Drugs are expensive. Developing countries need drugs not only to address raging HIV/AIDS epidemics, but also to fight epidemics of malaria, tuberculosis, and various childhood diseases. But, forced by international intellectual property rights agreements to allow major commercial pharmaceutical corporations exclusive production rights, the cost of those drugs can make them unavailable.
Intellectual property and patent law is governed by the Trade Related Intellectual Property Rights Agreement, signed by World Trade Organization member nations in 1994. TRIPS requires member nations to grant 20 years of exclusive production rights to the patent-holding pharmaceutical corporations, preventing generic competitors from producing cheaper alternatives. This is primarily intended to protect the pharmaceutical corporations that incur enormous costs in the research and development of new drugs from direct competition with generic producers that contribute no such research into new drugs. But for poor nations facing multiple public health crises, the cost of commercial pharmaceuticals can make decent health care inaccessible to the people who need it most desperately.
Nations as well as corporations are supposed to be protected under the TRIPS agreement, chiefly by two articles concerning a government's responsibility to public health. Article 8 allows governments to override the TRIPS requirements in the interest of public health, and Article 31 allows government override in the case of a public health crisis. In both cases, nations are permitted to create generic markets by issuing \compulsory licenses."" Issuing these licenses can significantly lower drug costs by creating competition and because actual production costs for drugs are generally low.
For many developing governments, this seems the most obvious solution to the exorbitant healthcare costs that prevent huge portions of their populations from living healthily'or continuing to live at all. Generic drugs would bring the cost of treatment closer to the actual cost of production, allowing more people to be treated. Arguably, most developing countries exist in a constant public health crisis meeting the standard set by Article 31 of the TRIPS agreement'in South Africa, for example, where one person in five is HIV positive.
But a variety of pressures on the governments of these countries have prevented them from claiming the protections granted to them under the TRIPS agreement even while the pharmaceutical corporations have engineered their own continued profit. In addition, developing nations face supposedly charitable international initiatives with serious strings attached. The Accelerated Access Initiative, co-sponsored by UNAIDS and five major pharmaceutical companies, was originally conceived to provide low-cost drugs to developing countries while simultaneously side-stepping the patent debate.
The idea was for these companies to sign agreements with poor governments in which the company agreed to provide select and limited low-cost drugs and the government agreed to essentially give up its rights under TRIPS to override patents and make generic alternatives available. Pharmaceutical companies were supposed to provide discounts on drugs without generic competitors.
Not only has the Accelerating Access initiative not provided the plentitude of cheap medicine a generic market would nearly guarantee, it has almost totally failed to alleviate inaccessibility while preventing governments from exploring generic options. According to ACT UP Paris, in the two-year lifespan of the program, ""Accelerating Access has only resulted in getting an additional 0.1 percent of people with AIDS on treatment.""
Meanwhile, countries like Brazil that have their own government initiatives to provide drugs to AIDS patients by generic alternatives are accused of violating international trade principles.
The choice that faces most developing countries seems to be between the ineffective Accelerating Access initiative and the risk of alienation from governments of developed countries that value intellectual property rights. Choosing to sign agreements with pharmaceutical companies for drugs necessary to public health often means giving up the right to pursue alternatives, leaving developing nations at the mercy of the drug companies. Negotiations under these circumstances are inequitable, and the failure of the initiative illustrates that it is usually the developing countries that lose out. The prices have gone down, some even to cost. But the lack of transparency and inequality doom the overall initiative to failure.
If governments value the quality of human life over the profit margin of a distant corporation, they must extract themselves from deals with those corporations entered into on unequal terms. Direct government initiative in the form of compulsory licenses for generic production and price controls, like South Africa's 1997 Medicines Act, is the only way to guarantee increased access. Leaving the burden of increasing access largely in the hands of profit-making corporations is both illogical and unrealistic.
