Feature

Who will inherit the earth?

International agreement on intellectual property rights has been foisted on poorer countries in the interests of corporate profit, and will seriously harm public health, say Mike Rowson and Meri Koivusalo

The protection of intellectual property is an expanding business, with huge numbers of patents, copyrights, trademarks and industrial design licenses being granted everyday. In 1977 the World Intellectual Property Organisation’s patent co-operation treaty, which grants patents valid in many countries, received under 3,000 applications. Twenty years later, in 1997, it received 54,000 – equivalent to 3.5 million individual national applications. According to the director of research and development at one of the largest biotechnology corporations ‘the most important publications for our researchers are not chemistry journals but patent office journals around the world’.¹

In 1995 a global agreement was signed – the Trade-Related Intellectual Property Rights Agreement (TRIPS) – which is overseen by the World Trade Organisation. TRIPS sets minimum standards of protection for all forms of intellectual property as well as the limits of governments’ control over intellectual property issues.

But the current protection of intellectual property rights largely benefits rich, already industrialised countries. Industrial countries hold 97 per cent of all patents worldwide, and 80 per cent of patents granted in developing countries belong to residents of industrial countries.¹ The irony is that most of today’s rich countries took advantage of the much looser intellectual property laws of the past in order to industrialise.

The range of patentable products has expanded alongside the number of patents granted. The patenting of seeds, indigenous products and practices, and genetically engineered plants as well as new chemicals and pharmaceuticals has led to widespread public disquiet. Although naturally occurring substances are not patentable, even only mildly altered chemical substances are. There are serious concerns about granting patents for biological materials, many of them traditionally used by people in the South.²

Shiva has noted that transnational corporations, which accuse the Third World of piracy and have demanded strong regulation to protect ‘their’ property, are themselves plundering the biological wealth and intellectual heritage of poor countries, including medicinal plants.³ In 1990 world sales of modern medicines derived from plants discovered by indigenous peoples were estimated at $43bn, but only a tiny fraction of this ever found its way back to those who had preserved the traditional knowledge of these medicinal plants or to the countries where the plants were found.⁴

In theory developing countries, home to an estimated 90 per cent of the world’s store of biological resources, could benefit from the demands of biotechnology companies for the germ plasm found on their land.1 But in practice governments and local communities in poor countries rarely have the power to negotiate with bio-prospectors over access and royalties.

Arguments that the strict defence of intellectual property rights is good for poorer countries are overstated. There is little evidence for claims that TRIPS will stimulate the transfer of technology, encourage foreign investment, strengthen research and development, stimulate innovation and ensure the early introduction of new products in developing countries. On the contrary, the distributional impact of TRIPS is more likely to shift resources from consumers, the public sector and developing countries to multinational research-led industries. The TRIPS agreement was essentially a compromise with US commercial interest which had lobbied hard for it,⁵ and the US pharmaceutical industry continues lobbying for a stronger agreement.

The clearest health implications of TRIPS follow from its impact on pharmaceutical policies and the cost of drugs. While essential drugs are largely out of patent, this is not the case for new drugs, such as those used to treat HIV. Tighter intellectual property rights may increase prices and undermine government scope to produce cheaper alternatives. The interpretation of the agreement has become particularly acute in relation to measures which give governments flexibility in pharmaceutical policy-making, such as compulsory licensing and parallel imports: a dispute has already blown up between South Africa and the US over this. The adverse consequences for poor countries may include higher drug costs, loss of foreign exchange due to higher import and lower export volumes, and fewer jobs in domestic production.

The issue culminated in a World Health Organisation resolution on access to pharmaceuticals in 1999. While the debate over access to medicines – especially HIV drugs – has been loud and vigorous, the more systematic problems of TRIPS have been neglected. Pharmaceutical costs are rising everywhere in the world and new products using genetic technologies will be expensive. Considering the sums involved, questions should be raised about how far TRIPS really enhances research and development efforts on major public health concerns and the extent to which research into low cost alternatives or non-pharmaceutical options receives the necessary resources.

The TRIPS agreement assumes that tighter intellectual property rights lead to better pharmaceutical research and development. But it seems clear, given the tiny share of resources currently allocated to research on tropical diseases for example, that the efforts of the pharmaceutical industry, geared towards increasing shareholder value, have simply become more targeted to developing drugs for problems where lucrative markets exist, such as cures for impotence, obesity, ageing or baldness.

Currently, the TRIPS agreement allows WTO members to exclude from patentability diagnostic, therapeutic and surgical methods used for the treatment of humans and animals, but expect substantial industry effort to narrow these parameters so as to allow more scope for the commercial exploitation of innovations in care – especially those involving genetic technologies.

Patents tend to be promoted as means of increasing access to information. But under the terms of the TRIPS agreement governments must make commitments to limit access to commercial information presented in marketing approval processes for agricultural and pharmaceutical products. While exceptions can be made in order to protect the public, the primary responsibility of governments is to protect this data and information against unfair commercial use.

The question that follows is the scope of this protection and the extent to which this implies lack of access to regulatory data and decisions, in cases where it would be important to public interest groups or researchers dealing with the effectiveness, costs, quality or commercially problematic aspects of products. TRIPS could not only hinder access to information concerning the adverse effects of pharmaceuticals, but also undermine accountability for government decisions. There is a danger that further protection of intellectual property rights will restrict the public and open scientific debate in favour of commercially secret discussions.

The TRIPS agreement is not a natural law but a negotiated treaty. It has implications for policies, rights and responsibilities at local, national and global levels. Commercial rights should not take primacy over public health considerations or the rights of citizens to access information and adequate health care. The health care and public sector implications of TRIPS need to be analysed so that a path can be found between, on the one hand, protecting research and innovation and, on the other, allowing technology to be used widely for human benefit.

TRIPS is based on government negotiations and governments should be accountable for their policies in terms of their results. If the protection of intellectual property rights rewards only commercial interests at the expense of human rights, poorer countries, and public health protection, then governments must be challenged. Corporations will only inherit the earth if they are allowed to do so.