COUNCIL WEDNESDAY 19 (AND 21) SEPTEMBER 2001
drafts for ministerial declaration
Two drafts for a ministerial declaration, the overall objectives of the WTO’s intellectual property (TRIPS) agreement, compulsory licensing, parallel imports and other issues were discussed in the second TRIPS Council meeting on access to medicines, 19 September 2001.
IS AN UNOFFICIAL SUMMARY OF WHAT HAPPENED IN THE MEETING, PREPARED BY
THE WTO SECRETARIAT’S INFORMATION AND MEDIA RELATIONS DIVISION TO
HELP PUBLIC UNDERSTANDING. THE ONLY OFFICIAL RECORD IS IN THE MINUTES
OF THE MEETING.
MORE ON THIS SUBJECT:
> More on this meeting
> Fact sheet on TRIPS and pharmaceuticals
> Technical explanation on TRIPS and pharmaceuticals
> Høsbjør workshop on affordable medicines
> More on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
After that, the drafting moved into the General Council chairperson’s consultations on preparations for the Doha Ministerial Conference. The TRIPS Council chairperson, Ambassador Boniface Chidyausiku of Zimbabwe, is assisting in the consultations.
can be found here.
For a background explanation of some of the issues, including the provisions cited here, see the WTO fact sheet on TRIPS and pharmaceuticals.
For more information on the ministerial conference, see the Doha Ministerial webpages)
This second formal discussion followed the first meeting on 20 June 2001. It came under one item in the week’s agenda, but because of its importance, once again a full day was set aside for the discussion.Back to top
WTO members had agreed that this time the discussion would focus on: objectives and principles (TRIPS Articles 7 and 8), parallel imports (Art. 6) and compulsory licensing (Art. 31). The discussion broadened to cover other related issues because of two draft texts that members submitted for a ministerial declaration:
- A group of developing
countries: the African Group, Bangladesh, Barbados, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Haiti, Honduras, India, Indonesia, Jamaica, Pakistan, Paraguay, Philippines, Peru, Sri Lanka, Thailand and Venezuela. Now circulated unrestricted as
document IP/C/W/312 or
- A group of developed
countries: Australia, Canada, Japan, Switzerland and US. The draft circulated by this group only contained a preamble, with the rest of the text promised in the next few days. Now circulated unrestricted as
(The second portion was circulated informally as an incomplete draft on 21 September, signed by Canada, the Czech Republic, Japan, New Zealand, Switzerland and the US.)
- (Hong Kong China also circulated an informal draft on 21 September dealing with compulsory licensing foreign production, to overcome the problem of countries without domestic capacity — Hong Kong China took the view that TRIPS does not allow a government to compulsorily license foreign companies and that therefore governments of the two countries might have to cooperate)
These drafts were presented as clarifications of the flexibilities built into the TRIPS Agreement. The developing countries group’s text includes additional elements such as extending deadlines for applying TRIPS provisions, restraint in bringing related disputes to the WTO, etc.
The group of developing countries’ draft: In addition to a lengthy preamble, this 14-point draft proposes that “nothing in the TRIPS Agreement shall prevent Members from taking measures to protect public health”. Supporters argued that by signing TRIPS, members did not sign away their right to take public health measures.
Details of this draft include in brief: freedom to allow parallel imports, freedom to determine the grounds for issuing compulsory licences, ability to issue compulsory licences for production abroad, abbreviated marketing approval for generics, ability to use confidential information (such as test data) in the public interest, countries refraining from imposing or threatening to impose sanctions both within and beyond the WTO’s scope, restraint in bringing disputes about health measures to the WTO, exemption from “non-violation” cases for public health measures, extending transition periods for developing and least-developed countries, continuous monitoring in the TRIPS Council.
The group of developed countries’ draft: This draft preamble focuses more closely on tackling problems such as pandemics (HIV/AIDS, malaria, TB). It emphasizes that patents are important for creating new drugs and therefore for making them available to the sick; and affirms that it is appropriate for WTO members to use TRIPS’s flexibilities to deal with pandemics. It says an effective response to pandemics requires a mix of many different economic, social and health policies. The draft says countries’ rules for parallel imports should not allow cheap drugs supplied to poorer markets to leak into other markets because that would undermine differential pricing. And it stresses the need for technical assistance for poorer countries to meet their TRIPS obligations.
The informal draft submitted later by a similar group of developed countries contains proposals for operational provisions, i.e. provisions to follow the preamble. It covers interpreting TRIPS, grounds for compulsory licensing, national emergencies and compulsory licensing, and parallel imports.
The different approaches — emphasising public health objectives as a whole, versus focusing on pandemics — was one important difference expressed in the discussion.
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Points raised in the discussion
- The difficult question of how countries with limited manufacturing capabilities can take advantage of compulsory licensing. At the centre of the discussion is a provision in the TRIPS Agreement which says that products made under a compulsory licence must be supplied predominantly for the domestic market.
- Parallel imports. Countries’ laws differ on whether they allow parallel imports. The TRIPS Agreement does not spell out whether parallel imports are legal, simply stating that governments cannot bring legal disputes to the WTO on this issue — countries’ interpretations of this vary, and the discussion reflected this.