South Africa adopts new IP policy improving access to medicine

31 May 2018

UNCTAD applauds the decision of South Africa's Cabinet to approve the first phase of a new intellectual property policy that paves the way to better access to medicine in the country.

South Africa’s highest decision-making body approved on 23 May the first phase of a new intellectual property (IP) policy that paves the way to better access to high-quality, affordable medicines in a country plagued with high infection rates for HIV/AIDS and tuberculosis.

Africa’s second-largest economy faces the largest HIV epidemic in the world, according to UNAIDS. South Africa is home to one in five people in the world living with HIV and 15% of new infections occur within its borders. And according to the World Health Organization, the country ranked seventh in 2016 for new cases of tuberculosis.

Christoph Spennemann, in charge of UNCTAD’s intellectual property unit, congratulated South Africa on the adoption of the national IP policy.

“Not only is this an important step toward improved access to medicines in South Africa but also toward a stronger domestic pharmaceutical sector,” Mr. Spennemann said.

“The policy is in line with international practices and strikes a fair balance between incentives for innovation and the need to promote generic competition and access to medicines.”

Mr. Spennemann said that the government must now amend domestic laws to bring them in line with the new IP policy, otherwise implementation will be difficult. He said it’s also important to begin work on the second phase of the policy, which should address other important development goals such as the use of IP in the informal sector, the commercialization of IP through licensing agreements, “and the interface between IP and the environment and climate change”.

“UNCTAD is ready to continue assisting South Africa in this respect,” he said.

The purpose of IP policy is to guide policy makers on how to use intellectual property to promote certain domestic development objectives, such as innovation, technology transfer and industrial development.

South Africa decided to focus on public health in Phase 1 of the policy also because the government had identified the local pharmaceutical industry as a priority sector for the country’s industrial development.

The Department of Trade and Industry asked UNCTAD to help develop the policy because of its longstanding experience in technical cooperation in IP, access to medicines and local pharmaceutical production, Mr. Spennemann said.

“UNCTAD’s main role in this process was to assess whether the proposed policy was in line with multilateral IP law and how it compared to IP policy practice in other jurisdictions,” he said

In 2016 and 2017, the UNCTAD organized two stakeholder consultations in cooperation with South Africa’s Department of Trade and Industry and the UN Development Programme (UNDP). The World Health Organization, the World Intellectual Property Organization and the World Trade Organization also took part in the consultations.

The consultations helped ease tensions surrounding certain elements of the policy, Mr. Spennemann said.

“Some elements of the proposed policy were particularly controversial among domestic stakeholders, with some arguing that the proposed measures would discourage incentives for innovation and foreign investment, while others warned not to compromise on the public policy goal of providing access to affordable medicines,” he said.

“UNCTAD sought to address these tensions by demonstrating that the proposed measures follow practices that have been exercised for a long time in other jurisdictions and are in line with multilateral IP and trade law.”

For example, the policy called for a substantive examination of patent applications, meaning that the granting of a patent would depend on whether the application meets certain legal requirements.

“This provides enhanced legal certainty to the applicants as well as their competitors,” Mr. Spennemann said.

In addition to its advisory role on the IP policy, UNCTAD, in cooperation with UNDP, analyzed how the proposed IP policy could help the government meet international and domestic human rights obligations related to the right to health. In this context, UNCTAD sought technical inputs from the Office of the High Commissioner for Human Rights.