TPP affecting health policies?

The present debate on the TPPA in Malaysia is part of the global discussion on how trade and investment treaties are affecting health, including access to medicines and tobacco control.

ARE big companies making use of trade and investment agreements to challenge health policies? Evidence is building up that they do so, with medicine prices going up and tobacco control measures being suppressed.

This issue came up in Parliament last week when International Trade and Industry Minister Datuk Seri Mustapha Mohamed said the Government would not allow the Trans-Pacific Partnership Agreement (TPPA) to cause the prices of generic medicines to go up.

He added he would defend existing policies on patents and medicines and if we don’t agree with some of the terms, we can choose not to sign it.

Trade agreements and health concerns are linked because some companies selling tobacco, medicines and food are using these agreements to sue governments that introduce new regulations to safeguard public health.

Malaysia will host the next round of the TPPA negotiations this month, so the debate on these issues can be expected to continue.

The World Health Organisation’s Director-General Dr Margaret Chan recently noted that corporate interests are preventing health measures.

The cost of non-communicable diseases are shooting up. The costs for advanced cancer care are unsustainable, even in rich nations and some countries spend 15% of the health budget on diabetes.

“In the developing world, the cost of these diseases can easily cancel out the benefits of economic gain,” she said. It is harder to get people to adopt healthy lifestyles because of opposition by “unfriendly forces”.

“Efforts to prevent non-communicable diseases go against business interests. These are powerful economic operators. It is not just Big Tobacco anymore. Public health must also contend with Big Food, Big Soda and Big Alcohol. All of these industries fear regulation and protect themselves by using the same tactics,” said Dr Chan.

Those tactics include “front groups, lobbies, promises of self-regulation, lawsuits and industry funded research that confuses the evidence and keeps the public in doubt”.

Many studies show how trade agreements with the United States or Europe have raised the prices of medicines because of the constraints placed by the FTA’s strict patent rules on the sale of cheaper generic medicines. Patients have had to switch to costlier branded medicines.

One study estimated that Colombia would need to spend an extra US$1.5bil (RM4.74bil) a year on medicines by 2030 or people would have to reduce medicine consumption by 44% by that year.

“Data exclusivity”, one of the features of the FTA, has delayed the introduction of cheaper generic versions of 79% of medicines launched by 21 multinational companies between 2002 and mid-2006 and, ultimately, the higher medicine prices are threatening the financial sustainability of government health programmes.

The tobacco industry is also making use of trade and investment agreements to challenge governments’ tobacco control measures.

According to an article by Prof Mathew Porterfield of Georgetown University Law Centre, the company Philip Morris has asked the US government to use the TPPA to limit restrictions on tobacco marketing.

In comments submitted to the US trade representative (USTR) , Philip Morris argued that Australia’s plain packaging regulations would be “tantamount to expropriation” of its intellectual property rights, and complained of the broad authority delegated to Singapore’s Health Minister to restrict tobacco marketing.

In order to address these “excessive legislative proposals”, Philip Morris urged USTR to pursue both strong protections for intellectual property and inclusion of the investor-state dispute settlement mechanism in the TPPA.

The company has instituted legal cases against Uruguay and Australia for requiring that cigarette boxes have “plain packaging”, with the companies’ names and logos disallowed.

These cases are under bilateral investment agreements. The company claims that the packaging regulations violate its right to use its trademark, and also violate the agreement’s principle of “fair and equitable treatment”.

It claims that a change in government regulation that affects its profits and property is an “expropriation” for which it should be compensated.

Under such agreements, companies have sued governments for millions or even billions of dollars.

The provisions in the bilateral investment treaties are also present in trade agreements including the TPPA. Companies can directly sue the governments in an international court, under an investor-state dispute system.

Having been sued by the tobacco company for its health measure, the Australian government has decided not to enter any more agreements that have an investor-state dispute system.

In the TPPA negotiations, Australia has asked that it be granted an exemption from that agreement’s investor-state dispute system. So far, such an exemption has not been agreed to.

The controversies over how trade and investment agreements are threatening health policies will not go away, because the rules are still in place and new treaties like the TPPA are coming into being.

A “Google search” on this issue will yield hundreds, in fact, many thousands of documents. And the number will go up as long as the controversy continues.

Global Trends
By MARTIN KHOR

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Intellectual property ownership

The Government is spending a huge sum of money on research and development, especially in the areas of pure sciences, engineering, medical sciences and social sciences, including education, management, and sociology field.

The search for knowledge is the ever evolving nature of human beings, especially academicians whose livelihood depends on the depth, variety and impactful research they are embarking on.

Government-sponsored research grants always encourage developing human capital by involving potential postgraduate students in the research together with their academic supervisors who have sound track record of research and publications in their research domain.

Usually, the academic supervisors with their vast experience, exposure and reading in the areas of their interest, will co-develop the research framework with their postgraduate candidates in the initial stage of the research.

The postgraduate candidates may further fine tune the research framework and perform further rigorous testing before it is ready for data collection.

Once the data collection is completed and fruitful findings are established, the research framework becomes the intellectual property of the designers and the authors once it is published in a peer reviewed and high impact journal.

The issue of ownership of the intellectual property arises when it comes to primary authorship and supporting authorship if it is submitted for a journal publication or chapters in a book or even for a book publication.

There are many schools of thought to explain this, but, one thing to be remembered, treasured and cherished by those involved in the research is the synergised teamwork and wonderful relationship between the postgraduate candidate and the mentor that had created such a valuable intellectual property.

Can we allow such a noble relationship to be smeared or broken by raising ownership issues of the intellectual property and sequencing the authorship for the journals and books? Does the authorship sequence have any value if the relationship is broken or belittled?

Since there is no single doctrine to dictate who should be the primary author and the secondary author or third author, as all these involve emotions and ego. The act of producing a film based on a storybook is a good analogy.

When producing a film based on a good story, the whole team – director, photographer, stuntman, etc, put in effort to make the movie a success.

For example, the film Harry Potter, directed by David Heyman originated from a book written by J.K. Rowling.

In academic research, the postgraduate candidate should own the thesis which is the storybook in the case of a film.

When it is published in a journal, the authorship and its sequence of authorships should be based on the roles such as who had directed the development of the whole paper that should be given the primary authorship.

Then comes the respective individuals who created each component to make a manuscript for the journal publication.

If the academic supervisor crafted the whole manuscript and had received contributions from the postgraduate candidate and other researchers to satisfy the readership of a journal, then the academic supervisor can be the main author.

The origin of the research thesis is still owned by the postgraduate candidate, and he or she can take turns to craft another manuscript after learning the ropes of writing to a journal which needs mindful amendments a few times before it gets published.

The important matter here is all will be given due recognition based on the efforts to create a wider readership.

Therefore, the intellectual property ownership and authorship sequence issue should not overcrowd or destroy the research spirit that has primary importance in the development of human capital in the country.
Academicians have been working very hard towards that goal since the establishment of the universities.

DR SHANKAR CHELLIAH Universiti Sains Malaysia, Penang

Related posts:
Distinguishing research authorship and ownership rights

Distinguishing research authorship and ownership rights

 

Distinguishing authorship

I REFER to the letter “Quality time supervising post-graduates” (The Star, Feb 16 - attached below) where the writer said: “The supervisor obtains grants for his research and allows you to use the money to do your research. There is no reason why he should not claim first authorship”.

This was one of the responses to the letter “Stop practice of ‘free riders” (The Star, Feb 7- also attached below) which criticised the alleged practice of supervisors claiming authorship for students’ works.

It appears that there is a failure to appreciate the difference between authorship and ownership.

“Author”, as defined under section 3 of Malaysia’s Copyright Act 1987, means “the writer or the maker of the works”. It does not refer to a person who pays for the work.

In our present context, authorship can only be acquired through some scholarly input into the work. Money cannot buy authorship.

Authorship must not be confused with ownership.

The latter refers to one’s property right in the work, which includes the right to exploit it for profit.

For example, an author and a publisher may co-own a work. But the publisher is not the author.

Likewise, the supervisor who has provided the funding may acquire ownership, but not authorship.

Being an author attracts certain rights.

No person may, without his/her consent, present the work without identifying the author or under a name other than the author’s.

This is one of the author’s “moral rights” recognised by the law (section 25), which cannot be overridden without the author’s consent even if the work is subsequently sold.

Of course, where the supervisor constructs the framework for the research (more common for sciences than for social sciences) and divides its components to be researched by her students, the supervisor may appropriately be regarded as an author. There is scholarly input on his/her part.

What about the credit due for supervision given?

This will depend on the common understanding between the supervisor and the student.

In normal circumstances, the supervisor’s comments on a student’s work does not give him authorship since it is either given gratuitously or in pursuant to the supervisor’s obligation as a supervisor.

As the legal holder of moral rights, the student may as a matter of courtesy offer to include the supervisor’s name. But this is a matter of discretion rather than obligation.

Supervision is a selfless task. In my subject area, at least, supervisors conventionally disclaim authorship (or rather, they do not assert).

To acknowledge their generosity and sacrifice, it is common to explicitly express our gratitude to them in our work.

A close and personal relationship, which will last for many years (or decades) to come, arises from such mutual respect.

ALVIN SEE Assistant Professor of Law  Singapore Management University

• B.C.L., University of Oxford, 2010
• C.L.P., Malaysia, 2009
• LL.B. (First Class Honours), University of Leeds, 2008

Quality time supervising post-graduates

I REFER to the letter “Stop practice of free riders” (The Star, Feb 7 - attached below) by Pola Singh.

The writer has missed the point by many miles. He has called supervisors by many idioms! One of which is “lembu punya susu, sapi dapat nama”.

He has misunderstood the whole process of postgraduate education. I don’t think there are any supervisors who will force a student to work under him like a “slave”. It is the student who chooses to work with a particular supervisor.

The graduate student–supervisor relationship is very personal and close. Yes, the student has to do all the work under the close supervision of the supervisor. The supervisor obtains grants for his research and allows you to use the money to do your research. There is no reason why he should not claim first authorship.

Of course in any publication there is no need for the supervisor to put his name first, but the corresponding author must be your supervisor. You cannot be the corresponding author simply because you will not be able to answer the reviewers’ queries as well as he.

If you can, then you don’t need the postgraduate degree and you don’t need the supervisor.

Many professors and supervisors spend hours discussing, correcting and guiding many students to their postgraduate degrees.

PROF FAROOK ADAM School of Chemical Sciences 
Universiti Sains Malaysia Penang

B. Sc. (with Education) (USM) 1981) M.Sc. (USM) 1992 D.Phil. ( Sussex ) 1998   



Stop practice of ‘free riders’
 
I FEEL compelled to write after hearing the tales of graduate
students pursuing their doctorate degrees at local universities who are exasperated with their professors for making use of them for their own ends.

Graduate students, particularly those doing their doctorate degrees, are at the mercy of their professors who demand this and that.

Topping the list of unreasonable demands is the co-authorship of papers based on the research done by the student for his PhD dissertation.

It is the student who painstakingly prepares the literature review, formulates the hypothesis, collects and analyses the data, draws up conclusions and makes recommendations.

Yes, the conscientious professor guides the student all the way (which in any case is part and parcel of his work) but when it comes to the publication of a manuscript based on the research findings, guess who gets all the credit?

Professors take for granted that in an unequal relationship, they will get credit for the hard work put in by the student and this is manifested by putting their name as the first author of the research paper.

No straight-thinking student would challenge this. In the worst case scenario, the student’s name does not even appear on the manuscript.

It’s akin to the saying “Lembu punyi susu, sapi dapat nama”.

Call this a form of exploitation but it is taking place all the time.

This imbalance of power leads some to label the students as “slaves”.

No matter how friendly and accommodating professors are, they still hold considerable power in deciding when the student will graduate.

Some nasty professors demand that the thesis be rewritten again and again and this frustrates the student who will do everything and anything to complete his doctoral degree as soon as possible.

We can understand why students are so afraid to bring such matters up to the higher authorities. In the process, they suffer in silence and the problem remains buried deep in the ground.

And it’s hard to say “no” to a professor’s unreasonable demands because grad students need the support of faculty members, who may happen to be members of their dissertation committee, to pass and approve their thesis.

Many of the department heads are so busy and sometimes overburdened with their administrative duties that they have hardly any time to do serious substantive research.

But as they aspire to go higher they need to beef up their resume by coming up with more publications. This will also increase their prospect of promotion and getting the elusive JUSA (super scale) post.

Guess who does all the “donkey work” for them? And yet some of these selfish professors do not even acknowledge the contribution of the student, although their contribution in the preparation of the paper has been minimal.

It’s easy to know who the culprits are.

Just ask the academicians to submit a list of their publications and notice the number of times the name of the professor is listed as the first author followed by the students.

Sometimes, the subject matter or topic of a paper is the same but the student’s name is left out entirely.
This practice of “free riders” in the academic circle has to stop.

Graduate students cannot be forever exploited. Vice-chancellors should not condone such practices which are regarded as a norm not only in Malaysia but also in developed countries.

A system has to developed by the Higher Education Ministry to ensure students get due credit for the work they have done.

What can be immediately done is to send a circular that a professor cannot take ownership of an article or paper that has been prepared entirely by the graduate student based on his dissertation work.

If it is warranted, the professor’s name can be listed not as the first author but as co-author.

POLA SINGH  Kuala Lumpur