Examination of Witnesses (Questions 843
- 859)
TUESDAY 22 APRIL 2008
Mr Philippe Petit and Mr Antony Taubman
Q843 Chairman: Welcome.
Thank you very much for your time and for coming here today. As
you know, this is the Committee on Intergovernmental Organisations
and in this particular study we are looking at the way the intergovernmental
organisations address the issue of contagious diseases and the
UK's financing of those organisations, its involvement with them,
and how it might or should change. The events here are being recorded,
as you can see. You will have an opportunity to see the record
in draft form before it is finalised and published, so if you
want to make any factual corrections you will be free to do so.
We would very much like you to treat this as an exchange of views.
So, if either of you want to answer questions, please do so. After
we have finished, if there are things that we have not covered
that you think we ought to have, or you want to clarify, then
please feel free to write to the Clerk at the House of Lords.
Perhaps I could start by asking you to introduce yourselves in
terms of what your job roles are, your positions in the organisation,
and then I want to ask about the organisation itself.
Mr Petit: Thank you very much. Good afternoon,
my Lords. It is a pleasure to meet you today. I am Philippe Petit,
Deputy-Director-General of the World Intellectual Property Organisation,
after having been a diplomat and ambassador. Tony Taubman is the
Head of the Global Intellectual Property Issues in the organisation.
Before starting, I would say that, as members of the Secretariat,
we can only express the informal views of the Secretariat which
are not officially confirmed positions of the organisation. That
being said, and please note it, we are at your disposal to provide
any information that you might find useful for your mission.
Q844 Chairman:
Mr Taubman, would you like to add anything? You are in Global
Intellectual Property Issues.
Mr Taubman: It is an awkward division name,
it is called the Global Intellectual Property Issues Division.
That is long shorthand for a cluster of related issues, ranging
from traditional knowledge, genetic resources and folklore, through
to such issues that you are touching on—public health, human
rights and issues related to biotechnology, life sciences, innovation,
food security and so on.
Q845 Chairman:
To help me understand this a bit, by background are you both lawyers?
Is that the background you expect in a job like yours? Is that
right?
Mr Petit: It is not contradictory with being
a diplomat!
Q846 Chairman:
Obviously, we have a particular interest in the TRIPS Agreement
and you administer a number of the international agreements, but
TRIPS is very much the WTO one as well. There is an obvious question
here for us as to who calls the shots, in a way—WTO or WIPO.
Perhaps you could start by talking us through the relationship
between the WTO and WIPO, particularly in relation to TRIPS.
Mr Petit: In the questions we received there
is mention of this relation operating as a tandem between the
two organisations. The question is: is it fair to suggest that.
I would say it is neither fair nor unfair, it is not exactly accurate.
The TRIPS Agreement is a compendium of the 21 WIPO Treaties which
existed in 1995 when WTO was formed and the TRIPS Agreement was
concluded. It does not integrate the most recent WIPO Treaties,
like the two Internet Treaties and the Singapore Treaty on trademarks.
TRIPS and WIPO have different roles. WTO has the capacity to sanction
violations of intellectual property protection as established
in the TRIPS Agreement at the time of international commercial
transactions. The WIPO mission is to help each country to enhance
its own innovation and creation capacity through intellectual
property and make the national intellectual property systems more
compatible and user-friendly around the world. If you would keep
the image of a tandem in your minds, you would have to consider
that the tandem is ridden by an elderly teacher and a much younger
policeman. Of course, as in your question, the young policeman
with his weaponry attracts much more attention and is more visible
than the elderly teacher.
Q847 Chairman:
That is a rather nice analogy.
Mr Petit: The other part of the question was
with which other international governmental organisations does
WIPO collaborate in the public health arena. I think Tony can
answer that directly.
Mr Taubman: We have a wide range of collaboration
with the World Health Organisation. Again, I think there is a
tendency to see these forms of collaboration in power terms, as
you say, in terms of who calls the shots or who is on top. Certainly,
at the practical level, the desk level I work on, it is simply
a natural collaboration. We are working with the WHO on a range
of issues which I can touch on in more detail later. There is
an absolute hunger for more focused, practical, technical information
to provide a factual foundation for policy-making and the kinds
of choices that WHO has to make on public health issues. We do
not see our role as contending with them or offering a competing
vision of the world, but rather providing what we can in terms
of technical information, whether it is about the legal issues
or the practical impact of patenting activity, that kind of thing.
I have Exhibit A here, which is a number of the studies we have
prepared for the WHO. We are scrupulous to respond to the needs
expressed by the WHO as the organisation formulating the policy
at the international level on public health. We do not attempt
to second-guess their judgments. We respond to the needs expressed
and try to fulfil them with factual input. There is a specific
focus, of course, on certain TRIPS mechanisms in relation to access
to medicines. Again, our approach, as you say, has been as lawyers
to provide practical advice at that functional level rather than
saying who has got it wrong, who has got it right or who is in
charge here. It is hard to convey, but it is a more practical
collaboration.
Q848 Chairman:
Could you give us some examples, particularly in relation to WHO
and public health. What sort of things would give us a picture
of the way you are working with them?
Mr Taubman: For example, in the area of neglected
diseases, which was a concern of the WHO Commission on Intellectual
Property Rights, Innovation and Public Health, we have developed
a set of what we call patent landscapes, which provide snapshots
of relevant patenting activity in these fields. For example, on
some of the rare diseases, what is the pattern of activity in
relation to research on leishmaniasis, leprosy, TB or malaria;
what is actually going on out there; who are the new players;
what are the established players doing; and geographically what
is going on? The experience in Europe is very different from the
experience in sub-Saharan Africa. To get a practical picture.
There is a tendency to see the world through a single lens but,
of course, patents are territorial rights, they are very different
in different jurisdictions. To break the issues down in a practical
way is one of the means of clarifying options.
Q849 Chairman:
You say "in a practical way" in order to do what—help
the WHO allow a country to do something which it thinks it would
not otherwise be allowed to do? Is that what you mean?
Mr Taubman: It goes in two directions. One is
looking at the overall trends, so from a broader policy perspective,
what are the innovation patterns relating to neglected diseases.
That is one of the broad issues. It is more of an overview, a
macro—
Q850 Chairman:
That is the overview bit which says that these rules or these
laws might apply in this situation in that country. But what about
the more focused bit?
Mr Taubman: We have indeed been working with
the WHO on a more focused question, which is, put simply: is this
patent in force or is it not, in relation, say, to Kenya or to
Ghana. It is a technical matter: that is simply a piece of factual
information about the presence or absence of a patent in that
country, and its legal status there. Because the information is
far easier to get for the big jurisdictions, US, Europe and Japan,
there is a tendency to focus in those areas, but legally the situation
of a patent in the US is irrelevant if you are in South Africa
or Venezuela. It is a matter of matching up the available information
with policy need. It does get down to very practical matters,
such as in relation to specific antiretroviral drugs and whether
there is a patent in force in this country or not. Ultimately,
that is a strictly legal matter. We do not give legal advice because
that would be a judgment about the law of Ghana or Kenya, but
the broader information is vitally needed. Essentially it is a
technical question as to how you get access to the information
and get it in front of the policy-makers in usable form.
Q851 Chairman:
Could you give me an example of where you have been able to help
the WHO interpret or relax, whatever the appropriate word is,
relevant rules in order to enable them to get the drugs or vaccines
through to the people who need them? Have you got any examples
of that where they would have said, "Look, we need help on
this. We know the drugs are needed there but we cannot get them
through, there is a legal blockage to do with either the WTO or
WIPO, please help us"? Can you give me an example of that?
Mr Taubman: Not yet, unfortunately, because
this programme I have mentioned is just ramping up at the present.
Literally two weeks ago we had a workshop exercise bringing in
WHO to look at methodology, to look at policy needs, and to match
them up a lot more. I cannot point to a specific outcome from
that point of view.
Q852 Chairman:
Then put it the other way around: have you had situations where
the World Health Organisation has said, "We need this help
but, in so many words, you have not been able to help us"?
Mr Taubman: No, I do not think so. As I said
earlier, we have been concerned not to step into their area of
competence, which is setting their priorities on public health,
so our work has been tracking the policies set by their Commission,
by the Intergovernmental Working Group, so we take the lead from
them. It is currently a matter of ramping things up. If you think
of this from a global perspective, these are not easy questions
to answer. There is a temptation to skim the surface and get a
quick answer, but it is almost always misleading. We are deliberately
taking a bit of time to ramp it up in the expectation that this
will ensure that the answers will be better and quicker, more
responsive next time.
Q853 Chairman:
Perhaps I could put this question to Mr Petit. We have been told
that both WIPO and WTO at times have got in the way, not necessarily
intentionally, of delivering drugs to people who, if they do not
get them, die; and they would say somehow or other we need to
clear this blockage. What would you say to that?
Mr Petit: There is simplification, where some
people consider that intellectual property is the obstacle against
access to medicines. This is a very serious accusation, because
it would mean intellectual property would be an obstacle to the
right to health and the right to life. Intellectual property is
one thing and access is something different. Intellectual property
is one of many elements which intervene in the access. Other elements
are price, health services, availability of the medicines and
so on. Intellectual property is one of the elements and that is
why they are having these negotiations in WTO about intellectual
property for medicines. The TRIPS Agreement has now been amended
so that the developing countries which are able to produce generic
medicines can produce them under a compulsory licence, not only
for their own needs but also for the needs of least developed
countries which are not able to produce these generics. This helps,
but it does not solve the problem of access to medicines when
there are many other aspects, including the price policy by pharmaceutical
companies. There has been a big evolution in that regard since
the famous case in South Africa where pharmaceutical companies
got the feeling that their image was becoming very bad and they
had to change it. I repeat, it is not only a matter of intellectual
property, although intellectual property is one of the elements.
Q854 Chairman:
I do not think any of the organisations would say that it is just
that, I think they all say the major problems are about the infrastructure,
the health structure and so on. But obviously we have an interest
in finding out what blockages there are, whatever they are and
wherever they are. My colleagues might want to come in in a moment.
I liked your image of the tandem, but I just want to ask how much
clout, how much influence do you have with the WTO? If you feel
that something in the WTO's approach to this does make it more
difficult for developing countries to get or use the drugs, or
create the drugs that they need, how much influence would you
have on them?
Mr Petit: I do not think we have any kind of
influence. We have different governing bodies. The WTO has its
own governing body which defines their policy and we have our
own governing body, the Assembly of the Member States, which decides
ours.
Q855 Chairman:
You do not talk to them?
Mr Petit: I cannot say that we have an influence.
The influence at the beginning, as I mentioned, was the fact that
the TRIPS Agreement integrated all the previous WIPO Treaties.
One may think that in the future TRIPS Agreement will progressively
integrate other treaties negotiated in the framework of WIPO,
that is the main link. There is also a cooperation agreement between
WTO and WIPO, which was concluded in 1995 at the beginning of
the TRIPS Agreement, according to which the two organisations
cooperate mostly in technical assistance and capacity-building
for developing countries. In advising on the legislation of developing
countries, WIPO has to advise the countries on conformity of their
draft legislation with the TRIPS dispositions. It is an agreement
between the two organisations that WIPO has to advise them on
the compatibility of their legislation with the dispositions of
the TRIPS Agreement. Of course, we do not decide for the developing
countries, but we are in a position to tell them: "If you
draft your legislation in this way, it is compatible with TRIPS.
If you draft it another way, it will be open to interpretation.
If you draft it another way, it will not be compatible with TRIPS".
That is the main relation between the two organisations. We can
advise the country on the compatibility of their legislation with
TRIPS, but we do not advise the WTO on the implementation of TRIPS
and their interpretation of the TRIPS Agreement. There is a TRIPS
Council which is in charge of that, and it is not WIPO.
Q856 Chairman:
I fully understand they are separate organisations and there are
separate Boards for WTO and WIPO, I am just puzzled in a way.
I do not know whether I am picking up the right impression, but
you are giving the impression you do not particularly have any
liaison with your equivalent offices in WTO, that you do not discuss
matters of common concern that might come up. Or do you?
Mr Petit: Yes we do. Two years ago we created,
by an informal agreement between the two Directors-General, a
working group which meets from time to time, comprising members
close to the heads of the two institutions. They meet and exchange
views on the pending problems. This is quite new, two years old,
and it does not meet very often.
Q857 Chairman:
Would that be a committee where maybe one or more of the intergovernmental
organisations operating in the field who feel that intellectual
property rights are getting in the way of the supply of drugs
could say to that organisation, "Look, we want you to look
at this"? Who would they go to?
Mr Petit: The problem is more a question of
sanctions by WTO than a problem of the role of WIPO, which is
advising the countries. We advise the countries, but we have no
sanctions capacity. One should bear in mind also that intellectual
property protection is not an absolute monopoly, as many have
a tendency to think. The aim of intellectual property protection
is to promote innovation and creation, to promote, reward and
support innovation and creation. To do this we have mostly to
avoid that the innovator is dispossessed of his or her invention
by a third party. If the creator or inventor agrees to give his
intervention for free, to have the technology transferred to anybody,
put it in the public domain, if he agrees, we have no objection
at all. What we want to avoid is that he or she would be dispossessed
of their innovation or invention. We may have the possibility
of talking about genetic resources and traditional knowledge,
on which Tony Taubman is a great specialist. There the question
is to protect the knowledge of an indigenous community, for example,
from the exploitation by a major company of a third country without
their agreement. It is the same for innovators and creators. If
they agree to transfer their knowledge, put it in the public domain,
transfer the licence, a licence which is sold and they can fix
the price as they wish, it can be a very low price or a high price,
or transfer it with a contract for receiving royalties in exchange,
all of this is possible; it is not contrary to intellectual property
protection. What we are looking for is to make sure that nobody
is dispossessed of his or her invention, so that creation and
innovation are supported and promoted.
Q858 Baroness Whitaker:
To return a little bit to your organisation, I think you say that
you have got some 250 NGOs and IGOs with official observer status.
There are some who say that the majority of these are trade or
industry organisations and, in fact, you do not have much representation
at your meetings of public health or social NGOs. What is the
situation?
Mr Petit: I have prepared a copy of the list
of these 250 non-governmental organisations which are accredited
to the General Assembly.
Baroness Whitaker: Thank you.
Q859 Chairman:
That is helpful.
Mr Petit: Others are accredited to particular
committees, and maybe Tony will give you more information on this.
I can leave it to you to qualify these non-governmental organisations
as you wish. For instance, you may appreciate which are trade
or industry organisations from wealthy countries and which are
in favour of public health and humanitarian interests. You will
see that it is not always very clear. For instance, there is an
NGO called the Generic Pharmaceutical Association, so it is an
industry organisation. But you may consider that generic industry
is favourable from the humanitarian point of view. There are very
vocal associations speaking in the name of developing countries
which, in fact, are representing the interests of consumers associations
in rich countries. Consumers do not like to pay for any rights,
so they are fighting intellectual property rights; but they think
it is better to present it as a defence of developing countries
than being as a defence of consumer associations of rich countries.
In fact, all NGOs which request accreditation are accepted. We
do not remember any case of an NGO accreditation which had been
rejected. The Member States decide, but it is a formality: we
give them the list of NGOs requesting accreditation and they always
accept it. The door is wide open. In this list you will see an
NGO like the Civil Society Coalition, which is a coalition of
many NGOs, some of them very well-known, like Médecins
Sans Frontie"res or Oxfam. They belong to a coalition
which is the spokesman of these different NGOs, and coalitions
like this are very active in our meetings and debates, which is
not the case for all of these 250 NGOs; some do not participate
much in our meetings. There are also NGOs especially accredited
to our Intergovernmental Committee on Traditional Knowledge and
Genetic Resources, for instance, or some are especially accredited
for the Development Agenda. Tony can tell you a bit more on this.
Mr Taubman: Perhaps the image that is presented
here is subject to a bit of time lag. The most striking phenomenon
in the last eight to ten years in intellectual property has been
a massive broadening of the stakeholders involved, the range of
interests engaged. For me, the most striking example of that,
essentially because it is part of my day job, is the work we have
done on traditional knowledge which literally did not exist ten
years ago. There is a dedicated intergovernmental committee working
precisely on this issue, working towards international outcomes.
It accredits many NGOs, in fact about 200, directly to that process
because they have a specific interest in this area. The majority
of them are indigenous communities or local communities; they
represent traditional knowledge-holders.
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