Resolved: Equitable Access to Pharmaceuticals Should be prioritized over Protecting Intellectual Property Rights

Abstract

Introduction

The text argues that equitable access to essential medicines is a moral and legal imperative that must take precedence over intellectual property (IP) rights, particularly in times of public health crises.

1. Right to Health vs. Intellectual Property

• The right to health includes access to timely medical care, medicines, safe water, sanitation, and health education.

• Equitable access ensures individuals with greater health challenges receive necessary support, without implying identical access for everyone.

• Intellectual property rights (IPRs), such as patents, are temporary, revocable, and primarily serve corporate interests, unlike inalienable human rights.

2. Moral and Legal Obligations

• International frameworks like the Universal Declaration of Human Rights (UDHR) and ICESCR recognize health as a fundamental human right.

• Patent protections, while supporting innovation, cannot override the universal right to health.

• The TRIPS Agreement itself allows measures to protect public health, including patent exceptions in emergencies, highlighting the priority of health over IP.

3. Case Studies and Real-World Challenges

• South Africa and HIV crisis: High drug costs made lifesaving medications inaccessible, demonstrating the moral need to prioritize equitable access.

• COVID-19 pandemic: Patent protections restricted vaccine production in countries like India, delaying availability for developing nations. Proposals for temporary patent waivers at the WTO highlighted the tension between IP rights and public health.

4. Misuse of IP Rights

• Evergreening allows companies to extend patents via minor modifications, keeping drug prices high and limiting access to generics.

• Compulsory licenses exist but are often ineffective in countries without manufacturing capacity or under international pressure.

5. Hurdles Created by IP Laws

• IP laws can prevent timely production and distribution of life-saving drugs and vaccines, particularly in low- and middle-income countries.

• Wealthier nations sometimes block measures like patent waivers, deepening global health inequities.

6. Recommendations

• Legal reforms are needed to prevent evergreening and ensure equitable access without undermining innovation incentives.

• Policies should balance IP protection with global public health, prioritizing life-saving access during emergencies.

• Equitable access should be embedded into international and national regulatory frameworks, reflecting a moral and ethical commitment to human life over commercial interests.

Conclusion

While preferential treatment of Intellectual Property Rights over equitable access may supposedly lead to more incentive for innovation, we must also realize that the equitable access of pharmaceuticals in itself, is a salient incentive for development. Moreover, as recognized by many international organizations, it is essential to devote more resources and focus on equitable access to pharmaceuticals to elude disastrous circumstances costing us lives and trauma. This debate is not merely between access to pharmaceuticals and IP rights. At stake here is the bedrock of human rights as a whole, ie, the right to health. Therefore, we must prioritize human well-being over commercial interests.

References

[1] Velásquez, G. & SOUTH CENTRE. (2013). ACCESS TO MEDICINES AND INTELLECTUAL PROPERTY: THE CONTRIBUTION OF THE WORLD HEALTH ORGANIZATION (No. 47). https://www.southcentre.int/wp-content/uploads/2013/05/RP47_WTO-role-in-IP-and-access-to-medicines_EN.pdf [2] Office of the United Nations High Commissioner for Human Rights & World Health Organization. (n.d.). The right to health. In Fact Sheet No. 31. https://www.ohchr.org/sites/default/files/Documents/Publications/Factsheet31.pdf [3] Moser, D. J., Boulet, P., Childs, M., Shieh, M., & Pécoul, B. (2023). Striking fair deals for equitable access to medicines. Journal of Intellectual Property Law & Practice, 18(4), 323–335. https://doi.org/10.1093/jiplp/jpad025 [4] Ms. Sri Bhavanisha K S, Alliance Journal of Intellectual Property Law (AJIPL) Volume: 1, Issue: 1, 2023 . ISSUES RELATED TO EQUITABLE ACCESS TO MEDICINES: A PATENT LAW PERSPECTIVE https://www.alliance.edu.in/research/AJIPL/ajipl-2023/assets/pdf/issues-related-to-equitable-access-to-medicines.pdf [5] Motari, M., Nikiema, J., Kasilo, O. M. J., Kniazkov, S., Loua, A., Sougou, A., & Tumusiime, P. (2021b). The role of intellectual property rights on access to medicines in the WHO African region: 25 years after the TRIPS agreement. BMC Public Health, 21(1). https://doi.org/10.1186/s12889-021-10374-y [6] Beall, Reed F. \"Patents and the WHO Model List of Essential Medicines: Clarifying the Debate on IP and Access.\" WIPO, 2016, https://www.wipo.int/edocs/mdocs/mdocs/en/wipo_gc_ip_ge_16/wipo_gc_ip_ge_ 16_brief.pdf [7] Boscheck, Ralf. \"Intellectual Property Rights and the Evergreening of Pharmaceuticals.\" Intereconomics, vol. 50, no. 4, 2015, pp. 221-229. [8] Mike, J. H. E. a. V. E. N. (2020). RE-EVALUATING THE RELATIONSHIP BETWEEN PATENT RIGHTS AND HUMAN RIGHTS FOR THE ENHANCEMENT OF ACCESS TO ESSENTIAL MEDICINES. www.academia.edu. https://www.academia.edu/43339953/RE_EVALUATING_THE_RELATIONSHIP_BETWEEN_PATENT_RIGHTS_AND_HUMAN_RIGHTS_FOR_THE_ENHANCEMENT_OF_ACCESS_TO_ESSENTIAL_MEDICINES&nav_from=6114bbbc-82a2-42ff-9fb4-c7df19a854a7&rw_pos=undefined [9] Gold, E. Richard, et al. \"Are Patents Impeding Medical Care and Innovation?\" PLoS Medicine, vol. 7, no. 1, 2009, pp. 1-5. [10] WMA - the World Medical Association-Right to Health. (n.d.). WMA - the World Medical Association-Right to Health. Right to Health – WMA What is Intellectual Property (IP)? (n.d.). https://www.wipo.int/about-ip/en/ [11] U.S. Centers for Medicare & Medicaid Services. (n.d.). Generic Drugs. HealthCare.gov. [12] WTO | intellectual property (TRIPS) - TRIPS and public health: Compulsory licensing of pharmaceuticals and TRIPS. (n.d.). https://www.wto.org/english/tratop_e/trips_e/public_health_faq_e.htm [13] Members. (n.d.). AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS. In AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (pp. 319–322). https://www.wto.org/english/docs_e/legal_e/27-trips.pdf [14] Salazar, S. & Central American Economic Integration Secretariat (SIECA). (n.d.). INTELLECTUAL PROPERTY AND THE RIGHT TO HEALTH. https://www.wipo.int/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_unhchr_ip_pnl_98_3.pdf [15] WTO | intellectual property (TRIPS) - TRIPS and public health: Compulsory licensing of pharmaceuticals and TRIPS. (n.d.). https://www.wto.org/english/tratop_e/trips_e/public_health_faq_e.htm

Copyright

Copyright © 2025 Saisha Gupta, Vishwas Gupta. This is an open access article distributed under the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.