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In Their Own Words
Each month, the School of Law spotlights one of our faculty members.
What you always wanted to know, we ask ....
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BROOK K. BAKER
Professor of Law
April 2007
biography
Current Research
My current research is activist and advocacy oriented and focuses almost exclusively on addressing the structural determinants of the global HIV/AIDS pandemic and the policies and practices that prevent scale-up of a comprehensive response, especially in terms of treatment access for the 40 million men, women and children living with the virus. Meeting a global commitment to provide universal access to AIDS treatment by 2010 requires low-cost medicines of assured quality, full-funding of global need and accelerated investments in rehabilitating health care capacity that has been undermined by two decades of structural adjustments imposed by international financial institutions like the International Monetary Fund.
Although the cost of first-line ARV therapy has fallen to as little as $90-$132 per person, per year, the cost of second-line therapies is 10 to 30 times higher in low- and middle-income developing countries, respectively. The cost of second line therapies is dramatically higher because the creation of globalized standards of intellectual property rights (IPRs) via the 1994 WTO TRIPS Agreement that now extend even to India, the "pharmacy of the poor," which was forced to become TRIPS-compliant in 2005.
In amending its law, however, India enacted a number of legally permissible safeguards that are now under attack by the multinational pharmaceutical industry. For example, Novartis has filed a lawsuit challenging section 3(d) of the Amended India Patent Act of 2005 challenging its strict definition of patent standards for pharmaceutical products. Similarly, the multinational drug industry and the US government continue to put behind-the-scenes pressure on India to adopt so-called "data-exclusivity rules" that would prevent the Indian drug regulatory authority from relying on or referencing drug company data thereby preventing the registration of lawfully generic products for up to five years. To help defend India's access to medicines laws, I have written expert submissions and multiple advocacy analyses for both policy makers and activists on both on the Novartis lawsuit and on the data exclusivity issue.
In addition to conducting research in support of India, I have also been researching recent challenges to compulsory licenses issued by Thailand for two AIDS medicines, Efavirenz and Kaletra, and one heart-disease medicine, Plavix. Although Thailand issued a so-called government-use license in total compliance with both international and national law, the affected drug companies and their business allies have objected strenuously, and one of them, Abbott, has taken the unprecedented step of withdrawing seven medicines from the drug approval process, including a new heat-stable form of Kaletra that is much more appropriate for use in tropical countries like Thailand. To defend Thailand's right to use lawful flexibilities to access more affordable generic medicines, I am working with an informal network of legal activists to investigate competition claims against Abbott and to restrain the US from exerting trade pressure on Thailand.
My IPR-related research and advocacy activities also focus on TRIPS-plus provisions in recent bilateral and regional US "free" trade agreements. The US now routinely attempts to lengthen patent terms, ease patent standards, prevent patent oppositions, enact data exclusivity, and restrict use of compulsory licenses and parallel importation.
The U.S. effort to increase intellectual property protections for pharmaceutical products has predictable effects in increasing the cost of newer medicines, which operates in direct opposition of the US increased commitment to provide funding for AIDS prevention, treatment, and care programming. And that funding, as scale-up as it is, is far less than that which is necessary to meet the US fair share of global need (estimated global need of $18.2 billion for 2007). Even this funding is threatened, however, by IMF-imposed macroeconomic policies that require low inflation and fiscal discipline by developing countries. These policies get translated into public sector spending caps, hiring freezes, and wage freezes that prevent funding of expanded health and education services. I presented a poster on this topic at the International AIDS Conference in Toronto last August.
Finally, I am researching efforts to strengthen community systems and health systems where HIV/AIDS programming really takes place Ð at the local level. Thus, I traveled to South Africa last summer to research efforts to increase reliance on community health workers to engage in prevention, testing, and treatment literacy and to support home-care providers who are attending the sick and dying and the orphans they leave behind. My research has concluded that it is essential to train and supervise community health workers and to provide them with strong, integrated referrals systems, but it is also important to compensate them for their currently unpaid care labor. Paying this largely female workforce will not only provide a form of structural prevention (they will not have to engage in transactional sex merely to survive), it will also increase women's social status in the community and help build communal resistance and resiliency to the pandemic and its effects.
Most Interesting Case
I was a lawyer a long time ago in a small progressive law firm, where I essentially was a general practitioner. My most interesting case recently involved a complaint at the South African Competition Commission where the Treatment Action Campaign and others were challenging anti-competitive practices by two pharmaceutical companies, GlaxoSmithKline and Boehringer-Ingelheim, which had refused to grant licenses to generic producers and who maintained artificially high prices in the private sector, the only sector in which AIDS medicines were available at that time. I played a very minor role in the case, basically explaining the importance of fixed-dose combination medicines that eased patient adherence to treatment and simplified drug procurement and distribution in resource poor settings. I also gave an expert opinion on how the patent system actually discouraged the development of fixed-dose products combining medicines patented by different companies and thus the importance of allowing generic production of therapeutically appropriate combinations. The Competition Complaint was ultimately successful and resulted in multiple licenses granted to generic producers who were permitted to export throughout sub-Saharan Africa. This case has proven to be a powerful precedent that has forced drug companies to offer many more voluntary licenses to generic producers in South Africa and India.
Recent Publications
Although I have written a book chapter recently, most of my "publications" have consisted of short advocacy documents. I believe the titles are self-explanatory:
Book Chapter:
- "Placing Access to Medicines on the Human Rights Agenda" in The Power of Pills, 239-248 (Jillian Clare Cohen, Patricia Illingworth & Edo Schüklenk eds., 2006).
Law Review Articles, AIDS Periodicals and popular press:
- "A deadly game of pharmaceutical apartheid," The Nation (Thailand) (March 16, 2007)
Policy papers/analysis:
- Civil Society Options Paper on Community System Strengthening, Global Fund to Fight AIDS, Tuberculosis and Malaria, Jan. 12, 2007
- PhRMA lies and Distortions - Thai Compulsory Licenses, Jan. 26, 2007
- Mashelkar Report Misstates India's Right To Define Scope Of Patentability And Threatens Access To Medicines, Jan. 26, 2007
- PhRMA's Seven Deadly Lies about Thai Compulsory Licenses, Feb. 1, 2007
- A deconstruction of Novartis' defense of its patent case against India, Feb. 7, 2007.
- A New Low in the Pharma Drug WarsAbbott Withdraws Seven Medicines in Thailand, (March 14, 2007)
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Best Book Read in the Past Year
I read an enormous quantity of absolutely dreadful writing consisting of reports from UN and US government agencies. Though I don't fall to sleep easily, this dreck really helps. What I really like to read is mediocre escape literature -- a good spy story or a murder mystery, though I will occasionally read a good South African novel as well. My favorite current mystery series is the No. 1 Lady Detective Agency series by Alexander McCall Smith, a UK male writer who unexpectedly writes a compelling account of minor crimes, slow-paced life (and detection) and good manners in Botswana. However, in terms of real literature, my favorite read of several years was Peter Orner's book, Second Coming of Mavala Shikongo. Peter, a graduate of this law school, took Legal Practice and was also a TA,. He unexpectedly writes truly lyrical prose about a young expat American teaching at a forlorn boarding school in rural Namibia. His ear for dialogue, his description of desert desolation and his exploration of a fervid form of disconnection in the midst of a cross-cultural affair is spell-bounding.
Favorite Thing to do When Not at the Law School
I like the ocean. I like to walk on beaches; I like to body surf at the edge of sand, water and wind; I like long views across salt marshes and to distant shores; I like crashing waves. Fortunately, I can satisfy this passion at our beach cottage on Plum Island and during our multiple trips to Durban, South Africa. When I'm stuck in the city, in our Dorchester home, I will watch almost any basketball game, no matter how tedious or uninspired. I make up for that sedentary activity by playing basketball with people now half my age. I will gladly go anywhere in the world with the love of my life, Judith, who I met 40 years ago.
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