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In this chapter, Professor Watal explores the concept of access to medicine between public health and the protection of intellectual property rights in developing countries. In doing so, he starts by describing the present situation: more than two billion people across the developing world have not access to (affordable) medicines, due to the high prices of new medicines that are protected by patents. Methodologically speaking, in this article, this topic is contextualized between two sides. On the one hand there is the human right to health. On the other one there is the need to protect intellectual property rights. There is, in other words, the need of balancing the (short-term) interest in guaranteeing an as wider as possible access to essential medicines and medical technologies and the (long-term) exigence to foster and fuel creativity and innovation. How is it possible? First , it is stressed how high level of IP protection are damaging to public health as they reduce – or even cancel – competition, which is essential for reducing medicine prices. The Author, then, examines the technical issues at stake. For example, it is highlighted how crucial is the so-called “disclosure requirement”, according to which important technical information must be publicly available for those who may need them in implementing or improving technology in the same field, also during the term of the patent. The Doha Declaration is then taken into account. On the one hand, (I) member countries can limit or qualify intellectual property rights, and (II) the TRIPS Agreement does not prevent Members from taking measures to protect public health. The Declaration also claims the TRIPS Agreement should be interpreted and implemented in a way that supports WTO Members’ right to protect public health and, more in particular, to promote access to medicines for all. On another note, members are free to determine the cases in which the so-called “compulsory licenses” are granted, without reference to forms of emergency. Since, in other words, each Member has the right to determine what constitutes “a national emergency or other circumstances of extreme urgency,” public health may be well included in this exemption. While underlying that many other circumstances must be taken into consideration when dealing with public health issues – such as political will, health-care facilities, funding, and so on – it is clear that the balance between the levels of IP protection of patent-holders and the general interest is crucial for assuring a sustainable development in this area.
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