The push to enact the Counterfeit Goods Bill into law could undermine the progress Uganda has made in the fight against HIV/Aids and ultimately hamper trade by limiting access to generic medicine and products to the Ugandan market. The policy behind the proposed Bill is to interalia prohibit the manufacture and trade in counterfeit goods that infringe upon protected intellectual property rights; to prohibit release of counterfeit goods into the channels of commerce; to create offences relating to trade in counterfeit goods.
The Bill defines 'counterfeit goods' as goods that are an imitation of something else with an intent to deceive, and includes any device used for the purposes of counterfeiting and goods which breach intellectual property rights and goods intended to gain unfair commercial advantage with goods of a similar nature'. This definition is so broad that it could allow pharmaceutical companies to charge legitimately produced generics as counterfeits even if its patent is not registered here which is against the principle of territorial application of Intellectual Property rights.
Generics are products not associated with a private or national brand name; they can only be identified by their category. This implies that generics are not counterfeits because they are not pretending to be a known brand. Because generics are cheaper than national brand products, it is probable that under the bill such products will be deemed to be intended to gain unfair commercial advantage with goods of a similar nature and hence denied access to the stream of commerce as counterfeits.
These kinds of barriers do not exist even in developed countries. In the USA there are big pharmaceutical companies like Walgreens, CVS and Duane Reade that produce products that are equivalent or better than national brand products and yet cheaper. For instance in pre-electric shave products, the national brand product is 'Williams Lectric Shave' which is manufactured and distributed by JB Williams Co. Inc. but Walgreens has a product called 'Walgreens Electric Razor Pre-shave' while Duane Reade has 'Duane Reade Pre-Electric Shave'. Both the Duane Reade and Walgreens products are marked 'compare to Williams Lectric Shave' however in terms of price, Williams Lectric shave is almost double the price of Duane Reade and Walgreens pre-electric shave products.
On access to affordable medicines, anti-counterfeit legislations are being misused to take away countries' rights to access more affordable generic medicines '" medicines that save lives and help lower costs. There is already an outcry all over Africa that the growing push to enact anti-counterfeit laws could undermine access to affordable medicines. Activists in this area like Open Society Institute (OSI), Health Action International (HAI), and Oxfam have pointed to a disturbing trend on confiscation of generic medicines on the pretext of cracking down on counterfeits.
At least seventeen shipments of legitimate generic medicines including ARVs have been seized in Europe because of counterfeit legislations, which puts treatment programs at risk. In one instance, Dutch Customs officials seized a consignment of generic ARVs destined for Nigeria and purchased by the Clinton Foundation through UNITAID, claiming they were counterfeits.
Such misplaced enforcement not only hampers access to essential medicines for those in need but also frustrates legitimate trade in generics. Competition between originator and generic medicines has substantially decreased the cost of medicines and other products, which needs to be appreciated by governments and other stakeholders as an essential pre-requisite to the attainment of a healthy and dignified life of a people.
Resolution 141 of 2008 of the African Commission on Human and Peoples' Rights provides a yardstick to any anti-counterfeit legislation. The resolution signed at the 44th Ordinary Session held in Abuja Nigeria 24th November 2008 creates a link between access to affordable medicines and the right to a healthy and dignified life. It gives emphasis to the fact that access to medicines forms an indispensable part of the right to the highest attainable standard of health and stresses that the right to health mandates each state to promote the realisation of the right to medicines for all. The resolution also calls upon states to promote access to medicines by refraining from measures that negatively affect access.
Although the right to health is not enshrined in Chapter 4 of our Bill of Rights, it is closely associated with the right to life and access to medical services that forms part of the National Objectives and Directive Principles of State Policy.
In East Africa, Uganda will be second to Kenya to enact such legislation although its worth noting that in Kenya three individuals have filed a constitutional petition contending that the newly enacted Anti-Counterfeit Act threatens their access to generic medicines and risks their human right to life as enshrined in the Kenya Constitution.
African Countries need to utilise the flexibilities permitted under WTO Agreement on Trade Related Aspects of Intellectual Property (TRIPS) to increase access to affordable medicines. SADC countries through SADC Parliamentary forum on Intellectual Property, Trade and Access to Medicines on 14th May 2009 resolved to inter-alia maximise use of the TRIPS flexibilities to promote access to medicines. The East African Community should follow suit since all the members have acceded to WTO.
As more African countries move towards enacting anti-counterfeit legislation, there needs to be a critical reflection on the needs of the African people so that legislators and the respective governments guard against succumbing to lobbyists serving the interests of powerful multinational corporations. Access to generics is being frustrated under the pretext of fighting counterfeits and as a result, the lives of many African people are at risk. If this is not checked especially in Uganda, the success we have registered in the fight against HIV/Aids could be reversed.
*The author is a Business Lawyer working with M/s Muhairwe Mwebesa Kakooza Advocates with keen interest in trade and governance.
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