Balance between TRIPs and public health

Thèmes abordés

TRIPS - health

Résumé du document

Malaria, tuberculosis, AIDS and other serious diseases affect millions of people around the world. However, for well-known reasons, some parts of the globe are more prone to them. The figures speak for themselves. Every thirty seconds, an African child dies of malaria and thirty million out of the forty million people infected by AIDS are located in Africa . Each day, 5500 people die of AIDS because they had no access to any preventive measures and treatment of this illness . The combat against those diseases constitutes a global concern which is defined as the 6th millennium goal of the United Nations Millennium Development Goals.

On the other hand stand the pharmaceutical firms which detain the drug solution but intend to protect their intellectual property rights. Their position is also legitimate. The tremendous investments by the pharmaceutical industry devoted to research and development are not to be disregarded. Here again, figures are expressive. In 2009, their total amount was estimated between 40 and 45 billion dollars per year . The most striking is the fact that this figure only comprises the amount of investments done by the ten most important pharmaceutical corporations. Private funds constitute the essential part of those risky investments. This number increases each year but the number of new molecules stays stable. This illustrates the importance of patents for those essential corporations. According to research and development directors of pharmaceutical firms, if patents would not have existed, they would have renounced investments for innovations 4 times more than their counterparts in other industries . Patents guarantee a monopoly of exploitation and a certain financial security necessary to encourage the taking of risks. Profits resulting from innovations serve the investment on molecules of tomorrow .

Extraits

[...] Article 31.b TRIPs. Article 31.f TRIPs. J.-H Bradol, OMC et médicaments : le faux succès Le Monde Septembre 2003. Declaration of Doha, November Par (WT/MIN(01)/DEC/1) Last visited March Ibid. Par Olivier Blin, la décision à l'OMC sur l'accès aux médicaments essentiels : un accord pour rien Revue générale de droit médical ; Valérie Varnerot, La transnationalisation du droit de brevet de médicaments : l'approche ADPIC-moins à rebrousse-poil Journal du Droit International p.75-114. Par of the Decision of the General Council of 30 August 2003, (WT/L/540 and Corr.1), Last visited April 1st List of essential medicines Last visited April of those medicines are generics : C.Jourdain- Fortier “Santé et commerce international, Contribution à l'étude des valeurs non marchandes par le droit du commerce international, Litec, Paris p.539. [...]

[...] However, it contains some provisions which could be used for the protection of public health. Article 7 which concerns the objectives of the TRIPs affirms that: protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare [ Article 8 which concerns the principles of the TRIPs stipulates that: “Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement”. [...]

[...] In the report of the Joint United Nations Program on HIV/AIDS of 2008, it was mentioned that only of the population infected by HIV/AIDS have an access to a treatment. [7]Ibid p.75.Translated from French. C. Chéron and E. Fouassier, by taking figures related to medicaments to combat AIDS (antiviral), show that prices considerably decrease when generics are produced. Universal Declaration of Human Rights, article 27 D. Carreau, P. Juillard, Droit International Economique Précis Dalloz, 3ème édition, p.342-346 ; O. Blin la décision à l'OMC sur l'accès aux médicaments essentiels : un accord pour rien Revue générale de droit médical J.-B. [...]

[...] It has to mention the granting of the compulsory licensing with its conditions, the name/address/titular of the license, the product concerned, the quantity of products which had to be strictly adequate with the needs of the importing country, the duration of the granted license, the importing State concerned and finally, the website where the titular of the license advertised furnished quantities and the distinctive features of the product. The previously-stated requirements are designed to render the system transparent. Some safeguards were established. The idea is to ensure that the products imported under the system set out in this Decision are used for the public health purposes[29]”. It is necessary to protect this system against industrial or commercial finality and against counterfeiting. [...]

[...] The system establishes an element which was not expressly authorized or prohibited under the TRIPs agreement. By virtue of this decision, it is possible under certain conditions to import / export products resulting from the “compulsory licensing” system. The agreement only indicates such use shall be authorized predominantly for the supply of the domestic market of the Member authorizing such use[23]”. The decision defines eligible importing Member: least-developed country Member, and any other Member that has made a notification to the Council for TRIPS of its intention to use the system as an importer, it being understood that a Member may notify at any time that it will use the system in whole or in a limited way, for example only in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use”[24]. [...]