On May 30, KEI hosted a brown bag lunch discussion on guidelines for the new U.S. trade policy recently released by the Congressional Ways and Means Committee and the Bush Administration. The event began with brief statements by panelists Fabiana Jorge of MFJ International, Rob Weissman of Essential Action, James Love of Knowledge Ecology International, and Stephanie Burgos of Oxfam, followed by a wider discussion.
Fabiana Jorge spoke first, describing the agreement as imperfect, but nonetheless a significant step forward. She described the slow, incremental progress of the U.S. on intellectual property issues in trade, from the 1990s when IP was non-negotiable, to the previous trade promotion authority (TPA) that includes language about respect for the Doha Declaration, to the present Ways and Means agreement. Fabiana suggested that the present agreement eliminates requirements for patent extensions, “linkage,” and makes some progress in reducing data exclusivity requirements. She said that discussions with members of the Ways and Means Committee have led her to believe that democrats intend to continue working to improve and expand upon the access to medicines provisions of the trade guidelines.
Rob Weissman agreed that the new agreement represents a significant improvement over prior FTA provisions on patent extensions and linkage. However, Rob stressed that relative to the pre-FTA status quo, the agreements will still diminish countries’ access to medicines. He suggested that PhRMA was exaggerating the impact of the new agreement while lobbying for weaker text when this new agreement is translated into the terms of FTAs. Looking at the specific terms of the agreement, Rob argued that Section III(c) on linkage needed to more explicitly state that remedies would be available not only for patent infringement, but also for patent challenges.
Stephanie Burgos noted that Oxfam opposes bilateral FTAs in general, and that there had been little to no improvement in the new agreement on two of the three areas of greatest concern to Oxfam: agriculture and investment. However, on the third area of concern, access to medicines, she described what she sees as a “huge step forward.” According to Stephanie, the agreement represents the fist acknowledgement in U.S. trade policy that different levels of intellectual property protection are appropriate in developing countries. Over the past five years, U.S. FTAs have added increasingly stronger TRIPS-plus intellectual property provisions, and the new agreement is significant for reversing this trend.
James Love concurred with other panelists that the new agreement indicates a marked improvement over previous FTA language on patent extensions and linkage. The correct standard for judging the agreement, he said, was not as a position of Democrats in the U.S. Congress but as an agreement with the Bush Administration and, by that standard, the agreement is impressive. Taking a broader view, Mr. Love called for a trade paradigm that focuses on R&D rather than on IPR. Instead of starting from debate on IPR, negotiations should begin with the question “what can we do to stimulate R&D?” In this context, countries would be given the right to fulfill trade obligations through alternative mechanisms of support for R&D – such as direct government funded R&D or incentive mechanims like prizes – that do not rely on high drug prices. James suggested that a platform of innovation and access (I + A), rather than an NGO campaign on only access, would provide for a more sustainable change in trade policy, and address legitmate interests in building a global framework to support medical innovation. This would also show that a pro-innovation policy can be considerably smarter, just and more powerful than a mindless search for ever higher standards for intellectual property rights, a policy that will not only harm developing countries, but also create problems for U.S. consumers and taxpayers.
The panel then opened for discussion. Brook Baker of Health GAP described the agreement as a minor step, and expressed concern over whether this “will be the first step for Democrats, or the last?” He expressed worries that over-praising the Democrats for this effort could lessen their vigor in pursuing further essential measures to protect access to medicines and in ensuring the full implementation of the new agreement. As a first step, the agreement holds some promise, but Mr. Baker argued that it is vital to make clear that the agreement is insufficient as a last step.
Fabiana Jorge disagreed with the characterization of the agreement as a minor step, and suggested that looking at the number of dollars saved would tell a different story. She also pointed out that Peru, Colombia, and Panama will immediately benefit from the new terms, and that the Central American nations involved in CAFTA will have a stronger legal basis for renegotiating their agreement, while Chile will be able to use the agreement to argue against their place on the 301 watch list.
Shawn Brown of GPHA commented that the generic industry does not regard the new agreement’s language on linkage to be as much of an improvement as some at the brown bag had suggested.
Matt Kavanaugh of Student Global AIDS Campaign then expressed concern that praising the new agreement would amount to an endorsement of the FTAs, which are a step backwards for access to medicines relative to the status quo. Buddhi Lokuge of Doctors Without Borders added that his organization opposes any TRIPS-plus provisions in FTAs, and that organizations should be cautious about declaring victory too soon. Stephanie responded that it was important to separate the issues: NGOs can make clear their opposition to the FTAs as a step backward for access to medicines while at the same time acknowledging that the new agreement will make the FTAs significantly less harmful than they could have been.
The last portion of the discussion was dominated by new paradigms for innovation. James Love asked the question, “How sustainable is a trade framework that relies on high prices for medications in a world where most people are poor?” He pointed out that an I+A approach, innovation plus access, would be the best way to frame future debate on the issue, as it implicitly links innovation to access, rather than contrasting the two. In terms of communicating with a broader audience, Love noted the benefits of wider use of the terms “access to medicine” and “access to knowledge,” which were easy to understand and positive messages. Jamie noted that a social movement needs accessible and unifying messages, including at times, slogans that can fit on a bumper sticker. Noting that while few people ever read the text of the Kyoto Treaty, everyone assumes it’s a good idea, because it is endorsed by an impressive group of people. The term “innovation plus access” is a simple and powerful idea, (i+a), and it's broader use will make it easier to generate political commitment even while specialists hammer out the details.
Brook Baker added that the full impact of TRIPS has yet to be felt, since India is now free to produce generic copies of all but the newest drugs. He suggested that the need for a new R&D paradigm would become acute as new drugs increasingly have patent protection in countries that are now leading producers of generic medicines for the poor. Rob Weissman also supported a new paradigm for supporting medical R&D, in part to address concerns about access in countries like Korea, which are regarded by Ways and Means as too developed to deserve the IPR flexibilities included in the new trade agreement.
See also:
14 May 2007, KEI statement on bipartisan trade agreement.
May 29, 2007, James Love, "The Politics of Intellectual Property Rights and Access to Medicines," HuffingtonPost.Com
May 14, 2007, Reaction from Public Health, AIDS organizations to Democratic Leadership-Bush Administration Announcement on Trade Policy, joint press release of HEALTH GAP • ESSENTIAL ACTION • STUDENT GLOBAL AIDS CAMPAIGN.