And Medicine For All
p>In a world where “globalization” increasingly functions to legitimize the appropriation of wealth by elite actors without regard to national boundaries, the Indian Patents Amendment Bill passed in March 2005 comes across as a double-edged sword. On one hand, we must justifiably mourn the capitulation of the “last holdout” against the repressive regime of patents and royalties that the World Trade Organization (WTO) has thrust down the throats of the dispossessed of the world. On the other hand, we must celebrate, however mutedly, the concessions that the Indian left, working off the efforts of Peoples’ Movements the world over, was able to salvage from the current Indian government in this version of the Act. For example, all pharmaceutical products patented before March 2005 have been excluded from its scope. Also, the Act gives permission to Indian manufacturers to export drugs to other Third World nations without WTO oversight, and imposes restrictions on patent-life extensions by multinational corporations through frivolous “modifications” to existing drugs. It also provides the option of “pre-grant oppositions” to patents, which would enable citizen groups to proactively challenge applications to patent indigenous products like neem, turmeric or basmati rice.
Based on some of the responses to the Indian Patents Act in the past two months, one can see hopes for the emergence of a concerted global coalition against the WTO’s privatizing ambitions. It is not often that global NGOs (like Oxfam and Medecins Sans Frontiéres) and former heads of state of the very countries pushing for patent regimes (such as Jacques Chirac of France) speak in favor of the Robin Hoods operating in the forest of global capital. In an ironic twist, the deadly AIDS epidemic in southern Africa and the criminal intransigence of multinational corporations in the pharmaceutical sector have emerged as powerful allies in “the war of position” that the Indian left has waged against the champions of the global economic order.
In order to understand India’s current “capitulation” to the WTO demands, it is instructive to view the March 2005 Act in a temporal continuum. India, along with a variety of other nations, had opposed the GATT’s aspirations to have globally accepted patent laws since the origins of the organization in 1946. It eventually enacted its own legal framework, through the Indian Patents Act of 1970. Indian patent law specifically refused to recognize “product patents,” restricting patentability to manufacturing processes. Indian pharmaceutical manufacturers had taken advantage of this loophole in the law to exercise their ingenuity and reverse-engineer a host of important drugs, manufacture them through processes that multinationals had not patented, and make them inexpensively available to the Indian population, and through an emergent export network, to poor countries in Asia and Africa. However, the GATT intensified pressure on India and other product-patent “violators” such as Italy, South Korea, Taiwan and others, especially during the decade between 1985 and 1995, under a series of negotiations that are collectively known as the “Uruguay Rounds.” It is important to remember that the GATT had developed teeth in the 1980s through pressures exerted on its behalf by the IMF and the World Bank, countries like India having been rendered hopelessly indebted by then. One by one, the threat of sanctions, and active collusion between multinationals, international regimes and local elites in the Third World, whittled away the opposition. Recalcitrant countries fell into line, and by the time the 1995 meetings of the GATT commenced in Marrakesh, Morocco, India was completely isolated. The Indian contingent at that meeting finally succumbed, agreeing to grant 20-year patents to global pharmaceutical products (they negotiated a 10-year grace period, which were due to expire in 2005, hence the current urgency by the Indians). The Marrakesh meeting promulgated the infamous TRIPS (Trade Related Intellectual Property Rights) regime, which has now become the justifiable focus of popular outrage by left activists the world over. The TRIPS protocol had the potential to allow near-perpetual patent protection to multinationals over drugs, local remedies, microorganisms, computer programs etc. through iron-clad property rights and patent extensibility. In theory, TRIPS could allow Sun Microsystems to ask the island of Java to change its name to avoid “patent infringement!”
India’s capitulation at Marrakesh however, did not dampen the spirits of activists who continued to fight, and made several small gains, which eventually added up to something that seemed like momentum. The valiant fight by people’s groups at the first WTO ministerial in Seattle in 1999, the election of Chavez in Venezuela and Lula in Brazil, the emergence of transnational networks such as those seen in the World Social Forum meets in Porto Alegre and Mumbai, the miraculous unseating of the BJP government in India in 2004 (and the substantial electoral gains made by Left parties), all contributed to strengthening the resolve of those opposed to the institutionalization of the Patents regime. In India, the Congress-led coalition, dependent on Left parties for survival, eventually gave in and made substantial modifications to the proposed Act that had been advanced by the BJP government (a version that had inexplicably added to the restrictions imposed by the WTO, such as the inclusion of computer programs and micro-organisms within patent purview, despite no major concessions having been demanded on that front). Various escape clauses that had hitherto been removed were written back into the 2005 version. Thus, while far from ideal, the new Act could be seen as a minor victory (although it is not a done deal as yet, it is most certainly going to be opposed at WTO tribunals by the European Commission and US trade bodies).
The criticism of the Indian Act by NGOs and Oxfam frankly ring a bit hollow because they were never really around to support anti-patent activists in the tumultuous decade of 1985-1995, when India and the world left were isolated and browbeaten by the community of elite nations and multinationals. It is equally pointless to suggest that India had any major maneuvering room left in 2004-2005. Their only choice other than the one it eventually made would have been to opt out of the TRIPS protocol altogether, which would most certainly have opened it to the possibility of international sanctions, exclusion from a potentially influential role in the WTO, and marginalization from an emerging intra-WTO debate on the legitimacy of TRIPS. Having complied minimally with the letter of the law in passing the March 2005 Act, India remains an important player that can team up with Brazil, Venezuela, and hopefully Mexico, Nicaragua and others, in creating an anti-TRIPS lobby in the WTO. Of course whether the WTO would have followed through on the sanctions against India remains a debatable point. Indian environmentalists like Vandana Shiva maintain that India showed unseemly haste in capitulating.
One must also understand that this does not in any way constitute a major victory for the world’s poor. For one, India’s opposition to WTO’s suggestions was facilitated by intense lobbying by the Indian pharmaceutical industry, which is no major friend of the poor. One cannot discount the possibilities of furtive pacts between world pharmaceutical companies and the Indian sector to exacerbate the drug availability situation. Loopholes in the Act make such suspicions seem realistic (for example, one such loophole suggests that 7500 recently patented drugs can only be manufactured in India after paying “reasonable royalties” to the original company, whatever that term means). The reality is that pharmaceuticals have become increasingly expensive in India and in the rest of the third world since 1995, at a rate that goes beyond traditional explanations such as inflation. Also, the Act represents another baby-step down the slippery slope toward the privatization of public goods by those who have access to the opaque legal framework of international patents. In addition to medicines, seeds, microorganisms, computer programs and herbal remedies continue to be in danger of being subject to this privatization.
The task of left activists the world over is cut out for them. They must continually mobilize against global regimes like TRIPS that deny the poor of the world a right to live in dignity, and without the additional suffering that comes from restricted access to food and medicine. If we do not do so, the next epidemic or drought will make the current AIDS crisis or the food crisis in Africa look trivial in comparison.