Access to life-saving medicines is not a luxury, but a human right.
~Canadian HIV/AIDS Legal Network

To me, the above statement is one of those things that sound like a no-brainer. Put another way, if I were to ask you whether you thought a person’s income should determine whether they live or die from something like HIV/AIDS, then I think you would see that the answer is nothing but obvious. But here I am, in Canada, writing this post, because there is a very real danger that members of my government think that this isn’t such an easy decision after all – that maybe wealth and business interests do matter when dealing with such ethical choices, and that there is a hierarchy where certain lives are worth more than others. Let me backtrack a bit, and provide a little context. I’d rather not write a rant, emotional and heart wrenching as this discussion can be – I’d prefer to rely on reason, and not on rhetoric. I want everybody to understand why this is an important issue, one that deserves coverage, and one that deserves our involvement. More importantly, I want everybody to understand why the right thing to do is obvious. To start, let me mention the letters and numbers that make up the label, “Bill C-393.” Keep them in your head – at least for a moment. If you’re the sort that prefers hearing at least a quick definition, then this one might work:

Bill C-393 aims to reform CAMR and make it easier for Canada to export affordable, life-saving, generic medicines to developing countries.
~Canadian HIV/AIDS Legal Network

If you’re thinking that this is a Canadian thing, then think again. Other rich countries are watching how Canada will behave. There’s a few in Europe, and apparently even China is curious. In the U.S., the topic appears to be quenched, but the behaviour of the Canadian government could catalyze dialogue. And if you’re not from a rich country? Well, you might actually have lives that will be affected by it, millions of lives even.

Here’s the problem in a nutshell:
the developing world is heavily burdened with a variety of
diseases, many of which are causing massive numbers of
suffering and deaths. This is understandably big. It’s a huge
global challenge, and there are many reasons for why it exists
and why it is difficult to both comprehend and fix. However,
the presence of effective medicines is not one of the reasons.
There is medicine out there that can help, and there is also a
flow (sometimes slow) of discoveries that make these medicines
better and more effective. In the case of HIV/AIDS, there are
drugs that essentially turn the disease from a death sentence
to something that is chronic and manageable. I can’t overstate
how significant that piece of information is: it tells us that
people do not have to die from
HIV/AIDS. So what’s the issue? The issue is control
without regard for doing the right thing: This is
essentially about patents. It’s not that patents are bad, but
rather that patents can be bad. As you
probably already know, patents are a service provided by
government to protect an inventor, such that the inventor has
an element of control over how their innovation/product gets
used. This is generally a good thing, because ultimately it
provides order to a process that would get very chaotic very
quickly should the patent not exist. However, sometimes the
inventor isn’t the best person to make decisions about control.
Sometimes, the inventor doesn’t have the best information to
take stock of a situation, or sometimes there might be a moral
argument where monetary performance should not take precedent.
In other words, sometimes, there are special circumstances
where you could say it is reasonable that this control is
tweaked. To illustrate this, here are some hypothetical (and
not so hypothetical examples): 1. You are a company that
recently received your patent, so that now your drug is being
sold for $1500 instead of the previous $10
pricetag. 2. Your country has experienced a series of
anthrax scares. The company that holds the patent for the most
effective drug against infection from the offending bacterium,
sees an opportunity, and decides to jack up the price. 3.
Someone has declared war on your country. To defend yourself,
you would like to utilize a particular product. Unfortunately,
it is under a cost prohibitive patent and therefore out of
reach. 4. There is an impending nuclear power plant meltdown,
and there is technology that would be incredibly useful to
mitigate radiation contamination and poisoning. However, your
resources are already stretched because of the utterly horrific
effects of a 9.0 Richter Scale earthquake, and this technology
is too expensive at the scale that is required in such an
emergency. 5. There are markets where your life saving drug is
not being sold because no-one can afford them anyway. However,
the drug (which could be a matter of life and death for
millions) could be made at a cost (i.e. a generic) that makes
it accessible in these markets, but if and only if, the patent
over them is adjusted. Here is my point. In all of the above
cases, you would like to live in a civil society where the
government can step in and forcibly change the patent, because
in every case, there is an element of morality involved. And
guess what – governments can do this and they do! It’s called a
“compulsory license,” and they exist for this very purpose. In
fact, even the WTO is on board with this idea. They recognize
that in some circumstances, such as those pertaining to global
health, there needs to be an understanding that using such
compulsory licenses is both necessary and an obligation. In
fact, if you have a hankering for the legalese that outlines
this for patents over essential medicines, you need only look
up info on the Doha
Declaration. Canada actually took this to heart with
a bill that came into force in 2005. Often referred to as
“Canada’s
Access to Medicine Regime” (or CAMR), it was an
effort to put into action, the principles and details provided
by the Doha Declaration. It was a way to try and enact
compulsory licenses for the home production of generic drugs so
that more accessible drugs could be produced. It was a good
gesture. Unfortunately, this initial attempt was flawed. The
process was simply way too complicated, contingent on an army
of legal expertise to navigate, which was all the more
problematic because many of the actors involved did not have
the means or access to do this. Indeed, the bill seems to
contain a paradox in it, in that it can be interpreted as
logically impossible to use. If you look closely, there’s a
“you can’t do B until you do A” and a “you can’t do A until you
do B” error in the details (see question 9 in this document
for more details). It was also very inefficient in that the
compulsory license was always a one time affair, one order
affair, with specific amounts that could not be changed despite
possible reassessment of needs, only good for one country, etc,
etc, etc. Indeed, in the six years that the law has been
available, there has only been one successful case where drugs
were actually made and delivered, and there is ample evidence
to demonstrate that this process was difficult at best. In
fact, when somebody asked me today how difficult things are,
the best description I could come up with, is that is it
“catastrophically high
maintenance.” Which (finally) brings us to “Bill
C-393.” This bill is basically “the edit.” Its sole purpose is
to address the things that made the previous bill so
ineffective, and at its heart it allows a more streamline and
efficient way to issue these compulsory licenses so that
production of these generics is more feasible. No brainer
right? “Oh, but it’s not that simple,” they say. “There are
many counter arguments,” they say. Only these counter arguments
tend to sound like this:

Q:
Shouldn’t we focus on other aspects of the problem. Like health
infrastructure, or public education for HIV? A: Hmmm… Let me
get this straight. A government can only do one thing at a
time? Nevermind the fact that passing this bill doesn’t
actually cost the taxpayers anything. If anything, the foreign
aid that we do provide will likely have greater bang for its
buck.

Or maybe something like
this:

Q: Wouldn’t these changes
effect the pharmaceutical company’s bottom line, which in turn
will effect R&D; funding, and drive the home costs of
medicine up? A: The language is pretty clear in that these are
generics that can only be sold in certain markets. These
markets happen to constitute a very small percentage of
pharmaceutical revenues (we’re talking single digits here). Oh
yeah, plus you get royalties from doing this anyway. Also,
there’s nothing stopping you from making your own generic
version, so that you can enter the market yourself. Indeed, all
evidence would suggest a possible gain in bottom line. Plus,
the R&D; argument is totally a red herring.
Sneaky.

But what kills me, is that
even if there is a reasonable and say unforeseen cause for
concern, the Bill has a freaking “sunset clause” which is
basically something that gives all parties a “we’ll see how it
goes, in case it’s not working” escape route. All to say, that
because of this kind of political and big pharma semantics,
there is a very real likelihood that the Bill will be struck
dead in the next few days in Senate (it was passed by the House
of Commons last week, but it’s the predominantly Conservative
Senate that presents the biggest obstacle – you can see how
last
week’s vote looked according to party lines). Worst
still, there’s also the possibility that the Canadian
government will choose to avoid voting on it altogether, all
because of an impending election call. Here, there’s a danger
of government “saving face” by choosing to ignore it and in
doing so, C-393 gets killed by association with a new election.
Boingboing readers, to put this in perspective (and to use
internet vernacular), let me just say that both
scenarios would represent a facepalm of the highest possible
order. So… What can you do? Well, for
starters, you can lend a hand by speaking out. Retweet this
blog post, write about it yourself. You should
definitely send an email to Prime Minister Harper and a few of
his key Members of Senate by using this ridiculously easy Avaaz
page. If you’ve got something meatier
to say, how about copy pasting this entire
list of emails, and let the Canadian government know
how you feel. If you’re not Canadian, do these things anyway,
and then make this issue pertinent in your own country. This is
an urgent matter, and for Canadians, we only have a few days
left to advocate. It’s really an amazing chance for Canada to
lead the way. You can also immerse yourself in this cause and
get as much information as possible. You can check out
organizations such as the Canadian HIV/AIDS
Legal Network, which has all sorts of great documents
including this informative FAQ.
If you’re a university student, you can check out your local
UAEM
chapter. If you’re a Grandmother, you can hear what
Grandmothers
to Grandmothers have to say. If you only speak the
language of hip hop, maybe just listen to what K’naan has to
say. Better yet, check them all out, or join these
groups and volunteer your time. And through it all, never
never forget: “Access to life-saving
medicines is not a luxury, it is a human right.”