In this article, the author considers why the Economic Partnership Agreement (EPA) negotiations between the European Union (EU) and the African, Caribbean and Pacific (ACP) countries have reached a ‘technical’ stalemate. He proposes three reasons: the configuration of the regions and the great difficulty of states to agree on common interests; the sometimes aggressive nature of European demands; and the evolution of the Europe-Africa partnership in the context of global geopolitical changes. Least-developed countries in Africa already enjoy a number of trade-related flexibilities and advantages and stand nothing to gain from the EPAs, which may explain their reluctance to sign the agreements, the author argues. At the same time, major trading powers are engaged in a low-level trade war aimed at implanting themselves in Africa or consolidating positions they have already acquired. Africa may have understood that such a development could be beneficial provided that it puts into place good policies and strategies, and develops appropriate partnerships. In addition, the emergence of Southern trading powers has widened Africa’s policy space. This could explain the continent’s cautious approach to the trade liberalisation required by the EPAs. The author concludes that the solutions that could unblock the stalemate are no longer technical but political in nature.
Health equity in economic and trade policies
In this open letter to the Minister of Justice, Ugandan civil society organisations (CSOs) working in areas of intellectual property (IP) and access to medicines argue that the country’s intellectual property (IP) Bill does not make full and maximum use of the TRIPS flexibilities and therefore poses a threat to public health. Almost 90% of drugs in Uganda are imports, most of which are generic versions that need protection from patent owners who may want to stop their sale in a bid to sell their expensive brand name drugs instead; this would be a disadvantage to Ugandans as they will not be able to access cheap drugs. The CSOs call on government to reaffirm its 2001 Doha commitment to ensure that the TRIPS Agreement does not and should not prevent World Trade Organisation members like Uganda from taking measures to protect public health. The Industrial Properties Bill should take maximum advantage of the flexibilities detailed under the TRIPS Agreement and as provided by the Doha Declaration.
An alternative South African bill on the protection of traditional knowledge (TK) has been published in the official Government Gazette that would create a new system of intellectual property right specific to TK. The Wilmot Bill aims to provide adequate, financially viable, legally enforceable protection for traditional knowledge (TK) that will provide sui generis protection for TK, comply with South Africa’s international obligations, give effect to the principles for the protection of indigenous knowledge advocated by the World Intellectual Property Organisation, safeguard South Africa’s existing IP statutes from irreparable harm, and establish a more sophisticated system for the protection of traditional knowledge in South Africa. The Stellenbosch Chair of Intellectual Property (CIP) is asking for support in their call on the government to reject the old TK Bill, open the matter for public comment from all traditional communities and support the Wilmot Bill. If the current TK bill is to become law, CIP argues that South Africa will face numerous financial, legal and practical difficulties and it further condemns the dismissive attitude of the Portfolio Committee on Trade and Industry toward legitimate concerns of the public.
TAC activists picketed at the opening of the Africa Intellectual Property (IP) Forum on 26 February 2013 and handed over a memorandum to Rob Davies, South Africa’s Minister of Trade and Industry. They were demanding that the draft IP policy, which will lead to patent law reform, be made public. TAC also said that those living with HIV and TB and civil society need to be included in the process that will shape laws that will have an impact on access to medicines and healthcare. Minister Davies responded that the draft policy was now in its final stages and would be released for public comment soon. Davies spoke of the need for South Africa’s IP policy to balance the rights of innovators and the rights of humanity by ensuring incentives for innovation as well as ensuring public health and access to medicine. He highlighted the role of generic medicines in fighting disease in South Africa and was clear that generics are not the same as counterfeits. TAC and Médecins Sans Frontières (MSF) are calling for a local patent examination system to replace the existing automatic system. Fewer patents will mean more competition and lower prices, critical in light of the fact that South African patients are paying much more for life-saving drugs than counterparts in other developing nations.
Africa is still held captive by colonial borders and has failed to collectively leverage benefit-sharing agreements that result from multinationals’ commercial pursuit of indigenous knowledge, said speakers at the Africa Intellectual Property (IP) Forum, held in South Africa in February 2013. The issue of applying intellectual property rights to indigenous knowledge, in order to protect holders of this knowledge from exploitation while at the same time leveraging it for development was a vibrant thread of debate throughout the conference, which was themed ‘Intellectual property and economic growth in Africa’. Opening speaker Carlos Correa from the South Centre recommended flexibility in drawing up national IP policies. He told delegates that historical evidence has shown little or no support for the view that intellectual monopoly is an effective method of increasing innovation. Other speakers warned of the threat of biopiracy in Africa, and highlighted the role of academic researchers in contemporary biopiracy, who function as intermediaries between the commons (public cultural knowledge) and pharmaceutical companies looking for patents. A number of African countries have already adopted IP policies and plans, namely Liberia, Mozambique, Rwanda, Senegal, Seychelles and Zambia.
Sub-Saharan Africa can achieve higher levels of human development if it deepens its engagement with other regions of the South, according to the 2013 Human Development Report. The report shows the Africa region as having the second highest growth in the UNDP’s Human Development Index (HDI) after South Asia over the past ten years. Africa has achieved sustained rates of economic growth at a time of great involvement with emerging economies. Progress has been broad-based, with strong improvements in other dimensions of human development such as health and education. Compared to other regions, sub-Saharan Africa still has the lowest average national HDI, yet of the 14 countries in the world that recorded HDI gains of more than 2% annually since 2000, eleven are in the region. These top performers include Angola, Ethiopia, Mauritius, Rwanda and Uganda. Progress may be linked to an upsurge in trade, investment and development cooperation with emerging economies like Brazil, China and India. For example, between 1992 and 2011, for instance, China’s trade with sub-Saharan Africa rose from US$1 billion to more than $140 billion.
India’s Intellectual Property Appellate Board has upheld the country’s first compulsory licence on a pharmaceutical product. The much-awaited verdict upholds the compulsory licence issued to Hyderabad-based Natco Pharma Ltd, an Indian generic drug manufacturer, which sells a much cheaper version of German pharmaceutical company Bayer AG’s kidney and liver cancer drug Nexavar in the market. The judge cited affordability and product access as the reasons for the decision to dismiss Bayer’s appeal against the compulsory licence (CL). The decision means that the way has been paved for compulsory licences to be issued on other drugs, now patented in India and priced out of affordable reach, to be produced by generic companies and sold at a fraction of the price. In response to the decision, Médecins Sans Frontières expressed hope that, in the near future, compulsory licences will be issued for the newest drugs to treat HIV and affordable generic versions will be available not only in India, but in the rest of the developing world. Bayer has announced it will appeal the decision.
The focus of this book is on advancing innovation in medical and health technologies and ensuring that the people who need these technologies can access them, arguing that policies on these issues have to be viewed together in order to make real progress. The book describes the options available for policies involving health, intellectual property and trade, and reviews the latest developments in the three organisations that co-produced the book, seeking new ways for the three organisations to reinforce each other, ultimately to meet objectives such as the right to health and the Millennium Development Goals. It looks at ways to tailor systems so that innovation is encouraged, yielding new treatments for the diseases of the poor, and how to ensure sustainable and equitable access to these innovations. The book argues that private sector-led competition policy is the way forward on the basis that it can promote innovation, and improve access to medicines, provided that transparent and non-discriminatory procurement procedures are followed.
In this article, the author argues that the global intellectual property (IP) system cannot be seen as blind to basic concepts of social justice, proportionality and common humanity or it will lose legitimacy. This is why it is wrong to force less-developed countries (LDCs) to implement TRIPS fully based upon a timetable that disregards their public health needs. If they are forced to do this, the world’s poorest will end up paying the richest for medicine and other essential technologies, which will cast an unethical shadow over IP rights. IP is already abused by that kind of rent-seeking in some sectors – and has been for some time – and the actions of a relative few have damaged the interests of the rest. But the author believes this is an opportunity for this unspoken majority to make clear that the actions of a relative few aren’t the norm, but the exception. The LDCs’ proposal is an opportunity for all concerned with IP to recapture legitimacy. For companies that take their corporate social responsibility (CSR) seriously and have active CSR programmes, the author urges them to support the LDC extension as not only the ethical thing to do but also as a way for them to gain good publicity at no cost.
In recent years, several innovators in high-tech sectors have complained that the large volume of vague patents has become a major barrier to innovation. When start-ups attempt to unveil a new product, they risk violating a broad, obscure patent. In this paper, the authors argue to abolish the American patent system on the basis that there is no evidence patents improve productivity and that they have a negative effect on innovation. The paper's authors point out that problems with patents in fact run much deeper than many critics of the recent system have emphasised. The historical and international evidence suggests that the initial eruption of innovations leading to the creation of a new industry is seldom, if ever, born out of patent protection and is instead the fruit of a competitive environment. They also argue that the patent system is endangering public health by raising the cost of prescription drugs, while failing to generate enough innovative new treatments for life-saving diseases. The aim of policy, in general, should be that of slowly but surely decreasing the strength of intellectual property interventions with the final goal of abolition.