Balancing Act: IP Rights vs. Global Public Health Goals

The United Nations Economic and Social Council (ECOSOC) was established under the United Nations Charter as the principal organ to coordinate economic, social, and related work of the 14 UN specialized agencies, functional commissions and five regional commissions.  The ECOSOC is responsible for promoting higher standards of living, full employment, and economic and social progress; identifying solutions to international economic, social and health problems; facilitating international cultural and educational cooperation; and encouraging universal respect for human rights and fundamental freedoms.

According to this article, the discussions that took place during the ECOSOC’s annual ministerial review (July 6-9, 2009) indicated that the council is considering ways to move nations faster toward global public health goals, while heeding a warning from developing countries that intellectual property rights should not interfere with access to medicines and innovation. For example, Lumumba Di-Aping of Sudan, speaking on behalf of the Group of 77 and China stated that the international community should not let the patent holders deny the right to health. Similarly, Esme Berkhout of Oxfam International opined that it is critical to ensure access to medicine, and strict property rights hinder that free access. Meanwhile, Gonzalo Gutierrez of Peru suggested that access to low-cost medicines should be sought through a better adjustment of the provisions in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The goals and aspirations of the ECOSOC are admirable. But these are blanket statements. I would hate to use a cliché, but the required balancing act is much easier said than done. The solution – if any exists at all – will not be a simple one. After all, as Dr. R.A. Mashelkar wrote in his paper entitled “Intellectual Property Rights in the Third World”:

 An ideal regime of intellectual property rights strikes a balance between private incentives for innovators and the public interest of maximizing access to the fruits of innovation. This balance is reflected in article 27 of the 1948 Universal Declaration of Human Rights, which recognizes both that “Everyone has the right to the protection of the moral and material interest resulting from any scientific, literacy or artistic production of which he is the author” and that “Everyone has the right to share in scientific advancement and its benefits”. The burning question seems to be balancing the interest of the inventor and that of the society in an optimum way.

 There are so many issues that need to be considered in the creation of the framework that will effectively balance intellectual property rights and access to medicine. One of the biggest issues is whether or not the proposed changes – whatever they may be – would affect the innovative ideals of pharmaceutical corporations. Will there be less investment in innovation if the returns are less?  What we must remember is that we would not have this dilemma if it were not for the innovative capabilities of many pharmaceutical companies. Successful discoveries are few and far between, and oftentimes, luck plays a huge role. Thus, it is no surprise that pharmaceutical companies who engage in innovation expect to be able to profit on a product when they are successful. The profits on successful discoveries are used to absorb losses for unsuccessful ones.

 But suppose there could be some paradigm shift that would affect all innovative pharmaceutical companies of the world. Take sanofi pasteur, for example, father of the oral polio vaccine. The vaccines pharmaceutical company takes pride in discovery and their contribution to the Global Polio Eradication Initiative. To help accelerate polio eradication, between 1997 and 1999, prior to making a special contribution of 50 million doses to the Global Polio Eradication Initiative, sanofi pasteur donated more than 40 million doses of oral polio vaccine for use in Mozambique and Kenya. To be able to tell the world of their contributions is a huge marketing campaign in itself. This could be similar to various ‘going green’ initiatives that various companies take on. Green companies are increasingly seen in a better light than ones that make no effort. The same could be said for pharmaceutical companies who take an active part in ensuring that the fruits of their discoveries are accessible by third world countries. Perhaps such initiatives will make a company more desirable to work for, thus attracting more talented employees. More talent, would necessarily lead to greater productivity, efficiency and innovation. These initiatives may also make the company more attractive on the international level, ultimately leading to more business opportunities. All this may translate indirectly into profits.

All this is to say, that in order for the ECOSOC to get the world to where they would like it to be from where we are now in terms of increasing access to medicine, a framework that takes into account all issues and implications is needed. Otherwise, dreams will only remain dreams.