Gore/Mbeki Commission and compulsory licensing disputes with South Africa

[James Love <love@cptech.org>]

Notes from discussion regarding Gore/Mbeki Commission and compulsory
licensing disputes with South Africa.  

Today (April 2) I spoke with a person who works with Vice President Gore
on the Gore/Mbeki US/South Africa Binational Commission (BNC).  I was
told that on every occassion that Gore has met with Mbeki, the issue of
South Africa's intellectual property rules for pharmacueticals has been
raised, and that talking points on these issues are routinely prepared
for the Vice President on this issue.  

I was also told that USTR is the policy making organization on the issue
of South Africa's use of compulsory licensing of HIV/AIDS drugs and
other pharmaceutical IPR issues, and that within the Department of
State, Stuart E. Eizenstat, the Under Secretary of State for Economic,
Business and Agricultural Affairs, has also been very active.

Several persons have told me that Congress has also been active on this
issue, and that USTR plays a role in determining if South Africa can
obtain varius aid programs from the USA, based upon a USTR opinion that
South Africa is adequately protecting intellectual property on
pharmaceutical drugs.  I expressed my opinion that USTR is not competent
to make judgements in this area where there are important public health
issues.  Apparently Vice President Gore's office, the Department of
State and USTR are also using talking points to attack South Africa
Health Minister Zuma on the grounds that she has rejected a Glaxo/US
government offer to provide temporary AZT donations to some pregnant
mothers, an offer that reportedly may contains other conditions on South
Africa.  I asked if anyone in the US government with a public health
competence was involved in the decision to attack Dr. Zuma on this
issue, and if this was part of a public relations ploy to undermine her
positions on the broader IPR issues.

Apparently US trade officials are telling South Africa that any
legislation that specifically provides for compulsory licensing of
patents on public health grounds are a violation of the TRIPS, on the
grounds that Article 27.1 of the TRIPS says that patent rights should be
enjoyed "without discrimination as to . . the field of technology," and
that any special program for compulsory licensing on public health
grounds is discriminatory.  This is considered an absurd interpretation
of the TRIPS by most trade experts, including the staff of the WTO, WIPO
and the WHO, who point out the wide latitude of the TRIPS to provide for
compulsory licensing in Article 31 on virtually any public interest
grounds, subject of course to the Article 31 safeguards and requirements
for renumberation.  We intend to formally ask USTR for clarification on
this point, and to seek outside opinions on what we consider a bad faith
interprentation by the US (the same US that has several special
statuatory programs for compulsory licensing under the Bayh-Dole Act,
the Clean Air Act and for Nuclear energy).  

It goes without saying, but I was told that PhRMA and individual
companies have a well functioning system of working with Congress and
the heads of Administration agencies to advance their interests on this
issue, and they have expressed concerns on several occasions about the
compulsory licensing issue with South Africa.

Finally, I repeated our interest in having a real dialogue with the Vice
President on this issue, and described our frustration in finding anyone
in the Administration who would begin consultations with the public
health community on these IPR issues.  As the global health crisis on
HIV/AIDS gets ever worse, and the US policy role in opposing the
manufacture of inexpensive copies of HIV/AIDS drugs becomes better
known, I predicted there would be harsh judgment on those who actively
prevented developing nations from moving to make treatments more widely
available.  This still seems to be falling on deaf ears in the
Clinton/Gore administration.   
  
 Jamie Love


-- 
James Love, Director, Consumer Project on Technology
I can be reached at love@cptech.org, by telephone 202.387.8030,
by fax at 202.234.5176. CPT web page is http://www.cptech.org