25th September 2001

WTO Pursues Discussion On IPRs And Access To Medicines

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Repeating the scenario of their June meeting on access to essential medicines (see BRIDGES Weekly, 26 June 2001, http://www.ictsd.org/html/weekly/26-06-01/story1.htm), WTO Members again set aside one full day of the 19-21 September Trade Related Aspects of Intellectual Property Rights (TRIPs) Council for discussions on the TRIPs Agreement and access to medicines. Other issues addressed in regular session of the meeting included the review of implementation of the TRIPs Agreement (Art. 71.1), geographical indicators and review of Art. 27.3(b) concerning the protection of inventions of plant varieties.

Drafts for Ministerial declaration on access to medicines

Two draft texts for a Ministerial declaration for the Fourth WTO Ministerial Conference in Doha, Qatar, 9-13 November were presented in the form of ‘non-papers’ (i.e. non-formal proposals containing language open to negotiations). The African Group and 18 other developing countries (”African Group + 18″) presented one of the drafts, whereas a group of developed countries — Australia, Canada, Japan, Switzerland and the US (”Australia + 4″) — submitted a draft containing only preambular text. When Members reverted back from the regular session to TRIPs and access to medicines on the last day of the Council meeting, Canada, the Czech Republic, Japan, New Zealand, Switzerland and the US presented a paper containing some operative parts in completion of the preambular language of the Australia + 4 draft.

Both drafts were designed as interpretations of the flexibility built into the TRIPs Agreement. However, the developing country draft text included additional proposals, such as extended deadlines for applying TRIPs provisions and restraint in bringing related disputes to the WTO.

African Group + 18

The 14-point draft submitted by the developing country group aimed at interpreting and clarifying the TRIPs Agreement regarding the rights of Members to take actions for the protection of public health. In its first paragraph, the paper states that, “nothing in the TRIPs Agreement shall prevent Members from taking measures to protect public health.” The supporters of the draft hold that this interpretation stems from the objectives and principles of the TRIPs Agreement (Arts. 8 and 9).

A number of other countries, including the EC and Hong Kong, China, however, considered this interpretation too sweeping, in particular because Art. 8 includes the phrase “provided [measures] are consistent with the provisions of this Agreement.”

Other parts of the draft declaration addressed the usual “hotspots” of dissent — already identified during the first meeting (see reference to BRIDGES Weekly above) — within the WTO in relation to the questions of flexibility of the TRIPs Agreement and public health. For instance, the draft called for freedom to use parallel imports and allow compulsory licensing.

Australia + 4 and US + 4

The draft preamble submitted by Australia and four other developed countries on 19 September focused on constraining the alleged flexibility of the TRIPs Agreement to the tackling of pandemics such as HIV/AIDS, malaria and TB. The draft also emphasised that patents are important for creating new drugs and therefore for making them available to the sick. The paper further stated that countries’ rules for parallel imports should not allow cheap drugs supplied to poorer markets to leak into richer markets because this would undermine differential pricing. In addition, the draft stressed the need for technical assistance to poorer countries.

Another complementary draft submitted by the US and four other countries also limited the scope of discussions to HIV/AIDS and other pandemics. The paper’s first paragraph underlined that the provisions of the TRIPs Agreement should be read in accordance with the Vienna Convention on the Law of Treaties. It then addressed the question of compulsory licensing by defining the terms of “national emergency” (situation where governments can allow the use of a patent without lengthy procedures) to encompass principally pandemics such as HIV/AIDS, malaria and tuberculosis.

Reactions and other points raised in the discussions

Delegates from several developing countries generally expressed disappointment with what they qualified as the “hard line” taken by the proponents of the Australian and US drafts.

India, supported by a number of other developing countries, made it clear that it could not accept a reduction in existing flexibility under the guise of a Ministerial declaration. India also stated that it could not accept the limitation introduced by the US draft, which qualifies the definition of “national emergencies” to encompass only pandemics of life-threatening and communicable diseases.

Other points raised in the discussion included the question of whether a government can issue compulsory licenses for production abroad when domestic production is not feasible. The African Group + 18 supported this, but Switzerland argued that the TRIPs Agreement could not be interpreted to allow this. Canada and several others said parallel imports are the best option when domestic production is not feasible. Hong Kong, China, submitted a non-paper that also argued against this possibility.

Another point discussed was whether Art. 6 authorises parallel imports. The US argued it did not, even though disputes cannot be brought to the WTO in this matter. Several others, including the EC, argued that in practice this was allowed.

Regular Session

Among issues were the question of Geographical Indicators (GI) (see BRIDGES reference above), but, according to trade sources, nothing new was added to the discussions that took place in June, and countries aligned themselves along traditional lines. Members also addressed the review of implementation of the entire TRIPs Agreement (Art. 71.1); however, there is a total confusion among Members as to how this should be conducted, a trade source said. Regarding the review of Article 27.3 (b) on the protection of inventions of plant varieties, Australia submitted a paper on the protection of traditional knowledge based on national experience with aboriginals.

Future developments

The Chairperson of this TRIPs meeting, Chilean Ambassador Alejandro Jara, will now hold consultations with the Chair of the General Council and with Members on the preparation of a draft for the November Ministerial Conference.

SUNS, 20 September 2001; “Developing country proposals for Ministerial Declaration on TRIPs,” SUNS, 19 September 2001; ICTSD Internal Files.