Samantha Nasrallah is a first year law student at Osgoode Hall and is taking the Legal Values: Challenges in Intellectual Property course.
Roya Ghafele authored a report titled “Perceptions of IP: A review” in August 2008 (report available at http://www.ip-institute.org.uk/pub.html). A summary of that report was posted on IPilogue last December. Ghafele’s report addresses what she calls a discourse on Intellectual Property and its relevance to the globe. She aligns herself with the position that her intention is to grasp underlying themes, assumptions and connotations associated with the term “IP”, so as to identify paths leading to a more comprehensive understanding of IP and the opportunities it provides to market participants, consumers, policy makers and citizens worldwide.
She breaks up her analysis with a focus on four main themes: IP and Globalization, IP and Health, IP and Counterfeit/Piracy, and Discourse on various forms of IP. For the purposes of this post, I will be focusing primarily on the discourse she outlines concerning IP and Health.
The main criticisms coming from anti-globalization activists is that the “IP system helps multinational companies to build up monopolies to the detriment of the poor,” while leaving smaller companies left to survive off the scraps, and at the same time developing countries without access to much needed medical interventions.
Much of this criticism is aimed at the TRIPs agreement where the same debates are widely expressed. It is without a doubt that large multinational corporations reap the benefits of such an agreement, and that capitalistic attitudes are the ones our policy makers seem to satisfy. But the concern for the many NGOs and human rights activists and others is that there are far too many left behind, and some even left dead.
Let us take up my brief mention of the pharmaceutical patents a little further and explore the reality that these developing countries face that the TRIPs Agreement has so-called failed to manage. The widespread global criticism relative to pharmaceutical patents is that it leaves the holders happily making their profits and those in need without the resources to access the medicine that would help in containing the global pandemics that many of our developing countries face. There is no question that these situations need some attention. So what the NGOs are calling for, according to Ghafele’s report, is implementation of compulsory licensing.
Luckily, but not mentioned in the report, the TRIPs agreement allows for this under Article 2(1) which states that all members of this agreement must comply with the provisions set out in Articles 1 through 12, and 19, of the Paris Convention (1967). Article 5(A)(2) of the Paris Convention states:
Each country of the Union shall have the right to take legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example, failure to work. Paris Convention for the Protection of Industrial Property
So here they have it. But my issue lies in the fact that Ghafele neglected to take this discourse further. She articulated that the purpose of her argument was to reveal the current discourse surrounding IP systems, and to lead to a more comprehensive understanding. And so she makes the argument that there is an outcry for compulsory licensing and yet here it is, available to them.
Finally, after further research what I did find was that the problem lies within the developing countries’ inability to afford the technology it takes to manufacture these drugs. And to deepen the wound, TRIPs puts local requirements onto manufacturers that does not allow the medicines to be manufactured overseas and then shipped to the developing countries in need. Paris Convention for the Protection of Industrial Property
This concern was then taken up in the Doha Declaration which was used to amend provisions of the TRIPs Agreement allowing governments to issue compulsory licenses in extreme emergency situations and also allow the overseas manufacture of drugs without challenge (See paras 4-6 under subsection entitled Declaration on the TRIPs Agreement and public health). WTO | Ministerial conferences – Doha 4th Ministerial – TRIPS declaration
My point here is that Ghafele claims that she has not injected her own position in the documentation of her findings. But it is without a doubt that she has not taken the discourse far enough to make it neither relevant, nor current. Upon taking up this report for the first time, I remember it emitting such a sense of aggression and negativity, and now I can only realize these feelings must be in line with Ghafele’s own views. This for me is not usually problematic, but I do feel that when you are telling a story, you must tell the whole story in order to capture its true relevance. Also, if you are going to work from within your own perspective, then take ownership for it and don’t operate under a guise of having an unbiased opinion.