Agreement at Doha to soften TRIPS provisions

By C. Rammanohar Reddy

DOHA, NOV. 13. The first significant achievement of the World Trade Organisation's Doha ministerial conference came this morning when a compromise on the ``Declaration on the TRIPS Agreement and Public Health'' was reached, a breakthrough that one health activist said was ``a ringing endorsement'' of the power of developing countries to use compulsory licences to supply low-cost patented medicines for public health programmes.

The political declaration which will be formally adopted at the concluding session of the Doha meet is a political statement that does not re-write the agreement on Trade-related Intellectual Property Rights (TRIPS). It does, however, assert that the controversial 1994 GATT agreement provides countries with sufficient flexibility to respond to public health needs by over- riding patents and issuing compulsory licences (CLs) to generic producers of inexpensive drugs. The result of negotiations which saw many African countries (who first raised the issue), Brazil and India ranged against the U.S. and Switzerland was a compromise that did not please everybody, but was nevertheless seen as a political statement that shifted the balance away from the pharmaceutical companies and towards the developing countries.

The declaration states that while it recognises the importance of protection of intellectual property rights, countries can use the TRIPS agreement to issue CLs and also determine the grounds on which such licences can be granted. The statement gives the least developed countries time until 2016 (as against 2006 presently) to introduce legislation for product patents. All countries are also free to decide what constitutes a national emergency in health, when, under the TRIPS agreement, countries can override patents. The TRIPS agreement neither mentions CLs explicitly nor does it outline what constitutes a ``national emergency''. There was, however, some dissatisfaction that the declaration did not go far enough in giving small developing countries the power to issue CLs to manufacturers in third countries. This particular issue will now go to the WTO for a satisfactory solution by the end of 2002.

A U.S. trade official today said that the declaration was ``a political and not legal text'' and that ``the statement does not add or subtract to TRIPS''. Mr. Harvey Bale, an official of a global pharmaceutical industry grouping, said the agreement represents ``a fair balance that we can live with''. Despite these brave words and the compromises that had to be made by the developing countries, it was clear that the declaration was a small but significant step in the direction of softening the impact of TRIPS on drug prices for the world's poor. With WTO dispute settlement bodies reading legal meanings into even political statements, one observer said this was a declaration with legal implications that would protect developing countries in possible disputes brought against the poor countries by the global pharmaceutical industry.

Mr. James Love of the Washington-based Consumer Project on Technology, one of the organisations campaigning for a better TRIPS deal, said that the WTO statement was ``stronger than anything passed at the World Health Organisation'' on patents and access to medicines. And that while trade policy is usually dominated by exporter interests, ``this is the first time that consumer interests have been recognised at the WTO''. Mr. Love also said that a political declaration was needed to address the global political difficulties that the developing countries face in interpreting TRIPS according to their needs.

Other observers here said that despite its limited scope, the agreement was a remarkable achievement of the developing countries since as recently as June there was no talk of a separate declaration on TRIPS. The issue came to the fore in the light of the difficulties the countries of sub-Saharan Africa faced in paying for the medicines required to address the HIV/AIDS pandemic. Though Brazil and India did campaign hard for the declaration, the real driving force behind the statement came from Africa, whose Governments first raised the issue at the WTO and maintained their position. An official involved in the negotiations said that representatives of African Governments yesterday ``slammed'' the U.S. and asked for a deletion of a U.S. proposal that would have given them a moratorium in TRIPS disputes at the WTO.

A press release issued in Doha today said that the declaration was ``a shot in the arm for the Government of India which has introduced the Patent Amendment Bill in the Parliament...which provides for compulsory licensing''.

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