December 1, 2002
A third of the world's population still has no access to essential drugs. In the poorest countries of Africa and Asia this figure rises to half. With the global agreement on intellectual property rights (TRIPS) forcing countries to introduce new patent protection laws over the next decade, this situation could worsen, according to a new report from the London-based Panos Institute.
Developing countries have until 2005 or 2016 to implement TRIPS-compliant legislation on pharmaceuticals. So far many governments have drafted or enacted legislation that seems to prioritise patent rights over public health. Some countries are being pressurised into adopting policies that go further than TRIPS in protecting patents.
Patents give big international pharmaceutical firms monopoly over production of new drugs, including, for example, those needed to treat HIV/AIDS. There is concern they may push up prices, and the TRIPS rules could thus limit poor countries' freedom to buy cheaper "generic" versions of patented drugs. For example, in January 2001, South African HIV/AIDS treatment activist Zackie Ahmat went to Thailand to buy 5,000 pills of the generic version of an anti-fungal drug patented by the US pharmaceutical giant Pfizer. He paid $0.21 a pill. The price of the patented version in South Africa was $13.
The Panos Report, Patents, Pills and Public Health: can TRIPS deliver? warns that patent legislation is not being debated widely enough in most developing countries, and the process of introducing it needs to be more consultative and transparent.
In Uganda, for example, American consultants were brought in to review the country's patent laws and make proposals for reform. The result was the drafting of laws which, according to local campaigners, are skewed in favour of business interests rather than social or development needs.
The principle of extending access to essential drugs in poor countries is widely supported, but the means of doing this is still hotly disputed, says the report. According to the World Bank, middle-income countries may benefit from increased foreign investment, but if the cost of drugs rises as a result of patent systems spreading throughout the developing world, there is a real danger of restricting access to drugs, such as anti-AIDS drugs, where they are most needed. The World Health Organisation suggests that implementing patent protection where it did not already exist would result in the average price of drugs rising, with projected increases ranging from 12 to 200 percent.
The pharmaceutical industry argues that patent systems promote innovation and investment in research and development. Without patents, new ones would not be developed to tackle diseases such as tuberculosis and HIV/AIDS. They believe the real barriers to making drugs more available are poverty, weak political leadership, lack of trained health personnel and poor health infrastructures.
The report examines alternative approaches and gives examples where differential pricing (where poorer countries pay considerably less for a product than wealthier ones) and compulsory licensing (where a patent is overridden in return for a payment of a royalty) have potential, although they are not free of problems.
Two countries highlighted in the report, show how differently patent protection can impact on the nation's public health:
Brazil is seen as a model for other countries of what can be achieved for public health by boosting local production of drugs such as the anti-AIDS drug AZT, lowering prices through competition and negotiating discounts on patented drugs. Between 1996 and 2001 around 358,000 AIDS hospitalisations were prevented, saving around $1.1 billion.
On the other hand, Thailand's capacity to provide essential drugs for its people has been severely limited in the last decade due to relentless pressure from the US to tighten up its patent laws which, they complained, meant the loss of $30 million a year in sales for the American pharmaceutical industry because it referred only to pharmaceutical processes and not products. The US went as far as imposing $165 millions' worth of sanctions on eight Thai products exported to the US. The US continued to exert pressure until the patent laws were changed and made even more restrictive than the international TRIPS agreement requires.
"This report should be a wake-up call to developing countries to look carefully at how they go about complying with TRIPS legislation and make sure that access to essential drugs is kept as an overriding right for the entire population – not just a wealthy few" says Martin Foreman, author of the Panos report.
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