Oct. 30, 2012
NGO ADVOCACY FOR HEALTH PUBLIC POLICY: Richard Elliot
Case Study: Canadian HIV/AIDs Legal Network & Canada’s Access to Medicines
Today: Question of intellectual property and WTO, in regards to medicines and the role
of civil society responding to the issue
Access to Treatment in Developing Countries Canada’s Access to
o The Issue: patents and access to affordable medicines
o Health as commodity vs. health as human right
States have obligations to make access to health, however
other actors in Gov.’ see health as a commodity
HIV & ARV: Global situation
o ½ of people get access to drug needed to treat HIV the other ½
o South Africa being affected most.
o In 2009:
33.3 Million PLHIV
2.6 Million new infections
1.8 Million AIDS death
World Mapper WHO:
Map on who has HIV? Majority in African countries
Patent ctrl: Dominating in select West and Asian countries
o Same as the wealth ctrl
o Knowledge property right held in one place
ACCESS TO MEDICINES: Part of the human right to health, who says yes?
WHO constitution (1946)
Universal Declaration of HR (1948)
International Covenant on Econ, social and Cultural rights (1976)
Health as a HR (WHO) vs. Health as Commodity (WTO TRIPs)
TRIPs: international power to protect and enforce private intellectual
property rights. One size fits all approach, high-income countries supporting
Part of the agreement of entrance into WTO b/t global North and South
IP regime is one factor determining costs of patented pharmaceuticals, and
hence access to medicines, w. variable effect depending on context and
multiple other factors
TO WHO’S BENEFIT? The NORTH who monopolizes the patent rights and
access to treatment. Oct. 30, 2012
Health as Commodity: WTO/TRIPs
More market competition for medical drugs = LOWER COSTS
I.e. W/o patenting AIDS treatment has lowered drastically
In the presence of competition, prices lower!
Why is this a CHALLENGE?
Q: What does TRIPs require?
o How to balance interests in pub. Policy?
Odd Treaty out in WTO syst.
o Not a trade liberalization treaty
o Min domestic standard re: intellect. Prop.
o Revolution in international trade law
Staggered compliance dates
o Developed countries… JAN 1, 1996
o Developing countries… JAN 1, 2000
Until 2005 for pharmaceutical prod. If not prev. patentable
o Least developed countries
o Doha extensions, re: 2016
Art. 28… ex. Patent rights
Art. 33… min 20 yr. term
Art. 30... limited exceptions
Art. 31… other use (compulsory licensing
Art 6… parallel importing permissible
Developed country: Canada and effort to claim TRIPS flexibilities
Gen Medicines case (2000, WTO panel ruling)
Reg. review exception
Stockpiling except (strike down by WTO)
Canada pub. Interest arguments re: interpretation of Art. 30 (lim. exceptions”
to exclusive patent rights)
WTO Panel’s interpretation --creation of additional market monopoly perios,
contrary to explicit test of TRIPs and DSU Art. 3.2
Canada didn’t appeal to WTO appellate body
Future interpretation of TRIPs (particularly Art. 30)? Oct. 30, 2012
Generic Medicines decision vs. Doha Dec. and role of IHRs law?
WTO dispute settlement proceedings
India: Mailbox, provisions re exclusive marketing rights
Political use of TRIPs
S. Africa… PMA v. RSA (1997-2001) Global campaign, use od law as
TRIPs Global debates
WTO Africa Group & othe