AS DEVELOPING nations celebrate a hard-won victory in their battle for
cheaper drugs rich, industrialised countries are already gearing up to limit its
impact. They will to try to impose so many conditions in future talks that poor
countries could be little better off than before.
At a meeting in Doha in Qatar, the 142 members of the World Trade
Organization last week declared that the Trade Related Aspects of Intellectual
Property Rights (TRIPS) agreement 鈥渟hould not prevent members from taking
measures to protect public health鈥�. The US, Germany and drugs industry
representatives fought unsuccessfully to water down the declaration.
The declaration confirms the right of poor countries to issue 鈥渃ompulsory
licences鈥� that allow them to make their own cheap, generic copies of patented
drugs, or to import them from countries that do not recognise patents. Perhaps
even more importantly, delegates agreed that changes should be made next year
that will allow countries to import generic drugs from countries that do
recognise patents.
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This is vital because all countries in the WTO were supposed to recognise
patents by 2006, which would have made it illegal for companies based in, say,
India or Brazil to export patented drugs as cheap generics.
鈥淭his is an enormous victory for developing countries. It makes world trade
rules work for healthcare, not against it,鈥� says Phil Bloomer, a senior policy
adviser with the British-based charity Oxfam.
Countries can now issue compulsory licences without the fear of trade
sanctions and lawsuits, he says. In practice, they should be able to negotiate
cheaper prices for patented drugs merely by threatening to issue a licence,
something they can now do more easily than before. 鈥淚t doesn鈥檛 have to be a
pandemic or an epidemic鈥攏ot even an emergency caused by a disease
outbreak,鈥� says Bloomer.
But the declaration won鈥檛 stop the US offering favourable trade deals to
countries that renounce their rights to issue compulsory licences, says Jamie
Love of the Consumer Project on Technology, an American pressure group, though
it will be easier for countries to resist such pressure.
More worryingly for the poorer nations, the Doha agreement isn鈥檛 the end of
the story. The changes to TRIPS needed to allow imports from countries that
recognise patents will be discussed next year behind closed doors in Geneva. And
rich countries could use these talks to impose stringent limits on the right of
countries that recognise patents to export generics.
A European Commission document seen by New Scientist lists the sort
of conditions that could be imposed. They include permitting licences only for
drugs for a few diseases, such as HIV/AIDS; allowing them only in the poorest
countries; forbidding them if the patent holder has offered favourable prices;
insisting that a country must prove it cannot make a drug itself even if
importing it is cheaper; and forbidding a maker of generic drugs from exporting
to more than one country.
The European Union decided not to fight for these conditions in Doha because
there was disagreement on them among member states. But countries that oppose
making widespread exceptions to patent protection, such as Germany and the US,
are likely to try and impose such limitations in future TRIPS talks, says
Michael Bailey of Oxfam.
Such restrictions could put existing generic drugs companies out of business.
They might survive by moving to the poorest countries, which after Doha need not
recognise patents until 2016, but this could be limited by the difficulties of
working in these countries.