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TRIPS extension positive… but not good enough

The decision to give the world’s poorest countries more time to fall in line with an international agreement regulating intellectual property rights has been welcomed as a positive step… but not as positive as it could have been.

In early June, the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Council of the World Trade Organization (WTO) decided to extend by eight years the transition period for least developed countries (LDCs) to comply with the TRIPS agreement. The transition deadline was 1 July 2013 and is now 1 July 2021.

The TRIPS agreement was introduced in 1995 to protect intellectual property rights on a global scale. Patent protection, however, pushes up the costs of medicines, placing essential treatment such as antiretroviral therapy (ART) for people with HIV outside the reach of LDCs.

This is why flexibilities were introduced in the TRIPS agreement. The flexibilities offer LDCs a renewable exemption from TRIPS obligations, giving them the space to manufacture affordable drugs locally or to import them more easily, and to build up their sorely needed technological, human, financial and other capacities.

“The extension granted by the TRIPS Council is essential if ART is to continue being available to those who need it in most sub-Saharan African countries,” said Fr Paterne Mombe SJ, director of the African Jesuit AIDS Network (AJAN). “However the extension doesn’t give these countries enough time to implement TRIPS flexibilities to the fullest and to set up systems that guarantee a reliable supply of low-cost treatment.”

What’s more, the extension alone is not sufficient. “Other measures are needed, such as technology transfer, improvement and clarity on safeguard measures, their adaptability to African settings, and much more,” continued Fr Mombe. “Otherwise, in the long run, people with HIV in the world’s poorest countries could see access to the medicine they need to survive threatened.”

The deal to extend the transition period for LDCs was reportedly reached after months of intense negotiation. It can best be described as a compromise: the LDCs had asked that they be granted an extension until they “graduate” from this unenviable category. This didn’t happen.

Countries designated as “least developed” by the United Nations comprise 880 million people (about 12% of the world’s population), but account for less than 2% of the global GDP and about 1% of global trade in goods. They are home to some of the world’s most vulnerable people and bear considerable health burdens. In 2011, some 9.7 million of the 34 million people living with HIV worldwide lived in LDCs.

Quite apart from the technicalities and timeline of the extension, the decision taken by the TRIPS Council on 7 June touches something much more profound: the balance between patent and patient rights and the gap between the healthcare enjoyed by those living in the world’s richer as opposed to poorer countries.

“In Catholic social teaching, the legitimacy of private property entails some limits,” said Fr Mombe. “In other words, patent rights cannot be at the expense of human life. There is the need to develop an ethics of access to drugs for the poor built on a framework of human rights in relation to access to care. The TRIPS agreement flexibilities seem to recognize this duty of justice but more needs to be done to ensure they are fully implemented to ensure universal access of ART in the world’s poorest countries.”

In his response to the WTO decision, Archbishop Silvano M. Tomasi, Representative of the Holy See to the UN in Geneva, echoed the need to remember the bigger picture: “…bear in mind that the main goal of the international community in developing a fair regime of intellectual property rights should aim toward the good of all and the pursuit of more equitable international relations, especially with regard to poorer and more vulnerable people.”

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