The international pharmaceutical industry faces a challenging situation when it comes to making drugs readily available for the people who need them most. The goals of these health-based companies can certainly be altruistic, but there is little incentive for most people to devote their best efforts to developing a product that will not yield a significant monetary return. Being part of a multi-billion dollar industry, pharmaceutical companies clearly want to protect their own interests and incentives for the future. Therefore, it seems obvious that new drugs and medical products need to be patented and protected like all other products on the free market.
The developing world sees things differently, and understandably so. The general population of many developing countries find it difficult if not impossible to purchase most modern technologies on the global market. Patent laws tend to keep new products at relatively high prices until the patent term expires and generic competition begins. However, the patent term typically lasts about 20 years, and in the case of pharmaceuticals, waiting may not be an option. Many developing nations, most notably India, Brazil, and sub-Saharan Africa have decided that pharmaceuticals are much too important to worry about patent laws, and have been producing and distributing their own copies of the medications and treatments. This concept of “essential drugs” for a particular nation is largely accepted and endorsed by the international health community, especially since most current treatments already exist off-patent. The major problem arises when a new drug comes on the market that is immediately deemed to be essential.
The main argument from the developing world, along with the NGO’s and other multi-lateral organizations that support them, is that patents make new essential medications too expensive to be generally affordable, and thus threaten the survival of all in need of these treatments. Many governments have decided that no matter what trade laws exist, they are not going to deny their people access to much-needed care. Even if the drugs are not blatantly copied, several nations have adopted the concept of “compulsory licensing” provisions where governments can legally authorize their production even with the objections of the patent holder, although they have rarely been granted. This puts pharmaceutical companies in a difficult position, because on the one hand, they exist to promote public health, but on the other hand, they view this violation as piracy of their intellectual property.
Several trade agreements have arisen in the past two decades to try to rectify this problem, such as the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement of 1995, and the follow-up Doha Declaration of 2001. The TRIPS agreement requires all nations of the World Trade Organization to uphold standards of intellectual property protection not only in terms of drugs, but in all technologies. While the agreement was accepted by the developing world, it still met with much resistance. The Doha Declaration then affirmed that TRIPS should be interpreted in a way that always protects the public good, and also granted that disease epidemics can in fact constitute a national emergency, and thus allowed for the usage of contemporary licensing under the right circumstances. Another follow-up agreement in 2003 reached a further compromise in which it was re-affirmed that the past declarations would always be used for the public good and never to push a commercial or industrial agenda.
The question facing pharmaceutical companies still remains both a legal and moral dilemma. The developing world still faces great difficulty in gaining access to proper treatments and medical care, and it sometimes seems unjust that the cost of doing business can jeopardize the survival of an entire group of people. However, if the pharmaceutical industry becomes too charitable, it will become far less profitable, and thus will lose much of its ability to produce the drugs and treatments in question. A balance is essential, and both service to the people and protection of intellectual and trade rights must be upheld in order for each to prosper.
TRIPS And The Global Pharmaceutical Market by John H. Barton. Health Affairs Vol 23 #3, May/June 2004
The Global Drug Gap by Michael R. Reich. Science Magazine Vol 287, March 17, 2000