The Perfect Crime: Get Filthy Rich, Make Millions of Casualties, 
and Still Get Praise 
WTO withholds patients’ essential medicines because of TRIPs

Lifesaving medicines are being withheld to at least two billion people for the financial benefit of a handful of filthy rich pharma-bosses. The WTO does its part by protecting intellectual property rights and providing an alibi to some of the conspirators, praising them as champions of the right to cheap medicines.

By Wim De Ceukelaire
International Action for Liberation (Intal)
Bulatlat.com

“An historic agreement for the WTO,” Supachai Panitchpakdi, the organization’s Director-General, said about the Aug. 30 agreement on trade in cheap generic medicines. During the WTO’s fifth ministerial meeting in Cancun this September, the agreement will be presented to “prove once and for all that the organization can handle humanitarian as well as trade concerns” – as Panitchpakdi put it triumphantly.[i] In reality, however, the agreement makes part of what seems to be the perfect crime: Lifesaving medicines are being withheld to at least two billion people for the financial benefit of a handful of filthy rich pharma-bosses. The WTO does its part by protecting intellectual property rights and providing an alibi to some of the conspirators, praising them as champions of the right to cheap medicines.

TRIPs restricts trade in medicines

The agreement on Trade-Related aspects of Intellectual Property Rights (TRIPs) is the third pillar of the WTO, besides the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS). TRIPs regulates the international protection of intellectual property through patents and lays down rules for the patent laws of member countries. That is for example how 20 years became a global minimum standard for the duration of patent protection.

TRIPs’ implications for the pharmaceutical sector are the most controversial aspects of the agreement. Anybody benefits from accessible and affordable medicines but the sector is under the monopoly control of a few multinationals that protect their interests through patents, without any consideration for affordability and accessibility. Some 97% of patents is in the hands of the industrialized countries.[ii]

In principle the TRIPs agreement is flexible and allows member countries to take measures to safeguard the public interest, for example when public health is at risk because of the restrictions. One of the most important safeguards is the right of member countries to issue compulsory licenses. Governments can override a patent and force patent holders to authorize licenses enabling drugs to be produced locally, subject to the compliance with certain procedures and a modest compensation. Production under compulsory licenses has to be “predominantly to supply the local market.”

Theoretically, this provision of the TRIPs agreement offers a convenient solution for poor countries and allows them to produce their own, cheap generic medicines. The number of countries that is able to produce or develop their own generic medicines, however, is very limited.[iii] TRIPs therefore also provides the option to issue a compulsory license for importation of the drug from another country. In practice, this system did not answer the needs of poor countries after its introduction in 1995. Countries that want to import medicines under this provision are dependent on another country where that particular product is not covered by a patent, or a country that produces the drug under a compulsory license for its domestic market and the willingness to export part of the production. The most important problem, however, was the political pressure and blackmail of the multinationals and the rich countries, especially the United States, on poor countries not to make use of compulsory licenses. Most countries therefore wanted to negotiate a more explicit text during the WTO’s ministerial meeting in Doha in 2001.

The short-lived euphoria in Doha

The Third World was able to achieve progress in Doha because the industrialized countries’ negotiating position was hampered by external circumstances. First, there was the lawsuit of 39 pharmaceutical multinationals against the government of South Africa because it had passed a new law to improve the availability of AIDS medication. This case brought the pharma-mafia’s callousness and the effects of patent protection on public health to the attention of the broad public. The climate was not favorable for more intimidation about drugs in Doha. Secondly, the U.S. was experiencing a wave of attacks with anthrax-contaminated letters. When panic broke out about the availability of ciprofloxacin, a drug used to treat the disease, the U.S. government threatened to issue a compulsory license in order to secure immediately a cheap supply of Cipro from pharma-giant Bayer. Even though this action was justifiable under TRIPs, it was hard to reconcile with strong-arm tactics at the negotiating table.[iv]

The Doha “Declaration on the TRIPs Agreement and Public Health” explicitly states that “the TRIPS agreement does not and should not prevent Members from taking measures to protect public health” and reaffirmed the right to use compulsory licenses.[v] That this declaration, which merely states the obvious, was seen as a breakthrough for the Third World, speaks volumes about the actual balance of forces in the world. Apparently, the mere fact that the poor aren’t being duped during an international summit is already a reason to crow victory.

The Doha declaration is definitely a step forward.[vi] It exempted the least developed countries from the full application of TRIPs until 2016. And there was this paragraph 6, which would become probably one of the most contested paragraphs in world history.[vii]

Reality check with par. 6

For the poor countries, paragraph 6 had to be the opening move toward the solution of an apparent irrationality in the TRIPs agreement. Poor countries can issue compulsory licenses for the importation of a certain drug from another country that produces a cheap, generic version. The problem is that TRIPs restricts export of this medicine. If the other country produces the drug under compulsory license, it should be “predominantly to supply the domestic market.”

Currently, some poor countries can still purchase these drugs from a country like India that only has to start implementing TRIPs in January 2005. After that date, this kind of trade will become practically impossible. In theory TRIPs provides the right to import a drug from another country under a compulsory license but if other countries are not allowed to export it, this right becomes useless.[viii]

Paragraph 6 recognizes this deadlock and instructs the Council for TRIPS to find an “expeditious solution” before the end of 2002. During these negotiations it became clear what the rich countries’ rhetoric about public health at Doha was really worth. In defense of their pharmaceutical industry, the U.S., European Union, Japan and Switzerland, fought tooth and nail in order to turn the Doha declaration on its head and put greed ahead of public health. They effectively prevented any solution by introducing unnecessary procedural complications and limitations.[ix] The pressure of the pharmaceutical industry was so overwhelming that, at one time, the WTO secretariat even announced that they were negotiating directly with pharma-giant Pfizer to find a text acceptable to the U.S. government!

The dispute over paragraph 6 can get very technical but it is hard to ignore the bitter irony: The advocates of “free trade” are going all-out to deny others the freedom to buy cheap medicines in the world market. Some called it a joke,[x] but as it is about drugs and millions of human lives, we would better talk about a tragedy.

Last Aug. 30, only two weeks before the meeting in Cancun, the TRIPs Council reached an agreement. With this agreement, the ministers will declare before the cameras in Cancun that they have finally found a formula to make cheap drugs available for the poor. In reality, the paragraph 6 agreement introduces a whole new bureaucratic procedure that is so cumbersome that it offers more comfort to the pharma-giants than to the poor patients according to the organizations that monitored the negotiations.[xi] But for the poor countries, it was this agreement or none at all.

Meanwhile, outside the WTO

While the fuss about paragraph 6 was at the center of attention, the U.S. continued to bully other countries and forced them to tighten patent protection even more than required by the TRIPs agreement, often through bilateral or multilateral trade agreements.[xii] In the Free Trade Area of the Americas (FTAA), for example, the U.S. wants to ban the export of drugs under compulsory licenses completely in all 34 member-countries.[xiii] So much for paragraph 6 and free trade…

The U.S. does not even shun deceit to force overly strict patent laws on poor countries. The U.S. Agency for International Development (USAID), for example, has consultants in many countries who “assist” local governments in the adjustment of their patent laws to the TRIPs requirements. Governments who trust these consultants invariably end up with laws that favor the pharmaceutical multinationals even more than required by the international agreements. Even the World Intellectual Property Organization (WIPO), a United Nations agency tasked to provide legal and technical assistance to its members, has been caught providing advice that fails to reflect the spirit of the Doha Declaration.[xiv]

A perfect crime? As long as it lasts!

The fuss over paragraph 6 turns out to be a smokescreen and public relations exercise to conceal that the pharma-mafia’s greed has prevailed over public health. It looks like the perfect crime: While the negotiators of the U.S. and the European Union get applause for the “compromise” they have reached, they are still making casualties withholding much-needed drugs from patients.

The discussion about “paragraph 6” and “the spirit and the letter of Doha” should not divert our attention from the basic facts: With or without compulsory licenses, patents are of no use but to enrich the pharmaceutical industry. Protection of intellectual property is robbing the poor to serve the rich.[xv] It makes drug prices rise out of reach for the poor, who need them most.[xvi] The TRIPs agreement introduces protection of patent rights where they did not exist, raising prices of drugs with 12 to 200%.[xvii] TRIPs introduces a minimum period of 20 years for the duration of patents, delaying the availability of cheaper, generic medicines.[xviii] In short, public health is compromised by patent protection on medicines.[xix]

The only way to give precedence to public health over capitalist greed is to restrain the pharma-giants—instead of providing them with monopoly rights through patents. In fact, as an economic sector of extraordinary importance, the pharmaceutical industry should be brought under government control so that the development and production of medicines can respond to the actual needs of the people. Poor countries can, alone or in cooperation with others, develop their own pharmaceutical industry. Supported by the international people’s movement they should demand an immediate end to any interference of the WTO in health and related matters. That would finally prove that the perfect crime does not exist. Intal/Bulatlat.com

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