Why Intellectual Property Law in South Africa Needs to Be Revised?

Blog Intellectual Property Rights Patent December 4, 2019

Intellectual Property Rules in South Africa

Posted On December 4, 2019April 25, 2020

Since Intellectual Property Rights (IPRs) refer to the rights to exclude others from using or commercializing an asset protected under a trademark, copyright, or patent, they sometimes confer negative rights. This concept shows that there is a growing need to revise the Intellectual Property Law in South Africa (SA) to ensure that those who want to access healthcare aren’t denied healthcare lifesaving medication.

The importance of IP law in terms of accessing healthcare is that it provides the way how the state grants IPRs to pharmaceutical companies to prevent someone else from manufacturing the same drugs. Remember that the IPR related to the protection of drugs is a patent that lasts for 20 years in most of the countries worldwide. In the period of those 20 years, the company enjoys a monopoly that allows it to determine the pricing for the medicine. The main problem with this field is that when drugs are priced high, they often leave people in desperate and fatal situations. That’s why it is essential to revise the liberal Patent Law of South Africa that indeed appears helpful to bring innovations in the medication sector, but while leading to excessive granting of licenses, thus fuelling pharmaceutical monopolies.

Considering the need to revise IP law in South Africa and many other countries, the World Health Organization (WHO) provided a list of some essential rules needed for country-specific epidemic diseases, etc. WHO stated that public health principles, in the circumstances of access to medications, are supported by a wide range of national to international legal policy instruments, encompassing the Constitution of WHO. Moreover, the implementation of Intellectual Property Rules in South Africa or several other nations from a human rights perspective should be governed by principles that support public health goals, as well as access to medicines.

Yet, what many pharmaceutical firms have been into is to monopolizing the manufacturing of drugs just for profit. It is common in the case of medicines required for cancer, malaria, TB, and hepatitis C that are the leading causes of death in South Africa. It has been found that because of high pricing, only 7 out of the existing 24 medications for cancer are available in the public health system of South Africa.

What South Africa Is Doing Or Should Do?

Dr. Eric Goemaere, a physician who introduced and pioneered HIV treatment in SA in 2017, said that for cancer, they are where they were in the starting phase of the 90s for HIV. The treatments for these two and many other diseases appear too expensive and complicated that people don’t even want to look at them. The most disconcerting thoughts are- how long it will take or it took to create and make ARV (antiretroviral) available for curing illness and resistance put up by pharmaceutical companies while the patient is dying.

In such instances, the Treatment Action Campaign appears as a helping hand. It is a South African organization working to ensure that people have access to suitable medical treatments. By compelling big pharmaceutical organizations to grant licenses to other companies to manufacture generic antiretroviral, it is into making sure that the ARVs are accessible to all South Africans at affordable prices. Nevertheless, there are many new antiretrovirals, and medicines to treat TB, cancer, and hepatitis C, but unfortunately, they are unaffordable.

Dr. Aaron Motsoaledi, the health minister of SA in 2017, was quoted by saying that they must emphasize and come up with innovative research and development (R&D) models, which delinks the expense of R&D from the final cost of medicines. Besides, South Africa should look for alternate approaches like incentivizing R&D through grants, cash prizes, etc., rather than continue advocating patent monopolies allowing excessive pricing for drugs. And it should support global leadership by investing in researches and funding researchers for such initiatives. The nation must also invest in models of drug development and drugs of tomorrow instead of remaining trapped in the market logic of Intellectual Property (IP) in South Africa or outside.

It is worth examining how a person’s health can be held to ransom by pharmaceutical companies that focus only on profit and refuse to sell drugs at affordable prices, along with stopping others from doing so.

What Does It Mean for an Ordinary South African?

It means there may come a phase when the person needs unaffordable medicines protected under patent preventing other manufacturers from making an affordable alternative, thus forcing people to think about unaffordable drugs. It further means that health, human right, and constitutional right are commoditized so that the companies with patent rights can use human sufferings to make obscene profits. In other words, the right to access to health for ordinary people is being undermined.

The government in May 2018 approved an IP policy to enable better access to affordable and high-quality medicines. However, this is yet to be implemented as the proposed reforms still have to be made. Ultimately, what the country needs to emphasize here is not just the complications of IP law in South Africa, but also the violation of human rights. It is because ordinary people are often denied to use their universal right to access healthcare. For more visit: https://www.kashishipr.com/