African trade bill

[James Love <love@cptech.org>]

Yesterday the US Senate adopted compromise language limiting US
government trade pressures on access to medicines in sub-Saharan African
countries.  However, the compromise language appears to have been so
one-sided that it gutted the amendement of any legal meaning. 
Apparently Senator Feinstein negotiated compromise, without consulting
with the amendment's supporters.  I'm still a little confused on the
exactly language that was  adopted.  At one point, the language was
changed as follows:

Note, [in brackets] indicates deletion, and CAPS indicates insertions:


<-------from paragraph c---------------------------->

Funds appropriated . . . may not be obligated or
expended to seek, through negotiation of otherwise, the
revocation or revision of any intellectual property or
competition law or policy of ANY [beneficiary
developing country or] beneficiary sub-Saharan country
THAT HAS NO DOMESTIC INDUSTRY CAPABLE OF ECONOMICALLY
COMPETING WITH U.S. INDUSTRIES if the law or policy is
designed to promote access to pharmaceuticals or other
medical technologies and the law or policy, as the case
may be, IS FULLY CONSISTENT WITH ADEQUATE AND EFFECTIVE
INTELLECTUAL PROPERTY PROTECTION STANDARDS, INCLUDING
THOSE SPECIFICALLY ADDRESSED BY [complies with] the
Agreement on Trade-Related Aspects of Intellectual
Property Rights referred to in section 101(d)(15) of
the Uruguay Round Agreements Act AND ACTIONABLE
THOROUGH DISPUTE SETTLEMENT PROCEEDINGS OF THE WORLD
TRADE ORGANIZATION.

<--------end paragraph c------------------------->

There may have been further changes as well, such as limiting this to
HIV/AIDS drugs only.  Plus there was some related text regarding HIV
treatment infrastructure and the needs for IP protection that were
designed to modify this further.  

In its original form, the amendment would have used TRIPS as a standard,
and prevented US trade officials from going beyond TRIPS.  The changes
negotiated by Feinstein changed this, by eliminating the "complies with"
language, and authorizing TRIPS plus pressures.  Plus, the last
insertion takes parallel imports completely out of the amendment,
because under Article 6 of the TRIPS, the WTO cannot address exhaustion
of rights issues in the dispute settle proceedings.  Also, whatever is
left doesn't even apply if the country has a domestic industry, so it
seems to exclude South Africa and Zimbabwe, for example.

The only benefit of this language is that for once the US Congress is on
record that there should be some limits to US government advocacy on
behalf of the drug companies, and finally there is a recognition that
access to medicines is a serious issue. 

I'll post the actual language that passed when I get it. 

 Jamie

-- 
James Love / Director, Consumer Project on Technology
http://www.cptech.org / love@cptech.org
P.O. Box 19367, Washington, DC 20036
voice 202.387.8030 / fax 202.234.5176