ACCESS TO MEDICINE- HUMAN RIGHTS DURING THE TIME OF COVID AND IP LAWS

INTRODUCTION

The COVID-19 outbreak has posed a lot of problems to the integrated health, commerce, and intellectual property regulatory frameworks. Every human being is at the core of human rights. The world is in the midst of a historic catastrophe. Human Rights prepare the basis now for a more egalitarian and functioning society, prosperity, and harmony to emerge from this tragedy. In a public health emergency, drug industry actions about COVID-19 medicines give new clues into the shifting dimensions of ethical and rights-based business activity. Those who own the intellectual property rights to COVID-19 drugs can prevent everyone else from manufacturing, marketing, or using their medication since it is protected. During the COVID-19 pandemic, the value of having access to educational and health-related things which are encrypted by Intellectual Property Rights(IPR)  has been seen sufficiently. Around twenty-five years ago, the TRIPS agreement was validated and the identical issues highlighted during the discussions, such as elevated drug prices, market distinctiveness, and delayed market access, stayed viable, as the COVID-19 pandemic made evidently.

PREVAILING SITUATION ALL AROUND THE WORLD

In the public interest, intellectual property poses a problematic relationship with access to medicines in the era of COVID-19. Even though the development of the COVID-19 vaccine has given a ray of hope to millions of people, there are access barriers for several nations due to the prevailing IP laws hindering human rights of the state by making the right to health vulnerable. Barriers to access are causing grave tensions. COVID-19 magnifies access restrictions that are not limited to confined or specific situations but are universal. They are a product of our existing IPR frameworks and are a virtue of them. Since inclusive initiatives are neither intended nor capable of fully addressing the broad array of access restrictions essential to advance the public interest, they give limited alternatives. Established regulatory measures aimed at removing access barriers have also proven ineffective in addressing access requirements. Both IPR and non-IPR restrictions obstruct access. Based on the mode used and the public that needs access, the amount of access obtained varies. The public interest is made up of various and diverse interests and interests, instead of being a simple idea. Also, COVID-19’s domestic and global responses, especially vaccination access, have indeed been politically driven. It is required to properly examine the strains that access restrictions produce, the instruments that are used to alleviate them, and their efficacy.

DIRECT GOVERNMENT SUPPORT IN PUBLIC HEALTH CRISIS

The patent deal during the period of the global pandemic is not in the favour of the interests of mankind, and it should be repudiated completely. It is a need for hours to pace up the distribution of vaccines along with the medical treatments and therapies so that they may be accessible to everyone. If the privilege of raising the prices of the medication would be given to these pharmaceutical firms, then the result of this step would be the worst one which would critically affect us. Support of the government directly in the way providing funding for Research & development activities, prepayment contracts by the government to purchase a significant number of vaccine doses at certain prices, is a beneficial method to be adopted during the global health emergency. To incentivize certain advances, the government is required to be even more engaged, especially in the period of a global pandemic. When public funds are used and the manufacturer preserves IPR, the rightsholder is capable of charging the people for the invention again, with no price limitations. Also, the pharmaceutical sector has no valid reason to oppose a TRIPS waiver. Claims which suggest that the TRIPS waiver would deny pharmaceutical firms the opportunities that are required by them to constantly upgrade afresh treatments can be disregarded as the most unfavourable type of special pleading.

HUMAN RIGHTS

Monitoring the catastrophe and how it affects our human rights emphasises the urgent look into the matter. The public health emergency is rapidly morphing into a socioeconomic disaster along with the vulnerability of human rights issues. The tragedy of coronavirus has elevated the susceptibility of the global’s most exposed nationals. The globally prevailing lockdowns automatically limit the sphere of various human rights which are legislated worldwide. The situation which is created by the COVID-19 is such that the limitations and specifications which are being imposed are the only viable solution that could aid us in dealing with this severe medical emergency. The right to the best feasible level of health, initially stated in the WHO Constitution in 1946, has developed over time as conventions, like the International Covenant on Economic, Social, and Cultural Rights have been added (ICESCR)[1]. Vaccine availability should not be considered as a matter of charity, but it should be the fulfilment of the obligation of every nation towards the international human rights legislation. The massive prices of the vaccinations for the COVID-19 virus obstruct the fulfilment of various human rights, which includes the right to life, basic health needs and equivalent access to scientific advancements.

The six major human rights messages are as follows:

  1. Protecting people’s lives is the priority, protecting livelihoods assists us in doing so.[2]
  2. The virus does not discriminate, but its impacts do.[3]
  3. Involve everyone in your response[4].
  4. The threat is the virus, not the people.[5]
  5. No country can beat this alone.[6]
  6. When we recover, we must be better than we were before.[7]
IPR LEGAL DOCTRINES AND TRIPS AGREEMENT

Various Intellectual Property Rights legislation and regulations are adopted just to enable accessibility to the conventional public good, which mostly is based on TRIPS Agreement provisions. Patents and the law of copyright have several procedures in place to protect the public interest. The conduct and the circumstances of the crisis or dangerous situation will inevitably determine how such measures are legislated and expanded for the welfare of the general public. But the thing is such that reforms which are being made in the prevailing IPR doctrines are not sufficient to broaden these rules out of procedural fairness and would these be able to provide an acceptable way of dealing with such medical and global emergencies. The Agreement on Trade-Related Aspects of Intellectual Property Rights permits jurisdictions whose production capability is specified to forego the copyright for some specific time to import essential medicines via compulsory licensing. In practice, however, this procedure is long and complicated because it requires both importing and exporting countries to adopt local legislation allowing them to employ TRIPS flexibilities. Owing to the rapidity with which vaccines were manufactured during the COVID-19 crisis, this complexity was amplified, resulting in a lack of openness in the patent procedure. The African Union, for example, backed a TRIPS waiver to modify WTO rules so that LMICs may develop their COVID-19 vaccines, but this multi-African effort was met with opposition from countries in the Global North and pharmaceutical industries[8]. For the nations in the southern part of the world, the high cost of COVID-19 vaccine doses accounts for a considerable amount of their health budget, and this came at the cost of other health objectives. The World Bank has set aside US$12 billion and has already awarded loans totalling US$500 million for vaccines in low- and middle-income countries;42 poorer countries are obliged to shift more revenues to debt servicing rather than repairing their impoverished health systems.[9]

CONCLUSION

To the access hurdles we’ve found, neither open movements nor pre-existing legislation principles are appropriate or efficient. While movements that overlay onto IPR regimes have made great progress, movements that solely target IPR access hurdles are insufficient. Furthermore, present IPR frameworks’ regular public interest procedures are so limited and domestically oriented that they have been unable to respond to a catastrophe. Human rights demand equal accessibility to vaccines, not the restricted and inefficient donation that is being provided sluggishly via certain organisations. The COVID-19 immunisation procedure is one of the most significant global health concerns, and we must seize this chance to have an advanced model of how we can jointly conceive everyone’s right to health, worldwide.

Author(s) Name: Abjot Kaur (Punjab School of Law, Punjabi University, Patiala)

References:

[1]‘Education and cultural rights’ (Human Rights Topic) <https://www.ohchr.org/en/topic/education-and-cultural-rights> accessed on 9 April 2022

[2]‘OHCHR and the right to health’ (United Nations Human Rights) <https://www.ohchr.org/en/health> accessed on 9 April 2022

[3] Supra note 2

[4] Supra note 2

[5] Supra note 2

[6] Supra note 2

[7] Supra note 2

[8] Sharifah Sekalala, Lisa Forman, […], and Benjamin Mason Meier, ‘Decolonising human rights: how intellectual property laws result in unequal access to the COVID-19 vaccine’ 2021 6(7) BMJ Glob Health <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8277484/#__ffn_sectitle>  accessed on 9 April 2022

[9] World Bank. World bank supports first COVID-19 vaccine Rollout in Lebanon. Available: <https://www.worldbank.org/en/news/press-release/2021/01/21/world-bank-supports-first-covid-19-vaccine-rollout-in-lebanon> accessed on 9 April 2022

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