South Africa: Hidden Treasure and the New Colonialism - Why SA Must Protect Its Intellectual Property

analysis

South Africa is about to embark on a radical restructuring of its health industry in order to provide universal access to good medical resources.

The astronomical cost of medicine has consistently outstripped inflation. These costs are driven by three primary factors: Firstly the progressively technological nature of intervention, using devices like CAT scans in sophisticated facilities.

Secondly, doctors are increasingly specialised and innovative, which raises costs, particularly in evolving fields like cancer care. Finally, the cost of medicines consistently outstrips inflation.

The medical fraternity subscribes to a strict set of ethics. The behaviour of the pharmaceutical industry, generally referred to as big pharma, falls far short of this standard.

Surely every sector of industry which operates in the health field should be held to the same ethical principles under which health care workers operate?

The problem is big pharma is a key player in a highly competitive globalised corporate network, driven by profit and investor perceptions.

While big pharma's stated aim is to improve health, this will always be subservient to the profit motive. This is the crux of the problem: as soon as health becomes profit driven, ethics inevitably become subservient to the anything-goes approach in the pursuit of profits.

This is easily illustrated by some telling numbers. Between 2001 and 2012 the 20 highest punitive damages levied by the US government against the pharmaceutical industry totalled more than $17.3 billion dollars (over R175 billion Rands), with $11 billion over the past three years alone.

The names are as impressive as the numbers. Several companies were serial offenders: Schering Plough thrice, Glaxo Smith Kline, Astra Zeneca and Pfizer twice.

The latter two recently achieving prominence as they seek a transatlantic merger that CEO of Pfizer, Ian Reid informs us will be "a win win." Right. It will certainly be a win for him - at his present $23 million annual remuneration - and his shareholders but far less so for the public, as jobs are lost and lifesaving drugs delayed.

These trends have direct implications for us in South Africa. We have demonstrably failed to either manage or police the excesses of the pharmaceutical industry.

Our Medicines Control Council (MCC) has inadequately addressed the licencing of new medicines, especially since it was gutted during Thabo Mbeki's denialist tenure.

We lack any meaningful ability to track or monitor the abuses of big pharma; our regulators instead chose to pursue softer targets, heavily regulating the alternative and natural medicine market rather than the pharmaceutical industry.

It is notable that most natural medicines are plant based, often with lengthy track records of proven benefit, increasingly backed up by clinical studies.

It is against this background that South Africa's inspiring health minister, Aaron Motsoaledi, is gradually phasing in a national health scheme. This aims to reduce the glaring disparity in access to medical resources between the rich and poor.

One of the greatest challenges, beside addressing poor infrastructure and training, is the cost of medication in a country with the highest HIV, AIDS and TB burden in the world.

This places a significant pharmaceutical burden on the health system, through the provision of both anti-retroviral regimes and the extended health care load.

This lies behind Motsoaledi's description of big pharma's lobbying, through a supposed public interest group, as tantamount to genocide and a "satanic plot". Indeed, it is difficult not to describe the behaviour of these corporations without drawing on biblical notions of evil.

On the one hand big pharma wants the strongest possible intellectual property regime protection for their products. On the other they push for the weakest possible IP protection for SA's indigenous resources, which includes our massive plant biodiversity.

Our plants are already the source of several useful medicines. Given that many of the most successful pharmaceutical compounds were originally isolated from botanical sources, our biodiversity is a potential treasure trove for the pharmaceutical industry.

Big Pharma has reached what is termed a patent cliff, where patents are expiring on older drugs while the number of useful new drugs coming on-stream has plunged.

This drives consolidation, as in the AstraZeneca and Pfizer merger, that aims to maintain profitability by rationalising supply chains and shedding jobs. Consequently big pharma is searching for new ways to make a killing.

Only last week news broke that a compound isolated from our well-known honeybush, traditionally used as a beverage, appears to provide a promising treatment for breast cancer.

The government recently strengthened the intellectual property (IP) protection of our indigenous knowledge and consequently the ubiquity of our national biodiversity, to address the risk of what has become known as bio-piracy, where locally used medicinal plants are hijacked and patented for speculative future use.

This resulted from two well publicised cases involving useful local plants, Hoodia, an appetite suppressant and Pelargonium, a useful cough medicine.

The IP rights on these plants were initially usurped by offshore entities, without due recognition of the traditional knowledge that led to the development of products from these plants.

Lengthy legal challenges led to benefit sharing agreements that recognised the indigenous IP. However the new Patent Amendment Act effectively clears up this discrepancy by insisting on clear recognition of indigenous intellectual property, as is allowed under international trade and IP agreements.

South Africa, like other mega-biodiverse nations, primarily developing nations, has massive opportunities to benefit from both our indigenous knowledge and ongoing local research into bio- and psycho-active compounds found in our ecosystems.

These potentially hold huge benefit, not only for humanity but for wealth generation for the country, and of course for corporate entities fixated on both their bottom lines and the approaching patent cliff.

Accordingly it is critical that South Africa protects its own IP interests. However this is a double edged sword - on the one hand we must protect our resources while on the other prevent exploitation by well-endowed transnational corporations.

If we are to thrive as a developing nation we need to both protect our biological resources, while enabling open access to overpriced medicines through mechanisms like compulsory licencing, as we are allowed to.

Fortunately our government seems to understand what is at stake; but their protective stance is being challenged by big pharma, allied to free market interests, with all the weapons at their disposal.

One can only imagine the behind the scenes lobbying of the Ministers of Trade and Industry and Health, especially bearing in mind our democratic Achilles heel of undisclosed party political funding.

Motsaeledi and his fellow cabinet members stand to put us in a strong position to both curb the excesses of transnational corporations, while simultaneously opening the door to a major driver of our future growth opportunities.

We simply cannot afford to squander our biological capital as we have our mineral natural resources, ceding them to external capital at the expense of our people.

Ashton is a writer and researcher working in civil society. Some of his work can be viewed at www.ekogaia.org.

Read more articles by Glenn Ashton.

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