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Denys Nazarov, AHF Speakout: Human Lives vs. Profits — The Intellectual Property Debate

Human Lives vs. Profits — The Intellectual Property Debate
by Denys Nazarov, Global Policy Coordinator, September 23, 2011

Next time you decide to embarrass your friend by singing “Happy Birthday to You” in public in honor of his or her birthday, think again because you might violate an intellectual property law by performing it without paying royalties.

This may sound ridiculous to some, but the song rakes in about $2 million a year in royalties. Such idiosyncrasies in the world of intellectual property rights are whimsical but innocent enough. However, when copy rights restrict access to life-saving medications like antiretroviral drugs (ARVs) the consequences are deadly.

In June, 2011 the United Nations General Assembly adopted aPolitical Declaration on HIV/AIDS. After failing to meet the target of making ARVs available to at least 80% of all people who need them by 2010, the world leaders deemed it prudent to push the deadline to 2015, lest they appear incompetent in fulfilling their own promises.

While the UN Declaration vehemently proclaims that human rights are central to the Global AIDS Response, somehow the greatest violation of human rights around the world – the lack of access to affordable ARVs remains unaddressed. Only about 36% of people in need of treatment around the world are receiving it.

The commitment by wealthy countries to fighting the epidemic is fading and funding is being reduced. With slim prospects for more funding in the near future, the only way to provide treatment for at least 80% of all people who need it is to dramatically decrease the cost of AIDS drugs.

This has been done before. According to the report “A Matter of Life and Death: The Role of Patients in Access to Essential Medicines” published by Doctors Without Borders (MSF), the price of brand name ARVs decreased ten-fold in a matter of months after generic versions of the same drugs were introduced on the market back in 2001.


Today generic copies of drugs that were originally created by big pharmaceutical companies are manufactured in India, Brazil, South Africa and elsewhere at a fraction of the price. Well over 80% of ARVs procured by the President’s Emergency Plan for AIDS Relief (PEPFAR) are generics.

Cheaper AIDS drugs have saved millions of lives but as the developing countries where these drugs are produced join the World Trade Organization (WTO), the supply of affordable medication is being threatened by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

This agreement binds WTO member countries to enforce intellectual property rights on things like AIDS drugs. In other words a country cannot manufacture generic copies of life-saving drugs without getting permission from the patent holder and paying royalties.

*Map represents WTO Country Members as of 2005*

The TRIPS agreement has a provision stating that a patent should not prevent a country from addressing the public health needs of its population. However, in practice, countries where generics are manufactured face many obstacles in trying to get around the TRIPS restrictions to produce and/or export these drugs to other poor countries in need of ARVs .

Unfortunately, the UN Political Declaration does little to address this restriction. Section 71-c of the declaration states that generic medicines should be promoted but a few lines down it indicates that measures to enforce intellectual property rights should be taken to avoid barriers to legitimate trade. This essentially means that generic manufacturers must abide by the TRIPS agreement and negotiate with the Big Pharma in order to produce life-saving generic drugs for people who cannot afford brand name ARVs.

The rights of authors, artists and inventors should be protected to a reasonable extent to encourage innovation. But given the current situations, where the lives of 14 million people who don’t have access to treatment hang on one side of the scale, and on the other the multi-billion dollar profits of Big Pharma, it seems ludicrous to suggest that the rights of intellectual property owners outweigh the value of human life.

From the blogger:

For those interested in the subject of intellectual property rights and their impact in the United States, I recommend an excllent book by Kembrew McLeod, “Freedom of Expression®: Overzealous Copyright Bozos and Other Enemies of Creativity.”


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