[Ip-health] Human Rights, Intellectual Property and Access to Medicines, notes from Yale workshop

Jamie Love james.love at keionline.org
Mon May 6 13:01:33 PDT 2013

Source URL: http://keionline.org/node/1711

Human Rights, Intellectual Property and Access to Medicines, notes
from Yale workshop

4. May 2013 - 7:01

On April 26, 2013 I attended a half day meeting on "A Human Rights
Approach to Intellectual Property and Access to Medicines" organized
by the Yale Law School and the Yale School of Public Health. These are
notes from my interventions on behalf of KEI.

1. KEI does a lot of work on intellectual property rights that has
impact on human rights. We do not always give prominence to human
rights law or the language of human rights, although at times and in
the right context, it can be important to do so.

2. In general, as regards access to medicine, we see the human rights
dialogue and remedies playing out differently for different issues,
taking as examples the status of campaigns to deal with affordability
and access to AIDS and cancer drugs, or the problems of under funding
of R&D for neglected diseases. There is much less attention to the
right to obtain affordable drugs to treat cancer, than for AIDS.

3. Access to medicine is not the only issue for human rights. The
affordability of medicines or the reasonableness of prices is also
important. No one should be required to sell off all of their assets
to pay for a cancer treatment, and price gouging in general can reduce
one's quality of life in many other areas. If a government pays too
much for one drug, it will have less money to pay for other drugs,
other treatments, or other services and benefits. Innovation is also
important, particularly for persons who have few or no effective
treatment options.

4. For any effort to address the pricing and affordability of drugs,
the first, second and third line of attack on access is always that
high prices are necessary incentives to stimulate R&D. KEI does not
see any long term sustainable solution to affordability that does not
address the R&D funding issue. KEI does not think it is possible to
achieve universal access unless people embrace delinkage of R&D costs
from product prices.

5. As regards de-linkage, as well as other human rights, including the
broader "right to development," it is helpful to create more pressure
on states to search for mechanisms that reconcile competing policy
objectives in ways that protects human rights.

6. Human rights advocates may not feel they can endorse specific
solutions to medical R&D funding, but they should be able to say that
when a particular solution to funding R&D is inconsistent with
universal access (both empirically and theoretically), governments
have a duty to evaluate different approaches, to see if there are less
harmful and acceptable alternatives, including proposals like R&D
treaties and innovation prize funds, which are designed to raise R&D
levels and innovation without high drug prices.

7. The human rights framework is widely perceived as a weak soft
instrument. And lack of effective enforcement of human rights sends a
signal that human rights have a lower status and require less

8. Human rights advocates should look at the variety of mechanisms
that have been used to enhance the enforcement of intellectual
property rights. These include everything from binding agreement on
the specific details of the implementation of intellectual property
rights to global observatories, technical assistance programs, dispute
resolution and a variety of trade sanctions. Which of these
instruments could be a model for greater enforcement of human rights?

9. While many human rights resolutions and treaties rightly focus on
the role of states in protecting human rights, there are also norms
that apply to individuals and non-state organizations. In Article 2.2
of the 1986 UN Declaration on the Right to Development, "All human
beings have a responsibility for development, individually and
collectively . . . as well as their duties to the community," and
"should therefore promote and protect an appropriate political, social
and economic order for development." It is important to focus more
attention to the role of individuals, including individuals who work
for governments or large corporations.

Article 2
2. All human beings have a responsibility for development,
individually and collectively, taking into account the need for full
respect for their human rights and fundamental freedoms as well as
their duties to the community, which alone can ensure the free and
complete fulfilment of the human being, and they should therefore
promote and protect an appropriate political, social and economic
order for development.

10. In our experience, criticism of a large institution, like the
United States government, or even a big company, like Pfizer or
Novartis, has an effect. But in some cases, there is a greater effect
by paying more attention to the role of the individuals who make and
carry out the government or corporate policies. For example, when US
government negotiators like USPTO's Justin Hughes (WIPO treaty for
blind negotiation) or DHHS's Nils Daulaire (WHO R&D Treaty
negotiations) bully developing country negotiators in ways that are
harmful to the human rights of vulnerable populations, it is important
to focus on their role too. The same is true for private sector
executives such as Disney's Bob Igor, MPAA CEO Chris Dodd, or Novartis
CEO Joseph Jimenez, who are leading attacks on the human rights of
vulnerable populations. Michael Froman will be the new head of USTR,
and will be advised by people like Stan McCoy and George York. USTR is
not just an agency, but is an agency that is run by people, and those
people should be evaluated by the human rights community according to
some standards.

11. The Gates Foundation presents unique challenges for the human
rights community. On the one hand, Bill and Melinda Gates are
extraordinarily generous, and have focused much of their philanthropy
on the global poor, and have done much to improve global health. On
the other hand, the Gates Foundation has played an extremely negative
role in efforts to develop replacements for strong patent rights and
high drug prices. The Gates Foundation is now more powerful than any
government, and this too has consequences, as it operates without
transparency or accountability, which itself undermines human rights.

12. Some of these points were addressed in a June 18, 2009 paper
prepared for the UN Human Rights Council, Working Group on the Right
to Development, High Level Task Force on the implementation of the
right to development. The Global Fund to Fight AIDS, Tuberculosis and
Malaria, the Special Programme for Research and Training in Tropical
Diseases and the right to development [2].

Some points that were raised only indirectly

When one observes persistent abuses of human rights, such as national
and global norms for intellectual property rights that create vast
disparate in access to medicine, or the recent problems in negotiating
a treaty on copyright exceptions for persons who are blind or have
other disabilities, there is often corruption involved, and in
particular, corruption associated with large corporations that
perceive it to be in their own self interest to protect or advance
policies that harm the pubic in general and poor people in particular.
This is in fact a fundamental problem as regards human rights, and
should receive more attention from human rights scholars.

Source URL: http://keionline.org/node/1711

[2] http://keionline.org/sites/default/files/A-HRC-12-WG2-TF-CRP4-Rev1.pdf

James Love.  Knowledge Ecology International
http://www.keionline.org, +1.202.332.2670, US Mobile: +1.202.361.3040,
Geneva Mobile: +41.76.413.6584, efax: +1.888.245.3140.

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