Abstract:
In the past several years, the impact of intellectual property rights (IPRs) on
access to medicines and medical technologies has come under increased scrutiny.
Motivating this are highly publicized cases where IPRs appear the threaten access to
particular medicines and diagnostics. As IPRs become globalized, so does the
controversy: In 1998, nearly forty pharmaceutical companies filed a lawsuit against
South Africa, citing (among other issues) deprivation of intellectual property. This
followed South Africa’s implementation of various measures to enable and encourage
the use of generic medicines – a move that was particularly controversial for the newly
available (and still patented) HIV medicines. While many historical, legal, economic,
and policy analyses of these cases and issues exist, few explicitly normative projects
have been undertaken.
This thesis utilizes interdisciplinary and explicitly normative philosophical
methods to fill this normative void, engaging theoretical work on intellectual property
and global distributive justice with each other, and with empirical work on IPR reform.
In doing so, it explicitly rejects three mistaken assumptions about the debate over IPRs
and access to essential medicines: (i) that this debate reduces to a disagreement about
empirical facts; (ii) that intellectual property is normatively justified solely by its ability
to “maximize innovation”; and (iii) that this controversy reduces to irresolvable
disagreement about global distributive justice. Calling upon the best contemporary
approaches to human rights, it argues that these approaches lend normative weight in
favor of reforming IPRs – both that they should be reformed, and how – to better enable
access to essential medicines. Such reforms might include modifying the present global
IPR regime or creating new alternatives to the exclusivity of IPRs, both of which are
considered in light of a human right to access to essential medicines. Future work will
be needed, however, to better specify the content of a right to “essential medicines” and
determine a fair distribution of the costs of fulfilling it.
