Re-framing the Access Norm: Incorporating Innovation
HIV/AIDS was the beginning and catalyst of a push by some health advocates to conceptualize medicines as global public goods (see Chapter 4, Section (a) for further discussion of this concept)—that is, goods that should be available to all as a core component of realizing the right to health. Public debates have focused primarily on how the IP regime could be reformed to make medicines more affordable (or, less excludable). However, the same actors that challenged high medicines prices also launched efforts to amend the IP system to generate R&D that better met the needs of people in developing countries. These efforts originated in the late 1990s in the critique regarding neglected diseases, in which it was argued that the patent system failed to incentivize R&D targeted at diseases that exclusively affected the poor (Pecoul, Chirac, Trouiller and Pinel, 1999). However, the issue of innovation did not attract the same political attention as the issue of access until later in the decade when civil society groups began a concerted effort to reframe the “access norm” as an “innovation and access norm.” Such a reframing had significant implications both for the meaning of the norm itself, and for pathways to its formalization in international law. That is, by focusing on both innovation and access as important social goals, it could become possible to move beyond the political deadlocks over IP that prevented formalization of the access norm, and open up new spaces for negotiating formal rules for the global governance of innovation, as this chapter describes.