Dying for intellectual property law

Intellectual property (IP) rights actually confer negative rights as IP rights are the right to “exclude others from using or commercialising, for example, an invention protected under a patent”. There is a growing urgency for South Africa to revise its intellectual property framework in order to ensure that those seeking to access healthcare (particularly in the public health system) are not denied lifesaving medication.

The importance of IP law when it comes to accessing healthcare is that it guides the way in which the state grants patents to pharmaceutical companies for medicines in order to stop anyone else manufacturing the same product. Patents last for 20 years and in those 20 years the pharmaceutical company enjoys a monopoly where it determines the pricing for the medicine. The problem here is when the manufactured medicines are priced high, leaving masses of people in desperate and sometimes fatal situations.

While it is true that patents drive innovation in medications, in South Africa our liberal patent laws lead to the excessive granting of licences, further fuelling big pharmaceutical monopolies.

The World Health Organisation (WHO) publishes an annual list of what it calls essential medicines that are usually needed for country-specific prolific and epidemic diseases. In its Access to Medicines policy, WHO states:

“Public health principles, in the context of access to medicines, are supported by a range of national and international legal and policy instruments, including the Constitution of the World Health Organization (WHO). From a human rights perspective, implementation of intellectual property rules should be governed by those principles which support public health goals and access to medicines.”

Yet, what big pharmaceutical companies have been doing is monopolising the production and manufacturing of some of these drugs for profit. This is particularly so in the case of medicines needed for TB, hepatitis C, malaria and cancer, which are among the leading causes of death in Africa. It has been discovered that for cancer specifically only seven of the existing 24 medications are available in SA’s public health system because of excessive pricing.

Dr Eric Goemaere, a physician with Médecins Sans Frontières who pioneered HIV treatment in South Africa, was quoted in 2017 as saying that:

“For cancer, we are where we were in the beginning of the 90s for HIV... It’s considered too complex, too expensive. People don’t want to look at it.” A most disconcerting thought, considering how long it took to make ARVs accessible and the resistance that was put up by pharmaceutical companies while people died.

The Treatment Action Campaign is the biggest and most visible organisation in South Africa working towards ensuring that people have access to their medical treatments. They (among others) were instrumental in ensuring that South Africans have access to ARVs by forcing big pharmaceutical companies to grant licences to companies to produce generic ARVs in order for the prices to come down and for them to be accessible. However, there are new generation anti-retrovirals and new medicines to treat hepatitis C, drug-resistant TB and many cancers that are unaffordable.

In 2017, the then-minister of health, Dr Aaron Motsoaledi, was quoted as saying:

“We must come up with innovative research and development models, such as The Life Prize... which delinks the cost of R&D from the final cost of medicines. South Africa should continue to advocate for alternative research and development models, such as delinkage, which proposes incentivising R&D through grants, subsidies and cash prizes instead of patent monopolies that permit excessive pricing. And it should back up this global leadership with funding for these initiatives, as well as increased spending on basic research. South Africa must invest in the drugs – and models of drug development – of tomorrow. It cannot remain trapped in the market logic of intellectual property.”-- Standing Up for Our Lives

It is worth examining how it is that a person’s health can be held to ransom by big pharmaceutical companies that profit from ll-health and refuse to sell medicines at affordable prices while actively stopping anyone else from doing so.

What does this mean for you and I as ordinary South African? It means there may come a time when you need unaffordable medication that is under patent and has prevented all other potential generic manufacturers from making a cheaper alternative. It means health, a universal human right and a guaranteed constitutional right, has been commodified so that pharmaceutical companies make obscene profits from human suffering. It means the right to access to health is being undermined in the most bald-faced way possible.

In May 2018, the Cabinet approved a progressive IP policy that would allow for better access to high quality and affordable medicines, but this is yet to be implemented as the proposed legal reforms still have to be made.

What we should be engaging with here is not an over-emphasis on the complexities of IP law but the violation of human rights where people are denied their universal right to access healthcare. MC