The most common argument in favor of strong Intellectual Property Rights is that protection of inventions acts as an incentive. Endowing the owner of an IPR with the exclusive right to use the IPR is an undeniable incentive that encourages innovation. Exclusive right to use the IPR translates into a financial incentive for the inventor. Conversely, it is a well-acknowledged fact that IPR does also limit the access of the protected invention to the few people who can afford it. This is very limiting as a large percentage of the population remains unable to access the inventions. Ever since the inception of IPR’s the conflict between inventor’s rights and public rights has subsisted. Many Conventions, including the TRIPS, have tried to strike a balance between these two conflicting interests. However, it has never been possible to fully placate both sides.
This, though, is not a cause of primary concern in any other field. However, insofar as access to medicines is concerned this conflict of interest gains a lot of importance, given the fact that it is the life of humans that is at stake.
For a long time now the United Nations Human Rights Council has tried to bring in a Convention that addresses this conflict of interest. This effort culminated in success with the UNHRC adopting a resolution on access to medicines, proposed by a number of developing countries, including India.
The Resolution makes note of the fact that a potential conflict exists between the implementation of TRIPS and the realization of economic, social and cultural rights in relation to patented pharmaceutical products. The Resolution asks the member States to promote access to medicines by using the flexibilities envisaged in TRIPS.
The World Health Organization in its World Medicines Situation Report, 2011 stated that at least one-third of the world population has no regular access to medicine. Referring to this, the Resolution, while acknowledging the fact that protection of Intellectual Property is important for the development of new medicines, has called upon States to collaborate and delink medical research and development from the prices of medicines, diagnostics, and vaccines. Thus, the overall price of the medicine would be reduced. The Resolution addresses the classic incentive for innovation vs. access issue. It seeks to resolve the issue by using the TRIPS flexibilities and the collaboration of States.
However, the developed countries like the United Kingdom, Switzerland, and the European Union are not very happy with the Resolution. They are of the opinion that the Resolution is unbalanced and that it does not recognize the complexity of the issue of access to medicine.
Access to medicine requires the immediate attention of the world. It must be acknowledged that most of the life-saving drugs are out of the reach of a large percentage of the World population. There must be a Model Law that States must follow in order to ensure that access to medicine is equitably shared. People who need the medicine must e able to afford it; this must be the modus operandi of the Model Law.
The UNHRC Resolution has made headway in ensuring access to medicine. The panel discussion on the issues of access to medicine scheduled to take place in March 2017, at the 34th session of the UNHRC will give a definitive structure to the implementation of the Resolution.