Intellectual property rights trump the right to health: Canada’s Access to Medicines Regime and TRIPs flexibilities in the context of Bolivia’s quest for vaccines

ABSTRACT The failure of the Canadian pharmaceutical company Biolyse Pharma to obtain authorization under Canada’s Access to Medicines Regime (CAMR) to produce 15 million badly needed doses of a generic copy of a vaccine needed by a developing country is the occasion for a reflection on the right to health and the compatibility of this right with the dominant system of intellectual property rights (IPR) under the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Doha Declaration and subsequent decisions. Global health justice and intellectual property rights are difficult to reconcile because patent-supported pricing limits equitable access to medicines and, in addition, produces distortions in the allocation of resources in health research. A ‘delinkage’ of production and development costs is therefore called for. In spite of this, governments of countries with an important pharmaceutical sector are often hesitant to agree to sharing of information and technologies. The ‘flexibilities’ (mainly ‘waivers’ and ‘compulsory licenses’) provided for under the TRIPS system are not applied in a serious and consistent way in order to allow developing countries to deal with health crises, as is illustrated by extreme variation in rates of vaccination between the developed and the less developed world.