Intellectual Property Rights Vis-A Vis Right to Health: A Critique

Abstract

Health is a fundamental human right indispensable for the exercise of other human rights. The Article 25 of the Universal Declaration of Human Rights, 1948 mentioned health as part of the right to an adequate standard of living. The International Covenants, Treaties relating to human rights and the Constitutions of various nations recognize that a number of elements would be encompassed by the right to health from prevention to cure to access to drugs. However, health trends indicate that despite progress made in the last 35 years, millions of the people in the developing countries do not have access to the medicines which are required for treating diseases. One of the significant reasons for the lack of access of essential medicines required for needed treatment is the high prices fixed for those drugs. Strong intellectual property protection keeps prices inflated up to one hundred times the cost of manufacture of drugs. Monopolies are created by patents and they restrict competition in pharmaceutical market and permit patentee to set up high prices. It clearly indicates that the linkage between intellectual property rights and health has been the focus of much debate. Much initiative has been taken by World Intellectual Property Organization, World Trade Organization (WHO) and World Health Organization (WTO) through Trade-Related Aspects of Intellectual Property Rights Agreements (TRIPS), Doha Declaration and then the 30 August 2003 Compulsory License Import Export mechanism for providing safeguards to remedy the patent abuse, giving primacy to the public health over private intellectual property and also clarifying the WTO members States’ rights for using TRIPS safeguards. However, such measures failed to resolve the terrific issue ensuring production and export of generic medicines to developing countries that were incapable to produce them and also certain concepts remained un-clarified demanding clear guidelines to be issued in this respect at the international level for removing various types of controversies which still arise between developed and developing member States. Moreover, the intellectual property rules in TRIPS have been observed to be considerably less stringent than the rules developing countries are increasingly adopting in free-trade agreements known as "TRIPS-plus" agreements with the United States and other Western Governments which put greater restrictions on the use of TRIPS flexibilities like, compulsory licensing and parallel imports making it much more difficult for generic drugs to enter the market upon patent expiration and then extend patent periods beyond twenty years. Consequently, the developing countries that attempt to bring the price of the medicines down have to come under pressure from the industrialized countries and multi-national pharmaceutical industry for implementing patent legislation that goes beyond the obligations of TRIPS. However, in India Glivec case is remarkable because the judgment has a positive impact on affordability and accessibility of medicines. Now, it will be more difficult to indulge in ever-greening in India.This paper attempts to analyze critically at the global and national level two bodies of law, human right to health and intellectual property rights in order to examine certain core issues such as how despite the interactions concluded between both the bodies of law at the international level, the monopoly right conferred via intellectual property legislations transgresses the right to health particularly right to access to drug through the practice of ever-greening and threat of trade sanctions or corporate litigation from both pharmaceutical companies and developed countries. Further this paper aims to study various cases of external pressures put upon the developing countries from the side of developed nations in order to stop the entry of competitive generic medicines in the global market in the context of Indian landmark judgment and then to suggest various measures such as: making coherent, consistent and balanced legal norms at international level clarifying different concepts and issuing clearly stringent and mandatory guidelines/regulations in TRIPS providing a place of supremacy to fundamental right to health over intellectual property right; establishing high patentability standards at international level; developing Publicly funded research or pharmaceutical subsidies as well as creating policies to relax patents and increase the affordability of generic anti-retroviral through coordinated effort of global system. In order to achieve this objective, the doctrinal research is done by studying various Reports, Declarations, and Conventions of United Nations Organization and its different specialized agencies like; World Intellectual Property Organization, World Health Organization and World Trade Organization, free trade treaties among different nations as well as various other relevant national statutory enactments. The important works of a number of jurists contributing towards this field has also been the material of study.