The Global Governance of HIV/AIDS

The Global Governance of HIV/AIDS

Intellectual Property and Access to Essential Medicines

Elgar Intellectual Property and Global Development series

Edited by Obijiofor Aginam, John Harrington and Peter K. Yu

The Global Governance of HIV/AIDS explores the implications of high international intellectual property standards for access to essential medicines in developing countries. With a focus on HIV/AIDS governance, the volume provides a timely analysis of the international legal and political landscape, the relationship between human rights and intellectual property, and emerging issues in global health policy. It concludes with concrete strategies on how to improve access to HIV/AIDS medicines.

Chapter 5: Trade agreements, intellectual property and access to essential medicines: What future role for the right to health?

James Harrison

Subjects: development studies, law and development, law - academic, health law, intellectual property law, international economic law, trade law, law and development, politics and public policy, international relations, public policy


Pharmaceutical drugs are an essential component in the treatment of many of the world’s most serious healthcare problems, including HIV/ AIDS. But at the heart of the recent debate over pharmaceutical drugs have been their prices. The price of many drugs is greatly increased by the intellectual property (IP) protection that is granted to their inventors, allowing pharmaceutical companies a number of years in which they have exclusive rights to market and sell their products (Oxfam, 2006, p. 15f). This raises some fundamental questions about the legal and moral balances of our society. To what extent should inventors be allowed to profit from their inventions, and to what extent should countries limit the rewards they can obtain in order to take care of other important societal concerns such as public health? (Harrison, 2007, p. 115f) In terms of international trade law, this argument has become particularly acute with regard to developing countries. While most developed countries have already instituted relatively strong systems of IP protection as a result of domestic policy choices, a number of developing countries have only recently established systems of IP protection as a result of international trade law obligations. These obligations arise from the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) and bilateral and regional trade agreements, which often contain stronger forms of IP protection than that found in the TRIPs Agreement – the so-called TRIPs-plus provisions. There is a great deal of debate about the developmental stage at which implementation of a system of IP protection is appropriate,

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