Dying for Protection

By Stephanie LeBourdais

Nok Noy, or “Little Bird," an HIV/AIDS patient in Mahasarakharm, Thailand, lies on a thin mat under a mosquito net, her dry, bony legs curled up to her chest. Two weeks ago her doctor sent her home from the hospital, saying there was nothing more he could do to help. After struggling with AIDS for five years, Nok Noy is now in the final stage of the disease and has less than a month to live. She wears a diaper because she is incontinent and receives medicine through an IV because she is no longer strong enough to swallow. The disease stole her eyesight months ago. Nok Noy is twenty-four years old.

When Americans encounter Intellectual Property Rights (IPRs), it’s typically in relation to the entertainment or technology industries. The media is filled with countless accounts of IPRs being violated by teenagers illegally downloading music from the internet (who can forget Napster?) or people bootlegging DVDs before the original movie hits the big screen. In response to one such violation, Jeff Blake, of Sony Pictures Entertainment, said, “Hundreds of people have put tens of thousands of hours into making a truly great picture and the notion of having it stolen and sent out for free is just plain wrong.”

People like Nok Noy are also seriously affected by IPRs in ways that are more than “just plain wrong,” but somehow stories like hers never seem to make the front page. Nok Noy was able to survive the first five years after being infected because she was taking anti-retroviral drugs (ARVs), the best AIDS treatment currently available. Thailand is considered a success story among developing countries because of its universal health care scheme. It currently provides medications to HIV/AIDS patients at an extremely low cost, affording treatment to hundreds of thousands of people who would otherwise be unable to pay for the drugs.

Thailand’s reputation stands to be moot if the free trade agreement (FTA) currently being negotiated with the United States is passed in its current form. The agreement jeopardizes the government’s ability to produce and provide affordable generic versions of essential medications, including ARVs. As in its previous FTAs, the U.S. is seeking IPR standards beyond those previously agreed upon in the World Trade Organization’s TRIPS Agreement (see box). Included in these so-called “TRIPS-plus” rules are limits to when compulsory licensing can be invoked. Compulsory licensing, a safeguard regarding pharmaceutical products, essentially gives governments the ability to override patents.

Though compulsory licenses are rarely sought, they remain a crucial bargaining instrument when urging pharmaceutical companies to reduce drug prices. Several countries have threatened to issue compulsory licenses in the face of astronomical drug prices; the threat alone has been enough to force pharmaceutical companies to lower their costs. In 2001, Brazil threatened to seek a compulsory license for Viracept, a HIV/AIDS drug patented by Swiss pharmaceutical giant Roche. The company eventually cut the price by 40 percent. The same year in Canada, the government threatened to issue a compulsory license for Cipro in response to the anthrax scare. Bayer, the manufacturer of Cipro, agreed to lower the price.

With the threat of epidemics like avian flu still looming, compulsory licensing has never been more