March events and letter to Bruce Lehman ### A full list of international events is available at www.tac.org.za. South African Events: Pretoria: 10:00am Church Square outside High Court Durban: 12:30 outside City Hall Cape Town: 12:30 outside US Consulate, Monte Carlo Building, Heerengracht Street TAC has written an open letter to Bruce Lehman, president of the International Intellectual Property Institute (IIPI). The letter contains a challenge as well as a response to the IIPI response to TAC's response to their document, Patent Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa. ### Open Letter and Challenge to Bruce Lehman, President of the IIPI Bruce Lehman President of the Intellectual Property Institute (IIPI) Washington D.C. 1 March 2001 Dear Mr Lehman Thank you for responding to the Treatment Action Campaign's response to the IIPI analysis of patents and access to HIV/AIDS medicines. Firstly, I endorse Zackie Achmat's letter and its sentiments. The crux of the point stressed in Achmat's letter to you is that your claim to aim to be unbiased is incredulous. Later in this letter I shall explain why this is the case. We would like to make a proposition to the IIPI. The Treatment Action Campaign will participate in the proposed IIPI conference if your organisation issues a statement along the following lines: * Unequivocally request that the Pharmaceutical Manufacturers Association (PMA) and the pharmaceutical companies that are litigating against the South African government drop their court action. * Urge the US government to drop its complaint against Brazil at the WTO. Attached is a TAC statement explaining why the US complaint is a threat to treatment access. If you are not prepared to do this, then the Treatment Action Campaign challenges your organisation to a public debate on these issues and those discussed in the IIPI document, Patent Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, that I reviewed. Why the IIPI Claim that it Aims to be Unbiased is Untenable ----------------------------------------------------------- Our contention is that the IIPI furthers US business interests, and in our particular area of contention, the pharmaceutical business. Whether or not this is a noble accomplishment is not the point. What matters is that the interests of US pharmaceutical companies are currently incompatible with those of the millions of people living with HIV in poor countries. The pharmaceutical companies are driven by profit and charge the highest prices for their medicines that they can get away with. The primary interest of people with HIV is that these medicines be as cheap as possible. The evidence against the claim of IIPI objectivity is overwhelming: 1. Your website indicates that your projects are sponsored by corporations. This is hardly an incentive for independent, unbiased thinking and action. Incidentally, is the IIPI prepared to make its list of funders available to the Treatment Action Campaign? 2. The IIPI document I reviewed failed to cast any aspersions on the Pharmaceutical industry. Indeed, blame was layed at every door, except the industry that most people working in treatment access hold most accountable. You admit that my analysis of your report raised some important issues. Unfortunately, I have to confess this was not due to original thinking on my part. These issues have been raised over and over again for the last few years by AIDS activists. Yet your report failed to consider them. 3. In an interview with the Washington Post (April 5, 1999), you state The ... project [involves setting up a patent-licensing program in Brazil]. Brazildid not even recognize the patentability of pharmaceuticals, much less biotechnological inventions, until a year ago. The whole pharmaceutical-biotech industry was simply taking what was invented here. But it was because Brazil did not have strict patent laws that it could successfully produce affordable HIV/AIDS medicines that have reduced mortality among HIV-positive people by 50%. Throughout the entire interview you assert the importance of intellectual property rights as if this is the key to entering the modern world (you talk about entering the 21st century). Well clearly this is a controversial stance, one that AIDS activists in South Africa are at odds with. South Africa had sophisticated patent laws long before the TRIPS agreement, but this country is racked with extreme poverty, and for the last few years it has got poorer. These same patent laws prevent 4 million people from getting access to essential medicines. So there are two blatant counter-examples to your theory that patent laws go hand-in-hand with development. But not only AIDS activists disagree with you. In the United States, there is a very popular backlash against intellectual property rights in the area of software development. While I find the views expressed by the Free Software Foundation and well-known software developers like Eric Raymond and Richard Stallman a little too radical for my orthodox tastes, I find their arguments that software copyrights are prohibitive and that much of the best software available is licensed under the GNU public license (and similar licenses) more plausible than your argument that this fundamental aspect of a market economy will help them [developing countries] in their own development.. Indeed, much of the software involved in getting this letter to you via email has been published under open source licenses. Without unpatented open source software, I probably would not be able to afford to communicate with you! Furthermore, Jonathan Berger, a law researcher with an interest in TRIPS sent me the following communication: 'The argument is often made by industry apologists that IPRs lead to economic development. There is no evidence to support this claim. If anything, the evidence points in the other direction. My understanding is that certain countries like Japan were able to develop because they were able to do what they do wellthat is to imitate. That was their comparative advantage. >From a trade perspective, argue Professors Trebilcock and Howse, it remains doubtful whether all countries should be required to maintain the same level of IP protection. What constitutes a valuable economic activity to any particular country in relation to innovation depends on circumstances and conditions particular to that country. Thus they argue that ' "[t]he level of intellectual property protection each country decides to afford will thus be rationally related to whether its comparative advantage resides more in innovation or imitation and adaptation of innovations made elsewhere, and the relative weight it gives to the interests of consumers (including its own producers who are consumers of inputs), imitators, and innovators." (Michael J. Trebilcock and Robert Howse, International Trade at 308) 'It has nothing to do with entering the modern worldit has all to do with where ones comparative advantage lies. In the case of the US, thats in innovationhence the US obsession with IPRs.' The point is that you are clearly on the very extreme side of a controversial debate and therefore cannot claim to be an independent mediator. 4. In the Washington Post interview mentioned above, you state, I was more than just the commissioner of patents and trademarks. Among other things, I was the lead negotiator for the United States in bringing abouttwo new treaties, the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty, that change international law to secure copyrights in the Internet environment. Clearly you have fought long and hard for the implementation of intellectual property laws. Once again, this hardly confers upon you the objectivity you claim. 5. You make an important point in your Washington Post interview which I concur with entirely: We have made enormous progress in getting most of the countries in the world to adopt patent-, trademark- and copyright laws. Most of these developing countries, when these negotiations were taking place in the 1980s and 1990s,did [this] reluctantly. They only did it because they had to do it in order to get the United States to give them access to our own markets[and] be part of the new international trade regime created by the World Trade Organization. That mean they are going to drag their feet. Theyre going to do less, rather than more. Taking this point to its logical conclusion, you have implied that developing countries faced US protectionism (and still do, incidentally) and trade sanctions unless they adopted strict intellectual property laws that did not suit them, laws that you fought for. Fred Abbott (in The TRIPS-Legality of Measures Taken to Address Public Health Crises: Responding to USTR-State-Industry Positions that Undermine the WTO, 2000) explains the job you have performed in much starker terms, There is little mystery to the political economy of the TRIPS Agreement as it emerged from intergovernmental negotiations that took place from the late 1970s to the early 1990s. This was a producer/technology-owner driven agreement. OECD industry groups were in substantial measure able to avoid subjecting the negotiations and agreement to close public policy analysis. Developing countries were encouraged to adopt the agreement by trade incentives, and were threatened with severe sanctions for failing to do so." Jonathan Berger explains "What is crucial in understanding the history leading up to the discussion of IPRs as a trade issue at the Uruguay round and the adoption of TRIPS is the key role played by the drug industry, in particular Pfizer. But for the industry, it is highly probable that TRIPS would not exist." 6. In the IIPI report I reviewed, you emphasise that TRIPS allows compulsory licensing. The stance in the report is that TRIPS does not need to be changed, because emergency situations are covered by compulsory licensing. Yet on the IIPI website, there is a distaste for compulsory licensing. It states: 'As a result of the Agreement on Trade-Related Aspects of Intellectual Property rights ("TRIPS Agreement") adopted as part of the Uruguay Round of Negotiations, all World Trade Organization ( WTO) member countries must begin to integrate developing and distributing pharmaceuticals into their patent systems by 2005 and 2006 in least developed countries. Fear of this change has caused a backlash among public health professionals in the developing world, leading recently to a heated debate in the World Health Organization over a code of conduct, which would conflict directly with the TRIPS agreement. 'This fear has caused a number of governmental organizations and policy makers in the developing world to look for mechanisms within TRIPS to allow for compulsory licensing and parallel importing of protected pharmaceutical agents. While such a mechanism would not address the cost of fine chemicals used in many drugs at issue, it could potentially affect the worldwide pricing of these products. Compulsory licensing could undermine the incentives at the heart of a very successful system of innovation.' Not only does the IIPI think that current patent law is not to blame for access to treatment problems, but there is also a strong hint in this quotation that it should be further strengthened. Incidentally, the IIPI report is wrong to imply that TRIPS only allows compulsory licenses for emergency situations. What happens in emergency situations is that voluntary licenses need not be requested first. 7. The purpose of patents is to recoup R&D costs and provide an incentive for innovation. R&D costs have long since been recovered on AZT, ddI, d4T, lamivudine and fluconazole. So clearly any additional profits on these medicines while they are under patent is supposed to be a reward for innovation. Yet these medicines were researched primarily by parties, often with public money, other than the current patent holders. Very little, if any, innovation has been conducted by the patent (or license) holders for these medicines. It is the patent holders not the innovators receiving most of the profits. Rather than being rewarded for innovation for the above-mentioned medicines, pharmaceutical companies are being rewarded for having established monopolies, a practice considered dubious by almost all along the political spectrum, except the extreme right. Despite being obvious and mentioned often in literature on pharmaceutical patents, this point is not mentioned in the IIPI report at all. I could list many more examples of your organisations vested interests coming to the fore on the IIPI website, but frankly the point has been made sufficiently well with the few examples I have provided. Yours faithfully, Nathan Geffen