There is an urgent need to establish the basis of a new balance between the availability of drugs in the poorest countries, in which millions are dying, and protecting the investments of those who developed those drugs. Members of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) council meeting at the World Trade Organization (WTO) in Geneva this week face this challenge. They do so with the less-than-comfortable conclusions of a UK government-commissioned report ringing in their ears, highlighting as it does the problems in the present system.

Many of the messages in the report are not new. The added significance lies in where it comes from. It was commissioned by Clare Short, UK secretary of state for international development, from a group of six international experts led by John Barton, professor of law at Stanford University, California, and including representatives from India and Argentina. It sends a strong signal to developed countries that the 'one size fits all' approach to intellectual property rights can have a negative impact on developing countries (see http://www.iprcommission.org/graphic/documents/final_report.htm).

The report addresses the diverse roles of intellectual property rights in poorer countries' development: some have well-established research infrastructures, whereas others have valuable genetic resources and traditional knowledge. In the poorest nations, with millions of people dying from endemic diseases, the immediate priority is not intellectual property but saving lives by getting access to essential drugs. The WTO declaration on TRIPS and public health adopted last November recognizes this and emphasizes that all countries should be able to use the flexibility in the TRIPS agreement to obtain cheap versions of essential drugs. This week's council meeting will be asking countries to come to an agreement over an exemption clause that would allow countries without manufacturing capacity to issue a compulsory licence to another country in order to import generic and relatively cheap drugs.

Compulsory licensing has successfully been used as a threat to entice the pharmaceutical industry to lower its prices, as witnessed with anti-retroviral drugs in Brazil. Even the United States, one of the most vehement opponents of compulsory licensing around the WTO negotiating table in the past, was recently vaunting its persuasive powers in forcing Bayer to reduce the price of its anthrax drug Cipro during last year's anthrax attacks. But unless agreement is reached on the exemption clause, suppliers of generic versions based in countries yet to implement the TRIPS framework, such as India, will no longer be able to supply them once it comes into force, removing the desired competition with patented pharmaceutical products.

The report calls for developing countries to make maximum use of compulsory licensing in their own legislation, but notes that the economics of supply to one country with a limited market may not attract generic suppliers. It advocates that the World Health Organization or the United Nations Children's Fund, for example, should broker a deal for a generic version of an essential drug to be supplied to a group of countries with a similar public-health need.

The Commission on Intellectual Property Rights concluded that for most developing countries, rapid economic growth is more often associated with weaker intellectual property protection than that mandated under TRIPS. But if things are going to change for the better, developing countries must be given the opportunity to participate in reform discussions, instead of leaving this to the non-governmental organizations. Only then will the playing field begin to level out. The Rockefeller Foundation's plan to launch a programme in November to give experts from developing countries and groups of indigenous people a forum to discuss these issues should be welcomed.