful subscribers. The limping progress towards a
more ‘inclusive’ trade agenda has been further weakened.
TRIPs and the right to health
The TRIPs agreement treats intellectual property
rights (IPRs) as economic or commercial rights. In other words, it intends to ensure
private material benefits to the creators of intellectual property. The main purpose is to
protect the value of investments made in the production of such property. The commercial
nature of IPRs can also be seen in the fact that most IPRs are held by companies, not by
individuals. Their importance lies in stimulating invention, promoting investment, and
facilitating technology transfer.
The protection of IPRs should not come, however,
at the cost of basic human rights. The Universal Declaration of Human Rights (UDHR)
encompasses health in its category of fundamental human rights. And it does not ignore the
importance of commercial rights. For example, Article 27 of UDHR strikes a balance between
a creator’s "moral and material interests resulting from any scientific,
literary, or artistic production" and the community’s "right to share in
scientific advancement and its benefits". The TRIPs agreement ignores the need for
this balance and operates in favour of the investor. Within the TRIPs regime, producer
interests dominate consumer interests. Poor consumers even face the threat of exclusion
from the opportunity to use a particular product or service. Patent protection for drugs
is reported to increase prices by 12 to 200 per cent in developing countries. This makes
the possibility of exclusion stronger. When such exclusion refers to life-saving
medicines, it becomes a fatal blow. One recent report (2001) of the UN Sub-Commission on
the Promotion and Protection of Human Rights makes it very clear by stating that IPRs are
time-bound (for example, 20 years in case of a patent) whereas human rights are universal
and inalienable.
Access to healthcare is also a development
issue. The international community does agree on this. A number of intergovernmental and
international forums are a witness to this. The ‘millennium development goals’,
which include quantifiable targets on improving the health status in developing countries,
present a good example. Unfortunately, however, some industrialised countries have been
taking different postures in different forums. Those who had posed themselves as strong
proponents of public health at the Millennium Summit are now objecting to a pro-health
agenda at the TRIPs Council!
It is important to note that the issue of IPR
protection may no more be seen as a developed versus developing country agenda, especially
after the Anthrax onslaught in the US in September 2001. In response to potential
outbreaks of Anthrax, Canada allowed a generic drug company to produce a million doses of
Cipro in contravention to the TRIPs agreement without even bothering to declare an
"emergency" to justify what is known as compulsory licensing in TRIPs. In the
USA, a breach of TRIPs was avoided through an understanding reached with the manufacturer
of Cipro (Bayer) that required the company to sell the drug at heavily discounted prices.
This incident has shown that developed countries are as vulnerable to diseases as others.
Means or end?
IPRs are supposed to be instruments to promote
public good. In the health sector, for example, IPRs should primarily be used to support
the healthcare system, not to promote the pharmaceutical industry. Protection of IPRs is
good; but more protection is not necessarily better. The socio-economic context needs to
be taken into account. The move towards global harmonization of IPR systems seems to have
forgotten this. The current IPR regime is encouraging commercialisation of health
services. People’s purchasing power is determining the availability of medicines in a
given community. That is why less than five per cent of the money spent on R&D on
medicines goes for diseases that affect developing countries. The least developed among
them get much less. A report of the UK-based Commission on IPR (2002) establishes that of
the 1,393 drugs approved between 1975-1999, only 13 were specifically indicated for
tropical diseases. Contrary to popular belief, the Commission concludes that given
widespread poverty stronger IPR protection does not lead to an increase in R&D
expenditure in developing countries. A report (2001) of the WHO Commission on
Macroeconomics and Health comes up with similar findings.
Advocates of globally harmonized IPRs tend to
put all forms of commercial rights into one single basket. This is a risky proposition.
One needs to see the relevance of IPRs to protecting human rights, especially of the poor.
As Lester Thurow, a leading economist, argues, the need to get low-cost medicines in poor
countries is not equivalent to their needs for low-cost CDs.
Technology, an obstacle
What the legal framework for IPRs has not been
able to achieve in terms of strengthening the position of investors, or does not even
purport to achieve, is being achieved by technological advancements. Restrictions put on
the use of information available on the Internet through encryption is an example. Since
poor countries have a limited access to research findings on health issues, the Internet
could be seen as a less expensive solution. However, the "digital rights" of
producers do not let it happen. In many cases, information on the Internet becomes more
inaccessible than in the print media. In fact, this is posing a threat to the concept of
"fair use" (right to use a copyrighted print material in certain circumstances).
It seems that knowledge has no more "the character of non-rival public good"
(Joseph Stiglitz).
Nepal’s perspective
As a country making preparations for acceding
into WTO, Nepal has some opportunities unfolding. We should try to capitalise on the
growing realisation that IPRs should evolve in a given country rather than be imposed from
outside. Overemphasis on IPR protection may lead to a proliferation of poor quality IPR
instruments that promote litigation and stifle innovation. Keeping these issues in mind,
Nepal needs to build coalitions with other countries in order to move them closer to
protecting public health interests within the framework of any IPR regime. Only this
approach could bring IPRs closer to basic human rights we are all committed to.
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