The Hunger Report

Intellectual Property Rights

In 2003, President Bush announced a new plan to fight HIV/AIDS. The President’s Emergency Plan for AIDS Relief (PEPFAR) has been a remarkable success, providing lifesaving drugs to some 2 million people. The success of PEPFAR and the bipartisan support it enjoys in Congress are signs of a strong U.S. commitment to providing developing countries with access to essential medicines. But the United States’ strict rules on intellectual property rights counteract these efforts to make lifesaving drugs more accessible to people in need of them.

The WTO Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, strongly supported by the United States, was intended to protect patents for medicines. Unfortunately, the TRIPS patent protection provisions can increase drug prices.²⁸ The cost of essential medicines often puts them out of reach for people in poverty.²⁹ One result is that today, only about 5 percent of the world’s 33 million HIV-positive people receive antiretroviral drugs (ARVs).³⁰ Representatives of developing countries and development experts often argue that TRIPS is too restrictive because it extends patents on medicines for 20 years, makes it difficult for developing countries to produce generic medications, and limits countries’ ability to cheaply import essential medicines.³¹ For countries such as Brazil, which provides citizens with free medicines, including ARVs for HIV/AIDS, TRIPS regulations can compromise national healthcare programming.

On the other hand, developed countries and the businesses they represent in trade negotiations argue that strong intellectual property rights rules are necessary to promote the research and development of new medications. Without TRIPS, drug companies might not earn a sufficient return on their investment in the research needed to create new medicines. In this view, TRIPS is thus essential to ensuring that businesses continue to invest in research. In addition, concerns have been raised over the safety and quality of generic versions of patented medicines. Without adequate safeguards such as those provided by the Food and Drug Administration, generically produced medicines may be less effective.

Over the past decade, WTO-member countries have worked to make TRIPS more development-friendly. The Doha Declaration on the TRIPS Agreement and Public Health, signed at the outset of the Doha Round, recognized that TRIPS “should be interpreted and implemented in a manner supportive of WTO-members’ rights to protect public health and, in particular, to promote access to medicines for all.” In 2005, WTO members reached a final agreement on a modified version of TRIPS that would make it easier for developing countries to import cheaper generic equivalents of lifesaving medicines.

Canada, Norway, and the member nations of the European Union are using TRIPS as the framework for their own domestic intellectual property laws. In sharp contrast, the United States has enacted more restrictive intellectual property rights laws through bilateral trade agreements that contain “TRIPS-plus” provisions. The North American Free Trade Agreement, for example, does not offer flexibility to modify or suspend patents or patent rules in cases of public health emergencies. Under the free trade agreement (FTA) between the United States and Jordan, obtaining a license for domestic manufacture of generic drugs is more difficult than it is under TRIPS.³² Similar provisions have been included in bilateral FTAs between the United States and Singapore, Morocco, Vietnam, and a host of other developing countries. Such policies make it more difficult for poor people to obtain essential medicines.

It is important for the United States to provide developing countries with the flexibility they need to ensure that people get affordable access to essential medicines. Achieving a balance between efforts to protect intellectual property and efforts to fight deadly infectious diseases will require that the United States follow the lead of other countries and make TRIPS the standard for intellectual property rights rather than a platform for additional requirements.

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²⁷ Fact Sheet: Lowering the Cost of Remittances (2004), The White House Office of the Press Secretary: http://www.whitehouse.gov/news/releases/2004/01/20040113-7.html.

²⁸ Chantal Blouin (2007), Trade Policy and Health: from conflicting interests to policy coherence, Bulletin of the World Health Organization (Vol.85) 169.

²⁹ Trade for Development (2005), United Nations Millennium Project: http://www.unmillenniumproject.org/documents/TF9-trade-complete.pdf.

³⁰ Carsten Fink (2006), “Intellectual Property Rights and Public Health: The WTO’s August 2003 Decision in Perspective” in Newfarmer, R. (ed.) Trade, Doha, and Development: A Window into the Issues. Washington, DC World Bank.

³¹ Susan Sell (2007), “TRIPS-Plus Free Trade Agreements and Access to Medicines,” Liverpool Law Review (28) 41.

³² Rigged Rules and Double Standards: Trade, Globalization, and the Fight Against Poverty (2002), Oxfam International: http://publications.oxfam.org.uk/oxfam/display.asp?isbn=0855985259.

³³ Climate Change 2007: Synthesis Report: Summary for Policy Makers (2007), Intergovernmental Panel on Climate Change: http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr_spm.pdf.