Abstract
This chapter examines the conflict between international patent protection and the right to health. A successful campaign was waged by emerging nations and their civil society allies against the rules governing the protection of intellectual property as defined by the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Following this confrontation, a change of the TRIPS regime was agreed at the World Trade Organization’s 2001 Ministerial Conference in Doha. Since then, world trade rules have accorded the right to health precedence over the right to intellectual property. The human immunodeficiency virus crisis, the mobilising potential of non-governmental organisations, and rising powers such as India and Brazil as well as a new normative discourse, not least in the West, contributed to this change in global health politics.
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Notes
- 1.
The term intellectual property right(s) is used as technical shorthand for a whole set of different rights such as patents, copyrights, trademarks, trade secrets, industrial designs, and so on. Although most of these rights have been in the making for over five centuries, the term IPRs itself is no older than 30 years. This term is loaded and problematic in at least two accounts; for one, it naturalises what have traditionally been, and continue to be, entitlements and privileges into rights and, second, it transforms knowledge into property, whose ownership must subsequently be regulated by law (Muzaka 2011: 762).
- 2.
In Cullet’s view (2007: 413–5), there is a direct link between patents, drug prices, and access to drugs. Schaaber (2005: 257–9) too describes how the TRIPS Agreement adversely affected drug prices and thus also public health. Bright and Muraguri (2011: 101) identify a number of points of tension between the right to IP protection and the human right to health: the first makes itself felt at the level of implementation and is expressed in the distinct procedural norms underlying the latter (‘patent protection’ and ‘access’); the second relates to the costs of pharmaceutical research as against the costs of supplying poor people with medicines; and the third concerns the unequal potential for influence wielded on the one hand by the pharma industry and on the other by people who have no access, or only poor access, to medicines.
- 3.
A compulsory licence allows a government to compel a patent holder to license its rights to a generic manufacturer in exchange for compensation. Parallel importation enables access to affordable medicines by importing patented products without the consent of the patent holder of a patented product marketed in another country with the patent holder’s consent (available at http://www.who.int/medicines/areas/policy/doha_declaration/en/, accessed 8 November 2015).
- 4.
On the history of the right to intellectual property, see Peukert (2013).
- 5.
The most recent lists (18th WHO Essential Medicines List, 4th WHO Essential Medicines List for Children) were published in 2013 and are available at http://www.who.int/medicines/publications/essentialmedicines/en/, accessed 12 September 2014.
- 6.
“Society is thus ready to grant a time-limited monopoly on new inventions on the assumption that the costs in terms of higher prices to consumers, arising from the monopoly granted, are more than outweighed by the benefits of innovation” (WHO 2006: 19–20). “While it is true that the high prices generated by patent protection may render access to the drugs selective, it is nevertheless better that a drug is available to some rather than nonexistent and available to no one” (Joseph 2003: 431).
- 7.
See TRIPS Art. 31 (WTO 1994).
- 8.
Art. 27 of the Universal Declaration of Human Rights, adopted by the United Nations in 1948, already accords the status of human right to “the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”. This is reaffirmed in Art. 15 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESR), which recognises the right of every individual “[t]o benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”. But the right to health is also included both in the Universal Declaration of Human Rights (Art. 25) and in the ICESR (Art. 12). According to the latter document, the signatory states recognise “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. They are called upon to take all necessary steps to ensure “[t]he prevention, treatment and control of epidemic, endemic, occupational and other diseases” and “[t]he creation of conditions which would assure to all medical service and medical attention in the event of sickness”. Anand Grover, formerly UN Human Rights Council Special Rapporteur on the Right to Health, has identified the four core elements of availability, accessibility, acceptability, and quality as crucial in ensuring the realisation of the right to health. Of these, he considers accessibility to be the most problematic (Grover and Lander 2012: 214–5).
- 9.
“Patents may promote some kinds of R&D but, at the same time, limit access to medicines they help to generate. The key point is that people in developing countries should not be deprived of medicines just because these are patented. This is unethical and against human rights” (Correa in WHO News 2006: 350).
- 10.
“First, the shipment did not follow its original course to Brazil due to an autonomous decision of the exporter to bring it back to India. Such action by the exporter was a result of negotiations with the holder of the patent in the Netherlands, who actually threatened to request the destruction of the apprehended goods. Second, we have evidence indicating that around half of last year’s Dutch seizures resulted in the destruction of the goods in transit.… A merely perfunctory examination of the WTO disciplines will lead us to the simple and straightforward conclusion that the Dutch authorities had no right to do what they did. They could not have detained the consignment, obstructed or delayed its transit, nor prevented its arrival in Brazil based on a claim of violation of patent rights” (Brazil 2009 TRIPS Council statement).
- 11.
Resolution 1308 (2000) Adopted by the Security Council at its 4172nd meeting, on 17 July, available at http://www.unaids.org/sites/default/files/sub_landing/files/20000717_un_scresolution_1308_en.pdf, accessed 11 November 2015.
- 12.
Declaration on the TRIPS Agreement and Public Health (WTO 2001a).
- 13.
“The Doha Declaration clarifies the right of governments to use compulsory licensing as a means of resolving tensions that may arise between public health and intellectual property, and to determine the grounds for using it. Developing countries should provide in their legislation for the use of compulsory licensing provisions, consistent with the TRIPS agreement, as one means to facilitate access to cheaper medicines through import or local production” (WHO 2006: 180).
- 14.
“Partners should consider carefully any trade-offs they may make in negotiation. Bilateral trade agreements should not seek to incorporate TRIPS-plus protection in ways that may reduce access to medicines in developing countries” (WHO 2006: 126).
- 15.
“The right of everyone to the enjoyment of the highest attainable standard of physical and mental health in the context of development and access to medicines” (HRC/RES/17/14, 14 July 2011).
- 16.
In his welcome message to the 2013 World Health Summit, Barroso remarked that: “Investing in health systems is not just a social imperative. It is also, if you will, good economics, as it helps tackle the root causes of underdevelopment, poverty and instability. In many ways, personal health is a public good” (WHS 2013: 4–5).
- 17.
The BRICS group of states comprises Brazil, Russia, India, China, and South Africa.
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Wolf, K.D., Scholz, S. (2017). Health Before Patents: Challenging the Primacy of Intellectual Property Rights. In: Gertheiss, S., Herr, S., Wolf, K., Wunderlich, C. (eds) Resistance and Change in World Politics . Global Issues. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-50445-2_2
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