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Pharmaceuticals, Patents, Polemics and Pretoria
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1. Introduction
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The November 2001 Doha ministerial meeting of the World Trade Organisation (WTO) was hailed by some states and societies-including South Africa2
-as an important victory for a more flexible, progressive and contextually sensitive global intellectual property rights (IPRs) regime. As the health and human security of the developing world, particularly in Africa, is increasingly compromised and threatened by a plethora of pandemics and pathologies, access to essential yet patented medication and knowledge remains a matter of 'high politics'.3
In today's rapidly globalising world, information, science and technology have become more economised, politicised, scrutinised and ethically bound than ever before. Within the global liberal discursive environment, intellectual property rights (IPRs) are enforced in the WTO discipline through a multilateral code governing trade-related aspects of intellectual property, the so-called Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement,4
to which all the 142 member states must adhere, irrespective of their level of development.
TRIPS, as a part of the global trade agenda, has since its inception in the Uruguay Round been mired in controversy.5
More crucially, differences of opinion on TRIPS, IPRs and technology transfer6
continue to sour the relationship between the North-'the knowledge-workers'-and the South-'the knowledge-needers'.
This article analyses the power relationship-both meta and relational-between the North/Organisation for Economic Co-operation and Development (OECD) and the South, by focusing on IPRs within the politics of pharmaceutical technology transfer. The article first provides a brief conceptualisation of intellectual property and patents. It then investigates the debate between the North/OECD and the developing countries over TRIPS (and thus technology transfer). This discourse is based on utilitarian and moral motives. Thirdly, the article analyses this debate in the context of the WTO's November 2001 Doha ministerial meeting and the South African HIV/Aids drug case in 1998. The article concludes by teasing out some of the foreign policy implications of TRIPS for South Africa.
What do the concepts 'intellectual property' and 'patents' mean?
Intellectual property
Intellectual property (IP) is an abstract concept which encompasses ideas and images, sounds and symbols, words and music, text and designs, formulae and blueprints.7 IPRs refer to legal rights held in new ideas that are covered by copyrights, patents and trademarks. IP thus reflects an expanded conception of intangible assets, which legally protects and takes into account new forms of creative endeavour, such as computer software, integrated circuits and technological advances. It grants limited legal monopolies under certain conditions for particular kinds of invention. Technology-including medical technology-is therefore not a 'free' good that is readily available for use by any firm anywhere.
Patents
Patents are legally binding monopolies awarded by governments to inventors to exclude others from manufacturing, selling, or using the patented invention without the patentee's consent for a defined period of time (often 20 years).8
The stated power to exclude others makes patents the most important device for protecting internationally transferred technology.9 This has contributed to the technology gap-or 'the digital divide', according to President Thabo Mbeki-between developing and industrialised countries. Due to the high costs involved, research and development (R&D) is largely concentrated in large firms or strategic partnerships and alliances between large firms (for example within the biotechnology sector). Most of these firms are located in the North. Most global knowledge in science and technology is concentrated in the developed world. Some 95% of the world's patents are held in the North,
and in information technology it is estimated that 90-95% of the world's R&D is concentrated in highly industrialised countries.10
The reciprocal relationship between the patentee and the state or international regime providing the legal monopoly is as follows: the patentee is said to have the moral right-within the liberal paradigm, that is-to exploit (manufacture, sell or use) its invention in exchange for making the invention public. The theory of modern rationalisation is that this 'look but don't touch' trade-off might assist other inventors to generate new industrial processes and products.
The awarding of a patent is congruent with its being declared private property (albeit for a certain fixed period), which means that the 'owner' can then assign, mortgage, or license the patent to other parties. These parties, in turn, remunerate the patentee for their limited right to 'work' the patent. The patented technology can be sold or hired out to an interested juridical person, such as an individual, firm, higher education institution, research facility, NGO, or state. Since the patent is quite explicitly a monopoly, the seller can put any price on licensing or sale of that patent. This underscores the profit-driven motives of TRIPS. Buyers in the South rarely have the necessary capital to buy or hire a patent in order to transfer the (sometimes much-needed) technology. The conflict between developing countries and the big pharmaceutical companies over patent rights, licensing and the morality of the cost (whether cheap or expensive) of HIV/Aids medication, particularly anti-retrovirals, is a case in point. As with all other things in the current neo-liberal world order, knowledge has been commodified.
Footnotes:
- Beeld, 23 November 2001.
- This applies not only to the developing world, but also to the developed world. In August 2001 the Brazilian government threatened to break a patent through a compulsory licence to produce the anti-retroviral Nelfinavir (in Brazil marketed by Roche as Viracept) in a state factory at a fraction of the cost. Under Brazilian law the government can issue a compulsory licence to make a patented drug when a 'national emergency' is invoked (Business Day, 24 August 2001). In the wake of the September 11 terrorist attacks, the US has considered issuing a compulsory licence to produce Cipro, the anthrax antibiotic, and the parallel importing of anthrax antibiotics (CUTS, 'Get TRIPS out of the WTO', in Economiquity, 19, 2001, p.1).
- The TRIPS agreement was concluded as a result of the Uruguay Round of trade negotiations and came into force on 1 January 1995.
- The General Agreement on Tariffs and Trade (GATT) Uruguay Round (1986-94) was the expression of the North's (more specifically, the OECD's) power, since they controlled the negotiation agenda and subsequent outcome. Members of the South were explicitly and implicitly coerced into signing the TRIPS Agreement, since the final GATT 'deal' was presented as a unified package (all members had to commit to all its provisions), there was the threat on the side of the North to retract the benefits provided under the generalised system of preferences (GSP), and to use the US's 'Super 301' Watch List and other such unilateral trade measures in the future.
- The TRIPS agreement requires that technology transfer to less developed countries (LDCs) be promoted. This, however, is only a 'best endeavour' commitment (which has not been implemented) and LDCs have no recourse to any dispute mechanisms to force developing countries to respect this commitment.
- Capling A, 'Intellectual property', in Hocking B & S McGuire (eds), Trade Politics. International, Domestic and Regional Perspectives. London: Routledge, 1999, p.79.
- Yankey GS, International Patents and Technology Transfer to Less Developed Countries: The Case of Ghana and Nigeria. Aldershot: Avebury, 1987, p.5. See United Nations, Intellectual Property Rights and Foreign Direct Investment. New York: UN Publishers, 1993.
- Robinson RD, The International Transfer of Technology-Theory, Issues and Practice. Cambridge: Ballinger Publishing, 1988, p.132.
- Cosbey A, 'The TRIPS Agreement and developing countries-Towards sustainable development?', in Global Dialogue, 3, 1, 1998, p.13.
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