Caitlin Hall

In 1995, eager to secure its place in an emerging global economy, Brazil signed a major agreement with the World Trade Organization that stipulated Brazil would comply with any new international patents. Since then, the breadth and efficacy of AIDS treatment has been revolutionized by a number of patent-protected products ÷ most notably several of the retroviral components of the so-called "cocktail."

But Brazil, a country with some 750,000 HIV-positive citizens, was initially slow to reap the benefits of this innovation due to prohibitive costs generated by its restrictive trade policies and adherence to the WTO agreement.

Such a situation is hardly unique at the juncture of patent law and public health; in fact, it is rapidly becoming the norm rather than the exception. One need only look to the life expectancies in many African nations to understand the extent to which patented technologies have nursed the AIDS epidemic among the world's poor. However, if the problem wasn't exceptional, Brazil's answer was.

With growing numbers of infected citizens and no end in sight to profit-driven patents, the Brazilian government took the bold step of deliberately violating international patent law in order to distribute generic versions of several AIDS medications free of charge. In a claim being legally disputed by the American companies losing money ÷ admittedly billions of dollars ÷ due to the infringement, the Brazilian government justified its actions based on the assertion that patent law permits noncompliance in the case of national emergency.

Regardless of whether or not the action was in fact justified by a loophole in international law, it is an excellent example both of a situation in which patent law is injurious to the public good and one in which a national government has rightfully prioritized the lives of its citizens over the desires of multinational corporations.

Patents do have an important role in a capitalistic society: They encourage innovation by rewarding successful risk-taking with substantial economic profit. They also provide legitimate and necessary investment protection to companies and individuals. It is imperative that corporations that invest significantly in research be able to reap some reward from that investment ÷ otherwise there is no incentive to advance capital toward the aim of scientific ingenuity.

However, when public health concerns intersect with private enterprise, a new set of issues needs to be addressed. The importance of fiscal justice pales in comparison to the importance of treating HIV-positive individuals indiscriminately and to the fullest extent of medical knowledge. At some point we must ask ourselves which is more vital: encouraging innovation, or using existing technology to lengthen hundreds of thousands of lives; securing American businessmen's right to turn a profit, or acknowledging impoverished people's right merely to survive.

The manner in which the Brazilian government chose to address these issues has attracted a flurry of international attention, both positive and negative. Not surprisingly, reaction has been directly linked to respondent countries' wealth: Those countries with a vested interest in protecting patent law have protested, while those lacking the resources to combat their own epidemics have made an example of Brazil's actions. Most notably, South Africa and India have recently declared their intention to follow suit.

What wealthy nations fail to understand, and what poor ones long ago grasped out of necessity, is that the issue central to this debate is much larger than economics.

Access to adequate medical care ÷ and that means real access, not theoretical access attained solely by the rich ÷ is a basic human right, which supercedes patent law. The unprecedented and altruistic approach heralded by the Brazilian government should be applauded, not reproached.

The focus of the battle against HIV in developing nations has yet to turn toward combating the virus itself. For now, the enemy is profit.