Reviewed by Matthew Rimmer. Faculty of Law, Queensland University of ... Sierra Leone, Liberia and Guinea have been devastated by the rapid spread of the ...
Book Review
licensing in respect of access to essential medicines. There is also a discussion of other public health safeguards, including exclusions to patentability; threshold standards for patentability; exceptions to patent rights; and parallel importation.
doi: 10.1111/1753-6405.12642
A Human Rights Framework for Intellectual Property, Innovation and Access to Medicines
Chapter 4 articulates the case for an independent human right to access to medicines. Joo-Young Lee argues that ‘access to medicines constitutes one of the essential conditions for one’s life and health in the event of sickness, as well as for prevention and treatment of diseases’ (p. 121). The author maintains that the human right to access to medicines as a legally bind norm ‘flows from the right to health, the right to life, and customary international law respectively’ (p. 121). Chapter 5 looks at the right to science and culture. The author argues that the ‘universal access to the benefits of scientific progress, which is essential for a life with dignity, is a core element of the right to enjoy the benefits of scientific progress’ (p. 175).
By Joo-Young Lee; Published by Ashgate Publishing, Surry, UK, 2015. ISBN: 978-14724-1061-0; 300 pages Reviewed by Matthew Rimmer
Faculty of Law, Queensland University of Technology
In the past year, there has been push by academics, scholars and policy-makers alike to re-situate the debate over access to medicines from the spheres of intellectual property, trade, and innovation policy to the context of human rights and public health. In 2015, Joo-Young Lee published A Human Rights Framework for Intellectual Property, Innovation and Access to Medicines with Ashgate. The work is concerned with addressing barriers to access to medicines: A vast number of people remain without access to life-saving and other essential medicines. The cost of medicines is one major factor that affects access to medicines. Another significant problem is the lack of medicines particularly relevant to health needs of people in developing countries. Both issues are associated with an intellectual property system that has been used as a dominant tool to provides incentives for innovation (p. 1). The book seeks to analyse intellectual property and human rights in the context of disputes over patent law and pharmaceutical drugs. It provides a survey of a number of the key areas in the debate over access to essential medicines. Chapter 1 provides a thumbnail sketch of the historical progression and expansion of the patent system. Chapter 2 examines theoretical perspectives on patent law – looking at natural rights, economic incentives and alternative normative frameworks. Chapter 3 considers the development of public health safeguards in the TRIPS Agreement 1994 in the World Trade Organization. The author considers the language on public health in the objectives and principles of the TRIPS Agreement 1994. There is an exploration of the development of the Doha Declaration on the TRIPS Agreement and Public Health 2001 and the WTO General Council Decision 2003. There is a discussion of the flexibilities and limitations of compulsory
2017 Online
Chapter 6 explores the relationship between the TRIPS Agreement 1994 and international human rights law in the context of access to medicines. Chapter 7 concerns the interlinkages between human rights, intellectual property, innovation, and access to medicines. In particular, the book highlights the work of Anand Grover – the Special Rapporteur on the Right to Health – on what intellectual property policies can be used to guarantee the right to health. Joo-Young Lee observes that ‘States are also obliged… to promote innovation of new medicines to address the unmet primary health needs of people’ (p. 232). In the conclusion, Joo-Young Lee highlights the failure of the intellectual property regime to address emerging infectious diseases – such as Ebola: ‘Since the outbreak, people mostly in West African countries such as Sierra Leone, Liberia and Guinea have been devastated by the rapid spread of the virus and the related social breakdown’ (p. 233). Joo Young-Lee notes that ‘Ebola is another devastating example of ‘neglected diseases’, which figure prominently in the intersections between intellectual property and access to medicines’ (p. 233). This book argued that a ‘human rights framework can help solidify a normative basis for creative innovation models for promoting needs-driven research, protecting the moral and material interests of inventors as well as the right to health of people’ (p. 239). The
work maintained that ‘appropriate regulation of the pharmaceutical industry should be part of any realistic strategy for reconciling intellectual property and access to medicines in a sustainable way’ (p. 239). The book ends with a vision of a new order for access to medicines: ‘This human rights framework envisions national and international systems for intellectual property, innovation and health, in which vaccines and treatments for diseases are developed in a timely fashion and made accessible so that no human beings need to die from preventable diseases’ (p. 239). A Human Rights Framework for Intellectual Property, Innovation and Access to Medicines is a thorough, diligent, and logical piece of work. The author has shown great industry and creativity in bringing together the disciplines of intellectual property and human rights. Joo Young-Lee has charted the complex global battles over access to medicines, with clarity and economy. There are a few gaps in the survey. It would have been useful to have considered the rise of TRIPS+ and TRIPS++ trade agreements and investor-state dispute settlement – most notably, with the mega-regional agreements, such as the Trans-Pacific Partnership, the TransAtlantic Trade and Investment Partnership, and the Trade in Services Agreement. The book is a timely piece of research given the new impetus at the United Nations to address access to essential medicines. The Report of the United Nations SecretaryGeneral’s High Level Panel on Access to Medicines: Promoting Innovation and Access to Health Technologies was finally released in September 2016. The report notably seeks to employ a human rights approach to dealing with a number of the challenges in respect of intellectual property and public health. The Panel has formulated a set of concrete recommendations designed to help improve research and development of health technologies and people’s access to medicines. The new book by Joo-Young Lee and the report of the United Nations Secretary General’s High-Level Panel on Access to Medicines point the way towards a new model of promoting global public health and access to essential medicines.
Australian and New Zealand Journal of Public Health © 2017 Public Health Association of Australia
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