Global Health: A Normative Analysis of Intellectual Property Rights and Global Distributive Justice

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.