An enormous health gap exists between those that live in developing countries versus those that live in developed countries. In this context, numerous articles have been published seeking to link intellectual property law to this public health disaster. Two general arguments have emerged. One side of the debate argues that the solution to this problem is for developing countries to provide strong IP laws so that developed countries feel secure transacting business in these countries. The hope is that such investment will lead to treatments or even cures for the diseases that affect people in developing countries. On the other side, several commentators contend that increased access to medicine is essential for developing countries. In essence, these commentators contend that large pharmaceutical companies have monopolies on the treatments that developing nations need. Further, because of these monopolies, companies charge prices that are out of reach of developing nations, creating a situation where profits are more important than human lives.
However, the facts here demonstrate unequivocally that this debate is a red herring that ignores the reality of public health in developing countries. Instead of focusing on actual solutions, in particular those solutions that have been proven to be most effective, such as prevention, the debate focuses on access to pharmaceuticals to mitigate these diseases after they are contracted. Further, it would appear that the focus on IP law has been driven by private and public actors from developed countries attempting to secure economic gains at the expense of millions of lives.
This
paper will address the public health nightmare in developing countries by first
looking at the state of public health in developing countries, particularly
African nations. The empirical evidence
available demonstrates that many of the problems with public health in Africa
I. The State of Public
Health
The 2009 WHO World
Health Statistics report included numerous comparisons that demonstrated
exactly why public health is a problem in developing countries. For instance, the maternal mortality rate in
Africa was 900 deaths per 100,000 births, while in Europe
In a decade, 37
million people, or more, will die in Africa
The focus on prevention and health was not a novel approach. The United Nations Millennium Development Goals focused on health and disease prevention.[5] The Millennium Goals addressed eight areas that foster development in least developed countries. These goals included ending poverty and hunger, universal education, gender equality, child health, maternal health, combating HIV/AIDS, environmental sustainability, and global partnerships.[6]
Further, goal six focused on combating HIV/AIDS, malaria, and TB.[7] A 2005 UN report indicated that there were three areas of concern regarding this goal: halt and reverse the spread of HIV/AIDS, halt and reverse the spread of malaria, and halt and reverse the spread of TB.[8] In Sub-Saharan Africa, the spread of HIV/AIDS is stable.[9] However, instances of malaria remain high and rates of TB infection have actually been increasing.[10]
A. HIV/AIDS
Three communicable
diseases kill 3.7million Africans every year.
However, these same three diseases only take 123,000 lives a year in Europe
B. Malaria
The mortality rate
from Malaria in Africa
100,000 people.[14] In comparison, the only country outside of Africa
The most effective and cheapest measures for fighting malaria are the use of DDT and other pesticides to control the mosquito population coupled with bed nets and medications to treat the disease once contracted.[16] During the middle of the twentieth century the World Health Organization attempted to eradicate malaria.[17] While Africa was not included in this effort, those countries that were, especially Latin America, saw rates of Malaria drop dramatically by simply using pesticides like DDT and existing medication to treat the disease.[18]
Despite
the evidence from Latin America that Malaria can be controlled, little progress
has been made in Africa
C. TB
In some sense, medical
treatment for TB in Africa
parts of the world. This is not to say that the healthcare system
in Africa was as successful as the healthcare systems in developed nations when
treating Malaria overall, but that when measures are implemented in Africa
those measures are as effective in Africa as they are in Europe, North America,
or Latin America. On average, TB
treatment was successful in African nations 75% of the time, which is identical
to the rate of success in North and South America and higher than the 70%
success rate found in Europe
II. The Role of Intellectual Property in the African Public Health Disaster
The debate
regarding IP law and the public health problems in Africa
a lack of access to medications
because of their cost. Pharmaceuticals
account for one-third of some developing countries health budgets.[24] Patents allow companies to charge prices well
above actual costs. Further, despite the
undisputed need for charity in Africa, studies have shown that some drug prices
in sub-Saharan Africa are actually higher than in France United States, Germany, Japan
Examples
of successes in Africa Zimbabwe, which was economically
isolated for about fifteen years due to its aggressive move away from colonial
oppression to independence, developed a domestic pharmaceutical market.[27]
However, aid agencies, such as UNICEF, detested the independent Zimbabwe Zimbabwe imposed tariffs to protect domestic production.[29] The World Bank, while allowing a 15% margin
for domestic pharmaceuticals, joined UNICEF in criticizing Zimbabwe.[30] Instead of supporting local infrastructure,
jobs, and manufacturing capacity, international organizations claimed Zimbabwe
was engaging in protectionism and advised that they should remove all tariffs
on pharmaceuticals.[31]
The result of removing these tariffs were clear; because much of the Zimbabwe pharmaceutical industry was local, removing tariffs would end not only domestic manufacturing of pharmaceuticals, but also cause a general deindustrialization of this sector in Zimbabwe.[32] The blind application of liberalized trade policies without regard to local conditions and development goals means that domestic production, let alone innovation of new drugs, was and will remain impractical, if not impossible.[33]
This was entirely contrary to the WHO stance on the issue, which emphasized self-sufficiency in the manufacture of essential medicines.[34] In fact, the World Bank’s official policy is that because the world generic drug market is extremely competitive developing countries who do not already have a share of the market should refrain from entering the generic market altogether, instead insisting on dependence on existing foreign markets in developed nations.[35]
This brief overview sums up the larger economic debate regarding access to health resources; economic interests insist on liberalized trade policies and dependence on existing firms versus healthcare professionals who instead advocate self sufficiency, increased infrastructure, and increased education. Clearly the economic argument favors strong IP law while the healthcare professionals favor domestic production of generic drugs and weaker IP laws so that developing nations can have access to new drugs faster.
On the other side of the debate, commentators insist that strong intellectual property rights will foster technology diffusion and innovation.[36] Empirical studies have been presented that support the general policy; strong IP rights have in fact fostered technology diffusion and innovation in some developing countries.[37] Neo-liberal trade policies view protectionism as a barrier to development.
In the context of pharmaceuticals, neo-liberal policy would force developing nations, which do not currently have a competitive pharmaceutical manufacturing sector, to import all drugs and refrain from imposing tariffs in order to allow domestic production to begin. The theory embraces liberal trade policies because evidence has shown that liberalized markets, generally, increase development on an aggregate level worldwide.
However, domestic
production of pharmaceuticals has several benefits, which the WHO
recognizes. First, domestic production
of pharmaceuticals means domestic control.
African nations face a variety of diseases that are not prevalent in the
developed world. Innovation in this area
is less likely because capitalistic incentives for innovation are limited. While demand may be high, the ability to pay
for these medicines is very weak.
Further, domestic production can focus on diseases that are prevalent in
Africa
III. Analysis
The one-sized fits all approach to trade liberalization has done great violence to
Africa and many other developing countries, particularly those with the weakest
infrastructure and economic base. First,
we must consider the empirical evidence regarding health in Africa. The data shows that three communicable
diseases, HIV/AIDS, Malaria, and TB, account for the largest public health
problems in Africa. Literally millions of people die from these
three diseases in Africa while people in
developed nations do not even contract Malaria or TB at any discernable
rate. Further, recent advancements in
HIV/AIDS treatments can prevent the transmission of the disease and extend life
indefinitely.
A. The Malaria Problem
Developed
nations faced the same problems with Malaria and TB seventy years ago. The problem with Malaria in Latin
America Panama Canal by
the French came to a halt due to Malaria and Yellow Fever.[38] These diseases, both of which are transmitted
by mosquitoes, decimated the foreign workers and engineers in the same fashion
Malaria decimate Africans on a daily basis today.[39] However,
the United States
No new drugs are
needed to address Malaria. Further, old
treatments are relatively effective in treating Malaria. Africa needs
only to follow the model previously used to eradicate Malaria in the rest of
the world: pesticides to control mosquitoes, bed nets to prevent transmission,
and existing medications, which are available in generic form, to treat the
disease once contracted. By limiting
transmission through prevention the disease can also be limited, if not
eradicated, in
B. The TB Problem
TB presents another interesting problem that can be solved by addressing public health infrastructure. Many diseases endemic in tropical regions have only a limited presence in the more temperate zones where developed countries are found. However, TB, unlike Malaria, is not one of these diseases found only in tropical areas. As a result, cure for TB has existed for a very long time. However, the problem is not a lack of a cure or treatment, but a lack of access to the drugs that can cure the disease.
While TB appears to be a case where IP law might play a role, we must remember that the drugs to cure TB are not subject to patent anymore. Generic equivalents are available, effective, and cheap. However, the term cheap is relative. When a person lives off of less than a dollar a day, a twenty-five dollar treatment becomes insurmountable. Further, there is a general lack of access to doctors. This means that many Africans contract the disease but forgo any medical treatment because there are no doctors or clinics nearby.
Finally, TB has
become a much bigger problem in Africa
D. The HIV/AIDS Problem
HIV/AIDS presents the strongest case for IP law playing an important role in the
African public health disaster. HIV/AIDS is a relatively new disease that has a 100% mortality rate. There is no cure and while progress on a vaccination continues to move forward with some success, the only way to stop the disease are anti-retroviral medications. In developed nations these drugs have extended the lives of HIV/AIDS patients considerably. In fact, because these medications are fairly new, it may be the case that these medications along with wellness interventions (nutrition and exercise) could extend life indefinitely for those infected with the disease.
However,
HIV/AIDS does have a profound effect on developed countries, meaning that companies
will research and develop treatments and vaccinations. There is no need for developing countries to
find a cure. Nor is it practical, as the
disease is particularly complicated and difficult to treat. This may be one case where dependence does make
considerably more sense than attempting to engage in domestic research and
development, although Africa
IV. Solutions
Only one of the
three major health problems in Africa
relationship to IP law,
HIV/AIDS. The solution to the Malaria
problem has a lot more to do with pesticides and bed nets than medication. In addition, effective medications for Malaria
exist in generic form. The same is true
with TB; a cure has existed for fifty years.
These two problems can be solved using tried and true methods. What Africa
However,
no such industrialization occurred in Africa Africa is very
poor. The TB problem bears this
out. A cure for the disease exists and
is available, but people are either too poor to buy the generic drug or simply
do not have access to a doctor or clinic that actually has the drug.
For Malaria and TB, IP law plays almost no role in the solution to these problems. The drugs and infrastructure needed to end these plagues exist and are no longer protected by patents. Here, the solution requires infrastructure to deliver existing solutions. This could be done easily but for the failure of the developed world to intervene in an effective way.
Rather
than focus on economic liberalization and IP law, the solution to the African
Malaria and TB problems is investment in public health infrastructure. In a triage situation, policy makers must
focus on the biggest problems that have solutions that are readily
available. Africa
Policy makers have
put the cart before the horse. Instead
of focusing on building an infrastructure, policy has focused on economic
liberalization, which has failed in Africa
Further, there
appears to be a distinct policy preference for trade liberalization, which is
advocated by the WTO and World Bank, instead of infrastructure development and
public health self-sufficiency, which is advocated by the WHO. Part of this may be explained by ignorance of
history and evidence based research. The
United State
Current
policy has failed to address the public health problems in Africa
HIV/AIDS presents another problem that IP law cannot solve. While it may very well be true that strong IP law creates economic development, the HIV/AIDS case is an outlier because the patent holders have agreed to provide treatments for this disease at cost. Infringing on these patents would only make economic sense to a developing nation if they could manufacture the drugs cheaper than the patent holder. Frankly, this simply is not possible. It would actually cost more to infringe under these circumstances then simply buying from the patent holder.
V. Conclusion
Legal, economic,
and public policy scholars continue to focus on trade liberalization as a one size fits all solution to
[1] World Health Organization, World Health Statistics 2009, Table 2 (WHO 2009)
[2] Id.
[3] Id.
[4] This number was derived by dividing the
population of Africa
[5] World Health Organization, World Health Statistics 2009, Health-Related Millennium Development Goals, http://www.who.int/whosis/whostat/EN_WHS09_Part1.pdf (last accessed Oct. 8, 2009).
[6] United Nations, Millenium Development Goals, http://www.un.org/millenniumgoals/bkgd.shtml (last accessed Oct. 8, 2009).
[7] United Nations Millennium Project, Investing in Development A Practical Plan to Achieve the Millennium Development Goals, http://www.unmillenniumproject.org/documents/overviewEngLowRes.pdf (last accessed Oct. 8, 2009).
[8] Id.
[9] Id.
[10] Id.
[11] Supra Note 5, pg. 22.
[12] Supra Note 5, pg. 22.
[13] Supra Note 5, pg. 25.
[14] Supra Note 5, pg. 26.
[15] Supra Note 5, pg. 26.
[16] Jeffery D. Sachs, The End of Poverty Economic Possibilities for Our Time 262 (Penguin Group 2005).
[17] Id.
[18] Id.
[19] Supra Note 5, pg. 27.
[20] Supra Note 5, pg. 28.
[21] Supra Note 5, pg. 29.
[22] The World Bank, Tracking Tuberculosis in Africa, http://go.worldbank.org/R75U5ESNM0 (March 21, 2008).
[23] Id.
[24] Meredeth Turshen, Reprivatizing Pharmaceuticals Supplies in Africa
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Walter G. Park and Douglas C. Lippoldt, “Technology
Transfer and the Economic Implications of the Strengthening of Intellectual
Property Rights in Developing Countries”, OECD
Trade policy Working Papers, No. 62, OECD Publishing (2008). Pg. 4.
[37] Park and Lippoldt, supra note 36, pg. 4.
[38] Supra, Note 20, pg. 197.
[39] Supra, Note 20, pg. 197.
[40] Supra, Note 20, pg. 197.
[41] Supra Note 20, pg. 197.
[42] Supra Note 20, pg. 200.