Give Me Property or Give Me Death: Reconciling Intellectual Property Rights and the Right to Health

Abstract

Though few would argue against the right to health care on moral grounds, we argue that the greater problem has been over the feasibility of such an idea, especially where the “right to health” has never been clearly defined. We discuss a range of problems in balancing the two values: the right of a creator to protect their intellectual property and the right of everyone to enjoy the highest attainable standard of health care. We argue that to strike a balance between these important values, all countries must work to develop policies that take into account the basic health and developmental interests of developing countries. We also argue that important changes must be made to the current IPR system, especially with respect to the production and pricing of basic goods and services needed to fulfill health subsistence rights. These changes must include allowing developing countries access to essential medicines that support the realization of basic health, welfare, and economic development. We examine an alternative patent compensation system that Pogge (2005a) has proposed. While we highlight the important aspects of this plan, we also argue that Pogge's scheme falls short in that it does not provide enough incentive to break the short-term profit perspective that corporations possess. We propose two amendments to address this issue in Pogge's scheme. We further argue that we need to replace the dominant state-centric paradigm that views the right to health care in strictly nationalistic terms (as simply problems of the state) with a more cosmopolitan paradigm that reflects the true nature of the relationship between IPR and human rights as a “global public good.”