Millions die of AIDS just to respect patent rights

By Gwynne Dyer

LONDON (JP): Half of all the teenage boys in South Africa will eventually die of Acquired Immune Deficiency Syndrome, predicted a United Nations report last year. "The world has never before experienced death rates of this magnitude across young adults of both sexes across all social strata," it added -- and noted that 70 percent of all the world's HIV-positive people are Africans, al though Africans make up only 10 percent of the human race.

Drugs already exist that could prolong the lives of many of those Africans indefinitely. True, the triple AIDS therapy now on offer in the U.S. costs about US$10,000 per patient per year -- but an American "generic" manufacturer, asked to calculate the price of the same therapy if he didn't have to respect patent rights, came up with the figure of $230 a year.

Move the manufacturing to Brazil or India or South Africa, and you would bring the annual price down even further.

Why, then, haven't the drug companies who hold the patents simply said: "Go ahead and do it"?

"We'll make our profit in those parts of the world where people can afford to pay large amounts of money for our drugs.

"Africa is facing an immense continent-wide humanitarian emergency -- and Africans can't pay enough to make them an interesting market for us anyway, so we're not losing anything. "Do it, and save some lives."

But they didn't do that. Instead, when South Africa passed a law three years ago giving it the right to circumvent patent laws during health crises to provide cheap drugs for the poor, the world's 39 biggest pharmaceutical companies challenged the law in court. Three years later, it has still not been put into effect, and 600,000 more South Africans have died of AIDS.

So should we all hate the drug companies? There's not much point, really, because corporations are not people. And the Pharmaceutical Manufacturers Association (PMA) is neither better nor worse than Time Warner or BP, even though the actions of its members leave so many people to die.

Corporations are simply not moral actors, no matter how hard their publicists and their lawyers try to argue otherwise. They are joint-stock organizations whose principal purpose is to maximize profits for their shareholders.

We should be no more surprised when they let children die to protect their profits than when lions eat children: they are simply behaving naturally. It is up to the rest of us to stop both corporations and lions from behaving that way -- and fortunately, both of them are rather stupid.

It was very stupid of the PMA to take its case to a South African court. The threat to drug companies' profits from South Africa's action was actually minimal, since they could easily stop the use of generic anti-AIDS drugs from spreading outside Africa by a judicious combination of diplomatic pressures and direct court actions in the more lucrative markets elsewhere.

In public relations terms, the case was a complete nightmare: huge white-owned corporations insisting that millions of black youths must die just to protect their patent rights.

The likelihood that they were going to find a court in South Africa that was sympathetic to their case was close to zero. And they didn't even have a strong legal case, since international patent laws include a clause that can be read as allowing countries to disregard patent rights temporarily during national emergencies.

But the PMA went ahead with its case, which finally came to court in Pretoria on March 5. It was scheduled to last a week -- but on the second day, judge Bernard Ngoepe adjourned the case for six weeks.

He ordered the drug companies to come back to Pretoria at that time ready to disclose all the most closely guarded secrets of their global pricing practices.

South Africans know that the major pharmaceutical companies charge different prices for their drugs in different markets in order to maximize their return, and keep information about this practice secret in order to avoid alienating the consumers.

This is very hard on you if you're a poor person in a rich country, where they keep the prices very high -- or if you're an African, so poor that you are less a market opportunity than a threat to their markets elsewhere.

It is quite likely that the drug companies will now drop their case in South Africa rather than publish full information about their price-fixing policies, which would cause uproar around the world.

They will wander off grumbling that we'll all be sorry because this failure to protect their patents will discourage them from spending money on research and development of new drugs in future -- omitting to mention that they actually spend twice as much on marketing as on research and development, and could easily shift some of that money over if they wanted.

And Africans may soon begin to have better access to affordable, generic forms of the major anti-AIDS drugs. On March 6, Kenya's Health Minister Sam Ongerim said the government would shortly introduce South African-style legislation permitting the importation of generic anti-AIDS drugs regardless of patent laws.

They will remain expensive for most Africans, and millions will continue to die, but it is a step in the right direction.