Effect of TRIPS on Public Health

Author: Sutapa Jana , 3rd Year student of RGSOIPL, IIT-Kharagpur.

       

Health is one of the basic fundamental needs of all human beings. Health policies encompass a number of elements, from prevention to cure and access to drugs.[1] Access is now defined by both availability and affordability which clearly establishes the economic link between this “access” and poverty.

The scenario of HIV/AIDS in the African continent clearly illustrates this relationship. The epidemic which is going on ruining countries has brought in limelight the utterly inhuman face of the Multi National Companies (MNCs), as they continued to sell the drugs to treat HIV-AIDS at 20-50 times their actual cost by seeking shelter under laws mandated by the TRIPS agreement. A kind of relief was given to those deprived people when the Indian companies like Cipla offered these drugs at very low prices by March 2001.

This has been the spark for an upsurge in the public opinion against the ruthless practices of MNCs, questioning the rationale of TRIPS, particularly in public health. These developments ultimately resulted in the Doha Declaration on TRIPS Agreement and Public Health (November 2001) seeking to limit, to some extent, the damage done by the TRIPS agreement and its underlying philosophy.[2]

The Doha Declaration does not open new avenues within TRIPS but confirms the legitimacy of measures seeking to use to the largest extent possible the in-built flexibility found in TRIPS. This emphasizes that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health and reaffirms the rights of Members to fully use the flexibilities available in the TRIPS Agreement for this purpose. The TRIPS Agreement has to be interpreted in a manner which is supportive to safeguard the public health of Member countries and to promote access to medicines to all ("interpreted and implemented in a manner supportive of WTO members right to protect public health and, in particular, to promote access to medicines for all" ). In other words, the declaration does not open new avenues within TRIPS but confirms the legitimacy of measures seeking to use to the largest extent possible the in-built flexibility found in TRIPS.

It also clarified the provisions for the flexibilities granted under TRIPS, i.e. Compulsory licensing. Compulsory licensing has long been used as a tool to regulate the exclusive rights conferred by patents. In the case of health, the rationale is to make sure that the existence of a patent does not create a situation where a protected medicine is not available to the public because of non-health related factors. The Patents Act, 1970 provided an elaborate regime that included both compulsory licenses and licenses of right. The TRIPS Agreement has not explicitly mentioned the word compulsory licensing but that does not mean it has done away with the notion of compulsory licenses but provides a more restrictive framework than the current regime in force in India. It explained that each member has the right to grant compulsory licenses and has the discretion to determine the grounds upon which such licenses are to be given. The recognition in the Doha Declaration that TRIPS member-states can use the flexibility provided in the agreement and can, thus be understood in the context of a generally increasingly restrictive international patent regime. It was also mentioned that compulsory licenses can be issued for importation as well as for domestic production.

In regard to exhaustion of IPRs, the Declaration has clearly mentioned that each Member is free to establish its own regime without challenge if they are subject to provisions of TRIPS, prohibiting discrimination on the basis of nationality of the right holder. In the declaration it was reaffirmed that the developed countries are committed to the provisions of providing incentives to their enterprises and institutions to promote technology transfer to LDCs under Article 66.2 of TRIPS.

The declaration has been hailed as a giant leap in the direction for making the TRIPS Agreement more responsive to the needs of developing countries and more specifically to the individuals who are unable to afford the cost of patented drugs. In fact, it tries to address a number of important issues related to the implementation of medical patents. However, it fails to take up the much more fundamental questions of the scope of patentability and the duration of patents in the health sector. The Doha Declaration acts an important instrument in India for two main reasons. Firstly, at a political level, India was among the most vocal and one of the leading developing countries at the ministerial conference in putting forward developing Countries' interests. Secondly, the declaration was adopted while the joint committee of Parliament was finalizing its report.

The major goals identified in this millennium which are of immense importance include reducing poverty and hunger, improving health and education and ensuring environmental sustainability. There has been arguments in favor as well as  against the implementation of  IPR regime. Some strongly recommend the implementation of IPRs will reduce the poverty by stimulating economic growth. As protection for new innovation increases this will in turn increase the production calling for both domestic and foreign investment which will ultimately lead to availability of medicines to combat diseases. People who vehemently oppose this argue that it stimulates innovation to only a limited extent, on the other hand developed countries use it as a tool to ouster the domestic competitors from the market and encourage importing of medicines instead of manufacturing which in turn increases the price of essential drugs. 

Hence, even if those drugs are available they are beyond the reach of the destitute.  IP rights are not conferred to only attain profits but also to provide affordable health care for long term. Such rights must therefore be closely monitored to ensure that they do actually promote healthcare objectives and, above all, should not act as barrier in promoting access to healthcare.

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[1] Prachi Pallavi; Patent Regime and Right to Health: National and International Perspective; : http://www.legalservicesindia.com/articles/pg.htm

[2] Prachi Pallavi; Patent Regime and Right to Health: National and International Perspective; http://www.legalservicesindia.com/articles/pg.htm