Some reformers would re-conceptualize IP by ?rst identifying the minimum standards-for health, welfare, education-that government ought to meet for its citizens, and then adopt- ing (or modifying) IP law to help achieve those human rights outcomes. International law- yer Laurence Helfer cites as an example a 2001 report by the U.N. High Commissioner for Human Rights, analyzing the impact of TRIPS on the right to health:
includes an obligation for states to promote medical research and to provide access to a?ordable treatments, including essential drugs.
The High Commissioner's report analyzes how intellectual property a?ects these two obligations. It acknowledges that patents help governments promote medical re- search by providing an incentive to invent new medical technologies, including new drugs. But the report also asserts that pharmaceutical companies' "commercial motiva- tion ... means that research is directed, ?rst and foremost, towards ‘pro?table' dis- ease. Diseases that predominantly a?ect people in poorer countries ... remain relatively under-researched." One way to remedy this market imperfection is to create incentives for innovation outside of the patent system.16
How would you apply this human rights approach to the problem of supplying expensive but essential drugs-for malaria, tuberculosis, or HIV-to poor people in underdeveloped nations?