South Africa plans to overhaul its intellectual property laws to improve access to cheaper medicines by making it harder for pharmaceutical firms to register and roll-over patents for drugs, according to the Department of Trade and Industry (DTI). Central to the reforms is closing a loophole known as "ever-greening", whereby drug companies slightly modify an existing drug whose patent is about to expire and then claim it is a new drug, thereby extending its patent protection and their profits. If approved by parliament, the changes should mean cheaper medication for cancer and HIV and AIDS in South Africa. DTI said its policy position was to ensure a strong system that will not grant easy patents, arguing that granting easy patents would open the door for extensions on the original patent. South Africa's position was supported this month by a ruling from India's top court that dismissed an application by Swiss drugmaker Novartis to win patent protection for its Glivec cancer drug. Lobby groups such as Doctors Without Borders (MSF) want South Africa to follow India's example and add a specific clause preventing companies from gaining patents on existing drugs, in a move that would help generic drug manufacturers.
Health equity in economic and trade policies
The statement covers the cooperation in the Southern African Development Community-European Community (SADC-EC) economic partnership agreement, and the implications for regional integration in Southern Africa. The statement proposes support for regional integration and development in Southern Africa, based on the 1999 Trade, Development and Cooperation Agreement (TDCA). The first Revision Agreement, which together with the Joint Action Plan for the SA-EU Strategic Partnership is argued to lay the ground for an enhanced and deepened relationship in existing and new areas of cooperation, including migration, health, space, energy, information and communication technologies (ICT) and maritime transport.
South Africa is set to launch its own development aid agency in 2011. The South African Development Partnership Agency is expected to become operational before mid-2011 and will work with other external funding agencies to coordinate development programmes, mainly on the African continent. Although the government is hoping for contributions from the private sector, most of the funding will come from public money, according to Ayanda Ntsaluba, Director-General of the Department of International Relations and Cooperation. Since 2001, the South African government has channelled its aid contributions through the African Renaissance Fund (ARF), which is administered by the department. Much of the assistance provided by the ARF has focused on conflict resolution and peacekeeping in various countries, including Mali, Zimbabwe, Burundi and the Democratic Republic of Congo. However, transparency and accountability was problematic and Ntsaluba conceded that the tracking of ARF funds had not been optimal. Although the mandate for the new agency was still in draft form, he said South Africa would continue providing assistance to countries recovering from conflict. He assured critics that the new agency would be set up as a separate institution, with the administrative capacity to track and oversee all the programmes it funded.
South Africa grants almost every patent application it receives, making its patent regime one of the world’s most lenient, according to this article. While pharmaceutical companies cash in, patients face staggering healthcare costs, and medicines like cancer treatments, third-line antiretrovirals (ARVs) and treatments for drug-resistant tuberculosis (DR-TB) are often priced out of reach. According to activists from Médecins Sans Frontières’s (MSF) Campaign for Access to Essential Medicines and the South Africa AIDS lobby group the Treatment Action Campaign (TAC), easy patents mean companies can extend their exclusive right to manufacture and sell certain drugs through a process known as evergreening, where minor changes are made to a drug and it is re-issued with a new patent, the process being repeated indefinitely.. The most recent review of South African patents, conducted in 2008, found that about half of all South African patents that year were granted to US companies, followed by companies from the UK, Germany and France. The Department of Trade and Industry’s draft of the new intellectual property policy is set to be submitted to the cabinet on 5 December 2012. A three-month period of public comment on the policy will then be opened before the policy becomes a bill. MSF and TAC are calling on interested parties to get involved and ensure the policy protects public health by including provisions to prevent evergreening and to allow for compulsory licences, which allow generics to be manufactured for use in developing countries without the patent owner’s permission.
An amendment to the TRIPS Agreement that aims to facilitate the access to affordable medicines has entered into force upon approval by two thirds of the WTO members. The amendment reflects the recognition by WTO Members of the need for the continued enhancement of global intellectual property rules to allow Members to systematically take measures to protect public health. The United Nations Secretary General’s High Level Panel on Access to Medicines has highlighted the importance of designing legislation that allows for quick, fair, predictable and implementable compulsory licenses for legitimate public health needs, and recommended WTO Members to revise the paragraph 6 system in order to find a solution that enables a swift and expedient export of pharmaceutical products produced under compulsory license. The South Centre stresses the continued importance for Least-Developed Countries (LDCs) to make full use of the special status they enjoy in not being required to adopt rules on patent protection and most other rules of the TRIPS Agreement, in order to build their technological capabilities and reduce obstacles to affordable access to medicines. The LDCs would not need, in this case, to make use of the system. Close attention will need to be paid to the design of national implementing legislations and the feedback from potential user entities of the system on any hurdles they may face that diminish interest in its use. The evaluation of the system must continue in the TRIPS Council. The South Centre offers to provide assistance to countries in examining national implementing legislations, and providing information to potential interested parties. Templates for facilitated implementation and meeting of conditions required under the system may be provided.
The Geneva-based South Centre has encouraged India and other developing countries "to continue to make full use of the TRIPS flexibilities for public health and other public policy objectives," consistent with their rights and obligations under the World Trade Organisation (WTO) rules.
In a statement released here, the intergovernmental organisation of developing countries called on WTO Members to respect the legitimacy of the use of TRIPS flexibilities for public health in light of new threats of unilateral trade measures by the United States against India over its intellectual property (IP) laws and regulations. The South Centre statement cautioned that continued pressures by the United States on India and other developing countries "to adopt an IPRs [Intellectual Property Rights] regime that would go beyond the minimum standards in the TRIPS [Trade-Related Aspects of Intellectual Property Rights] Agreement and that does not make use of the flexibilities that are part of TRIPS would have adverse social and developmental effects, including on the public's access to medicines."
According to the authors of this article, the exchange of South-South knowledge and experience has an enormous potential role in the emerging global development architecture. Many current answers to development challenges come from developing countries. For example, developing countries have designed and implemented solutions that have no precedent in the developed world, such as microfinance models in countries like Bangladesh and Indonesia, or the use of mobile technologies for all kinds of services in Africa and elsewhere, including health. Those same developing countries are building strong and reputable academic institutions and development think tanks, with implications for the diversity, sources, and availability of development knowledge and experience. The article proposes greater investment in a more demand-driven model of co-operation that promotes horizontal relationships, invests in local capacity and moves away from a one-size-fits-all solution. For this new approach to work, regional and global multilaterals should mainstream South-South approaches in their business lines and develop funding and brokering mechanisms for low-and middle-income countries, as well as for short-term and long-term projects. Traditional external funders need to be made aware of the win-win opportunity that lies in developing capacity in one country to promote sustainable change in another, and they need to adapt their co-operation strategies accordingly. Parliamentarians and civil society organisations can ensure that governmental peer learning fosters democratic ownership and human rights. Academia and the private sector can help enrich the agenda and engage more with governments and other stakeholders.
Developing countries stressed the need for a balanced approach to patents to ensure public health and development interests at the 22nd session of the Standing Committee on the Law of Patents (SCP) of the World Intellectual Property Organisation (WIPO). Nigeria on behalf of the African Group stated that it recognises the instrumental role of the SCP in building knowledge, understanding the application of various patent related norms and effective use of the international patent system. However, Nigeria pointed out that SCP’s activities “include enabling factors encapsulated in the Development Agenda Recommendations, with the objective of enhancing patent related uses for social, technological and economic development and noted their disposition to actively engage within the SCP, on identified issues that support the objectives of the region, giving due regard to the different levels of development of WIPO Member States”. It stressed that the “policy space for Member States will therefore be of utmost relevance in SCP discussions and their outcomes”. Pakistan on behalf of the Asia Pacific Group (Japan is not part of the Group) stressed the need for balanced discussions on all topics on the agenda. It stated that, “ The work of this committee is critical in balancing the rights of patent owners and public interest particularly in the area of public health, technology transfer and patent flexibilities. It is essential to find the right balance between patent rights and the right to health in light of the differences in the levels of social, economic and technological development among members, TRIPS flexibilities and respect for intellectual property law and the needs of all Member States”. It further stated that the balanced approach to patents “not only allow governments, especially in resource-constrained countries, with the necessary policy space to meet health needs but also promote further innovation”. Brazil on behalf of GRULAC stated that it was “important for Member States to learn from each other’s experiences and practices under these two topics. While acknowledging similar practices in some countries, it is important to recognise that IP policies and legislation should address national economic and scientific issues as well as development concerns”. Third World Network remarked that 22nd Session of the Standing Committee on the Law of Patents is taking place exactly after the 20th year of the TRIPS Agreement. During the last twenty years there is plenty of evidence to show that the TRIPS Agreement has failed to fulfil its promises especially in the context of addressing developmental challenges of developing countries.
In this essay, the author considers the impact of the India-Brazil-SouthAfrica (IBSA) and the Brazil-Russia-India-China (BRIC) summits on South-South co-operation and development. In terms of the health sector, the author argues that IBSA and BRIC offer synergies among the countries in the alliances. As regards HIV/AIDS, for instance, the interests of the three countries are quite convergent. India has the second largest number of HIV-positive people (2.4 million) and also the largest generic drugs industry. Brazil has developed role-model public policies in fighting AIDS and exports its know-how to several African, Asian and Latin American countries. South Africa has a high demand in this regard, since it has the largest number of HIV-positive people (5.7 million) and faces severe constraints in democratising public health services regarding the epidemic. In recent years the IBSA countries have been prominent in the G-21 lobby that succeeded in lessening the negative effects of the Trade-Related Aspects Of Intellectual Property Rights agreement (TRIPS). Flexibilities in TRIPS permit governments to issue licenses for generic drug production for the domestic market in the interests of public health, without the consent of the patent owner, to help bring down the high costs for patented drugs in developing countries. India is one of the world’s leading producers of generic medicines. While a trilateral trade agreement has been alluded to on numerous occasions, the author alleges it is unlikely to materialise between India, Brazil and South Africa, which are technically bound to regional trade blocs.
Emerging regional powers in the South have produced powerful finance capitalists. In this paper an example is given of an Egyptian firm buying land, rights to water and precious metals in other African countries. Consolidation of the formal economies of Southern countries has meant not only expansion into existing markets but ‘diversification’ into new markets, domestically and regionally. Allied with global governance institutions, the author argues that such finance capitalists represent greater control over vital resources and distribution routes for private wealth accumulation.