Inter Press Service - November 16, 2000
Gustavo Capdevila

Carlos Correa, of the University of Buenos Aires, prepared the study which advises developing nations to protect themselves by taking advantage of the manoeuvring room found in international legislation, thus ensuring their populations access to effective and inexpensive medicines.

His research revolves around the much-debated Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), adopted in 1994 as part of the market liberalisation process agreed under the Uruguay Round of multilateral trade talks.

TRIPS, one of the pillars of the World Trade Organisation (WTO), requires all member countries, including developing nations, to adopt new standards for intellectual property.

Among those standards is the key requirement that all member nations recognise patent protections for pharmaceutical products.

The fact that medicines can be patented means access to drugs and their prices depend on decisions made by the patent holder, which in general is a large transnational pharmaceutical corporation, according to Correa.

"Evidence in countries which already have patent protections shows that it leads to higher prices than those that would exist if there were competition," he said as he presented the study last week.

The TRIPS research, outlined in the book "Integrating Public Health Concerns into Patent Legislation in Developing Countries," was published by the Geneva-based South Centre, an inter- governmental research institute founded by several developing countries.

Many countries have not yet been able to fully implement the TRIPS Agreement because of its legal complexity, which requires legislative reforms and setting up administrative arrangements, says the author.

"It is clearly foreseeable that developing countries will increasingly face problems in ensuring access to drugs, especially new drugs, on the basis of the legislation they have to implement," explained Correa.

The book, financed by the Rockefeller Foundation, cites previous research on the issue, including a study by the World Health Organisation (WHO) that acknowledges the right of countries to adopt measures to protect access to medicines at reasonable prices.

The WHO report mentions measures like compulsory licensing, which consists of legal or administrative authorisation for a third party to use a patented invention without the consent of the patent holder, but only as long as it is a matter of public interest.

Among the justifications for pursuing compulsory licensing are the failure to exploit a patent held, a public health crisis, a state of emergency and national defence.

The United States has lodged a complaint against Brazil with the WTO's Dispute Settlement Body calling for the elimination of a Brazilian law that authorises the granting of compulsory licenses when a patent is not being used in the country.

Correa, a jurist who serves a consultant to several developing countries on intellectual property matters, commented that TRIPS allows for compulsory licensing, including that covered by Brazilian law.

The WTO panel ruling on the US claim against Brazil should "strictly apply what the TRIPS Agreement says," he stressed.

The book published by the South Centre attempts to make developing countries aware that the TRIPS text leaves manoeuvring room in protecting access to medications, which is a serious problem for poorer nations, said Correa.

"Many developing countries, as illustrated by the cases of South Africa and other African countries, are facing very serious problems in this area, in particular because of the HIV/AIDS epidemic," he pointed out.

"It is absolutely necessary for these countries to develop legislation in a way that allows them to pursue their public health objectives."

Developing nations not only face the threat of trade sanctions from industrialised countries to ensure compliance with the standards set by the Agreement, but, as in the case of South Africa, confront pressures to implement even higher standards of protection, said the intellectual property expert.

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