Using trade law to break publishing monopolies

Last Tuesday, I gave a talk at Stanford University to students and faculty about neglected tropical diseases, and I discussed the enormous difficulty that researchers in endemic countries face in accessing health research literature.

In the discussion session after the talk, an audience member (who was a former drug company rep) offered a fascinating suggestion. The audience member was Shahram Ahari MPH, co-author of a recent PLoS Medicine paper called "Following the Script: How Drug Reps Make Friends and Influence Doctors" (you can watch a video of Shahram discussing his experiences as an Eli Lilly rep on YouTube).

Shahram asked whether a case could be made to invoke the TRIPs agreement in order to disseminate journal articles in developing countries.

Here's a little background to explain why Shahram's idea is such a brilliant one.

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), administered by the World Trade Organization (WTO), is an international agreement that sets down minimum standards for many forms of intellectual property regulation (including patents on essential medicines).

In 2001 the WTO adopted the Doha Declaration on TRIPS and Public Health, which said that the TRIPS agreement “can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health and, in particular, to promote access to medicines for all.”

Under TRIPS, a country facing an emergency (such as HIV/AIDS, tuberculosis, malaria and other epidemics) can go ahead and manufacture or buy generic versions of a patented drug (such as a patented antiretroviral medication), a phenomenon known as compulsory licensing. The international AIDS charity AVERT defines a compulsory license as "a government license that enables someone other than the patent holder to copy patented or copyrighted products and processes."

Which brings me back to Shahram.

Imagine a scenario in which a developing country is facing a national health emergency, and there's a research article that contains information that is highly relevant to addressing that emergency. Let’s say the emergency is an alarmingly high rate of mother-to-child transmission of HIV, and a new study shows a major breakthrough in preventing such transmission. And let’s say that unfortunately the article copyright is owned by the publisher (not the author), and the article is locked away behind a typical subscription barrier (usually around $30 per person to view it).

Could the government, asked Shahram, invoke TRIPs to simply bypass the copyright holder and disseminate the article across the nation?

It would be an interesting proposition to test, and I’d be particularly keen to hear the views of lawyers or IP activists.

Using TRIPs to disseminate copyrighted knowledge could arguably save lives. Indeed the late James Grant, former executive director of Unicef, argued that: “The most urgent task before us is to get medical and health knowledge to those most in need of that knowledge. Of the approximately 50 million people who were dying each year in the late 1980s, fully two thirds could have been saved through the application of that knowledge.”