World Intellectual Property Day: Are women in Uganda being priced out of life-saving medicine due to Intellectual Property Rights?

On this 26th day of April 2018, Uganda joins the rest of the world in commemorating World Intellectual Property day under the theme “Powering Change: Women in Innovation and Creativity” However, as we shine the light on women in innovation, the fundamental question is: are women who are the most affected group with the HIV scourge in Uganda and other developing countries benefiting from medical inventions that they so need?

 

Intellectual Property (IP) refers to creations of the mind, which include inventions, literary and artistic works, symbols, names, images, and designs used in trade. Intellectual Property creates rights that give entitlement to owners of IP in form of patents, copy rights and trademarks among others. These rights give the inventor the legal protection from competition so they can use or benefit from their creation exclusively for a specified period of time.

Although IP Rights are intended to promote innovation and creativity, they act as barriers for access to essential medicines as they create monopolies for pharmaceutical manufacturers who charge exorbitant prices, thereby making these medicines out of reach for many especially in least developed countries.

The sad reality is; over one quarter of the world’s population could be left at the mercy of their ailment, unable to access medicine that could change the course of their lives and this is daunting for anyone that believes in social justice. It is not surprising that IP is at the center of global debates with advocates of human rights arguing that strict enforcement of Intellectual Property Rights (IPR) affects the realization of the right to health which is recognized in international instruments and national constitutions of various countries around the world including Uganda. The International Covenant of the Economic Cultural and Social Rights (ICESCR) for instance provides that “everyone has a right to enjoyment of the highest attainable standards of physical and mental health[1]” defined to include access to essential medicines.

According to the health data of 2016 compiled by the Institute for Health Metrics and Evaluation[2], HIV was ranked number one cause for premature death in Uganda. Moreover women, in particular, are disproportionately affected in comparison to men. The health data indicates that in 2016 the HIV prevalence rates of women living with HIV was 7.6% as compared to men 4.7%. Although the first line drugs have become more affordable in the recent times, the increasing drug-resistance still presents a challenge in developing countries since patients must be moved to the second line medicines and newer formulas which are likely still protected by patents. Medicines under patent protection are evidently expensive since the inventors must make a return on the high costs of research and development.

The solution however lies in the effective utilization of provisions incorporated in the WTO- Trade Related Aspects of Intellectual Property Agreement now commonly referred to as the TRIPS flexibilities. Some key flexibilities include compulsory licensing which allows third parties to use an invention without the holders’ consent and parallel importation which allows procurement of drugs at a lower price from another country without consent of a patent holder of a patented product that is on the market of the exporting country. Another significant flexibility is the exemption of least developed countries from enforcing pharmaceutical patents until 2033 which should be exploited to promote transfer of technology.

The problem is that there little to no evidence which indicates utilization of these provisions by the developing countries including Uganda to promote access to essential medicines especially for people living with HIV, women being the majority.

As we celebrate women in innovation today, we must think of those women who are unable to access essential medicines due to a high cost implication caused by the strict enforcement of Intellectual Property Rights.


[1]Article 12 (1) of ICESCR

[2]Available at www.healthdata.org

World Intellectual Property Organization Blasted for ‘Misappropriation’ of Indigenous Knowledge, Resources

By Gale Courey Toensing

Dozens of Indigenous Peoples showed up at a presentation by the World Intellectual Property Organization at the 11th Session of the United Nations Permanent Forum on Indigenous Issues wearing t-shirts that said “World Intellectual Piracy Organization.”

The t-shirts were meant to educate Indigenous Peoples about the threats that the World Intellectual Property Organization poses to Indigenous Peoples’ genetic resources, traditional knowledge and traditional cultural expressions. “It was very important to have a visual representation of what the work of WIPO actually is,” said Debra Harry (Paiute from Pyramid Lake in Nevada), who presented an intervention on behalf of more than a dozen indigenous organizations during WIPO’s presentation at the U.N. on May 10.

WIPO is a specialized body within the United Nations comprised of almost all of its nation-state members. It is “dedicated to the use of intellectual property (patents, copyright, trademarks, designs, etc.) as a means of stimulating innovation and creativity,” according to the WIPO website. WIPO services global registration systems for trademarks, industrial designs and appellations of origin, and a global filing system for patents, the site says. “Most industrialized nations have intellectual property protection systems that are centuries old. Many new and developing countries, however, are in the process of building up their patent, trademark and copyright legal frameworks and systems. With the increasing globalization of trade and rapid changes in technological innovation, WIPO plays a key role in helping these new systems to evolve through treaty negotiation, registration, enforcement, legal and technical assistance and training in various forms,” according to the website.

According to Harry and other indigenous delegates attending the UNPFII, WIPO is in the business of misappropriating indigenous knowledge, resources and aspects of traditional culture and expressions in order to commercialize and profit from them.

“There are many Indigenous Peoples’ in North America who have had a lot of their cultural traditional knowledge misappropriated. We’ve heard many stories of researchers who have come and done linguistics around Indigenous Peoples’ language and documented their oral histories and so on, and then have copyrighted that material and then the community no longer has access to that material. That’s an example of how intellectual property rights can be used to misappropriate Indigenous Peoples’ knowledge,” Harry said. Another example is the misappropriated and degradation of the Anishinaabeg’s traditional natural wild rice in Minnesota that benefits General Mills and General food.

Once the copyright protection or a patent expires, the material goes into the public domain, meaning it is available for free to anyone. “So if WIPO is successful in forcing indigenous knowledge systems into an intellectual property framework and certain aspects of our cultural heritage are usurped into that regime, it’s technically a one-way track out of our communities and out of our control and then put into the public domain. And the only reason you would do that is to commercialize it,” Harry said.

The WIPO representative at the UNPFII clearly indicated that WIPO is not interested in the protection of indigenous knowledge systems, Harry said. “In fact he said that ‘if you’re interested in protections and conservation of traditional knowledge, then WIPO is not for you.’ He actually said that. What he didn’t say conversely, then, is ‘If you’re interested in exploiting and commercializing indigenous knowledge systems, then WIPO is for you.”

Indigenous Peoples and organizations withdrew from active participation in WIPO in February. The organization meets two or three times a year in Geneva. The member states have consistently ignored the indigenous organizations’ demand over the past three or four meeting for full and equal participation in the process or to respect their rights and interests in the process, Harry said. “All our text proposals have fallen off the negotiation table and our rights to participate continue to be diminished, for instance, the amount of money available to support Indigenous Peoples to participate has continued to shrink dramatically so when it shrinks and they’re only able to support five Indigenous People from around the world to attend, that’s hardly fair representation of the worlds’ [370 million] Indigenous Peoples,” Harry said.

In her presentation at the UNPFII, Harry asked the WIPO pointblank, “[u]nder what moral and legal authority do you presume to possess a right to impose an intellectual property rights regime upon Indigenous Peoples and Nations knowledge and resources?” The WIPO representative’s answer was not recorded.

The Global Indigenous Youth Caucus (GIYC) also made a presentation during the session. “WIPO is a contemporary monopolistic manifestation of piracy that magnifies the Doctrine of Discovery and domination. We take on the responsibilities of our ancestors’ legacy at this critical moment in history [and] call for the extinguishment of WIPO’s mandate,” the representative said.

The GIYC statement echoed the call from the organizations that endorsed Harry’s intervention that includes:

Asking the Permanent Forum to request that WIPO amend its rules of procedure to insure the full and equal participation of Indigenous Peoples in all processes affecting them and that if WIPO does not change its rules it will be in violation of the U.N. Declaration on the Rights of Indigenous Peoples.

Recommending that the UNPFII make it clear that WIPO has no authority to regulate Indigenous Peoples’ traditional knowledge or to access traditional knowledge and genetic resources, which remain under the control of Indigenous Peoples.
Calling on Indigenous Peoples to stand in solidarity in opposition to the Doctrine of Discovery and withdraw from the WIPO process until it changes its rules.

Recommending that Indigenous Peoples and nations set their own legal standards for the protection of genetic resources, traditional knowledge and cultural expressions.
“We have to continue to fight this whole process by any means,” Harry said. We have to call on states to let them know that Indigenous Peoples do not agree with what they’re doing and we need to see if we can get the mandate withdrawn from WIPO. These are matters that affect indigenous rights and WIPO is not an indigenous rights or human rights body. Their mandate is to promoted intellectual property rights; their income is derived from licenses. It’s purely an economic body.”

source: http://indiancountrytodaymedianetwork.com/2012/05/16/world-intellectual-property-organization-blasted-for-misappropriation-of-indigenous-knowledge-resources-113359