2012 Global Congress on Intellectual Property and the Public Interest

By Adriana Benedict

The 2012 Global Congress on Intellectual Property and the Public Interest has just come to a close in Rio de Janeiro, Brazil.  The conference brought together global leaders in intellectual property-related fields like access to medicines, access to knowledge, internet freedom, innovation and development, and open educational resources.  I was invited to participate in the various sessions concerning access to medicines, which focused on two sides of this global health challenge.

The first part of the access discussions focused on best practices and threats in the use of TRIPS flexibilities in developing countries.  Participants emphasized the need to look beyond the usual focus on compulsory licenses to set new priorities for understanding and leveraging less-developed flexibilities such as patentability criteria, patent opposition mechanisms and parallel importation.  An important overarching theme in these discussions was reframing flexibilities as rights, as they carry the same legal status as the intellectual property rights which make them necessary.

The other side of the discussions focused on innovation and research and development (R&D) for the developing world, primarily through recent advances by the WHO CEWG report in promoting a binding convention in this realm.  At the forefront of these proposals is the notion that incentives for innovation should be de-linked from product prices in order to address the needs of the developing world.  Participants emphasized that, moving forward, advocates should be careful to ensure that public and institutional debates on alternative R&D models do not narrow their focus from neglected populations to neglected diseases.

Throughout these conversations, and recurring throughout the access to medicines community at the Global Congress, was the urgent need to articulate links to the aims of other IP-related advocates concerned with heightened copyright standards compromising freedom and expression.  In my opinion, there is a clear link: access to biomedical research.  Unlike most issues related to access to medicines which primarily implicate patent law, access to biomedical research primarily implicates copyright law.  Access to biomedical research embodies the fundamental link between access and innovation, whereby innovation for the developing world requires access to biomedical research in the developing world.  Moreover, the public interest rationale for access to biomedical research is clear and compelling, as the vast majority of biomedical research benefits from public funding.  A recent advancement for access to biomedical research was welcomed with the NIH Guide’s notice of enhanced compliance efforts for its Public Access Policy (see this NIH blog post for explanatory comments).

Speaking of biomedical research, at one of the final workshops, a young Brazilian lawyer proposed a very interesting idea regarding leveraging R&D for global health.  Keenly noting that clinical trial participants are important rights-holders in pharmaceutical R&D, she proposed asking clinical trial participants to demand global access licensing as part of the informed consent process.  If clinical trial participants could be empowered to leverage their involvement for global health, perhaps we would be one step closer to de-linking innovation incentives from product prices in addressing the R&D gaps affecting the developing world.

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