Lead Author: Gorik Ooms
Additional Authors: Lisa Forman, Owain D Williams, and Peter S Hill
Organization: Protection International
Country: Belgium; Canada; Australia
There is a tension between the right to health, which obliges states to ensure the provision of essential medicines to all people who need them, and international intellectual property law, which obliges states to protect artificial monopolies for pharmaceutical companies that invented new medicines. If a new medicine is an essential one, states are obliged to subsidize their provision at whatever price the patent-owner charges.
Governments of high income countries can overcome that tension by invoking their right – and perhaps even duty – to issue a compulsory license, in negotiations with patent-owners. Governments of countries where no sufficient manufacturing capacity exists cannot use this kind of pressure.
Relative affordability, in the sense of ‘medicine XYZ is more affordable, less affordable, or equally affordable for Government A, in comparison with Government B’, can be measured. If Country A as a Gross Domestic Product (GDP) per capita that is 10 lower than the GDP per capita of Country B, than the price for Government A should be 10 times lower than the price for Government B, in order to be equally affordable – because GDP per capita reflects capacity to raise public expenditure. Likewise, if per 100 inhabitants, there are 10 who need a given medicine in Country A, while there is only one in Country B, then the price for Government A should be 10 times lower than the price for Government B, in order to be equally affordable, because Government A will have to subsidize 10 times as much of that medicine.
Whenever patent-owning companies set prices for low and middle income countries that are less affordable (adjusted for GDP and prevalence) than for high income countries, the international community should authorize an international compulsory license, allowing generic manufacturers to produce generic medicines for countries affected by less affordable prices.
The idea mentioned in the abstract was developed in a paper, ‘Could international compulsory licensing reconcile tiered pricing of pharmaceuticals with the right to health?’, published in BMC International Health and Human Rights 2014, 14:37, available here: http://bmcinthealthhumrights.biomedcentral.com/articles/10.1186/s12914-014-0037-4
Bibliography and References
Please see references at the end of the paper, ‘Could international compulsory licensing reconcile tiered pricing of pharmaceuticals with the right to health?’, published in BMC International Health and Human Rights 2014, 14:37, available here: http://bmcinthealthhumrights.biomedcentral.com/articles/10.1186/s12914-014-0037-4