[Commons-Law] Great Article on Public Discourse and Patent

[Lawrence Liang]

Hi all

This is a great article written by Ammu Joseph doing a media analysis of the
coverage of the Patent Amendment debate

Lawrence

------
  Public discourse on public health
 The Patents Amendment Bill involved an issue of great concern to citizens.
But did the Indian media provide a public forum for debate on the issue and
enable individuals and institutions to contribute their thinking?  Ammu
Joseph  doesn't think the media lived up to its responsibilities.
    
  In democratic societies, two of the most influential determinants of
national identity are the nature of civil society and the debate which goes
on within it. A country's media should provide part of the public sphere,
the public forum for that debate to which individual citizens and
institutions contribute their thinking on issues of general concern to the
community. Their responsibility grows as the media become increasingly
significant in the national life."

 Jocelyn Hay, 
 Founder, Voice of the Listener and Viewer, U.K.

 03 April 2005  The following alarming predictions appeared on the front
page of The Asian Age (AA) on 23 March 2005, alongside a report on the
passage of the Patent (Amendment) Bill 2005 in the Lok Sabha the previous
day despite a walkout by the Opposition, chiefly the National Democratic
Alliance led by the Bharatiya Janata Party.
    ¡E     
 "Price of life-saving drugs to go up by at least 10-20 times. A cancer drug
that now costs Rs. 9000-Rs. 12,000 may shoot up to Rs. 1.20 lakhs.
    ¡E     
 "Patients suffering from cancer, HIV/AIDS and heart diseases most affected.
Anti-retroviral drugs for HIV patients may jump from Rs. 7000 to nearly Rs.
2 lakhs for a one-year course.
    ¡E     
 "Cost of drugs for hypertension, stroke, ulcer, depression and osteoporosis
is likely to go up to international levels. Prilosec, used to treat ulcers,
costs $2.45 in India, as against $105.50 in the US. The Bill will soon raise
the Indian price to American levels.

 On page 3, the daily carried two reports related to the Bill. One, based on
a press conference held by national and international voluntary
organisations in Delhi, quoted health activists from Asia, Africa and Latin
America. They alleged that the Bill threatened to shut down the generic
production of new drugs and that, as a result, life-saving medicines would
become unaffordable, especially in developing countries. The other report
quoted a representative of the international humanitarian organisation,
Medecins sans Frontieres (Doctors without Borders) in Mumbai. According to
her, "The life and health of hundreds of thousands of people globally
depends on decisions taken in India this week."

 Clearly the Bill involved an issue of great concern to citizens: public
health at the very least and, possibly, even the most fundamental of human
rights - the right to life.

 Did the Indian media provide a public forum for debate on the issue and
enable individuals and institutions to contribute their thinking on a matter
of considerable importance to countless people, not only within the country
but across the world? A quick survey of six daily English newspapers
published in Bangalore suggests that it did not. In fact, the reports
mentioned above were the only ones in the week before the Bill became law
that alluded to the fact that the issue had to do with people and their
health. The rest treated it as a tug of war between political
parties/ideologies, between multinational and domestic pharmaceutical
industries, or a combination of the two. Neither the headlines nor the copy
provided any clue that the issues under discussion could drastically affect
the lives of ordinary citizens. Readers who managed to plough through the
jargon and the legalese were unlikely to have got a sense of the possible
impact of the proposed law on their access to medicines.

 Background 

 The Patent (Amendment) Bill 2005, passed by the Lok Sabha on 22 March and
the Rajya Sabha the next day was meant to replace the Patents (Amendment)
Ordinance, 2004, promulgated on 26 December. It was introduced in the lower
house of Parliament by Mr. Kamal Nath, Union Minister for Commerce on 18
March. Interestingly, both the Bill and the Ordinance were based on an
earlier draft legislation that had been tabled in Parliament by the NDA
government in December 2003, but had lapsed due to the dissolution of the
Lok Sabha prior to the 2004 general election.

 The controversial law, bringing in a third amendment to the Indian Patents
Act, 1970, relates to India's obligations under the global agreement on
Trade Related Aspects of Intellectual Property Rights (TRIPS), adopted in
1994 as one of a package of agreements that member states of the World Trade
Organisation (WTO) must adhere to. Under the agreement, developing countries
like India were obliged to introduce patent protection for pharmaceutical
and agro-chemical products by 1 January 2005.

 Health and trade activists had been warning for some time that the various
drafts of the legislation had not even made proper use of the limited
flexibility available within TRIPS, especially in the context of the 2001
Doha Declaration on Public Health. They pointed out that, despite several
ambiguities and deficiencies, the latter does state that the agreement
should be interpreted and implemented in the light of WTO member countries'
right to protect public health and promote access to medicines for all.

 A Group of Ministers set up in August 2004 by the post-election United
Progressive Alliance (UPA) government to examine the implications of the
legislation inexplicably decided not to invite comments from civil society
on what could be a matter of life and death for countless citizens. In
October 2004 the Fourth People's Commission on Review of Legislations
Amending Patents Act, 1970, chaired by former Prime Minister I.K. Gujral,
and made up of several eminent and knowledgeable members, concluded that the
interests of the Indian people must be protected by, at the very least,
taking advantage of the leeway available within TRIPS. It also called for "a
full-scale national debate" on the issues involved.

 Media coverage 

 If the government and even political parties did not see fit to generate
such a debate, the media could have stepped into the breach and created a
platform for a healthy, illuminating discussion on the issues involved. As a
first step, they could have tried to ensure that both basic information and
the various conflicting points of view on the subject were available to the
public in an accessible form. That would, in turn, have enabled citizens to
form informed opinions and contribute their ideas on a matter that is bound
to affect their lives.

 Health advocates and lawyers in different parts of the country have been
attempting to generate public discourse on the proposed legislation since at
least November 2004 - through meetings, rallies, press releases and
conferences and even articles specially written for the press. Very little
of the information and critiques they have made available found their way
into the media in the run-up to the passage of the Bill. The Ordinance,
which coincided with the tsunami, was more or less eclipsed by the disaster.
But if the final draft of the Bill was preceded by extensive consultations
with all stake-holders, as the government claimed in Parliament, those
discussions were hardly reflected in the media.

   A February rally in Delhi against the Patents Ordinance and Bill. (Pic:
Lawyers Collective).

 Indeed, all was quiet on the media front even on Friday, 18 March, the day
the Bill was introduced in Parliament, although there were reports on
related matters. "Boon for the sick - drug prices to fall" claimed a
headline on the front page of the Bangalore Age section of AA, quoting the
Additional Commissioner of Commercial Taxes on an expected eight per cent
drop in the prices of medicines with the introduction of the Value Added Tax
(VAT) system from 1 April. Vijaya Times (VT) had a business story on an
overseas acquisition by Glenmark Pharma. The Hindu (H) carried a business
page report on a meeting in Delhi where global civil society organisations
were attempting to persuade the G-20 group of nations to resist pressures at
the next round of talks of the WTO. None of them made even a passing
reference to the Patent Bill waiting in the wings.

 On Saturday, 19 March, only The Hindu had a front page story on the
introduction of the Bill in Parliament. The AA placed its story on page 2,
VT on page 6, The Times of India (TOI) and The New Indian Express (NIE) on
page 9, and Deccan Herald (DH) on page 11 (albeit opposite the editorial
page).

 The following are some of the events and issues featured on the front pages
of papers that did not deem the Patents Bill worthy of page 1 -- in addition
to the widely covered controversy over the denial of a U.S. visa to Narendra
Modi and the proposal to hike fuel prices: the cricket match in Kolkata,
Harshad Mehta's shares, tigers in the Sariska National Park, a humorous
discussion on condoms in the Rajya Sabha, cheap air fares, the astronomical
salaries offered to graduates of the Indian Institute of Management -
Bangalore, and the effect of a bird-hit slows on race car driver Narain
Karthikeyan's prospects.

 Headlined "New Patents Bill introduced amid protests," the front page Hindu
report mentioned that a majority of members across the political spectrum,
including parties supporting the United Progressive Alliance (UPA)
government, had objected to the adoption of the ordinance route.
Interestingly, the report revealed that Congress benches in the Lok Sabha
were practically empty on a day when such an important Bill was being
tabled, while unlikely partners ranging from the Left parties and the
Samajwadi Party to the BJP and the Shiv Sena were all on the same side,
opposing the Bill. The follow-up stories on page 12 went into the technical
details of the suggested amendments to the Bill and reported that several
amendments proposed by Left parties had been accepted. A summary of
interventions in Parliament included the suggestion that life-saving drugs
would be out of reach if the Bill went through in its original form.

 The AA's page 2 report mentioned that the "controversial" legislation had
been tabled despite opposition from a range of parties mainly because none
of the latter had insisted on voting at the time of the introduction.
According to the report, "Had the Left pressed for the division, then the
fate of this bill would have been different as the UPA did not have
requisite strength in the House at that time."

 The page 6 news agency report in VT, based on the press conference held by
Left parties, was headlined, "Left goes soft on Patents Bill." The same page
featured a report on a Rajya Sabha discussion on a law to prevent
discrimination against AIDS patients in work places. Despite the fact that
people suffering from HIV/AIDS are among those likely to be severely
affected if the new Bill was passed, no link was drawn between the two.

 As a first step, the media could have tried to ensure that both basic
information and the various conflicting points of view on the subject were
available to the public in an accessible form.
  ¡E   Death-knell for low cost medicines
  The wording of the TOI report on page 9 implied that those opposing the
legislation were attempting to prevent the government from abiding by its
commitment to the WTO. The report also hinted at backstage political
negotiations to ensure that the Bill got through. A page 7 report on plans
for legislation to protect "AIDS patients" did not make any reference to the
Bill that was likely to push up the cost of HIV/AIDS treatment.

 The NIE, in its single column report at the bottom of page 9, chose to play
up the political angle: "Left tones downs stand on Patents Bill." Deccan
Herald's page 11 report, headlined "Patent Bill tabled amid fierce
opposition," highlighted the fact that "Opposition members said the House
did not have the legal competence to pass the Bill which, they claimed,
threatened fundamental rights."

 The only daily that acknowleged the Bill the day after it was introduced
was AA, which had a bylined report on the government's compulsions in the
matter since the Ordinance would lapse if it was not ratified by Parliament
within six months. The other national news dominating front page headlines
on Sunday were: Modi, cricket, Karthikeyan, and Value Added Tax.

 On Monday, DH, VT and NIE had page 4 reports on the Meet the Press
programme with Ramvilas Paswan, Union Minister for Steel, Chemicals and
Fertilisers, organised by the Mysore Reporters Guild. The headlines
highlighted his assurances on drug prices ("90 % drug prices to remain
stable," "Task force for drug price control mechanism," "No increase in drug
prices" respectively). None of the other papers made even this oblique
reference to the Bill. Meanwhile, there was a sports bonanza on page 1 that
day (cricket, Karthikeyan and Pankaj Advani's World Billiards Championship).
Other national news that made front page headlines were the petrol prices
and the Supreme Court's order in the Jharkhand case. Narendra Modi was
temporarily displaced.

 On Tuesday, 22 March, The Hindu had a brief, single column report on Page 1
announcing that the debate on the Patents Bill had been deferred. More
reports followed on Page 11, most of them focussing on developments on the
political front vis a vis the Bill. A related report revealed that two
journals published by the Council of Scientific and Industrial Research
(CSIR) figured in the compulsory reference list of the patent treaty of the
World Intellectual Property Organisation.

 The AA placed the news on page 2, VT in the news capsule column on page 6,
DH in a single column report in the top right corner of page 7, NIE on page
9 and the TOI on page 13 (Business Times). But Modi was back on the front
page. Also covered on page 1 were cricket (but of course; DH even had an
edit on "Super Sunday"), Sri Lankan cricketer Muttiah Muralitharan's
wedding, President A.P.J. Kalam's comments on dubious means of government
formation, Rahul Gandhi's maiden speech in the LS and the United Breweries
takeover of Shaw Wallace.

 On Wednesday, 23 March, all six papers front-paged news of the Bill being
passed by the Lok Sabha. In The Hindu it was the lead story. The focus of
most reports was on who had won the battle of wits between the various
political parties: LS adopts modified Patents Bill - The Left claimed
victory after 10 of the 12 changes it suggested were accepted, BJP said the
Left flaunts red flag only outside Parliament and waves green flag inside
(DH), Patent Bill passed as Left drops objections (AA), LS passes Patents
Bill with Left support (TOI), Patents Bill passed with Left touch (VT), Left
clears the way for Patents Bill (NIE).

 Neither the DH box explaining patents, nor the details of the Bill's
provisions, including accepted amendments, in VT and NIE cast much light on
the significance of the new legislation and/or its possible impact on the
lives of ordinary citizens. There was no evidence of any attempt to help
readers understand technical terms such as "pre-grant opposition" and
"compulsory licensing."

 Furthermore, the government's assurances about the continued availability
of drugs at affordable prices, as well as its capacity to meet domestic
health emergencies seemed to be taken at face value.

 The views of the lawyers and health advocates, including some from
overseas, who had been campaigning on the issue were largely ignored by the
media. Only AA seems to have bothered to even cover the press conference
addressed by health activists from Africa, Asia and Latin America. This is
despite the fact that timely media advisories were sent out by activists
from the day after the Bill was introduced in the Lok Sabha. These included
offers of interviews with Indian and international health advocates, a press
conference featuring them, as well as a detailed critique of the Bill
released on the day it was passed by the Rajya Sabha. According to
activists, even a paid public service advertisement they wanted to place in
the Delhi edition of a newspaper was subjected to interference from the
daily's legal department, which resulted in a watered down version of the
original. A television channel that extensively covered the press conference
on 22 March finally broadcast a story which made hardly any reference to the
views expressed at the event.

 What is more, the media did not seem to think it necessary to solicit the
opinions of doctors and other health professionals on the issue. The views
of the Indian Council for Medical Research and institutions of scientific
research were missing from the media. Even the responses of the
pharmaceutical industry were barely covered, even on the business pages of
the dailies (the only exception was a piece in the NIE on 24 March). Under
the circumstances, it is hardly surprising that ordinary citizens had no say
at all. In other words, reporting on the issue was largely confined to the
limited debate that took place in Parliament and amongst political parties.

 The first edit on the subject that week appeared in the NIE: "Realism at
last: Left shows it can govern in the times of WTO." It suggested that the
compromise between the government and the Left to facilitate the passage of
the Patents Bill was a laudable example of how legislation ought to be
managed. It was appreciative of the Left parties' interventions aimed at
improving the Bill and critical of both the bureaucracy (for shoddy
drafting) and the BJP (for what it described as evasive tactics).

 Only The Hindu, AA and VT thought the Rajya Sabha's approval of the Bill
the next day worth highlighting on the front page. News that made it to page
1 that day concerned cricket, the sibling rivalry at Reliance Industries,
Pervez Musharraf's comments on Kashmir, an oil slick off the Goa coast, and
a Telugu film star's attempted suicide.

 The Hindu also had an edit on the subject on Thursday. Headlined "Two
cheers for patents," it provided a detailed, critical analysis of the new
legislation. Admitting that the "deficient Bill" had been amended "in good
but not complete measure" to achieve "a happy compromise of sorts," the edit
concluded that "the government must not treat TRIPS as a closed chapter."
Instead, it suggested, "India must effectively and persuasively advocate a
much greater relaxation of key Articles relating to public health."

 Only the NIE carried a special story on the subject that showed any
evidence of independent initiative at any point during the week. The
prominent piece at the top of page 9 (opposite the editorial page) on
Thursday was headlined, "After the Bill, Patent debate continues." However,
three quarters of the report was based on comments from domestic
pharmaceutical industry sources, while the rest focussed on the response of
a single international non-governmental organisation: Oxfam.

 This then was the sum total of the media's contribution to the debate on
the Patent Bill in the critical seven days between its introduction in
Parliament and its passage into law. The TOI did carry an edit on the
subject on 26 March, dismissing fears of soaring medical bills (at least for
a few years) and other such "scare-stories," and proposing instead that the
Bill be seen as "an opportunity, not a threat."

 "Free and independent media are essential to democratic principles and
practices," said Arne Wessberg, President of the European Broadcasting
Union, in 2003. "Broadcasting open to pluralism of opinion and cultural
diversity offers the widest public access to the knowledge, education and
information required by an active citizenry."

 The question is: has the Indian media lived up to its responsibility to
ensure that citizens have access to key information and the full range of
opinions on the Patent Bill? Are even newspaper readers - let alone the
larger public -- today equipped to understand and deal with the implications
of the new law (if any) for their own health, if not that of fellow citizens
with fewer resources? I know I am not.  ¡ò

Ammu Joseph  
 03 Apr 2005