Brussels/Geneva, 26/06/2001 (Agence Europe) -The 141 members of the World Trade Organisation agreed to continue the drawn-out work they began last week in the framework of the TRIPS Council in view of clarifying the multilateral rules on the trade aspects of intellectual property and to facilitate access to medicines. The Ministerial meeting in Doha, next November, will no doubt be part of the process, with a possible political declaration on the agenda, a sort of political caution to ensure that the governments may bring the existing treatments to the most impoverished populations, without having to face hordes of lawyers.
The 40 delegations, which spoke during this first discussion, wanted by the African members of the organisation, all recognised that need for patents as incentive for research and the development of new treatments and the potential of the TRIPS to form part of the solution and not the problem, represented by the health crisis to which are confronted the most poor of them. The WTO members also admitted that this agreement already leaves its signatories a margin for flexibility in case of health emergencies - and the HIV and AIDS epidemic is one of them, they said in unison - but that legal security to use it is needed.
It is roughly here that the agreement stops, at this stage. In fact the 141 have significant different interpretation of the TRIPS provisions, which support so-called flexibility and on the need for a revision or a simple clarification in this direction. It's on this latter working hypothesis that over seven hours of discussions took place on Wednesday, focusing on:
1. General principles and goals, while admitting as already indicated that protection procured to industry is necessary to innovation and that flexibility is already there to allow for treatment to reach the poorest populations in certain circumstances. But, like the document presented by some fifty developing countries at this session, several of them placed emphasis on the margin being clarified and, if proved to be inadequate, for members to consider amending the TRIPS. Its Articles 7 and 8 must be seen as a "green light" to governments to freely pursue the objectives of public health, they said. And they proposed that a political declaration be adopted in Doha for the Agreement no longer to be able to be invoked against governments using this flexibility through necessity. No voice rose up against this idea, but the content of the declaration remains to be negotiated. Part of the Assembly also made a point of recalling that the protection of patents was only one aspect of the problem, while considering that the others (public health infrastructures, price policy) must be broached by the organisations directly responsible and not in the framework of the TRIPS. More generally, the developing countries highlight the principles and goals of the Agreement and thus the health aspect of the problem, that others like the United States and Switzerland broached the issue from the legal angle. The Europeans and almost all the other members take a mid-way position or are in favour of the first approach, so this is the one that should prevail in the clarification exercise now beginning.
2. Compulsory licenses. On this particularly difficult point, it has long been question of the interpretation of the provision providing for products manufactured under compulsory license to be "essentially intended for the national market". Many of the participants wish to give their assurance that this wording will not prevent production for exports towards poor countries which, more often than not, cannot manufacture medicines for themselves and do not have any other possibility for importing them. For some LDC, it must also be possible to exploit compulsory licenses in order to develop local production when there is no production in the country by the patent holder. The Americans and the Swiss are categorically opposed to this. Consensus is emerging, on the other hand, on the applicability of the national emergency criteria (which triggers the issue of compulsory licenses) to fight against the AIDS epidemic in Sub-Saharan Africa and in other countries confronted by similar circumstances.
3. Parallel imports. It is clear, say developing countries, that TRIPS authorises parallel imports (Art.6) although it is still necessary to reduce price levels to a maximum.
The Council's main task over coming months will be to seek common ground on the flexibility procured by TRIPS, in order to ensure that all members have the necessary feeling of legal safety and security allowing them to fully use these provisions.