By Shiwei Ye

The high cost of medicines essential for the prevention, treatment and cure of many diseases makes them inaccessible to millions of patients who need them. The World Health Organization estimates this to include a third of the world’s population. In parts of Asia, the percentage may be even higher.

One of the key factors making medicines unaffordable is the current intellectual property right (IPR) regime and its prominent place in many free trade agreements. There is a dire need to reform the current international trade framework in order to provide correct and adequate incentives that can lead to need-based medical innovations and that can ensure that public health is prioritized over commercial interests.

Barriers to Treatment Access

Patents on essential medicines help to undermine competition and maintain artificially high prices, keeping life-saving drugs out of reach to millions. Under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), countries are guaranteed certain options, including the right to invoke compulsory licenses and permit parallel imports, to get around these patent restrictions and protect public health. India, Thailand and Brazil have used these options, leading to some lower prices on mecines.

But access to essential medicines continues to be undermined globally by bilateral free trade agreements, which can include intellectual property rights (IPR) provisions that are stricter that impair states’ legal right to use TRIPS safeguards. These bilateral provisions, know as TRIPS-Plus rules, can include the extension of the life of a patent beyond the 20-year limit or other restrictive measures. These rules contravene the spirit and letter of the TRIPS Agreement and the Doha Declarations, and are inconsistent with international human rights laws.

Perverse Incentives

A second obstacle to treatment access: since profitability is the main incentive provided by the current patent system, new medicines and technologies tend to be developed with wealthy societies in mind. They often neglect diseases that affect developing and low-income countries, where pharmaceutical companies are likely to make little if any profit. According to the Global Forum for Health Research, malaria, pneumonia, diarrhea, and tuberculosis, which together account for 21 percent of the global disease burden, receive only 0.31 percent of all public and private funds devoted to health research. Fifteen percent of the world’s population consumes 91% of the medicines produced. If medical innovations only go where the money is, then the global poor will continue to suffer and die from diseases.

There has been growing support for a proposal to set up a global fund for public health that rewards medical innovations for their actual positive impact on public health. Others are calling for a new patent system that entitles pharmaceutical companies to rewards proportioned to actual health outcomes of their research, innovations and new medicines.

Human Rights and Public Health

The right of everyone to the enjoyment of the highest attainable standard of physical and mental health is enshrined in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as in many other core international human rights treaties. The UN Committee on ESCR, which monitors implementation and interpretation of the Covenant, has said that the provision of essential medicines is a ‘core obligation’ of states party to the covenant.

The UN High Commissioner for Human Rights states in a 2001 report that intellectual property rights are a “privilege” that can be revoked, licensed or assigned to someone else, whereas human rights are universal and inalienable. States are therefore obligated to recognize that public health and human rights take precedence over commercial interests.

Pharmaceutical companies also have a responsibility in realizing the right to health. At a minimum, they should refrain from lobbying countries to include TRIPS-plus provisions in free trade negotiations. Under the principles of corporate social responsibility, pharmaceutical companies should recognize that medicines are public goods and their production, pricing and innovations should support public health.

Finally, civil society organizations have a major role to play. NGOs should learn about free trade and IPR issues and advocate for better policy on patents and free trade. They can raise public awareness of the threat IPR poses to public health and voice opposition. They must hold governments accountable for accepting TRIPS-plus provisions inconsistent with their human rights obligations and lobby for transparency in negotiating bilateral trade agreements.

Human security and social development rests upon the right of everyone to the highest attainable standard of health. Its denial impairs the hard-earned progress made in economic development of the developing world. It is time now to make essential medicines affordable and available to those who need them.

Shiwei Ye is an activist based in Thailand.