On 1 March 2017, Brazil delivered the following statement during WTO TRIPS Council discussions on the Report of the United Nations High-Level Panel on Access to Medicines.
High Level Panel
As we all know, on 19 November 2015, United Nations Secretary General Ban Ki-moon announced the creation of the High-Level Panel on Innovation and Access to Health Technologies. Responding to this invitation, two chairs were designated to the panel, namely, Ms. Ruth Dreifuss, from Switzerland, and Festus Mogae, from Botswana.
The report of the UN Secretary-General’s High-Level Panel was produced after extensive consultations. It builds on previous work in the field of health and has undergone a transparent, broad consultation process. Its expert advisory group comprised representatives from Governments and international organizations, as well as industry and civil society, promoting a comprehensive evaluation of the various aspects involved in this debate.
The document contains assessments and recommendations covering various aspects of access to medicines, an issue that must be examined from multiple perspectives. The complex interplay between the protection of intellectual property and the imperative of ensuring access to life-saving medicines is not a new issue. In WTO, it dates back to at least 2001, when the Doha Declaration on TRIPS and Public Health was adopted by unanimous Decision; the Panel on the case “Canada – Pharmaceutical Patents”, circulated in 2000, also addressed the topic. More recently, the United Nations’ Sustainable Development Goals, unanimously adopted by all WTO Members’ heads of state, also included the right to health as one of its priority, under Goal number 3.
The High-Level Panel was established to consider additional ways of providing incentives for both innovation and access. It is not a matter here of seeking the full endorsement of the report itself, but of reviewing those individual recommendations related to the activities of the TRIPS Council. The inputs contained in the report could provide further guidance for the discussion by WTO Members.
The High Level Panel states that WTO Members should make full use of the policy space available in Article 27 of the TRIPS Agreement by adopting and applying rigorous definitions of invention and patentability that curtail the evergreening, thereby ensuring that only genuine innovations be awarded with patent rights.
The document further recommends the judicious use of the flexibilities contained in the TRIPS Agreement in order to ensure access to health technologies. In this regard, allow me to recall that exceptions and limitations to IP rights are intrinsic elements of the law of every Member State. They are vital for striking a balance between the rights granted and the interests of society at large.
The report also highlights that governments and private sector must refrain from explicit or implicit threats, tactics or strategies that undermine the right of WTO Members to use TRIPS flexibilities. Those types of strategies are against the spirit of the Doha Declaration and the TRIPS Agreement, in particular articles 7 and 8. Nevertheless, this is something that has been observed in past years when WTO Members, including Brazil, initiated the procedures relevant for issuing a compulsory license in order to address urgent health needs.
Another TRIPS-related issue addressed by the report is the recent entry into force of the Protocol of Amendment to the TRIPS Agreement. It demonstrates the need to have mechanisms that allow at the same time the adequate remuneration to intellectual property rights holders and the rights of Governments to adopt measures necessary to protect public health, in line with the provisions of Article 8 of the TRIPS Agreement.
Brazil has a strong commitment to the improvement of public health and has been very active on guaranteeing access to medicines. In 2001, we were an active participant in the negotiations that resulted in the Doha Ministerial Declaration on TRIPs and Public Health.
Brazil believed then, as it believes now, that respect for intellectual property and efforts to ensure quality public health and access to medicines for all are not mutually exclusive. In our view, a balanced intellectual property system, with built-in flexibilities as well as complementary policies and incentives, is the best way to promote innovation in all fields of technology, including the health sciences.
We encourage all WTO Members to join us in discussing the recommendations of the High Level Panel, as well as to share any other ideas that would bring us closer to our common goal of ensuring the highest health standards to the highest number of people.
Lastly, we would like to support continuing the discussion of the High Level Panel in the next session of the Council.”