19th February 2003

NO COMPROMISE IN SIGHT ON TRIPS & HEALTH

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Discussions at the Tokyo ‘mini-Ministerial’ on 14-16 February and the Council for Trade-related Aspects of Intellectual Property Rights (TRIPs), taking place on 18-20 February, failed to narrow the gap on paragraph 6 of the Doha Declaration on TRIPs and health. The TRIPs Council saw a repetition of the old debate with no mention of Council Chair Ambassador Eduardo Perez Motta’s proposed draft note on “understandings”(see BRIDGES Weekly, 12 February 2003) or Brazil’s proposal on eligibility raised at the Tokyo meeting in yet another attempt to break the deadlock. The US, which is blocking the adoption of the Chair’s draft paragraph 6 solution of 16 December, is coming under increasing pressure from Democrats at home to soften its stance on disease coverage.

According to paragraph 6 of the Doha Declaration on the TRIPs Agreement and Public Health, the TRIPs Council must find an expeditious solution by the end of 2002 to the problems countries may face in making use of compulsory licensing (i.e. the practice by a government to authorise itself or third parties to use the subject matter of a patent without the authorisation of the right holder for reasons of public policy) if they have insufficient or no pharmaceutical manufacturing capacity. The perceived need to address this issue arose from concerns related to Art. 31(f) of the TRIPs Agreement, which requires that production under compulsory licensing must be primarily for the supply of the domestic market.

Nothing new emerged from the 36 statements on TRIPs and health heard by the TRIPs Council on 18 February. Members largely reiterating their established positions. To the surprise of many, Motta did not present his proposed statement on “understandings” that had emerged in the discussions, relating to the 16 December draft compromise solution. India, along with many other delegations, again stressed that the 16 December draft provided a good balance for all interests, and added that they were not prepared to accept a limitation of the disease coverage. The US continues to reject the draft, arguing that the disease coverage of the solution should be limited to HIV/AIDS, malaria, tuberculosis and similar infectious diseases (see BRIDGES Weekly, 20 December 2002).

During the TRIPs Council meeting, Brazil declined to comment on news reports of its proposal put forward in Tokyo. According to press sources, Brazil had floated the idea of involving the World Health Organization in verifying whether poor countries wishing to use the paragraph 6 solution had insufficient manufacturing capacity to produce the drugs themselves under a compulsory license. As European Trade Commissioner Pascal Lamy noted, this initiative “could contribute to solving this confidence gap which we still have”. While declining to endorse or reject the proposal, US Trade Representative Robert Zoellick noted that the issue of limiting the scope of the proposed solution could either be solved by focusing on the disease coverage or on the beneficiary countries.

Eight congressional Democrats have urged the US Administration to show more flexibility in the TRIPs and health discussions. In a letter to Zoellick, three House representatives expressed concern over the US’ attempt to limit disease coverage to “infectious epidemics”. They believed that the coverage should be broadened, supporting a consultative process between WTO Members and competent authorities, either involving the WHO as proposed by the EU (see BRIDGES Weekly, 15 January 2003) or between Members’ health ministries. In a separate letter, five Senate Democrats criticised the administration for advocating intellectual property protections for pharmaceuticals “that undermine our nation’s commitment” to the Doha Declaration. They urged Zoellick not to seek to narrow the Declaration “through restrictive interpretations of its critical terms”.

Motta closed the TRIPs and health discussion in the TRIPs Council by stating that he would report back to the Chairm of the General Council on the debate and discuss with his successor, Ambassador Vanu Gopala Menon of Singapore, how to continue the consultations. Menon will take over as TRIPs Council Chair at the end of the meeting on 20 February.

ICTSD reporting; “Brazil offers compromise to break deadlock over TRIPs flexibility on medicines,” WTO REPORTER, 19 February 2003; “Brazil lifts hopes at WTO drugs talks,” FT, 17 February 2003; “Members of Congress urge broad compromise on TRIPs and public health,” WTO REPORTER, 19 February 2003.

One response to “NO COMPROMISE IN SIGHT ON TRIPS & HEALTH”

ICTSD • EU AGREES TIERED MEDICINE PRICING FOR POOR COUNTRIES 7th February 2009 at 13:19
[...] system was not directly related to the ongoing discussions on access to medicines in the WTO (see BRIDGES Weekly, 19 February 2003), the Commission argued that if countries could obtain medicines through the [...]