Let's start the discussion here.
As we know right to property is a human right. Therefore, governments have to do all the necessary efforts in order to protect it. But, as always it is not an absolute right. In this case, we are dealing with the right to property versus the right to development and the right to life. It is true that intellectual property rights such as a patent are a very good incentive in order to enhance and reward innovation. Thanks to them, the scientific community has been making amazing advances that have helped the whole of humanity, and that is the reason why in this specific case we have to give priority to the recipients of those advances: human beings.
I think that economic reasons cannot be above rights such as life. The ultimate goal of scientific research must be human wellness, so the international community has to ensure that people can benefit from those advances. Obviously, the scientific community cannot be helpless, so governments have to use tools such as compulsory licenses, in order to ensure the health of their citizens but also to be sure that the inventors will have a monetary reward, and will continue making scientific research
In the specific case I think that an invention of this importance, cannot be tied to such economic barriers, because we are dealing with an invention that literally can save thousands of lives. Also, as Mama Cares Foundation said “Plumpy'nut” is not a secret formula, it does not have the character of an innovation, it is not new, therefore for its creation Nutriset did not have to make such big efforts to deserve a strict patent. Obviously, we cannot say that they do not deserve any earnings for the product, because if we ask “if the product was so simple, why did not another companie make it before Nutriset? In any case, States should pay a moderate amount of money to the company, but not in patent terms. This is because, the history of humanity could never forgive not saving thousands of lives (especially children) simply because of money. Those infants should not be considered as clients, but as beneficiaries. We cannot allow for the market to rule human lives, patents cannot be an exception. A world in which big pharmaceutical corporations handle billions of dollars, whilst their clients lose their home for their will to live is a world which should be immediately rethought. Institutions such as the WTO should rise to the challenge to respond to this huge world crisis
Hello mates,
This is a complex issue if we think in legal terms, but it's easier if we use our common sense. I agree with the analysis of Andrés: we are before a conflict between two rights, the right to property against the right to life. As I have said, if we present this issue since a deep legal debate, trying to argue what right must prevail, it will be a difficult task. But, at the same time, we can remember that there is a general principle of law, acknowledged nationally and internationally, which solve this issue: "when there is a conflict between two or more rights, and one of them is the right to life, always must prevail this right...". Of course, since my point of view, this is the main argument to defend, so that the right to life is the core of the other human rights, because if you violate this right, you produce a massive violation of the other rights.
On the other hand, I regard so important the protection of intelectual property rights, because not only protect our property, also protect our identity and personality as a unique human being, and also this protect our evolution as social beings. Besides, I think that in this kind of cases, and regarding the requirements in order to protect a good (broadly speaking, a genuine idea with industrial application), I think it is compatible to protect this right without violate the right to life, because we can use many different formulas to achieve the same product. Furthermore, and thinking about intelectual property law, usually we can find rules that establish exceptions, I mean, also if we follow a legal debate in terms of intelectual property rights, we can win this battle if we argue that "when there were a cause of social or general interest, the state will be able to expropiate the patent, after paying the corresponding justiprecio...".
Finally, we must remember that we are talking about humanitarian aid, which has as aim the protection of the most weak human beings, who are suffering heinous situations that threat their lifes and welfare, and that is why the right to life must prevail again.
Greetings,
Jesús Gavilán Hormigo.
The general topic at hand is one of not only extreme interest, but also extreme importance. In the economic world we live in where financial gain is often given higher importance than human wellbeing, we often forget that the prime objective of scientific innovation should be improvement, not only in terms of health, but in terms of life commodity and other basic human rights. I think Jesus framed the question extremely well when he said that it feels like a power struggle between the right to life and the right to property, but as he so eloquently answered, this dilemma is answered quickly.
Another topic which I found of great interest and which I don't believe has been mentioned yet, was the concept of Traditional Knowledge. This is such an important question and one which seems to have gained very little enthusiasm in the international arena, possibly due to politicians' reticence to enter into such a difficult and thorny area. I feel I cannot find a way in which to adequately protect the "victims" of Traditional Knowledge becase it is so difficult to control and define. Many indigenous peoples, especially those with little or no access to "the modern world" have no possibility to combat those taking advantage of their knowledge, so how can this topic be broached? The clause Professor Kanade included in the slide feels very ambiguous and open and does not seem to provide the indigenous community with a clear cut avenue with which to even approach this use of their knowledge. How can they be compensated anyway?
Finally, I wish to concurr with my colleague Andres when he asks for a higher imput from the WTO in this sense, as it seems illogical that the pharmaceutical companies can have such a high command of the world economy when there still remains such enormous humanitarian issues to be solved. I understand that their logistical capacity in terms of legal teams and lobbying groups are much more advanced than those advocating for the humanitarian cause, but surely in this scenario common sense should prevail and the rights of human beings should be protected over the pockets of the big corporations?
With reference to the question of Profesor Mihir, I think that the right to life takes precedence over the other rights,which includes intellectual property rights. As we all know, the right to life is the most basic human right. Other rights are futile without the right to life. What is the purpose of all other rights if we cannot continue on living?
I think the intention of Nutriset is purely economic in nature. And as Isra pointed out, in the article it mentions that Plumpy´nut is not some secret formula so everyone can actually produce it. Basically Nutriset just wants to eliminate competition and have a monopoly of the market, which I think is not only illegal but immoral, especially when the target market of the product are kids battling severe acute malnurition. It is a life saving product so other than their economic motivations, I cannot think of any other logical reason why Nutriset is doing this. Their reasoning in the article is not enough. Honestly, I am apalled with Nutriset as they are clearly taking advantage of the situation. It seems to me that they are trying to create a business out of the malnutrition problem in Africa. But as they say, business is business.
Good points Andres and Jesus. But, where do we find that right to intellectual property is also a human right, apart from a commercial right? You have made that argument, situating the issue as a contest between two competing human rights - the right to intellectual property and the right to life. But, what is the basis for your arguments that right to intellectual property is a human right? I am asking this question just to make you guys go further in-depth into this question.
Thank you, Mihir, good question. According with the most important text about human rights, the Universal Declaration of Human Rights, adopted by the General Assembly of United Nations in 1948, both rights, the right to life (article 3) and the right to intelectual property (article 27.2) are human rights. Nevertheless, and specifically at the national context, the right to intelectual property doesn't use to be regarded and protected as a human right, for instance in Spain. In my opinion, this is another important reason to support that the right to life must prevail against the right to intelectual property.
I hope to answer your question...
Greetings,
Jesús.
"Fighting against the hunger" it is the sentece that the politicians repeat always, everybody is against poverty and hunger but there isn't any strategy to help the poor people to get a job and to live with dignity. It is like asking ourselves what is the differences between need and right, in this case what malnourished children need is to eat and to get the better product. Usually Ngo's work for need and the state for the rights which sometimes doesn't apply it correctly.
Almost one child die every second and nobody says anything it is like we get used to it.The only way to help these kids is getting food and to reach all the children it is important implementing a good political commerce to help the poor countries to get to the develpment by fixing the prices and not the patent, it is better give an aid to them so they can work with this kind of products and produce them to have the kids nourished and the adult working for better life.
we cannot attack the multinational companies because their goal is to get benefits and they are not NGOs, what we have to do is to get the compromise from the politicians to make a strategy to help their countries to avoid the hunger and also the emigration as nobody get food niether money they don't care to die while they are trying to get to the rich countries.
We need to think deeply about Africa, why they still die from hunger for a long time while they receive aids from many countries, it is a must helping people to get more resources so they can work in their own farms and to get a job but How? this is the question. I think we need to change the way we think and start to insist in the way we can get the sustainability and equality for all .
Bests,
Randa.
Hello everyone!
My friends made excellent points and basically covered the important aspects to this question.
I think this issue must be seen from two different perspectives.
From a humanitarian perspective, the right of to access health or food is the core issues of development and thus is primary and fundamental. Here, the human being is the most important asset, and one’s right to life is above anything.
However, from a business perspective, the main drive of corporations is to make profit. And this is the main reason for patenting drugs or any other “invention”.
Thus, I think we cannot expect from big corporations to be “generous”, and lose profits in order to save the lives of some people. Simply because this is not their responsibility and is surely isn’t the mission of their business. They have spent big sums of capital on their business and are solely seeking revenues. And it is the exact reason why they patent their products.
In the case of the Plumpy’nut, it is mentioned in the article that “it isn’t a secret formula.” Thus, it does not contain any invention or new idea in order to make the product. Thus, it is definitely unfair to put any restrictions on producing similar product.
The last part of the article sums it all up as it says that “in a domain as sensitive as humanitarian aid they need to be handled with extreme flexibility” as it is a live saving product.
Personally, I think the issue is not only that of patenting of live saving products which is hurting developing countries. This is something that is hurting every limited-income person faced with serious illness in the whole world and has surely led to many unnecessary deaths
It has become extremely difficult for the many people around the world to find affordable treatments for some illnesses.
In fact, there is a common belief shared by many people that the pharmaceutical companies would not only patent the drugs they manufacture but will actually never reveal the ultimate cure for certain illnesses are source of income to them
In one of the slides, the example of the Indian company Norta reveals that it is possible to make a generic version of the medicine with much less price.
Thus, I think the UNWTO should definitely take serious measures in regard to this issue that is a barrier to the well-being of many people.
Hello!!
First, as all my mates have said, I also agree on what Andrés and Jesús have mentioned about the “clash” between the right to an intellectual property and the right to nutrition (and therefore, to the right to life) and that of course the latter must prevail to the former.
Besides, I think Israa and Elisa were absolutely right when they argued that corporations won’t never voluntarily give up gaining money even if it’s for the sake of saving lives because, sadly, “business is business”. However, we can’t leave apart and take into consideration what Members of the WTO made with the dilemma of Intellectual Property Rights (IPRs) of pharmaceuticals and public health. That is, they all met in Doha in 2001 and agreed on the “Doha Declaration on TRIPS and Public Health”, as it what written on Prof. Kanade’s slides. Thanks to this Declaration, it was convened that the TRIPS Agreements “do not and must not impede that the states adopt measures to protect public health”, underlining their capacity to use the flexibilities established on the TRIPS. They also agreed on giving an extra time on the exemptions related to the protection of the pharmaceutical products by means of using patents up to 2016 in the case of developing countries. And another important flexibility was given to these countries: their right to import patented pharmaceutical products protected by compulsory licenses, as we have seen in the slides too.
The point here is that all these agreements made in Doha were only related to pharmaceuticals and public health and not to other type of products such as humanitarian food products, as we are discussing here. That is why; I think there is a need for extrapolating these agreements to this other field, I mean, make an analogy. For this to happen, it would be interesting that the WTO members should either amend the “Doha Declaration on TRIPS and Public Health” including humanitarian food products next to pharmaceutical products (with the same regulations) or to meet again for another agreement with the same points of the “Doha Declaration on TRIPS and Public Health” but adapted to “TRIPS and right to nutrition/right to life” or something similar.
However, what worries me is if the “Doha Declaration on TRIPS and Public Health” is really functioning (and especially helping developing countries) or not, taking into account that 13 years have passed since the Declaration was signed up. I hope so, and the same for a future agreement about this issue of access to food and the right to life.
I'm agree with Jesús. The right to life has been defined as the logical and ontological "Prius" without which other rights are meaningless. This has been the position of the European Court of Human Rights; position reiterated by the majority of the Jurisprudence of the European States. Therefore, this position is key to resolving confrontations between rights.
Great points Leila, Jesus, Randa, Isra, Maria Elisa, Maria Jose, and Armando. In summarizing your points I would like to highlight the legal provision in the ICESCR Art. 15, which is the provision that speals about the right to intellectual property rights, apart from what Jesus mentioned about UDHR.
According to Art. 15, everyone has the right "To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author". So, this is clearly the right given to inventors to benefit from their own inventions.
But, most important, Art. 15 also has another clause. It says it is also the right of everyone "to enjoy the benefits of scientific progress and its applications".
Obviously, therefore, the solution as well as the challenge in our discussion, is to strike the balance between the two. It is quite clear therefore, that patenting rights or IPR rights in general cannot come at the cost of the fundamental and basic human rights such as right to food, health and life.
In fact, the exceptions in TRIPS Agreement were made precisely because there was an agreement amongst States that public health should not be a casualty of the IPR regime. The attempt to figure out some sort of a happy balance is, unfortunately, not easy at all.
I would like to provoke you further for critical reflection. Art. 15 of the ICESCR talks about inventors benefitting from moral and material interests resulting from their inventions. However, it does not lay down the scope of how such benefits must accrue. That is done by the IPR regime that lays down criteria such as exclusion of competitors to produce the patented product for 20 years. One could argue, therefore, that the TRIPS regime is a lex specialis and by breaking the balance required, it is in conflict with human rights regime that requires not only that balance to be maintained, but also requires access to medicines as a human right obligation on States as well. As students of International Law, a very important question in this regards is as follows:
Does human rights law trump IPR law? In other words, if obligations of States under human rights law are breached because of IPR obligations, should the conflicting IPR obligations be superseded by the former?
An important argument in this regard that gives primacy to human rights obligations of States over and above the WTO obligations is Art. 103 of the UN Charter, read in conjunction with Art. 55 and 56 thereof. Thus, many scholars have argued that in case of a conflict between the two, human rights obligations of States must prevail. Of course, as some of you pointed out, under the European system, human rights have been given a hierarchically superior place than commercial agreements.
I am glad this discussion ended up with more voices. Let's make the most of the last week's topic, which again is a very important one.
Cheers,
Mihir