trips – Techdirt (original) (raw)

Too Little, Too Late, WTO Finally Eases Patent Rights On COVID Vaccines

from the like-it-even-matters-now? dept

In what definitely feels like a case of way too little, way too late, the WTO last week finally decided to grant the TRIPS waiver on COVID vaccines, allowing others to make more of the vaccine without violating patent rights. The WTO has long had this ability to issue a patent waiver as part of its Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement. The idea is that in an emergency, when patents or copyrights are getting in the way of real harm, the WTO can say “hey, let’s grant a waiver to save people.”

You would think that a global pandemic where people are dying would be an obvious time to use such a waiver grant, but that’s because you’re not an obnoxious IP maximalist who cares more about their precious monopoly rents than the health and safety of the global populace. The big pharma and medical device companies freaked out about the possibility of a waiver, and even worse, Hollywood also flipped out about it, with their typical worry that any proof that removing an intellectual monopoly might be good for the world cannot be allowed.

It took forever, but in May of last year (already a year and a half into the pandemic), the US agreed to support the TRIPS waiver. This caused much gnashing of teeth among the maximalists, and then it still took over a year before this agreement was reached, and of course, now it’s both greatly watered down, and very much too late to make much of a difference. But kudos Hollywood and pharma lobbyists. You let thousands of people die, but you sure protected your IP. Good work!

But experts said the proposal was weakened significantly over months of negotiations. They said they did not expect the final agreement to encourage manufacturers in developing countries to start producing Covid vaccines, in part because it does not address the trade secrets and manufacturing know-how that many producers would need.

Even worse, the agreement is limited just to vaccines, and does not apply to either testing or therapeutics — both of which are way more important today than vaccines.

Even as this version is basically close to useless, Big Pharma continued to freak out.

The industry’s main lobbying group, the Pharmaceutical Research and Manufacturers of America, sharply criticized Friday’s agreement. Stephen J. Ubl, the group’s head, called it one in a series of “political stunts” and said it “won’t help protect people against the virus.” He noted that the industry had already produced more than 13 billion Covid vaccine doses.

Yeah, it won’t help protect people because you and your lobbyists spent two years trying to block it, so that when this finally happened it was way too late, and even when it did happen, you watered it down and limited it to the point of uselessness. The “political stunt” was yours, Stephen. I hope all those dead people were worth it.

And, of course, you have the WSJ journal to jump in… and laughably claim this was “Biden’s gift to China.”

The World Trade Organization was created to protect free-trade rules to spread prosperity. Now it’s becoming a vehicle to raid U.S. innovation. See Friday’s agreement by the WTO’s 164 members that lets developing countries, including China, steal intellectual property for Covid vaccines.

The White House is flogging the deal as a diplomatic victory. But it’s an enormous defeat for U.S. national interests that will benefit China and set a precedent that erodes intellectual property protection. This won’t be the last time global grifters seek to pilfer U.S. technology.

What are you even talking about? If it took two and a half years in the middle of a pandemic to get an agreement on life saving vaccines, that still has massive limits, and is both way too little and way too late, the idea that this is setting a precedent that “erodes intellectual property protection” is idiotic to the point of laughable.

And, again, all this does is remove some patent barriers (not other manufacturing barriers) on vaccines that are saving lives. Yes, it may help save lives in China, but is the Wall Street Journal editorial board really arguing that we should let them die because they’re Chinese? It sure sounds like it.

In short, there’s nothing legally binding to stop China from stealing U.S. mRNA technology, using it to develop its own vaccines including for other diseases, and then selling the shots under their own brands. The agreement lasts five years so it could potentially cover a future combined mRNA vaccine for Covid, flu and respiratory syncytial virus.

Newsflash to the WSJ editorial board: I know that you’re among those pushing the idea that the pandemic is over, but it is not. Keeping the world healthy, including in China (which the US economy still relies on heavily) is good for the US economy too. When China runs into problems with the pandemic, then you get more supply chain problems that are currently a huge part of the economic difficulties in the US. Maybe that’s fine for you because it’s another thing you can falsely blame on Biden, but this editorial is literally complaining that this minor reduction in patent rights might help Chinese people stay alive. It’s pretty disgusting.

Filed Under: china, covid, covid vaccines, pharma, trips, trips waiver
Companies: wall street journal

Critics Of Patent Waivers Are Claiming They Were Right… Despite No Patent Waiver Actually Issuing Yet

from the say-what-now? dept

We were surprised, but pleased, when the US announced plans to support a patent waiver for COVID-19 treatments and vaccines (over Hollywood’s strenuous objections). As you’ll recall, the TRIPS agreement (an onerous, oppressive set of “intellectual property” rules that many countries have agreed to) includes a “waiver” process, in which the WTO will effectively waive international patent protection on certain patented items in an emergency situation. The COVID-19 crisis seemed to fit the exact intent of the waiver process, and yet there’s been a lot of pushback from patent and copyright maximalists who hate the very idea of waiving copyright or patent monopoly rights on anything for any reason at all.

Many of those against the waiver insisted that their reason for being against the waiver is that it wasn’t patents that were holding up vaccines and treatments, but larger supply chain issues. They ignore, of course, that some of those supply chain issues are also because of overly aggressive intellectual property laws, or that both things can be true. Either way, Michael Rosen, who insisted that a waiver was a terrible idea, has now penned a piece for The Hill insisting that his view has proved correct because the waiver process has done nothing to help deal with COVID-19.

Of course, the reason it’s done nothing is because people like the author have been getting groups to protest the waiver and so it hasn’t even been approved yet. I mean, the piece even admits that the problem here is not the waiver, so much as the slowness of the WTO in approving it.

… the WTO is uniquely unsuited to move quickly on the proposal given its bureaucratic and consensus-driven nature. Opposition to the waiver proposal in late July, primarily from the European Union (EU), has delayed further discussion until at least October, because ?disagreement persisted on the fundamental question of what is the appropriate and most effective way to address the shortage and inequitable access to vaccines and other COVID-related products.? By the time the TRIPS waiver receives proper consideration, the Delta wave may have passed.

But… that’s not an argument against the waiver. It’s an argument for the WTO to get its shit together, and for people to stop trying to oppose the damn waiver.

The other two reasons Rosen gives are no better.

First, the suspension of intellectual property (IP) rights will not quickly deliver shots in arms in the developing world, as the past four months have amply shown.

No one is saying that’s the only thing that needs to be done — but, also, how the hell can you say that it won’t deliver shots when the waiver still hasn’t come to pass yet?!?

… generic manufacturers cannot simply flip a switch and begin producing doses; instead, they must master the formulation of complex compounds (some of which involve mRNA), and their medicines must undergo local regulatory scrutiny for safety and effectiveness.

Yeah. You know what would help them get the ball rolling so that they can get those processes up and running sooner? Not having to worry about bogus patent infringement claims.

And, of course, this kind of thing wouldn’t be complete without a bogus claim of the great innovation incentive that patents bring.

Finally, the suspension of vaccine-related IP rights fundamentally undermines the global innovation regime that brought us these miraculous drugs in the first place ? wildly effective vaccines developed in absolute record time.

That’s bullshit. The incentive to produce these vaccines was not patents, but saving the damn world. Second, the first of those vaccines, from Moderna, was developed in just two days because Chinese researchers uploaded the details of the coronavirus and made it openly available to researchers, rather than locking it up. In other words, it wasn’t locking down information with patents that got us this vaccine, it was the opposite.

Filed Under: covid, ip waiver, patent waiver, patents, trips, vaccines, wto

India Finally Bows To US Pressure: Promises Not To Use Compulsory Licensing For Drugs

from the declaration-of-war-on-poor-cancer-patients dept

Techdirt has been covering India’s complex relationship with pharma patents since at least 2009. In particular, we’ve been following for years India’s use of compulsory licenses to provide its people with access to life-saving drugs at affordable prices. Naturally, Big Pharma companies in both the US and EU hate that, not least because it might encourage other countries to do the same. As a result, the US pharmaceutical industry in particular has been applying political pressure to get India to stop using compulsory licenses, even though they are a perfectly legitimate policy tool under the WTO TRIPS Agreement. Two years ago, Techdirt noted that India was already becoming more cautious on the compulsory licensing front, and a new report from Reuters suggests it may finally have bowed to US pressure:

> India has given private assurances that it will not grant licences allowing local firms to override patents and make cheap copies of drugs by big Western drugmakers, a U.S. business advocacy group said. > > The comments were revealed in a submission last month by the U.S.-India Business Council (USIBC) to the U.S. Trade Representative (USTR), which is reviewing global intellectual property laws for an annual report identifying trade barriers to U.S. companies.

There’s been no official confirmation from the Indian government of that decision, nor an explanation of why it has decided to give in, assuming it has. The Reuters article mentions the fact that India had been placed for two years in a row on the infamous Special 301 Report’s “Priority Watch List”. That’s one of the favorite ways in which PhRMA, the Pharmaceutical Research and Manufacturers of America, tries to bully countries — or even entire continents — into doing its bidding. But giving up compulsory licenses just to stay off the Special 301 naughty step seems an incredibly high price to pay, for reasons explained by Knowledge Ecology International (KEI):

> “If such an agreement [between the Indian government and the US drug industry] in fact exists, this is extremely troubling news … this sort of pressure is basically a declaration of war on poor cancer patients,” KEI said in its own submission to the USTR last week.

Given the USIBC document that Reuters says it has seen, it seems likely that the Indian government has indeed given some sort of assurance to the US companies. But the fact that it has been kept quiet shows that the politicians are fully aware of how unpopular the move will be once the Indian public finds out about it. That provides some hope the policy could be reversed if enough people in India start complaining, as happened recently with software patents.

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Filed Under: compulsory licenses, drugs, health, india, pharmaceuticals, trips, wto

Techdirt Reading List: Information Feudalism: Who Owns The Knowledge Economy?

from the restricting-information-flow-is-not-free-trade dept

We’re back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.

As we discussed yesterday, the TPP was signed by all participating countries yesterday in New Zealand (though there’s still a big ratification fight required to make it matter). We have lots of issues with the TPP, many of which we’ve raised over the years — but the first issue that drew our attention to it was the intellectual property chapter. For years, we’ve questioned how it could possibly make sense to include intellectual property in a so-called “free trade” agreement, as intellectual property is the exact opposite of free trade. It’s a government granted monopoly and restriction on the movement of information. And, yet, in the past two decades, basically any international trade agreement has included sections concerning intellectual property.

How did this happen? Well, that’s the subject of the book on today’s Techdirt Reading List: Information Feudalism: Who Owns the Knowledge Economy?, by Peter Drahos and John Braithwaite. The book, which came out over a decade ago, is a detailed accounting of how a bunch of legacy industry lobbyists — including those from Hollywood, the pharmaceutical industry and the tech industry — figured out how to convince trade officials around the globe that stronger intellectual property enforcement was a “free trade” issue. And they did so almost entirely behind closed doors, and without most people (even those who are focused on intellectual property issues) being fully aware of what was happening when it was happening.

These days, at least, there’s a lot more awareness of what’s happening, and activists and newer innovative tech companies (rather than old school legacy tech companies) are paying much closer attention. But the seeds of what these legacy industries put in place decades ago live on, dangerously, limiting innovation, keeping the cost of medicines and information artificially high, and laughing all the way to the bank while the public suffers over and over again. We owe it to ourselves to understand how this happened, and Information Feudalism is an enlightening, if frustrating, book for those who want to fight back and stop this dangerous process.

Filed Under: free trade, information feudalism, international trade, knowledge economy, tpp, trips

As Big Pharma Piles On The Political Pressure, Indian Government Slows Pace Of Compulsory Drug Licensing

from the regrettable-for-many,-fatal-for-some dept

As we’ve been reporting for a while now, the Indian government has been taking advantage of the provision in TRIPS that permits it to issue compulsory licenses for key drugs at affordable prices. As Professor Brook Baker explained last year:

> the WTO TRIPS Agreement allows India and any other country to issue compulsory licenses on any grounds they want to as long as certain procedural safeguards are followed. Using fully lawful compulsory licensing procedures, India did issue a compulsory license on an overpriced Bayer cancer medicine, citing three justifications in a 60-plus page decision: excessive pricing, failure to supply the market, and refusal to produce locally. As a result of this license, the cost of the cancer medicine has now fallen more than 97%, showing the excess mark-up that Bayer imposes on patients.

That obviously doesn’t sit too well with Western pharmaceutical companies, whose business model is essentially to sell low volumes of new drugs for extremely high prices that only the relatively affluent can afford. From the Western drug industry’s perspective, India’s actions are particularly troubling for the example they provide to other emerging nations. That’s why big pharma companies are getting US politicians to put pressure on India to limit grants of compulsory licenses, or face retaliatory measures. According to this article in The Times of India, it seems to be working:

> Amid heightened scrutiny of the intellectual property regime, the [Indian] government has decided to tread with caution on a compulsory licence for a cancer drug to ensure that its decision is in line with the legal provisions. > > While compulsory licencing, which entails waiver of patent under extreme situations, for three cancer drugs was being pushed by the health ministry, the issue is now limited to Dasatinib, a medicine to treat a type of cancer of the white blood cells, for which Bristol-Myers Squibb (BMS) holds a patent.

Although that caution is understandable, the sad fact is people are likely to die as a result of this slowing of the flow of cancer treatments at affordable prices, brought about by big pharma companies worried about profit margins. That’s rather ironic for an industry that is predicated on saving lives.

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Filed Under: compulsory license, india, patents, pharmaceuticals, trips, wto

India's Approach To Pharma Patents Under US Attack, But Other BRICS Nations Likely To Adopt It

from the closing-the-barn-door dept

Techdirt has been reporting for a while on India’s growing success in providing its population with access to low-cost generic drugs, making use of the permissions to do so granted by TRIPS. That has naturally earned it the ire of Western pharma companies, which now seem to be striking back, as this post on Infojustice.org explains:

> The U.S. pharmaceutical industry and its Big Brother Chamber of Commerce have launched an all-out disinformation campaign against the India Patent Act and decisions rendered thereunder. They have enlisted allies in the U.S. government, including Members of Congress, the United States International Trade Commission, Secretary of State Kerry, and even President Obama, to carry their claims to the highest levels of the Indian government. They have threatened to insist that the U.S. file a WTO trade complaints against India in 2014 and that India no longer be permitted to export duty-free products to the U.S. under the Generalized System of Preferences. > > As evidence for their campaign, the representatives of Big Pharma have claimed that India is violating US-based global norms for protecting patent rights, that it is adopting new patenting criteria not authorized by international law and allowing generic competition when it is not permissible, and that it is discriminating against U.S. pharmaceutical companies in favor protectionist policies that shield Indian generic companies and steal U.S. jobs.

The rest of the post — written by Professor Brook K. Baker, whose work has been discussed here on Techdirt several times — then goes on to explain in detail why those claims are false, and is well-worth reading to understand the legal issues here.

Interestingly, it looks like India could be joined by other nations in exploiting TRIPS flexibilities. An article in South Africa’s Mail & Guardian newspaper reports that there is both legislation and a detailed report from the research arm of the Brazilian Chamber of Deputies that have this as their goal, not just in Brazil, but elsewhere too:

> Amending intellectual property legislation is just what the country aims to do with the release of a 363-page report earlier this week by the Brazilian [Chamber of Deputies] Centre for Strategic Studies and Debates. > > The report’s suggested changes mirror those outlined in a Bill tabled in Brazil’s Parliament earlier this year. > > Although the Bill has yet to be heard, lead report writer Pedro Paranaguà, intellectual property adviser for the ruling Workers Party, says that he hopes the document “will serve as a means for influencing court decisions, the competition authority, and academics — nationally, and internationally”.

In the same article, Baker explains why India succeeded in creating a flourishing domestic drug industry, while Brazil did not:

> Although developing countries had until 2005 to adopt the Trips Agreement into their national laws, Baker says that Brazil acceded nearly a decade earlier because the US pressured the country into adopting more stringent intellectual property measures by placing it on its Special 301 Report. > > … > > India, in contrast, waited until the 2005 deadline. As such, the country did not have to respect pharmaceutical patents, which helped India to develop a strong generic pharmaceutical sector. The country is now famously known as the “pharmacy of the developing world”, supplying the majority of the [antiretroviral drugs] used in Africa.

Meanwhile, in South Africa, an open letter from 130 organizations and experts to the Department of Trade and Industry there is urging similar pro-health patent moves to those in Brazil:

> South Africa’s Department of Trade and Industry (DTI) has expressed its intention that reform of the intellectual property system will balance patients’ rights with those of patent-holders. Given South Africa’s high burden for both communicable and non-communicable diseases, this is a positive step towards addressing the current imbalance in the system in a manner conducive to social and economic welfare, the protection of public health, and the transfer and dissemination of technology, especially in sectors of vital importance to socio-economic and technological development. The DNPIP [Draft National Policy on Intellectual Property] proposes several reforms that would make use of pro-public health flexibilities allowable under the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). Many other countries, including India and Argentina, have already incorporated TRIPS flexibilities into their national laws, and others, like Brazil, are initiating comparable pro-health patent law reforms. These countries and others have also implemented TRIPS-compliant flexibilities to procure more affordable medicines and to strengthen domestic pharmaceutical capacity. We think that intellectual property law reforms are essential for South Africa to meet its human rights obligations, including the right to health and the right of access to medicines.

This is doubtless exactly what Western pharma companies feared would happen. India’s example is now inspiring other BRICS countries to follow suit, making use of flexibilities in TRIPS to provide desperately-need medicines to their populations at affordable prices. Current US attempts to attack India’s approach to pharma patents are not just unjustified, as Baker explains, but quite simply too late.

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Filed Under: india, patents, pharmaceuticals, trips, us

US Looking To Strip Fair Use & Other Key Protections From Copyright Treaty For The Blind

from the this-is-helping-the-blind? dept

We had just pointed out that the MPAA is now pretending to be in support of a copyright treaty for the blind, despite its lobbyists doing all sort of things to try to block it. Now we have reports from Geneva, via Jamie Love, that the US is opposing important language in the treaty, which is part of the reason that it’s still being held up. First, as noted in the link above, the US is opposing the following footnote, which may seem like a small deal:

It is understood that Contracting Parties who are members of the World Trade Organization (WTO) acknowledge all the principles and objectives of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and understand that nothing in this Treaty affects the provisions of the TRIPS Agreement, including, but not limited to, the provisions relating to anti-competitive practices.

As Love notes, similar language has appeared in a variety of other agreements, including ACTA and the Beijing Treaty (which would give Hollywood stars their own special copyrights). Why is this language important? Because TRIPS includes key provisions that allow countries to make some of their own decisions about how they implement the agreements, to protect the public’s rights. But, the content industry doesn’t want that same language in this treaty, which is focused on the public’s rights, because they’re afraid it will, once again, open the door to countries expanding the public’s rights, and pushing back on egregious copyright restrictions on those rights.

As if to drive that point home, in a later update emailed from Love, he notes that the US is now also trying to get the phrase “fair practices, dealings or uses” deleted from the following section of the treaty:

“Contracting parties may fulfill their rights and obligations under this Treaty through, exceptions or limitations, specifically for the benefit of beneficiary persons,other exceptions or limitations,or a combination thereof within their national legal traditions/systems. These may include judicial, administrative or regulatory determinations for the benefit of beneficiary persons as to fair practices, dealings or uses to meet their needs.”

In other words, it’s just as we said the MPAA is trying to do: sure they claim they want a treaty to help the blind, but not if it includes anything even remotely suggesting an expansion of the public’s fair use rights. So, here, they’re “fine” with helping the blind get access to works, but not if it’s done via fair use.

Incredible.

Filed Under: blind, copyright, fair use, treaty, trips, wipo

Now US And EU Want To Apply Upward Ratchet To TRIPS Itself

from the once-a-maximalist,-always-a-maximalist dept

Here on Techdirt we often talk about the copyright ratchet — the fact that for three hundred years changes to copyright have always been in one direction: longer, wider and stronger. But there’s a group of countries where the copyright ratchet isn’t in place yet. These are the so-called LDCs — the Least Developed Countries — where many of the world’s poorest citizens live. That’s because the main Agreement on Trade Related Aspects of Intellectual Property Rights, better known as TRIPS, explicitly allows LDCs a transitional period of ten years, during which time they are not required to meet all the stringent requirements laid down there for granting intellectual monopolies. Moreover, the TRIPS agreement specifies:

> The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period.

And as an article on infojustice.org notes:

> Last November the LDCs exercised their legal rights under the TRIPS rules, and submitted a request to the TRIPS Council requesting an unconditional extension of the transition period for as long as a country remains an LDC. The current transition period expires on 1 July 2013. > > Article 66.1 of the TRIPS Agreement grants LDCs a renewable exemption from TRIPS obligations. The rationale is that LDCs need maximum flexibility to develop a viable technological base and address their constraints, and that the standard of TRIPS IP protection may be an obstacle in achieving those objectives.

The US and EU routinely insist that countries follow TRIPS to the letter, but it seems they are only too happy to ignore their own obligations when it comes to granting a further exemption to LDCs:

> Developed countries, particularly the United States and the European Union, have offered a poor and impractical deal of an incredibly short extension of 5 years with restrictive conditions to least developed countries that are entitled to be exempted from implementing the WTO TRIPS Agreement. > > Particularly problematic is their demand that the LDCs agree to a “no-roll-back” clause, a TRIPS plus condition that will prevent LDCs from rolling back (i.e. providing a reduced degree of IP protection) their current laws, even if they adversely impact their development concerns.

“No roll-back” is another way of saying upward ratchet. But the US and EU are trying to haggle over details of an agreement that was finalized and signed back in 1994. As infojustice.org puts it:

> The US and EU demand, if agreed to, would actually amount to an amendment to Article 66.1, but without following proper WTO procedures as required by Article X of the WTO Agreement

That is, the US and EU are not only trying to bully smaller countries into accepting unofficial changes to negotiated agreements, in this case to lock LDCs into a system with a built-in ratchet for intellectual monopolies, but they want the upward ratchet to operate on TRIPS itself.

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Filed Under: developing countries, eu, ratchet, trade agreements, trips, us

Senator Hatch Says Global Fund Advocating For Generic Drugs To Solve Healthcare Crises Is Abusing Funds

from the also-he's-lying dept

We’ve written a few times about governments around the globe seeking to make use of lower-priced (and often more widely available) generic medicines for responding to serious diseases, rather than sticking with the more expensive name brand. Current international agreements, like TRIPs, allow countries to effectively “opt-out” of promises to respect other country’s patent laws for the sake of supplying such medicine and, you know, saving lives. It’s pretty clear that breaking the patent on these drugs is quite effective, driving costs down on a massive scale, making this part of healthcare much more cost-effective.

Of course, the pharma companies don’t like this at all. So it should hardly be that big of a surprise that Senator Orrin Hatch directly tried to put pressure on Hillary Clinton and the Obama administration to stop efforts to promote more widespread use of generics in the developing world using these methods. The link above highlights that Hatch sent then Secretary of State Hillary Clinton a letter that suggested he’s quite upset that the US-funded “Global Fund to Fight AIDS, Tuberculosis and Malaria” was training people in different countries to explore compulsory licenses of drugs or other ways to make use of generics.

Of course, if you just read Hatch’s letter (embedded below), you’d be forgiven for being confused. In it, he claims to be outraged that the Global Fund is encouraging various countries to buy more expensive generics of “cheaper” brand name drugs. Huh? In what environment do generic drugs cost more than the brand name? Also, he appears to just be wrong. Part of the data that he based his complaint on comes from a presentation (embedded with the letter) from the Global Fund, in which they have a few graphs showing that (as you would expect if you were anyone but Orrin Hatch) the generic versions are, in fact, cheaper, which is obviously why they were recommending making use of the option.

So, even as Hatch’s letter is full of bluster about misspending money, the details actually seem to suggest that they saved money.

In the letter, Hatch also claims that the presentation directly calls on countries to “disregard” the TRIPS Agreement. But, again, the attached presentation appears to tell the opposite story, with a specific call to seek solutions that comply with TRIPs.

Recipients must procure their products in accordance with national and international laws. The Global Fund encourages recipients to apply the flexibilities provided within national laws and in the World Trade Organization’s Agreement on Trade-related Aspects of Intellectual Property rights (TRIPS)…

In other words, directly contrasting Hatch’s claims, the Global Fund appeared to tell countries to comply with TRIPs, but (correctly) noted that there were some exceptions built within the law that allowed them to seek compulsory licensing and the use of much cheaper generics. Still, there may have been some behind-the-scenes maneuvering as well. As the IP-Watch report notes, soon after all of this, the executive director of the Global Fund, Michel Kazatchkine, resigned. The report suggests this was due to US pressure over Global Fund’s daring effort to tell developing countries what their international agreements actually allow. Also: the replacement, Mark Dybul, is a US official, likely to make sure that the Global Fund works in the same manner as Hatch would like — artificially keeping the big drug makers happily without competition and with artificially high profits, even as healthcare in the developing world might suffer.

Incredibly, Hatch actually seems to be arguing that by suggesting developing countries explore generics, it’s putting people at risk because… well, there’s a gap in the explanation, but it appears to be due to big pharma companies feeling they need such subsidies to make the drugs in the first place. From the letter:

By advocating for developing countries to disregard the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) through issuing compulsory licenses to gain access to Global Fund grants, we are abusing the system. Access to these products is vital to our success in fighting the war on HIV/AIDS and actions inconsistent with patent law such as these will only hinder our ability to work in partnership with the companies that have provided the intellectual property rights to develop generic versions of their products.

Got it? If you’re a developing nation seeking to stem the AIDS epidemic by making AIDS drugs actually available to those with the disease, you are are actually decreasing the success of the war on AIDS because [something, something, something] big pharma will take their ball and go home. Of course, there’s no actual evidence to support this, and tons of evidence that shows that developing countries who actually set a compulsory license on drugs related to critical diseases, actually do help deal with serious problems. There is no evidence that this suddenly scares companies into not making the drugs at all. They still make plenty of money in the developed world off of those drugs.

Just to summarize, though, an actual US Senator, Orrin Hatch argued that, by having the Global Fund advocate for better, cheaper generic medicines, as clearly allowed under international agreements, that the Global Fund is somehow paying more for medicines (they’re not) and convincing big pharma to fail in the war against these diseases (they’re not). It’s no secret that politicians aren’t always in sync with the truth, but this is significantly more blatant a misrepresentation than is normal.

Filed Under: developing nations, drugs, generic drugs, global fund, healthcare, hillary clinton, orrin hatch, patents, trips

Copyright Alliance Invents New History (And New Meanings For 'Big' And 'Little') To Condemn Antigua

from the hoist-on-their-own-petard dept

We recently wrote about how, after a decade-long dispute, Antigua appeared to really be moving ahead with its plan to set up an online site that purposely offered infringing works, violating US copyright law — and doing so with the authorization from the WTO as a response to the US breaking an existing trade agreement that helped collapse the online gambling industry that was based in Antigua. We’ve already noted that the US government (as it’s been doing for years) has threatened retaliation if Antigua goes forward with the plan, even though the WTO has given it the stamp of approval (and ruled against the US multiple times in this dispute, almost all of which have been ignored by the US, with the US flat out lying at one point and pretending it won).

And, of course, it’s not just the US government upset by this: the big copyright players have started sputtering out angry screeds. Take, for example, this absolutely laughable historical revisionism from the Copyright Alliance, which talks about just how “unfair” this whole thing would be, since it impacts third parties. This may be the most tone deaf statement from copyright maximalists in a long time (and that’s saying something, given who we’re talking about):

First, it raises a question of fundamental fairness about the appropriateness of punishing an unrelated group for circumstances beyond their control. U.S. copyright owners have found themselves chips in a high-stakes international game with no recourse. In addition, TRIPs obligations implicate many downstream stakeholders — distributors and licensees, for example — who rely on stable IP rights to function, so suspension of these obligations would affect many individuals and companies in other sectors and even other countries.

Wait, so suddenly the copyright players are concerned about “fairness” and the “appropriateness of punishing an unrelated group for circumstances beyond their control”? Really? So, um, I guess that means they’re now against copyright term extension, which did exactly that. Or how about the very fact that IP agreements are included in international trade agreements — which imposed significant and severe punishments on citizens of countries around the globe “for circumstances beyond their control.”

Oh, and now “US copyright owners have found themselves chips in a high-stakes international game with no recourse.” Welcome to the club. How about the whole of the public of the US and many, many other countries, who have found themselves exactly that: chips in a high-stakes international game with no recourse. The Big Copyright players, including those who funded and created the Copyright Alliance, have engaged in this game for decades, using the whole international trade game to force copyright maximalism through international trade agreements and then forcing draconian, anti-public laws on countries around the globe.

So, pardon me if I find it laughable that they of all people suddenly are whining when the shoe is (just slightly) on the other foot.

As for those “downstream stakeholders” who rely on “stable IP rights to function”… So, that must mean that the Copyright Alliance is against changes to copyright law, such as pulling works out of the public domain, which totally screwed over “downstream” merchants who were making use of those works. Oh, wait, they liked that ruling. Huh.

The fact is that the copyright industry has had the run of international trade agreements for a few decades. For an enlightening exploration of just how the big copyright players completely inserted themselves into international trade agreements, and used them as a key (some would argue the key) strategy for ratcheting up copyright laws around the globe, check out the book Information Feudalism by Peter Drahos and John Braithwaite. It tells the somewhat horrifying story about how a few powerful corporate interests effectively hijacked the TRIPS and WTO processes to use them to spread ratcheting up copyright and patent laws around the globe. We’ve seen that play out over the past few decades, and there’s something absolutely ridiculous to see them now complaining when a single tiny WTO ruling goes against their interests.

Have they no shame?

And, of course, these same copyright maximalists have been instrumental in a number of international agreements since then that have only served to ramp up copyright rules and enforcement. Most recently, for example, we’ve talked about ACTA and TPP — both of which would punish the public and harm downstream stakeholders, using them as an uninvolved pawn in a high-stakes international trade game with no recourse. Yet, somehow, the Copyright Alliance and their backers like that… because they’re the ones pulling the strings.

Second, application in this situation seems to run counter to the purpose of cross-retaliation. Since the 1990s, Antigua has set itself up as a safe haven for offshore gambling. Licensing of gambling services make up a significant portion of the country’s revenues. Cross-retaliation as a remedy is, in theory, supposed to provide leverage to smaller, less-developed countries in trade disputes against larger nations. But the Antigua gambling industry is composed of large, international corporations.

Okay, now this one also makes me laugh. Notice these two paragraphs quoted one after the other. In the first one, the Copyright Alliance tries to argue that it’s these poor “downstream stakeholders” who are impacted by Antigua’s WTO-approved plans. In other words, “think of the poor little guy.” In the second paragraph, it argues that this is unfair because it really benefits “large, international corporations.”

Uh, guess whose copyrighted works are likely to be sold in this store? You guess it. Those large international corporations who funded and created the Copyright Alliance. It’s so incredible dishonest to pretend that this dispute is about big companies in Antigua somehow harming the little guy in the US.

Really, the copyright maximalists apparently have absolutely no shame in historical revisionism and blatantly dishonest and misleading statements about the situation at hand.

Filed Under: antigua, copyright, gambling, history, international trade, trade agreement, trips, wto
Companies: copyright alliance