TCS Daily

Undone Deal?

By Roger Bate - September 11, 2003 12:00 AM

CANCUN, Mexico -- 'IT IS DONE!', barked a smiling Claude Burkey, a negotiator for the U.S. Trade Representative, yesterday at the World Trade Organisation meeting in Cancun. Mr Burkey's delight was over last week's agreement on changes to the patent system to increase access to drugs. His words are welcomed by all the other negotiators, most business leaders, and most importantly by those who are suffering from epidemic diseases in the poorest countries.


It is an unusual event for a Ministerial agreement to be promoted to widespread fanfare before a Ministerial meeting starts. But then the agreement was actually made in Doha, Qatar, in November 2001, and the details were still outstanding. Now that they have been resolved 22 months later, it is not surprising the negotiators are pleased.


But already the deal is being attacked by activists and imperilled by the countries' generic drug industries that benefit from disrupting the agreement. One activist, James Love of the Naderite Consumer Project on Technology, was once gain banging the drum that the deal was unfair to the poor, unworkable, onerous on poor countries and a sell out to U.S. drug companies.


A joint NGO statement issued Wednesday morning claims that the solution is 'plainly designed to frustrate and undermine the objective of protecting public health and promoting access to medicine for all'. The 14 NGO groups -- including Love's CPT, Health GAP, Health Action International, Doctors Without Borders and Oxfam -- provide no evidence for any of their assertions. But it is in the nature of activism, and especially their form of perpetual activism and crisis promotion, to enjoy the maintenance, fake or otherwise, of problems.


There have been allegations that these groups receive substantial funding from generics companies, and while this reporter has no idea if this is true, there seems to be heavy lobbying from these groups for generics to be sold into rich western markets. They are dismayed that the agreement cannot be used 'to pursue industrial or commercial policy objectives'. In other words they want the deal to help wealthy rip-off companies sell patent-breaking drugs into the U.S., rather than its intent of helping the poor. Furthermore they demand that 'poor countries should not be obligated to issue patents on medicines' if the agreement cannot be used effectively. This will harm the long run development of these countries -- the whole reason there was a patent agreement to begin with.


To be sure the agreement the NGOs attack still has dangers. When poor countries break patents it is going to be essential to stop products intended for poor countries being diverted back into rich ones. And because the deal is a disincentive for research, it will ultimately be the diseases affecting the poorest countries (cholera, dysentery, malaria, AIDS etc.) that will have less research time devoted to them. But these concerns are considered slight compared to the potential danger of not treating epidemic diseases in poor countries - a key reason every single one of the 146 countries negotiating at the WTO agreed to the compromise.


But what became apparent only this week was that the deal almost didn't happen. One deal looked agreed upon two weeks ago, but it took 36 hours of brinksmanship by the EU and U.S. to stop further delays. No sooner had a deal been almost agreed to than the generics companies of India and Brazil pressured their governments to reject the text. One trade insider even suggested that the generics companies had also encouraged abstentions from the Philippines and Venezuela.


USTR's Mr Burkey was, therefore, not only delighted that such attempts failed but relieved that after a torturous process, the deal was done. The agreement should hold; but the activists don't want to go quietly. Like the Japanese soldiers who were fighting in the atolls of the Pacific years after the end of the Second World War, the activists continue to fight. Yet unlike those unfortunate Japanese, the activists know that the big part of their phoney war is over. The best sign that they know that have lost this battle is that some have changed focus in their war against patents and profits.


Some may claim now -- as does Doctors Without Borders (DWB) -- that patents were only one part of the story and they are demanding increases in aid. And switching their attacks to governments and donor agencies may well keep them relevant and in the news.  But even as little as three months ago, DWB was claiming the vital importance of patent attenuation for the poorest countries. And their participation in the 14 group NGO joint statement attests to the fact that they still want the deal undermined.


It has to be hoped that the mainstream media will notice the activists' switch in focus and realise their interest is in maintaining the pretence of problems to keep money coming in for their misguided campaigns.


According to Royal Institute of International Affairs Fellow Dr. Amir Attaran, groups like DWB, Act UP and CPT want generics drugs, and undermining of patents, to happen in western markets. They used the AIDS issues in Africa as a mirage to achieve their aims. It is fortunate that the compromise deal struck last week, however flawed, should stop that happening.


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