The flexibilization of intellectual property rights in cases of health crises: A case study of Brazil in the face of the AIDS and COVID sanitary crises

Abstract

Intellectual property (IP) law is traditionally considered rigid, with little room for maneuvering in crisis cases. In this article, through three case studies, we discuss how health crises have affected IP rights, especially in Brazil, and the relationship of Brazilian decision-making with internationally accepted legal frameworks. In the first case, on the AIDS crisis, we discuss the initiatives of compulsory licenses in Brazil and the debate on the Doha Declaration on public health, in which the international community recognized the national margin of appreciation of TRIPs in specific cases, making the Brazilian government's action viable. In the second case, on COVID, we discuss some proposals for waiver of IP rights that, although not effectively implemented, were important to pressure economic players to find solutions to transfer technology and expand the production of newly discovered vaccines, with the transfer of technology and expansion of Brazilian vaccine factories. In the third case, also on COVID, we discuss how the health crisis induced the Brazilian Judiciary, Executive, and Legislative branches to change different points of the IP law that had been under discussion for many years and reduced the extent of these rights, to increase access to medicines, but limited by international minimum standards. We conclude that IP law is essential for developing new drugs to deal with health crises. At the same time, these crises are essential for constructing Law that prevents abuses by dominant economic actors.