The 258 civil society organizations (CSOs) that sent an open letter to the World Trade Organization (WTO) and its members could not be more concerned. On April 17, 2020, when they asked the WTO to stop all trade and investment treaty negotiations during the COVID-19 outbreak and refocus on access to medical supplies and saving lives, the virus death toll surged past the 150,000 mark.

Trade and health: a prisoner’s dilemma

On the same day, the WTO organized a virtual meeting, in which its director general stressed the importance of “maintaining open markets for trade in laying the groundwork for a strong recovery.” The virtual meeting also discussed if the WTO members “would be open to formal decision-making through virtual meetings or written procedures until traditional in-person gatherings can resume.”

The letter’s endorsers that represent social movements in 150 countries, such as the United States, Brazil, India, Australia, many European countries and Tunisia, said they were shocked by “the business as usual” attitude of the WTO. For them, not only does the institution’s agenda ignore technological deficiencies of some developing countries, but it also diverts the efforts and resources from the most important purpose of combating the virus.

Many of these CSOs, such as the Third World Network, Oxfam, Greenpeace, Arab NGO Network for Development and the Tunisian Observatory of Economy, have been advocating for a fair distribution of world resources and fighting against the adverse impact of free trade on social welfare, especially in the Global South.

The Covid-19 pandemic just seems to revive these concerns. Indeed, access to affordable medicine often stumbles on the binding rules of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). Adopted in 1994, the latter expanded the scope of intellectual property rights, especially in terms of patent protection and conferred more powers to patent holders.

Despite its binding effect, TRIPs offers flexibilities such as compulsory licensing for public health purposes. Barr al Aman has recently stressed the importance of this flexibility and urged the Tunisian government to use compulsory licenses if the prices of health products are excessively expensive and / or if the quantities made available to Tunisia are not sufficient to cover the urgent national need.

Soigner le COVID-19, l’urgence d’une licence obligatoire

However, for many countries the use of the flexibilities is not that easy. According to a study conducted by the WHO and the South Center in 2005, “a number of provisions in recently concluded FTAs between developed countries (essentially the US) and developing countries, pose a real risk of undermining an effective use of TRIPs flexibilities in developing countries for public health purposes.”

Therefore, besides the discrepancy in the priorities scale of both its issuers and its receivers, the open letter brings back governments, drug companies and the public opinion back to an essential question: will intellectual property hinder the access to the potential COVID-19 medicines and other vital medical supplies?

“From the point of view of intellectual property, of course, a tension exists – and it is a tension that exists around access,” Francis Curry, the director general of the World Intellectual Property Organization (WIPO) said back in 2015, at a symposium on innovation and access to medicine held jointly with the WTO and the World Health Organization (WHO) in Geneva.

Curry then added: “on the one hand, what intellectual property does economically is making access a salable commodity, and that is the basis of markets in technology and creative works. But on the other hand, access as a salable commodity… raises questions about the cost and possibility of access.”

A deep-rooted paradox

The roots of this paradox are deep and old. Since the enactment of the first modern patent law in Venice in 1447, there has been a heated debate over the moral and philosophical foundation of patents and other forms of intellectual property such as copyright, trademarks and trade secrets.

As explained by the Stanford Encyclopedia of Philosophy “patent protection is the strongest form of intellectual property protection, in that a twenty-year exclusive monopoly is granted to the owner over any expression or implementation of the protected work.”

The idea of monopoly over ideas was endorsed by philosophers like John Locke (1632 – 1704) and G.W.F. Hegel (1770 – 1831).

The English theorist claims that individuals are entitled to control the fruits of their labor (including their intellectual labor).

The German thinker has rather a personality-based justification as he argues “that individuals have moral claims to their own talents, feelings, character traits, and experiences.”

Another philosophical justification for intellectual property is to be sought in utilitarianism. The utilitarian point of view was explained in the Virginia law review, by Jeanne C. Fromer Associate Professor at Fordham Law School. “Copyright and patent laws are premised on providing creators with just enough incentive to create artistic, scientific, and technological works of value to society at large by preventing certain would-be copiers‘ free-riding behavior,” she wrote.

Do these arguments hold up when the patented intangible work is the formula of a saving-life drug?

Dr. Yusuf Hamied’s answer would be no. When Harvard Business School (HBS) interviewed the founder of the Indian pharmaceutical company Cipla in 2013, he said:

There should be no monopoly… [we are] willing to pay the originator [of drugs] a suitable compensation and India should not be deprived of newer drugs and be at the mercy of the innovators.”

If the HBS featured Dr. Hamied for its Creating Emerging Markets Project, it is because of the man’s exceptional battle against the human immunodeficiency viruses (HIV) that causes acquired immunodeficiency syndrome (AIDS).

Back in 2001, Cipla mixed three molecules– Nevirapine, Didanosine and Zidovudine and came up with a new anti-HIV drug. Dr. Hamied then gave his antiretroviral therapy (ART) to humanitarian organizations and poor Asian and African governments for $350 a year.

That price was thirty times lower than market prices. Suddenly, big multinational pharmaceutical groups were left with their useless patents and with financial shortfalls of billions of dollars. Full of wrath at seeing their monopolies collapse, western multinationals had to lower their AIDS treatment prices by 80%.

While western business groups and media accused Dr. Hamied of piracy, the United Nations organizations described him as India’s Robin Hood of drugs.

When Dr. Hamied gave that interview, the world was still dazed by the 2009 swine flu pandemic and its estimated death toll of 284,000 victims. So, he intuitively evoked the example of the Oseltamivir; the antiviral drug used to prevent and treat swine flu, other subtypes of influenza A and influenza B.

The patent on the Oseltamivir in the US was then held by the Swiss multinational Roche. An epidemic before the patent’s expiry date (2016) would have meant, according to Dr. Hamied, that the destiny of the world would have been in the hands of one company.

In a concluding remark that encapsulated his business philosophy, the Indian scientist said:  “I am a firm believer that if you are in the health care business like supplies, it is not a business per se; it is a business plus you are saving lives. So it has to have a humanitarian angle to it.”

Santé: la bataille autour de la transparence sur le prix des médicaments

“Can we sell more olive oil in Europe? Can we mention that it is a product coming from Tunisia? Would it be possible to postpone the next negotiation meeting? What guarantees do we have that our business owners and investors will be allowed on the European territory?” 

These few questions may seem simplistic, and obviously caricatural… but they eventually sum up, in a nutshell, the Tunisian negotiators discourse. 

Swapping dates, oranges and olive oil for Euros, but what is the counterpart? Where will the thousand tons of wheat consumed by Tunisian households in the form of subsidized baguettes and flour come from? What should the agricultural sector serve for? feed the local population or increase the foreign currency reserves? Should the right to healthcare take precedence over the intellectual property rights and the profits they generate for pharmaceutical companies?
These fundamental questions do not seem to be part of the Tunisian negotiators’ preoccupations. Is this an exaggerated statement? Perhaps. 

At the risk of recalling the obvious, the European Union is Tunisia’s first trade partner. But the EU is by no means a charity organization. It is an economic and political entity, one of the most powerful in the world, which position is being threatened by the USA and China. 

It is both predictable and legitimate that the EU defends its economic interests and its sphere of political influence in the region. And it should be the same for Tunisia. Interests of these actors can converge… but they can diverge as well.

It is not a question of discussing the modalities and extent of deeper free trade with the EU, but of assessing the balance of power and the impact of each article, each paragraph of this agreement on the lives of citizens, but also of the Tunisian State. As Ignacio Garcio Bercero, chief negotiator of the EU, states, Tunisia represents only 0.5% of the European market, while the European market represents more than 70% of Tunisian exports.

Why taking as much interest in Tunisia, then? Why didn’t the negotiation take place at a the Maghreb scale in order to reduce the lack of proportion between the negotiating parties? Indeed, Tunisia is in a relationship of economic and political dependence on the EU. Would Tunisia be able to re-balance or even… better negotiate its dependence? 

The EU and Tunisia are bound by an association agreement since 1995. What conclusion can we draw from it? The evaluation on Tunisia’s part is dragging. The terms of reference used to choose a consulting cabinet were published in January 2017. Selected at the end of 2018, it is barely starting its work just as this article is being written. Our requests to access information about the final interim reports remain unanswered. 

In this series of article about DCFTA, we will first address the ongoing negotiations, happening in the dark. They are the fruit of an investigation led by Fadil Aliriza after a conference by the Tunisian Forum on Economic and Social Rights (FTDES) held in October 2018.

Thereafter, we will concentrate on the topics of food security and sovereignty. The third article will focus on the fragile balance between the right to life and health and the right to intellectual property, a balance which might be challenged by the DCFTA. 

Our demands since October 2018 to meet the Tunisian chief negotiator, Hichem Ben Ahmed, currently Minister of Transport remained fruitless. His European counterpart, Ignacio Garcio Bercero, chose to answer our questions by email. 

Finally, the critical perspective is raised to us by Maha Ben Gadha, head of the economic programs at the Rosa Luxemburg Foundation – North Africa. Beyond these articles, our media, Barr al Aman, will produce meetings and Facebook lives to assess these embryonic public policies.  

Let us imagine a private, parallel and transnational justice to defend the interests of investors considered “not enough protected” by Tunisian laws. Let us imagine medicines whose production and marketing were prohibited because of extensions in protection periods, additional to those originally planned by the patent. 

Let us imagine calibrated, certified, imported and European-norm-compliant potatoes in our supermarkets. Let us imagine an adaptation of our job market to European expectations…

The Deep Comprehensive Free Trade Agreement (DCFTA) proposed to Tunisia by the EU certainly has an advantage: it questions us about who we are, and what we want to be.

Translated by An Hoang-Xuan