Framing debates on IP – Part III

This is third and final part on “Framing debates on IP & Health”. Part I and Part II can be accessed by clicking on the links above. I want to use this series to argue that the manner in which IP debates are framed in the health context, play a large role in claim-staking, even if the claims used are ones that ought to have no role in IP policy. Further, that this manner of framing is more useful to the traditional ‘access’ side of the debate than it is to the ‘innovator’ side – and that despite being more useful to one side, this can help in balancing the debate. There is nothing new per se about these arguments but with the recent rise in discussion over compulsory licenses, human rights, international agreements and IP standards, I thought an articulation of these arguments would be useful.  [Disclaimer: Long post ahead]
Part I argues that “human rights” based claims do not add any value to the analytical framework of patents and public health. Part II then goes on to argue that Corporations benefitting from IP based rents influence IP policy more than other affected stakeholders. 

[ Claim 3: Framing IP debates in concepts external to the IP framework is required to advance the aims internal to the IP framework ] 

Frames matter
I argue in Part I that the theoretical justification for patent rights demands that social welfare losses are minimized as far as possible while maximizing social welfare gains – that this encourages new drug discovery while minimizing the harms caused by pricing people out of medicines.  Thus discussing human rights or related ‘rights’ doesn’t add anything useful or new to the analytical framework examining the tradeoffs that the patent system brings with it. Further, despite all the rhetoric, that HR based claims are decidedly not in conflict with patent rights, since ideal patent rights aim towards maximizing social welfare. 
However, as shown in Part II, there is a gap between ideal theory and practical application. IP Policy is predisposed to being influenced more severely by Corporations which stand to benefit from strong IP policy, than it is to being influenced by other stakeholders regardless of whose welfare interests are more aligned with the maximization of social welfare. In other words, while the justification for IP as a concept is that it has a social welfare maximizing function, IP rights are not, have not and presumably can not be defined so as to necessitate maximization of social welfare. 
Amongst other things, the perfect transformation of the concept of IP into a legal provision(s) would require a thorough analysis of the purchasing ability of the relevant market (patients) and the costs required to incentivize new drugs. However, the transaction costs involved in determining these costs make such determination impractical. Therefore ‘next best’ solutions / guesses are made towards determining how to define the right in question. For e.g., Does anyone know why 20 years was decided to be the best term duration for all patents regardless of field of technology? (Not a rhetorical question – I would actually like to hear whether this was a randomly decided number or whether there was actually some rationale to it). Without knowing the rationale for this 20 year period, does it make any sense to discuss patent term extensions? What if exclusion rights can be granted for a total of 25 years without any substantial harm on consumers along with what is clearly a bigger incentive for new drugs? What if 14 years is the threshold after which exclusion rights cause more social welfare losses than gains? Similarly, how broad should a patent be? What are the effects on overall social welfare gains if we allow minor incremental innovation patents – and if we dont? However, with questions like this requiring much evidence and study, good estimates need to be made. Or at least aspired towards. And here is the issue:
  • Patent rights cannot be defined so as to necessitate maximization of social welfare, despite this being their function. 
  • Patent rights can also be used to receive lucrative rents by certain parties. 
  • And these parties end up having more of a say than others in determining how patent rights can be defined. 
To be clear, this means that the voices of those who do not benefit from lucrative rents from IP are not contributing equally to this policy guessing game. i.e., there are claims on the ‘access’ side which are  not getting their due.
This is where the framing of IP debates becomes important. While costs for R&D, rates of innovation, amount of patients being priced out due to exclusion rights, etc can technically be studied to some degree at least, it is very difficult to get a hold of this information and wield it with any real power or legitimacy. With one stakeholder having a louder voice in an arena where ‘next best’ estimates become policy, it becomes necessary to provide other stakeholders with similar platforms to voice themselves – and this is where ‘rights’ based claims can play a major role. 
Human rights, while technically irrelevant to the analytical framework of patents and public health, has already been established as a legitimate (independent) claim / set of claims, cause and impetus for action across the world. It therefore has a strong potential to serve as a tool which the ‘access’ side of the debate can use to put their voice on a similar platform to the one currently occupied by the ‘innovator’ side. That is to say, it can be used as a very good proxy for achieving what an ideal patent system ought to be providing but isn’t. Importantly, a new vehicle for voicing ‘access’ claims doesn’t reduce the power that the innovator claims currently enjoy over IP policy. Rather, by shifting over to a more favourable conceptual terrain, such claims are able to level the playing field for the patent terrain, to a certain extent at least. 
The early 2000s onwards have seen plenty of ‘human rights’ based claims being used on domestic stages as well as international stages, centered around the argument that human rights are being sacrificed for the sake of patents. As I’ve explained already, this is simply not true. Human rights are not involved in the tradeoff that patents are involved in. However, it is usually true that human rights are being affected (causation – correlation difference) by bad / biased patent policy – not by the existence of patents. 
This is a seemingly minor difference but it lends a lot more credibility to human rights claims if their claimants recognize the difference here. It is much easier to brush away ‘right to health’ claims when you can simply say that the activist doesn’t understand that patents are necessary and is only thinking of short term benefits rather than long term / overall good. If, on the other hand, such claims are buttressed by evidence (or at least arguments) of bad patent policy, then it becomes clear that human rights and overall social welfare is being negatively affected by bad patent policy. An equally important reason to maintain this difference is that jurisprudence of patent policy gets warped if patents per se are viewed as being in conflict with human rights. 
Therefore we have:
a) Human rights claims which are analytically incorrect claims to make against bad patent policy 
                     but strategically and conceptually much stronger points on their own.
b) Balanced patent policy claims which are analytically correct 
                     but much harder and costlier to engage convincingly with. 
It becomes clear that these two types of arguments need to be used simultaneously to be most effective. It should also be noted that I have been referring to human rights claims so far but different frames of reference can also be used to bring IP debates within different conceptual terrains. For example, as pointed out in this article, defining ‘investments’ to include patents in a bilateral investment treaty (BIT) technically allows foreign patent holders to bring a dispute before privately appointed investment arbitrators if the host country grants a compulsory license on that patented product as it could be seen as expropriation! The conceptual terrain that a dispute is brought within clearly plays an important role in how the dispute is settled. 
Coincidentally, just last week, the Global Health Justice Partnership at Yale University put out an excellent paper on the methods through which the Human Rights approach could be useful in the IP and access to medicines conversation. As this post has gone on long enough already, I’ll just briefly mention the 4 methods they put forward and leave a link to the paper here for those interested in reading more. 
  • Domestic courts have been seen to be more willing to directly enforce human rights arguments in the national level. Thus raising these arguments in national courts are viewed as the most promising approach with the most likelihood of of providing ‘real access’. 
  • The international human rights system (through provisions affecting with access to medicine as mentioned in various international treaties) provide a good platform for helping to develop and globalize favorable legal norms. Such norms would particularly be valuable in educating and reinforcing the resolve of local institutions that seek to address barriers to access to medicines.
  • The ‘moral power’ of human rights can be used to target corporate conduct – corporates which have historically been seen to not have obligations or directly fall under human rights norms. This could be used to concretize norms on pharmaceuticals moral and legal obligations. 
  • A process-oriented advantage that a human rights approach might provide is the fostering of solidarity and formation of alliances (such as south-south alliances) to help generate leverage against common causes such as regressive FTAs. 

[Relevant readings:
– A Human Rights Approach to Intellectual Property and Access to Medicines – Global Health Justice Partnership. Available here
– Access to Knowledge Mobilization and the New Politics of IP – Amy Kapczynski. Available here
– Theories of IP – Terry Fisher. Available here

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