Intellectual Property and Access to Essential Medicines
Elgar Intellectual Property and Global Development series
Edited by Obijiofor Aginam, John Harrington and Peter K. Yu
Chapter 5: Trade agreements, intellectual property and access to essential medicines: What future role for the right to health?
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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