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Patient or Patent – Intellectual Property and the Right to Health

Nani Fazlur Rahman discusses the relationship between Intellectual Property Rights and the Right to Health, arguing big pharma favours the former often at the expense of the latter.

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Intellectual property rights and Right to Health, as specified by the Universal Declaration of Human Rights, have recently become increasingly antithetical to each other. On one hand, the Right to Health implies that states should do all they can to provide affordable medicine equitably to their people, perhaps even manufacturing generic drugs that can then be provided to the population at a fraction of the cost of their patented, branded equivalents, whilst proponents of intellectual property rights have routinely argued that protection of patents on drugs is crucial in encouraging research and development (R&D) of new drugs.

The Right to Health entitles a person to a healthcare system that provides equal opportunity to achieve the highest attainable level of health and access to essential medicines. Under this, health must be accessible and affordable to all. This is especially important to the poor, whose health may be the only asset they possess to exercise their right to education or work. After all, how can someone work or go to school when they, or their families, are stricken with illness?

Crucially, the Right to Health is non-discriminatory and this is codified in many international conventions. The International Covenant on Economic, Social and Cultural Rights, which states that no one from any race, religion, sex or class, can be excluded from receiving medical aid or denied the Right to Health.[1]

The Committee on Economic, Social and Cultural Rights has outlined a set of minimum obligations states must fulfil, two of which are “the provision of essential drugs” and “equitable distribution of all health facilities, goods and services”.[2] Under the Right to Health, states are obligated to protect their population’s access to health by enacting legislation ensuring that private actors (i.e. pharmaceutical companies) do not harm their population’s right to health and ensure that “privatization does not constitute a threat to the availability, accessibility, acceptability and quality of health-care facilities, goods and services”[3].

The Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement calls for the protection of patents for at least twenty years, and only allows states to break patents and to import or manufacture generic (non-branded) drugs in the event of “public health emergencies”.[4] In 2001, the WTO declared a ‘waiver’ that enables developing countries to bring in measures to reduce the price of medicine either through legislation or manufacturing generic drugs.[5]

However, there is significant pressure from pharmaceutical companies (‘Big Pharma’) to restrict this ‘waiver’ especially with regards to drugs for diseases such as AIDS, malaria and tuberculosis. Oxfam has found no evidence that this ‘waiver’ has facilitated increased access to medicine in poor countries.[6] Furthermore, the condition ‘public health emergency’ is extremely vague and heavy pressure from Big Pharma has made the ‘waiver’ unworkable for many countries. This leaves large swathes of the world’s population suffering from treatable diseases.

Furthermore, free trade agreements, such as the TRIPS-plus and the recent Trans Pacific Partnership Agreement (TPP), have reinforced protection of intellectual property and patents. By protecting Big Pharma against generic competition, prices for medicine will almost definitely increase, further excluding the poor and the most vulnerable (minorities and rural populations) from the Right to Health.

Proponents of intellectual property rights argue that profits allow more investment into extremely costly research and the development of better drugs. However, whilst estimated mean R&D costs of getting a new drug to market are $2.6 billion[7], R&D costs are only an average of about 20% of the pharmaceutical companies’ revenue in 2014.[8] This, combined with Big Pharma lobbying to increase the life of patents, shows their disregard for the Right to Health and shows they favour the accumulation of profit over simply recouping the costs of R&D and promoting better health.

But why are intellectual property rights deemed more important by Big Pharma than the Right to Health? The intuitive answer is that it is because they ensure the continual innovation in pharmacy. But, is it not more important to ensure the continual survival of people?

We should deconstruct the concepts behind intellectual property rights, and question why it must be protected. Are we protecting it because we have constructed IPR to be essential to medical innovation; so much so that we believe that without patent protection, new drugs will not be discovered? Can’t we develop drugs for the sole purpose of alleviating the suffering of billions of people? Of course, to do this, a new system of funding for R&D is needed. Prize funds (which gives innovators reimbursement for their research)[9] and open-source research (opening projects to external contributors)[10] [11] have been successful. They reduce the costs of R&D, thus allowing altruistic researchers the ability to develop medicines for diseases that Big Pharma would deem un-profitable to treat. These alternatives, therefore, allow the pharmaceutical profession to place the Right to Health above their intellectual property rights.

Earlier this year, GlaxoSmithKlein (GSK), a ‘Big Pharma’ company, has announced that it will not file patents for its medicines in poorer countries to allow cheaper, generic medicines to be produced.[12] GSK have thus set a precedent in its approach to intellectual property rights by recognising that the Right to Health is far more important than profits.

This shows that the Right to Health, can and, should always take precedence over intellectual properties at least to an extent. To achieve this, we must recognise that all are entitled to an equitable and affordable health care system; we must be aware of the forces that are restricting the global access to health. And finally, we must deconstruct the argument that innovation can only exist for profit. Innovation should exist for the enhancement of human lives and, ultimately, to protect our Right to Health, not to diminish it.

Nani Fazlur Rehman is third year Economics, Politics and International Studies student at Warwick, with a passion for issues in international relations and development.  

[1] The Office of the High Commissioner of Human Rights & The World Health Organization, “Factsheet No.31: The Right to Health”, [Accessed via: http://www.ohchr.org/Documents/Publications/Factsheet31.pdf], p. 7

[2] ibid. p. 25

[3] ibid. p. 26

[4]Medicine and Intellectual Property”, Development Studies, The University of Dublin, Trinity College, [Accessed: https://www.tcd.ie/Economics/Development_Studies/link.php?id=87]

[5] The World Trade Organization, “Paragraph 6 of the Doha Declaration on the TRIPS Agreement and public health”, [Accessed: https://www.wto.org/english/tratop_e/trips_e/implem_para6_e.htm]

[6]Medicine and Intellectual Property

[7] Tufts Center for the Study of Drugs Development, “Cost to Develop and Win Marketing Approval for a New Drug Is $2.6 Billion”, [Accessed: http://csdd.tufts.edu/news/complete_story/pr_tufts_csdd_2014_cost_study]

[8] http://www.statista.com/statistics/309471/randd-spending-share-of-top-pharmaceutical-companies/

[9] Wilson, P. & Palriwala, A., “Prizes for Global Health Technologies”, Results for Development Institute, [Accessed: http://www.resultsfordevelopment.org/sites/resultsfordevelopment.org/files/R4D-PrizesReport.pdf]

[10] Årdal C, Røttingen J-A (2012) Open Source Drug Discovery in Practice: A Case Study. PLoS Negl Trop Dis 6(9), [Accessed: http://journals.plos.org/plosntds/article?id=10.1371/journal.pntd.0001827]

[11] Agitha, T. G. (2013). Alternative incentive models delinking R & D costs from pharmaceutical product price. Journal of Intellectual Property Rights18, 491-498 [Accessed: https://www.researchgate.net/profile/Agitha_Tg2/publication/260598456_JIPR_18(5)_491-498/links/0f317531bfff616d77000000.pdf]

[12] http://www.ip-watch.org/2016/03/31/gsk-eases-ip-rights-for-poorest-countries-considers-patent-pooling-for-cancer/

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