Bridges Weekly Trade News Digest • Volume 12 • Number 42 • 10th December 2008

Lamy: Review Mechanism Can Improve Access to Medicines in Developing Countries

Discuss this articleShare your views with other visitors, and read what they have to say

WTO Members unhappy with the relationship between intellectual property rights and developing countries’ access to medicines should use an annual review mechanism to improve the system that governs those issues, the organisation’s Director-General Pascal Lamy said on Tuesday.

All WTO agreements since the 1947 General Agreement on Tariffs and Trade have recognised that public health is a right, and not a mere commodity to be traded. Thus, WTO Members are allowed to give priority to health policies even if doing so could lead to trade restrictions.

But despite this recognition, critics highlight that patents, which are protected under the 1994 Trade Related Aspects of Intellectual Property Rights, or TRIPS, are a deterrent to the effective access of critical medicines for the poor, particularly in developing countries.

Lamy noted the fine balance between protecting intellectual property rights as an “incentive for the development of new medicines” and at the same time addressing potential price impacts patents may have on medicine.

This balance of protecting property rights and ensuring access to affordable medicines was addressed in the ‘2003 decision’ at the WTO, in which Members agreed to waive provisions under the WTO’s TRIPS Agreement so that countries could legally export generic drugs produced without the patent-holders’ consent to developing countries that are unable to produce pharmaceuticals themselves. The decision was the result of a 2001 declaration on TRIPS and public health that promised an “expeditious” solution to the problem.

But the cumbersome nature of the system has come under fire. Indeed, the waiver was used for the first time ever this September, when generic medicines were shipped from Canada to treat HIV/AIDS patients in Rwanda (see Bridges Weekly, 25 September 2008, http://ictsd.net/i/news/bridgesweekly/29778/).

Although the Canadian programme was praised for strengthening poor governments’ hands in negotiating drug purchase prices, others say that the approval process proved so complicated that it discouraged drug makers from taking part. Even Apotex, the drug maker involved in the Canadian deal, has said that it will not go through the complicated and costly process again unless the regulations are amended.

In light of this discontent, Lamy, speaking on Tuesday to the 11th Annual International Generic Pharmaceutical Alliance Conference, drew attention to the system’s periodic review. The 2003 Decision also required the TRIPS Council to annually review the functioning and effectiveness of the system. But, “I would note that WTO members did not raise concerns during the last annual review of the operation system,” Lamy said.

“Just like any WTO agreement, [the decision] should be periodically reviewed and lessons drawn from these evaluations so that the WTO can continue its effort to make it work as a contribution among others to enhancing access to medicines,” he said.

But while the “issue of TRIPS and public health is certainly one of the most emotive and, consequently, frequently debated issues,” Lamy pointed out, intellectual property rules constitute only one of a myriad of interrelating factors that determine the level of access to medicines by patients in a given country. Adequate infrastructure, national health systems, and the transparency and efficiency of the procurement regimes are among the factors that play a role, he said.

Lamy also touched upon the concern that ‘TRIPS plus’ provisions, negotiated as part of some free trade agreements, may impact access to medicines under the multilateral framework. The best the WTO can do, Lamy said, is monitor the content and development of such agreements, until the Membership suggests action on the subject.

Overall, “international trade helps improve the health conditions of many people,” Lamy said.

Access Lamy’s speech here.

ICTSD reporting; “Lamy challenges discontented WTO Members to use TRIPS public health review,” IP WATCH, 9 December 2008.