INTELLECTUAL PROPERTY RIGHTS VS HUMAN RIGHTS:- A STORY OF TUSSLE DURING PANDEMIC

 

Reading time : 6 minutes

“Water above our head now”[1]  these are the word used by the Delhi high court to depict the dreadful and appalling situation rampant all over India. When compatriots are longing for oxygen in India on one hand, countries in Europe or the global north are enjoying a drastically different situation on the other. They are protecting the population by dispensing double inoculation, otherwise considered to be a herculean task by many countries in the global south. Ironically when outright India conferred by lockdowns due to the staggering rise in covid 19 cases, the global north becomes the hosting ground of world’s second largest sports festival[2]. Only plausible way, however to resuscitate the stumbling Indian economy and surging unemployment is initially to lift the lockdown implemented on the same, by vaccinating the whole population. But vaccinating population of a particular country is not a complete solution as there is high probability for virus to evolve among non-vaccinated countries and hence become resilient to vaccine made immunity .Considering the evolutionary attribute of the virus the only way forward is the idea of ‘’universal vaccination’’.

Universal vaccination is critical on many ends. First, as the population to be vaccinated is large in number, the production of vaccine needs to be equivalent to the same. Second, the issue reels around patents rights, these are rights possessed by companies manufacturing vaccine. Most notable vaccine manufacturing companies are Pfizer and Moderna. The third issue incorporated in the scenario is the imperative issue of human rights. Moreover, the right to essential medical prophylaxis and supply is conferred to the people universally by the virtue of UDHR[3]. In other words social justice is the foundational part of successful orchestration of epidemiological intervention, from blocking emergence of pathogens to commence with to controlling those that break on through as pandemics. All the three issues are predominantly inextricable. This ultimately results in tussle between human rights and intellectual property rights. The right to hold patents rights and the right to get life saving vaccine are conflicting each other sometimes. The irrefutable correlation shared by human rights and intellectual rights is significant because it transcends each other. Despite the overlap these two fields of laws, otherwise operate in their independent domains. In simple terms the intellectual property right recognizes right and provides incentives for inventions connected to social development. Human rights are basic natural right recognized by state.Indeed these rights are inheritable rights contingent upon human dignity.

 The main and direct alternative for insufficiency of vaccines is to ram up the production of the same. As the companies possessing the patent of vaccines showed corroboration of inability to produce vaccines for the entire world.  The solution vehemently provided by India and South Africa in the United Nations (UN) on 5th October 2020 was to consensually waive the patent rights over vaccines and other essential medical supplies used in the treatment of covid 19 moreover, the same will satisfy and triumphs the imperative human rights aspects to avail life-saving medicine to all people around the world. When the waving suggestion was put forth by India and Africa, hundreds of countries vehemently supported the commotion but some countries in the global north staunchly opposed the affirmation of waving, as it infringes the premises of IPR laws. Many months after India’s formidable request to waive intellectual property rights over vaccines, precisely on 5th may 2021 when India was reeling under second waive of covid-19, the Biden administration rendered support to India’s claim to waive the intellectual property right over vaccines .United States trade representative justified the US conduct by announcing extraordinary circumstances demand extraordinary measures. The number of countries opposing the commotion galore, added with staunch opposition from lobbyist along the sector. During the discussion German chancellor Angela Merkel retaliated to US proposal with stressing that essential incentive of innovation lies intact with regime of intellectual property right enforced by the virtue of TRIPS[4] agreement among countries. Intellectual property rights regime doses not consider traditional knowledge especially prevailing between indigenous communities. These rights are considered to be a part of public domain. Many of this knowledge are adopted fully or partially by big pharmaceutical companies to develop different medicine and other commercial products. In addition to that these pharmaceuticals companies regard these final medicinal and other products as their own chattels protected under intellectual property rights. Most of the production of vaccines is taking place in developed countries. Develop countries channelize the vaccine to their own population primarily by striking bilateral deals with the big pharmaceutical companies. On contrary the cases of countries with meagre resources is drastically different, they fail to emulate what developed countries does in ordinary terms as a part to mitigate the covid 19 pandemic spreading and reduce number of deaths arising from the pandemic.

Prima facie representation of health as a human right or constitutional right is certainly reasonable, but fact that matter is health right always turn out be hostile against patents rights. Scrutinizing similar precedent ushers to an event in 2000-2001[5] when same issue was contested but in a different ground of HIV AIDS medicine and resulted in death of 12 million people in Africa. This issue was resolved tremendously by Indian pharma corporation CIPLA. CIPLA successfully appealed to the world to wave down patent rights over HIV AIDS medicines and whereby the supply of HIV AIDS medicine was made accessible to Africa. However, the fact that goes under the garb is that most vaccines are developed by public funding. Vaccine companies wielded significant amount of public fund for the creation of the very vaccines that provide immunity from deadly viruses. For instance, Moderna received 953.6 million dollars and Pfizer received 800 million dollars from the public funds[6]. The two impending effect after wavier of intellectual property right will be – it would enable countries mainly countries in global south to access covid-19 related drugs, vaccines and essential treatment by relaxing article 31 of  TRIPS agreement [7]. Secondly it would empower countries to freely vaccinate their population without any legal infringement of intellectual property rights or whatsoever.

IPR AND HUMAN RIGHTS AND DOCUMENTS

Intellectual property rights are the rights conferred to an inventor or a creator as a reward over the creation of their mind. There are four major intellectual property rights: – patents right, trademark rights, copyrights and trade secrets. Main objective of giving these rights are to provide incentives for inventions that benefits the society. The TRIPS is an imperative agreement adopted by World Trade organization (WTO) in Marrakesh, Morocco on 1 January 1995. The TRIPS induced binding obligation on countries to implement protection and enforcement of Intellectual property rights throughout their territory.  

Human rights are moral principles or norms which are both protected by international and municipal laws. These laws are vital for human dignity. Human rights are conferred to every person in the world from birth until death. The Universal Declaration of Human Rights is the most important document on human rights. It was created in 1948 during world war two. International Covenant on Economic, Social and Cultural Rights (ICESCR) is another imperative document on human rights adopted on 16 December 1966. These rights ensure the basic survival of the human beings. 

Academic scholars have relentlessly tried to uplift IPR LAWS to an equivalent status of human rights. But this approach is weak in many aspects. First achieving consensus on documents such as UDHR and ICESCR in itself was a herculean task. Second, human rights is a broader topic in its own pertain. Human rights are incorporated to men and women by birth. The broader generalization of humans rights makes it hard to encapsulate laws like IPR to its premises. 

NEXUS, CONFLICT AND GREY PART BETWEEN INTELLECTUAL PROPERTY RIGHTS AND HUMAN RIGHTS

Nexus 

There are innumerable correlations between Intellectual Property Rights and human rights. This consensus between human rights and intellectual property rights has been intimated by different scholars during different periods. For instance, patent laws recognize that there is a socio-economic dimension to the rights granted and that a balance has to be maintained between the interests of the patent holder and the broader interests of society.

Conflict 

Similar to the nexus, on one hand, there are innumerable conflicts between intellectual property rights and human rights on the other. As the narratives of both these laws are set on independent domains, they tend to contradict each other. The intellectual property rights holder posses both the creator’s rights and human rights while the other party having only the human rights induced in him. For example body of Intellectual Property Rights recognizes some of the economic and moral elements. On the other hand, human rights grants rights pertaining to science and technology

Grey part of the law

1Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

2 Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author[8].

These two are parts of article 27 of UDHR (Universal declaration of Human rights). It creates a sort of confusion as uncertainties galore within them. In this regard, the laws are constrained to copyrights and do not extend to patent rights. Furthermore, this article creates confusion that the scope of the same applies only to individuals, not the group .How these sections operate is entirely contingent upon the perspective and its interpretation by reader. In a narrow view, this may curtail Intellectual Property Rights but in a broader view, it signifies the existence of intellectual property rights.

The two-way solutions

Every people have to be vaccinated irrespective of geographical and demographical differences that exist between them. The solution to the aforementioned issue offered by different countries varies in two ways. Both the solution contradicts each other. Even though their upshots are similar, the process they undertake is drastically different. These two-approach incorporates anti-waiver and pro-waver of intellectual property rights. The former endorses commotion against the waving of patents rights, these groups mainly includes countries in European Union. According to them Article IX.3 of the WTO (World Trade Organization) Agreement empowers temporary waiver of patent rights under exceptional circumstances. Moreover, it substantiates the co-existence theory of the [9]Traditional approach to the subject of relationship between human rights and Intellectual Property Rights. The co-existence theory enunciated that Intellectual Property Rights and human rights are two independent fields of law that exists in harmony. People who argue against the waiver of patents put forward certain flexibilities that would temporarily abrogate the restrictions implemented by the TRIPS agreement. Some of the relaxations include:-

Voluntary license 

Here the vaccine manufacturers can voluntary give up the patent, whereupon this empowers any generic manufacturers to produce vaccines. Hence the governments can circumvent the obstacle of vaccine manufacturing. For instance, the same was wielded in the case of AstraZeneca and Serum Institute. 

Compulsory license

In this case, the government by discretion takes necessary steps to authorize a party other than the patentee for the production of the vaccines. Moreover, this can be done by the government without taking the permission of the patent holder. The application can be made by the respective government for a compulsory license after 3 years of the grant of a patent. 

Government use 

In addition to the compulsory license, the government can use the Intellectual Property Rights of a company by providing the same with adequate remuneration. 

CASE LAW

Natco Pharma Limited vs Bayer Healthcare Llc on 11 July 2019[10]

For the first time, the compulsory license was issued by the patent office. As the Bayers, a pharma corporate sold life-saving to treat Liver and Kidney Cancer at an exorbitant rate. Nacto pharma offered to sell the medicine at an affordable price. All the 3 conditions of section 84 of TRIPS were fulfilled and the decision was taken for the benefit of the general public.

The latter group that supports the waiver of patent strongly argues that even though Article IX.3 of the WTO Agreement supports temporary waivers under exceptional circumstances. The term exceptional circumstances, however, has not been defined anywhere. The covid-19 pandemic has created an unprecedented situation. Vaccines are the only ray of hope remaining. Moreover many countries are impoverished in terms of technology to develop vaccines. It is imperative that other countries with the less resources and technology freely share their technology with other nations to accelerate the production of the vaccines and enhance their accessibility. In a dire situation like this, it is of major importance to relinquish the Profiteering approach to human lives. In addition to this, the voluntary license works only in countries with large-scale manufacturing capacity. Hence it may not be a feasible measure. The pro-waivers support the theory of conflict in the traditional approach to the subject of relationship between human rights and Intellectual Property Right. Similarly, the voluntary license is also a great idea but it will turn millions of people depending upon the whims of the big pharma companies. 

Case laws

Lee Pharma v. AstraZeneca on 8 May 2017[11]

In this case, the Indian Patent Office has rejected the application of Lee Pharma for a compulsory license on AstraZeneca’s anti-diabetes drug saxagliptin branded as Onglyza. AstraZeneca failed to prove the public requirement of drugs moreover they failed to demonstrate the comparative requirement of the drug.

Bristol-Myers Squibb Holdings … vs Bdr Pharmaceuticals … on 30 January, 2020[12]

Similar to the aforementioned case the Indian patent house rejected the claim of BDR Pharmaceutical to obtain compulsory license on cancer drug Dasatinib.

Judicial precedent shows that it is not easy to obtain a compulsory license more often than not such claims get rejected. 

Resolution to the broader conflict 

To surmount the obstacle of tussle that exist between the IPR and human rights required herculean efforts.  Both the fields of law must coexist with reverence to each other. Provisions for Improvisation of both laws to varying circumstances should be created. There is a need for establishing intellectual property rights collateral to humans’ rights without intervention. A common redressal forum for settling overlap between IPR and human rights issues should be created. Unanimous decisions should be taken by countries by considering the pros and cons of their conduct. IPR laws and human rights should strike a balance within them. Developed countries should not sideline developing countries by taking arbitrary decisions to endorse lucrative. Humanitarian justice should prevail above all. But this resolution will consume time and effort. 

Conclusion

The solution concerning IPR and human rights during a pandemic should be expeditious as the whole world is grappling with a serious health issue. The cynical concept like vaccine nationalism should be disregarded. Every country should work shoulder to shoulder to avail vaccines and other essential medicines to every person residing around the globe. Ultimately everyone should act with human prudence, without delaying any decision concerning the same, as the decisions are affecting the lives of many. There should not be any Procrastination or lapses in the effort to disseminate essential medical supplies. Resolving conflict between IPR and human rights may consume years but in this case, the world doesn’t have the luxury of time as the life of people is at stake. The best decision with empathy and rationality combined with human justice should be upheld.


[1] DELHI HIGH COURT DIVISION BENCH

[2] “Summer Olympics second largest sports festival” blog.eftour.com

[3] Universal Declaration of Human Rights adopted by UN on 10 December 1948

[4] THE AGRREMENT ON TRADE- RELATED ASPECT OF INTELLECTUAL RIGHTS,1995

[5] ‘Case of waiver in pandemic’ article by Rajshree Chandra from indianexpress.com

[6] ‘U.S to support Intellectual property waiver for covid-19 vaccines’ article by Sriram Lakshman from thehindu.com

[7] Article 31 of TRIPS agreement

[8] Article 27, Universal Declaration Human Rights(1948)

[9] Laurence R Heifer ‘Human rights and Intellectual property: conflict or co-existence?’ , 5 MINN.INTEL.PROP.REV.47 (2003)

[10] Natco Pharma Limited vs Bayer Healthcare Llc on 11 July 2019

[11] Lee Pharma Limited vs Lee Pharmaceuticals on 8 May 2017

[12] Bristol-Myers Squibb Holdings … vs Bdr Pharmaceuticals … on 30 January, 2020

Author: VYSHNAV S, SREE NARAYANA LAW COLLEGE, POOTHOTTA, KOCHI

Editor: Kanishka VaishSenior Editor, LexLife India.

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