People die from diseases like AIDS, TB, etc because life saving essential medicines are either too expensive, or not available because they are not seen as financially viable.
When the Supreme Court of India rejected Novartis’ patent claim on a cancer treatment drug, on April 1, it raised hopes across the world that life saving drugs can be made more affordable.
But the battle for making vital medicines more accessible has only intensified and is a key bone of contention in the Free Trade Agreement (FTA) between India and the European Union which is now nearing finalisation.
On April 9 activists from across Europe gathered outside the European Parliament in Brussels to demand the European Community withdraw provisions in the FTA that will harm people’s access to medicines in India and across the developing world.
The protestors, some of them dressed as zombies, wearing ripped and bloody suits representing European trade negotiators, represented various organisations including Oxfam, Medecins Sans Frontières (MSF), the Stop AIDS Campaign, Health Action International (HAI) Europe and Act-Up Paris. They were reportedly joined by some members of the European Parliament.
This action was triggered by leaked texts which indicated that in closed-door negotiations the EC is “aggressively pushing for stronger industry control at the expense of public health, threatening millions of lives” according to a press statement by Medecins Sans Frontieres (MSF).
This organisation, also known as Doctors Without Borders, was awarded the Nobel Peace Prize in 1999. Soon after that it launched the Access Campaign which aims to improve both access to and the development of life-saving medicines, diagnostic tests and vaccines for patients across the world.
India is critical to their endeavor because 80 per cent of medicines used to treat HIV in the developing world are produced here. The MSF statement quotes Leïla Bodeux of Oxfam as saying that - “In the wake of several recent pro-public health decisions in India, the EU is now doubly keen to shut down India as the ‘pharmacy to the developing world’ and ensure the profits of its pharmaceutical companies are kept intact.” If the EU succeeds in retaining the harmful provisions in the FTA, she added, “it would cut off this lifeline supply for millions of people.”
Efforts of MSF, in coordination with various global NGOs, have already succeeded in removing some harmful provisions of the FTA, such as patent term extensions. Concerns now centre around details of intellectual property (IP) enforcement and investment provisions.
According to the MSF statement, they are opposed to enforcement measures which prevent India from exporting generic medicines on the mere allegation that a patent or trademark is being infringed. The investment part of the FTA which is being opposed pertains to companies being allowed to sue the Indian government when it regulates health in the public interest -
either by overriding a drug patent to increase access to a medicine or controling prices of vital drugs.
Above all, MSF is worried that: “These disputes would be handled outside of domestic courts in secret settlement panels, with large sums in damages at stake. As a result of investment provisions in FTAs between other countries, several such disputes have already been filed by corporations against governments, in order to force a reversal of public health policies (e.g. Phillip Morris vs. Uruguay). ”
Activist groups within India are at the forefront of this global struggle. In a letter to Prime Minister Manmohan Singh they have raised these and other concerns . They point out that the TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement has already compelled India to accept a product patent regime - instead of a process patent system which is more conducive to open innovation. The TRIPS regime, says the letter, has already begun to curtail the country's ability to produce low-cost generic versions of newer HIV, hepatitis and cancer medicines.
In addition the health activists are concerned about provisions for Supplementary Protection Certificates which allow the terms of patents to be extended. This, says the letter to the PM, “… is a straight-forward way to extend a pharmaceutical company's monopoly by extending the life patent on a medicine beyond 20 years. The extra years added to the patent are extra years in which the patent holder can maintain a monopoly position and continue to charge artificially high prices for the drug, free from generic competition.”
Signatories to the letter include, among others - Delhi Network of Positive People, LOCOST (Low Cost Standard Therapeutics), India Medico Friends Circle, India Drug Action Forum - Karnataka.
On April 12 the EU issued a statement saying that it will not seek to include data exclusivity provisions or patent extension provisions in the proposed free trade agreement now on the negotiating table.
These assurances are not likely to allay fears of health activists - largely because the process of trade negotiations is more opaque than transparent.
As this complex battle intensifies on the global stage it might be good to keep in mind these words from the Nobel Prize acceptance speech of James Orbinski, President of the MSF’s International Council, “Some of the reasons that people die from diseases like AIDS, TB, sleeping sickness and other tropical diseases is that life saving essential medicines are either too expensive, are not available because they are not seen as financially viable, or because there is virtually no new research and development for priority tropical diseases. This market failure is our next challenge. The challenge however, is not ours alone. It is also for governments, International Government Institutions, the Pharmaceutical Industry and other NGOs to confront this injustice. What we as a civil society movement demand is change, not charity."
Photograph: Sukree Sukplang/Reuters