| |
This month, iCommons’ resident copyright columnist, Tobias Schonwetter, deals with the interrelation between access to medicine and HIV/Aids. He argues that patent law appears to be the crucial area of law in this respect but suggests that the role of copyright law should not be underestimated.
South Africa has clearly become a home-away-from-home for me over the last couple of years – for a variety of good reasons and despite some major and minor drawbacks such as a high crime rate, an unequal wealth distribution, an educational environment which remains in urgent need of improvement, and a relatively new yet extremely disruptive phenomenon called electricity load shedding which euphemistically describes the fact that I usually do not have electricity for a couple of hours per day. But this is another story.
Even though South Africa became my home-away-from-home, as a “Northern Hemispherist” I can definitely not accustom myself to a summertime Christmas and as a result, I usually head back to Germany around that time and spend the festive season over there with my family and friends. When I flew to Germany at the end of last year, I already knew that at some point or another the question would come up what exactly I do down here at the southern tip of Africa. And so it was. Once I had explained my involvement in copyright-related research, I noticed – as usual - a great deal of scepticism from my dialogue partners – and eventually I was of course asked whether copyright is really an issue of vital importance down here and whether one should not rather try to get involved in, for example, HIV/Aids-related research due to the fact that South Africa is still the country with the highest number of people infected with HIV/Aids. As if HIV/Aids is our only concern here! But as a matter of fact, roughly 5.5 million South Africans are HIV-positive, this is a prevalence rate of almost 19% among adults aged 15–49, and in 2006 an estimated 350,000 South Africans died of HIV/Aids. That's roughly 1,000 per day. My standard reply to such remarks is that surely not all researchers can and should be concerned with the same problems and that a lot of valuable research is already being done by some of our brightest minds. Yet, against the backdrop of the immense individual suffering caused by this, and other deadly diseases as well as the significant macroeconomic damage which results from the untimely death of millions of people, at times I actually do think about shifting my area of research away from access to culture issues towards the subject-matter of access to affordable medicine. After all, such a shift would not be very radical since I would stay within the realm of intellectual property law. For patent law, which grants (as an incentive as well as reward, and subject to certain conditions) temporary monopolies on the exploitation of ideas, plays a major role in this context.
In a nutshell, it is patents which make drugs excessively expensive and hence unaffordable in many regions in the world. Although countries such as India have for a long time opposed product patent protection for drugs, such protection is nowadays compulsory under the relevant international treaties and agreements. There are, however, a number of ways to bring down prices for expensive patented drugs, especially, but not exclusively, by means of two instruments: compulsory licensing or parallel importation. The first tool basically allows governments to issue a licence for the production of generic products, particularly in national emergency situations, which can be up to 80% cheaper than the original product. Parallel importation on the other hand describes the procedure of purchasing lower-priced goods in a foreign country and reselling these goods in the domestic country at a price less than or equal to the market price there. Parallel importation makes a lot of sense if drugs are sold at considerably cheaper prices in other countries.
Of course, international treaty obligations have to be duly considered before a country takes recourse to any of these measures but in general the most relevant TRIPS Agreement forbids neither compulsory licensing nor parallel importation. Leading pharmaceutical companies, however, vigorously oppose both tools, thereby demonstrating that they place profit above human life. Such an attitude is not only disturbing from a moral perspective but is also a disastrous PR strategy which has doubtlessly caused sustained damage to the reputation of the entire pharmaceutical industry. A mere 10 years ago for instance, 39 pharmaceutical companies filed an infamous lawsuit against the South African government with the intention to stop the government from making cheaper generic HIV/Aids drugs available. In 2001, the lawsuit was withdrawn largely because of the public outcry the case had generated. This was an exceptionally successful time for access to medicine activists because shortly thereafter the Doha Declaration on the TRIPS Agreement and Public Health was adopted by the WTO Ministerial Conference. This document underscored the right of WTO members to bypass patent rights in order to enhance access to medicine for the sake of public health. In 2003, the WTO further decided to expand flexibilities regarding the importation of generic drugs. Yet, the battle is clearly not over and it appears that the pharmaceutical companies are far from giving in. Rather, they have resorted to more subtle methods such as lobbying for the conclusion of more restrictive Free Trade Agreements (so-called TRIPS plus Agreements) between countries or regions which limit or altogether prohibit the utilisation of compulsory licensing or parallel importation.
Hence, after all, there is still a battle to be fought for the lives of millions of people, and patent law takes the centre stage in this battle. Having said all this, I will nonetheless continue to focus on copyright law, since from a long term perspective copyright law is arguably even more important to tackle the HIV/Aids crisis. This is because our current copyright laws severely restrict access to educational materials and therefore hamper education as a whole. It has been suggested that in theory hardly anybody needs to die of Aids these days because of modern medicine which makes it possible to treat the disease as a chronic long-term illness. My argument is that no one needs to die of Aids any more because educational materials exist to inform people in a manner that will make everybody understand how to prevent getting this disease in the first place. We must just ensure that everybody can access such material.
tags: cape-town south africa policy-law copyright-law ip-law patent-law trips trips-plus doha hiv aids medicine access
|
|
|
| |
add a comment: you must be logged on in order to comment. please log in or register at iCommons.org and and your comments right after.
|
|
| |
|
|
|
|
send
printer-friendly version
invite to vote
add a comment
