Access to life-saving medicines

Points covered:1) Positive rights and health2) TRIPS and patents (again)3) Rights vs. utility

A primer on rights

If a person, P, has a right to X, which duties are imposed on other people such that P can enjoy her/his right to X?

Negative rights

A negative right gives me the opportunity to do X if I wish. It imposes a duty on others not to prevent me from exercising my right to do X.

Positive rights

A positive right entitles me to Y if I am unable to procure Y for myself. It imposes a duty on someone else to provide me with Y if I cannot provide it for myself.

What if a ‘duty bearer’ is not specified?

UN Declaration (1948)

Article 25(1):Everyone has the right to a standard of living

adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

How do you turn article 25(1) into a ‘real’ positive right?

Answer: by specifying a person or organization to provide medical care sufficient to ensure a standard of living adequate for health and well-being.

Two possibilities

1) Existing governmental legislation, e.g., International Covenant on Economic, Social and Cultural Rights (1966), Article 12 (Schroeder et al., p. 232).

2) “Judicial activism” (ibid., p. 233).

Are these two possibilities really distinct? (SERAC vs. Nigeria)

Rationale for patents

Patent Cooperation Treaty (1970) – 146 parties currently.

Aim of Treaty (“Preamble”): 1) Furthering progress of science;2) Facilitating the public’s access to

technological information;3) Fostering economic development in poorer

countries.

A question of rights?

Is it a right of innovators that their intellectual property be protected by patents?

If the answer is “yes”, we must decide whether innovators’ rights “trump” the rights to health foreseen in the ICESCR)?

A question of “social utility”?

Is it a right of innovators that their intellectual property be protected by patents?

If the answer is “no”, we must assess intellectual property rights according to their ‘social utility’.

The utility of IPRs

Is the TRIPS régime better than no protection of intellectual property?

The utility of IPRs (cont.)

Is the TRIPS régime better than the pre-TRIPS régime?

To answer this question, consider the ‘’access” (or affordability) problem and the “availability” problem which face poor countries.

The availability problem

The pre-TRIPS régime did not guarantee pharmaceutical companies a profitable outcome on innovations because poor countries (e.g., India, Brazil, S. Africa) produced cheap generic copies.

Hence, pre-TRIPS, pharmaceutical companies had little incentive to produce medicines which would cure or alleviate diseases that affect people in poorer countries.

The availability problem (cont.)

The TRIPS régime might well be superior to the pre-TRIPS régime because IPR protection will make drugs required in poor countries profitable.

After the patent on such drugs expires (after 20 years), poor countries will be allowed to make generic copies.

TRIPS ameliorates the availability problem.

The access problem

TRIPS increases prices of drugs whilst they are under patent for 20 years.

Hence, regarding the access problem TRIPS is worse than its predecessor.

Is there a better alternative to TRIPS?

The Health Impact Fund