One Paragraph And Two Articles

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: have indigenous pharmaceutical manufacturing capacity. It doesn’t make commercial sense. Will the Trips Council also investigate what these small developed countries are supposed to do? There is no way they can make effective use of compulsory licensing. People will say that developed countries are not the problem, Doha meant developing countries and LDCs. But that’s not what Paragraph 6 says. And for developing countries and LDCs, is access to drugs at reasonable prices the issue or is effective use of compulsory licensing the issue?

The two problems are not synonymous. Because of the original vagueness in drafting, Geneva is now busy trying to interpret para 6. Take the three questions posed by Switzerland. “What is the meaning of insufficient or no manufacturing capacity? Which situations justify action? How can solutions be devised that genuinely help countries lacking production capacity rather than helping those with production capacity?” Developing countries think para 6 applies to all WTO members. Developed countries think it should apply to countries with specific eligibility criteria. Exclude small developed countries for example. Pity the ministers aren’t around to explain what they meant in Doha. So we still don’t know which countries para 6 refers to. The Trips Council has a task on its hands.

Other than pinning down countries, one also has to pin down difficulties in effective use of compulsory licensing. Does this imply incentives for technical assistance and technology transfer? What happens if drugs produced under compulsory licences in one country are exported to another country, with the second country, perhaps, having no domestic production capacity? This links up with Article 31(f) of the original Trips agreement, which states: “any such use shall be authorised predominantly for the supply of the domestic market of the member authorising such use”. Any such use means use without the authorisation of the right holder and covers compulsory licensing.

The evident problem is with the clause “predominantly for the supply of the domestic market”. Developing countries want this scrapped. The EU wants it amended, with strict criteria for exporting. The US only wants a moratorium on such export-related disputes. But in the case of Article 31(f), one can at least understand what different countries are saying.