Minutes - TRIPS Council - View details of the intervention/statement

Ambassador Alejandro Jara (Chile)
207. The representative of Australia said that the proposed preambular language that had been introduced by the United States reflected considerable work by the co-sponsors of this text, which included her delegation, to find the middle ground while recognizing the need for strong, effective and balanced intellectual property protection. The proposed text represented a good starting-point and she encouraged other Members to approach the issue in an equally constructive manner. In the debate, the TRIPS Agreement had to be regarded as part of the solution to the issue of access to affordable medicines and not as part of the problem. The Agreement struck a balance between public health policy needs and providing sufficient incentives for investment into research and development of drugs. The overall problem was a complex one cutting across global development and health policy and solutions could therefore not just be found in reviewing trade rules. The TRIPS Agreement contained provisions allowing Members to take measures to enable the importation or production of medicines under compulsory licences to address circumstances such as national health emergencies. The gravity of the HIV/AIDS pandemic had highlighted the need to address developing countries' concerns over access to medicines at Doha. The current uncertainties could be resolved in common sense language without reopening or limiting the TRIPS Agreement. 208. Continuing, she welcomed proposals that had been made aimed at improving access to affordable medicines in developing countries, including those regarding global tiered or differential pricing systems, but expressed the view that the substantive discussions on such arrangements were to be addressed more appropriately in other fora, such as the WHO, UNAIDS, UNDP and the Global AIDS and Health Fund. In general, concerns about the leakage of drugs to unintended markets could be addressed by drawing on existing precedents which were managed directly through bilateral arrangements. Therefore, there was no need to consider this issue in the examination of Article 6 of the TRIPS Agreement. The TRIPS Agreement did not constrain parallel importation apart from the national treatment and MFN disciplines and this flexibility at the multilateral level should be retained. 209. She said that, at the meeting of the Council in April 2001, it had already been endorsed that governments who faced national health emergencies, such as the HIV/AIDS pandemic, could use the compulsory licensing provisions of the TRIPS Agreement. The TRIPS Agreement clearly enabled them to put in place measures to produce medicines without the authorization of the patent holder in certain circumstances. There were a number of points in this area on which Members had demonstrated a commonality of view. 210. As regards the proposal that had been introduced by Zimbabwe, she said that calls for a moratorium or due restraint for initiating dispute settlement action were understandable. However, Australia expected that the results of the Ministerial Conference would address the underlying concerns and provide surety to ward off any possibility of frivolous disputes. A moratorium was a blunt instrument that sent the wrong signal to countries seeking to increase their research and development capacity through investment. Bearing in mind these parameters, her delegation would look constructively at the text proposed by the developing countries. Regarding calls for an extension of transitional periods for developing countries and LDCs, while Australia was sensitive to the reasons behind these proposals, and appreciated the significant efforts that had been made by countries in implementation, her delegation wished to point out that Article 66.1 already provided the possibility for LDCs to seek extensions. It was difficult to see how the proposal could be applied broadly to developing countries, given that many of them had already implemented the TRIPS Agreement. The key issue was to provide technical assistance in accordance with Article 67 to enable developing countries and LDCs to take advantage of the development benefits that could be derived from the TRIPS Agreement.