WTO Ministerial Section • Volume 7 • Number 4 • 6th February 2003

TRIPS Council Back at “Square One” on Medicines Issue

Do More

See also

The Council for Trade-related Aspects of Intellectual Property Rights (TRIPs) made no headway on paragraph 6 of the Doha Declaration on TRIPs and public health at its 5 February informal meeting, prompting the chair, Ambassador Eduardo Perez Motta (Mexico), to note that discussions on the disease coverage were back at the stage they had been before the Doha Ministerial meeting in November 2001. Several delegations said that continuing the discussions was a waste of time and that efforts should instead focus on building confidence among the pharmaceutical industry, the key stakeholder group strongly opposed to a widely supported deal in December 2002.

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.

Discussions continued on a proposal from the EC to include a list of at least 22 diseases, and with the option of consulting the World Health Organization (WHO) on other public health problems (see BRIDGES Weekly, 29 January 2002). Only Hungary and the Slovak Republic supported the proposal, while the African Group, supported by Brazil and India, stated that they could not accept a narrowing of the scope of the Doha Declaration on TRIPs and health. Kenya added that the efforts should focus on building domestic production capacity, not on limiting the disease coverage.

Late in the meeting, Japan submitted a proposal, which would include the EC’s list of diseases in an "addendum", while stating more clearly that this list only constituted examples. Rather than naming the WHO directly, Japan’s proposal would allow the TRIPs Council to confirm "as necessary" the inclusion of other diseases, with the advice of outside experts, also "as necessary". Little discussion took place on the proposal. Kenya rejected Japan’s initiative, arguing that it would deprive governments of the right to determine what constituted a public health problem.

Deputy US Trade Representative Peter Allgeier made no references to the EC proposal nor did he indicate whether the proposal might help to find a compromise. He noted that attempts to interpret the Doha Declaration in a way other than what was intended in Doha would raise suspicion among pharmaceuticals that intellectual property rights could be undermined. Their confidence needed to be rebuilt, he stressed.

South Africa, "wholeheartedly" supported by Norway, believed that it was time to focus energy on other core issues in the negotiations, as continued discussions on the scope of the paragraph 6 solutions was a waste of time with little hope for consensus in sight. South Africa added that many smaller delegations would prefer to use their often limited resources for negotiating other core issues. Efforts to address TRIPs and health should rather focus on working with the pharmaceutical industry directly in an effort to appease concerns that the 16 December draft decision could weaken intellectual property protection. The need to build confidence was also acknowledged by Chile and Bulgaria, while Thailand echoed South Africa’s view that efforts to settle on the disease coverage of the solution were "non-starters".

The Chairman will report on the discussions at the General Council’s next meeting on 10-11 February. He will continue informal consultations in the meantime.

The 16 December draft decision is available at http://www.ictsd.org/ministerial/cancun/docs/TRIPs_para6_16-12-02.pdf.

ICTSD reporting.