The WTO, TRIPs and the Doha Declaration: The Access to Medicines Controversy

by jakecarberry

The approach of the World Trade Organisation towards intellectual property has come under criticism for a number of reasons, but one area of particular controversy has been the ostensible restriction of access to affordable medicines for developing countries. In this area, the WTO’s approach has been viewed as morally questionable, given the influence exerted by private industries – the pharmaceutical industry in this case – over the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In this instance, pharmaceutical firms acting through the US trade representative successfully lobbied to include a number of “objectionable” and self-serving features into the Agreement.(1)

This included extension of patents to twenty years, “a period so long that few economists of repute … would call it efficient,” as well as limiting the ability of “poorer countries… to import generic drugs from other developing countries.”(2) As a result, the cost of purchasing and distributing medicines sharply increased, and the poorest, developing countries were no longer able to import cheaper drugs, forced instead to purchase patented medicines from developed countries. These patented drugs became, for many, simply unaffordable: as Gerhart states, the payments for patented drugs that TRIPS required severely hampered “the ability of countries to address the health needs of patients.”(3)

To alleviate these problems, the Doha Declaration was launched in 2001, aiming to address the dissatisfaction felt by developing countries regarding the impact of the TRIPS Agreement on access to medicine.(4) Not only did it “…delay the implementation of patent system provisions for pharmaceutical products for least developed countries until 2016”, but it also officially committed WTO members to interpret TRIPS in a manner consistent with WTO principles, and utilise the flexibility inherent within TRIPS to “support public health and promote access to medicines for all.” (5) The Declaration stated that each member had the “right to determine what constitutes a national emergency”, including emergencies of public health, and reiterated that all members were able to grant compulsory licenses if necessary. Compulsory licenses allow governments to “…authorize the use or production of a patented item by a domestic party other than a patent holder,” and their extremely limited usage under TRIPS makes their inclusion in Doha all the more noteworthy.(6)

Despite this, however, the issue of access to affordable medicines in developing countries persists, leading some to suggest that this amendment alone is far from sufficient. As Ferguson notes, although Doha introduced compulsory licensing, this system has by no means been utilised to its full extent, and use of these provisions remains rare. As a result the effect on the availability of medicines has been “relatively modest”(7) – a WHO report from 2005 claimed that developing countries were not utilising the flexibilities within the TRIPS Agreement anywhere near as far as the Doha Declaration permitted.(8) So, while the Doha Declaration may have been a positive advancement, ultimately it has not proven as significant as was hoped.

(1) Jagdish Bhagwati, In Defense of Globalisation, (Oxford University Press, 2007) p.184
(2) Ibid. p184
(3) Peter M Gerhart, ‘The Tragedy of Trips’, Michigan State Law Review, (2007) p.183, Available online at:http://www.msulawreview.org/PDFS/2007/1/Gerhart.pdf
(4) World Health Organisation Website, ‘The Doha Declaration on the TRIPS Agreement and Public Health’, Available online at:http://www.who.int/medicines/areas/policy/ doha_declaration/en/index.html
(5) Ian F Ferguson, ‘The WTO, Intellectual Property Rights, and the Access to Medicines Controversy’, CRS Report for Congress, (2006), Available online at: http://www.fas.org/sgp/crs/misc/RL33750.pdf
(6) Ibid.
(7) Ibid.
(8) Sisule F Musungu, Cecilia Oh, ‘The Use of Flexibilities in TRIPS by Developing Countries: Can they Promote Access to Medicines?’, WHO Report, Commission of Intellectual Property Rights, Innovation and Public Health, (2005), Available online at:http://www.who.int/intellectualproperty/studies/TRIPSFLEXI.pdf

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