Access to Medicines

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By Amy Kapczynski:

“A2K also invests with great significance the concept of “access.” First associated

with the access-to-medicines campaign, the importance of the term to the broader

coalition is perhaps best marked by its presence in the name “access to knowledge”

itself.83 The demand for access is an inherently relational one—a claim from those

excluded that they be included, that they be given something that others already

enjoy. In this sense, it marks perhaps the only—or at least the most prominent—

demand for distributive justice emanating from the A2K movement, which other-

wise borrows more from discourses of freedom.

How, then, are we to understand this demand? We can begin by considering

the development of the campaign for access to medicines. Although the claim

might seem to be very simply a demand that medicines available to the rich also

be made available to the poor, from its inception, the movement has been inti-

mately bound up with claims about intellectual property. It emerged from the cru-

cible of the global HIV/AIDS pandemic and specifically from the recognition that

treatment would never be available to the vast majority of those who needed it

unless the prices of medicines could be reduced. At the time that the campaign

began, AIDS medicines sold for about $10,000 per patient per year. Activists versed

in intellectual property law such as James Love teamed up with groups such as

Médicins Sans Frontièrs to demonstrate that this price is not a fact of nature or a

reflection of the sophistication of antiretroviral medicines, but rather an artifact of

patent law. Generic copies of the medicines cost as little as $350 per year (and even

less today), but patents—and the aggressively propatent trade policies of coun-

tries such as the United States—stood in the way.

The demand for access to AIDS medicines has thus been, from the beginning, a

demand for access to copies of AIDS medicines.

The emblem (of Act-Up Paris) illustrates two important elements in the demand for access. First,

claims to access are framed squarely against the backdrop of intellectual property.

Second, they are rooted in claims of right that supersede the claims of right made

by owners of intellectual property. The right to the copy claimed by activists is

written over the right of the copy claimed by rights holders.

The demand for access thus appears first as a refusal. It emanates not from

the discourse of intellectual property, but from the language of human rights. 85 It

seeks to elevate the latter over the former, as through the demand, commonly seen

at access-to-medicines demonstrations, for “patients’ rights not patent rights.”

At the level of the slogan, the concept of access seems to embody an outright

rejection of the logic of intellectual property and of the type of cost-benefit analy-

ses and arguments about innovation upon which it is based. In fact, however, the

discourse of access-to-medicines campaigners has become intimately bound up

with the logic of intellectual property, because their attempt to contest the legiti-

macy narrative of intellectual property law has drawn them into the economic dis-

course that dominates the field.

As activists sought to challenge the existing law of intellectual property, they

found themselves up against the despotic dominion account of intellectual prop-

erty. Calling upon this account, pharmaceutical companies insisted that they, too,

are in the “access” business and that patents are the only way to ensure the devel-

opment of new medicines. The conditions of access are contested, that is, pre-

cisely in the terms of the discourse underlying the concept of intellectual property,

requiring A2K advocates to do more than simply argue that they are for access

because they are opposed to exclusive rights in medicines. The demand for access

is by necessity constructed on a deeper theory of what it means to make medicines

accessible—one that is built upon the values of freedom and openness that are

evolving within the discourse of the A2K movement, but anchored in the demands

for distributive justice that motivate the call for access.

Access-to-medicines campaigners argue, for example, not only that patents

artificially raise prices and thus hurt patients, but also that they do not provide

the innovation benefits that the despotic dominion account claims for them, par-

ticularly for the poor. They point out, for example, that patent-based innovation

systems link innovation to high prices. Because the poor cannot pay these high

prices, patent-based companies ignore the needs of the poor and instead cater to

the needs of the rich. Thus, we have a pharmaceutical R&D system that prioritizes

drugs for baldness and erectile dysfunction over lifesaving treatments for ailments

such as tuberculosis and malaria.

They also point out that patents can create barriers to research and thus inter-

fere with innovation—and argue that they are particularly likely to do so where

poor patients are concerned. They point out, for example, that multinational com-

panies that make AIDS drugs were unwilling to undertake the negotiations that

would have been needed to combine the multiple drugs needed for the HIV cock-

tail into a single pill that would be easier for patients to take. The work was first

done not by patent-holding firms, but by Indian generic companies that were

unconstrained by patents. Like the discourses of the public domain and openness, the discourse of access here attacks the despotic dominion account’s claim that

intellectual property invariably promotes innovation. Unlike the other concepts,

this one makes central a distributive justice claim—that freedom from intellectual

property restrictions is especially important to the poor.

The access-to-medicines campaign also takes aim at the model of private con-

trol that is central to the despotic dominion account. Notably, access-to-medicines

campaigners have consistently opposed drug company donation programs, staking

a claim for a form of access that is defined by nonexclusive sharing of the informa-

tional component of drugs, rather than their price per se.

Why? Why would it matter where the drugs come from, as long as they come?

For access-to-medicines campaigners, the issue is one of accountability and con-

trol. They argue that drug company donation programs are unacceptable because

they leave power over life in the hands of private actors, who retain the privilege

of charity, the privilege to make good on their promises or not. Overriding pat-

ents is cast as a way to insist instead on values of participation and accountability.

The demand for access to medicines, like the call for free software, thus places the

concept of democracy at the center of the A2K movement and opposes it to the

despotic dominion conception of intellectual property.”

(Source, from the introduction: Access to Knowledge: A Conceptual Genealogy. By Amy Kapczynski. In the book: Access to Knowledge in the Age of Intellectual Property)