TRIPS, Public Health Systems and Free Access
Edited by Benjamin Coriat
Chapter 5: Technology Transfer Agreements and Access to HIV/AIDS Drugs: The Brazilian Case
Amélie Robine The AIDS pandemic has raised the question of access to medication in developing countries to an international level. Sub-Saharan Africa contains the highest share of people living with HIV/AIDS, with 63 per cent of the world total, but poor countries do not have the ﬁnancial, human or material resources to provide treatment for their patients. Besides classical strategies of international charity (drug donations, procurement funding mechanisms and so on), local production of drugs has been proposed as a means to achieve long-term independent access to antiretrovirals. But local production requires manufacturing capabilities in the pharmaceutical sector. Because developing countries, traditionally, did not adopt intellectual property (IP) systems or excluded pharmaceutical products from patentability, the development of drug industries in these countries was based on the copying of patented drugs. Today, with the changes that have occurred in the international legal context, they have to implement other strategies. The incorporation of IP into international law, and particularly international recognition of drug patentability within the TRIPS agreement, now prohibits use of the copying strategy. Otherwise, the producers could be sued for patent infringement: generic copies, de facto legal in the past, as long as they were not exported to countries in which the drugs copied were under patent protection, are now banned. To produce legal generics, developing countries have either to wait until the brand-name drugs fall into the public domain or to impose compulsory licensing. And so in order to build local drug production, they adopt diﬀerent...
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