Trans Pacific Partnership patent rules could threaten LGBT lives

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Countries that pride themselves on their human rights records, particularly for LGBT people, are endangering lives through patent rule changes in the Trans Pacific Partnership (TPP).

The TPP, one of the major multilateral trade deals that Canada is a part of, will introduce rules on patents for medication that critics say will reduce the availability of affordable generic brands. Such policies would restrict access to antiretroviral medication, used to treat HIV, which disproportionately affects LGBT people.

Trade-Related Aspects of Intellectual Property Rights (TRIPS) plus will raise prices for antiretrovirals by forcing governments to implement protectionist policies. These policies will block unpatented generic brands from reducing prices through competition while also blocking any chance at price regulation by government.

"If you claim to be concerned about the rights of LGBT people, you also have to be concerned about the right to health of the people you profess to be concerned about. Adopting more restrictive policies on generic medications undermines maternal health, but also undermines the health of population disproportionately affected by HIV, including gay men and men who have sex with men and transgender people," says Richard Elliott, executive director of the Canadian HIV/AIDS legal network.

TRIPS was a 1995 World Trade Organization (WTO) mandate that introduced copyright rules into the multilateral trading system for the first time. It attempted to align the varying copyright laws in the WTO states in a way that was more business and patent-holder friendly. It included provisions that would protect the patents of drug companies, but with safeguards for public health reasons.

TRIPS Plus describes additional WTO copyright policies in subsequent agreements that have attempted to tilt the TRIPS balance further towards business and away from public health. In a letter to Minister of International Trade, Ed Fast, Elliott urged Fast to push back against TRIPS plus, saying it will "undermine public health flexibilities included in the TRIPS agreement by adopting even more stringent strengthening intellectual property measures [such as by] extending patent terms or [through] more stringent, longer terms for data exclusivity."

"[TRIPS plus] will increase the price of medicine and therefore, fewer people will have access to medicines. Not having access to medicines is of course very bad for their health. Access to those medicines is essential for those people to be alive and to have healthy lives," says Judit Rius, manager for the Access Campaign at Doctors Without Borders.

TRIPS plus is a result of the influence the pharmaceutical industry has over trade policy, says Rius. 

"Before 1995 there was no international obligations to protect the patents of pharmaceutical products. No countries, including developing countries, would issue patents for pharmaceutical products, meaning generic competition was free," says Rius, "In 1995 that changed, when the TRIPS agreement was adopted by all WTO member states, they all agreed to grant patents for pharmaceutical products and that was a big success for the pharmaceutical industry.

Rius contiued: "The industry strongly lobbied to achieve that and it succeeded. It included flexibility mechanisms, [which, she says allows governments to violate the patent rules if it is necessary for public health] but the challenge with these mechanisms under TRIPS is that every time it was used, industry fought back. TRIPS Plus undermines this flexibility by making them more difficult to use, they are extending patent monopolies and it is making the implementation of TRIPS flexibility more [conditional and] difficult. It is a top public health priority to combat TRIPS Plus because Trips Plus increases the price of everything."

Doctors Without Borders says in a report that "The TPP represents the most far reaching attempt to date to impose aggressive TRIPS-plus IP standards that further tip the balance towards commercial interests and away from public health."

Rius says these provisions "introduce longer and stronger patent laws that will protect monopolies to protect profits combined with the fact that pharmaceuticals is included in the investment chapter," which allows the industry to sue government. Rius says this will increase medication costs by restricting the number of generic drugs available to compete.

The provisions then block price regulation, and it will "undermine the ability of governments to control and regulate the price of medicines... it would put additional stress on insurance plans, either public or private and it would really take aim at the regulatory bodies that try to control the price of medication, including in Canada where we have a board that tries to prevent excessive pricing," says Elliott.

The TPP then restricts the ability of public medicine providers to seek out cheaper alternatives. Elliott says the provisions would target the "sourcing of products outside the country and if there are policies put in place in other countries that might be the source of that product."

"So," Elliott continues, "if there are policies in Canada or the U.S. or another country that might be supplying generic drugs to Malaysia, that is another way in which the barrier can operate...You could also certainly see a pharmaceutical company going after Malaysia for example, saying 'well you've infringed sections X, Y and Z of the TPP by buying generic drugs from India so we need compensation.'"

Rius says these risks are greater for "poorer countries in the agreement like Malaysia or Peru. These are countries that have many challenges in accessing medicines for populations in need and they are part of the TPP so we think they are going to be very negatively affected by these provisions."

Restricting antiretrovirals in such a manner would be especially dangerous for the LGBT populations in these countries. For example WHO says that the "global community faces re-emerging and newly documented HIV epidemics in [men who have sex with men] worldwide," who require affordable antiretroviral drugs.

A similar report by the Malaysian AIDS council says "the HIV epidemic in Malaysia is concentrated in these key populations: sex workers, transgender people, injecting drug users [and] men who have sex with men." These populations rely on affordable access to health care through a public health system, which was made possible by policies that TRIPS plus would threaten.

This risk is likely to increase with future trade agreements and TRIPS plus provisions. Elliott says "the U.S. sees whatever it can negotiate TPP that ratchets up IP provisions further, they see that as a model, a new floor for subsequent trade agreements."

Mitchell Thompson is a second year journalism student at Ryerson University and a contributor at Disinfo.


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