Professional Documents
Culture Documents
Meet 2009 1450460149
Meet 2009 1450460149
Authors
John Agada
SLIM, Emporia State University
1200 Commercial, Emporia, KS 66801
Email: jagada@emporia.edu
John Gathegi
SLIS, University of South Florida
4202 E. Fowler Ave., ADM241, Tampa, Fl 33620
Email: jgathegi@cas.usf.edu
Johannes Britz
University of Wisconsin-Milwaukee
School of Information Studies, Bolton Hall 5th Floor 3210 N Maryland Ave Milwaukee, WI
53211
Email: britz@sois.uwm.edu
Peter Lor
University of Wisconsin-Milwaukee
School of Information Studies, Bolton Hall 5th Floor 3210 N Maryland Ave Milwaukee, WI
53211
Email: peter.lor@ifla.org
During the past few decades, western countries have pushed for strengthening intellectual
property ( IP) rights, as well as enforcing them uniformly across the globe. This push came to
a climax when the IP was removed from the World Intellectual Property Organization (WIPO)
to become a trade issue under the World Trade Organization (WTO). Western countries were
instrumental to crafting the Trade-Related Aspects of Intellectual Property Rights (TRIPs) as
an item in world trade negotiations and agreements through WTO in 1995. Although many of
the TRIPs requirements seemed favored producers as opposed to consumers of IP,
developing countries have nevertheless been obliged to enact domestic legislation to
implement the requirements of TRIPs. This paper examines the implications of the TRIPs
Agreement on access to HIV/AIDS drugs in African countries, and offers a framework for
analyzing the international and domestic factors which offer constraints and opportunities for
relevant public health policy development and implementation in Africa.
Introduction
The emergence of a global knowledge society has facilitated the blurring of national borders
and thrust to the fore issues of the globalization of intellectual property (IP) regimes. The
origins of globalized IP regimes may be traced to the economic downturn of the 1970s and
1980s which heightened power asymmetries between the industrialized and developing
countries (Sell, 1998). Although both groups were adversely affected by the economic crisis,
the developing countries were rendered more vulnerable due to their debt burdens. These
countries therefore adopted economic reform policies prescribed by international financial
institutions such as the World Bank and International Monetary Fund, and western creditor
nations such as the U.S. These economic reform policies called for open markets, liberal trade
and investment, private public sector enterprises, and greater protection for IP (IP) rights,
among others. Touted as the only road to economic recovery and national development, these
market reforms promoted the integration of developing economies into the global economy
(Kiggundu, 2002).
This paper outlines a framework for investigating the impact of globalized IP regimes on
public health in Africa. Specifically, it will trace the evolution of the Trade-Related Aspects of
Intellectual Property Rights (TRIPS) Agreement of 1995 and subsequent amendments. Their
implications for access to drugs needed to contain the current scourge of HIV/AIDS in Africa,
with particular reference to South Africa will also be reviewed. The framework outlined in this
presentation guides a field investigation into the policy, legal and economic processes of
facilitating access to HIV/AIDS drugs for populations in African countries within the
framework of the TRIPS Agreement.
(i) The globalization of production and massive increases in the mobility of capital;
(ii) The digital technology and subsequent growth of information and service-based
economies;
(iii) The dominance of the free market doctrine and competition between trading blocs
and national economies;
(iv) The increasing interdependence of environmental ecosystems in a shrinking world;
(v) The reinvention of government and advent of civil society and private sector agents
as power brokers in public policy formation (Doern, 1998).
IP is often divided into two fields: industrial property which includes protection by means of
patents, trademarks and industrial designs) and copyright which protects the works of authors
and other creators of works of the mind. Drahos (1997) identifies three stages in the
evolution of IP: (i) The first stage is the national or territorial era at which there were no
international regimes; (ii) The Paris and Berne Conventions at the latter part of the 19th
Century ushered in an international regime which was still territorially based and extended the
rights of creators through treaties; (iii) U.S.-led pressure by the mid-1980s elevated IP onto a
higher plane on the international global economic and regulatory trade agenda. The
establishment of the WTO and its TRIPs is illustrative of this third phase in the evolution of IP.
The WTO was established in 1995 to “oversee an integrated dispute settlement regime and to
undertake a proactive trade policy surveillance role” (Trebilcock and Howe, 1995, p. 38).The
TRIPs Agreement sets standards concerning the availability, scope and use of IP rights for
copyright and related rights, trademarks, geographical indications, industrial designs, patents,
among others. Throughout the 1960s and 1970s, attempts to spread IP protection policies at
multilateral forums such as the World Intellectual Property Organization (WIPO) and United
Nations Conference on Trade and Development (UNCTAD) Prompted by various corporate
interests, the U.S. led the industrialized west in tightening the linkage between trade and IP by
amending the Trade and Tariff Act in 1984 and 1988. Under Section 301 of the Trade Act of
1974, the U.S. could threaten trade retaliation via trade sanctions, to induce policy changes in
countries with inadequate IP protection. This enabled the U.S. to link its political and
economic power to the on-going market reforms in developing economies.
Since these developing economies were more dependent on U.S. markets, than vice versa,
the former were rewarded with preferential access to U.S. markets for effective IP protection.
These countries also need to construct IP institutions from the ground up, including IP
legislations, policies, and culturally relevant associations and programs. India and Brazil led
the challenge to the agenda of U.S. pharmaceutical and information technology sectors on IP,
investment and services. In 1988, a 301 investigation of Brazilian patent protection for
pharmaceutical products led to increased tariffs on Brazilian goods in the same year. The
increased tariffs were terminated in 1990, after Brazil agreed to enact the legislation
requested by the U.S. Trade Representative. According to Sell, such externally induced policy
change attained through economic or market power asymmetries in the international IP
arena is not based on beliefs or convictions and may therefore be reversible when
opportunities arise (1998). Lester Thurow argued that although there might be value in a
global system of IP rights, “the Third World’s need to get low-cost pharmaceuticals is not
equivalent to its need for low-cost CDs” (Thurow, 1997, p. 103). This moral seems to inform
the power asymmetries in the international IP arena with respect to procuring drugs to
combat the HIV/AIDS epidemic in Africa within the framework of the TRIPS Agreement on
patents for pharmaceutical products.
It was only in November of 2003 that the South Africa Government rolled out a national plan
that will allow affordable access to antiretroviral drugs. The plan was called the Operational
Plan for Comprehensive HIV and AIDS care, management and treatment for South Africa. The
plan covers four core areas namely: prevention, treatment, research and human rights
(2003:2). A joint Health and Treasury Task Team was established to investigate the feasibility
of the plan. This plan was not very successfully implemented under the leadership of Thabo
Mbeki and his Minister of Health Manto Tshabalala-Msimang. In 2005 it was estimated that
only 104 000 South Africans had access to anti-retroviral drugs. This number is in sharp
contrast to the estimated 830 000 South Africans that were in desperate need of these
medication (Kahn, 2008). They were both replaced in 2008 and it will have to be seen how
the new administration under President Jacob Zuma addresses the AIDS issue in South Africa.
The Act is in compliance with the TRIPS agreement in the sense that it also allows
for compulsory licensing for the manufacturing of drugs by a government. The
implication of the TRIPS agreement is that a government can grant a production
license to another pharmaceutical company to manufacture a generic drug with
the consent of the original patent holder. In most cases the patent holder will then
receive a token royalty (Khan, 2008). Section 15 (c) of the Act empowers the
Minister of Health to “compel a particular drug’s patent holder to license another
company to produce its drugs, if that can be done cheaper than buying them from
the patent holder” (Bass, 2002: 4)
The main intention of the Act is therefore to allow the use of cheaper generic
drugs on a mass scale and, based on the TRIPS agreement; it provides South
Africa the flexibility to opt out of TRIPS agreement based on the specific clause
that provides for waivers in cases where there is a national emergency. The moral
motivation behind this legislation was therefore to legitimately produce generic
medicine for domestic use due to the national AIDS crises in the country. South
Africa has not yet declared the AIDS pandemic a national emergency which would
have allowed the country to request compulsory licensing. According to the TRIPS
agreement all member states are obligated to allow at least 20 years of patent
protection for medicine and should not allow the production of any generic
products unless in case of a national emergency (Kahn, 2008).
The introduction of the new legislation was met with severe criticism from both
the USA government as well as international pharmaceutical companies who felt
that their intellectual property rights were under threat by this new legislation. In
1998, the USA government put South Africa on the watch list for those countries
that disregard international IP rights with respect to US products. The following
year, the US Office of Trade instituted trade pressures against South Africa. This
was based on an interpretation that the 1997 Act contravenes the TRIPs
agreement. The Bush Administration eventually abandoned this line of action, and
adopted a policy to support the struggle of developing countries, including South
Africa against the AIDS epidemic. However, it maintained that South Africa must
still comply with the World Trade Organizations treaties (Bass, 2002).
There was also some domestic opposition to the 1997 Medicines Act by the
Pharmaceutical Manufacturers’ Association representing 39 transnational
pharmaceutical companies. Their main legal arguments were based on section 15
(C) of the 1997 act which they argued would allow the Minister of Health to permit
the reproduction of cheaper generic medicine at the expense of their intellectual
property rights – in particular patent rights. According to them, parallel
importation of drugs contravenes Article 27 of TRIPs agreement, which deals with
compulsory licensing. This will, according to these companies, breach South
Africa’s patent commitments as is explained under the WTO patent rules. They
expressed a specific legal concern that South Africa would disregard foreign
patents by means of this article, and thereby the right of the Pharmaceutical
Manufacturers’ Association to be compensated for their intellectual property. They
also made a case that the Act was unconstitutional since it would allow the
Minister of Health the power to overrule the 1978 South African Patents Act. Their
argument was based on the interpretation that the South African Patent Act
allows for compulsory licensing only in those cases where it can be proven that
patent holders abused their power – something they claim they are not guilty of
(Khan, 2008).
In its response to the planned legal action from the pharmaceutical companies,
the South African government argued that they had a moral as well as
constitutional responsibility to care for the health of its people. The government
also stated that it will only use the Act in compliance with the TRIPS agreement.
This position was supported by OXFAM, Action for Southern Africa, TAC, South
African Trade Unions and Medicines sans Frontieres (Bass, 2002; Kahn, 2008).
Oxfam issued a stern statement on the case, observing that “…Oxfam believes
that the companies’ legal proceedings are an unwarranted intrusion into the
democratic process of law in South Africa, and a dangerous attempt to interpret
the TRIPS agreement in their own interests. If they win the case, this will severely
compromise the government’s duty to provide its citizens with access to
affordable medicines. It would also send a chilling message to other governments
not to use the existing safeguards in TRIPS, nor to implement national pro-poor
health legislation, even if these are WTO-complaint.” (South Africa vs. the drug
giantshttp://www.oxfam.org.uk/resources/policy/health/drugcomp_sa.html)
It is also interesting to note that the South African High Court ruled that AIDS
activists could join the Government in defending the Act. This decision was based
on the argument that this case is not only limited to intellectual property rights but
also involves public health and is therefore a matter of social justice. Based on
this ruling the TAC became a amicus curiae of the court (friend of the court). This
collaboration between the South African Government and TAC are in sharp
contrast to previous criticism of the government by TEC, which even called for the
resignation of the Minister of Health.
There was also other international support for the South African government,
including the World Health Organization (WHO) and the member countries of the
UE, in particular Germany, who denounced their legal arguments and strategies
and called upon the pharmaceutical companies to withdraw their case. The EU
parliament made a similar call requesting the companies to end their legal
actions (Kahn, 2008)
Conclusion
Peter Drahos described IP standard-setting as “an insiders’ game dominated by a few
producers of IP supported by states with the most to gain” (2002, p. 174). The rise of non-
state and non-business actors such as non-governmental organizations, humanitarian
organizations and civil society groups during the past two decades have however diffused the
leverage of asymmetries of power based on political and market forces alone. These non-
state actors as in the case of access to HIV/AIDS drugs have begun to influence international
and domestic policies and legislations by the ethical and moral power of their ideas and
values. They have also registered their influence in IP issues related to biodiversity and
agriculture. Their advent to the discourse of IP have helped to give voice to the voiceless and
the powerless by representing interests that were hitherto absent, or disclosing information
on the full implications of the standard-setting process, as well as offering funds, education
and consulting services to ill-prepared negotiating parties. National standard-setting regimes
developed by IP stakeholders consisting of governments, consumer groups, and non-state
actors in developing countries would therefore be more impactful on regional and ultimately
international IP standard-setting.
References
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http://www.oxfam.org.uk/resources/policy/health/drugcomp_sa.html
Doern, G.B. (1999). Global change and intellectual property agencies: An Institutional
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to-medicine-in-south-africa
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