For the biggest, gravest, most consequential intellectual property fight of our times, look no further than access to lifesaving drugs in Africa. The scourge of AIDS on that continent is already shaking traditional notions of patent rights to their foundations. Posterity may judge our age by how we respond. The facts in this global face-off could not be more harsh.
On one side are the desperate and dying. According to the United Nations, over 2.4 million Africans died from AIDS last year in a pandemic that, if unchecked, will claim more lives than the Black Death that swept Europe in the 14th century. But this is not even the worst part of the story. While some 25 million Africans carry HIV today, fewer than 25,000-one-tenth of one percent-currently receive drug treatments that could save or at least prolong their lives.
On the other side in this life-and-death battle, in the gold-plated jerseys, are the giant, multinational pharmaceutical firms-GlaxoSmithKline, Merck, Novartis, Pfizer, to name a few. They are some of the world’s most profitable companies. According to one estimate, sales for the top 10 U.S. drugmakers exceeded manufacturing costs by $100 billion last year. These technological titleholders have the awesome power and resources to save many of Africa’s AIDS victims. All they have to do is ease their choke hold on their intellectual property. But even a modern-day plague of unthinkable proportions has yet to loosen that grip.
To their credit, last year the world’s biggest drug firms did announce plans to cut prices in some African countries and even give some drugs away to the Third World nations hardest hit by AIDS. More telling, though, is what they haven’t done: condone the sale of generic copies of their lifesaving products to the world’s neediest patients. In Ghana, GlaxoSmithKline has even moved to block the sale of generic copies of one of its AIDS drugs. It is a reprehensible and misguided strategy that will produce no good.
If there’s a lightning rod in this debate, it is Yusuf Hamied, chief executive officer of Cipla, India’s largest drug manufacturer. Last September, Hamied announced that his firm, as a public service, could distribute generic versions of the most-needed AIDS medications at a tiny fraction of the cost charged by the patent-holding companies.
Cipla’s offer was not idle. While India has strong patent protection in many sectors, it has maintained lax patent regimes in agriculture and drug manufacturing to aid its poor and encourage indigenous industry in these vital sectors. As a result, drugs cannot be patented in India. This allows companies like Cipla to reverse-engineer bestselling products with impunity and legally sell the knockoffs cheaply at home.
Not surprisingly, the pharmaceutical giants have long viewed Cipla as a pirate and a global threat. Because these firms thrive off their R&D fruits, they guard their intellectual property ferociously. They dread nothing more than a cascade of generic copies and falling prices.
It’s easy to see why. Take, for example, Pfizer’s miraculous, patented antifungal agent Diflucan (fluconazole). Some 10 percent of Africa’s AIDS sufferers need a daily tablet of this drug to stave off the lethal brain inflammation cryptococcal meningitis. Pfizer, which sells this drug in the West for $25 or more per pill, has laudably agreed to give some away in South Africa. But it has only halved its price elsewhere on the continent-still far beyond the financial reach of most who need it. Cipla sells it in India-legally-for 64 cents.
Under normal conditions, the drug manufacturers could rightfully object to powerful free riders like Cipla. But given the crisis at hand, these firms need to view things differently. They should applaud Cipla for stepping into the breach where they will not. There is little threat to business; with its feeble price reductions, Big Pharma is certainly not selling many high-priced drugs in Africa anyway. And many, many people are dying.
The roles of pirate and hero can be reconciled. What’s needed is a way to carve out an exemption to patent protection during bona fide epidemics. There are plenty of analogies to draw on. The world over we let ambulances ignore red traffic lights as they rush to respond to emergencies. Even more pertinent, in times of catastrophe we allow public officials to declare “states of emergency” that replace some normal rules of the road with a more germane set. In the face of a regional crisis like the one in Africa, perhaps the World Health Organization could make a similar designation-encouraging the temporary suspension of IP rights in the region so that, on an emergency basis, any willing drugmaker can distribute its lifesaving wares at cost.
AIDS in Africa has surely reached epidemic proportions. It’s time to stop business as usual and declare an IP state of emergency.
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