Developing countries fought for and won safeguards to promote access to medicines in international trade law. These safeguards are now being heralded by lawmakers around the world as critical legal mechanisms that must be used in the fight against Covid-19
Developing countries fought for and won safeguards to promote access to medicines in international trade law. These safeguards are now being heralded by legislators around the world as critical legal mechanisms that nations can and must use in the fight against the Covid-19 coronavirus, writes Catherine Tomlinson.
In short, compulsory licenses allow generic companies to manufacture and sell medicines even if the medicine in question is still under patent. In the absence of competition, patent holders can set high prices, unrelated to the costs of developing and manufacturing medicines, to maximise profits. Consequently, medicines under patent are often unaffordable for many individuals and health systems.During the late 1990s and early 2000s, patents upheld in South Africa had deadly consequences, blocking access to life-saving HIV treatment for hundreds of thousands of people and contributing to many avoidable deaths.
In 2001, 39 international pharmaceutical companies brought a legal challenge against former president Nelson Mandela’s government, seeking revocation of legal provisions to promote generic medicine access in South Africa. In response, a group of African countries called on the WTO to convene a special discussion on intellectual property and medicine access. During these discussions, developing countries lobbied for the adoption of a declaration confirming countries’ rights to adopt and use Trips health safeguards. The result was the landmark 2001 Doha Declaration on the Trips Agreement and Public Health.
Maybe still smarting from the legal battle and trade pressure around the 1997 legislation, almost 20 years later South Africa’s laws have not been amended to enable the use of all available health safeguards set out in Trips and the Doha Declaration. The US and the EU consistently seek provisions in bilateral trade agreements that restrict the freedom of trading partners to use Trips health safeguards.
The country has, however, taken important steps towards improving its legal framework for granting compulsory licenses. That episode was labelled Pharmagate and described as genocide by former health minister Aaron Motsoaledi. Learning from the Aids crisis and the more recent excessive pricing of cancer medicines, there are legitimate fears that companies will price Covid-19 treatments excessively high should effective treatments be found.
It is hard to understate how unprecedented these developments are, especially given that they are occurring in wealthy countries such as Canada, Germany and Israel. In stark contrast to the company’s response in Thailand, AbbVie, which originated as a spin-off of Abbott, responded to Israel’s compulsory license with an announcement that it would no longer enforce patents on lopinavir/ritonavir anywhere in the world, likely fearing a global wave of compulsory licensing of the drug.Almost 20 years after the Doha Declaration, few countries have used compulsory licensing for health, fearing trade and other repercussions.
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