6th August 2002

‘BUSINESSLIKE’ TRIPS COUNCIL CONSIDERS OPTIONS FOR IMPROVING ACCESS TO MEDICINES

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WTO Members met for an informal session of the Council for Trade- Related Aspects of Intellectual Property Rights (TRIPs) on 24-25 July to continue their discussions on paragraph 6 of the Doha Declaration on TRIPs and Public Health (see BRIDGES Weekly, 3 July 2002). Countries mainly elaborated on previously-made proposals, with major shifts in positions not expected until negotiations begin later this year.

Para.6 of the Declaration instructs Members to find an “expeditious solution” to the problem that Members with insufficient or no manufacturing capacities in the pharmaceutical sector could face in making effective use of compulsory licensing. The inclusion of this paragraph was mainly due to 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. The different country positions on this issue are summarised in the note prepared by the Secretariat for the informal meeting (IP/C/W/363 and IP/C/W/363/Add.1, searchable at http://docsonline.wto.org).

Discussions — generally described as businesslike and to the point — focused on the scope of a solution, associated conditions and possible legal mechanisms. Regarding scope, Members discussed which products should be covered, i.e. only medicines, as advocated by developed countries such as the US, or pharmaceutical products, e.g. diagnostic kits and technologies related to treatment, as proposed by developing countries. The Council also discussed which countries should be eligible. Developing countries generally advocated that the solution should apply to any country with insufficient manufacturing capacity. Others said they would like to set some sort of criteria, such as development, income or size, to determine eligibility.

Regarding eligible exporting countries, the US argued that only developing countries should be allowed to export drugs under this kind of compulsory licence. In contrast, others — including some developing countries — proposed that importing countries should be allowed to obtain the necessary medicines from all countries.

While everyone generally agreed that transparency and safeguards were necessary to avoid the re-exportation (or diversion) of medicines to markets other than the intended recipients, developing countries reiterated that such measures should not be burdensome or delay actions. Some developing countries furthermore argued that the TRIPs Agreement already contained sufficient safeguards.

With respect to the possible legal mechanisms, positions remained largely unchanged, including a general willingness to consider alternatives (see BRIDGES WeeklyBRIDGES Weekly, 3 July 2002). Several Members raised the possibility of combining the different proposals. The EC, for instance, which had previously advocated an amendment of Article 31, would now also like to see a waiver of the obligation in Art. 31(f) until the amendment was finalised, approved at the Ministerial Conference and ratified by Members. Some African countries that had focused mainly on Article 31 as part of a comprehensive solution suggested both interpreting Article 30 (as proposed by the Brazil-led group of developing countries) and amending Article 31.

The next regular session of the TRIPs Council is currently scheduled for 17-19 September, followed by a special session on 20 September where Members will continue negotiations on a multilateral system for geographical indications. Negotiations on paragraph 6 are set to take place from September to November during informal consultations in an effort to reach a final decision by the November TRIPs Council meeting.

ICTSD reporting.