The International Bill of Rights enshrines a right to health, which includes a right to access essential medicines. This right frequently appears to conflict with the intellectual property regime that governs pharmaceutical patents. However, there is also a human right that protects creative works, including scientific productions. Does this right support intellectual property protections, even when they may negatively affect health? This article examines the recent attempt by the Committee on Economic, Social and Cultural Rights to resolve this issue and argues that it fails. This is problematic because it means defenders of the present patent regime can continue using human rights documents to support their position. I offer a new framework for resolving the problem by examining the values that underlie human rights.
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Competing interests: None declared.
The views expressed are the author’s own. They do not reflect any position or policy of the National Institutes of Health, US Public Health Service or Department of Health and Human Services.
↵i See ICESCR article 15 (c).4 The moral interests of authors normally include the right to claim authorship, and the right to object to treatment of the work that negatively affects their reputation (see, eg,13) Material interests are the economic uses of a work. The control an author has over such uses, taking the meaning of author broadly, will vary depending on the intellectual object.
↵ii For example, the “Oakes test” is now the accepted standard for determining whether laws that limit the rights given in the Canadian Charter of Rights and Freedoms are constitutional. It requires of any measures that impair Charter rights: “first, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair ‘as little as possible’ the right or freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of ‘sufficient importance’. (R vs Oakes  1 S.C.R. 103)”. Similar requirements, including a principle of proportionality are recognised by the European Court of Human Rights.
↵iii It is a matter of dispute whether or not moral rights can be overridden for the sake of social goods that are not protected by rights. As Ronald Dworkin14 explains: I shall say that an individual has a right to a particular political act, within a political theory, if the failure to provide that act, when he calls for it, would be unjustified within that theory even if the goals of the theory would, on the balance, be disserviced by that act. The strength of a particular right, within a particular theory, is a function of the degree of disservice to the goals of the theory, beyond a mere disservice on the whole, that is necessary to justify refusing an act called for under the right.14 Some philosophers believe that rights have unlimited strength (eg, Robert Nozick15), others think at least some rights can be overridden (eg, Judith Jarvis Thomson16). I do not need to take a position on this dispute here: as I argue below (see under the heading The specification of human rights), if the rights of the creators of pharmaceutical products are justified by their consequences, they should not conflict with the interests protected by the right to health.
↵iv Proper analysis of which justification should be preferred is outside the bounds of this paper. However, telling arguments against a Lockean grounding for strong intellectual property rights may be found in.25
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