Edited by Christophe Geiger
Chapter 11: Mitigating the impact of intellectual property in developing countries through the implementation of human rights
As examined elsewhere in this book, human rights may be invoked under different circumstances to limit the impact that intellectual property rights (IPRs) may have in several fields, such as access to medicines. This chapter discusses the extent to which arguments based on human rights have been articulated with that purpose within the UN system and in developing countries. The chapter first examines some resolutions and reports adopted or produced within the UN system that directly or indirectly address IPRs from a human rights perspective. Second, it considers some examples of ‘human rights impact assessments’ (HRIAs) conducted to establish the effects of the adoption of different levels and modalities of IPRs protection. Finally, it presents a number of judicial decisions by some developing countries’ courts where human rights considerations were taken into account in addressing IPRs issues. After the adoption of the TRIPS Agreement, and particularly as a result of the HIV/AIDS crisis in Sub-Saharan Africa, the tension between IPRs and access to medicines became apparent. Several non-governmental organisations, academics and other institutionscautioned about the possible negative impact of the TRIPS Agreement on access to medicines, which is essential for the realisation of the right to health. In 1996, the World Health Assembly (WHA) gave a mandate to the WHO Secretariat to work on intellectual property in relation to health.
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