Inquiry
on Intellectual Property Rights
in Developing Nations
1st Session, 37th Parliament,
Volume 139, Issue 61
Tuesday, October 23, 2001
Honourable
Senators: I wish to speak on the inquiry that Senator Finestone has introduced.
Senator Finestone provided us with some background information about the
three diseases that are sweeping developing nations.
As she noted, taken together, HIV-AIDS, tuberculosis, and malaria kill
4.1 million individuals per year. Aside
from these diseases, there are many others that are endemic to developing
nations.
Why
is this happening? And what can we, as Canadians, do to prevent this tragedy?
Drugs
to combat many of these diseases are simply not available.
One of the reasons for the lack of availability is ignorance, as my
learned colleague, Senator Finestone, emphasized.
A new report by Médicins Sans Frontière entitled “Fatal Imbalance:
the Crisis in Research and Development for Drugs for Neglected Diseases”,
argues that the health revolution of the past 30 years, that has improved the
life expectancies of many in the western world, has left much of the developing
world behind. This is because most
research and development or R&D focuses on western diseases, while
neglecting tropical diseases (e.g. sleeping sickness, Chagas diseases, and
leishmaniasis) that take an enormous toll on those living in absolute poverty.
According
to the report, “only 10% of global health research is devoted to conditions
that account for 90% of the global disease burden”. This research vacuum exists despite the fact that the World
Bank has found that eliminating communicable diseases would almost completely
level the mortality gap between the richest 20% of the world’s population and
the poorest 20%.
It
is clear that research and development is not at the service of public health,
but instead, is harnessed to profit. Governments,
therefore, must play a role. Public policy must develop strategies to address neglected
diseases specifically. One option
is public-private partnerships, involving universities, governments, NGOs, and
private companies. Another is
a policy whereby a specific percentage of pharmaceutical profits from newly
patented drugs would be channeled into research on neglected diseases.
However, there are drugs that already exist to fight some diseases such
as tuberculosis. TB was a major
problem in Canada less than 50 years ago. In
1953, there were 19,000 beds in hospitals in Canada allotted to TB patients.
As a result of a systematic treatment program, tuberculosis was virtually
eliminated. I say virtually because TB is still killing people in Canada,
and remains one of the biggest killers in other parts of the world, with numbers
of deaths rising. It is clear that
if we are to eliminate TB, in our borderless world where immigration is
commonplace, we must apply the same principles of access to medication to
developing nations as we have in Canada.
Medicines
are also available to treat AIDS. Some
20 years after the first case was identified, AIDS is no longer a death sentence
as it once was. Since the
mid-1990s, it has been treatable with a cocktail of drugs called the highly
active anti-retroviral therapy or HAART. HAART
dramatically reduces suffering, and increases life expectancy, allowing patients
to live comfortably with a chronic disease. However, since 95% of the 36 million HIV-infected individuals
in the world live in low-income countries, only a small fraction of these people
have access to HAART. In Africa,
access is limited to only about 10,000 out of 25 million HIV-positive
individuals.
AIDS
has already taken
22 million lives worldwide, and created more than 13 million orphans.
An estimated 4 million new infections occur every year.
In the end, no country will escape this disaster.
The disease promises to fundamentally destabilize the social, political
and economic fabric of the world.
Currently,
development is being eroded in many of the world’s poorest countries. For example, Botswana, which has long been considered an
African success story, has already had its life expectancy dropped by 25 years
to 44 years, and this may decline to as low as 29 years, if the spread of the
virus is not slowed or reversed. President
Festus Mogae warns that the country, in which 1/3 of the adult population is
infected, faces the prospect of extinction.
Last spring, I attended a speech given by Mr. Stephen Lewis
who is the special envoy named by the United Nations to deal with the HIV-AIDS
epidemic in Africa. Mr. Lewis told
the audience about the “Accelerated Access Agreement” reached by UNAIDS with
a number of the world's major pharmaceutical companies to furnish antiretroviral
drugs to poor countries at a reduced cost.
Negotiations led to agreements on price reductions in 4 countries - Cote
d'Ivoire, Rwanda, Senegal, and Uganda.
The
rules were that countries would receive discounts of up to 90% in exchange for
pledging to respect patent rights, and not allowing lower-priced drugs to enter
the black market. This would appear
to be a good example of a public-private partnership that could potentially
lower the costs of drugs for AIDS.
What
happened? By early this year, the
Accelerated Access initiative had not produced the expected results. Prices were still being maintained significantly above
production costs. Meanwhile,
generic drug companies, particularly in India, were offering to supply products
at a lower price than the Accelerated Access price, to South Africa.
In what Stephen Lewis called "a double and duplicitous game",
the major drug companies were fighting to keep the cheaper generic drugs out of
South Africa by taking the South African government to court to stop it from
engaging in parallel imports, a practice that is specifically authorized under
the “Trade Related Aspects of Intellectual Property Rights”, or TRIPS
agreement, in the case of public health emergencies.
The reason drug companies cited for the court challenge was the need to
maintain profits to fuel R&D - despite the fact that Africa represents a
little more than 1% of the total worldwide drug market.
In April of this year, the pharmaceutical companies backed down.
Faced with bad PR internationally, the pharmaceutical
companies are heralding a new study published on October 17, 2001, co-authored
by Amir Attaran of the Harvard Centre for International Development and Lee
Gillespie-White of the International Intellectual Property Institute (IIPI)
(“Do
Patents for Antiretroviral Drugs Constrain Access to AIDS Treatment in Africa”)
which claimed that patents were not the issue in the battle against AIDS.
Médicins Sans Frontières, and other NGOs argued that the study was
misleading, and that it was an attempt to sabotage the initiative of the
developing world to break down the barriers to access to medicines.
Stephen Lewis, and NGOs such as Oxfam, Medécins Sans Frontières,
and many African countries are unanimous in supporting a “public health”
interpretation of TRIPS.
In
September 2001, at a TRIPS council session on access to medicines, 60 developing
nations jointly issued a statement arguing that “nothing in the TRIPS
agreements shall prevent members from taking measures to protect public
health”. Developing nations are being supported by the European Union.
However, their joint declaration, which will be considered at the next
WTO ministerial conference, has been opposed by the United States, Switzerland,
Japan, and Canada. If
nothing changes, beginning in 2006, all WTO Members will be obligated to grant
twenty-year minimum patents for medicines.
Perhaps Canada’s position needs to be reassessed in light
of the potential for our own public health emergency.
Bio-terrorism poses an imminent threat.
In light of the current situation, a broad interpretation of the term
“public health emergency” in TRIPS may be necessary, in order to ensure that
patents do not override global health concerns, whether in Canada or in other
parts of the world.
Developing
countries, suffering under the burden of diseases need to have access to the
cheapest drug available, regardless of whether it is produced by a generic drug
company or a brand-name company. Both
India and Brazil already have developed the capacity to manufacture a wide
variety of generic drugs that could be exported to other developing countries. In Brazil, the introduction of generic anti-AIDS drugs has
led to a 79% reduction in the price of drugs.
As a result, mortality rates from AIDS have dropped by 50%.
HAART has also been made available in Thailand, Costa Rica, and in a
pilot study in Haiti.
Other countries have been less lucky.
There are gross price discrepancies from one country to the next.
Let me give you just one example of how radically prices can differ from
country to country. Last year, Médicins
Sans Frontières reported that a drug called fluconazole, which treats a form of
meningitis common in HIV positive individuals, was priced at $1.20 U.S. per
daily dose in Thailand for a generic version, compared to $17.84 U.S. per daily
dose in South Africa for the patented drug.
The discrepancy has since been corrected by the South African
manufacturer after a public outcry.
Three
factors are necessary if widespread treatments are going to be made available in
developing countries. They are as
follows: research and development, affordable drugs, and international aid,
designated specifically for this effort by donor countries. If real change is to happen, it will depend on the political
will of the international community.
The protection of intellectual property rights cannot take
precedence over the protection of human life.
Countries, such as the United States, are currently attacking parallel
importation, which allows for the importation of medicines from foreign
countries at lower costs, and compulsory licensing, which allows for the
production of medicines other than by the patent holder.
Both these trade practices were specifically included in TRIPS to be used
in instances of public health emergencies or in the case of unfair pricing
practices. Canada must defend these
provisions at the WTO so that generic drugs are made available to developing
countries where health crises exist.
It is also important to note that, in many cases, developing
countries cannot even afford to pay the lowest price available for drugs.
Often the yearly cost of a drug, even if it is priced at the cost of
production, may be more than the annual per capita income of many families.
A Global Tiered Pricing Strategy, as suggested by Médicins Sans Frontières,
would allow for lower drug prices in the developing world, with R&D being
funded by standard prices in the developed world.
CIDA's
resources are currently stretched to the limit.
For example, last year Canada spent 0.25 % of its gross national product
on official development assistance, the lowest portion in the 35 years since
major foreign aid programs were established.
More money is needed if CIDA is going to have any effect in stemming the
tide of disease sweeping across the developing world.
The
world is a global village; we cannot afford to neglect the needy who now make up
the majority of its citizens. The
decision to act to provide affordable and accessible medicine is a pragmatic
decision because their future is ultimately our future.
Otherwise, the results of this death toll will be weakened economies, and
fragile political and social structures. For
too long we have ignored developing nations - their poverty - their diseases -
and their conflicts - assuming that we lived in a protected world.
Since September 11th, we know the world is a much smaller
place.
Nevertheless, if we are to
act now to fight against the ravages of disease, the decision must be based not
on self-interest but on our common humanity.
In this international effort, Canada needs to take a leadership role.
Honourable
Senators, we cannot allow more people to die when we have the means to save
them.