WTO ministerial conference adopts declaration on TRIPS and public health

In November 2001, the 4th Ministerial Conference of the World Trade Organization adopted a Ministerial Declaration on public health and the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPS Agreement"). The declaration represents a modest advance in addressing concerns that strict patent laws, and threats of trade sanctions, will be a barrier to most of the world's people with HIV/AIDS accessing affordable medicines. The full significance of the declaration remains to be seen, as it depends on what political impact it has at the WTO and on its member countries, and what legal impact it will have in the interpretation of the TRIPS Agreement.     

Developments in South African law on HIV/AIDS

South Africa has a powerful legal framework that offers high levels of protection to people living with HIV/AIDS, yet discrimination against people living with HIV/AIDS continues to be widespread in South African society. Court cases decided in 2003 regarding children's issues and health care testify to this ongoing discrimination, and to the potential of the South African legal system to uphold the rights of people living with HIV/AIDS.     

Québec: an outbreak of HIV/AIDS-related stigma and discrimination

In the space of a few weeks in January 2004, actions by three different institutions in Québec combined to threaten the human rights of people living with HIV/AIDS, raise the spectre of mandatory HIV testing, and create unnecessary public fears about the spread of HIV infection. In response to what they called "the worst weeks in recent history for people living with HIV/AIDS in Québec," the Canadian HIV/AIDS Legal Network and COCQ-Sida (the Québec coalition of community-based organizations fighting AIDS) called for a province-wide campaign against HIV/AIDS-related stigma and discrimination. A victory was achieved when a Montréal catholic seminary announced that it had backed down from its initial proposal to mandatorily test all applicants for priesthood for HIV, but much more is needed to fight the rapid outbreak of mandatory-testing proposals.     

Strength or weakness?

Doing the electronic rounds, at the tail end of 2007, was amuch-forwarded email circular concerning an article in the 7November issue of China Intellectual Property News by YongshunCheng. The author, a former senior judge and deputy directorof the Intellectual Property Division of the Beijing High People'sCourt, currently directs the Beijing Intellectual Property Institute. According to this circular the article, translated into English,argues that the proposed US patent reform bill     

'Piracy' provisions under the Enforcement Directive and patent infringement

The Court of Genoa has issued its first decision on the applicationto patent infringement of the remedies introduced by Directive2004/48 on the Enforcement of Intellectual Property Rights,dismissing the appeal filed by Princo against a precautionaryseizure order over its movable and immovable property issuedby a judge of the Genoa IP Chamber on the grounds that the patentinfringement was committed intentionally and on a commercialscale.     

Access to treatment as a right to life and health

In some countries in Latin America, in the absence of leadership from governments, activists have had to resort to the courts to obtain access to HIV/AIDS treatments for people with HIV/AIDS. In his presentation to the XIII International AIDS Conference (abstract TuOrE458), Edgar Carrasco, of Acción Ciudadana Contra el Sida (ACCSI), discusses the process that was followed in Venezuela. The presentation describes the very limited access people with HIV/AIDS had to antiretroviral therapies and treatments for opportunistic infections under Venezuela's health and social security systems. It provides details of lawsuits that were launched on behalf of several individuals living with HIV/AIDS, and that resulted in the courts ordering the government to provide treatments for these individuals and, eventually, for all people with HIV/AIDS in Venezuela. The presentation concludes that recourse to the courts is a useful tool for activists and that civil actions launched on behalf of people with HIV/AIDS can serve as an example for people with other chronic diseases.     

WTO: US and Argentina settle dispute over patents and data protection

In May 2000, supplementing an earlier complaint filed in May 1999, the US filed a complaint against Argentina, alleging that its patent laws violate the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property (the TRIPS Agreement). The gist of the US complaint was that Argentina's law failed to provide: (1) adequate protection against "unfair" commercial use of undisclosed test data submitted in order to get market approval of pharmaceutical products; (2) certain safeguards for compulsory licences on an invention granted on the basis of inadequate working by the patent holder; and (3) adequate measures to prevent infringements of patent rights. The US also alleged that Argentina denies certain exclusive rights of patent holders, such as the exclusive right to import the patented product into the country. At the end of May 2002, the US and Argentina notified the WTO that they had reached a "mutually agreed solution," without prejudice to their respective rights and obligations under WTO agreements, and the US has withdrawn its complaint.     

US files WTO complaints against Brazil over requirement for "local working" of patents

At the end of May 2000, the US (later joined by the European Communities) filed a complaint against Brazil at the World Trade Organization (WTO), alleging Brazil was in violation of its obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) and the 1994 General Agreement on Tariffs and Trade. Brazilian legislation that came into force in 1997 establishes that, in order to enjoy exclusive patent rights in Brazil, the holder of a patent on an invention must satisfy a "local working" requirement. In other words, the patent holder must "work" the patent in Brazil to enjoy full patent protection. If it fails to do this, the law says it shall be subject to the possibility of the government issuing a compulsory license, allowing someone else to use the invention and pay a royalty fee to the patent holder.     

AIDS Law Project receives AIDS and human rights award

The AIDS Law Project, the recipient of the 2nd Annual International Award for Action on HIV/AIDS and Human Rights, has been at the forefront of the struggle for human rights for people living with HIV/AIDS in South Africa. It has played a major role in convincing the South African government to implement a national HIV treatment plan.     

Barcelona 2002: law, ethics, and human rights. Juggling individual and collective concerns with respect to HIV/AIDS policies

Efforts to prevent the spread of HIV infection sometimes give rise to tensions between individual and collective rights. This article, based on a presentation by Nelson Varas-Díaz (abstract TuOrG1171), explores these tensions in the context of the laws and policies of eight Latin American countries: Costa Rica, Dominican Republic, Ecuador, Guatemala, Honduras, Nicaragua, Panama, and Puerto Rico. The article describes five elements of the response to HIV/AIDS in which tensions between individual and collective rights have surfaced: the participation of people living with HIV/AIDS on national commissions; the ability of HIV-positive persons to access antiretroviral medications; HIV-antibody testing practices; the confidentiality of health information; and the rights and duties of people living with HIV/AIDS. The article concludes that the success of programs designed to prevent the spread of HIV infection depends on the ability of societies and governments to balance the tensions between individual and collective rights.     

Barcelona 2002: law, ethics, and human rights. Toward a more meaningful involvement of people living with HIV/AIDS

All too often, the involvement of people living with HIV/AIDS in AIDS NGOs is tokenistic rather than meaningful. This article, which is based on a presentation by Chistophe Cornu (abstract WeOrG1292), demonstrates that, under the right conditions, the involvement of people living with HIV/AIDS can be beneficial both for the individuals and for the NGOs. The article describes the beneficial impacts of involvement observed in a study conducted in Burkina Faso, Ecuador, India, and Zambia. It also discusses the harmful effects of involvement, for individuals as well as NGOs, identified by study participants. The article concludes with a series of recommendations for NGOs to maximize the benefits of involvement.     

Barcelona 2002: law, ethics, and human rights. Introducing ARVs in resource-poor settings: challenges and consequences

In most industrialized countries, AIDS mortality has plunged sharply with the advent of antiretroviral therapy. Yet the majority of people living with HIV/AIDS do not have access to modern HIV care, and some experts have argued that introducing such therapy is not a ranking priority. In this article, which is based on a plenary presentation at the XIV International AIDS Conference, Paul Farmer presents the experience of an integrated HIV prevention and care project in rural Haiti, and explores the challenges to national AIDS programs and other bodies in the "least developed" countries as more resources are made available for HIV prevention and care.     

Nova Scotia renews its HIV/AIDS strategy

On 1 December 2003, after a five-year process of consultation and planning, Nova Scotia embarked on a new HIV/AIDS strategy. It replaces the first strategy, launched a decade earlier. The renewed strategy is meant to promote collaborative action on the determinants of vulnerability to HIV infection and on the capacity of people living with HIV/AIDS to achieve optimal health and quality of life.     

Canada loses appeal of WTO panel ruling on minimum patent terms

In the last issue, we reported on a ruling of a Panel of the World Trade Organization (WTO) that Canada was in breach of the international Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement). The Panel found that Canada's Patent Act does not provide the minimum patent terms required by the trade agreement. Canada appealed that decision, but on 18 September 2000 the WTO Appellate Body upheld the Panel ruling.     

South Africa: TAC, COSATU and allies file complaint of excessive pricing

On 19 September 2002, the Treatment Action Campaign (TAC), the Council of South African Trade Unions (COSATU), the Chemical, Energy, Paper, Printing, Wood and Allied Workers' Union (CEPPWA), and eight individuals (health-care workers and people living with HIV/AIDS) launched a complaint with the country's Competition Commission against two major transnational pharmaceutical companies. TAC and its allies allege that GlaxoSmithKline (GSK) has engaged in excessive pricing for its antiretroviral drugs Retrovir (zidovudine or AZT), 3TC (lamivudine), and Combivir (AZT/lamivudine), and that Boeringer Ingelheim (BI) has engaged in excessive pricing of its antiretroviral drug Viramune (nevirapine).     

Fear of persecution not adequate to claim refugee status

In Delgadillo v Canada, the Federal Court of Canada upheld an Immigration and Refugee Board (IRB) decision to refuse refugee status to a Mexican gay male refugee claimant because he had an Internal Flight Alternative (IFA). Although the court reached this conclusion, it nevertheless agreed that Mr Delgadillo had a legitimate fear of persecution. As well, the court made an important finding--that people in Mexico who are living with HIV/AIDS do not have an IFA.     

Barcelona 2002: law, ethics, and human rights. "I have no watch, but I haven't missed a dose"

Anyone who was fortunate enough to hear Fred Minandi speak in Barcelona must have been moved by what he had to say. Mr Minandi is a person living with HIV/AIDS from Chiradzulu, Malawi, who spoke at Time to Treat: Transforming AIDS Treatment from Right to Reality, a satellite meeting of the XIV International Conference on AIDS held on 7 July 2002, and sponsored by Médecins Sans Frontières (MSF) and the Health Global Access Project. His presentation is a passionate, first-hand account of how antiretroviral therapy has transformed lives, how it has given hope to people, how it has helped to reduce the stigma against AIDS in his community, and how it has contributed to prevention efforts.     

Media frenzy greets release of Newfoundland man from prison

Sensationalist media coverage greeted the release of a man convicted more than a decade ago for spreading HIV in Conception Bay North. Concerns have been expressed that the extensive coverage of the release will further stigmatize all people living with HIV/AIDS.     

Barcelona 2002: law, ethics, and human rights. Using the law to improve access to treatments

The XIII International AIDS Conference in Durban, South Africa in July 2000 focused worldwide attention on the problem of accessing treatments in developing countries. In the interim, thanks to the work of activists - from demonstrations to court cases, and from acts of public courage by people living with HIV/AIDS to ongoing lobbying of politicians and trade negotiators - some very significant developments have occurred. But the reality is that the vast majority of people living with HIV/AIDS still lack access to affordable, quality medicines. This article, a summary of a paper presented at "Putting Third First: Vaccines, Access to Treatments and the Law," a satellite meeting held at Barcelona on 5 July 2002 and organized by the Canadian HIV/AIDS Legal Network, the AIDS Law Project, South Africa, and the Lawyers Collective HIV/AIDS Unit, India, explores three approaches for improving access. In the first part, Richard Elliott provides an overview of the state of the right to health as embodied in international human rights law; comments on the experience to date in litigating claims to the right to health; and identifies potential strategies activists can adopt to advance recognition of the right to health. In the second part, Sharan Parmar and Vivek Divan describe price-control and drug-financing mechanisms used by industrialized countries to increase the affordability of medicines; and discuss how some of these mechanisms could be adapted for use in developing countries. Finally, Jonathan Berger describes the use of litigation in the courts by the Treatment Action Campaign in South Africa.     

Russia: new criminal process code promises a more tolerant incarceration policy

The population of Russian prisons is one of the largest in the world: as of 1 April 2002, there were 1,220,368 people living in prisons in the country. Some data suggest that 15 to 20 percent of all people living with HIV/AIDS in Russia are in prisons and detention facilities.