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Access to HIV/AIDS Medicine, Pharmaceutical Patents and Compulsory Licencing: Searching for a Better Balance in Developing Countries

Oravainen, Maria

Opinnäytetyöt 8.10.2018, Gradut ja muut tutkielmat

Tiivistelmä

Human right to health has been established in a number of international agreements. Access to medicine is not specifically stated in any of them but it is widely acknowledged as an essential part of the right to health. Without adequate access medicine, the right to health cannot be completely fulfilled. However, access to medicine is unsatisfactory in developing countries and a big contributor to this reality are high drug prices. Drug prices can remain high due to patent protection and market exclusivity. Thus, access to medicine and pharmaceutical patents are in conflict and in the center of this conflict is the HIV/AIDS crisis. HIV/AIDS is rattling many developing countries and infected people are in desperate need for life-saving medication which they too often cannot afford. Moreover, the virus is very error-prone which leads to drug resistant mutations. Consequently, new HIV/AIDS medications are constantly required which means that pharmaceutical companies need incentives to invest in the risky and uncertain business of drug development in order to provide more effective drugs. Patents are tool to encourage pharmaceutical industry and help them reclaim the money invested in research and development. Thus, a balance between access to HIV/AIDS medicine and drug patents must be found. The TRIPS Agreement provides a balancing mechanism called compulsory licensing. However, the use of compulsory licensing has not been quite frequent, even though it has been effective when used. Compulsory licensing does not offer an overall solution to provide comprehensive access to medicine in developing countries and therefore complementary mechanisms are also needed.

This thesis has an interdisciplinary approach. On one hand, the research focuses on the human rights framework and how access to medicine relates to it. On the other hand, international legislation concerning pharmaceutical patents as well as the aspects of international pharmaceutical industry are also considered. In addition, another dimension to the research is given by the HIV/AIDS crisis. The three dimensional dilemma is evaluated in the framework of the TRIPS Agreement and whether or not compulsory licensing is effective enough to balance the conflict. Legal dogmatic research is the most prevalent method but social factors are also considered slightly.
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