Human Rights Must Take Precedent Over Intellectual Property Rights

26/04/2016 16:17

Pharmaceutical companies are just like any other company and "It's important we treat a business like a business" said a representative from the US Chamber of Commerce in a recent discussion around access to medicines. This is the reality we've all come to take as the natural order of things, that medicines, like any other consumable, are a product traded by companies in order to reap the maximum profit. But is this justifiable or absurd?

The recent press release of pharma giant GSK saying they were expanding access to their products for poorer countries and the flurry of activity from HIV activists ACT UP fighting Gilead to lower the prices of PrEP (Pre-Exposure Prophylaxis) so the NHS can afford it - is clear evidence that both the public and industry are waking up to the latter.

The protest from ACT UP also show that high drug prices have become a global problem. The high price of Hepatitis C treatment at £35,000 and other Cancer drugs are why we're seeing a 15.1% increase in the NHS hospital's expenditure on prescription medicines.

Yet this week we celebrate one of the leading structural causes of this global health crisis. World Intellectual Property Day (April 26th) is one of the more curious world celebration days but an important one, according to the World Intellectual Property Office (WIPO), to learn about the role that IP rights (patents, trademarks, industrial designs, copyright) play in encouraging innovation and creativity.

It makes sense that innovators should be rewarded with a secured market return on their investment when it comes to certain non-essential goods, however this model also applies to medicines. If patent monopolies lead to prices so high that a person is then unable to realise their human right to health - to access affordable and appropriate medicine- then surely this incentive system has become nonsensical.

The UN Secretary General Ban Ki Moon has set a group of experts to task to try and grapple with this very question. The UN High Level Panel on Access to Medicines brings together thought leaders from industry, government and global health to resolve the incoherence between intellectual property rights, international human rights law and public health.

Despite progress made in many areas, millions of people are still dying because they cannot access life-saving medicines. In 2014 1.2 million people died from AIDS, 9.6 million people infected with TB and 1.5 people died because of TB, over 400 million people have hepatitis B and C and 38 million people have died from non-communicable diseases such as cardiovascular diseases (17.5 million deaths), diabetes (1.5 million deaths), cancer (8.2 million deaths) and respiratory diseases (4 million deaths).

The panel have reviewed almost 200 submissions and last month held two hearings in London and Johannesburg to hear ideas from activists, industry, governments and academics on how we can address the current imbalance.

The discussions at both the London and Johannesburg meetings included a mixture of ideas ranging from incremental changes to our current model to an entire system overhaul. Unsurprisingly the pharma industry reps present were on the defence when it came to the latter. Jon Pender, vice-president of GlaxoSmithKline at the Joburg hearing, said:

"We need to insure that the new proposals are going to lead to more innovation than we see now. It is important not to throw the baby out with the bath water in some of the proposals," he said, underlining the number of significant medical innovations that have been put on the market in the last 50 years for the benefit of patients.

The quality of innovation was bought into question from Els Torelle from Open Society Foundation, who said that "What patents are rewarding is anything that is new and inventive, but they're not linked to how they improve health outcomes. This is a fundamental problem. This is why we have 70% of drugs coming to market having zero added-therapeutic value compared with the medicines that are already there."

The issue of patent monopolies, although a problem in itself, is only a symptom of a much broader issue, that our model for researching and developing medicine's isn't driven by public-health need - it is driven by profit. Not only does this lead to high prices and a market flooded with non-effective medicines, it also means that some health conditions, even if they are life threatening, get ignored if they affect non-profitable markets. We've seen this with the Ebola virus. There was no emergency response prepared when the Ebola outbreak began in West Africa in 2014, it was only when there was a suspected case found in America that research into a vaccine sped up.

For all these reasons there is a growing movement of people who are keen to push for a reformed medical research and development (R&D) model. The sentiment from civil society at both meetings is that health is our most basic asset as human beings, its primacy cannot be denied and "This should be the starting point for the panel," as one Kenyan academic in Johannesburg put it.

Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, highlighted that there is a proposition according to international law that states have an obligation for human rights to prevail above any other obligation, including intellectual property rights.

As duty bearers of human rights, it is the responsibility of states to ensure that their citizens are able to realise their rights. The High Level Panel's recommendations are set to come out in June and will be addressed to heads of state. It is yet to be known whether these recommendations will have an accountability mechanism attached to them so it may well fall to civil society to hold governments to account.

The Missing Medicines campaign, who are fighting for a public health driven R&D model are poised for this role. You can join this important struggle by signing up here.

The Missing Medicines campaign is co-run by STOPAIDS, Health Poverty Action, Youth Stop AIDS, Restless Development, UAEM, Chasing Zero, T1International and Oxfam.