Sunday, August 14, 2011


The link between Intellectual Property Rights and Human Rights is on which has arisen in recent times. There has been a lot of conflict as regards these two rights. NGO’s have played a stellar role in trying to advocate that Intellectual Property Rights be regarded as Human Rights.
The concept of Human rights has been promulgated in various International Treaties like the Universal Declaration of Human Rights and the ICESCR and the ICCPR. The same principle have been inculcated in various national laws. 
There are 3 interpretations which are available in the contemporary world”-
1)      Intellectual Property Rights have no Human rights dimension.  This angle has been discredited due to the text of the Solemn Declaration of the states of the Berne Union wherein it  was stated that IPR’s are Human Rights.
2)      Intellectual Property Rights are Human Rights with emphasis on property. This has for long been recognized as a basic human right and NGO’s have taken a lot of effort for the same to be recognized as such. This can be clearly seen in the U.S Constitution (Article 1 Clause 8) which talks about the progress of science and arts and also in the Article 17, 27 of the Universal declaration of Human Rights and also Article 15 of the ICESCR. This kind of n approach tries to maintain a balance between Human Rights and IPR.
3)      Some aspects of IPR have potentially adverse implications on Human Rights. Article 15 of the ICESCR tried to balance the public god as well as the private good. But the question arises as to where to draw the line for the protection so as to maintain this balance.
The link between these two rights can be seen in the field of education as well as in the field of the right to access to medicines. It is in the later that the role of NGO’S has been of stellar importance. To explain the conflict we shall look at certain countries  in which such conflicts have already arisen.
The country of South Africa emerged from apartheid rule in 1994. The events after this proved to be crucial in sharing South Africa’s policies.  Firstly NGO’s campaigned to improve access to Anti-Retroviral Drugs (ARV). These NGO’s also interfered to address the relationship between Human Rights and Intellectual property Rights.
The HIV/AIDS was spreading rapidly in South Africa. The NGO’s found the going tough due to the fact that the attitude of the govt. officials was not conducive to the providing of ARV drugs and treatment of HIV/AIDS as they had their own ideas as to how to treat the disease. This attitude of the govt. can be seen in the statement of President of the country, Thabo Mbeki who questioned whether AIDS was caused by HIV and he also stated that he was not sure whether ARV were safe or not.
An NGO known as Treatment Action Campaign (TAC) was formed out of a rally which was held in South Africa. The objectives of this NGO were to campaign for the equitable access to the treatment of medicines for HIV/AIDS. There main methods of campaign were through the instruments of litigation and lobbying.
In the year 2001, around 39 Pharmaceutical companies, represented by the Pharmaceutical Manufacturing Association (PMA) brought an action before the High Court of South Africa. This was against an amendment wherein the Health Minster would have the power to issue compulsory licenses and to allow parallel imports. The PMA stated that this was against Article 31 of the TRIPS provisions. The TAC obtained permission from the court to be amicus curiae. There was a lot of media scrutiny and publicity and due to the huge amount of pressure and negative press, the PMA withdrew its complaint.
In Brazil, a number of NGO’s were acting on behalf of the people with HIV/AIDS and these NGO’s were instrumental in formulating the health care system of Brazil. Art. 196 of the Brazilian Constitution enshrined the Right to Health.  The health care system is one in which the State provides for medicines to those who need it.  
In 1990, the government began to freely give out AZT, an ARV drug to the citizens of Brazil due to the increase in the cases of HIV/AIDS. This drug was initially manufactured by Glaxo- Smith Kline.  As the number of people with AIDS increased the amount of medicines required also rose. These drugs were priced at a very high rate and therefore the government found it difficult to send such huge sums of money to buy these drugs to provide for the masses.
Due to these high prices, the government began to procure generic version of these drugs which were being manufactured locally. These were much cheaper and helped the government procure them at a cheaper rate and give them out to their citizens thus fulfilling their constitutional obligations.  Till 1997, Pharma Companies were allowed to reverse engineer these patented drugs.  After the advent of the TRIPS agreement, laws were introduced to protect these pharma companies.
The aim of the Brazilian government was to maintain a balance between patents and the right to health and access to medicines. The instrument which they used to maintain this balance was the one of compulsory licenses. The government, by using this instrument was able to arm twist he MNC’s to reduce the prices of drugs.
The U.S brought a complaint against Brazil and requested the WTO Dispute Settlement Body to resolve the dispute between them. According to them, the instrument’s of parallel importing and compulsory licenses were violating the TRIPS agreement. There was a huge uproar in Brazil and under a lot of media pressure, the U.S government withdrew their complaint.
In India, Right to health is read into the wide ambit of Article 21 of the Indian Constitution which talks of the Right to life and personal liberty. But India being a signatory hd to comply with the TRIPS provisions. They delayed the same till the year 2005 as to allow their generic drug manufacturers to be able to reverse engineer ad provide drugs so that the fundamental right of health could be pursued for the benefit of the citizens of India.
The Lawyers Collective organization was founded by Mr. Anand Grover and Indira Jaisingh with the aim of giving free legal advice. This organization commenced  separate HIV/AIDS unit as a result of Mr. Anand Grover’s involvement in a case of Dominic D’souza. The main question was theater artiste and a celebrity. Hew s arrested by the Go Police and imprisoned due to him being suspected of HIV/AIDS under the Goa Public Health Amendment Act. Such a quarantining manner was not liked by activists ld by Mr. Grover who fought for a human right based approach. The court held that the needs of the people suffering from HIV/AIDS needed t be addressed.
In all of the above we can clearly see how a conflict between Intellectual Property Rights and human rights related to health ad access to public medicines has come about. This conflict to a great extent has arisen due to a proper balance not being there. This conflict becomes higher due to the fact that many countries have incorporated human rights as part of their constitution and therefore are obligated to protect and guarantee the same. In such an environment, the high prices of essential drugs is not conducive.
When we look at it from the view point of the Pharmaceutical companies, their angle happens to be that a huge amount of money is pent on Research d Development. Furthermore, due to them putting in their skill and labour, the fruits of their labour belong to them and they should have the right to be rewarded for it. This justification an be found in the theory of Thomas Hobbes (Social Contract Theory). Tey also state that since they are given time limit in which to exploit the fruits of their labour they should be able to decide what price they put on the same as well. After this time, the knowledge becomes public knowledge and they no longer can exploit the same. Also, unless you provide some incentive to these pharma companies, they wil not be interested in developing drugs for various ailment sin the world. Is can clearly be seen by the lack of medicines for diseases which have no commercial value and which are not widespread iike African sleeping sickness.
To protect IPR’s is essential but to protect the basic principles of Human rights is important as well. IPR’S can in conclusion be regarded as human rights with a strong emphasis on property.  Proper balance is required between the two, if not conflicts such as has been listed above will arise.

Saturday, March 5, 2011

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Tuesday, November 9, 2010

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