(This post has been co-authored by Swaraj Barooah)
It appears that 30th June 2016 was quite a good day for access! Aside from the developments with the Marrakesh Treaty that Vasundhara recently posted on here, the United National Human Rights Council (UNHRC), in its 32nd Session, adopted the much awaited Resolution on “Access to medicines in the context of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” (the Resolution). The Resolution was sponsored by 13 developing countries including India, Brazil, China, Egypt, and others, before going on to gather more than 70 co-sponsors.
In its news report, First Post rightly states that the central tenet of the original text premises itself “on the primacy of human rights over international trade, investment and intellectual property regimes“. In particular, the Resolution notes that “actual or potential conflicts exist between the implementation of the [TRIPS] and the realization of economic, social and cultural rights in relation to, inter alia, restrictions on access to patented pharmaceuticals and the implications for the enjoyment of the right to health”. Accordingly, the Resolution calls upon developing nations to take complete advantage of the flexibilities afforded by TRIPS; including those provided under the Doha Declaration and other international instruments, so as to promote access to “comprehensive and cost-effective prevention, treatment and care for the integrated management of non-communicable diseases, including, inter alia, increased access to affordable, safe, efficacious and quality medicines and diagnostics and other technologies”.
The Resolution goes on to mention the usual things one would expect from a positive Resolution of this nature – more access, more support to developing countries to ensure this access, and the support of all parties including pharmaceutical companies to promote innovative R&D to address health needs in developing countries. Interestingly, it also specifically encourages delinkage of R&D costs from medicine prices. This is another positive step in the gradual mainstreaming of delinkage conversations as a way to ensure maximum access.
As can be expected, the Resolution saw certain developed countries expressing reservations – including UK, Switzerland, EU (see IP-Watch article here)
Falling in Place
The adoption of this Resolution, albeit successful, was preceded by a display of the usual discord between the developing and the developed over conceptual and fundamental differences relating to access. Essentially, the sponsors of this Resolution heavily relied upon a human rights-based approach to further their cause of increasing access. On the other hand, developing states objected to the harsh approach proposed by the Resolution citing necessity for an incentive-based patent regime to ensure overall social welfare.
The gradual shift of these access debates from a primarily patent jurisprudence landscape, to one of countervailing values (i.e., patent rights vs human rights) brings me to the normative value of ‘framing’ these debates in language outside of that of patent jurisprudence. A few years ago on the blog, Swaraj had discussed the use of bringing in a countervailing ‘value’, such as ‘human rights’, with which to talk about how IP affects health. In the three-part post, Swaraj discussed the link between the underlying justification of a patent system (part 1), the de-facto supremacy of corporate influence in determining patent policy in reality (part 2) and the importance of factors external to the IP framework in defining those which are internal to it (part 3). When solely patent policy considerations are looked at, he describes the theoretical framework for why voices on the side advocating for access do not have as strong an influence, and therefore are not being acted upon in an adequate and effective manner. The third part of his post argues that the human rights based approach is an important tool for the access side to more equitable balance against the more powerful innovator side in terms of influencing policy. As he states, “it can be used as a very good proxy for achieving what an “ideal” patent system ought to be providing but isn’t”.
For those interested, Amy Kapczynski’s paper on “The Access to Knowledge Mobilization and the New Politics of of IP” (pdf) discusses the effect of this framing process in more detail. Along similar lines, in a very interesting policy paper, Yale’s “Global Health Justice Partnership” (pdf) lays out very useful strategic points on why framing these debates in terms of human rights can reduce barriers to access that IP rights can create.
To conclude: While it would be tempting to look at this in isolation and call it a paper tiger, it may also be the case that this represents another brick in the building of a stronger foundation for ensuring maximum access. And we surely hope that it is the latter!