[Ip-health] Tomris Turmen and Charles Clift in the WHO Bulletin: Public health, innovation and intellectual property rights: unfinished business

[Thiru Balasubramaniam]

http://www.who.int/bulletin/volumes/84/5/editorial10506html/en/index.html

Public health, innovation and intellectual property rights: unfinished
business

Tomris Turmen (a) & Charles Clift (b)

The context for this theme collection is the publication of the report
of the Commission on Intellectual Property Rights, Innovation and Public
Health. (1)

The report of the Commission =97 instigated by WHO=92s World Health Assembl=
y
in 2003 =97 was an attempt to gather all the stakeholders involved to
analyse the relationship between intellectual property rights,
innovation and public health, with a particular focus on the question of
funding and incentive mechanisms for the creation of new medicines,
vaccines and diagnostic tests, to tackle diseases disproportionately
affecting developing countries.

In reality, generating a common analysis in the face of the divergent
perspectives of stakeholders, and indeed of the Commission, presented a
challenge. As in many fields =97 not least in public health =97 the evidenc=
e
base is insufficient and contested. Even when the evidence is reasonably
clear, its significance, or the appropriate conclusions to be drawn from
it, may be interpreted very differently according to the viewpoint of
the observer. As a result the outcome was inevitably a compromise, a
compromise which some of the Commissioners felt obliged to supplement by
providing their own perspective in commentaries on the report.

Now the report is finally published, what will be the outcome? Will the
carefully worded text and recommendations, the product of tortuous
negotiation, be plucked out of context and caricatured in the hands of
one set of stakeholders or another? Will straw men be erected, and
knocked down effortlessly, to demonstrate the absurd and extreme
positions in the report? Will debate still rage as to how important, or
how unimportant, intellectual property rights are to the promotion of
innovation and access? Will evidence still be used to promote one set of
preconceived opinions or another?

The report will succeed to the extent it makes a difference where it
really matters =97 to the lives of poor and sick people in developing
countries. The test will not be the initial flurry of stereotypical
instant reaction. Rather the report, which is strong on detail and
analysis, should repay careful study and mature reflection. If it makes
a contribution it will be through incrementally changing the terms of
the debate, and by legitimizing and making explicit certain lines of
thought or policy which had been previously poorly articulated, or
dismissed as beyond the bounds of political possibility.

The report provides a resource for the public health community by
clarifying the impact of institutions, systems and policies outside the
health sector on intellectual property rights and innovation policies.

A key message of the report is that because the market demand for
diagnostics, vaccines and medicines needed to address health problems
mainly affecting developing countries is small and uncertain, the
incentive effect of intellectual property rights may be limited or
non-existent. Because intellectual property rights may not be an
effective incentive in this area, there is a need for other incentives
and financial mechanisms to be put in place and for collaborative
efforts between different stakeholders.

Without access to the products of innovation, there can be no public
health benefits. Defining the conditions by which products can be
accessed is therefore an important aspect of the report. There has been
significant progress in recent years, such as the launch of new
public=96private partnerships for product development, increased funding
by foundations and new institutions to promote access such as the Global
Fund to Fight AIDS, Malaria and TB.

This momentum for change is welcome but is insufficient. Much more needs
to be done. There remain unsettled and debated issues in intellectual
property e.g. the effectiveness of the recent amendment to TRIPS in
increasing access to medicines in countries without manufacturing
capacity, the impact of data exclusivity laws and the impact of
intellectual property provisions in bilateral trade agreements.

There is a need to ensure enhanced financing on a sustainable basis of
innovation and access and promote synergy between the different
partners. Ultimately it is a responsibility that governments must accept
if these objectives are to be achieved.

It is appropriate that WHO should now take the lead in promoting a more
sustainable and better-funded effort and addressing unresolved issues.
WHO should accordingly develop a global plan of action to secure
enhanced and sustainable funding for developing and making accessible
products to address diseases that disproportionately affect developing
countries.

As the former Secretariat of the Commission it is our hope that the
report will stimulate governments, and other stakeholders, to promote
innovation relevant to the health of poor people in developing
countries, and their access to diagnostics, vaccines and treatments.

It is now up to WHO and its Member States to take up the task of
transforming the report into a workable set of policies and actions that
will really make a difference.

REFERENCES:

    * Public health, innovation and intellectual property rights.
      Geneva: Commission on Intellectual Property Rights, Innovation and
      Public Health; 2006.

(a) World Health Organization, 1211 Geneva 27, Switzerland.
Correspondence to this author (email: turment@who.int)

(b) Commission on Intellectual Property Rights, Innovation and Public
Health, World Health Organization, Geneva, Switzerland.