Chapter 3 reframing the issue: the wto coalition on intellectual property and public health, 2001#



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Chapter 3


REFRAMING THE ISSUE:

THE WTO COALITION ON




INTELLECTUAL PROPERTY AND PUBLIC HEALTH, 2001#


John S. Odell and Susan K. Sell

#The authors are deeply indebted to participants in this negotiation and campaign who made time to speak to us on the understanding that their identities would not be divulged. Odell is grateful to USC, its School of International Relations, and its Center for International Studies for supporting his research, and to the Graduate Institute of International Studies, Geneva, for its hospitality while he conducted research in 2002. Susan Sell would like to thank Aseem Prakash for his insight and collaboration on related research. We benefited from comments on an earlier draft by Didier Chambovey, Heinz Hauser, Carlos Pérez del Castillo, Klaus Stegemann, an anonymous referee, other participants at our Geneva conference, and other members of our research team. None of these friends should be held responsible for use we made of their advice.



Introduction

In November 2001 the World Trade Organization’s ministerial conference in Doha adopted a Declaration on the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Public Health. The process that led to this declaration is one of the most interesting episodes in recent international economic negotiations. A coalition lacking obvious power achieved significant, unexpected gains despite careful opposition from powerful transnational corporate firms and their home governments. This chapter seeks both to explain this puzzling outcome and to consider whether it suggests any generalizations that are likely to be useful in other cases as well.

Like all negotiation outcomes, this one has two dimensions: whether agreement was reached and the agreement’s terms. Given the chasm between the two camps’ perspectives, this agreement itself is surprising. Given the great power disparities, the gains of the developing countries are also surprising. These gains are defined relative to the status quo prior to the 2001 talks. The 1994 TRIPS agreement, whose origin is discussed in chapter 2 on the Uruguay round, established obligations of WTO member states to comply with certain international rules protecting the rights of owners of patents and copyrights. Many national laws allow the government to violate patent rights under some conditions. Thus TRIPS too permitted countries to seize patents and issue compulsory licenses (for example authorizing a domestic firm to produce and sell generic equivalents of a brand name drug without permission from the foreign inventor) under “a national emergency or other circumstances of extreme urgency” and for certain other uses. Patent holders must be compensated and such licenses were subject to a number of conditions. Nevertheless, when Brazil, Thailand, and South Africa, facing the catastrophic HIV/AIDS pandemic, sought to avail themselves of these flexibilities, the United States and its global pharmaceutical firms brought intense coercive pressure to bear against their measures. Washington cited their obligations under the TRIPS agreement and implicitly threatened penalties against their trade. Although these complaints were eventually withdrawn, this pressure had a chilling effect on others who might contemplate using the exceptions.

In campaigning for the Doha Declaration a large coalition of developing countries sought explicit assurance that they would not be subject to WTO penalties under TRIPS for addressing health crises. Some of them probably also hoped to weaken the unpopular TRIPS agreement more generally. This bargaining coalition used what we call the mixed distributive strategy (defined in the introductory chapter). The US, Switzerland, and their pharmaceutical firms defended against this initiative with a mixed distributive strategy of their own. They sought to ensure the narrowest possible interpretations of these flexibilities, lest developed country markets become flooded with cheaper generic versions of lucrative brand-name drugs. The final 2001 Declaration was much closer to the developing countries’ initial position and, according to most observers, moved the WTO status quo significantly toward their objectives.i

This outcome was not readily predictable from simple international relations theories based on asymmetrical political or market power or political institutions. We conclude that this outcome was not inevitable because of exogenous conditions, but instead resulted from a sequence of rational choices that also could have gone in other directions. The negotiating process including those choices played a key role.

Our main specific point, stated as a possible generalization, will be that a developing country coalition seeking to claim value from dominant states in any regime will increase its gains if it captures the attention of the mass media in industrial countries and persuades the media to reframe the issue using a reference point more favorable to the coalition’s position, other things equal. During the GATT’s Uruguay round, powerful transnational firms and their governments had framed intellectual property protection as a trade issue. They had argued that strong patent protection promotes trade and investment for mutual benefit and that the alternative is tolerating piracy. More recently, TRIPS critics attempted to frame intellectual property protection as a public health issue, arguing that strong protection could be detrimental to public health provision. Reframing in this case was a tactic in a distributive strategy (for gaining at the expense of the US and other property owners’ positions.)ii This case also suggests three additional hypotheses.

We use the single case study method, since our purposes are to interpret an interesting instance, to trace a process, and to generate hypotheses for wider investigation. This case of negotiation, like every case, was unique, and we do not claim that any instance can prove any theory decisively. Our purpose is not to test or prove a hypothesis. But uniqueness is not necessarily a barrier to generating new possible generalizations that are worthy of checking in other cases.

The next section lays out the reasoning behind four hypotheses. Subsequent sections use them to interpret this case through a chronological narrative. The chapter concludes by considering possible objections to these interpretations and looks beyond this case to others.




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