Research Handbooks in Intellectual Property series
Edited by Christophe Geiger
Chapter 26: Right to health and patents
The debate about the relationship between intellectual property and human rights has come to be dominated by concerns about the implications of pharmaceutical products protected by patents and the negative, exclusionary effects that may result in terms of access to medicines and the right to health. Essentially we are talking about the consequences of the rights conferred on the owner of a patent. Article 28.1(a) of the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) establishes the right of the patent owner to prevent third parties not having the owner’s consent from acts of: making, using, offering for sale, selling or importing for these purposes that product. The justification for society granting these exclusive (and potentially exclusionary) rights is well rehearsed elsewhere. In terms of the justification of intellectual property as a human right, attention is often drawn to the United States Constitution of 1787, Article 1 Section 8, Clause 8.Article 13 of the American Declaration of the Rights and Duties of Man, 1948, contains analogous wording. In international instruments, this approach is echoed in Article 27 of the Universal Declaration of Human Rights (UDHR), 1948, and in Article 15.1 of the UN International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR). The treatment of intellectual property in the same way as tangible property is also endorsed by Article 17 of the Charter of Fundamental Rights of the European Union.
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