Access to Medicines (“A2M”) has been an active space for clashes within IP scholarship over the last year, with several landmark developments taking place in quick succession. Big pharma’s attempts to secure its bottom line against India’s so-called ‘lax’ patent regime have been well documented. Ever since the Novartis ruling, the debate has firmly established its importance in the Indian context, with multinational corporations pushing for introspection in our IP laws. (For more on the manner in which pharma giants disproportionately increase the scope of their influence in policy formation processes, see Swaraj’s post here.) The intense lobbying against A2M universalisation has become more insidious, with secret agreements such as the TPP being used to expand the scope of IP protection in the pharma sector. Closer to home, the constitution and reconstitution of an IPR think tank has been looked on with suspicion, especially given that the original think tank proposed (among other things) A2M-friendly policy formulations that would have flown in the face of big pharma’s interests. Most recently, the patent office denied Gilead Sciences a patent claim on their breakthrough Hepatitis C drug, Sovaldi under Section 3(d) of the Patents Act. Social justice activists and scientists alike claimed that the decision by the pharma giant to price the drug at USD 84,000 per course against a manufacturing cost of around USD 101 amounted to daylight robbery. Gilead has since questioned the decision through a writ petition and received a favourable ruling from the Delhi High Court. For these reasons, the ruling is the latest in a series of square pegs in round holes – the use of IP law to serve the public interest goal of delivering of essential treatment to the poor. It is in this context that we must examine the motivators behind our policies in the IP v. A2M debate, and ensure that on a societal and a national level, we are absolutely clear about what policy goals we seek and why we seek them.
Social justice activists tend to argue the matter within a rights based approach (“rights speak”) that emphasises government responsibility to ensure right to health, access to public goods (particularly for vulnerable sections of society) and to maximise public welfare. IP laws in India have so far only spoken of these rights in terms of exceptions and limit them to specific contexts for which they were drafted. For example, the Marrakesh Treaty provides for copyright exceptions for visually impaired persons, but must be interpreted narrowly due to its very nature.
The conclusion of rights-speak is litigation, whose temporal and monetary costs are minimised by the extensive use of existing legal provisions, and the grounding of poverty eradication measures in black letter law. While the method certainly has its attractions – primarily the lower costs and increased chances of success – its success depends on recasting and remoulding a legal provision for use in situations it was never designed for.
An alternative plan of action for social justice campaigns is to utilise articulations of socio-economic rights as provided in international instruments to colour the interpretation of wide-ranging and open-textured constitutional provisions such as Article 21. The most recent example is the Delhi High Court’s judgement in Mohammed Ahmed v. Union of India (see Thomas’ post on the case here), where the bench quoted the International Covenant on Economic, Social and Cultural Rights (ICESCR) while reaffirming the state’s duty to provide universal healthcare in the context of rare diseases whose only treatment was in the form of orphan drugs, which are prohibitively expensive. This method has also found utility in South Africa, in Minister of Health v. Treatment Action Campaign, where the Constitutional Court borrowed principles such as the doctrine of progressive realisation to interpret constitutional provisions applied to a case concerning universal access to AIDS drugs.
This approach suffers from similar drawbacks – it is merely another form of rights-speak, in which a right is fashioned by amalgamating international and domestic norms in a mashup cooked up by individual courts. Thus, the method suffers all the drawbacks of rights-speak.
Swaraj has discussed the advocacy dilemma posed by human rights articulations in the IPRs v. A2M conflict here, and it’s worth re-reading especially in light of the recent developments mentioned above.
A third approach is the use of what is known as the “capabilities approach”, as articulated by Amartya Sen and Martha Nussbaum. In contrast to rights-speak, the capabilities approach is focussed on the actualisation of ten fundamental human capabilities, including “bodily health”. The capabilities approach views poverty as a prohibiting condition that prevents human beings from self-actualising. The solution to poverty, therefore, lies not in material hand-outs, for these are mere means to the desired end, but in removing barriers and allowing individuals to access their personal goals and lead a life of dignity. This kind of argumentation would perhaps be better suited to the problem posed by Indian IP laws. Once we recognise that human beings, regardless of financial status, must be protected from preventable diseases such as the Hepatitis C Virus, it becomes the logical next step to restructure our IP laws and change our priorities. Thus, it becomes possible to view IP rights as legally framed exceptions to universal healthcare access, instead of the current paradigm where access to medicines is couched as an exception to the dominant IP narrative.
Such a move would definitely present costs – the US and the WTO would ensure that we felt them. However, if our capabilities-based rethink leads to the conclusion that universal access to healthcare is an end worth protecting, then we must be prepared to bear these costs in order to eradicate poverty.
It is clear that such a top-down restructuring process brought about by a reprioritisation of capabilities over rights (and ends over means) in social justice policymaking presents benefits absent in the other models. The point of failure for both rights-speak and wide interpretation of constitutional provisions was rooted in the fact that these approaches required the adaptation of a solution to an entirely new problem. The unification of IP and social justice discourses brought about by the capabilities approach, however, presents an interesting solution to the A2M problem.
For further reading, see Deborah J. Cantrell, Common Ground: The Case for Collaboration Between Anti-poverty Advocates and Public Interest Intellectual Property Advocates, 15 Va. J. Soc. Pol’y & L. 415 (2007).