Intellectual property (IP) can be defined as any idea or material that is protected by law from the unauthorised use by others (Jose Rivera ‘What Is Intellectual Property Theft?’ (www.legalmatch.com, accessed 8-11-2021)). Patent, copyright, design, as well as trade mark laws are what is commonly used to protect the idea or material referred to. A person (natural or juristic) who has invented a particular pharmaceutical drug or medical product will generally apply for a patent to protect such an invention against counterfeiting and other infringements, which means that only such an inventor can profit from its production for a certain period, in exchange for the public disclosure of the invention (Ki Akhbari ‘What is Intellectual Property Law?’ (www.legalmatch.com, accessed 20-2-2020)).

Inventors tend to protect their inventions for purposes of being able to recover their costs and to also make profit. This is because the fundamental idea of IP protection is that owners must be allowed to enjoy the fruits of their labour (Michael Yeboah The Effects of Trade Related Aspects of Intellectual Property Rights on Developing Countries (MSc thesis Iowa State University, 2005)). The fundamental idea referred to is what inspires further innovation and research, which inevitably results in economic growth and protection of public health (Stephen Ezell and Nigel Cory ‘The Way Forward for Intellectual Property Internationally’ (https://itif.org, accessed 11-4-2020)).

Considering the context provided op cit, this article will provide a discussion on how IP is linked to public health within South Africa (SA).

IP and public health within SA

The right to health began developing into what it is today at the end of World War II and consequent to the establishment of the World Health Organisation (WHO) (Lonias Ndlovu ‘Access to Medicines under the World Trade Organisation TRIPS Agreement: A Comparative Study of Select SADC Countries’ (LLD thesis, University of South Africa, 2014) at 87). The Constitution of the WHO was the first international legal instrument, which made an explicit provision for the right to enjoy the highest attainable standard of health (Ndlovu (op cit)).

Before IP was regulated and facilitated effectively as it is today, private pharmaceutical companies were dominating the market and excluding developing countries from essential health technologies by setting high prices for the purchase of their inventions. Intellectual property was therefore, considered bad for public health (Anatole Krattiger and Richard T Mahoney ‘Intellectual property and public health’ (www.who.int, accessed 6-6-2020)). This shows that IP has been linked to public health since the birth of IP as we know it today.

IP and health as basic human rights

The link between human rights and IP has been a global topic of discussion for a long time (Mpasi Sinjela Human Rights and Intellectual Property Rights: Tensions and Convergences (Leiden: Martinus Nijhoff Publishers 2007)). The Universal Declaration of Human Rights (UDHR) of 1948 states clearly that everyone is afforded a right to the protection of their moral and material interests owing from artistic, literary, as well as scientific production of which they are the author (art 27(2) of the UDHR). This is clearly an IP right afforded to everyone and it, therefore, acknowledges the link between human rights and IP. In this context, it can be submitted that the UDHR acknowledges the fact that there indeed exists a link between human rights and IP.

The UDHR also provides that everyone has the right to a standard of living that is adequate to their and their family’s health, which includes housing, food, as well as medical services (art 25(1) of the UDHR). This right is afforded to every human being by virtue of being human and needs to be protected and fulfilled by whoever is under an obligation to do so.

Furthermore, the UDHR provides everyone with the right to own property and affords protection against the unlawful deprivation of such property (art 17 of the UDHR). The right to property is a clear human right in the context of the UDHR and arguably, property is ordinarily defined therein to include IP.

TRIPS, the WHO and the Constitution

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement allows member-states of the World Trade Organisation (WTO) to take the necessary measures to protect public health when formulating or amending their IP laws (art 8 of the TRIPS Agreement and Ndlovu (op cit) at 118). I, therefore, submit that the TRIPS Agreement acknowledges the fact that IP is directly linked and relevant to public health.

The preamble of the Constitution of the WHO clearly states that the enjoyment of the right to health is one of the indiscriminative fundamental rights of every human being. In this context, the right to health is a right afforded to every human being, a right related to other rights and, it is also more than just a political or civil right. The Constitution of the Republic of South Africa (the Constitution) is the supreme source of law in the land and provides for the right to access to health care services and sufficient food (s 27 of the Constitution). Additionally, another important human right related to the right to health (ie, the right to life) is also stated within the Constitution (s 11 of the Constitution).

The TRIPS Agreement states succinctly that an invention which involves an inventive step (ie, one that is new and novel) and is capable of being applied to the industry, shall be eligible for patent protection (art 27(1) of the TRIPS Agreement), it also states that WTO members have the right to use compulsory licensing and other methods to ensure access to medicine (Ndlovu (op cit) iv).

There exists a hierarchy of laws and a hierarchy of rights, (see Minister of Health and Others v Treatment Action Campaign and Others (1) 2002 (10) BCLR 1033 (CC) for the importance of the right to health. In the case, the Constitutional Court of South Africa held, inter alia, that the conduct of restricting the distribution of antiretroviral drugs to HIV positive pregnant women by the South African government was a violation of the constitutional right to health),  which means that if indeed the right to IP was to be deemed a human right (ie, in the context of the UDHR, inter alia,) then the right to health would trump the right to IP for a number of reasons (Ndlovu (op cit) 80). One of the reasons referred to is the fact that IP rights depend on legislative promulgation, they are naturally temporary, they can be licensed, assigned to someone other than the owner, be forfeited and they can also be amended accordingly (Emmanuel Kolawole Oke ‘Incorporating a right to health perspective into the resolution of patent law disputes’ (www.hhrjournal.org, accessed 8-6-2020) and Ndlovu (op cit) 79)).

Human rights are inalienable rights, which are afforded to every human being by virtue of being human (preamble of the UDHR). They are, however, not absolute, neither are they temporary. Additionally, not all IP rights serve to protect the personal interests of their holders because IP rights are viewed as rights used to benefit, while human rights are rights, which are there to guard the personal interests of the human afforded such rights (Ndlovu (op cit) 79).

When a company invents a medicine or medical product, such an invention (falling under the definition of an IP) has a direct impact on the health of the public because it is invented for the public to purchase and use it for health purposes (Krattiger and Mahoney (op cit)). Based on the context provided, the link between public health as a human right and patents as IP is relatively evident.

The link and relevance of IP (particularly patents) to public health is directly evidenced by the increased well-being of the public, while the relevance of same to the economy is evidenced by the sales of the manufactured product (Amy M Bunker ‘Deadly Dose: Counterfeit Pharmaceuticals, Intellectual Property and Human Health’ (2007) 89 JPTOS 493). Intellectual property rights are monopolistic in nature, which means that their prices of sale may be higher than what poor people can afford, thereby directly impacting their right to health negatively (Oke (op cit)). This shows the direct link and relevance that IP has on public health.

One of the reasons for protection of IP is to promote creativity and to generate profit in the name of fostering further research and innovation (Olasupo Owoeye ‘Using Intellectual Property to Promote National Interests and Economic Development in Low Income Countries’ (www.aripo.org, accessed 8-6- 2020)).

Further research and innovation are important because new viruses and illnesses always emerge. The pharmaceutical industry, therefore, needs to be prepared and such preparation is done by conducting research (Owoeye (op cit)). The fact that illnesses and viruses referred to are life-threatening to humans shows that a pharmaceutical invention, which targets such an illness or virus has a direct impact on human health since humanity will be its users, this is therefore an indication of how IP (the invention referred to) is relevant and/or linked to public health.

SADC and the African Commission

The Southern African Development Community (SADC) Protocol on Health states in its preamble that SADC members acknowledge the fact that a healthy population is essential for sustainable human development and for the increment of productivity (Ndlovu (op cit) 103).

Relative hereto, the African Commission on Human and Peoples’ Rights (the African Commission) urges African states to develop their IP laws in the name of promoting access to medicines (Ndlovu (op cit) 102), thereby protecting the right to health of the public. The relevance of IP to public health cannot be overemphasised, IP is directly linked to public health, especially where medicinal drugs and medical products are concerned.

South Africa and Zimbabwe (despite its poor economy) are deemed to have pharmaceutical regulatory bodies, which are well-developed, as opposed to Eswatini, which has a regulatory body, which is relatively poor (Amanda Calder ‘Assessment of Potential Barriers to Medicines Regulatory Harmonisation in the Southern African Development Community (SADC) Region’ (MSc Research Report, University of the Witwatersrand, 2016)). It has been stated that strong protection of IP has the potential to yield great public health benefits and results. South Africa and Zimbabwe are, therefore, some of the countries with the potential to benefit accordingly.

For a developing country such as SA, medicine laws and IP laws, which are outdated and/or do not comply with the TRIPS Agreement may prove to be a serious weakness in their pharmaceutical regulations and consequently pose a threat to the health of the public (Ndlovu (op cit) 107). In this context, I submit that IP and its laws are relevant to ensuring and protecting of the right to health of the public of SA.

The main purpose of IP protection is to guard against unlawful infringement and, to ensure that property owners enjoy the fruits of their labour (Yeboah (op cit) and Olusegun Abayomi Olaniyi ‘Intellectual Property Rights and Foreign Direct Investment in sub-Saharan Africa’ (2000-2016) (MSc thesis, Obafemi Awolowo University, 2018) at 16). These fruits include the making of profit from sale of their property, hence the need to provide a discussion on how IP is relevant to the economy.

Summative remarks on how IP is linked to public health

Intellectual property refers to an idea or material, which can be protected by law against the unauthorised use or exploitation by other persons. The rights associated with IP are protected by way of trade marks, copyrights, patents etcetera (Rivera (op cit)). These rights cannot be deemed human rights because they are naturally temporary. They can be licenced, assigned to someone other than the owner, be forfeited and they can also be amended (Oke (op cit)). I submit that IP rights enhance, promote, and protect human rights and do not instead surmount them.

The right to health is a human right, which is recognised by both national and international law. For IP to exist in harmony with the right to health of the public, there has to be a balance between the two (such a balance can be made by considering a number of factors such as the availability of resources etcetera) (Owoeye (op cit)). What must be enunciated is the fact that IP is linked to public health.

When a medicinal drug is invented, such an invention amounts to IP and such invention is directly linked to public health because it is invented for the public (consumers) to purchase and use for health purposes, this is where the relevance of IP (in the form of patents) to public health lies (Krattiger and Mahoney (op cit)).

Mpho Adam Titong LLB (NWU) is an LLM graduate at the North-West University in Potchefstroom.

This article was first published in De Rebus in 2021 (Dec) DR 12.