London Calling (For Compulsory Licenses)

(Posted in London.) The United Kingdom has lately made itself into the world capital of government-commissioned independent reports. Such reports often provide governments the political cover they believe they need to institute difficult or potentially unpopular reforms. As a canary in the coalmine of public opinion, an independent report can be dangled before the electorate to test how toxic the report's suggestions will be to a government's popularity. Gordon Brown, Britain's Prime Minister-in-waiting, has a penchant for first tackling difficult policy and legal issues with such "reviews".

Recently, the Stern Review on the Economics of Climate Change redefined the terms of debate worldwide about policy and legal responses required to counter the accumulation of greenhouse gases in earth's atmosphere. Now it's the turn of the Gowers Review of Intellectual Property.

One remarkable recommendation of the Gowers Review pertains to compulsory licensing of patented drugs in countries devasted by public health crises. The Gowers Review defines compulsory licensing, and explains their purpose, as follows:

A compulsory licence is an involuntary contract between a patent holder and a third party authorised by the Government. It entitles the licensee to make use of the patented material (in this case a drug) for a period during the lifetime of the patent. Compulsory licensing thereby enables Governments in the developing world to reduce the costs of providing medicines by introducing another provider into the market.

Though developed countries with strong biotechnology and pharmaceutical industries tend to view the prospect of compulsory licenses with fear and loathing, the Gowers Review recommends that Britain take the lead in supporting them by backing the so-called "Doha Declaration" to the Agreement on Trade-Related Aspects of Intellectual Property ("TRIPS"). The Review

urges the Government to take whatever steps it can to ensure that this amendment [to promote compulsory licensing of drugs required by developing countries] comes into effect before the temporary suspension elapses in December 2007. It also believes that the Government should look favourably on any future proposals to amend TRIPS that may be necessary to address the public health crisis in developing countries.

This proposal will not please the government of the United States or Britain's own thriving drug industry, both of which have traditionally fought tooth and nail to avoid compulsory licensing regimes, even in developing countries facing disease epidemics. However, it presents Gordon Brown with an opportunity simultaneously to appear compassionate to the world's poor and to oppose U.S. policy. And, if these prove unpopular with British voters, Brown reserves the valuable right to disavow the report as reflecting only the views of private citizen Andrew Gowers.