./.WORLD TRADE
ORGANIZATIONIP/C/W/299
5 July 2001
(01-3351)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  Spanish
COMUNICATION FROM CUBA
The following communication, dated 20 June 2001, has been received from the Permanent
Mission of Cuba with the request that it be circulated to Members.
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STATEMENT BY THE CUBAN DELEGATION ON INTELLECTUAL
PROPERTY AND ACCESS TO MEDICINES,
COUNCIL FOR TRIPS, 20 JUNE 2001
Considering that the right to life of thousands of disadvantaged human beings is constantly
dependent, minute by minute, upon legal interpretations which determine government action,
interpretations which, in their turn, are subordinated to the pace of negotiations as determined orgoverned by the financial power of private holders of the rights to basic medicines on which lives
depend;  and
Considering that the debate which commenced today in this Council, in accordance with the
proposal presented by the African Group at the mee ting of 2 to 6 April 2001 and endorsed by virtually
all Members, aims to clarify the flexibility available to Members when implementing the provisions
of the TRIPS Agreement on real and effective access to medicines;
My country hereby wishes to contribute to the discussion by presenting its own interpretation
of the issue.
In the light of the Agreement's objectives, as set forth in Articles 7 and 8, and given the
ambiguity of some of the relevant provisions, Members can fully accommodate their personal
interpretations to their own individual social - and in particular public health - requirements and
objectives and thus strike a balance between the public and private interests at stake.
One way of doing this is through compulsory licensing, not only in the event of a national
emergency, other circumstances of extreme urgency or public non-commercial use, but also to ensure
that patents are not used to make access to medicines solely dependent upon imports at prohibitive
prices.  In accordance with these objectives, the economic value of authorization should be analysed
in the light of the individual circumstances of each case and should rest on prices that are in keeping
with each Member’s social requirements and objectives.
In special situations such as these and whenever medicines are intended for people with zero
or very low income, payment would be according to  special, differentiated prices, respecting a
reasonable mark-up and preventing smoke screens from concealing the real costs.IP/C/W/299
Page 2
Patent owners' rights should be subject to international exhaustion so that access to medicines
through parallel imports from countries where prices are lower can constitute an alternative. This
means of access cannot give rise to a dispute settlement proceeding within this Organization.  Neither
can recourse to unilateral pressure to prevent a Member from making use of a measure which is
authorized within the framework of this Agreemen t be considered legitimate, since it undermines
legal certainty and confidence in multilateral comm itments and is detrimental to the protection and
interests of public health.
The implementation of the TRIPS Agreement in relation to protectable subject matter allows
therapeutic methods, inter alia , to be excluded from patentability to ensure that such applications,
being in the interests of society and public health, are not subordinated to private interests. This
equally controversial issue goes hand in hand with the need to protect second uses of well-knownpatented medicines.
In this sense, inventions whose commercial exploitation must be prevented to protect the life
or health of populations, inter alia , should be excluded from patentability, once again in order to
balance public interests with the interests of private right holders.
Other uses without the authorization of the right holder must be possible; compulsory
licensing for exports from countries where they are granted is necessary for effectively promoting the
protection of public interests, taking into consideration the small economies which are unable to
acquire and hence take advantage of such licences.
The provision on the protection of undisclosed information should not be interpreted in such a
way as to override Members' rights under other Articles of the Agreement.  Such information must at
least be available in the event of a national em ergency or other circumstances of extreme urgency.
The opinions briefly stated herein do not even begin to cover the wide range of unsatisfied
needs and provisions of dubious application, whether or not available, in the TRIPS Agreement.
Consequently, this exercise must be considered merely as the first step in discussions leading to the
analysis and negotiation of means to ensure the effective implementation of the Agreement to the
mutual advantage of right holders and consumers, and conducive to a balance of rights and
obligations and to the social and economic welfare of the broad strata of society lacking an economic
livelihood or minimum income, who must be the first beneficiaries of social and public healthobjectives.
Ongoing research into new medicines for both l ongstanding and new diseases must not be the
cause of, or effectively result in, the sidelining of the most sacred of all human rights, the right to life,
because the considerable expense involved, constantly mentioned but never proven, has to producereturns.
The advocacy of a system for the protection of intellectual property rights that guarantees
general public policy objectives should not in practice result in a system which, while calling for the
recognition of the need for such guarantees, give s priority to the removal of trade barriers and
distortions with the result of nullifying or impairing the right of access to the means of protecting and
prolonging life.
This is why the discussions initiated today in this body must continue to form part of this
Council’s regular work and feature on the agenda of the fourth Ministerial Conference, so thatMinisters can ensure that the results of this work are available as soon as possible for the immediate
benefit of all WTO Members, in particular the most disadvantaged.
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