[Ip-health] Globe & Mail "Comment" on Canada's Bill C-9 (31 March 2004)

[Richard Elliott]

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[ Picked text/plain from multipart/alternative ]
This item appears in today's Globe & Mail across Canada.  It has,
unfortunately, been somewhat edited and omits some important details about
the current state of affairs with Canada's proposed legislation to
implement the WTO decision of August 30, 2003.  And, obviously, the
headline and introductory note which have been assigned to the comment by
the newspaper editors is misleading and unfortunate:  (1) access to
treatment, including ARVs, is not a "cure" for HIV/AIDS, nor should it be
characterized as such, and (2) the legislation in question is not about
medicines for Africa alone, but for countries lacking sufficient
pharmaceutical manufacturing capacity, as per the Aug 30th decision at the =
WTO.

Globe & Mail, 31 March 2004
http://www.globeandmail.ca/servlet/ArticleNews/TPStory/LAC/20040331/COAIDS3=
1/TPComment/TopStories

The war for a cure has a catch
  The global fight against AIDS is flagging. Canada was a leader with Bill
C-9, but the legislation's flaws could hurt our efforts to get generic
drugs to Africa, says activist RICHARD ELLIOTT

By RICHARD ELLIOTT

The Prime Minister and the federal Liberals have proclaimed their concern
for developing countries and their intention to strengthen Canada's role
internationally. One of the first tests of this commitment will be whether
they water down their own legislation to get cheaper medicines to
developing countries in order to placate "big pharma."

The international effort to combat AIDS is running out of steam; three
years after the United Nations announced its worldwide offensive against
AIDS and more than a year after the Bush administration pledged $15-billion
(U.S.), only a fraction (about 300,000) of the millions of people who need
anti-retroviral drugs are actually getting them. Europe is also lagging in
its commitments.

More than 20 million people are already dead from the global AIDS pandemic,
more than 40 million people are currently infected with HIV, and the daily
toll is 14,000 new infections and 8,000 deaths. Merely reciting the grim
statistics, we risk obscuring the human tragedy and becoming paralyzed by
the magnitude of the horror.

Aside from the moral imperative to act in the face of suffering, the world
has recognized that HIV prevention efforts must, to be effective, be
complemented by treatment and care for those already infected. The hope of
treatment is a powerful counterbalance to "the other epidemic" of
HIV-related stigma and discrimination that fuels the viral tragedy.

Canada can show the way with a bill, C-9, which is currently before a
parliamentary committee. The Liberals say they want it passed before an
election is called. Canada is the first country to introduce legislation to
allow a supply of cheaper medicines. But it needs fixing if it is to do any
good.

Bill C-9 would amend patent laws so that Canadian generic drug
manufacturers could obtain the licences needed to make cheaper versions of
patented medicines and supply them to developing countries. The bill aims
to implement a World Trade Organization decision from last August relaxing
patent rules to allow this kind of initiative.

The initiative has been hailed by Stephen Lewis (the UN special envoy on
HIV/AIDS in Africa), by the UN Secretary-General and organizations such as
Unicef and the World Health Organization, by human-rights advocates here
and abroad, and even by rock star Bono. We commend the government for
having acted quickly.

But the devil is in the details. C-9's problems include: a limited list of
medicines covered by the bill; the refusal to let developing countries
import cheaper generic products from Canada unless they belong to the WTO;
and no ability for non-governmental organizations, which often play a key
role in delivering medicines in developing countries, to contract directly
with a Canadian generic producer to purchase cheaper supplies.

But the most serious flaw is the provision allowing a brand-name
pharmaceutical company holding the patent on a medicine to scoop any
contract a generic drug manufacturer has negotiated to supply that product
to a developing country at a lower price. This would block the generic
manufacturer from getting the licence needed to fulfill its contract.

This measure undermines any incentive for generic companies to negotiate
contracts at all, quickly removing any pressure that would bring down
prices. Furthermore, the bill gives the brand-name company this "right" to
intervene every two years, making it even less likely that generic
companies will incur the expense of negotiating contracts and gearing up
production.

The government, and the industry, have acknowledged this is a problem. So
the brand-name companies have instead lobbied for legal requirements that
they be notified about any negotiations under way with potential generic
suppliers, again with a view to shoring up their monopolies. But this
supposed "alternative" suffers from the same basic defects.

Some suggest these provisions are required under WTO rules. But this is
incorrect. All that is required under WTO rules is that a patent-holder get
a reasonable royalty in exchange for the product being licensed to someone
else, and the opportunity to agree to a voluntarily negotiated licence
before one is issued without their consent. This is a fair balance. Bill
C-9 should not require anything more.

Rather than creating unnecessary, additional privileges for brand-name
companies, why doesn't the government just proceed with a straightforward
and faithful implementation of the WTO decision from last fall? That
international consensus was achieved after years of divisive debate, during
which the brand-name companies and rich-country governments more than ably
represented their interests. It would be a step backward for Canada to
unilaterally reopen an agreement so painstakingly negotiated, in order to
create further "right" for one of the world's most profitable industries.

Bill C-9 can be easily fixed. All parties have signalled their willingness
to work with government to improve the bill, and they should be held to
that promise.

The Prime Minister has said that he supports Bill C-9. Indeed, he
highlighted it at the World Economic Forum in Davos, in the last Throne
Speech, and on the occasion of the recent visit to Ottawa of UN
Secretary-General Kofi Annan. Yesterday, Canada presented its initiative to
the UN Commission on Human Rights currently meeting in Geneva.

But the Prime Minister has also publicly acknowledged that there are
"shortcomings" with the bill as it stands. The government will embarrass
itself if it passes flawed legislation, setting a poor global precedent
after all the fanfare. But worse, it will betray those people in poor
countries it purports to assist.

Will the Prime Minister and the Liberals in Parliament fix the bill so that
it delivers on the promise of more affordable medicines for poor countries?
Will the opposition parties demonstrate the same commitment, putting the
health of poor people and countries ahead of further profits for
multinational, brand-name pharmaceutical companies? Or will Canada squander
this opportunity for global leadership, with poor people needing medicines
paying the ultimate price?

Richard Elliott is a lawyer with the Canadian HIV/AIDS Legal Network and a
founding member of the Global Treatment Access Group.








Richard Elliott
Director, Legal Research & Policy / Directeur, politiques et recherche
juridique
Canadian HIV/AIDS Legal Network / R=E9seau juridique canadien VIH/sida
890 Yonge Street, Suite 700, Toronto, Canada M4W 3P4
Tel : +1 (416) 595-1666                 Fax +1 (416) 595-0094
E-mail: relliott@aidslaw.ca     Web: www.aidslaw.ca

The Canadian HIV/AIDS Legal Network is a partner organisation of the
AIDS Law Project of South Africa, and a non-governmental organization in
Special Consultative Status with the Economic and Social Council of the
United Nations. //
Le R=E9seau juridique canadien VIH/sida est un organisme partenaire  du AID=
S
Law Project
de l'Afrique du Sud et ONG dot=E9 de statut consultatif sp=E9cial aupr=E8s =
du
Conseil =E9conomique
et social des Nations Unies.
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