Nirav Bhatt is an LLM candidate at Osgoode Hall Law School.

The World Health Organization (WHO), last week witnessed tumultuous questions from various nations at the meeting of Executive Board Members of WHO on the outcomes of an Expert Working Group on Research and Development Financing (EWG) which raised concerns about methods of work employed by the EWG to undue pressure wielded by the pharmaceutical industry over the EWG's outcomes.  The discussion took place under the agenda item on Public Health, Innovation and Intellectual Property: Global Strategy and Plan of Action, at the 126th session of the Executive Board between 18-23 January, 2010.

The highlight of the meeting was that members were determined to arrive at a possible solution to work towards a commonly acceptable framework for influenza, and so they agreed for a complete framework for dealing with influenza, which should be prepared before May 2010, when the Executive Board would meet for the World Health Assembly (WHA). As Spicy IP noted, the main issue discussed was that of development and distribution of vaccines, and the usual North-South divide persisted, with certain developing countries claiming that shared details about a pandemic virus did not always convert into actual benefits.

IP-Watch has vividly accounted about the new intergovernmental intention for sharing virus-related materials, benefits and managing associated IP rights in the WHO strategy for responding to pandemic influenza outbreaks. Amongst the different member nations, Indonesia repeatedly stressed about urgency of lack of access to health resources as a critical issue. Mexico, where the 2009 pandemic of H1N1 originated, expressed discontent that they never received any benefits from the sharing of the vaccines. India wanted assurance that the WHO does not commit to terms and conditions that might set as precedents and upset the balance between virus and benefit-sharing and also stressed the significance of technology transfer. Brazil echoed India’s stance and emphasized that any such agreement should be “binding and enforceable,” as benefit-sharing is the right of member states, while China said that benefit sharing should be based on ability and industrial capacity of the nations. Japan led the path of voluntary and not mandatory benefit-sharing and asserted that it should be left upon the states to decide about how effectively they can contribute both with financial and technical resources and the US associated itself with Japan's statement and voiced concerns over the number of consultations being held before the WHO while the International Federation of Pharmaceutical Manufacturers and Associations accentuated on the voluntary nature of these actions.  WHO on its website defended against allegations of a fake pandemic created to bring economic benefit to industry as scientifically wrong and historically incorrect.

It is undisputed fact that the WHO has made significant contributions by adopting the Commission on Intellectual Property Rights, Innovation and Public Health and this should send a strong and important signal to WHO member states that the protection of intellectual property rights is only a means to an end, but not an end itself. Such protection therefore needs to be balanced against other important, and often more important, goals, such as the promotion of public health.   The establishment of this Committee in the WHO is vital as at the very least, it shows that intellectual property matters, particularly as they relate to innovation, are not an exclusive preserve of WIPO.  Indeed, allowing WHO to take up more responsibility in the intellectual property area, especially where it intersects with public health would be beneficial.

Taking this into account, some nongovernmental organizations are hoping that the organization will provide greater expertise in the public health area and the development of a new perspective. Therefore this should be the test for the organization and although it remains to be seen how much WHO can contribute to the promotion of a development dimension of intellectual property rights, the importance of such a highly specialized and credentialed agency is not to be ignored.